concurring in part:
I concur in the judgment reversing the conviction of plaintiffs in error, but Upon grounds fundamentally different from those adopted by the majority: my view being that there is no constitutional infirmity in the act of Congress that underlies the indictment, but that there was an error in the submission of the case to the jury that calls for a new trial.
The constitutional question is so important that it deserves treatment at length.
*276The Federal Corrupt Practices Act (Act of June 25, 1910, c. 392, 36 Stat. 822; amended by Act-of August 19, 1911, c. 33, 37 Stat. 25, 28) limits the amount, of money, that may be given, contributed, expended,- used, or promised, or caused to be given, contributed, expended, used, or promised by a candidate for Representative-in Congress or for Senator of the United States in procuring his nomination and election, to a sum not in- excess of the amount he. may lawfully give, contribute, expend, or promise under the laws of the State of his residence; with a proviso that in the case of a candidate for Representative the amount shall not exceed $5.-000, and in the case of a candidate for Senator shall not exceed .$10,000, in any campaign for nomination'and election; and a further proviso that any assessment, fee, or charge made or levied upon candidates by the laws of the State, or moneys expended, for the candidate’s necessary personal expenses for travel and subsistence, stationery and postage, writing or printing (other than in newspapers), and distributing letters, circulars, and posters, and for telegraph and telephone service, shall not be regarded as an expenditure or considered as a part of the sum fixed as the limit of expense. Section 10 of the act (36 Stat. 824), renumbered as § 11 by the amendment (37 Stat. 26), prescribes fine or imprisonment for a willful violation of any of its provisions. The act and amendment were passed before the adoption of the Seventeenth Amendment, providing for the election of Senators by direct vote of the people (declared adopted May 31, 1913; 38 Stat. 2049); but it is clear — indeed undisputed — that, for present purposes, they , are to receive the same construction and effect as if enacted after adoption of the Amendment.
The . present case arose out of a campaign for nomination and election of a Senator in the State of Michigan, where a statute (Act No. 109, § 1, Mich. Pub. Acts, 1913) limits the amount of money that may be paid, and of *277expenses that may be authorized or incurred, by or on behalf of any candidate to be paid by him in order to secure his nomination to any public office in the State, to 25 per centum of one year’s salary of the office, and imposes a similar limit upon expenditures by or on behalf of any candidate who has received the nomination. By § 19 of the same statute “public office” is made to apply to any national office filled by the voters of the State, as well as to the office of presidential elector and United States Senator. The acts of Congress, in connection with the statute of the State, limit the amount that a candidate for Senator of the United States may give, contribute, expend, use, or promise, or cause to be given, contributed, expended, used, or promised, in procuring his nomination and election, to $3,750 in the aggregate, aside from those expenditures that are specifically permitted without limit.
Plaintiffs in error were indicted and convicted in the United States District Court for a conspiracy (§ 37, Criminal Code) to commit an offense against the United States, to wit, the offense, on the part of Truman H. New-berry, of willfully violating the acts of Congress above referred to by giving, contributing, expending, and using, and by causing to be given, contributed, expended, and used, in procuring his nomination and election as Senator of the United States at the primary and general elections in the year 1918, a sum in excess of the amount thus limited, to wit, the sum of $100,000, and on the part of the other defendants of aiding, counseling, inducing, and procuring (§ 332, Criminal Code) said Truman H. New-berry so to give, contribute, expend, and use, and cause to be given, contributed, expended, and used said large sums of money in excess of the amounts permitted, etc.; no part of which money was to be expended for any of the purposes specifically permitted without limit; numerous overt acts being alleged to have been done by one *278or more parties defendant to effect the object of the conspiracy.
