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Cases citing this case: Supreme Court
Cases citing this case: Circuit Courts
U.S. Supreme Court
U S v. CRUIKSHANK, 92 U.S. 542 (1875)
92 U.S. 542
UNITED STATES
v.
CRUIKSHANK ET AL.
October Term, 1875[ U S v. Cruikshank
92 U.S. 542 (1875)
[92
U.S. 542, 544] ERROR to the Circuit Court of the United
States for the District of Louisiana.
This was an indictment for conspiracy under the
sixth section of the act of May 30, 1870, known as the Enforcement
Act (16 Stat. 140), and consisted of thirty-two counts.
The first count was for banding together, with
intent 'unlawfully and feloniously to injure, oppress, threaten, and
intimidate' two citizens of the United States, 'of African descent
and persons of color,' 'with the unlawful and felonious intent
thereby' them 'to hinder and prevent in their respective free
[92 U.S. 542, 545]
exercise and enjoyment of their lawful right and privilege
to peaceably assemble together with each other and with other
citizens of the said United States for a peaceable and lawful
purpose.'
The second avers an intent to hinder and prevent
the exercise by the same persons of the 'right to keep and bear arms
for a lawful purpose.'
The third avers an intent to deprive the same
persons 'of their respective several lives and liberty of person,
without due process of law.'
The fourth avers an intent to deprive the same
persons of the 'free exercise and enjoyment of the right and
privilege to the full and equal benefit of all laws and proceedings
for the security of persons and property' enjoyed by white citizens.
The fifth avers an intent to hinder and prevent
the same persons 'in the exercise and enjoyment of the rights,
privileges, immunities, and protection granted and secured to them
respectively as citizens of the said United States, and as citizens
of the said State of Louisiana, by reason of and for and on account
of the race and color' of the said persons.
The sixth avers an intent to hinder and prevent
the same persons in 'the free exercise and enjoyment of the several
and respective right and privilege to vote at any election to be
thereafter by law had and held by the people in and of the said
State of Louisiana.'
The seventh avers an intent 'to put in great fear
of bodily harm, injure, and oppress' the same persons, 'because and
for the reason' that, having the right to vote, they had voted.
The eighth avers an intent 'to prevent and
hinder' the same persons 'in their several and respective free
exercise and enjoyment of every, each, all, and singular and several
rights and privileges granted and secured' to them 'by the
constitution and laws of the United States.'
The next eight counts are a repetition of the
first eight, except that, instead of the words 'band together,' the
words 'combine, conspire, and confederate together' are used. Three
of the defendants were found guilty under the first sixteen counts,
and not guilty under the remaining counts.
[92 U.S. 542, 546]
The parties thus convicted moved in arrest of judgment on
the following grounds:--
1. Because the matters and things set forth and
charged in the several counts, one to sixteen inclusive, do not
constitute offences against the laws of the United States, and do
not come within the purview, true intent, and meaning of the act of
Congress, approved 31st May, 1870, entitled 'An Act to enforce the
right of citizens of the United States,' & c.
2. Because the matters and things in the said
indictment set forth and charged do not constitute offences
cognizable in teh Circuit Court, and do not come within its power
and jurisdiction.
3. Because the offences created by the sixth
section of the act of Congress referred to, and upon which section
the aforesaid sixteen counts are based, are not constitutionally
within the jurisdiction of the courts of the United States, and
because the matters and things therein referred to are judicially
cognizable by State tribunals only, and legislative action thereon
is among the constitutionally reserved rights of the several States.
4. Because the said act, in so far as it creates
offences and imposes penalties, is in violation of the Constitution
of the United States, and an infringement of the rights of the
several States and the people.
5. Because the eighth and sixteenth counts of the
indictment are too vague, general, insufficient, and uncertain, to
afford the accused proper notice to plead and prepare their defence,
and set forth no specific offence under the law.
6. Because the verdict of the jury against the
defendants is not warranted or supported by law.
On this motion the opinions of the judges were
divided, that of the presiding judge being that the several counts
in question are not sufficient in law, and do not contain charges of
criminal matter indictable under the laws of the United States; and
that the motion in arrest of judgment should be granted. The case
comes up at the instance of the United States, on certificate of
this division of opinion.
Sect. 1 of the Enforcement Act declares, that all
citizens of the United States, otherwise qualified, shall be allowed
to vote at all elections, without distinction of race, color, or
previous servitude.
[92 U.S. 542, 547] Sect. 2 provides, that, if by the
law of any State or Territory a prerequisite to voting is necessary,
equal opportunity for it shall be given to all, without distinction,
&c.; and any person charged with the duty of furnishing the
prerequisite, who refuses or knowingly omits to give full effect to
this section, shall be guilty of misdemeanor.
Sect. 3 provides, that an offer of performance,
in respect to the prerequisite, when proved by affidavit of the
claimant, shall be equivalent to performance; and any judge or
inspector of election who refuses to accept it shall be guilty, &c.
Sect. 4 provides, that any person who, by force,
bribery, threats, intimidation, or other unlawful means, hinders,
delays, prevents, or obstructs any citizen from qualifying himself
to vote, or combines with others to do so, shall be guilty, &c.
Sect. 5 provides, that any person who prevents,
hinders, controls, or intimidates any person from exercising the
right of suffrage, to whom it is secured by the fifteenth amendment,
or attempts to do so, by bribery or threats of violence, or
deprivation of property or employment, shall be guilty, &c.
