for educational use only page 1 92 u.s. 542, 2 otto...

Supreme Court of the United StatesUNITED STATES

v.CRUIKSHANK ET AL.

October Term, 1875

**1 ERROR to the Circuit Court of the UnitedStates for the District of Louisiana.

This was an indictment for conspiracy under thesixth section of the act of May 30, 1870, known asthe Enforcement Act (16 Stat. 140), and consistedof thirty-two counts.

The first count was for banding together, with in-tent ‘unlawfully and feloniously to injure, oppress,threaten, and intimidate’ two citizens of the UnitedStates, ‘of African descent and persons of color,’‘with the unlawful and felonious intent thereby’them ‘to hinder and prevent in their respective free*545 exercise and enjoyment of their lawful rightand privilege to peaceably assemble together witheach other and with other citizens of the saidUnited States for a peaceable and lawful purpose.’

The second avers an intent to hinder and preventthe exercise by the same persons of the ‘right tokeep and bear arms for a lawful purpose.’

The third avers an intent to deprive the same per-sons ‘of their respective several lives and liberty ofperson, without due process of law.’

The fourth avers an intent to deprive the same per-sons of the ‘free exercise and enjoyment of theright and privilege to the full and equal benefit ofall laws and proceedings for the security of personsand property’ enjoyed by white citizens.

The fifth avers an intent to hinder and prevent thesame persons ‘in the exercise and enjoyment of therights, privileges, immunities, and protection gran-

ted and secured to them respectively as citizens ofthe said United States, and as citizens of the saidState of Louisiana, by reason of and for and on ac-count of the race and color’ of the said persons.

The sixth avers an intent to hinder and prevent thesame persons in ‘the free exercise and enjoyment ofthe several and respective right and privilege tovote at any election to be thereafter by law had andheld by the people in and of the said State ofLouisiana.’

The seventh avers an intent ‘to put in great fear ofbodily harm, injure, and oppress' the same persons,‘because and for the reason’ that, having the rightto vote, they had voted.

The eighth avers an intent ‘to prevent and hinder’the same persons ‘in their several and respectivefree exercise and enjoyment of every, each, all, andsingular and several rights and privileges grantedand secured’ to them ‘by the constitution and lawsof the United States.’

The next eight counts are a repetition of the firsteight, except that, instead of the words ‘band to-gether,’ the words ‘combine, conspire, and confed-erate together’ are used. Three of the defendantswere found guilty under the first sixteen counts,and not guilty under the remaining counts.*546

**2 The parties thus convicted moved in arrest ofjudgment on the following grounds:--

1. Because the matters and things set forth andcharged in the several counts, one to sixteen inclus-ive, do not constitute offences against the laws ofthe United States, and do not come within the pur-view, true intent, and meaning of the act of Con-gress, approved 31st May, 1870, entitled ‘An Act toenforce the right of citizens of the United States,’&c.

2. Because the matters and things in the said indict-ment set forth and charged do not constitute of-

FOR EDUCATIONAL USE ONLY 92 U.S. 542, 2 Otto 542, 1875 WL 17550 (U.S.La.), 23 L.Ed. 588(Cite as: 92 U.S. 542, 1875 WL 17550 (U.S.La.))

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

fences cognizable in teh Circuit Court, and do notcome within its power and jurisdiction.

3. Because the offences created by the sixth sectionof the act of Congress referred to, and upon whichsection the aforesaid sixteen counts are based, arenot constitutionally within the jurisdiction of thecourts of the United States, and because the mattersand things therein referred to are judicially cogniz-able by State tribunals only, and legislative actionthereon is among the constitutionally reservedrights of the several States.

4. Because the said act, in so far as it creates of-fences and imposes penalties, is in violation of theConstitution of the United States, and an infringe-ment of the rights of the several States and thepeople.

5. Because the eighth and sixteenth counts of theindictment are too vague, general, insufficient, anduncertain, to afford the accused proper notice toplead and prepare their defence, and set forth nospecific offence under the law.

6. Because the verdict of the jury against the de-fendants is not warranted or supported by law.

On this motion the opinions of the judges were di-vided, that of the presiding judge being that the sev-eral counts in question are not sufficient in law, anddo not contain charges of criminal matter indictableunder the laws of the United States; and that themotion in arrest of judgment should be granted. Thecase 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 cit-izens of the United States, otherwise qualified, shallbe allowed to vote at all elections, without distinc-tion of race, color, or previous servitude.*547

Sect. 2 provides, that, if by the law of any State orTerritory a prerequisite to voting is necessary, equalopportunity for it shall be given to all, without dis-tinction, &c.; and any person charged with the dutyof furnishing the prerequisite, who refuses or know-

ingly omits to give full effect to this section, shallbe guilty of misdemeanor.

Sect. 3 provides, that an offer of performance, in re-spect to the prerequisite, when proved by affidavitof the claimant, shall be equivalent to performance;and any judge or inspector of election who refusesto accept it shall be guilty, &c.

Sect. 4 provides, that any person who, by force,bribery, threats, intimidation, or other unlawfulmeans, hinders, delays, prevents, or obstructs anycitizen from qualifying himself to vote, or com-bines with others to do so, shall be guilty, &c.

**3 Sect. 5 provides, that any person who prevents,hinders, controls, or intimidates any person fromexercising the right of suffrage, to whom it is se-cured by the fifteenth amendment, or attempts to doso, by bribery or threats of violence, or deprivationof property or employment, shall be guilty, &c.

The sixth section is as follows:--

‘That if two or more persons shall band or conspiretogether, or go in disguise upon the public highway,or upon the premises of another, with intent to viol-ate any provisions of this act, or to injure, oppress,threaten, or intimidate any citizen with intent toprevent or hinder his free exercise and enjoymentof any right or privilege granted or secured to himby the constitution or laws of the United States, orbecause of his having exercised the same, such per-sons shall be held guilty of felony, and, on convic-tion 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 tenyears; and shall, moreover, be thereafter ineligibleto, and disabled from holding, any office or placeof honor, profit, or trust created by the constitutionor laws of the United States.’

West Headnotes

Civil Rights 78 1027

78 Civil Rights



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78I Rights Protected and Discrimination Prohib-ited in General

78k1026 Rights Protected78k1027 k. In general. Most Cited Cases

(Formerly 78k108.1, 78k1)The government of the United States, although it is,within the scope of its powers, supreme and beyondthe states, can neither grant nor secure to its cit-izens rights or privileges which are not expressly orby implication placed under its jurisdiction. All thatcannot be so granted or secured are left to the ex-clusive protection of the states.

Conspiracy 91 29

91 Conspiracy91II Criminal Responsibility

91II(A) Offenses91k29 k. Conspiracy to injure in person or

reputation. Most Cited Cases

Conspiracy 91 29.5(2)


91II(A) Offenses91k29.5 Conspiracy Against Exercise of

Civil Rights91k29.5(2) k. Rights or privileges in-

volved. Most Cited Cases(Formerly 91k29.6)

To bring a case within the operation of the act of1870, known as the “Enforcement Law,” it must ap-pear that the right the enjoyment of which the con-spirators intended to hinder or prevent was onegranted by the constitution or laws of the UnitedStates.

Aliens, Immigration, and Citizenship 24 653

24 Aliens, Immigration, and Citizenship24VIII Citizenship and Naturalization

24VIII(A) Citizenship24k652 Who Are Citizens

24k653 k. In general. Most CitedCases

(Formerly 77k2 Citizens)Citizens are members of the political community towhich they belong. They are the people who com-pose the community, and who in their associatedcapacity have established or submitted themselvesto the dominion of a government for the promotionof their general welfare, and the protection of theirindividual as well as their collective rights.

