1. The appellate jurisdiction of this court, exercisable by the
writ of habeas corpus, extends to a case of imprisonment upon
conviction and sentence of a party by an inferior court of the
United States, under and by virtue of an unconstitutional act of
Congress, whether this court bas jurisdiction to review the
judgment of conviction by writ of error or not.
2. The jurisdiction of this court by habeas corpus, when not
restrained by some special law, extends generally to imprisonment
pursuant to the judgment of an inferior tribunal of the United
States which has no jurisdiction of the cause, or whose proceedings
are otherwise void and not merely erroneous, and such a case occurs
when the proceedings are had under an unconstitutional act.
3. But when the court below has jurisdiction of the cause, and
the matter charged is indictable under a constitutional law, any
errors committed by the inferior court can only be reviewed by writ
of error, and, of course, cannot be reviewed at all if no writ of
error lies.
4. Where personal liberty is concerned, the judgment of an
inferior court affecting it is not so conclusive but that the
question of its authority to try and imprison the party may be
reviewed on habeas corpus by a superior court or judge having power
to award the writ.
5. Certain judges of election in the city of Baltimore,
appointed under State laws, were convicted in the Circuit Court of
the United States, under sects. 6515 and 5522 of the Revised
Statutes of the United States, for interfering with and resisting
the supervisors of election and deputy marshals of the United
States in the performance of their duty at an election of
representatives to Congress, under sects. 2016, 2017, 2021, 2022,
title xxvi of the Revised Statutes.
Held, that the
question of the constitutionality of said laws is good ground for
the issue by this court of a writ of habeas corpus to inquire into
the legality of the imprisonment under such conviction, and, if the
laws are determined to be unconstitutional, the prisoner should be
discharged .
6. Congress had power by the Constitution to enact sect. 5516 of
the Revised Statutes, which makes it a penal offence against the
United States for any officer of election, at an election held for
a representative in Congress, to neglect to perform, or to violate,
any duty in regard to such election, whether required by a law of
the State or of the United States, or knowingly to do any act
unauthorized by any such law, with intent to affect such election,
or to make a fraudulent certificate of the result, &c., and
sect. 5522, which makes it a penal offence for any officer or other
person, with or without process, to obstruct, hinder, bribe, or
interfere with a supervisor of election, or marshal, or deputy
marshal in the performance of any duty required of them by any law
of the United States, or to prevent their free attendance at the
places of registration or election, &c.; also, sects. 2011,
2012, 2016, 2017, 2021, 2022, title xxvi, which authorize the
circuit courts to appoint supervisors of such elections, and the
marshal to appoint special deputies to aid and assist them, and
which prescribe the duties of such supervisors and deputy marshals
-- these being the laws provided in the
Page 100 U. S. 372
enforcement Act of May 31, 1870, and the supplement thereto of
Feb. 28, 1871, for supervising the elections of representatives,
and for preventing frauds therein.
7. The circuit courts have jurisdiction of indictments under
these laws, and a sentence in pursuance of a verdict of
condemnation is lawful cause of imprisonment from which this court
has no power to relieve on habeas corpus.
8. In making regulations for the election of representatives, it
is not necessary that Congress should assume entire and exclusive
control thereof. By virtue of that clause of the Constitution which
declares that
"the times, places, and manner of holding elections for senators
and representatives shall be prescribed in each State by the
legislature thereof; but the Congress may at any time by law make
or alter such regulations, except as to the place of choosing
senators,"
Congress has a supervisory power over the subject, and may
either make entirely new regulations or add to, alter, or modify
the regulations made by the State.
9. In the exercise of such supervisory power, Congress may
impose new duties on the officers of election, or additional
penalties for breach of duty, or for the perpetration of fraud; or
provide for the attendance of officers to prevent frauds and see
that the elections are legally and fairly conducted.
10. The exercise of such power can properly cause no collision
of regulations or jurisdiction, because the authority of Congress
over the subject is paramount, and any regulations it may make
necessarily supersede inconsistent regulations of the State. This
is involved in the power to "make or alter."
11. There is nothing in the relation of the State and the
national sovereignties to preclude the cooperation of both in the
matter of elections of representatives. If both were equal in
authority over the subject, collisions of jurisdiction might ensue,
but, the authority of the national government being paramount,
collisions can only occur from unfounded jealousy of such
authority.
12. The provision which authorizes the deputy marshals to keep
the peace at the elections is not unconstitutional. The national
government has the right to use physical force in any part of the
United States to compel obedience to its laws, and to carry into
execution the powers conferred upon it by the Constitution.
13. The concurrent jurisdiction of the national government with
that of the States, which it has in the exercise of its powers of
sovereignty in every part of the United States, is distinct from
that exclusive jurisdiction which it has by the Constitution in the
District of Columbia, and in those places acquired for the erection
of forts, magazines, arsenals, &c.
14. The provisions adopted for compelling the State officers of
election to observe the State laws regulating elections of
representatives, not altered by Congress, are within the
supervisory powers of Congress over such elections. The duties to
be performed in this behalf are owed to tho United States, as well
as to the State, and their violation is an offence against the
United States which Congress may rightfully inhibit and punish.
This necessarily follows from the direct interest which the
national government has in the due election of its representatives
and from the power which the Constitution gives to Congress over
this particular subject.
Page 100 U. S. 373
16. Congress had power by the Constitution to vest in the
circuit courts the appointment of supervisors of election. It is
expressly declared that
"Congress my by law vest the appointment of such inferior
officers as they think proper in the President alone, in the courts
of law, or in the heads of departments."
Whilst, as a question of propriety, the appointment of officers
whose duties appertain to one department ought not to be lodged in
another, the matter is nevertheless left to the discretion of
Congress.
MR. JUSTICE BRADLEY delivered the opinion of the court.
The petitioners in this case, Albert Siebold, Walter Tucker,
Martin C. Burns, Lewis Coleman, and Henry Bowers, were judges of
election at different voting precincts in the city of Baltimore at
the election held in that city, and in the State of Maryland, on
the fifth day of November, 1878, at which representatives to the
Forty-sixth Congress were voted for.
At the November Term of the Circuit Court of the United States
for the District of Maryland, an indictment against each of the
petitioners was found in said court for offences alleged to have
been committed by them respectively at their respective precincts
whilst being such judges of election, upon which indictments they
were severally tried, convicted, and sentenced by said court to
fine and imprisonment. They now apply to this court for a writ of
habeas corpus to be relieved from imprisonment.