The sixth section is as follows:--
'That if two or more persons shall band or
conspire together, or go in disguise upon the public highway, or
upon the premises of another, with intent to violate any
provisions of this act, or to injure, oppress, threaten, or
intimidate any citizen with intent to prevent or hinder his free
exercise and enjoyment of any right or privilege granted or
secured to him by the constitution or laws of the United States,
or because of his having exercised the same, such persons shall be
held guilty of felony, and, on conviction thereof, shall be fined
or imprisoned, or both, at the discretion of the court,-the fine
not to exceed $5,000, and the imprisonment not to exceed ten
years; and shall, moreover, be thereafter ineligible to, and
disabled from holding, any office or place of honor, profit, or
trust created by the constitution or laws of the United States.'
This case was argued at the October Term, 1874,
by Mr. Attorney- General Williams and Mr. Solicitor-General Phillips
for the plaintiff in error; and by Mr. Reverdy Johnson, Mr. David
Dudley Field, Mr. Philip Phillips, and Mr. R. H. Marr for the
defendants in error.
[92 U.S. 542, 548]
MR. CHIEF JUSTICE WAITE delivered the opinion of
the court.
This case comes here with a certificate by the
judges of the Circuit Court for the District of Louisiana that they
were divided in opinion upon a question which occurred at the
hearing. It presents for our consideration an indictment containing
sixteen counts, divided into two series of eight counts each, based
upon sect. 6 of the Enforcement Act of May 31, 1870. That section is
as follows:--
'That if two or more persons shall band or
conspire together, or go in disguise upon the public highway, or
upon the premises of another, with intent to violate any provision
of this act, or to injure, oppress, threaten, or intimidate any
citizen, with intent to prevent or hinder his free exercise and
enjoyment of any right or privilege granted or secured to him by
the constitution or laws of the United States, or because of his
having exercised the same, such persons shall be held guilty of
felony, and, on conviction thereof, shall be fined or imprisoned,
or both, at the discretion of the court,-the fine not to exceed
$5,000, and the imprisonment not to exceed ten years; and shall,
moreover, be thereafter ineligible to, and disabled from holding,
any office or place of honor, profit, or trust created by the
constitution or laws of the United States.' 16 Stat. 141.
The question certified arose upon a motion in
arrest of judgment after a verdict of guilty generally upon the
whole sixteen counts, and is stated to be, whether 'the said sixteen
counts of said indictment are severally good and sufficient in law,
and contain charges of criminal matter indictable under the laws of
the United States.'
The general charge in the first eight counts is
that of 'banding,' and in the second eight, that of 'conspiring'
together to injure, oppress, threaten, and intimidate Levi Nelson
and Alexander Tillman, citizens of the United States, of African
descent and persons of color, with the intent thereby to hinder and
prevent them in their free exercise and enjoyment of rights and
privileges 'granted and secured' to them 'in common with all other
good citizens of the United States by the constitution and laws of
the United States.'
The offences provided for by the statute in
question do not consist in the mere 'banding' or 'conspiring' of two
or [92 U.S. 542, 549]
more persons together, but in their banding or
conspiring with the intent, or for any of the purposes, specified.
To bring this case under the operation of the statute, therefore, it
must appear that the right, the enjoyment of which the conspirators
intended to hinder or prevent, was one granted or secured by the
constitution or laws of the United States. If it does not so appear,
the criminal matter charged has not been made indictable by any act
of Congress.
We have in our political system a government of
the United States and a government of each of the several States.
Each one of these governments is distinct from the others, and each
has citizens of its own who owe it allegiance, and whose rights,
within its jurisdiction, it must protect. The same person may be at
the same time a citizen of the United States and a citizen of a
State, but his rights of citizenship under one of these governments
will be different from those he has under the other. Slaughter-
House Cases, 16 Wall. 74.
Citizens are the members of the political
community to which they belong. They are the people who compose the
community, and who, in their associated capacity, have established
or submitted themselves to the dominion of a government for the
promotion of their general welfare and the protection of their
individual as well as their collective rights. In the formation of a
government, the people may confer upon it such powers as they
choose. The government, when so formed, may, and when called upon
should, exercise all the powers it has for the protection of the
rights of its citizens and the people within its jurisdiction; but
it can exercise no other. The duty of a government to afford
protection is limited always by the power it possesses for that
purpose.
Experience made the fact known to the people of
the United States that they required a national government for
national purposes. The separate governments of the separate States,
bound together by the articles of confederation alone, were not
sufficient for the promotion of the general welfare of the people in
respect to foreign nations, or for their complete protection as
citizens of the confederated States. For this reason, the people of
the United States, 'in order to form a more perfect union, establish
justice, insure domestic tranquillity, provide for
[92 U.S. 542, 550]
the common defence, promote the general welfare, and secure
the blessings of liberty' to themselves and their posterity (Const.
Preamble), ordained and established the government of the United
States, and defined its powers by a constitution, which they adopted
as its fundamental law, and made its rule of action.
The government thus established and defined is to
some extent a government of the States in their political capacity.
It is also, for certain purposes, a government of the pepole. Its
powers are limited in number, but not in degree. Within the scope of
its powers, as enumerated and defined, it is supreme and above the
States; but beyond, it has no existence. It was erected for special
purposes, and endowed with all the powers necessary for its own
preservation and the accomplishment of the ends its people had in
view. It can neither grant nor secure to its citizens any right or
privilege not expressly or by implication placed under its
jurisdiction.