Aliens, Immigration, and Citizenship 24 678

24 Aliens, Immigration, and Citizenship24VIII Citizenship and Naturalization

24VIII(A) Citizenship24k678 k. Citizens of United States and of

the several states. Most Cited Cases(Formerly 77k11 Citizens)

There is in our political system a government ofeach of the several states, and a government of theUnited States. Each is distinct from the others, andhas citizens of its own, who owe it allegiance, andwhose rights, within its jurisdiction, it must protect.The same person may be at the same time a citizenof the United States and a citizen of a state; but hisrights of citizenship under one of these govern-ments will be different from those he has under theother.


78 Civil Rights78I Rights Protected and Discrimination Prohib-

ited in General78k1007 Bases of Discrimination and

Classes Protected78k1009 k. Race, color, ethnicity, or na-

tional origin. Most Cited Cases(Formerly 78k104.2, 78k111, 78k2)


78 Civil Rights78I Rights Protected and Discrimination Prohib-

ited in General78k1007 Bases of Discrimination and

Classes Protected



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78k1015 k. Other particular bases orclasses. Most Cited Cases

(Formerly 78k104.1, 78k111, 78k2)The Civil Rights Act of April 9, 1866, 14 Stat. 27,is intended for protection of citizens of the UnitedStates in enjoyment of certain rights without dis-crimination on account of race, color, or previouscondition of servitude.

Conspiracy 91 43(8)


91II(B) Prosecution91k43 Indictment or Information

91k43(8) k. Conspiracy to extortmoney or against exercise of civil rights. MostCited CasesAn indictment for conspiracy under the act of May31, 1870, 16 Stat. 141, known as the “EnforcementAct,” charging defendant with an intent to hindercitizens of the United States of African descent inthe free exercise of the immunities and protectiongranted to such citizens, because they were ofAfrican descent, and with intent to hinder them inthe exercise of the rights and privileges granted un-der the Constitution and laws of the United States,which did not specify any particular right the enjoy-ment of which the conspirators intended to hinderor prevent, is too vague.

States 360 5(1)

360 States360I Political Status and Relations

360I(A) In General360k5 Relations Among States Under

Constitution of United States360k5(1) k. In general. Most Cited

Cases(Formerly 360k5)

Under Const. art. 4, § 4, when a state cannot protectitself against domestic violence, the other statesmay, upon the call of the executive when the Legis-lature cannot be convened, lend their assistance forthat purpose.

United States 393 5

393 United States393I Government in General

393k5 k. Governmental powers in general.Most Cited CasesThe government of the United States is one of del-egated powers alone and its authority is defined andlimited by the constitution and all powers not gran-ted to it by the constitution are reserved to thestates or the people.

United States 393 5

393 United States393I Government in General

393k5 k. Governmental powers in general.Most Cited CasesOnly such existing rights were committed by thepeople to the protection of Congress as came withinthe general scope of authority granted to the federalgovernment.

Criminal Law 110 4

110 Criminal Law110I Nature and Elements of Crime

110k2 Power to Define and Punish Crime110k4 k. United States. Most Cited Cases

The 5th, 6th, and 8th amendments to the UnitedStates constitution, U.S.C.A., apply only to the fed-eral government, and not to that of the states.

Criminal Law 110 84(1)

110 Criminal Law110VIII Jurisdiction

110k84 Constitutional and Statutory Provi-sions

110k84(1) k. In general. Most Cited CasesThe United States does not have power to punishfor conspiracy or false imprisonment or murderwithin a state.

Elections 144 11

144 Elections







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144I Right of Suffrage and Regulation Thereofin General

144k11 k. Operation of provisions of Consti-tution of United States. Most Cited CasesThe constitution of the United States does not con-fer right of suffrage upon any one as the UnitedStates has no voters of their own creation in thestate.

Constitutional Law 92 1482

92 Constitutional Law92XVII Political Rights and Discrimination

92k1482 k. Fifteenth Amendment. MostCited Cases

(Formerly 144k11)The Fifteenth Amendment to the Federal Constitu-tion, U.S.C.A.Const., has invested the citizens ofthe United States with a right of exemption fromdiscrimination in the exercise of the elective fran-chise on account of race, color or previous condi-tion of servitude.


92 Constitutional Law92XVII Political Rights and Discrimination

92k1482 k. Fifteenth Amendment. MostCited Cases

Elections 144 18

144 Elections144I Right of Suffrage and Regulation Thereof

in General144k18 k. Power to prescribe qualifications.

Most Cited CasesThe right of the several states to prescribe the quali-fications of electors therein is not affected by thefifteenth amendment to the federal constitution oth-er than to prohibit discrimination against personspossessing the qualifications required by law on ac-count of their race, color, or previous condition ofservitude.

Indictment and Information 210 59

210 Indictment and Information210V Requisites and Sufficiency of Accusation

210k58 Subject-Matter of Allegations210k59 k. Designation of offense or grade

or degree thereof. Most Cited CasesObject of an indictment is to furnish accused withsuch a description of the charge against him as willenable him to make his defense and avail him of hisconviction or acquittal for protection against furtherprosecution for the same offense and to inform thecourt of the facts alleged so that it may decidewhether they are sufficient in law to support a con-viction if one should be had.



210k58 Subject-Matter of Allegations210k59 k. Designation of offense or grade

or degree thereof. Most Cited CasesWhether a particular crime is one punishable by im-prisonment in a state prison is a question of law andthe accused has right to have specification of thecharge against him in this respect in order that hemay decide whether he should present his defenseby motion to quash, demurrer or plea; and the court,that it may determine whether the facts will sustainthe indictment.



210k70 k. Directness and positiveness. MostCited CasesEvery essential element of an indictment must becharged positively and not inferentially.

Indictment and Information 210 71.4(3)


210k71 Certainty and Particularity210k71.4 Particular Allegations and Of-

fenses







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210k71.4(3) k. Conspiracy. Most CitedCases

(Formerly 210k71)An indictment charging a conspiracy to prevent theenjoyment by certain citizens of “every, each, all,and singular” the rights granted them by the consti-tution is bad for failure to specify the particularright or rights interfered with.

Indictment and Information 210 71.1


210k71 Certainty and Particularity210k71.1 k. In general. Most Cited Cases

(Formerly 210k71)An indictment must set forth with clearness andcertainty, sufficient to apprise the accused of thecrime wherewith he stands charged, every ingredi-ent of which the offense is composed.

Indictment and Information 210 71.2(2)


210k71 Certainty and Particularity210k71.2 Purpose of Requirement and

Test of Compliance210k71.2(2) k. Informing accused of

nature of charge. Most Cited Cases(Formerly 210k71)

Under U.S.C.A.Const. Amend. 6, the accused incriminal case prosecuted under laws of the UnitedStates has right to be informed of the nature andcause of the accusation, and the indictment must setforth the offense “with clearness and all necessarycertainty, to apprise the accused of the crime ofwhich he stands charged.”

Indictment and Information 210 71.1


210k71 Certainty and Particularity210k71.1 k. In general. Most Cited Cases

(Formerly 210k71)

A crime is made up of acts and intents and theymust be set forth in the indictment with reasonableparticularity of time, place and circumstance.

