chosen every second year by the people of the several States," and that "the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature." The meaning of this language is that the persons in each State who, under its constitution and laws, are qualified to vote for members of the most numerous branch of its legislature, shall also be qualified to vote for members of the House of Representatives. This does not decide what the qualifications are, or that they shall be the same in every State. It leaves each State to adopt its own rule on the subject, and simply declares that the rule, whatever it is, shall apply in determining the qualifications of voters for Representatives in Congress. It annexes this consequence to the rule. Justice Hunt, in The United States v. Anthony, 11 Blatchf. C. C. Rep. 200, referring to this clause of the Constitution, said: "If the legislature of the State of New York should require a higher qualification in a voter for a Representative in Congress than is required for a voter for a member of Assembly, this would, I conceive, be a violation of a right belonging to one as a citizen of the United States. That right is in relation to a Federal subject or interest, and is guaranteed by the Federal Constitution." The qualifications in the former case can be no higher or lower than in the latter, without violating this Constitution. The intention of the instrument is that they shall be the same in both cases. Each State directly controls the question in the one case, and indirectly, by way of consequence, controls it in the other.

Article 1, section 4, provides that "the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof," and that "the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." No reference is here made to the qualifications for the exercise of the elective franchise. Senators are to be chosen by the legislatures of the several States, and Representatives are to be chosen as above described. And, having disposed of these questions, the Constitution then proceeds to grant a power relative to "the times, places and manner of holding elections," giving the power to the legislature of each State, yet, as a matter of caution with reference to possible contingencies, providing that Congress may make or alter such regulations, except as to the places of choosing Senators. This clearly has nothing to do with the qualifications of voters as established by State authority, and could not, without the grossest perversion, be construed as implying that Congress may determine what these qualifications shall be. As to voters for Representatives this was already settled by a previous clause of the Constitution.

Judge Woodruff, in The United States v. Quinn, 8

Blatchf. C. C. Rep. 48, decided that a law of Congress simply providing for ascertaining what persons under the Constitution and laws of a State are qualified to vote for Representatives, and also for the punishment of persons thus voting or attempting to vote without having complied with the requirements of law, is a constitutional exercise of the power granted in this section. Such a law he held to be "no attempt to prescribe to the States (to this, or any other State) any condition for the exercise of the right of suffrage, and no attempt to prescribe the qualifications of an elector." It simply seeks to limit the voting to those who are legal voters, and exclude those who are not; and this Congress may do under its power to make or alter regulations in respect to the times, places and manner of holding elections for Representatives. This ruling sustained that section of the Enforcement Act of Congress which provides a punishment for fraudulent registration, or an attempt at such registration, for the purpose of voting at an election for a Representative in Congress.

Article 1, section 5, declares that "each house [of Congress] shall be the judge of the elections, returns and qualifications of its own members." This authorizes each house to investigate an election to any extent, and also the returns thereof, and determine whether the claimant of a seat has a legal title thereto. A certificate of election, though prima facie evidence, is not conclusive upon either house. Either house may go behind the certificate and judge of the whole question that relates to the processes and result of an election. See Spaulding v. Mead, Clarke & Hall, 157, and Reed v. Cosden, id. 353. All this, however, implies no power in either house to do any thing more than simply pass judgment upon the legality of elections already held. It implies no power to make rules for those elections, or determine who shall be qualified voters. It is essentially a judicial power, vested by a special grant of the Constitution in each house of Congress with reference to its own members.

These are all the provisions of the Constitution that relate to the elective officers of the General Government; and in only one of them is any reference made to the qualifications for the exercise of the elective franchise. This prescribes that the persons in each State who, under its constitution and laws, are qualified voters for members of the most numerous branch of its legislature, shall also be qualified to vote for Representatives in Congress. The Constitution gives them this right, and no State can dispossess them of it. There can be no doubt that Congress has the power to provide for enforcing the right, should it be violated by any State. The Supreme Court of the United States, in Prigg v. The Commonwealth of Pennsylvania, 16 Pet. 539, laid down the general principle that, where the Constitution bestows or guarantees a right, Con

gress may enforce the same by appropriate legislation, whether the power to do so be expressly granted or not. The power, if not expressly granted, is necessarily implied.