The people of the United States resident within
any State are subject to two governments: one State, and the other
National; but there need be no conflict between the two. The powers
which one possesses, the other does not. They are established for
different purposes, and have separate jurisdictions. Together they
make one whole, and furnish the people of the United States with a
complete government, ample for the protection of all their rights at
home and abroad. True, it may sometimes happen that a person is
amenable to both jurisdictions for one and the same act. Thus, if a
marshal of the United States is unlawfully resisted while executing
the process of the courts within a State, and the resistance is
accompanied by an assault on the officer, the sovereignty of the
United States is violated by the resistance, and that of the State
by the breach of peace, in the assault. So, too, if one passes
counterfeited coin of the United States within a State, it may be an
offence against the United States and the State: the United States,
because it discredits the coin; and the State, because of the fraud
upon him to whom it is passed. This does not, however, necessarily
imply that the two governments possess powers in common, or bring
them into conflict with each other. It is the natural consequence of
a citizenship [92 U.S.
542, 551] which owes allegiance to two sovereignties,
and claims protection from both. The citizen cannot complain,
because he has voluntarily submitted himself to such a form of
government. He owes allegiance to the two departments, so to speak,
and within their respective spheres must pay the penalties which
each exacts for disobedience to its laws. In return, he can demand
protection from each within its own jurisdiction.
The government of the United States is one of
delegated powers alone. Its authority is defined and limited by the
Constitution. All powers not granted to it by that instrument are
reserved to the States or the people. No rights can be acquired
under the constitution or laws of the United States, except such as
the government of the United States has the authority to grant or
secure. All that cannot be so granted or secured are left under the
protection of the States.
We now proceed to an examination of the
indictment, to ascertain whether the several rights, which it is
alleged the defendants intended to interfere with, are such as had
been in law and in fact granted or secured by the constitution or
laws of the United States.
The first and ninth counts state the intent of
the defendants to have been to hinder and prevent the citizens named
in the free exercise and enjoyment of their 'lawful right and
privilege to peaceably assemble together with each other and with
other citizens of the United States for a peaceful and lawful
purpose.' The right of the people peaceably to assemble for lawful
purposes existed long before the adoption of the Constitution of the
United States. In fact, it is, and always has been, one of the
attributes of citizenship under a free government. It 'derives its
source,' to use the language of Chief Justice Marshall, in Gibbons
v. Ogden, 9 Wheat. 211, 'from those laws whose authority is
acknowledged by civilized man throughout the world.' It is found
wherever civilization exists. It was not, therefore, a right granted
to the people by the Constitution. The government of the United
States when established found it in existence, with the obligation
on the part of the States to afford it protection. As no direct
power over it was granted to Congress, it remains, according to the
ruling in Gibbons v. Ogden, id. 203, subject to State jurisdiction.
[92 U.S. 542, 552]
Only such existing rights were committed by the people to
the protection of Congress as came within the general scope of the
authority granted to the national government.
The first amendment to the Constitution prohibits
Congress from abridging 'the right of the people to assemble and to
petition the government for a redress of grievances.' This, like the
other amendments proposed and adopted at the same time, was not
intended to limit the powers of the State governments in respect to
their own citizens, but to operate upon the National government
alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of
Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v.
Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The
Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321;
Edwards v. Elliott, 21 id. 557. It is now too late to question the
correctness of this construction. As was said by the late Chief
Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, 'the scope
and application of these amendments are no longer subjects of
discussion here.' They left the authority of the States just where
they found it, and added nothing to the already existing powers of
the United States.
The particular amendment now under consideration
assumes the existence of the right of the people to assemble for
lawful purposes, and protects it against encroachment by Congress.
The right was not created by the amendment; neither was its
continuance guaranteed, except as against congressional
interference. For their protection in its enjoyment, therefore, the
people must look to the States. The power for that purpose was
originally placed there, and it has never been surrendered to the
United States.
The right of the people peaceably to assemble for
the purpose of petitioning Congress for a redress of grievances, or
for any thing else connected with the powers or the duties of the
national government, is an attribute of national citizenship, and,
as such, under the protection of, and guaranteed by, the United
States. The very idea of a government, republican in form, implies a
right on the part of its citizens to meet peaceably for consultation
in respect to public affairs and to petition for a redress of
grievances. If it had been alleged in
[92 U.S. 542, 553]
these counts that the object of the defendants was to
prevent a meeting for such a purpose, the case would have been
within the statute, and within the scope of the sovereignty of the
United States. Such, however, is not the case. The offence, as
stated in the indictment, will be made out, if it be shown that the
object of the conspiracy was to prevent a meeting for any lawful
purpose whatever.
The second and tenth counts are equally
defective. The right there specified is that of 'bearing arms for a
lawful purpose.' This is not a right granted by the Constitution.
Neither is it in any manner dependent upon that instrument for its
existence. The second amendment declares that it shall not be
infringed; but this, as has been seen, means no more than that it
shall not be infringed by Congress. This is one of the amendments
that has no other effect than to restrict the powers of the national
government, leaving the people to look for their protection against
any violation by their fellow-citizens of the rights it recognizes,
to what is called, in The City of New York v. Miln, 11 Pet. 139, the
'powers which relate to merely municipal legislation, or what was,
perhaps, more properly called internal police,' 'not surrendered or
restrained' by the Constituton of the United States.
The third and eleventh counts are even more
objectionable. They charge the intent to have been to deprive the
citizens named, they being in Louisiana, 'of their respective
several lives and liberty of person without due process of law.'
This is nothing else than alleging a conspiracy to falsely imprison
or murder citizens of the United States, being within the
territorial jurisdiction of the State of Louisiana. The rights of
life and personal liberty are natural rights of man. 'To secure
these rights,' says the Declaration of Independence, 'governments
are instituted among men, deriving their just powers from the
consent of the governed.' The very highest duty of the States, when
they entered into the Union under the Constitution, was to protect
all persons within their boundaries in the enjoyment of these
'unalienable rights with which they were endowed by their Creator.'
Sovereignty, for this purpose, rests alone with the States. It is no
more the duty or within the power of the United States to punish for
a conspiracy [92 U.S.