Before making this application, each petitioner, in the month of
September last, presented a separate petition to the Chief Justice
of this court (within whose circuit Baltimore is situated) at Lynn,
in the State of Connecticut, where he then was, praying for a like
habeas corpus to be relieved from the same imprisonment. The Chief
Justice thereupon made an order that the said marshal and warden
should show cause before him, on the second Tuesday of October, in
the city of Washington, why such writs should not issue. That being
the first day of the present term of this court, at the instance of
the Chief Justice, the present application was made to the court by
a new petition addressed thereto, and the petitions and papers
which had been
Page 100 U. S. 374
presented to the Chief Justice were, by consent, made a part of
the case. The records of the several indictments and proceedings
thereon were annexed to the respective original petitions, and are
before us. These indictments were framed partly under sect. 5515
and partly under sect. 5522 of the Revised Statutes of the United
States, and the principal questions raised by the application are
whether those sections, and certain sections of the title of the
Revised Statutes relating to the elective franchise which they are
intended to enforce, are within the constitutional power of
Congress to enact. If they are not, then it is contended that the
Circuit Court has no jurisdiction of the cases, and that the
convictions and sentences of imprisonment of the several
petitioners were illegal and void.
The jurisdiction of this court to hear the case is the first
point to be examined. The question is whether a party imprisoned
under a sentence of a United States court, upon conviction of a
crime created by and indictable under an unconstitutional act of
Congress, may be discharged from imprisonment by this court on
habeas corpus, although it has no appellate jurisdiction by writ of
error over the judgment. It is objected that the case is one of
original, and not appellate, jurisdiction, and, therefore, not
within the jurisdiction of this court. But we are clearly of
opinion that it is appellate in its character. It requires us to
revise the act of the Circuit Court in making the warrants of
commitment upon the convictions referred to. This, according to all
the decisions, is an exercise of appellate power.
Ex parte
Burford, 3 Cranch 448;
Ex parte
Bollman and Swartout, 4
id. 100,
8 U. S. 101;
Ex parte
Yerger, 8 Wall. 98.
That this court is authorized to exercise appellate jurisdiction
by habeas corpus directly is a position sustained by abundant
authority. It has general power to issue the writ, subject to the
constitutional limitations of its jurisdiction, which are that it
can only exercise original jurisdiction in cases affecting
ambassadors, public ministers and consuls, and cases in which a
State is a party, but has appellate jurisdiction in all other cases
of Federal cognizance, "with such exceptions and under such
regulations as Congress shall make." Having this general power to
issue the writ, the court may issue it in the exercise of original
jurisdiction where it has original jurisdiction; and
Page 100 U. S. 375
may issue it in the exercise of appellate jurisdiction where it
has such jurisdiction, which is in all cases not prohibited by law
except those in which it has original jurisdiction only.
Ex
parte Bollman and Swartwout, supra; 28 U. S. 3
Pet. 202; 7
id. 32 U. S. 568;
Ex parte
Wells, 18 How. 307,
59 U. S. 328;
Ableman v.
Booth, 21
id. 506;
Ex parte
Yerger, 8 Wall. 85.
There are other limitations of the jurisdiction, however,
arising from the nature and objects of the writ itself as defined
by the common law, from which its name and incidents are derived.
It cannot be used as a mere writ of error. Mere error in the
judgment or proceedings, under and by virtue of which a party is
imprisoned, constitutes no ground for the issue of the writ. Hence,
upon a return to a habeas corpus that the prisoner is detained
under a conviction and sentence by a court having jurisdiction of
the cause, the general rule is that he will be instantly remanded.
No inquiry will be instituted into the regularity of the
proceedings unless perhaps where the court has cognizance by writ
of error or appeal to review the judgment. In such a case, if the
error be apparent and the imprisonment unjust, the appellate court
may, perhaps, in its discretion, give immediate relief on habeas
corpus, and thus save the party the delay and expense of a writ of
error. Bac.Abr., Hab.Corp., B. 13;
Bethel's Case, Salk.
348; 5 Mod.19. But the general rule is that a conviction and
sentence by a court of competent jurisdiction is lawful cause of
imprisonment, and no relief can be given by habeas corpus.
The only ground on which this court, or any court, without some
special statute authorizing it, will give relief on habeas corpus
to a prisoner under conviction and sentence of another court is the
want of jurisdiction in such court over the person or the cause, or
some other matter rendering its proceedings void.
This distinction between an erroneous judgment and one that is
illegal or void is well illustrated by the two cases of
Ex parte
Lange, 18 Wall. 163, and
Ex parte Parks,
93 U. S. 18. In the
former case, we held that the judgment was void, and released the
petitioner accordingly; in the latter, we held that the judgment,
whether erroneous or not, was not void, because the court had
jurisdiction of the cause, and we refused to interfere.
Page 100 U. S. 376
Chief Justice Abbot, in
Rex v. Suddis, 1 East 306,
said:
"It is a general rule that, where a person has been committed
under the judgment of another court of competent criminal
jurisdiction, this court [the King's Bench] cannot review the
sentence upon a return to a habeas corpus. In such cases, this
court is not a court of appeal."
It is stated, however, in Bacon's Abridgment, probably in the
words of Chief Baron Gilbert, that,
"if the commitment be against law, as being made by one who had
no jurisdiction of the cause, or for a matter for which by law no
man ought to be punished, the court are to discharge."
Bac.Abr., Hab.Corp., B. 10. The latter part of this rule, when
applied to imprisonment under conviction and sentence, is confined
to cases of clear and manifest want of criminality in the matter
charged such as in effect to render the proceedings void. The
authority usually cited under this head is
Bushel's Case,
decided in 1670. There, twelve jurymen had been convicted in the
oyer and terminer for rendering a verdict (against the charge of
the court) acquitting William Penn and others, who were charged
with meeting in conventicle. Being imprisoned for refusing to pay
their fines, they applied to the Court of Common Pleas for a habeas
corpus, and though the court, having no jurisdiction in criminal
matters, hesitated to grant the writ, yet, having granted it, they
discharged the prisoners on the ground that their conviction was
void inasmuch as jurymen cannot be indicted for rendering any
verdict they choose. The opinion of Chief Justice Vaughan in the
case has rarely been excelled for judicial eloquence. T. Jones, 13,
s.c. Vaughan, 135; s.c. 6 Howell's State Trials 999.
Without attempting to decide how far this case may be regarded
as law for the guidance of this court, we are clearly of opinion
that the question raised in the cases before us is proper for
consideration on habeas corpus. The validity of the judgments is
assailed on the ground that the acts of Congress under which the
indictments were found are unconstitutional. If this position is
well taken, it affects the foundation of the whole proceedings. An
unconstitutional law is void, and is as no law. An offence created
by it is not a crime. A conviction under it is not merely
erroneous, but is illegal and void,
Page 100 U. S. 377
and cannot be a legal cause of imprisonment. It is true, if no
writ of error lies, the judgment may be final in the sense that
there may be no means of reversing it. But personal liberty is of
so great moment in the eye of the law that the judgment of an
inferior court affecting it is not deemed so conclusive but that,
as we have seen, the question of the court's authority to try and
imprison the party may be reviewed on habeas corpus by a superior
court or judge having authority to award the writ. We are satisfied
that the present is one of the cases in which this court is
authorized to take such jurisdiction. We think so because, if the
laws are unconstitutional and void, the Circuit Court acquired no
jurisdiction of the causes. Its authority to indict and try the
petitioners arose solely upon these laws.