3. Article 4, section 2, declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." It has sometimes been claimed that the right of voting is one of the privileges here referred to; yet, as construed by the courts, this language relates simply to what are called civil rights, and does not extend to the right of voting or of holding office. The latter are not among the "privileges and immunities" of State citizenship as such; and even if they were, they could be possessed and exercised in each State only under the constitution and laws which it sees fit to establish in respect to its own citizens. Surely, no citizen of a State can, by simply going into another, become a voter in that State independently of its constitution and laws. Though he may have been a qualified voter in the State which he leaves, it does not follow that he will be in the one to which he goes. He may not belong to the class in the latter State qualified to vote; and, if not, then under the laws of that State he has no right to vote, even though he had the right in the State of his previous residence. He may become a citizen in any State by simply acquiring a bona fide residence therein; but this will not necessarily make him a voter, since no State gives the right of voting to all its citizens. He must have the qualifications required in the State in which the right is to be exercised; and, so far as this provision of the Constitution is concerned, each State is left to regulate this matter according to its own discretion.

4. Article 4, section 4, declares that "the United States shall guarantee to every State in this Union a republican form of government." This is equivalent to saying that every State in the Union shall have such a form of government, and that the United States shall see to it that it is maintained. The Supreme Court of the United States, in Luther v. Borden, 7 How. 1, decided that the duty here imposed, primarily rests with Congress. The manifest object of the provision is to protect the people of the several States against any abuses of power that would destroy "a republican form of government."

As to what is such a form of government within the meaning of the Constitution, it is quite certain that universal suffrage cannot be taken as the test. All the States had governments when the Constitution was adopted, and they became members of the Union under it; and yet in each the elective franchise was limited to an electoral body of qualified voters, embracing only a portion of the people, and choosing, directly or indirectly, all public officers. This was deemed "a republican form of government;" and this is plainly the sense of the phrase

which must govern the United States in any attempt to perform the duty specified. Should any State government seek to perpetuate itself without the elective action of the people, or should it so reduce the number of suffrage-holders as to subvert the republican character of the government, and establish a virtual oligarchy, it would be the duty of Congress to interpose with its power, and guarantee to the people a republican government in the sense of the Constitution.

The only occasion in which Congress has ever attempted to exercise this power grew out of the late Rebellion. The rebel State governments existing at the time of the conquest, and those organized under the military orders of Andrew Johnson, were assumed to have no legal existence. Congress, by its reconstruction acts, provided for the creation of lawful governments, establishing provisional governments in the first instance, and then taking the necessary subsequent steps for the election of constitutional conventions, the ratification of constitutions by the people, and afterward the choice of State officers. The question, who should be voters in this process of reconstruction, was determined by Congress. The authority under which all these proceedings were taken is the clause of the Constitution now under consideration. Whether any of the proceedings exceeded this authority, or not, is a matter into which we do not here inquire. It is undoubtedly true that the authority is broad enough to justify the passage of all laws " necessary and proper for carrying into execution" this provision of the Constitution whenever an occasion arises for its application. The duty imposed implies in Congress the power to use all the appropriate means for its performance, and of these means Congress is made the judge. The rule by which it must be governed in the use of means is, that the people themselves that is to say, the qualified voters must be the authoritative source from which State constitutions and State governments spring. This is essential to the very idea of a republican government, and, hence, any measures of Congress in violation of this rule would be absurd on their very face.

5. The next provision of the Constitution to be examined is that clause of the Fourteenth Amendment which declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In Minor v. Happersett, 21 Wall. 162, the Supreme Court of the United States had occasion to consider this clause with reference to the elective franchise. Mrs. Minor, being a citizen of Missouri, and also of the United States, and being, on account of her sex, excluded from voting by the constitution of Missouri, claimed the right to vote under this provision of the national Constitution. Chief-Justice Waite, in delivering the opinion of the court, presented,

among others, the following points: 1. That women are citizens of the United States, and were such before the adoption of the Fourteenth Amendment. 2. That neither State citizenship, nor that of the United States, necessarily secures the right of voting. 3. That the Fourteenth Amendment does not add to the privileges and immunities of citizens, but simply furnishes an additional guaranty for their protection. 4. "That the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone, are not necessarily void."