542, 554] to falsely imprison or murder within a State,
than it would be to punish for false imprisonment or murder itself.
The fourteenth amendment prohibits a State from
depriving any person of life, liberty, or property, without due
process of law; but this adds nothing to the rights of one citizen
as against another. It simply furnishes an additional guaranty
against any encroachment by the States upon the fundamental rights
which belong to every citizen as a member of society. As was said by
Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 244, it
secures 'the individual from the arbitrary exercise of the powers of
government, unrestrained by the established principles of private
rights and distributive justice.' These counts in the indictment do
not call for the exercise of any of the powers conferred by this
provision in the amendment.
The fourth and twelfth counts charge the intent
to have been to prevent and hinder the citizens named, who were of
African descent and persons of color, in 'the free exercise and
enjoyment of their several right and privilege to the full and equal
benefit of all laws and proceedings, then and there, before that
time, enacted or ordained by the said State of Louisiana and by the
United States; and then and there, at that time, being in force in
the said State and District of Louisiana aforesaid, for the security
of their respective persons and property, then and there, at that
time enjoyed at and within said State and District of Louisiana by
white persons, being citizens of said State of Louisiana and the
United States, for the protection of the persons and property of
said white citizens.' There is no allegation that this was done
because of the race or color of the persons conspired against. When
stripped of its verbiage, the case as presented amounts to nothing
more than that the defendants conspired to prevent certain citizens
of the United States, being within the State of Louisiana, from
enjoying the equal protection of the laws of the State and of the
United States.
The fourteenth amendment prohibits a State from
denying to any person within its jurisdiction the equal protection
of the laws; but this provision does not, any more than the one
which precedes it, and which we have just considered, add any thing
[92 U.S. 542, 555]
to the rights which one citizen has under the Constitution
against another. The equality of the rights of citizens is a
principle of republicanism. Every republican government is in duty
bound to protect all its citizens in the enjoyment of this
principle, if within its power. That duty was originally assumed by
the States; and it still remains there. The only obligation resting
upon the United States is to see that the States do not deny the
right. This the amendment guarantees, but no more. The power of the
national government is limited to the enforcement of this guaranty.
No question arises under the Civil Rights Act of
April 9, 1866 (14 Stat. 27), which is intended for the protection of
citizens of the United States in the enjoyment of certain rights,
without discrimination on account of race, color, or previous
condition of servitude, because, as has already been stated, it is
nowhere alleged in these counts that the wrong contemplated against
the rights of these citizens was on account of their race or color.
Another objection is made to these counts, that
they are too vague and uncertain. This will be considered hereafter,
in connection with the same objection to other counts.
The sixth and fourteenth counts state the intent
of the defendants to have been to hinder and prevent the citizens
named, being of African descent, and colored, 'in the free exercise
and enjoyment of their several and respective right and privilege to
vote at any election to be thereafter by law had and held by the
people in and of the said State of Louisiana, or by the people of
and in the parish of Grant aforesaid.' In Minor v. Happersett, 21
Wall. 178, we decided that the Constitution of the United States has
not conferred the right of suffrage upon any one, and that the
United States have no voters of their own creation in the States. In
United States v. Reese et al., supra, p. 214, we hold that the
fifteenth amendment has invested the citizens of the United States
with a new constitutional right, which is, exemption from
discrimination in the exercise of the elective franchise on account
of race, color, or previous condition of servitude. From this it
appears that the right of suffrage is not a necessary attribute of
national citizenship; but that exemption from discrimination in the
exercise of that right on
[92 U.S. 542, 556] account of race, &c.,
is. The right to vote in the States comes from the States; but the
right of exemption from the prohibited discrimination comes from the
United States. The first has not been granted or secured by the
Constitution of the United States; but the lat has been.
Inasmuch, therefore, as it does not appear in
these counts that the intent of the defendants was to prevent these
parties from exercising their right to vote on account of their
race, &c., it does not appear that it was their intent to interfere
with any right granted or secured by the constitution or laws of the
United States. We may suspect that race was the cause of the
hostility; but it is not so averred. This is material to a
description of the substance of the offence, and cannot be supplied
by implication. Every thing essential must be charged positively,
and not inferentially. The defect here is not in form, but in
substance.
The seventh and fifteenth counts are no better
than the sixth and fourteenth. The intent here charged is to put the
parties named in great fear of bodily harm, and to injure and
oppress them, because, being and having been in all things
qualified, they had voted 'at an election before that time had and
held according to law by the people of the said State of Louisiana,
in said State, to wit, on the fourth day of November, A.D. 1872, and
at divers other elections by the people of the State, also before
that time had and held according to law.' There is nothing to show
that the elections voted at were any other than State elections, or
that the conspiracy was formed on account of the race of the parties
against whom the conspirators were to act. The charge as made is
really of nothing more than a conspiracy to commit a breach of the
peace within a State. Certainly it will not be claimed that the
United States have the power or are required to do mere police duly
in the States. If a State cannot protect itself against domestic
violence, the United States may, upon the call of the executive,
when the legislature cannot be convened, lend their assistance for
that purpose. This is a guaranty of the Constitution (art. 4, sect.
4); but it applies to no case like this.
We are, therefore, of the opinion that the first,
second, third, fourth, sixth, seventh, ninth, tenth, eleventh,
twelfth, fourteenth,
[92 U.S. 542, 557] and fifteenth counts do not contain
charges of a criminal nature made indictable under the laws of the
United States, and that consequently they are not good and
sufficient in law. They do not show that it was the intent of the
defendants, by their conspiracy, to hinder or prevent the enjoyment
of any right granted or secured by the Constitution.