The averments of the indictment and the evidence at the trial related especially to expenditures contemplated to be made, and in fact made, to bring about Mr. New-berry’s selection at a nominating or primary election held in August, 1918, with only minor expenditures made after that date and in contemplation of the general election which was held in the following November. The case is brought to this court by direct writ of error, upon the fundamental contention that the acts of Congress, in so far as they assume to regulate primary elections and limit the expenditures of money that may be made or caused to be made by a candidate therein, are in excess of the power conferred upon Congress to regulate the “manner of holding elections for Senators and Representatives” by § 4 of Article I of the Constitution of the United States. This question was raised, but not decided, in United States v. Gradwell, 243 U. S. 476, 487-488; Blair v. United States, 250 U. S. 273, 278-279.
For reasons to be stated below, I consider it erroneous to treat the question as dependent upon the words of the cited section alone. I will, however, first deal with that section, viewing it in connection with other provisions immediately associated with it and here quoted:
“Article I. Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
“Section 2. 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
*279(Section 3 is superseded by the Seventeenth Amendment, which provides).:
“Article XVII. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, . . . The electors, in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. . . .”
“Section 4. 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 Places of chusing Senators
“Section 5. Each Housé shall.be the Judge of the Elections, Returns and Qualifications of its own Members, ...”
It is contended that Congress has no power to regulate the amount of money that may be expended by a candidate to secure his being named in the primary election; that the power “to regulate the manner of holding elections,” etc., relates solely to the general elections where Senators or Representatives are finally chosen. Why should '.the manner of holding elections ” be so narrowly construed? An election is the'choosing of a person by vote to fill a public office. In the nature of, things it is a complex process,; involving some examination of the qualifications of those from whom the choice is to be made and of those by whom it is to be made; some opportunity for the electors to consider and canvass the claims of the eligibles; and some method of narrowing the choice by eliminating candidates until one finally secures a majority, or at least a plurality, of the votes. For the process of elimination, instead of tentative elections participated in by all the electors, nominations by parties or groups of citizens have obtained in the United States from an early period. Latterly the processes of nomin*280ation have been regulated by law in many of the States, through the establishment of official primary elections. But in the essential sense, a sense that fairly comports with the object and purpose of a Constitution such as ours, which deals in broad outline with matters of substance and is remarkable for succinct and pithy modes of expression, all of the various processes above indicated fall fairly within the definition of “the manner of holding elections.” This is not giving to the word “elections ” a significance different from that which it bore when the Constitution was adopted, but is simply recognizing a content that of necessity always inhered in it. The nature of that instrument required, as Chief Justice Marshall pointed out in McCulloch v. Maryland, 4 Wheat. 316, 407, “that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.”
It is said that § 4 of Art. I does not confer a general power to regulate elections, but only to regulate “the manner of holding” them. But this can mean nothing less than the entire mode of procedure — the essence, not merely the form, of conducting the elections. The only specific grant of power over the subject contained in the Constitution is contained in that section; and the power is conferred primarily upon the legislatures of the several States, but subject to revision and modification by Congress. If the preliminary processes of such an election are to be treated as something so separate from the final choice that they are not within the power of Congress under this provision, they are for the same reason not within the power of the States, and, if there is no other grant of power, they must perforce remain wholly unregulated. For if this section of the Constitution is to be strietly construed with respect to the power granted to Congress thereunder; it must be construed with equal *281strictness with respect to the power conferred upon the States; if the authority to regulate the "manner of holding elections ” does not carry with it ex vi termini authority to' regulate the preliminary election held for the purpose of proposing candidates, then the States can no more exercise authority over this than Congress can; much less an authority exclusive of that of Congress. For the election of Senators and Representatives in Congress is a federal function; whatever the States do in the matter they do under authority derived from the Constitution of the United States. The reservation contained in the Tenth Amendment cannot properly operate upon this subject in favor of the state governments; they could rot reserve power over a matter that had no previous existence; hence if the power was not delegated to the United States it must be deemed to have been reserved to the people, and would require a constitutional amendment to bring it into play — a deplorable result of strict construction.