The substance of the decision is, that the right to vote is not one of "the privileges or immunities of citizens of the United States," which the States, in the Fourteenth Amendment, are forbidden to abridge. The same ground was taken by Justice Hunt in the case of The United States v. Anthony, supra, and by the Supreme Court of California in Van Valkenburgh v. Brown, 43 Cal. 43. The question in each of these cases came up in connection with the claim to female suffrage. Yet the principle involved and decided is not necessarily limited to that connection.

If the right of voting had been secured to all citizens of the United States by the Fourteenth Amendment, there would have been no necessity for the subsequent proposal and adoption of the Fifteenth, to guarantee them against any exclusion from voting "on account of race, color, or previous condition of servitude." They were already thus guaranteed, and, hence, there was nothing for the Fifteenth Amendment to do. It was mere surplusage, or, at best, but a specific guaranty of what was embraced in the more comprehensive provisions of the previous amendment.

Moreover, the second section of the Fourteenth Amendment, in expressly providing for a reduction in the basis of Congressional representation, in the event that any State should deny the right of voting to any of its male inhabitants, being twenty-one years of age, and citizens of the United States, except for participation in rebellion, or other crime, distinctly implies that the States have the power thus to deny the right. The provision concedes the power, and simply imposes a consequence in a reduced basis of representation, if it be exercised; and this is wholly inconsistent with the supposition that the previous section of the amendment had guaranteed the right of voting, as one of "the privileges or immunities of citizens of the United States." The truth is, this amendment does not touch or restrain the authority of the States to regulate the voting franchise by any qualifications they may see fit to adopt.

6. The Fifteenth Amendment is the last provision to be considered. This declares that "the right of citizens of the United States to vote shall not be

denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude." We have here a denial of power. The subject-matter referred to in the denial is the right to vote. The persons in whose behalf the denial is made are citizens of the United States. The parties put under restraint by the denial are the United States and the several States; and in reference to them, the denial is equivalent to a declaration that neither shall make or enforce any law whose effect is to produce the result forbidden. The qualification of the denial is that the right to vote shall not be denied or abridged "on account of race, color, or previous condition of servitude." The language does not affirmatively confer the right to vote upon anybody, but simply forbids the exclusion of the right on the ground stated. It does not go beyond this ground, and include age, sex, education, property, or any other circumstance.

In the Grant Parish Case, Justice Bradley, commenting on the Fifteenth Amendment, said: "But whilst the amendment has the effect adverted to, it must be remembered that the right conferred and guaranteed is not an absolute one, but a relative one. It does not confer the right to vote. It confers the right not to be excluded from voting by reason of race, color, or previous condition of servitude, and this is all the right Congress can enforce." In The United States v. Reese et al, 2 Otto, 214, Chief-Justice Waite, in stating the opinion of the court, said: "The Fifteenth Amendment does not confer the right of suffrage upon any one. It prevents the States, or the United States, however, from giving preference in this particular to one citizen of the United States over another, on account of race, color or previous condition of servitude. Before its adoption this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property, or education. Now it is not. If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment there was no constitutional guaranty against this discrimination; now there is. It follows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. This, under the express provision of the second section of the amendment, Congress may enforce by appropriate legislation. * The power of Congress to legislate at all upon the subject of State elections rests upon this amendment."

* *

Congress, according to this construction of the Fifteenth Amendment, has no power to legislate

with reference to voting at State elections beyond the specific right which the amendment secures; and that right is not the right to vote, but the right not to be excluded from voting by any State "on account of race, color, or previous condition of servitude." This is the utmost limit to which Congress, under this amendment, can exercise any legislative power in respect to the election of State officers.