We come now to consider the fifth and thirteenth
and the eighth and sixteenth counts, which may be brought together
for that purpose. The intent charged in the fifth and thirteenth is
'to hinder and prevent the parties in their respective free exercise
and enjoyment of the rights, privileges, immunities, and protection
granted and secured to them respectively as citizens of the United
States, and as citizens of said State of Louisiana,' 'for the reason
that they, . . . being then and there citizens of said State and of
the United States, were persons of African descent and race, and
persons of color, and not white citizens thereof;' and in the eighth
and sixteenth, to hinder and prevent them 'in their several and
respective free exercise and enjoyment of every, each, all, and
singular the several rights and privileges granted and secured to
them by the constitution and laws of the United States.' The same
general statement of the rights to be interfered with is found in
the fifth and thirteenth counts.
According to the view we take of these counts,
the question is not whether it is enough, in general, to describe a
statutory offence in the language of the statute, but whether the
offence has here been described at all. The statute provides for the
punishment of those who conspire 'to injure, oppress, threaten, or
intimidate any citizen, with intent to prevent or hinder his free
exercise and enjoyment of any right or privilege granted or secured
to him by the constitution or laws of the United States.' These
counts in the indictment charge, in substance, that the intent in
this case was to hinder and prevent these citizens in the free
exercise and enjoyment of 'every, each, all, and singular' the
rights granted them by the Constitution, &c. There is no
specification of any particular right. The language is broad enough
to cover all.
In criminal cases, prosecuted under the laws of
the United States, the accused has the constitutional right 'to be
informed [92 U.S. 542,
558] of the nature and cause of the accusation.' Amend.
VI. In United States v. Mills, 7 Pet. 142, this was construed to
mean, that the indictment must set forth the offence 'with clearness
and all necessary certainty, to apprise the accused of the crime
with which he stands charged;' and in United States v. Cook, 17
Wall. 174, that 'every ingredient of which the offence is composed
must be accurately and clearly alleged.' It is an elementary
principle of criminal pleading, that where the definition of an
offence, whether it be at common law or by statute, 'includes
generic terms, it is not sufficient that the indictment shall charge
the offence in the same generic terms as in the definition; but it
must state the species,-it must descend to particulars. 1 Arch. Cr.
Pr. and Pl., 291. The object of the indictment is, first, to furnish
the accused with such a description of the charge against him as
will enable him to make his defence, and avail himself of his
conviction or acquittal for protection against a further prosecution
for the same cause; and, second, to inform the court of the facts
alleged, so that it may decide whether they are sufficient in law to
support a conviction, if one should be had. For this, facts are to
be stated, not conclusions of law alone. A crime is made up of acts
and intent; and these must be set forth in the indictment, with
reasonable particularity of time, place, and circumstances.
It is a crime to steal goods and chattels; but an
indictment would be bad that did not specify with some degree of
certainty the articles stolen. This, because the accused must be
advised of the essential particulars of the charge against him, and
the court must be able to decide whether the property taken was such
as was the subject of larceny. So, too, it is in some States a crime
for two or more persons to conspire to cheat and defraud another out
of his property; but it has been held that an indictment for such an
offence must contain allegations setting forth the means proposed to
be used to accomplish the purpose. This, because, to make such a
purpose criminal, the conspiracy must be to cheat and defraud in a
mode made criminal by statute; and as all cheating and defrauding
has not been made criminal, it is necessary for the indictment to
state the means proposed, in order that the court
[92 U.S. 542, 559]
may see that they are in fact illegal. State v. Parker, 43
N. H. 83; State v. Keach, 40 Vt. 118; Alderman v. The People, 4
Mich. 414; State v. Roberts, 34 Me. 32. In Maine, it is an offence
for two or more to conspire with the intent unlawfully and wickedly
to commit any crime punishable by imprisonment in the State prison
(State v. Roberts); but we think it will hardly be claimed that an
indictment would be good under this statute, which charges the
object of the conspiracy to have been 'unlawfully and wickedly to
commit each, every, all, and singular the crimes punishable by
imprisonment in the State prison.' All crimes are not so punishable.
Whether a particular crime be such a one or not, is a question of
law. The accused has, therefore, the right to have a specification
of the charge against him in this respect, in order that he may
decide whether he should present his defence by motion to quash,
demurrer, or plea; and the court, that it may determine whether the
facts will sustain the indictment. So here, the crime is made to
consist in the unlawful combination with an intent to prevent the
enjoyment of any right granted or secured by the Constitution, &c.
All rights are not so granted or secured. Whether one is so or not
is a question of law, to be decided by the court, not the
prosecutor. Therefore, the indictment should state the particulars,
to inform the court as well as the accused. It must be made to
appear-that is to say, appears from the indictment, without going
further-that the acts charged will, if proved, support a conviction
for the offence alleged.
But it is needless to pursue the argument
further. The conclusion is irresistible, that these counts are too
vague and general. They lack the certainty and precision required by
the established rules of criminal pleading. It follows that they are
not good and sufficient in law. They are so defective that no
judgment of conviction should be pronounced upon them.
The order of the Circuit Court arresting the
judgment upon the verdict is, therefore, affirmed; and the cause
remanded, with instructions to discharge the defendants.
MR. JUSTICE CLIFFORD dissenting.