But if I am wrong injthis, and the power to regulate primary elections could be deemed to have been reserved by the States to the exclusion of Congress, the result would be to leave the general Government destitute of the means to insure its own preservation without governmental aid from the States, which they might either grant or withhold according to their own will. This would render the Government of the United States something less than supreme in the exercise of its own appropriate powers; a doctrine supposed to have been laid at rest forever by the decisions of this court in McCulloch v. Maryland, 4 Wheat, 316, 405, et seq.; Cohens v. Virginia. 6 Wheat. 264, 381, 387, 414; and many other decisions in the time of Chief Justice Marshall and since.
But why should the primary election (or nominating convention) and the final election be treated as things so separate and apart as not to be both included in § 4 of *282Article I? The former has no reason for existence, no function to perform, except as a preparation for the latter; and the latter has been found by experience in many States impossible of orderly and successful accomplishment without the former.
Why should this provision of the Constitution — so vital to the very structure of the Government — be so narrowly construed? It is said primaries were unknown when the Constitution was adopted. So were the steam railway and the electric .telegraph. But the authority of Congress to regulate commerce among the several States was extended over these instrumentalities, because it was recognized that the manner of conducting the commerce was not essential. And this court was prompt to recognize that a transportation of merchandise, incidentally interrupted for a temporary purpose, or proceeding under successive’ bills of lading or means of transport, some operating wholly iñtra-state, was none the less interstate commerce, if such commerce was the practical and essential result of all that was done. The Daniel Ball, 10 Wall. 557, 565; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 526, 527; Ohio Railroad Commission v. Worthington, 225 U. S. 101, 108, 110; United States v. Union Stock Yard Co., 226 U. S. 286, 304; Texas & New Orleans R. R. Co. v. Sabine Tram Co., 227 U. S. 111, 124.
Why is it more difficult to recognize the integral relation of the several steps in the process of election?
Congress, by the so-called Enforcement Act of May 31, 1870, c. 114, § 20, 16 Stat. 140, 145, and the supplement approved February 28, 1871, c. 99, §§ 1, 2, 3, 4, 16 Stat. 433, 434, prescribed a variety of regulations relating to elections of members of the House of Representatives,, including provisions for safeguarding the registration of voters. These were carried into the Revised Statutes as §§ 2011, 2016, 2021, 2022, 5522. They were, attacked *283as unconstitutional in Ex parte Siebold, 100 U. S. 371, and were sustained as an exertion of the authority of Congress to pass laws for regulating and'~superintending stich elections and for securing their purity — without suggestion that the registration of voters was not, for practical purposes, a part of the election itself and subject to regulation as such. Yet, in point of causation, identification of voters is related to the election no more closely than is the naming of candidates.
It is said that if “the maimer of holding elections ” had been understood in a sense to include the-nominating procedure, ratification of the Constitution by the state conventions could not have been secured. I do not see how this can be confidently asserted, in view of the fact that, by the very hypothesis, the conventions ratified a specific provision for regulating the only manner of holding elections with which they were familiar — dealt with the entire subject without limitation. Mr. Justice Story, in rehearsing the objections, and the reasoning by which they were met, with citations from the debates and from the Federalist, refers to no objection that would be more cogent, supposing the regulation were extended to nominating procedure, than it would be if the regulation were confined to the ultimate election. Story Const., §§ 814-827. The sufficient answer to all objections was found in Hamilton’s “plain proposition, that every government ought to contain in itself the means of its own preservation." Federalist, No. 59.
What was said, in No. 60 of the Federalist, about the authority of the national government being restricted to the regulation of the times, the places, and the manner of elections, was in answer to a criticism that the national power over the subject “might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others,” as by (discriminating “between the different departments of industry, or between *284the different kinds of property, or between the different degrees of property”; or by a leaning “in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest”; and it was to support his contention that there was “no method of securing to the rich the preference apprehended, but by prescribing qualifications of property-either for those who may elect, or be elected,” which formed no part of the power to ■ be conferred upon the national government, that Hamilton proceeded to say that its authority would be “expressly restricted to the regulation of the times, the places, and the manner of elections.” This authority would be as much restricted, in the sense there intended, if “'the manner of elections ” were construed to include all the processes of election from first to last. The restriction arose from the express qualifications prescribed for members t)f House and Senate, and for those who were to choose them; subject to which all regulation of preliminary, as well as of final, steps in the election necessarily would have to proceed.