Will all the sections of the Enforcement Act of May 31st, 1870, stand the test of this rule of construction? Take, as a single illustration, the fourth section of the act, which, as somewhat modified in its language and reproduced in section 5506 of the Revised Statutes of the United States, but not essentially changed in substance, reads as follows:

"Every person who, by any unlawful means, hinders, delays, prevents, or obstructs, or combines and confederates with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote, or from voting at any election in any State, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be fined not less than five hundred dollars, or be imprisoned not less than one month nor more than one year, or be punished by both such fine and imprisonment."

We here raise no question about this penal statute, considered as operating in the territories of the United States, or in the District of Columbia, both of which are placed under the exclusive jurisdiction of Congress. The single point is whether this statute, so far as it operates in a State, has any foundation in the Fifteenth Amendment which, according to the Supreme Court, is the only authority under which Congress can "legislate at all upon the subject of State elections." The amendment forbids the States to exclude citizens of the United States from voting "on account of race, color, or previous condition of servitude," and authorizes Congress to enforce this prohibition by appropriate legislation. Such legislation is legislation adapted to the end and within the scope of the power granted. Is the above statute of this character? Clearly not. It goes immensely beyond the Fifteenth Amendment; and on this ground the Supreme Court held the fourth section of the Enforcement Act to be "unauthorized." It is a penal statute applicable to State elections, and to all persons, not simply to State officers, who do any of the things specified and for the purpose named, and makes no reference to "race, color, or previous condition of servitude" as the ground of doing the things. In a word, it is general legislation against any of the wrongs with respect to the elective franchise which one citizen of a State may commit against another. There is no warrant for this in the Fifteenth Amendment, or anywhere else in the Constitution. The amendment places the States under a certain restraint; and this statute, under color of enforcing that restraint, un

dertakes to punish private individuals in all the States for their offenses against each other with reference to the elective franchise, and does not even mention the specific character of the restraint imposed, not on private individuals, but upon the States.

It is not wonderful that Chief-Justice Waite spoke of the original section as "a net large enough to catch all possible offenders;" yet it is wonderful that any Congress should have placed such a law in the statute book of the nation. Like some other sections of the Enforcement Act, it lacks the cardinal attribute of being appropriate legislation, the very first condition of which is that it should be authorized by the Constitution.

The result that we reach from this examination of the Constitution is this: That, with the exception of the District of Columbia and the territories of the United States, in both of which Congress has exclusive jurisdiction, the question, who are voters in this country, and who are not, is wholly a matter of State authority and State discretion, subject to the following limitations: 1. That those who in each State are voters for members of the most numerous branch of its legislature are by the Constitution entitled to be voters for Representatives in Congress. 2. That citizens of the United States shall not by any State be excluded from voting "on account of race, color, or previous condition of servitude." 3. That no State shall adopt any constitution or exercise any power that is destructive of "a republican form of government." Outside of these limitations, the whole power of determining who shall exercise the elective franchise in the States, whether in respect to the election of State or national officers, is with the States themselves, and with each State in reference to its own citizens. So

long as the States keep within these limits, Congress has nothing to do with the question, simply because it has no power of action.

It is this view which led Chief-Justice Waite, in Minor v. Happersett, 21 Wall. 162, to say: "The United States has no voters in the States of its own creation. The elective officers of the United States are all elected directly or indirectly by State voters." This is certainly true in respect to Representatives in Congress, since the States, in determining who are voters for members of the most numerous branch of their respective legislatures, also determine who are voters for these Representatives. It is equally true of Senators in Congress, since State voters elect the legislatures that choose these Senators. It is just as true of the President and Vice-President, since the electors of these national officers must be appointed by State legislatures chosen by State voters, or by these voters.

The Government of the United States, considered independently of the State governments, has no voting constituency ascertained by its own Consti

by the constitutions and laws of the several States. This is one among many evidences that the General Government belongs to the class of imperfect governments, in the sense of possessing far less powers than are necessary for all the purposes of government. If not supplemented by the powers of the State governments, its legal machinery would not only be defective, but speedily come to an end. Strike out these governments, and we should at once need a new Constitution, greatly enlarging the powers of the General Government, as the only method of escape from dissolution and anarchy. Those who would jostle these governments from their legitimate province have not well considered the results of their own experiment.