We proceed, therefore, to examine the cases on their merits.
The indictments commence with an introductory statement that, on
the 5th of November, 1878, at the Fourth [or other] Congressional
District of the State of Maryland, a lawful election was held
whereat a representative for that congressional district in the
Forty-sixth Congress of the United States was voted for; that a
certain person [naming him] was then and there a supervisor of
election of the United States, duly appointed by the Circuit Court
aforesaid, pursuant to sect. 2012 of the Revised Statutes, for the
third [or other] voting precinct of the fifteenth [or other] ward
of the city of Baltimore, in the said congressional district, for
and in respect of the election aforesaid, thereat; that a certain
person [naming him] was then and there a special deputy marshal of
the United States, duly appointed by the United States marshal for
the Maryland district pursuant to sect. 201 of the Revised Statutes
and assigned for such duty as is provided by that and the following
section to the said precinct of said ward of said city at the
congressional election aforesaid, thereat. Then come the various
counts.
The petitioner, Bowers, was convicted on the second count of the
indictment against him, which was as follows:
"That the said Henry Bowers, afterwards, to-wit, on the day and
year aforesaid, at the said voting precinct within the district
aforesaid, unlawfully did obstruct, hinder, and, by the use
Page 100 U. S. 378
of his power and authority as such judge as aforesaid (which
judge he then and there was), interfere with and prevent the
said supervisor of election in the performance of a
certain duty in respect to said election required of him, and which
he was then and there authorized to perform by the law of the
United States, in such case made and provided, to-wit, that of
personally inspecting and scrutinizing, at the beginning of said
day of election, and of the said election, the manner in which the
voting was done at the said poll of election, by examining and
seeing whether the ballot first voted at said poll of election was
put and placed in a ballot box containing no ballots whatever,
contrary to sect. 5522 of said statutes, and against the peace,
government, and dignity of the United States."
Tucker, who was indicted jointly with one Gude, was convicted
upon the second and fifth counts of the indictment against them,
which were as follows:
"(2d) That the said Justus J. Gude and the said Walter Tucker
afterwards, to-wit, on the day and year aforesaid, at the said
voting precinct of said ward of said city, unlawfully and by
exercise of their power and authority as such judges as aforesaid,
did prevent and hinder the free attendance and presence of the said
James N. Schofield (who was
then and there such deputy
marshal as aforesaid, in the due execution of his said office)
at the poll of said election of and for the said voting precinct,
and the full and free access of the same deputy marshal to the same
poll of election, contrary to the said last-mentioned section of
said statutes (sect. 5522), and against the peace, government, and
dignity of the United States."
"(6th) That the said Justus J. Gude and the said Walter Tucker,
on the day and year aforesaid, at the precinct aforesaid, within
the district aforesaid (they being then and there such officers of
said election as aforesaid), knowingly and unlawfully at the said
election did a certain act, not then and there authorized by any
law of the State of Maryland, and not authorized then and there by
any law of the United States, by then and there fraudulently and
clandestinely putting and placing in the ballot box of the said
precinct twenty (and more) ballots (within the intent and meaning
of sect. 561 of said statutes) which had not been voted at said
election in said precinct before the ballots,
Page 100 U. S. 379
then and there lawfully deposited in the same ballot box, had
been counted, with intent thereby to affect said election and the
result thereof, contrary to sect. 6515 of said statutes, and
against the peace, government, and dignity of the United
States."
This charge, it will be observed, is for the offence commonly
known as "stuffing the ballot box."
The counts on which the petitioners, Burns and Coleman, were
convicted were similar to those above specified. Burns was charged
with refusing to allow the supervisor of elections to inspect the
ballot box, or even to enter the room where the polls were held,
and with violently resisting the deputy marshal who attempted to
arrest him, as required by sect. 2022 of the Revised Statutes. The
charges against Coleman were similar to those against Burns, with
the addition of a charge for stuffing the ballot box. Siebold was
only convicted on one count of the indictment against him, which
was likewise a charge of stuffing the ballot box.
The sections of the law on which these indictments are founded,
and the validity of which is sought to be impeached for
unconstitutionality, are summed up by the counsel of the
petitioners in their brief as follows (omitting the comments
thereon):
The counsel say:
"These cases involve the question of the constitutionality of
certain sections of title xxvi of the Revised Statutes, entitled
'The Elective Franchise.'"
"SECT. 2011. The judge of the Circuit Court of the United States
wherein any city or town having upwards oft twenty thousand
inhabitants is situated, upon being informed by two citizens
thereof, prior to any registration of voters for, or any election
at which a representative or delegate in Congress is to be voted
for, that it is their desire to have
such registration or
election guarded and scrutinized, shall open the Circuit Court
at the most convenient point in the circuit."
"SECT. 2012. The judge shall appoint two supervisors of election
for every election district in such city or town."
"SECT. 2016. The supervisors are authorized and required to
attend all times and places fixed for registration of voters;
Page 100 U. S. 380
to challenge such as they deem proper; to cause such names to be
registered as they may think proper to be so marked; to inspect and
scrutinize such register of voters, and for purposes of
identification to affix their signatures to each page of the
original list."
"SEC. 2017. The supervisors are required to attend the times and
places for holding elections of representatives or delegates in
Congress, and of counting the votes cast; to challenge any vote the
legality of which they may doubt; to be present continually where
the ballot boxes are kept, until every vote cast has been counted,
and the proper returns made, required under any law of the United
States, or any State, territorial, or municipal law, and to
personally inspect and scrutinize at any and all times, on the day
of election, the manner in which the poll books, registry lists,
and tallies are kept; whether the same are required by any law of
the United States or any State, territorial, or municipal
laws."
"SECT. 2021. Requires the marshal, whenever any election at
which representatives or delegates in Congress are to be chosen,
upon application by two citizens in cities or towns of more than
twenty thousand inhabitants, to appoint special deputy marshals,
whose duty it shall be to aid and assist the supervisors in the
discharge of their duties, and attend with them at all
registrations of voters or election at which representatives to
Congress may be voted for."