Indictment and Information 210 75(1)


210k74 Language and Form of Allegations210k75 In General

210k75(1) k. In general. Most CitedCasesWhere the definition of an offense whether it iscommon law or statutory includes generic terms, anindictment is insufficient if it charges the offense inthe same generic terms as in its definition, and in-dictment must state the species and must descend toparticulars.



210k92 Act or Omission Constituting Of-fense

210k96 k. Circumstances making act oromission criminal. Most Cited CasesAn indictment charging a conspiracy to prevent cer-tain persons of color from the exercise of rightsguarantied by the constitution, but not charging thatsuch prevention was because of race, color, or pre-vious condition, states no offense.



210k92 Act or Omission Constituting Of-fense

210k96 k. Circumstances making act oromission criminal. Most Cited CasesSince congress has power to secure to the peoplethe right of assembly for the discussion of nationalmatters only, an indictment that charges a conspir-acy to prevent lawful assemblage, generally, doesnot charge an offense under the laws of the United










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States.

Larceny 234 30(1)

234 Larceny234II Prosecution and Punishment

234II(A) Indictment and Information234k30 Description of Property

234k30(1) k. In general. Most CitedCasesAn indictment for stealing goods and chattels whichdoes not specify with some degree of certainty thearticles stolen would be bad since accused must beadvised of the essential particulars of the crimeagainst him, and the court must be able to decidewhether the property taken was such as was subjectof larceny.


92 Constitutional Law92XXVI Equal Protection

92XXVI(A) In General92XXVI(A)1 In General

92k3000 k. In general. Most CitedCases

(Formerly 92k27)The fourteenth amendment, prohibiting states fromdenying to any person the equal protection of thelaws, did not add anything to the rights which onecitizen has under the constitution against another.The only obligation resting upon the United Statesis to see that the state does not deny this right; andthe power of the national government is limited tothe enforcement of this guaranty.


92 Constitutional Law92XIV Right of Assembly

92k1430 k. In general. Most Cited Cases(Formerly 92k91)


92 Constitutional Law92XV Right to Petition for Redress of Griev-

ances92k1435 k. In general. Most Cited Cases

(Formerly 92k91)The right of the people peaceably to assemble forlawful purposes, with the obligation on the part ofthe states to afford it protection, existed long beforethe adoption of the constitution. The first amend-ment to the constitution, prohibiting congress fromabridging the right to assemble and petition, wasnot intended to limit the action of the state govern-ments in respect to their own citizens, but to oper-ate upon the national government alone. It left theauthority of the states unimpaired, added nothing tothe already existing powers of the United States,and guarantied the continuance of the right onlyagainst congressional interference. The people, fortheir protection in the enjoyment of it, must, there-fore, look to the states, where the power for thatpurpose was originally placed. The right of thepeople peaceably to assemble for the purpose of pe-titioning congress for a redress of grievances, or foranything else connected with the powers or dutiesof the national government, is an attribute of na-tional citizenship, and, as such, under the protectionof and guarantied by the United States. The veryidea of a government republican in form impliesthat right, and an invasion of it presents a casewithin the sovereignty of the United States.







(Formerly 92k91)The first amendment to the constitution U.S.C.A.,prohibiting Congress from abridging right of peopleto assemble to petition government for redress of











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grievances was not intended to limit the powers ofthe state government in respect to their own citizensbut to operate upon the national government alone.







(Formerly 92k91)The right of the people of the United States peace-ably to assemble for purpose of petitioning Con-gress for redress of grievances or for anything elseconnected with powers or duties of the federal gov-ernment is an attribute of national citizenship, andas such is under the protection of and guaranteed bythe United States.




The right of people peaceably to assemble for law-ful purposes is one of the attributes of citizenshipunder a free government.


92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3876 k. Arbitrariness. Most CitedCases

(Formerly 92k254(4))



92XXVII(D) Applicability to Governmentalor Private Conduct; State Action

92k3941 k. Non-government entities andindividuals, actions of. Most Cited Cases

(Formerly 92k254(4))The Fourteenth Amendment to the Federal Consti-tution, U.S.C.A., providing that state shall not de-prive any person of life, liberty or property withoutdue process of law adds nothing to rights of one cit-izen as against another and merely secures indi-vidual from the arbitrary exercise of the powers ofgovernment, unrestrained by the established prin-ciples of private rights and distributive justice.



92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3870 k. Fundamental rights. MostCited Cases

(Formerly 92k274(1))



92XXVII(D) Applicability to Governmentalor Private Conduct; State Action

92k3941 k. Non-government entities andindividuals, actions of. Most Cited Cases

(Formerly 92k274(1))The fourteenth amendment, prohibiting states fromdepriving any person of life, liberty, or propertywithout due process of law, adds nothing to theright of one citizen against another, but simply fur-nishes a guaranty against any encroachment by thestate upon the fundamental rights which belong toevery citizen.

















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92 Constitutional Law92VII Constitutional Rights in General

92VII(B) Particular Constitutional Rights92k1067 k. Bill of Rights or Declaration

of Rights. Most Cited Cases(Formerly 92k12)

The first eight amendments were not intended tolimit the powers of the state in respect of their owncitizens, but to operate on the national governmentonly.

Weapons 406 3

406 Weapons406k3 k. Constitutional, statutory, and local reg-

ulations. Most Cited Cases(Formerly 92k12)

The second amendment operates as a limitation onthe powers of the federal government only, anddoes not affect those of the states.This case was argued at the October Term, 1874, byMr. Attorney-General Williams and Mr. Solicitor-General Phillips for the plaintiff in error; and byMr. Reverdy Johnson, Mr. David Dudley Field, Mr.Philip Phillips, and Mr. R. H. Marr for the defend-ants in error.

1. Citizens are the members of the political com-munity to which they belong. They are the peoplewho compose the community, and who, in their as-sociated capacity, have established or submittedthemselves to the dominion of a government for thepromotion of their general welfare and the protec-tion of their individual as well as their collectiverights. The duty of a government to afford protec-tion is limited always by the power it possesses forthat purpose.

2. There is in our political system a government ofeach of the several States, and a government of theUnited States. Each is distinct from the others, andhas citizens of its own, who owe it allegiance, andwhose rights, within its jurisdiction, it must protect.The same person may be at the same time a citizenof the United States and a citizen of a State; but his

rights of citizenship under one of these govern-ments will be different from those he has under theother.

3. The government of the United States, although itis, within the scope of its powers, supreme and bey-ond the States, can neither grant nor secure to itscitizens rights or privileges which are not expresslyor by implication placed under its jurisdiction. Allthat cannot be so granted or secured are left to theexclusive protection of the States.

4. The right of the people peaceably to assemble forlawful purposes, with the obligation on the part ofthe States to afford it protection, existed long be-fore the adoption of the Constitution. The firstamendment to the Constitution, prohibiting Con-gress from abridging the right to assemble and peti-tion, was not intended to limit the action of theState governments in respect to their own citizens,but to operate upon the national government alone.It left the authority of the States unimpaired, addednothing to the already existing powers of the UnitedStates, and guaranteed the continuance of the rightonly against Congressional interference. Thepeople, for their protection in the enjoyment of it,must, therefore, look to the States, where the powerfor that purpose was originally placed.

5. The right of the people peaceably to assemble,for the purpose of petitioning Congress for a re-dress of grievances, or for any thing else connectedwith the powers or duties of the national govern-ment, is an attribute of national citizenship, and, assuch, under the protection of and guaranteed by theUnited States. The very idea of a government re-publican in form implies that right, and an invasionof its presents a case within the sovereignty of theUnited States.