I concur that the judgment in this case should be
arrested, but for reasons quite different from those given by the
court. [92 U.S. 542,
560] Power is vested in Congress to enforce by
appropriate legislation the prohibition contained in the fourteenth
amendment of the Constitution; and the fifth section of the
Enforcement Act provides to the effect, that persons who prevent,
hinder, control, or intimidate, or who attempt to prevent, hinder,
control, or intimidate, any person to whom the right of suffrage is
secured or guaranteed by that amendment, from exercising, or in
exercising such right, by means of bribery or threats; of depriving
such person of employment or occupation; or of ejecting such person
from rented house, lands, or other property; or by threats of
refusing to renew leases or contracts for labor; or by threats of
violence to himself or family,-such person so offending shall be
deemed guilty of a misdemeanor, and, on conviction thereof, shall be
fined or imprisoned, or both, as therein provided. 16 Stat. 141.
Provision is also made, by sect. 6 of the same
act, that, if two or more persons shall band or conspire together,
or go in disguise, upon the public highway, or upon the premises of
another, with intent to violate any provision of that act, or to
injure, oppress, threaten, or intimidate any citizen with intent to
prevent or hinder his free exercise and enjoyment of any right or
privilege granted or secured to him by the constitution and laws of
the United States, or because of his having exercised the same, such
persons shall be deemed guilty of felony, and, on conviction
thereof, shall be fined or imprisoned, or both, and be further
punished as therein provided.
More than one hundred persons were jointly
indicted at the April Term, 1873, of the Circuit Court of the United
States for the District of Louisiana, charged with offences in
violation of the provisions of the Enforcement Act. By the record,
it appears that the indictment contained thirty-two counts, in two
series of sixteen counts each: that the first series were drawn
under the fifth and sixth sections of the act; and that the second
series were drawn under the seventh section of the same act; and
that the latter series charged that the prisoners are guilty of
murder committed by them in the act of violating some of the
provisions of the two preceding sections of that act.
Eight of the persons named in the indictment
appeared on [92 U.S.
542, 561] the 10th of June, 1874, and went to trial
under the plea of not guilty, previously entered at the time of
their arraignment. Three of those who went to trial-to wit, the
three defendants named in the transcript-were found guilty by the
jury on the first series of the counts of the indictment, and not
guilty on the second series of the counts in the same indictment.
Subsequently the convicted defendants filed a
motion for a new trial, which motion being overruled they filed a
motion in arrest of judgment. Hearing was had upon that motion; and
the opinions of the judges of the Circuit Court being opposed, the
matter in difference was duly certified to this court, the question
being whether the motion in arrest of judgment ought to be granted
or denied.
Two only of the causes of arrest assigned in the
motion will be considered in answering the questions certified: (1.)
Because the matters and things set forth and charged in the several
counts in question do not constitute offences against the laws of
the United States, and do not come within the purview, true intent,
and meaning of the Enforcement Act. (2.) Because the several counts
of the indictment in question are too vague, insufficient, and
uncertain to afford the accused proper notice to plead and prepare
their defence, and do not set forth any offence defined by the
Enforcement Act.
Four other causes of arrest were assigned; but,
in the view taken of the case, it will be sufficient to examine the
two causes above set forth.
Since the questions were certified into this
court, the parties have been fully heard in respect to all the
questions presented for decision in the transcript. Questions not
pressed at the argument will not be considered; and, inasmuch as the
counsel in behalf of the United States confined their arguments
entirely to the thirteenth, fourteenth, and sixteenth counts of the
first series in the indictment, the answers may well be limited to
these counts, the others being virtually abandoned. Mere
introductory allegations will be omitted as unimportant, for the
reason that the questions to be answered relate to the allegations
of the respective counts describing the offence.
As described in the thirteenth count, the charge
is, that the [92 U.S.
542, 562] defendants did, at the time and place
mentioned, combine, conspire, and confederated together, between and
among themselves, for and with the unlawful and felonious intent and
purpose one Levi Nelson and one Alexander Tillman, each of whom
being then and there a citizen of the United States, of African
descent, and a person of color, unlawfully and feloniously to
injure, oppress, threaten, and intimidate, with the unlawful and
felonious intent thereby the said persons of color, respectively,
then and there to hinder and prevent in their respective and several
free exercise and enjoyment of the rights, privileges, and
immunities, and protection, granted and secured to them respectively
as citizens of the United States and citizens of the State, by
reason of their race and color; and because that they, the said
persons of color, being then and there citizens of the State and of
the United States, were then and there persons of African descent
and race, and persons of color, and not white citizens thereof; the
same being a right or privilege granted or secured to the said
persons of color respectively, in common with all other good
citizens of the United States, by the Federal Constitution and the
laws of Congress.
Matters of law conceded, in the opinion of the
court, may be assumed to be correct without argument; and, if so,
then discussion is not necessary to show that every ingredient of
which an offence is composed must be accurately and clearly alleged
in the indictment, or the indictment will be bad, and may be quashed
on motion, or the judgment may be arrested before sentence, or be
reversed on a writ of error. United States v. Cook, 17 Wall. 174.
Offences created by statute, as well as offences
at common law, must be accurately and clearly described in an
indictment; and, if the offence cannot be so described without
expanding the allegations beyond the mere words of the statute, then
it is clear that the allegations of the indictment must be expanded
to that extent, as it is universally true that no indictment is
sufficient which does not accurately and clearly allege all the
ingredients of which the offence is composed, so as to bring the
accused within the true intent and meaning of the statute defining
the offence. Authorities of great weight, besides those referred to
by me, in the dissenting opinion just read,
[92 U.S. 542, 563]
may be found in support of that proposition. 2 East, P. C.
1124; Dord v. People, 9 Barb. 675; Ike v. State, 23 Miss. 525; State
v. Eldridge, 7 Eng. 608.
Every offence consists of certain acts done or
omitted under certain circumstances; and, in the indictment for the
offence, it is not sufficient to charge the accused generally with
having committed the offence, but all the circumstances constituting
the offence must be specially set forth. Arch. Cr. Pl., 15th ed.,
43.