THE RELATIONS OF THE UNITED STATES TO EACH OTHER, AS MODIFIED BY THE WAR AND THE CONSTITUTIONAL AMENDMENTS. (Continued.)

MY

Y second inquiry is, what relations do the States hold to the goverument, and inter se, by virtue of the Constitution? However they may have been before, has a change occurred? are they organically made one? or only functionally one? Is a new State, a compositive State, created out of many, which are thereby extinct? or are there still many States, and yet one State?

I have said the Constitution is a Federal compact between the States, by which a government has been established, which is a Democratic Republican, and a Federal government.

That it is a Democratic Republican none will deny, nor is it less a Federal government.

A Federal government is one, in whose organism States are factors, through'which States as such, act with their united powers.

In this sense I aver, that there is no act of any department of the government of the United States, and no function of the United States government, which is not mediately or immediately impelled by State authority.

1. Congress.

(a) Senate. As in this body, each State by its legislature elects two Senators, the equality of States, and their power as such, through their governments, is obvious. Colorado, with 40,000, is the equal of New York with her 4,300,000: or one man in Colorado is equal to 107 in New York! (I take census of 1870.)

(b) House of Representatives. In this body, the equality of the States is at an end. The will of the State is expressed by its voting population. But this house is the representative of the States, and for the following reasons:

The Constitution so declares in these quotations. It shall be "composed of members chosen every second "Each year by the people of the several States." State shall have at least one Representative," etc. Art. 1, § 2, cl. 3. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies." Art. 1, § 2, cl. 4. The number of Electors in each State shall be "equal to the whole number of Senators and

Again. This appears by the fact that the representative must inhabit the State he represents and because he represents it; that each State, however small, has one representative, so that Colorado has one for her 40,000, though New York and other States have only one for every 137,000; or the representative of the 40,000, because they are the people of a State, has more than three times the weight of one from New York; and thus there is and can be no confusion of citizens of one State with those of another in representation. The citizens of each are distinct because in separate States.

Again. The suffragans for representatives are prescribed by the State, and by the State alone. The voices, which speak through the representatives, are such as the State ordains. And if the State chooses to elect all her representatives by general vote, she may unify her State sentiment in proportion to her population; or if Congress, under the Constitution, makes the election by districts, the State may'so district herself as to organize her power as she pleases.

These facts demonstrate, that the votes of States are taken in the House of Representatives, though the number which each has depends on its population, so as that each shall have at least one.

The States speak in the Senate through their legislatures; in the House of Representatives through their voters; the legislatures and the voters being established and ordained by the States.

The effect of this obviously may be to defeat the will of the majority of the people of the United States, considered as a whole, for while in the lower House the States of Nevada, Colorado and Oregon together have only enough population for one representative, on the basis of apportionment, they have three votes as States; and in the Senate a majority of States (taking the smallest) have only nine millions, while the remainder have twenty-nine millions of people; and thus one-fourth of the whole people (38,000,000 by the census of 1870) may defeat the will of three-fourths; and if the people of the States in the minority are unanimous in favor of a measure, and those in the majority are nearly divided, four and a half millions could obstruct the will of thirty-three millions, or one man in a small State obstruct the purpose of seven and a half in a large State. All this is the result of the fact, that States are the factors in legislation of Congress.

2. Executive.

The President is chosen by electors. Each State shall appoint, as its legislature may direct, electors equal in number to its Senators and Representatives. Const. U. S., art. 2, § 1, cl. 2.

The electors meet, not in one body, but in their respective States. Id., cl. 3.

By this mode Colorado has three electors for her 40,000, or one for every 13,000 people. New York thirty-five for her 4,300,000 of people, or one for every 120,000; or the potency of one Colorado citizen is equal to nine in New York.

But if an election fails in the electoral colleges, the President is elected in the House of Representatives; where Colorado's one Representative has one vote, and New York's thirty-three Representatives have but one vote; or Colorado, with 40,000, is equal to