In support of a narrow construction of the power of Congress to regulate “the manner of elections ” -of its membership, it is said there is a check against corruption and kindred evils affecting the nominating procedure, in the authority of each House to judge of the elections, returns, and qualifications of its own members; the suggestion being that if — to take a clear case — it appeared that one chosen to the Senate had secured his election through bribery and corruption at the nominating primary, he might be refused admittance. Obviously, this amounts to a concession that the primary and the definitive election, whose legal separateness is insisted upon, are essentially but parts of a single process; else how could the conduct of • a candidate with reference to the primary have legitimate bearing upon the question of his election as Senator? But the suggestion involves a fundamental *285error of reasoning. The power to judge of the elections and qualifications of its members, inhering in each House by virtue of § 5 of Art. I, is an important power, essential in our system to the proper organization of an elective body of representatives. But it is a power to judge, to determine upon reasonable consideration of pertinent matters of fact according to established principles and rules of law; not to pass an arbitrary edict of exclusion. And I am unable to see how, in right reason, it can be held that one of the Houses of Congress, in the just exercise of its power, may exclude an elected member for securing by bribery his nomination at the primary, if the regulation by law of his conduct at the primary is beyond the constitutional power of Congress itself. Moreover, the power of each House, even if it might rightfully be applied to exclude a member in the case suggested, is not an adequate check upon bribery, corruption, and other irregularities in the primary elections. It can impose no penal consequences upon the offender; when affirmatively exercised it leaves the constituency for the time without proper representation; it may exclude one improperly elected, but furnishes no rule for the future by which the selection of a fit representative may be assured; and it is exerted at the will of but a single House, not by Congress as a law-making body.
But if I am wrong thus far — if the word “elections” in Art. I, § 4, of the Constitution must be narrowly confined to the single and definitive step described as an election at tfie time that instrument was adopted— nevertheless it seems to me too clear for discussion that primary elections and nominating conventions are so closely related to the final election, and their proper regulation so essential to effective regulation of the latter, so vital to representative government, that power to regulate them is within the general authority of Congress. It is matter-of common knowledge that the . great mass of *286the American electorate is grouped into political parties, to one or the other of which voters adhere with tenacity, due to their divergent views on questions of public policy, their interests, their environment, and various other influences, sentimental and historical. So strong with the great majority of voters are party associations, so potent the party slogan, so effective the party organization, that the likelihood of a candidate succeeding in an election without a party nomination is practically negligible. As a result, every voter comes to the polls on the day of the general election confined in his choice to those few candidates who have received party nominations, and constrained to consider their eligibility, in point of personal fitness, as affected by their party associations and théir obligation to pursue more or less definite' lines of policy, with which the voter may or may not agree. As a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made. Hence, the authority of Congress to regulate the primary elections and nominating conventions arises, of necessity, not from any indefinite or implied grant of power, but from one clearly expressed in the Constitution itself (Art. I,' § 8, cl. 18)— “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. ” This is the power preservative of - all others, and essential for adding vitality to the framework of the Government. Among the primary powers to be carried into effect is the power to legislate through a Congress consisting of a Senate and House of Representatives chosen by the people — in short, the power to maintain a law-making body representative in its character. Another is the specific power to regulate the “manner of holding elections for Senators and Representatives, ”. conferred by § 4 of the first Article; and if this does not m *287literal terms extend to nominating proceedings intimately related to the election itself, it certainly does not in terms or. by implication exclude federal control of those proceedings. From a grant to the States of power to regulate the principal matter, expressly made subject to revision and alteration by the Congress, it is impossible to imply a grant to the States of regulatory authority over accessory matters exclusive of the Congress. And it is obvious that if clause 18 adds nothing to the content of the other express powers, when these are literally interpreted, it has no efficacy whatever and must be treated as surplusage. It has not, heretofore, been so regarded. The subject was exhaustively treated by Chief Jnstice Marshall, speaking for the court in the great case already referred to, McCulloch v. Maryland 4 Wheat. 316, 411-424, where he pointed out, pp. 419, 420: “1st. The clause is placed among the powers of Congress, not among the limitations on those powers. 2nd. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. ” According to the conclusive reasoning adopted in that case, whatever meaning may be attributed to § 4 of Art. I, there is added by clause 18 of §. 8 everything necessary or proper for carrying it into execution — which means, into practical and complete effect.