"SEC. 2022. Requires the marshal, and his general and special
deputies, to keep the peace and protect the supervisors in the
discharge of their duties; preserve order at such place of
registration and at such polls; prevent fraudulent registration and
voting, or fraudulent conduct on the part of any officer of
election, and immediately to arrest any person who commits, or
attempts to commit, any of the offences prohibited herein, or any
offence against the laws of the United States."
The counsel then refer to and summarize sects. 5514, 5515, and
5522 of the Revised Statutes. Sect. 5514 merely relates to a
question of evidence, and need not be copied. Sects. 5515 and 5522,
being those upon which the indictments are directly framed, are
proper to be set out in full. They are as follows:
Page 100 U. S. 381
"SECT. 5515. Every officer of an election at which any
representative or delegate in Congress is voted for, whether such
officer of election be appointed or created by or under any law or
authority of the United States, or by or under any State,
territorial, district, or municipal law or authority, who neglects
or refuses to perform any duty in regard to such election required
of him by any law of the United States, or of any State or
Territory thereof; or who violates any duty so imposed; or who
knowingly does any acts thereby unauthorized, with intent to affect
any such election, or the result thereof; or who fraudulently makes
any false certificate of the result of such election in regard to
such representative or delegate; or who withholds, conceals, or
destroys any certificate of record so required by law respecting
the election of any such representative or delegate; or who
neglects or refuses to make and return such certificate as required
by law; or who aids, counsels, procures, or advises any voter,
person, or officer to do any act by this or any of the preceding
sections made a crime, or to omit to do any duty the omission of
which is by this or any of such sections made a crime, or attempts
to do so, shall be punished as prescribed in sect. 5511."
"SECT. 5522. Every person, whether with or without any
authority, power, or process, or pretended authority, power, or
process, of any State, Territory, or municipality, who obstructs,
hinders, assaults, or by bribes, solicitation, or otherwise,
interferes with or prevents the supervisors of election, or either
of them, or the marshal or his general or special deputies, or
either of them, in the performance of any duty required of them, or
either of them, or which he or they, or either of them, may be
authorized to perform by any law of the United States in the
execution of process or otherwise, or who, by any of the means
before mentioned hinders or prevents the free attendance and
presence at such places of registration, or at such polls of
election, or full and free access and egress to and from any such
place of registration or poll of election, or in going to and from
any such place of registration or poll of election, or to and from
any room where any such registration or election or canvass of
votes, or of making any returns or certificates thereof, may be
had, or who molests, interferes with, removes, or ejects from any
such place of registration or poll of election, or of canvassing
votes cast thereat, or of making returns or certificates thereof,
any supervisor of election, the marshal, or his general or special
deputies, or either of them; or who threatens, or attempts, or
offers so to do, or refuses or neglects to aid and assist any
supervisor
Page 100 U. S. 382
of election, or the marshal or his general or special deputies,
or either of them, in the performance of his or their duties, when
required by him or them, or either of them, to give such aid and
assistance shall be liable to instant arrest without process, and
shall be punished by imprisonment not more than two years, or by a
fine of not more than $3,000, or by both such fine and
imprisonment, and shall pay the cost of the prosecution."
These portions of the Revised Statutes are taken from the act
commonly known as the Enforcement Act, approved May 31, 1870, and
entitled "An Act to enforce the right of citizens of the United
States to vote in the several States of this Union, and for other
purposes," and from the supplement of that act, approved Feb. 28,
1871. They relate to elections of members of the House of
Representatives, and were an assertion on the part of Congress of a
power to pass laws for regulating and superintending said elections
and for securing the purity thereof, and the rights of citizens to
vote thereat peaceably and without molestation. It must be conceded
to be a most important power, and of a fundamental character. In
the light of recent history, and of the violence, fraud,
corruption, and irregularity which have frequently prevailed at
such elections, it may easily be conceived that the exertion of the
power, if it exists, may be necessary to the stability of our frame
of government.
The counsel for the petitioners, however, do not deny that
Congress may, if it chooses, assume the entire regulation of the
elections of representatives; but they contend that it has no
constitutional power to make partial regulations intended to be
carried out in conjunction with regulations made by the States.
The general positions contended for by the counsel of the
petitioners are thus stated in their brief:
"We shall attempt to establish these propositions:"
"1. That the power to make regulations as to the times, places,
and manner of holding elections for representatives in Congress,
granted to Congress by the Constitution, is an exclusive power when
exercised by Congress."
"2. That this power, when so exercised, being exclusive of all
interference therein by the States, must be so exercised as
Page 100 U. S. 383
not to interfere with or come in collision with regulations
presented in that behalf by the States unless it provides for the
complete control over the whole subject over which it is
exercised."
"3. That, when put in operation by Congress, it must take the
place of all State regulations of the subject regulated, which
subject must be entirely and completely controlled and provided for
by Congress."
We are unable to see why it necessarily follows that, if
Congress makes any regulations on the subject, it must assume
exclusive control of the whole subject. The Constitution does not
say so.
The clause of the Constitution under which the power of
Congress, as well as that of the State legislatures, to regulate
the election of senators and representatives arises is as
follows:
"The times, places, and manner of holding elections for senators
and representatives shall be prescribed in each State by the
legislature thereof; but the Congress may at any time, by law, make
or alter such regulations, except as to the place of choosing
Senators."
It seems to us that the natural sense of these word is the
contrary of that assumed by the counsel of the petitioners. After
first authorizing the States to prescribe the regulations, it is
added, "The Congress may
at any time, by law,
make or
alter such regulations." "
Make or alter:" What is the
plain meaning of these words? If not under the prepossession of
some abstract theory of the relations between the State and
national governments, we should not have any difficulty in
understanding them. There is no declaration that the regulations
shall be made either wholly by the State legislatures or wholly by
Congress. If Congress does not interfere, of course, they may be
made wholly by the State; but if it chooses to interfere, there is
nothing in the words to prevent its doing so, either wholly or
partially. On the contrary, their necessary implication is that it
may do either. It may either make the regulations or it may alter
them. If it only alters, leaving, as manifest convenience requires,
the general organization of the polls to the State, there results a
necessary cooperation of the two governments in regulating the
subject. But no repugnance
Page 100 U. S. 384
in the system of regulations can arise thence, for the power of
Congress over the subject is paramount. It may be exercised as and
when Congress sees fit to exercise it. When exercised, the action
of Congress, so far as it extends and conflicts with the
regulations of the State, necessarily supersedes them. This is
implied in the power to "make or alter."
Suppose the Constitution of a State should say,
"The first legislature elected under this Constitution may by
law regulate the election of members of the two Houses; but any
subsequent legislature may make or alter such regulations;"
-- could not a subsequent legislature modify the regulations
made by the first legislature without making an entirely new set?
Would it be obliged to go over the whole subject anew? Manifestly
not; it could alter or modify, add or subtract, in its discretion.