Persons born on naturalized in the United States,
and subject to the jurisdiction thereof, are citizens thereof; and
the fourteenth amendment also provides, that no State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States. Congress may, doubtless, prohibit any
violation of that provision, and may provide that any person
convicted of violating the same shall be guilty of an offence, and
be subject to such reasonable punishment as Congress may prescribe.
Conspiracies of the kind described in the
introductory clause of the sixth section of the Enforcement Act are
explicitly forbidden by the subsequent clauses of the same section;
and it may be that if the indictment was for a conspiracy at common
law, and was pending in a tribunal having jurisdiction of common-law
offences, the indictment in its present form might be sufficient,
even though it contains no definite allegation whatever of any
particular overt act committed by the defendants in pursuance of the
alleged conspiracy.
Decided cases may doubtless be found in which it is held that an
indictment for a conspiracy, at common law, may be
sustained where there is an unlawful agreement between two or more
persons to do an unlawful act, or to do a lawful act by unlawful
means; and authorities may be referred to which support the
proposition, that the indictment, if the conspiracy is well pleaded,
is sufficient, even though it be not alleged that any overt act had
been done in pursuance of the unlawful combination.
Suffice it to say, however, that the authorities to
that effect are opposed by another class of authorities equally
respectable, and even more numerous, which decide that the
indictment is [92 U.S.
542, 564] bad unless it is alleged that some overt act
was committed in pursuance of the intent and purpose of the alleged
conspiracy; and in all the latter class of cases it is held, that
the overt act, as well as the unlawful combination, must be clearly
and accurately alleged.
Two reasons of a conclusive nature, however, may be
assigned which show, beyond all doubt, that it is not necessary to
enter into the inquiry which class of those decisions is correct.
1. Because the common law is not a source of
jurisdiction in the circuit courts, nor in any other Federal court.
Circuit Courts have no common-law jurisdiction of
offences of any grade or description; and it is equally clear that
the appellate jurisdiction of the Supreme Court does not extend to
any case or any question, in a case not within the jurisdiction of
the subordinate Federal courts. State v. Wheeling Bridge Co., 13
How. 503; United States v. Hudson et al., 7 Cranch, 32.
2. Because it is conceded that the offence
described in the indictment is an offence created and defined by an
act of Congress.
Indictments for offences created and defined by
statute must in all cases follow the words of the statute: and,
where there is no departure from that rule, the indictment is in
general sufficient, except in cases where the statute is elliptical,
or where, by necessary implication, other constituents are component
parts of the offence; as where the words of the statute defining the
offence have a compound signification, or are enlarged by what
immediately precedes or follows the words describing the offence,
and in the same connection. Cases of the kind do arise, as where, in
the dissenting opinion in United States v. Reese et al., supra, p.
222, it was held, that the words offer to pay a capitation tax were
so expanded by a succeeding clause of the same sentence that the
word 'offer' necessarily included readiness to perform what was
offered, the provision being that the offer should be equivalent to
actual performance if the offer failed to be carried into execution
by the wrongful act or omission of the party to whom the offer was
made.
Two offences are in fact created and defined by the
sixth section of the Enforcement Act, both of which consist of a
[92 U.S. 542, 565]
conspiracy with an intent to perpetrate a forbidden act.
They are alike in respect to the conspiracy; but differ very widely
in respect to the act embraced in the prohibition.
1. Persons, two or more, are forbidden to
band or conspire together, or go in disguise upon the public
highway, or on the premises of another, with intent to violate any
provision of the Enforcement Act, which is an act of twenty-three
sections.
Much discussion of that clause is certainly
unnecessary, as no one of the counts under consideration is founded
on it, or contains any allegations describing such an offence. Such
a conspiracy with intent to injure, oppress, threaten, or intimidate
any person, is also forbidden by the succeeding clause of that
section, if it be done with intent to prevent or hinder his free
exercise and enjoyment of any right or privilege granted or secured
to him by the constitution or laws of the United States, or because
of having exercised the same. Sufficient appears in the thirteenth
count to warrant the conclusion, that the grand jury intended to
charge the defendants with the second offence created and defined in
the sixth section of the Enforcement Act.
Indefinite and vague as the description of the
offence there defined, is, it is obvious that it is greatly more so
as described in the allegations of the thirteenth count. By the act
of Congress, the prohibition is extended to any right or privilege
granted or secured by the constitution or laws of Congress; leaving
it to the pleader to specify the particular right or privilege which
had been invaded, in order to give the accusation that certainty
which the rules of criminal pleading everywhere require in an
indictment; but the pleader in this case, overlooking any necessity
for any such specification, and making no attempt to comply with the
rules of criminal pleading in that regard, describes the supposed
offence in terms much more vague and indefinite than those employed
in the act of Congress.
Instead of specifying the particular right or
privilege which had been invaded, the pleader proceeds to allege
that the defendants, with all the others named in the indictment,
did combine, conspire, and confederate together, with the unlawful
intent and purpose the said persons of African descent and
[92 U.S. 542, 566]
persons of color then and there to injure, oppress,
threaten, and intimidate, and thereby then and there to hinder and
prevent them in the free exercise and enjoyment of the rights,
privileges, and immunities and protection granted and secured to
them as citizens of the United States and citizens of the State,
without any other specification of the rights, privileges,
immunities, and protection which had been violated or invaded, or
which were threatened, except what follows; to wit, the same being a
right or privilege granted or secured in common with all other good
citizens by the constitution and laws of the United States.
Vague and indefinite allegations of the kind are not
sufficient to inform the accused in a criminal prosecution of the
nature and cause of the accusation against him, within the meaning
of the sixth amendment of the Constitution.