The passage of the act under consideration amounts to a determination by the law-making body that the regulation of primary elections and nominating conventions is necessary if the Senate and House of Representatives are to be,! in a full and proper sense, representative of the people.. Not only is this true of those cases referred to in the report of the Senate Committee (Senate Rept. No. 78, 62d Cong., 1st sess., p. 2) where the parties are so unequally divided that a nomination by' the majority party is equivalent to election; but it is true in every case *288to the extent that the nominating processes virtually eliminate from consideration by the electors all eligible candidates except the- few — two or three, perhaps — who succeed in receiving party nominations. Sinister influences exerted upon the primaries inevitably have their effect upon the ultimate election — are employed for no other reason. To safeguard the final elections while leaving the proceedings for proposing candidates unregulated, is to postpone regulation until it is comparatively futile. And Congress might well conclude that, if the nominating procedure were to be left open to fraud, bribery, and corruption, or subject to the more insidious but (in the opinion of Congress) nevertheless harmful influences resulting from, an unlimited expenditure of money in paid propaganda and other purchased campaign activities, representative government would be endangered.
The question of the authority of Congress to determine that laws regulating primary elections are “necessary and proper for carrying into execution” the other powers specified, admits of but one answer — the same given by Chief Justice Marshall in the memorable case last cited (4 Wheat. 421): “We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are .to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, aré constitutional. ”
This principle has been consistently adhered to and liberally applied from that' day until this. Among á multitude of illustrative cases that might be cited, some *289rebent notable, but not exceptional, ones may be instanced: Second Employers’Liability Cases, 223 U. S. 1, 49, holding that the power of Congress to regulate commerce among the States brings within its authority the relations between common carriers by rail and their employees engaged in such commerce; Houston, East & West Texas Ry. Co. v. United States, 234 U. S. 342, 350, 355, holding that the same power authorizes Congress to regulate rates of transportation in the internal commerce of a State, to the extent of preventing injurious discrimination against the movement of traffic from State to State; Wilson v. New, 243 U. S. 332, 353, holding that the power over interstate commerce extends to regulating the wages of the employees of common carriers engaged therein; Selective Draft Law Cases, 245 U. S. 366, 377, et seq., sustaining an act imposing involuntary military duty upon the citizen as “necessary and proper for carrying into execution”, the power to declare war, raise and support armies, and make rules for the government and regulation of the land and naval forces; United States v. Ferger, 250 U. S. 199, 205, upholding the authority of Congress to prohibit and punish the-fraudulent making of spurious interstate bills of lading even in the absence of any actual or contemplated movement of commerce from State to State; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 155, 163, sustaining war time prohibition of the sale of distilled spirits for beverage purposes as a measure necessary and proper for carrying into execution the war power; Jacob Ruppert v. Caffey, 251 U. S. 264, 282, 299-301, sustaining an act prohibiting the manufacture and sale of non-intoxicating beer as “necessaiy and proper” to render effective a prohibition against intoxicants; First National Bank v. Union Trust Co., 244 U. S. 416, 419, sustaining an act conferring upon national banks powers not inherently federal but deemed appropriate to enable such banks to compete with state banks having *290like powers; and Smith v. Kansas City Title & Trust Co., 255 U. S. 180, sustaining an act establishing federal land banks and joint stock land banks having broad powers not national in their character, but deemed by Congress to be reasonably appropriate for performing certain limited fiscal functions in aid of the national treasury.
It would be tragic if that provision of the Constitution which has proved the sure defense of every outpost of national power should fail to safeguard the very foundation of the citadel.