The greater power, of making wholly new regulations, would include
the lesser, of only altering or modifying the old. The new law, if
contrary or repugnant to the old, would so far, and so far only,
take its place. If consistent with it, both would stand. The
objection, so often repeated, that such an application of
congressional regulations to those previously made by a State would
produce a clashing of jurisdictions and a conflict of rules loses
sight of the fact that the regulations made by Congress are
paramount to those made by the State legislature, and, if they
conflict therewith, the latter, so far as the conflict extends,
ceases to be operative. No clashing can possibly arise. There is
not the slightest difficulty in a harmonious combination into one
system of the regulations made by the two sovereignties, any more
than there is in the case of prior and subsequent enactments of the
same legislature.
Congress has partially regulated the subject heretofore. In
1842, it passed a law for the election of representatives by
separate districts and, subsequently, other laws fixing the time of
election and directing that the elections shall be by ballot. No
one will pretend, at least at the present day, that these laws were
unconstitutional because they only partially covered the
subject.
The peculiarity of the case consists in the concurrent authority
of the two sovereignties, State and National, over the same
Page 100 U. S. 385
subject matter. This, however, is not entirely without a
parallel. The regulation of foreign and interstate commerce is
conferred by the Constitution upon Congress. It is not expressly
taken away from the States. But where the subject matter is one of
a national character or one that requires a uniform rule, it has
been held that the power of Congress is exclusive. On the contrary,
where neither of these circumstances exist, it has been held that
State regulations are not unconstitutional. In the absence of
congressional regulation, which would be of paramount authority
when adopted, they are valid and binding. This subject was largely
discussed in the case of
Cooley v. Board of Wardens of
Port of Philadelphia, 12 How. 299. That was a case
of pilotage. In 1789, Congress had passed a law declaring that all
pilots should continue to be regulated in conformity with the laws
of the States respectively wherein they should be. Hence, each
State continued to administer its own laws, or passed new laws for
the regulation of pilots in its harbors. Pennsylvania passed the
law then in question in 1803. Yet the Supreme Court held that this
was clearly a regulation of commerce, and that the State laws could
not be upheld without supposing that, in cases like that of
pilotage, not requiring a national and uniform regulation, the
power of the States to make regulations of commerce, in the absence
of congressional regulation, still remained. The court held that
the power did so remain, subject to those qualifications, and the
State law was sustained under that view.
Here, then, is a case of concurrent authority of the State and
national governments, in which that of the latter is paramount. In
1837, Congress interfered with the State regulations on the subject
of pilotage so far as to authorize the pilots of adjoining States,
separated only by navigable waters, to pilot ships and vessels into
the ports of either State located on such waters. It has since made
various regulations respecting pilots taking charge of steam
vessels, imposing upon them peculiar duties and requiring of them
peculiar qualifications. It seems to us that there can be no doubt
of the power of Congress to impose any regulations it sees fit upon
pilots, and to subject them to such penalties for breach of duty as
it may deem
Page 100 U. S. 386
expedient. The States continue in the exercise of the power to
regulate pilotage subject to the paramount right of the national
government. If dissatisfied with congressional interference, should
such interference at any time be imposed, any State might, if it
chose, withdraw its regulations altogether, and leave the whole
subject to be regulated by Congress. But so long as it continues
its pilotage system, it must acquiesce in such additional
regulations as Congress may see fit to make.
So in the case of laws for regulating the elections of
representatives to Congress. The State may make regulations on the
subject; Congress may make regulations on the same subject, or may
alter or add to those already made. The paramount character of
those made by Congress has the effect to supersede those made by
the State, so far as the two are inconsistent, and no farther.
There is no such conflict between them as to prevent their forming
a harmonious system perfectly capable of being administered and
carried out as such.
As to the supposed conflict that may arise between the officers
appointed by the State and national governments for superintending
the election, no more insuperable difficulty need arise than in the
application of the regulations adopted by each respectively. The
regulations of Congress being constitutionally paramount, the
duties imposed thereby upon the officers of the United States, so
far as they have respect to the same matters, must necessarily be
paramount to those to be performed by the officers of the State. If
both cannot be performed, the latter are
pro tanto
superseded, and cease to be duties. If the power of Congress over
the subject is supervisory and paramount, as we have seen it to be,
and if officers or agents are created for carrying out its
regulations, it follows as a necessary consequence that such
officers and agents must have the requisite authority to act
without obstruction or interference from the officers of the State.
No greater subordination, in kind or degree, exists in this case
than in any other. It exists to the same extent between the
different officers appointed by the State, when the State alone
regulates the election. One officer cannot interfere with the
duties of another, or obstruct or hinder him in the performance of
them. Where there is a disposition to act harmoniously, there is
no
Page 100 U. S. 387
danger of disturbance between those who have different duties to
perform. When the rightful authority of the general government is
once conceded and acquiesced in, the apprehended difficulties will
disappear. Let a spirit of national as well as local patriotism
once prevail, let unfounded jealousies cease, and we shall hear no
more about the impossibility of harmonious action between the
national and State governments in a matter in which they have a
mutual interest.
As to the supposed incompatibility of independent sanctions and
punishments imposed by the two governments, for the enforcement of
the duties required of the officers of election, and for their
protection in the performance of those duties, the same
considerations apply. While the State will retain the power of
enforcing such of its own regulations as are not superseded by
those adopted by Congress, it cannot be disputed that, if Congress
has power to make regulations, it must have the power to enforce
them not only by punishing the delinquency of officers appointed by
the United States, but by restraining and punishing those who
attempt to interfere with them in the performance of their duties,
and if, as we have shown, Congress may revise existing regulations
and add to or alter the same as far as it deems expedient, there
can be as little question that it may impose additional penalties
for the prevention of frauds committed by the State officers in the
elections, or for their violation of any duty relating thereto,
whether arising from the common law or from any other law, State or
national. Why not? Penalties for fraud and delinquency are part of
the regulations belonging to the subject. If Congress, by its power
to make or alter the regulations, has a general supervisory power
over the whole subject, what is there to preclude it from imposing
additional sanctions and penalties to prevent such fraud and
delinquency?
It is objected that Congress has no power to enforce State laws
or to punish State officers, and especially has no power to punish
them for violating the laws of their own State. As a general
proposition, this is undoubtedly true; but when, in the performance
of their functions, State officers are called upon to fulfill
duties which they owe to the United States as well as to the State,
has the former no means of compelling such fulfillment?