6. The right to bear arms is not granted by the Con-stitution; neither is it in any manner dependentupon that instrument for its existence. The secondamendment means no more than that it shall not beinfringed by Congress, and has no other effect thanto restrict the powers of the national government.




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7. Sovereignty, for the protection of the rights oflife and personal liberty within the respectiveStates, rests alone with the States.

8. The fourteenth amendment prohibits a State fromdepriving any person of life, liberty, or property,without due process of law, and from denying to*543 any person within its jurisdiction the equalprotection of the laws; but it adds nothing to therights of one citizen as against another. It simplyfurnishes an additional guaranty against any en-croachment by the States upon the fundamentalrights which belong to every citizen as a member ofsociety. The duty of protecting all its citizens in theenjoyment of an equality of rights was originallyassumed by the States, and it still remains there.The only obligation resting upon the United Statesis to see that the States do not deny the right. Thisthe amendment guarantees, but no more. The powerof the national government is limited to the en-forcement of this guaranty.

9. In Minor v. Happersett, 21 Wall. 162, this courtdecided that the Constitution of the United Stateshas not conferred the right of suffrage upon anyone, and that the United States have no voters oftheir own creation in the States. In United States v.Reese et al., supra, p. 214, it held that the fifteenthamendment has invested the citizens of the UnitedStates with a new constitutional right, which is, ex-emption from discrimination in the exercise of theelective franchise on account of race, color, or pre-vious condition of servitude. The right to vote inthe States comes from the States; but the right ofexemption from the prohibited discriminationcomes from the United States. The first has notbeen granted or secured by the Constitution of theUnited States, but the last has been.

10. The counts of an indictment which charge thedefendants with having banded and conspired to in-jure, oppress, threaten, and intimidate citizens ofthe United States, of African descent, thereinnamed; and which in substance respectively allegethat the defendants intended thereby to hinder andprevent such citizens in the free exercise and enjoy-

ment of rights and privileges granted and secured tothem in common with other good citizens by theconstitution and laws of the United States; to hinderand prevent them in the free exercise of their rightpeacefully to assemble for lawful purposes; preventand hinder them from bearing arms for lawful pur-poses; deprive them of their respective several livesand liberty of person without due process of law;prevent and hinder them in the free exercise and en-joyment of their several right to the full and equalbenefit of the law; prevent and hinder them in thefree exercise and enjoyment of their several and re-spective right to vote at any election to be thereafterby law had and held by the people in and of theState of Louisiana, or to put them in great fear ofbodily harm, and to injure and oppress them, be-cause, being and having been in all things qualified,they had voted at an election theretofore had andheld according to law by the people of saidState,-do not present a case within the sixth sectionof the Enforcement Act of May 31, 1870 (16 Stat.141). To bring a case within the operation of thatstatute, it must appear that the right the enjoymentof which the conspirators intended to hinder or pre-vent was one granted or secured by the constitutionor laws of the United States. If it does not so ap-pear, the alleged offence in not indictable under anyact of Congress.

11. The counts of an indictment which, in generallanguage, charge the defendants with an intent tohinder and prevent citizens of the United States, ofAfrican descent, therein named, in the free exerciseand enjoyment of the rights, privileges, immunities,and protection, granted and secured to them *544respectively as citizens of the United States, and ofthe State of Louisiana, because they were personsof African descent, and with the intent to hinderand prevent them in the several and free exerciseand enjoyment of every, each, all, and singular theseveral rights and privileges granted and secured tothem by the constitution and laws of the UnitedStates, do not specify any particular right the enjoy-ment of which the conspirators intended to hinderor prevent, are too vague and general, lack the cer-



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tainty and precision required by the established ruleof criminal pleading, and are therefore not good andsufficient in law.

12. In criminal cases, prosecuted under the laws ofthe United States, the accused has the constitutionalright ‘to be informed of the nature and cause of theaccusation.’ The indictment must set forth the of-fence with clearness and all necessary certainty, toapprise the accused of the crime with which hestands charged; and every ingredient of which theoffence is composed must be accurately and clearlyalleged. It is an elementary principle of criminalpleading, that, where the definition of an offence,whether it be at common law or by statute, includesgeneric terms, it is not sufficient that the indictmentshall charge the offence in the same generic termsas in the definition, but it must state the species,-itmust descend to particulars. The object of the in-dictment is,-first, to furnish the accused with such adescription of the charge against him as will enablehim to make his defence, and avail himself of hisconviction or acquittal for protection against a fur-ther prosecution for the same cause; and, second, toinform the court of the facts alleged, so that it maydecide whether they are sufficient in law to supporta conviction, if one should be had. For this, factsare to be stated, not conclusions of law alone. Acrime is made up of acts and intent; and these mustbe set forth in the indictment, with reasonable par-ticularity of time, place, and circumstances.

13. By the act under which this indictment wasfound, the crime is made to consist in the unlawfulcombination with an intent to prevent the enjoy-ment of any right granted or secured by the Consti-tution, &c. All rights are not so granted or secured.Whether one is so or not is a question of law, to bedecided by the court. The indictment should, there-fore, state the particulars, to inform the court aswell as the accused. It must appear from the indict-ment that the acts charged will, if proved, support aconviction for the offence alleged.MR. CHIEF JUSTICE WAITE delivered the opin-ion of the court.

This case comes here with a certificate by thejudges of the Circuit Court for the District ofLouisiana that they were divided in opinion upon aquestion which occurred at the hearing. It presentsfor our consideration an indictment containing six-teen counts, divided into two series of eight countseach, based upon sect. 6 of the Enforcement Act ofMay 31, 1870. That section is as follows:--

‘That if two or more persons shall band or conspiretogether, or go in disguise upon the public highway,or upon the premises of another, with intent to viol-ate any provision of this act, or to injure, oppress,threaten, or intimidate any citizen, with intent toprevent or hinder his free exercise and enjoymentof any right or privilege granted or secured to himby the constitution or laws of the United States, orbecause of his having exercised the same, such per-sons shall be held guilty of felony, and, on convic-tion 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 tenyears; and shall, moreover, be thereafter ineligibleto, and disabled from holding, any office or placeof honor, profit, or trust created by the constitutionor laws of the United States.’ 16 Stat. 141.

The question certified arose upon a motion in arrestof judgment after a verdict of guilty generally uponthe whole sixteen counts, and is stated to be, wheth-er ‘the said sixteen counts of said indictment areseverally good and sufficient in law, and containcharges of criminal matter indictable under the lawsof the United States.’

The general charge in the first eight counts is thatof ‘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 andpersons of color, with the intent thereby to hinderand prevent them in their free exercise and enjoy-ment of rights and privileges ‘granted and secured’to them ‘in common with all other good citizens ofthe United States by the constitution and laws ofthe United States.’



The offences provided for by the statute in questiondo not consist in the mere ‘banding’ or ‘conspiring’of two or *549 more persons together, but in theirbanding or conspiring with the intent, or for any ofthe purposes, specified. To bring this case under theoperation of the statute, therefore, it must appearthat the right, the enjoyment of which the conspirat-ors intended to hinder or prevent, was one grantedor secured by the constitution or laws of the UnitedStates. If it does not so appear, the criminal mattercharged has not been made indictable by any act ofCongress.

