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First.

Congress has no power to pass laws for the punishment of Inspectors of Elections, elected or appointed under the laws of the State of New York, for receiving illegal votes, or registering as voters, persons who have no right to be registered.

No law of Congress defines the qualifications of voters in the several States. These are found only in the State Constitutions and Statutes. The offenses charged in the indictment are, that the defendants, being State officers, have violated the laws of the State. If it be so, they may be tried and punished in accordance with the State laws. No proposition can be clearer. If the United States can also punish them for the same offense, it follows that they may be twice indicted, tried, convicted and punished for one offense. A plea in a State Court, of a conviction and sentence, in a United States Court would constitute no bar or defense. ( 12 Metcalf, 387, Commonwealth v. Peters, ) and the defendants might be punished twice for the same offense. This cannot be, and if the act in question be valid, the State of New York is ousted of jurisdiction. And where does Congress derive the power to pass laws to punish offenders against the laws of a State? This case must be tried under the laws of the United States. Against those laws, no offense is charged to have been committed. Such power, if it exist, must be somewhere expressly granted, or it must be necessary in order to execute some power that is expressly granted.

The Act of Congress in question, became a law on May 31st, 1870. It is entitled—

“An act to enforce the right of citizens of the United States to vote in the several States, and for other purposes.”

The indictment is found under the 19th section of the Act as it passed originally, and the 20th section as amended by the Act of February 28th, 1871.

The 19th Section, so far as it is necessary to quote it here, is as follows:

“That if at any election for representatives or “delegates in the Congress of the United States any “person shall knowingly personate and vote, or attempt “to vote, in the name of any other person, whether “living or dead, or fictitious; or vote more than once “at the same election for any candidate for the same “office; or vote at a place where he may not be “entitled to vote; or vote without having a lawful right “to vote, * * * * or knowingly and wilfully receives “the vote of any person not entitled to vote, or “refuses to receive the vote of any person entitled to “vote; * * * * every such person shall be “deemed guilty of a crime, and shall for such crime “be liable to prosecution in any Court of the United “States of competent jurisdiction, and on conviction “thereof, shall be punished by a fine not exceeding “five hundred dollars, or by imprisonment for a term “not exceeding three years, or both, in the discretion “of the Court, and shall pay the costs of prosecution.”

Section 20, as amended, so far as pertinent, reads as follows:

“That if at any registration of voters for an election “for representatives or delegates in the Congress of “the United States, any person shall knowingly * * “* * hinder any person having a lawful right to “register, from duly exercising that right; or compel “or induce by any of such means, or other unlawful “means, ANY OFFICER OF REGISTRATION to admit to “registration any person not legally entitled thereto; “ * * * or if any such officer shall knowingly “and wilfully register as a voter any person not entitled “to be registered, or refuse so to register any “person entitled to be registered, * * * every such “person shall be deemed guilty of a crime, and shall “be liable to prosecution and punishment therefor, “as provided in section 19 of said Act of May 31, “1870, for persons guilty of the crimes therein “specified.”

No law of Congress describes the qualifications of voters in the this State, or in any State.

Congress has provided no registry law. Therefore, what constitutes the offenses charged in this indictment, must be looked for in the laws of the State. By no Act of Congress can it be determined in what case a person votes, “ without having a right to vote. “ By no Act of Congress can it be determined when an Inspector of Election has received the vote of “ any person not entitled to vote, “ or has registered “ as a voter, any person not entitled to be registered. “ There are the offenses alleged in this indictment. They are penal offenses by the Statutes of New York. The jurisdiction of the State Courts over them is completed, and cannot be questioned.

By the Act of May 31, 1870, above cited, Congress has ordained, in legal effect, that if any person violates the penal Code of the State of New York, or any State, in respect of voting, he may be punished by the United States. And the offense is a variable quantity; what is a crime in one State under this Act, is a legal right and duty in another. A citizen of Rhode Island, for instance, who votes when not possessed in his own right, of an estate in fee simple—in fee tail, for life, or in reversion or remainder, of the value of $134 or upwards, may be convicted of a crime under this Act, and imprisoned in a State Prison. He voted in violation of the laws of his State. A citizen of New York votes under precisely similar circumstances, and with the same qualifications, and his act is a legal one, and he performs a simple duty. Any State may, by its Constitution and laws, permit women to vote. Had these defendants been acting as Inspectors of Elections in such State, their act would be no crime, and this indictment could not be sustained, for the only illegality alleged is, that the citizens whose votes were received were women, and therefore not entitled to vote.