Page 100 U. S. 388
Yet that is the case here. It is the duty of the States to elect
representatives to Congress. The due and fair election of these
representatives is of vital importance to the United States. The
government of the United States is no less concerned in the
transaction than the State government is. It certainly is not bound
to stand by as a passive spectator when duties are violated and
outrageous frauds are committed. It is directly interested in the
faithful performance, by the officers of election, of their
respective duties. Those duties are owed as well to the United
States as to the State. This necessarily follows from the mixed
character of the transaction -- State and national. A violation of
duty is an offence against the United States, for which the
offender is justly amenable to that government. No official
position can shelter him from this responsibility. In view of the
fact that Congress has plenary and paramount jurisdiction over the
whole subject, it seems almost absurd to say that an officer who
receives or has custody of the ballots given for a representative
owes no duty to the national government which Congress can enforce;
or that an officer who stuffs the ballot box cannot be made
amenable to the United States. If Congress has not, prior to the
passage of the present laws, imposed any penalties to prevent and
punish frauds and violations of duty committed by officers of
election, it has been because the exigency has not been deemed
sufficient to require it, and not because Congress had not the
requisite power.
The objection that the laws and regulations, the violation of
which is made punishable by the acts of Congress, are State laws
and have not been adopted by Congress is no sufficient answer to
the power of Congress to impose punishment. It is true that
Congress has not deemed it necessary to interfere with the duties
of the ordinary officers of election, but has been content to leave
them as prescribed by State laws. It has only created additional
sanctions for their performance, and provided means of supervision
in order more effectually to secure such performance. The
imposition of punishment implies a prohibition of the act punished.
The State laws which Congress sees no occasion to alter, but which
it allows to stand, are in effect adopted by Congress. It simply
demands their fulfillment.
Page 100 U. S. 389
Content to leave the laws as they are, it is not content with
the means provided for their enforcement. It provides additional
means for that purpose, and we think it is entirely within its
constitutional power to do so. It is simply the exercise of the
power to make additional regulations.
That the duties devolved on the officers of election are duties
which they owe to the United States, as well as to the State, is
further evinced by the fact that they have always been so regarded
by the House of Representatives itself. In most cases of contested
elections, the conduct of these officers is examined and
scrutinized by that body as a matter of right, and their failure to
perform their duties is often made the ground of decision. Their
conduct is justly regarded as subject to the fullest exposure, and
the right to examine them personally, and to inspect all their
proceedings and papers, has always been maintained. This could not
be done if the officers were amenable only to the supervision of
the State government which appointed them.
Another objection made is that, if Congress can impose penalties
for violation of State laws, the officer will be made liable to
double punishment for delinquency -- at the suit of the State and
at the suit of the United States. But the answer to this is that
each government punishes for violation of duty to itself only.
Where a person owes a duty to two sovereigns, he is amenable to
both for its performance, and either may call him to account.
Whether punishment inflicted by one can be pleaded in bar to a
charge by the other for the same identical act need not now be
decided, although considerable discussion bearing upon the subject
has taken place in this court, tending to the conclusion that such
a plea cannot be sustained.
In reference to a conviction under a State law for passing
counterfeit coin, which was sought to be reversed on the ground
that Congress had jurisdiction over that subject, and might inflict
punishment for the same offence, Mr. Justice Daniel, speaking for
the court, said:
"It is almost certain that, in the benignant spirit in which the
institutions both of the State and Federal systems are
administered, an offender who should have suffered the penalties
denounced by the one would not be subjected
Page 100 U. S. 390
a second time to punishment by the other for acts essentially
the same -- unless, indeed, this might occur in instances of
peculiar enormity, or where the public safety demanded
extraordinary rigor. But were a contrary course of policy or action
either probable or usual, this would by no means justify the
conclusion that offences falling within the competency of different
authorities to restrain or punish them would not properly be
subjected to the consequences which those authorities might ordain
and affix to their perpetration."
Fox v. The State of
Ohio, 5 How. 410. The same judge, delivering the
opinion of the court in the case of
United
States v. Marigold, 9 How. 569, where a conviction
was had under an act of Congress for bringing counterfeit coin into
the country, said, in reference to
Fox's Case:
"With the view of avoiding conflict between the State and
Federal jurisdictions, this court, in the case of
Fox v. State
of Ohio, have taken care to point out that the same act might,
as to its character and tendencies and the consequences it
involved, constitute an offence against both the State and Federal
governments, and might draw to its commission the penalties
denounced by either, as appropriate to its character in reference
to each. We hold this distinction sound;"
and the conviction was sustained. The subject came up again for
discussion in the case of
Moore v. State of
Illinois, 14
id. 13, in which the
plaintiff in error had been convicted under a State law for
harboring and secreting a negro slave, which was contended to be
properly an offence against the United States under the fugitive
slave law of 1793, and not an offence against the State. The
objection of double punishment was again raised. Mr. Justice Grier,
for the court, said:
"Every citizen of the United States is also a citizen of a State
or Territory. He may be said to owe allegiance to two sovereigns,
and may be liable to punishment for an infraction of the laws of
either. The same act may be an offence or transgression of the laws
of both."
Substantially the same views are expressed in
United States
v. Cruikshank, 92 U. S. 542,
referring to these cases, and we do not well see how the doctrine
they contain can be controverted. A variety of instances may be
readily suggested in which it would be necessary or proper to apply
it. Suppose, for example, a State judge having power under the
naturalization
Page 100 U. S. 391
laws to admit aliens to citizenship should utter false
certificates of naturalization, can it be doubted that he could be
indicted under the act of Congress providing penalties for that
offence, even though he might also, under the State laws, be
indictable for forgery as well as liable to impeachment? So, if
Congress, as it might, should pass a law fixing the standard of
weights and measures, and imposing a penalty for sealing false
weights and false measures, but leaving to the States the matter of
inspecting and sealing those used by the people, would not an
offender, filling the office of sealer under a State law, be
amenable to the United States as well as to the State?
If the officers of election, in elections for representatives,
owe a duty to the United States and are amenable to that government
as well as to the State -- as we think they are -- then, according
to the cases just cited, there is no reason why each should not
establish sanctions for the performance of the duty owed to itself,
though referring to the same act.
To maintain the contrary proposition, the case of
Commonwealth of Kentucky v.
Dennison, 24 How. 66, is confidently relied on by
the petitioners' counsel. But there, Congress had imposed a duty
upon the governor of the State which it had no authority to impose.
The enforcement of the clause in the Constitution requiring the
delivery of fugitives from service was held to belong to the
government of the United States, to be effected by its own agents,
and Congress had no authority to require the governor of a State to
execute this duty.