We have in our political system a government ofthe United States and a government of each of theseveral States. Each one of these governments isdistinct from the others, and each has citizens of itsown who owe it allegiance, and whose rights, with-in its jurisdiction, it must protect. The same personmay be at the same time a citizen of the UnitedStates and a citizen of a State, but his rights of cit-izenship under one of these governments will bedifferent from those he has under the other.Slaughter-House Cases, 16 Wall. 74.

Citizens are the members of the political com-munity to which they belong. They are the peoplewho compose the community, and who, in their as-sociated capacity, have established or submittedthemselves to the dominion of a government for thepromotion of their general welfare and the protec-tion of their individual as well as their collectiverights. In the formation of a government, the peoplemay confer upon it such powers as they choose.The government, when so formed, may, and whencalled upon should, exercise all the powers it hasfor the protection of the rights of its citizens and thepeople within its jurisdiction; but it can exercise noother. The duty of a government to afford protec-tion is limited always by the power it possesses forthat purpose.

Experience made the fact known to the people ofthe United States that they required a national gov-ernment for national purposes. The separate gov-ernments of the separate States, bound together by

the articles of confederation alone, were not suffi-cient for the promotion of the general welfare of thepeople in respect to foreign nations, or for theircomplete protection as citizens of the confederatedStates. For this reason, the people of the UnitedStates, ‘in order to form a more perfect union, es-tablish justice, insure domestic tranquillity, providefor *550 the common defence, promote the generalwelfare, and secure the blessings of liberty’ tothemselves and their posterity (Const. Preamble),ordained and established the government of theUnited States, and defined its powers by a constitu-tion, which they adopted as its fundamental law,and made its rule of action.

The government thus established and defined is tosome extent a government of the States in theirpolitical capacity. It is also, for certain purposes, agovernment of the pepole. Its powers are limited innumber, but not in degree. Within the scope of itspowers, as enumerated and defined, it is supremeand above the States; but beyond, it has no exist-ence. It was erected for special purposes, and en-dowed with all the powers necessary for its ownpreservation and the accomplishment of the ends itspeople had in view. It can neither grant nor secureto its citizens any right or privilege not expressly orby implication placed under its jurisdiction.

The people of the United States resident within anyState are subject to two governments: one State,and the other National; but there need be no con-flict between the two. The powers which one pos-sesses, the other does not. They are established fordifferent purposes, and have separate jurisdictions.Together they make one whole, and furnish thepeople of the United States with a complete govern-ment, ample for the protection of all their rights athome and abroad. True, it may sometimes happenthat a person is amenable to both jurisdictions forone and the same act. Thus, if a marshal of theUnited States is unlawfully resisted while executingthe process of the courts within a State, and the res-istance 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 ofpeace, in the assault. So, too, if one passes counter-feited coin of the United States within a State, itmay be an offence against the United States and theState: the United States, because it discredits thecoin; and the State, because of the fraud upon himto whom it is passed. This does not, however, ne-cessarily imply that the two governments possesspowers in common, or bring them into conflict witheach other. It is the natural consequence of a cit-izenship *551 which owes allegiance to two sover-eignties, and claims protection from both. The cit-izen cannot complain, because he has voluntarilysubmitted himself to such a form of government.He owes allegiance to the two departments, so tospeak, and within their respective spheres must paythe penalties which each exacts for disobedience toits laws. In return, he can demand protection fromeach within its own jurisdiction.

The government of the United States is one of del-egated powers alone. Its authority is defined andlimited by the Constitution. All powers not grantedto it by that instrument are reserved to the States orthe people. No rights can be acquired under theconstitution or laws of the United States, exceptsuch as the government of the United States has theauthority to grant or secure. All that cannot be sogranted or secured are left under the protection ofthe States.

We now proceed to an examination of the indict-ment, to ascertain whether the several rights, whichit is alleged the defendants intended to interferewith, are such as had been in law and in fact gran-ted or secured by the constitution or laws of theUnited States.

The first and ninth counts state the intent of the de-fendants to have been to hinder and prevent the cit-izens named in the free exercise and enjoyment oftheir ‘lawful right and privilege to peaceably as-semble together with each other and with other cit-izens of the United States for a peaceful and lawfulpurpose.’ The right of the people peaceably to as-semble for lawful purposes existed long before the

adoption of the Constitution of the United States. Infact, it is, and always has been, one of the attributesof citizenship under a free government. It ‘derivesits source,’ to use the language of Chief JusticeMarshall, in Gibbons v. Ogden, 9 Wheat. 211,‘from those laws whose authority is acknowledgedby civilized man throughout the world.’ It is foundwherever civilization exists. It was not, therefore, aright granted to the people by the Constitution. Thegovernment of the United States when establishedfound it in existence, with the obligation on the partof the States to afford it protection. As no directpower over it was granted to Congress, it remains,according to the ruling in Gibbons v. Ogden, id.203, subject to State jurisdiction. *552 Only suchexisting rights were committed by the people to theprotection of Congress as came within the generalscope of the authority granted to the national gov-ernment.

The first amendment to the Constitution prohibitsCongress from abridging ‘the right of the people toassemble and to petition the government for a re-dress of grievances.’ This, like the other amend-ments proposed and adopted at the same time, wasnot intended to limit the powers of the State gov-ernments in respect to their own citizens, but to op-erate upon the National government alone. Barronv. The City of Baltimore, 7 Pet. 250; Lessee of Liv-ingston 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 toolate to question the correctness of this construction.As was said by the late Chief Justice, in Twitchellv. The Commonwealth, 7 Wall. 325, ‘the scope andapplication of these amendments are no longer sub-jects of discussion here.’ They left the authority ofthe States just where they found it, and added noth-ing to the already existing powers of the UnitedStates.

The particular amendment now under considerationassumes the existence of the right of the people to

















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assemble for lawful purposes, and protects itagainst encroachment by Congress. The right wasnot created by the amendment; neither was its con-tinuance guaranteed, except as against congression-al interference. For their protection in its enjoy-ment, therefore, the people must look to the States.The power for that purpose was originally placedthere, and it has never been surrendered to theUnited States.

The right of the people peaceably to assemble forthe purpose of petitioning Congress for a redress ofgrievances, or for any thing else connected with thepowers or the duties of the national government, isan attribute of national citizenship, and, as such,under the protection of, and guaranteed by, theUnited States. The very idea of a government, re-publican in form, implies a right on the part of itscitizens to meet peaceably for consultation in re-spect to public affairs and to petition for a redressof grievances. If it had been alleged in *553 thesecounts that the object of the defendants was to pre-vent a meeting for such a purpose, the case wouldhave been within the statute, and within the scopeof the sovereignty of the United States. Such,however, is not the case. The offence, as stated inthe indictment, will be made out, if it be shown thatthe object of the conspiracy was to prevent a meet-ing for any lawful purpose whatever.

The second and tenth counts are equally defective.The right there specified is that of ‘bearing arms fora lawful purpose.’ This is not a right granted by theConstitution. Neither is it in any manner dependentupon that instrument for its existence. The secondamendment declares that it shall not be infringed;but this, as has been seen, means no more than thatit shall not be infringed by Congress. This is one ofthe amendments that has no other effect than to re-strict the powers of the national government, leav-ing the people to look for their protection againstany violation by their fellow-citizens of the rights itrecognizes, to what is called, in The City of NewYork v. Miln, 11 Pet. 139, the ‘powers which relateto merely municipal legislation, or what was, per-

haps, more properly called internal police,’ ‘notsurrendered or restrained’ by the Constituton of theUnited States.