But its function in preserving our representative government has long been recognized! In Ex parte Yarbrough, 110 U. S. 651, where the question was as to the constitutionality of §§ 5508 and 5520, Rev. Stats.— the question having arisen upon an indictment for a conspiracy to intimidate a citizen of African descent in the exercise of his right to vote for a member of Congress— the court, by Mr. Justice Miller, said (p. 657): “That a government whose essential character is republican, whose executive head and legislative body are both elective, whose most numerous, and powerful branch of the legislature is elected by the people directly [now true of both branches], • has no power by appropriate laws to secure this election from the influence of violence, of corruption, and of fraud, is a proposition so startling as to arrest attention and demand the gravest consideration. If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of, which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption. The proposition that it has no such power is supported by the old argument, often heard, often repeated, and in this court never assented to, that *291when a question of the power of Congress arises the advocate of the power must be able to place his finger on words which expressly grant it. . . . It destroys at one blow, in construing the Constitution of the United States, the doctrine universally applied to all instruments of writing, that what is implied is as much a part of the instrument as what is expressed. This principle, in its application to the Constitution of the United States, more than to almost any other writing, is a necessity, by reason of the inherent inability to put into words, all derivative powers — a difficulty which the instrument itself recognizes by conferring on Congress the authority to pass all laws necessary and proper to carry into execution the powers expressly granted and all other powers vested in the government or any branch of it by the Constitution. Article I, sec. 8, clause 18.”
I conclude that it is free from doubt that the Congress has power under the Constitution to regulate the conduct of primary elections and nominating conventions held for choosing candidates to be voted for in general elections for Representatives and Senators in Congress, and that the provisions of the Act of August 19, 1911, 37 Stat. 26-28, in that behalf are valid.
Since the majority of the court hold that the act is invalid, it would serve no useful purpose to spend time in discussing those assignments of error that relate to the conduct of the trial. It may be said, however, that, in my opinion, the trial court did not err in refusing to direct a verdict for the defendants for want of evidence of the alleged conspiracy; nor in instructing the jury that the prohibition of the statute against the expenditure and use of money by a candidate beyond the specified limit is not confined to his own money, but extends to the expenditure or use of excessive sums of money by him, from whatever source and from whomsoever derived; nor in instructing them that in order to warrant a ver*292diet of guilty upon an indictment for conspiracy it was not necessary that the Government should show that defendants knew that some statute forbade the acts they were contemplating, but only to show an agreement to do acts constituting a violation of the statute; their knowledge of the law being presumed.
I find prejudicial error, however, in that part of the charge which assumed to define the extent to which a candidate must participate in expenditures beyond the amount limited in order that he may be held to have violated the prohibition — an instruction vitally important because it was largely upon overt acts supposed to have been done in carrying out the alleged conspiracy that the Government relied to prove the making of the conspiracy and its character,' and because, unless the purposes of defendants involved a violation of the Corrupt Practices Act, they were not guilty of a conspiracy to commit an “offense against the United States” within the meaning of § 37, Criminal Code.
The instruction upon this topic, excepted to and assigned for error, was as follows: “The phrase which constitutes the prohibition against the candidate ‘Causing to be given, contributed, expended or used ’ excessive sums of money, is not limited and not confined to expenditures and use of money made directly and personally by himself. This prohibition extends to the expenditure and use of excessive sums of money in which the candidate actively participates, or assists, or advises, or directs, or induces, or procures. The prohibition extends not only to the expenditure and use of excessive sums of money by the candidate directly and personally, but to such use and expenditure through his agency, or procurement, or assistance. To constitute a violation of this statute knowledge of the expenditure and use of excessive sums of money on the part of the candidate is not sufficient; neither is it sufficient to constitute a violation of this *293statute that the candidate merely acquiesces in such expenditures and use. But it is sufficient to constitute a violation of this statute if the candidate actively par-. ticipates in doing the things which occasion such expenditures and use of money and so actively participates with knowledge that the money is being expended and used. To apply these rules to this case: If you are satisfied from the evidence that the defendant, Truman H. Newberry, at or about the time that he became a candidate for United States Senator was informed and knew that his compaign for the nomination and election would require the expenditure and use of more money than is permitted by law and with such knowledge became a candidate, and thereafter by advice, by conduct, by his' acts, by his direction, by his counsel, or by his procurement he actively participated and took part in the expenditure and use of an excessive sum of money, of an unlawful sum of money, you will be warranted in finding that he did violate this statute known as the Corrupt Practices Act.”