Valuable rights and privileges, almost without
number, are granted and secured to citizens by the constitution and
laws of Congress; none of which may be, with impunity, invaded in
violation of the prohibition contained in that section. Congress
intended by that provision to protect citizens in the enjoyment of
all such rights and privileges; but in affording such protection in
the mode there provided Congress never intended to open the door to
the invasion of the rule requiring certainty in criminal pleading,
which for ages has been regarded as one of the great safeguards of
the citizen against oppressive and groundless prosecutions.
Judge Story says the indictment must charge the time
and place and nature and circumstances of the offence with clearness
and certainty, so that the party may have full notice of the charge,
and be able to make his defence with all reasonable knowledge and
ability. 2 Story, Const., sect. 1785
Nothing need be added to show that the fourteenth
count is founded upon the same clause in the sixth section of the
Enforcement Act as the thirteenth count, which will supersede the
necessity of any extended remarks to explain the nature and
character of the offence there created and defined. Enough has
already been remarked to show that that particular clause of the
section was passed to protect citizens in the free exercise and
enjoyment of every right or privilege granted
[92 U.S. 542, 567]
or secured to them by the constitution and laws of
Congress, and to provide for the punishment of those who band or
conspire together, in the manner described, to injure, oppress, or
intimidate any citizen, to prevent or hinder him from the free
exercise and enjoyment of all such rights or privileges, or because
of his having exercised any such right or privilege so granted or
secured.
What is charged in the fourteenth count is, that the
defendants did combine, conspire, and confederate the said citizens
of African descent and persons of color to injure, oppress,
threaten, and intimidate, with intent the said citizens thereby to
prevent and hinder in the free exercise and enjoyment of the right
and privilege to vote at any election to be thereafter had and held
according to law by the people of the State, or by the people of the
parish; they, the defendants, well knowing that the said citizens
were lawfully qualified to vote at any such election thereafter to
be had and held.
Confessedly, some of the defects existing in the
preceding count are avoided in the count in question; as, for
example, the description of the particular right or privilege of the
said citizens which it was the intent of the defendants to invade is
clearly alleged; but the difficulty in the count is, that it does
not allege for what purpose the election or elections were to be
ordered, nor when or where the elections were to be had and held.
All that is alleged upon the subject is, that it was the intent of
the defendants to prevent and hinder the said citizens of African
descent and persons of color in the free exercise and enjoyment of
the right and privilege to vote at any election thereafter to be had
and held, according to law, by the people of the State, or by the
people of the parish, without any other allegation whatever as to
the purpose of the election, or any allegation as to the time and
place when and where the election was to be had and held.
Elections thereafter to be held must mean something
different from pending elections; but whether the pleader means to
charge that the intent and purpose of the alleged conspiracy
extended only to the next succeeding elections to be held in the
State or parish, or to all future elections to be held in the State
or parish during the lifetime of the parties, may admit of
[92 U.S. 542, 568]
a serious question, which cannot be easily solved by any
thing contained in the allegations of the count.
Reasonable certainty, all will agree, is required in
criminal pleading; and if so it must be conceded, we think, that the
allegation in question fails to comply with that requirement.
Accused persons, as matter of common justice, ought to have the
charge against them set forth in such terms that they may readily
understand the nature and character of the accusation, in order that
they, when arraigned, may know what answer to make to it, and that
they may not be embarrassed in conducting their defence; and the
charge ought also to be laid in such terms that, if the party
accused is put to trial, the verdict and judgment may be pleaded in
bar of a second accusation for the same offence.
Tested by these considerations, it is quite clear
that the fourteenth count is not sufficient to warrant the
conviction and sentence of the accused.
Defects and imperfections of the same kind as those
pointed out in the thirteenth count also exist in the sixteenth
count, and of a more decided character in the latter count than in
the former; conclusive proof of which will appear by a brief
examination of a few of the most material allegations of the charge
against the defendants. Suffice it to say, without entering into
details, that the introductory allegations of the count are in all
respects the same as in the thirteenth and fourteenth counts. None
of the introductory allegations allege that any overt act was
perpetrated in pursuance of the alleged conspiracy; but the jurors
proceed to present that the unlawful and felonious intent and
purpose of the defendants were to prevent and hinder the said
citizens of African descent and persons of color, by the means
therein described, in the free exercise and enjoyment of each,
every, all, and singular the several rights and privileges granted
and secured to them by the constitution and laws of the United
States in common with all other good citizens, without any attempt
to describe or designate any particular right or privilege which it
was the purpose and intent of the defendants to invade, abridge, or
deny.
Descriptive allegations in criminal pleading are
required to be reasonably definite and certain, as a necessary
safeguard [92 U.S.
542, 569] to the accused against surprise,
misconception, and error in conducting his defence, and in order
that the judgment in the case may be a bar to a second accusation
for the same charge. Considerations of the kind are entitled to
respect; but it is obvious, that, if such a description of the
ingredient of an offence created and defined by an act of Congress
is held to be sufficient, the indictment must become a snare to the
accused; as it is scarcely possible that an allegation can be framed
which would be less certain, or more at variance with the universal
rule that every ingredient of the offence must be clearly and
accurately described so as to bring the defendant within the true
intent and meaning of the provision defining the offence. Such a
vague and indefinite description of a material ingredient of the
offence is not a compliance with the rules of pleading in framing an
indictment. On the contrary, such an indictment is insufficient, and
must be held bad on demurrer or in arrest of judgment.
Certain other causes for arresting the judgment are
assigned in the record, which deny the constitutionality of the
Enforcement Act; but, having come to the conclusion that the
indictment is insufficient, it is not necessary to consider that
question. |