The third and eleventh counts are even more objec-tionable. They charge the intent to have been to de-prive the citizens named, they being in Louisiana,‘of their respective several lives and liberty of per-son without due process of law.’ This is nothingelse than alleging a conspiracy to falsely imprisonor murder citizens of the United States, being with-in the territorial jurisdiction of the State of Louisi-ana. The rights of life and personal liberty are nat-ural rights of man. ‘To secure these rights,’ says theDeclaration of Independence, ‘governments are in-stituted among men, deriving their just powers fromthe consent of the governed.’ The very highest dutyof the States, when they entered into the Union un-der the Constitution, was to protect all personswithin their boundaries in the enjoyment of these‘unalienable rights with which they were endowedby their Creator.’ Sovereignty, for this purpose,rests alone with the States. It is no more the duty orwithin the power of the United States to punish fora conspiracy *554 to falsely imprison or murderwithin a State, than it would be to punish for falseimprisonment or murder itself.

The fourteenth amendment prohibits a State fromdepriving any person of life, liberty, or property,without due process of law; but this adds nothing tothe rights of one citizen as against another. Itsimply furnishes an additional guaranty against anyencroachment by the States upon the fundamentalrights which belong to every citizen as a member ofsociety. As was said by Mr. Justice Johnson, inBank of Columbia v. Okely, 4 Wheat. 244, it se-cures ‘the individual from the arbitrary exercise ofthe powers of government, unrestrained by the es-tablished principles of private rights and dis-tributive justice.’ These counts in the indictment donot call for the exercise of any of the powers con-ferred by this provision in the amendment.

The fourth and twelfth counts charge the intent tohave 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 severalright and privilege to the full and equal benefit ofall laws and proceedings, then and there, before thattime, enacted or ordained by the said State ofLouisiana and by the United States; and then andthere, at that time, being in force in the said Stateand District of Louisiana aforesaid, for the securityof their respective persons and property, then andthere, at that time enjoyed at and within said Stateand District of Louisiana by white persons, beingcitizens of said State of Louisiana and the UnitedStates, for the protection of the persons and prop-erty of said white citizens.’ There is no allegationthat this was done because of the race or color ofthe persons conspired against. When stripped of itsverbiage, the case as presented amounts to nothingmore than that the defendants conspired to preventcertain citizens of the United States, being withinthe State of Louisiana, from enjoying the equal pro-tection of the laws of the State and of the UnitedStates.

The fourteenth amendment prohibits a State fromdenying to any person within its jurisdiction theequal protection of the laws; but this provision doesnot, any more than the one which precedes it, andwhich we have just considered, add any thing *555to the rights which one citizen has under the Con-stitution against another. The equality of the rightsof citizens is a principle of republicanism. Every re-publican government is in duty bound to protect allits citizens in the enjoyment of this principle, ifwithin its power. That duty was originally assumedby the States; and it still remains there. The onlyobligation resting upon the United States is to seethat the States do not deny the right. This theamendment guarantees, but no more. The power ofthe national government is limited to the enforce-ment of this guaranty.

No question arises under the Civil Rights Act ofApril 9, 1866 (14 Stat. 27), which is intended forthe protection of citizens of the United States in theenjoyment of certain rights, without discrimination

on account of race, color, or previous condition ofservitude, because, as has already been stated, it isnowhere alleged in these counts that the wrong con-templated against the rights of these citizens was onaccount of their race or color.

Another objection is made to these counts, that theyare too vague and uncertain. This will be con-sidered hereafter, in connection with the same ob-jection to other counts.

The sixth and fourteenth counts state the intent ofthe defendants to have been to hinder and preventthe citizens named, being of African descent, andcolored, ‘in the free exercise and enjoyment of theirseveral and respective right and privilege to vote atany election to be thereafter by law had and held bythe people in and of the said State of Louisiana, orby the people of and in the parish of Grant afore-said.’ In Minor v. Happersett, 21 Wall. 162, we de-cided that the Constitution of the United States hasnot conferred the right of suffrage upon any one,and that the United States have no voters of theirown creation in the States. In United States v.Reese et al., supra, p. 214, we hold that the fif-teenth amendment has invested the citizens of theUnited States with a new constitutional right, whichis, exemption from discrimination in the exercise ofthe elective franchise on account of race, color, orprevious condition of servitude. From this it ap-pears that the right of suffrage is not a necessary at-tribute of national citizenship; but that exemptionfrom discrimination in the exercise of that right on*556 account of race, &c., is. The right to vote inthe States comes from the States; but the right ofexemption from the prohibited discriminationcomes from the United States. The first has notbeen granted or secured by the Constitution of theUnited States; but the lat has been.

Inasmuch, therefore, as it does not appear in thesecounts that the intent of the defendants was to pre-vent these parties from exercising their right to voteon account of their race, &c., it does not appear thatit was their intent to interfere with any right grantedor secured by the constitution or laws of the United







States. We may suspect that race was the cause ofthe hostility; but it is not so averred. This is materi-al to a description of the substance of the offence,and cannot be supplied by implication. Every thingessential must be charged positively, and not infer-entially. The defect here is not in form, but in sub-stance.

The seventh and fifteenth counts are no better thanthe sixth and fourteenth. The intent here charged isto put the parties named in great fear of bodilyharm, and to injure and oppress them, because, be-ing and having been in all things qualified, they hadvoted ‘at an election before that time had and heldaccording to law by the people of the said State ofLouisiana, in said State, to wit, on the fourth day ofNovember, A.D. 1872, and at divers other electionsby the people of the State, also before that time hadand held according to law.’ There is nothing toshow that the elections voted at were any other thanState elections, or that the conspiracy was formedon account of the race of the parties against whomthe conspirators were to act. The charge as made isreally of nothing more than a conspiracy to commita breach of the peace within a State. Certainly itwill not be claimed that the United States have thepower or are required to do mere police duly in theStates. If a State cannot protect itself against do-mestic violence, the United States may, upon thecall of the executive, when the legislature cannot beconvened, 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, el-eventh, twelfth, fourteenth, *557 and fifteenthcounts do not contain charges of a criminal naturemade indictable under the laws of the United States,and that consequently they are not good and suffi-cient in law. They do not show that it was the intentof the defendants, by their conspiracy, to hinder orprevent the enjoyment of any right granted or se-cured by the Constitution.

We come now to consider the fifth and thirteenth

and the eighth and sixteenth counts, which may bebrought together for that purpose. The intentcharged in the fifth and thirteenth is ‘to hinder andprevent the parties in their respective free exerciseand enjoyment of the rights, privileges, immunities,and protection granted and secured to them respect-ively as citizens of the United States, and as cit-izens of said State of Louisiana,’ ‘for the reasonthat they, . . . being then and there citizens of saidState and of the United States, were persons ofAfrican descent and race, and persons of color, andnot white citizens thereof;’ and in the eighth andsixteenth, to hinder and prevent them ‘in their sev-eral and respective free exercise and enjoyment ofevery, each, all, and singular the several rights andprivileges granted and secured to them by the con-stitution and laws of the United States.’ The samegeneral statement of the rights to be interfered withis found in the fifth and thirteenth counts.