We have thus gone over the principal reasons of a special
character relied on by the petitioners for maintaining the general
proposition for which they contend -- namely, that, in the
regulation of elections for representatives, the national and State
governments cannot cooperate, but must act exclusively of each
other, so that, if Congress assumes to regulate the subject at all,
it must assume exclusive control of the whole subject. The more
general reason assigned, to-wit, that the nature of sovereignty is
such as to preclude the joint cooperation of two sovereigns even in
a matter in which they are mutually concerned, is not, in our
judgment, of sufficient force to prevent concurrent and harmonious
action on the part of the national and State governments in the
election of representatives. It is, at most,
Page 100 U. S. 392
an argument
ab inconveniente. There is nothing in the
Constitution to forbid such cooperation in this case. On the
contrary, as already said, we think it clear that the clause of the
Constitution relating to the regulation of such elections
contemplates such cooperation whenever Congress deems it expedient
to interfere merely to alter or add to existing regulations of the
State. If the two governments had an entire equality of
jurisdiction, there might be an intrinsic difficulty in such
cooperation. Then the adoption by the State government of a system
of regulations might exclude the action of Congress. By first
taking jurisdiction of the subject, the State would acquire
exclusive jurisdiction in virtue of a well known principle
applicable to courts having coordinate jurisdiction over the same
matter. But no such equality exists in the present case. The power
of Congress, as we have seen, is paramount, and may be exercised at
any time, and to any extent which it deems expedient, and so far as
it is exercised, and no farther, the regulations effected supersede
those of the State which are inconsistent therewith.
As a general rule, it is no doubt expedient and wise that the
operations of the State and national governments should, as far as
practicable, be conducted separately in order to avoid undue
jealousies and jars and conflicts of jurisdiction and power. But
there is no reason for laying this down as a rule of universal
application. It should never be made to override the plain and
manifest dictates of the Constitution itself. We cannot yield to
such a transcendental view of state sovereignty. The Constitution
and laws of the United States are the supreme law of the land, and
to these every citizen of every State owes obedience, whether in
his individual or official capacity. There are very few subjects,
it is true, in which our system of government, complicated as it
is, requires or gives room for conjoint action between the State
and national sovereignties. Generally, the powers given by the
Constitution to the government of the United States are given over
distinct branches of sovereignty from which the State governments,
either expressly or by necessary implication, are excluded. But in
this case expressly, and in some others by implication, as we have
seen in the case of pilotage, a concurrent jurisdiction is
contemplated, that of
Page 100 U. S. 393
the State, however, being subordinate to that of the United
States, whereby all question of precedency is eliminated.
In what we have said, it must be remembered that we are dealing
only with the subject of elections of representatives to Congress.
If, for its own convenience, a State sees fit to elect State and
county officers at the same time and in conjunction with the
election of representatives, Congress will not be thereby deprived
of the right to make regulations in reference to the latter. We do
not mean to say, however, that, for any acts of the officers of
election having exclusive reference to the election of State or
county officers, they will be amenable to Federal jurisdiction; nor
do we understand that the enactments of Congress now under
consideration have any application to such acts.
It must also be remembered that we are dealing with the question
of power, not of the expediency of any regulations which Congress
has made. That is not within the pale of our jurisdiction. In
exercising the power, however, we are bound to presume that
Congress has done so in a judicious manner; that it has endeavored
to guard as far as possible against any unnecessary interference
with State laws and regulations, with the duties of State officers,
or with local prejudices. It could not act at all so as to
accomplish any beneficial object in preventing frauds and violence,
and securing the faithful performance of duty at the elections,
without providing for the presence of officers and agents to carry
its regulations into effect. It is also difficult to see how it
could attain these objects without imposing proper sanctions and
penalties against offenders.
The views we have expressed seem to us to be founded on such
plain and practical principles as hardly to need any labored
argument in their support. We may mystify anything. But if we take
a plain view of the words of the Constitution, and give to them a
fair and obvious interpretation, we cannot fail in most cases of
coming to a clear understanding of its meaning. We shall not have
far to seek. We shall find it on the surface, and not in the
profound depths of speculation.
The greatest difficulty in coming to a just conclusion arises
from mistaken notions with regard to the relations which
subsist
Page 100 U. S. 394
between the State and national governments. It seems to be often
overlooked that a national constitution has been adopted in this
country, establishing real government therein, operating upon
persons and territory and things, and which, moreover, is, or
should be, as dear to every American citizen as his State
government is. Whenever the true conception of the nature of this
government is once conceded, no real difficulty will arise in the
just interpretation of its powers. But if we allow ourselves to
regard it as a hostile organization, opposed to the proper
sovereignty and dignity of the State governments, we shall continue
to be vexed with difficulties as to its jurisdiction and authority.
No greater jealousy is required to be exercised towards this
government in reference to the preservation of our liberties than
is proper to be exercised towards the State governments. Its powers
are limited in number, and clearly defined, and its action within
the scope of those powers is restrained by a sufficiently rigid
bill of rights for the protection of its citizens from oppression.
The true interest of the people of this country requires that both
the national and State governments should be allowed, without
jealous interference on either side, to exercise all the powers
which respectively belong to them according to a fair and practical
construction of the Constitution. State rights and the rights of
the United States should be equally respected. Both are essential
to the preservation of our liberties and the perpetuity of our
institutions. But, in endeavoring to vindicate the one, we should
not allow our zeal to nullify or impair the other.
Several other questions bearing upon the present controversy
have been raised by the counsel of the petitioners. Somewhat akin
to the argument which has been considered is the objection that the
deputy marshals authorized by the act of Congress to be created and
to attend the elections are authorized to keep the peace, and that
this is a duty which belongs to the State authorities alone. It is
argued that the preservation of peace and good order in society is
not within the powers confided to the government of the United
States, but belongs exclusively to the States. Here again we are
met with the theory that the government of the United States does
not rest upon the soil and territory of the country. We think that
this theory is
Page 100 U. S. 395
founded on an entire misconception of the nature and powers of
that government. We hold it to be an incontrovertible principle
that the government of the United States may, by means of physical
force, exercised through its official agents, execute on every foot
of American soil the powers and functions that belong to it. This
necessarily involves the power to command obedience to its laws,
and hence the power to keep the peace to that extent.
This power to enforce its laws and to execute its functions in
all places does not derogate from the power of the State to execute
its laws at the same time and in the same places. The one does not
exclude the other except where both cannot be executed at the same
time. In that case, the words of the Constitution itself show which
is to yield. "This Constitution, and all laws which shall be made
in pursuance thereof, . . . shall be the supreme law of the
land."
This concurrent jurisdiction which the national government
necessarily possesses to exercise its powers of sovereignty in all
parts of the United States is distinct from that exclusive power
which, by the first article of the Constitution, it is authorized
to exercise over the District of Columbia, and over those places
within a State which are purchased by consent of the legislature
thereof for the erection of forts, magazines, arsenals, dockyards,
and other needful buildings. There its jurisdiction is absolutely
exclusive of that of the State, unless, as is sometimes stipulated,
power is given to the latter to serve the ordinary process of its
courts in the precinct acquired.