The Act of Congress thus, is simply an Act to enforce the diverse penal statutes of the various States in relation to voting. In order to make a case, the United States must combine the federal law with the statutes of the State where the venue of the prosecution is laid.

Before the enactment of the 13th, 14th and 15th Amendments, it is not, and never was pretended, that Congress possessed any such power. Subdivision 1 of Section 2, of Article one of the Constitution, provides as follows:

“The House of Representatives shall be composed “of members chosen every second year by the people “of the several States; and the electors in each State “shall have the qualifications requisite for electors of “the most numerous branch of the State Legislature.”

By this provision, what shall qualify a person to be an elector, is left entirely to the States. Whoever, in any State, is permitted to vote for members of the most numerous branch of its legislature, is also competent to vote for Representatives in Congress. The State might require a property qualification, or it might dispense with it. It might permit negroes to vote, or it might exclude them. It might permit women to vote, or even foreigners, and the federal constitution would not be infringed. If a State had provided a different qualification for an elector of Representatives in Congress, from that required of an elector of the most numerous branch of its Legislature, the power of the federal constitution might be invoked, and law annuled. But never was the idea entertained, that this provision of the Constitution authorizes Congress to pass laws for the punishment of individuals in the State for illegal voting, or State returning officers for receiving illegal votes.

This power, if it exist, must be found in the recent Amendments to the U. S. Constitution.

I assume that your Honor will hold, as you did yesterday in Miss Anthony's case that these amendments do not confer the right to vote upon citizens of the United States, and therefore not upon women. That decisions is the law of this case. It follows necessarily from that decision, that these amendments have nothing to do with the right of voting, except so far as that right “is denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.”

The thirteenth article of the Amendments to the Constitution of the United States, in Section 1 ordains that “neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Section 2 ordains that Congress shall have power to enforce this Article by appropriate legislation”

The fourteenth article of the Amendments to the Constitution of the United States, ordains in Section 1. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State where they reside. No State shall, and of the State where they which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction, the equal protection to the laws.”

Section five enacts, “The Congress shall have power to enforce by appropriate legislation, the provisions of this Article.”

The fifteenth article of Amendment to the Constitution ordains in its first section, that “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.”

Section two enacts, that “The Congress shall have “power to enforce this Article by appropriate legislation.”

These are the provisions of the Constitution relied on to support the legislation of Congress now before this Court. Some features of that legislation may be constitutional and valid. Whether this be so or not, it is not necessary now to determine. The question here is has Congress, by either of these amendments, bee clothed with the power, to pass laws to punish inspectors of elections in this State for receiving the votes of women?

The thirteenth amendment simply abolish slavery, and authorizes such legislation as shall be necessary to make that enactment effectual.

The power in question is not found there.

The fourteenth amendment defines who are citizens of the United States, and prohibits the States from making or enforcing “only law which shall abridge the privileges or immunities” of such citizens.

Either the right to votes is one of the “privileges or immunities” of the United States citizen, which the states are forbidden to abridge, or it is not. If it is, then the women whose votes these defendants received, being citizens of the United States, and in every other way qualified to vote, possessed the right to vote, and their votes were rightfully received. If it is not, the the fourteenth amendment confers no power upon Congress, to legislate on the subject of voting in the States. There is no other clause or provision of that amendment which can by any possibility confer such power—a power which cannot be implied, but which, if it exist, must be expressly given in some part of the Constitution, or clearly needed to carry into effect some power that is expressly given.

No such power is conferred by the fifteenth amendment. That amendment operates upon the States and upon the United States, and not upon the citizen. “The right of citizens of the United States to vote, shall not be denied or abridged by “’ The United States or by any State. “’ The terms “United States” and “State,” as here used, mean the government of the United States and of the States. They do not apply to individuals or to offenses committed by individuals, but only to acts done by the State or the United States.

But at any rate, the operation of this amendment, and the power given to Congress to enforce it, is limited to offenses committed in respect of depriving persons of the right to vote because of their race, color, or previous condition of servitude.”

This is not such a case. There is no ground for saying that these defendants have committed any offense against the spirit or the letter of the fifteenth amendment, or any legitimate legislation for its enforcement.

Congress cannot make laws to regulate the duties of Inspectors, and it cannot inflict a penalty.

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