According to the view we take of these counts, thequestion is not whether it is enough, in general, todescribe a statutory offence in the language of thestatute, but whether the offence has here been de-scribed at all. The statute provides for the punish-ment of those who conspire ‘to injure, oppress,threaten, or intimidate any citizen, with intent toprevent or hinder his free exercise and enjoymentof any right or privilege granted or secured to himby 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 preventthese citizens in the free exercise and enjoyment of‘every, each, all, and singular’ the rights grantedthem by the Constitution, &c. There is no specifica-tion of any particular right. The language is broadenough to cover all.

In criminal cases, prosecuted under the laws of theUnited States, the accused has the constitutionalright ‘to be informed *558 of the nature and causeof the accusation.’ Amend. VI. In United States v.Mills, 7 Pet. 142, this was construed to mean, thatthe indictment must set forth the offence ‘withclearness and all necessary certainty, to apprise the





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accused of the crime with which he standscharged;’ and in United States v. Cook, 17 Wall.174, that ‘every ingredient of which the offence iscomposed must be accurately and clearly alleged.’It is an elementary principle of criminal pleading,that where the definition of an offence, whether itbe at common law or by statute, ‘includes genericterms, it is not sufficient that the indictment shallcharge the offence in the same generic terms as inthe definition; but it must state the species,-it mustdescend to particulars. 1 Arch. Cr. Pr. and Pl., 291.The object of the indictment is, first, to furnish theaccused with such a description of the chargeagainst him as will enable him to make his defence,and avail himself of his conviction or acquittal forprotection against a further prosecution for thesame cause; and, second, to inform the court of thefacts alleged, so that it may decide whether they aresufficient in law to support a conviction, if oneshould be had. For this, facts are to be stated, notconclusions of law alone. A crime is made up ofacts and intent; and these must be set forth in theindictment, with reasonable particularity of time,place, and circumstances.

It is a crime to steal goods and chattels; but an in-dictment would be bad that did not specify withsome degree of certainty the articles stolen. This,because the accused must be advised of the essen-tial particulars of the charge against him, and thecourt must be able to decide whether the propertytaken was such as was the subject of larceny. So,too, it is in some States a crime for two or morepersons to conspire to cheat and defraud anotherout of his property; but it has been held that an in-dictment for such an offence must contain allega-tions setting forth the means proposed to be used toaccomplish the purpose. This, because, to makesuch a purpose criminal, the conspiracy must be tocheat and defraud in a mode made criminal by stat-ute; and as all cheating and defrauding has not beenmade criminal, it is necessary for the indictment tostate the means proposed, in order that the court*559 may see that they are in fact illegal. State v.Parker, 43 N. H. 83; State v. Keach, 40 Vt. 118; Al-

derman v. The People, 4 Mich. 414; State v.Roberts, 34 Me. 32. In Maine, it is an offence fortwo or more to conspire with the intent unlawfullyand wickedly to commit any crime punishable byimprisonment in the State prison (State v. Roberts);but we think it will hardly be claimed that an indict-ment would be good under this statute, whichcharges the object of the conspiracy to have been‘unlawfully and wickedly to commit each, every,all, and singular the crimes punishable by imprison-ment in the State prison.’ All crimes are not so pun-ishable. Whether a particular crime be such a one ornot, is a question of law. The accused has, there-fore, the right to have a specification of the chargeagainst him in this respect, in order that he may de-cide whether he should present his defence by mo-tion to quash, demurrer, or plea; and the court, thatit may determine whether the facts will sustain theindictment. So here, the crime is made to consist inthe unlawful combination with an intent to preventthe enjoyment of any right granted or secured bythe Constitution, &c. All rights are not so grantedor secured. Whether one is so or not is a question oflaw, to be decided by the court, not the prosecutor.Therefore, the indictment should state the particu-lars, to inform the court as well as the accused. Itmust be made to appear-that is to say, appears fromthe indictment, without going further-that the actscharged will, if proved, support a conviction for theoffence alleged.

But it is needless to pursue the argument further.The conclusion is irresistible, that these counts aretoo vague and general. They lack the certainty andprecision required by the established rules of crim-inal pleading. It follows that they are not good andsufficient in law. They are so defective that nojudgment of conviction should be pronounced uponthem.

The order of the Circuit Court arresting the judg-ment upon the verdict is, therefore, affirmed; andthe cause remanded, with instructions to dischargethe defendants.

MR. JUSTICE CLIFFORD dissenting.






















I concur that the judgment in this case should be ar-rested, but for reasons quite different from thosegiven by the court.

*560 Power is vested in Congress to enforce by ap-propriate legislation the prohibition contained in thefourteenth amendment of the Constitution; and thefifth section of the Enforcement Act provides to theeffect, that persons who prevent, hinder, control, orintimidate, or who attempt to prevent, hinder, con-trol, or intimidate, any person to whom the right ofsuffrage is secured or guaranteed by that amend-ment, from exercising, or in exercising such right,by means of bribery or threats; of depriving suchperson of employment or occupation; or of ejectingsuch person from rented house, lands, or otherproperty; or by threats of refusing to renew leasesor contracts for labor; or by threats of violence tohimself or family,-such person so offending shallbe deemed guilty of a misdemeanor, and, on con-viction thereof, shall be fined or imprisoned, orboth, 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 conspiretogether, or go in disguise, upon the public high-way, or upon the premises of another, with intent toviolate any provision of that act, or to injure, op-press, threaten, or intimidate any citizen with intentto prevent or hinder his free exercise and enjoymentof any right or privilege granted or secured to himby the constitution and laws of the United States, orbecause of his having exercised the same, such per-sons shall be deemed guilty of felony, and, on con-viction thereof, shall be fined or imprisoned, orboth, and be further punished as therein provided.

More than one hundred persons were jointly in-dicted at the April Term, 1873, of the Circuit Courtof the United States for the District of Louisiana,charged with offences in violation of the provisionsof the Enforcement Act. By the record, it appearsthat the indictment contained thirty-two counts, intwo series of sixteen counts each: that the firstseries were drawn under the fifth and sixth sectionsof the act; and that the second series were drawn

under the seventh section of the same act; and thatthe latter series charged that the prisoners are guiltyof murder committed by them in the act of violatingsome of the provisions of the two preceding sec-tions of that act.

Eight of the persons named in the indictment ap-peared on *561 the 10th of June, 1874, and went totrial under the plea of not guilty, previously enteredat the time of their arraignment. Three of those whowent to trial-to wit, the three defendants named inthe transcript-were found guilty by the jury on thefirst series of the counts of the indictment, and notguilty on the second series of the counts in the sameindictment.

Subsequently the convicted defendants filed a mo-tion for a new trial, which motion being overruledthey filed a motion in arrest of judgment. Hearingwas had upon that motion; and the opinions of thejudges of the Circuit Court being opposed, the mat-ter in difference was duly certified to this court, thequestion being whether the motion in arrest of judg-ment ought to be granted or denied.

**4 Two only of the causes of arrest assigned in themotion will be considered in answering the ques-tions certified: (1.) Because the matters and thingsset forth and charged in the several counts in ques-tion do not constitute offences against the laws ofthe United States, and do not come within the pur-view, true intent, and meaning of the EnforcementAct. (2.) Because the several counts of the indict-ment in question are too vague, insufficient, anduncertain to afford the accused proper notice toplead and prepare their defence, and do not set forthany offence defined by the Enforcement Act.

Four other causes of arrest were assigned; but, inthe view taken of the case, it will be sufficient toexamine the two causes above set forth.