Without the concurrent sovereignty referred to, the national
government would be nothing but an advisory government. Its
executive power would be absolutely nullified.
Why do we have marshals at all if they cannot physically lay
their hands on persons and things in the performance of their
proper duties? What functions can they perform if they cannot use
force? In executing the processes of the courts, must they call on
the nearest constable for protection? must they rely on him to use
the requisite compulsion, and to keep the peace whilst they are
soliciting and entreating the parties and bystanders to allow the
law to take its course? This is
Page 100 U. S. 396
the necessary consequence of the positions that are assumed. If
we indulge in such impracticable views as these, and keep on
refining and re-refining, we shall drive the national government
out of the United States, and relegate it to the District of
Columbia, or perhaps to some foreign soil. We shall bring it back
to a condition of greater helplessness than that of the old
confederation.
The argument is based on a strained and impracticable view of
the nature and powers of the national government. It must execute
its powers, or it is no government. It must execute them on the
land as well as on the sea, on things as well as on persons. And,
to do this, it must necessarily have power to command obedience,
preserve order, and keep the peace, and no person or power in this
land has the right to resist or question its authority, so long as
it keeps within the bounds of its jurisdiction. Without specifying
other instances in which this power to preserve order and keep the
peace unquestionably exists, take the very case in hand. The
counsel for the petitioners concede that Congress may, if it sees
fit, assume the entire control and regulation of the election of
representatives. This would necessarily involve the appointment of
the places for holding the polls, the times of voting, and the
officers for holding the election; it would require the regulation
of the duties to be performed, the custody of the ballots, the mode
of ascertaining the result, and every other matter relating to the
subject. Is it possible that Congress could not, in that case,
provide for keeping the peace at such elections, and for arresting
and punishing those guilty of breaking it? If it could not, its
power would be but a shadow and a name. But, if Congress can do
this, where is the difference in principle in its making provision
for securing the preservation of the peace, so as to give to every
citizen his free right to vote without molestation or injury, when
it assumes only to supervise the regulations made by the State, and
not to supersede them entirely? In our judgment, there is no
difference; and, if the power exists in the one case, it exists in
the other.
The next point raised is that the act of Congress proposes to
operate on officers or persons authorized by State laws to perform
certain duties under them, and to require them to disobey
Page 100 U. S. 397
and disregard State laws when they come in conflict with the act
of Congress; that it thereby, of necessity, produces collision, and
is therefore void. This point has been already fully considered. We
have shown, as we think, that, where the regulations of Congress
conflict with those of the State, it is the latter which are void,
and not the regulations of Congress, and that the laws of the
State, insofar as they are inconsistent with the laws of Congress
on the same subject, cease to have effect as laws.
Finally, it is objected that the act of Congress imposes upon
the Circuit Court duties not judicial in requiring them to appoint
the supervisors of election, whose duties, it is alleged, are
entirely executive in their character. It is contended that no
power can be conferred upon the courts of the United States to
appoint officers whose duties are not connected with the judicial
department of the government.
The Constitution declares that
"the Congress may, by law, vest the appointment of such inferior
officers as they think proper in the President alone, in the courts
of law, or in the heads of departments."
It is no doubt usual and proper to vest the appointment of
inferior officers in that department of the government, executive
or judicial, or in that particular executive department to which
the duties of such officers appertain. But there is no absolute
requirement to this effect in the Constitution, and if there were,
it would be difficult in many cases to determine to which
department an office properly belonged. Take that of marshal, for
instance. He is an executive officer, whose appointment, in
ordinary cases, is left to the President and Senate. But if
Congress should, as it might, vest the appointment elsewhere, it
would be questionable whether it should be in the President alone,
in the Department of Justice, or in the courts. The marshal is
preeminently the officer of the courts, and, in case of a vacancy,
Congress has, in fact, passed a law bestowing the temporary
appointment of the marshal upon the justice of the circuit in which
the district where the vacancy occurs is situated.
But, as the Constitution stands, the selection of the appointing
power, as between the functionaries named, is a matter
Page 100 U. S. 398
resting in the discretion of Congress. And, looking at the
subject in a practical light, it is perhaps better that it should
rest there than that the country should be harassed by the endless
controversies to which a more specific direction on this subject
might have given rise. The observation in the case of Hennen, to
which reference is made (13 Pet.
38 U. S. 258),
that the appointing power in the clause referred to
"was no doubt intended to be exercised by the department of the
government to which the official to be appointed most appropriately
belonged,"
was not intended to define the constitutional power of Congress
in this regard, but rather to express the law or rule by which it
should be governed. The cases in which the courts have declined to
exercise certain duties imposed by Congress stand upon a different
consideration from that which applies in the present case. The law
of 1792 which required the circuit courts to examine claims to
revolutionary pensions, and the law of 1849 authorizing the
district judge of Florida to examine and adjudicate upon claims for
injuries suffered by the inhabitants of Florida from the American
army in 1812, were rightfully held to impose upon the courts powers
not judicial, and were, therefore, void. But the duty to appoint
inferior officers, when required thereto by law, is a
constitutional duty of the courts, and, in the present case, there
is no such incongruity in the duty required as to excuse the courts
from its performance or to render their acts void. It cannot be
affirmed that the appointment of the officers in question could,
with any greater propriety, and certainly not with equal regard to
convenience, have been assigned to any other depositary of official
power capable of exercising it. Neither the President nor any head
of department could have been equally competent to the task.
In our judgment, Congress had the power to vest the appointment
of the supervisors in question in the circuit courts.
The doctrine laid down at the close of counsel's brief, that the
State and national governments are coordinate and altogether equal,
on which their whole argument, indeed, is based, is only partially
true.
The true doctrine, as we conceive, is this that, whilst the
States are really sovereign as to all matters which have not
Page 100 U. S. 399
been granted to the jurisdiction and control of the United
States, the Constitution and constitutional laws of the latter are,
as we have already said, the supreme law of the land, and, when
they conflict with the laws of the States, they are of paramount
authority and obligation. This is the fundamental principle on
which the authority of the Constitution is based, and unless it be
conceded in practice, as well as theory, the fabric of our
institutions, as it was contemplated by its founders, cannot stand.
The questions involved have respect not more to the autonomy and
existence of the States than to the continued existence of the
United States as a government to which every American citizen may
look for security and protection in every part of the land.
We think that the cause of commitment in these cases was lawful,
and that the application for the writ of habeas corpus must be
denied.
Application denied.
MR. JUSTICE CLIFFORD and MR. JUSTICE FIELD dissented.
See Mr. JUSTICE FIELD's opinion,
infra, p.
100 U. S.
404.