The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-29

of that Indictment to indicate the charge. Sec-4
ton 5440 Of the Revised Statutes provides:
If two or more persons. eonspire either to commits
one or more of such parties do act to effect ths
spraey aasIi be liable to penaty Of not more than
$4,000, and to Imprisonment not more than threa
years.
This Indictment is framed under that section
and charges conspiracy to commit an ofepse
against tAe United States. So thRs the hrst
question is whether not this offense charged
United States. That involves an examination
of certain sections of the Revised Statutes, Sec
ton COLL being the first one.
IF any election for Representative Delegate in
Congress person knowingly personates and votes
or attempts to VOTE in the of other person.
at the election for any candidate for the
same ofhce or votes at place where he may not be1
lawfully entitled to vote.
There follows immediately the description of,
several other offenses of like character, until we
reach in the section these words:
Or by any such means. or other unlawful means in
is to ascertain, declare the result of any
such election give make any certificate, docui
fuse to comply with his duty or any Law regulate
ing the knowingly receives the vote OF any
of any persoB entitled vote. aids counses,
procure- advises any such otver person, officer
do any act hereoy made crime, or omit to do anys
duty, the omission of which is hereby made crime,
attsmptto do SO, he shall be punished by ine
This section and the succeeding section, Sec-3
tion soils, with other sections in this chapter Of
the Revised Statutes, are brought forward FROM
an act of Congress passed in 1870, entitled .'An4
act TO enforce the ri.h. of citizens of the United
States to vote in the several States of This Union.
s.cd for other purposes" There Is no substau-s
tal difference between Section 5511, which fhaves
read. and the corresponding section IN the act OF,
1870 Upon analyZing that Section 55ll il wiin
be found that there Is embodied in it some eight
or ten different distinct offenses. 1t is beyond
dispute as it seems to me, that that section, in I
the words that have just read. wherein it de-J
clares that, il any person.. by any unlawfuba
whose duty il is to ascertain announce or del
clare the result of any such election, give or
make any certificate. document or evidence in
relation thereto, to violate or refuse to comply
with his duty, or any law regulating the same.
these words standing by themselves in thef
statute, and disconnected from anything else in
that section, define offerse against theA
United States, if that offense, as charged, has
any reference to an election for Representative
or Delegate in Congress. Lower down in the
section are these words:
any such voters person. officer to do any here
by made crime, omit to do any duty the omssion
OF which is hereby make crme he shall be punished
by fne, etc.
The argument was made with great earnest
ness and force before me to the effect that the
word thereby" is to be Ii mted to Section 5511:i
and that as there cannot befound in that section
any duty prescribed, the omission of which Isl
by that section made a crime. the conclusion. III
was conteuded. inevitably followed that thatA
section made no provision for puIlshing thoS
crime which is here charged
L recall very Well--thouEn / d10 NOT deem IL
necessary q. that time to discuss the question I
in the opinion which l delivered lass summer in
the habeas corpus case of Coy-I recall very
well that considered that question that time.
thereby" in that section referred to
the whole of that chapter; and hence it
that in the opinion which / delivered on
that occasion I referred to Section 55l5 which
says that severy officer of an election at which
Representative or Delegate in Congress is voted
for, whether such officer of election be appointed
o created by under any law authority OF
the United States, or by or under any State,
Territorial, district or municipal law or author
ity, who negIects 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 aoy duty So
Section 5511; and in the habeas corpns OF
Coy said, in substances that there
officers OF the election, the failure to do wbichl
was made crime, and that connecting 551I
offense against the United States by any person
who, by any unlawful MEANS induced officer
of election to omit to perform any duty in refer
ence to that election. 1t was not necessary for.
ne at that time to go further and determine
whether not Section 551I was not sufficient, in
and by itself. to sustain a prosecution of this
Sort if there was other objection to the prose-
cution than that to be derived from the face oE
the act, but the question has been made in such
distinct form In the present argument that
have fels obliged to review that question and toi
pass uponit.
am of opinion, repeat, that the word there
by in that section, embraces the whole of that
chsptsr. We cannot otherwise construe il upon
any fair view of what the object Of Con-
gress in passing the act of 1870. from which
these sections taken. For instance, an
illustration, in Section IL of that act there is a
penalty for knowingly and wilifully obstructine
the execution of process, wherein you will find
the words when so arrested pursuant 10 tho
authority herein given and declared II the
argument which has been made upon this hear
ing be sound, / should be bound by prosecution
h0f oaf RI fha rd th.raf
referring only to Section IL of that act What
Congress meant by this act was to enforce tbe
to vote in the several States of
this Union. 1t intended to throw
around the election for Representative in the
Congress of the United States the whole power
of the United States. 1t did not intend to
ercise all tho power it had and take compietG
charge Of the election for Representatives In
Congress. It intended to leave. just where ii
had been left since the foundation of the gov
eminent in the hands of the States TO prescribe
the mode in which those elections were cons
Quoted. but it did intend that when the law of
the State imposed any duty upon an officer at
any election for Representative Dele
gate in Congress. that that duty should
be discharged by that officer, and that
his failure to discharge such duty should
be an offense against the United States; aud il
country ..If you, by any unlawful means in
duce an officer OF election to violate any duty
imposed upon him by any Law, regulating
that election for Representative or Delegate in
Congress- ii you by any unlawful means in.
any way aid. counsel, procure or advise that
officer to omit to do any duty imposed upon him
by law. you shall be liable TO a punishmens"
Tho words '.or omit TO do any duty. the omis-
sion of which 10 hereby made a crime,n apply
not only to officers of election for when You ex-
anime the law from which they were taken,
there were duties prescribed there for registers
of election. the registration of voters; duties
we're prescribed for marshals of the United
States; duties were prescribed fer district
neys; and after declaring 1t TO be an offensa
against tho United States for any one by uniaw.
ful means to induce officer of election to vio-
late or refuse to comply with his duty under any
law regulating tho election Congress adds, out
of abundant caution, 'or aids, cousels. prcs
cures advises any such voter. person or offieeG
to do any act hereby made crime" etc.
Counsel in the consideration OF this question
pressed upon me with great force and earnest
meas what they called fundamental ruls OF