However this may be regarded when considered in the abstract, the difficulty with it, when viewed in connection with the evidence in the case to which the jury was called upon to apply it, is that it permitted and perhaps encouraged the jury to find the defendants guilty of a conspiracy to violate the Corrupt Practices Act if they merely contemplated a campaign requiring the expenditure of money beyond the statutory limit, even though Mr. New-berry, the candidate, had not, and it was not contemplated that he should have, any part in causing or procuring such expenditure beyond his mere standing voluntarily as a candidate and participating in the campaign with knowledge that moneys contributed and expended by others without his participation were to be expended.
The language of the Corrupt Practices Act (37 Stat. 28) is: “No candidate . . . shall give, contribute,, ex*294pend, use, or promise, or cause to be given, contributed, expended,; used, or promised,” etc. A reading of the entire act makes it plain that Congress did not intend to limit spontaneous contributions of money by others than a candidate, nor expenditures of such money except as he should participate therein. Of course, it does not mean that he must be alone in expending or causing to be expended the excessive sums of money; if he does it through an agent or agents, or through associates who stand in the position of agents, no doubt he is guilty; qui facit per áliumfadt per se; but unless he is an offender as a principal there is no offense. Section 332, Criminal Code, declares: ‘ ‘ Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” Clearly this makes anyone who abets a candidate in expending or causing to be expended excessive sums a principal offender; but it cannot change the definition of the offense itself as contained in the Corrupt Practices Act, so as to make a candidate a principal offender unless he directly commits the offense denounced. Spontaneous expenditures by others being without the scope of the prohibition, neither he nor anybody else can be held criminally responsible for merely abetting such expenditures.
It follows that one’s entry upon a candidacy for nomination and election as a Senator with knowledge that such candidacy will come to naught unless supported by expenditure of money beyond the specified limit, is not within the inhibition of the act unless it is contemplated that the candidate shall have a part in procuring the excessive expenditures beyond the effect of his mere candidacy in evoking spontaneous contributions and expenditures by his supporters; and that his remaining in the field and participating in the ordinary activities of the campaign with knowledge that such activities furnish in *295a general sense the “occasion ” for the expenditure is not to be regarded as a “causing ” by the candidate of such expenditure within the meaning of the statute.
The state of the evidence made it important that, in connection with that portion of the charge above quoted, the jury should be cautioned that unless it was a part of defendants’ plan that Mr. Newberry should actually participate in giving, contributing, expending, using, or promising, or causing to be given, contributed, expended, used, or promised moneys in excess of the limited amount —either himself or through others as his agents — his mere participation in the activities of the campaign, even with knowledge that moneys spontaneously contributed and expended by others, without his agency, procurement, or assistance, were to be or were being expended, would not of itself amount to his causing such excessive expenditure. The effect of the instruction that was given may well have been to convey to the jury the view that Mr. Newberry’s, conduct in becoming and remaining a candidate with knowledge that spontaneous contributions and expenditures of money by his supporters would exceed the statutory limit, and his active participation in the campaign, were necessarily equivalent to an active participation by him in causing the expenditure and use of an excessive sum of money, and that a combination among defendants having for its object Mr. Newberry’s participation in a campaign where money in excess of the prescribed limit was to-be expended, even without his participation in the contribution or expenditure of such money, amounted to a conspiracy on their part to commit an offense against the act.
For error in the instructions in this particular the judgment should be reversed, with directions for a new trial.
Mr. Justice Brandéis and Mr. Justice Clarke concur in this opinion.