Since the questions were certified into this court,the parties have been fully heard in respect to allthe questions presented for decision in the tran-script. Questions not pressed at the argument will



not be considered; and, inasmuch as the counsel inbehalf of the United States confined their argu-ments entirely to the thirteenth, fourteenth, and six-teenth counts of the first series in the indictment,the answers may well be limited to these counts, theothers being virtually abandoned. Mere introduct-ory allegations will be omitted as unimportant, forthe reason that the questions to be answered relateto the allegations of the respective counts describ-ing the offence.

As described in the thirteenth count, the charge is,that the *562 defendants did, at the time and placementioned, combine, conspire, and confederated to-gether, between and among themselves, for andwith the unlawful and felonious intent and purposeone Levi Nelson and one Alexander Tillman, eachof whom being then and there a citizen of theUnited States, of African descent, and a person ofcolor, unlawfully and feloniously to injure, oppress,threaten, and intimidate, with the unlawful andfelonious intent thereby the said persons of color,respectively, then and there to hinder and prevent intheir respective and several free exercise and enjoy-ment of the rights, privileges, and immunities, andprotection, granted and secured to them respect-ively as citizens of the United States and citizens ofthe State, by reason of their race and color; and be-cause that they, the said persons of color, beingthen and there citizens of the State and of theUnited States, were then and there persons of Afric-an descent and race, and persons of color, and notwhite citizens thereof; the same being a right orprivilege granted or secured to the said persons ofcolor respectively, in common with all other goodcitizens of the United States, by the Federal Consti-tution and the laws of Congress.

Matters of law conceded, in the opinion of thecourt, may be assumed to be correct without argu-ment; and, if so, then discussion is not necessary toshow that every ingredient of which an offence iscomposed must be accurately and clearly alleged inthe indictment, or the indictment will be bad, andmay be quashed on motion, or the judgment may be

arrested before sentence, or be reversed on a writ oferror. United States v. Cook, 17 Wall. 174.

**5 Offences created by statute, as well as offencesat common law, must be accurately and clearly de-scribed in an indictment; and, if the offence cannotbe so described without expanding the allegationsbeyond the mere words of the statute, then it isclear that the allegations of the indictment must beexpanded to that extent, as it is universally true thatno indictment is sufficient which does not accur-ately and clearly allege all the ingredients of whichthe offence is composed, so as to bring the accusedwithin the true intent and meaning of the statute de-fining the offence. Authorities of great weight, be-sides those referred to by me, in the dissentingopinion just read, *563 may be found in support ofthat 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 omit-ted under certain circumstances; and, in the indict-ment for the offence, it is not sufficient to chargethe accused generally with having committed theoffence, but all the circumstances constituting theoffence 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 citizensthereof; and the fourteenth amendment alsoprovides, that no State shall make or enforce anylaw which shall abridge the privileges or immunit-ies of citizens of the United States. Congress may,doubtless, prohibit any violation of that provision,and may provide that any person convicted of viol-ating the same shall be guilty of an offence, and besubject to such reasonable punishment as Congressmay prescribe.

Conspiracies of the kind described in the introduct-ory clause of the sixth section of the EnforcementAct are explicitly forbidden by the subsequentclauses of the same section; and it may be that ifthe indictment was for a conspiracy at common




















law, and was pending in a tribunal having jurisdic-tion of common-law offences, the indictment in itspresent form might be sufficient, even though itcontains no definite allegation whatever of any par-ticular overt act committed by the defendants inpursuance of the alleged conspiracy.

Decided cases may doubtless be found in which itis held that an indictment for a conspiracy, at com-mon law, may be sustained where there is an un-lawful agreement between two or more persons todo an unlawful act, or to do a lawful act by unlaw-ful means; and authorities may be referred to whichsupport the proposition, that the indictment, if theconspiracy is well pleaded, is sufficient, eventhough it be not alleged that any overt act had beendone in pursuance of the unlawful combination.

Suffice it to say, however, that the authorities tothat effect are opposed by another class of authorit-ies equally respectable, and even more numerous,which decide that the indictment is *564 bad unlessit is alleged that some overt act was committed inpursuance of the intent and purpose of the allegedconspiracy; and in all the latter class of cases it isheld, that the overt act, as well as the unlawfulcombination, must be clearly and accurately al-leged.

**6 Two reasons of a conclusive nature, however,may be assigned which show, beyond all doubt, thatit is not necessary to enter into the inquiry whichclass of those decisions is correct.

1. Because the common law is not a source of juris-diction in the circuit courts, nor in any other Feder-al court.

Circuit Courts have no common-law jurisdiction ofoffences of any grade or description; and it isequally clear that the appellate jurisdiction of theSupreme Court does not extend to any case or anyquestion, in a case not within the jurisdiction of thesubordinate Federal courts. State v. WheelingBridge Co., 13 How. 503; United States v. Hudsonet al., 7 Cranch, 32.

2. Because it is conceded that the offence describedin the indictment is an offence created and definedby an act of Congress.

Indictments for offences created and defined bystatute must in all cases follow the words of thestatute: and, where there is no departure from thatrule, the indictment is in general sufficient, exceptin cases where the statute is elliptical, or where, bynecessary implication, other constituents are com-ponent parts of the offence; as where the words ofthe statute defining the offence have a compoundsignification, or are enlarged by what immediatelyprecedes or follows the words describing the of-fence, and in the same connection. Cases of thekind do arise, as where, in the dissenting opinion inUnited States v. Reese et al., supra, p. 222, it washeld, that the words offer to pay a capitation taxwere so expanded by a succeeding clause of thesame sentence that the word ‘offer’ necessarily in-cluded readiness to perform what was offered, theprovision being that the offer should be equivalentto actual performance if the offer failed to be car-ried into execution by the wrongful act or omissionof the party to whom the offer was made.

Two offences are in fact created and defined by thesixth section of the Enforcement Act, both of whichconsist of a *565 conspiracy with an intent to per-petrate a forbidden act. They are alike in respect tothe conspiracy; but differ very widely in respect tothe act embraced in the prohibition.

1. Persons, two or more, are forbidden to band orconspire together, or go in disguise upon the publichighway, or on the premises of another, with intentto violate any provision of the Enforcement Act,which is an act of twenty-three sections.

Much discussion of that clause is certainly unneces-sary, as no one of the counts under consideration isfounded on it, or contains any allegations describ-ing such an offence. Such a conspiracy with intentto injure, oppress, threaten, or intimidate any per-son, is also forbidden by the succeeding clause ofthat section, if it be done with intent to prevent or











hinder his free exercise and enjoyment of any rightor privilege granted or secured to him by the con-stitution or laws of the United States, or because ofhaving exercised the same. Sufficient appears in thethirteenth count to warrant the conclusion, that thegrand jury intended to charge the defendants withthe second offence created and defined in the sixthsection of the Enforcement Act.

**7 Indefinite and vague as the description of theoffence there defined, is, it is obvious that it isgreatly more so as described in the allegations ofthe thirteenth count. By the act of Congress, theprohibition is extended to any right or privilegegranted or secured by the constitution or laws ofCongress; leaving it to the pleader to specify theparticular right or privilege which had been in-vaded, in order to give the accusation that certaintywhich the rules of criminal pleading everywhere re-quire in an indictment; but the pleader in this case,overlooking any necessity for any such specifica-tion, and making no attempt to comply with therules of criminal pleading in that regard, describesthe supposed offence in terms much more vagueand indefinite than those employed in the act ofCongress.

Instead of specifying the particular right or priv-ilege which had been invaded, the pleader proceedsto allege that the defendants, with all the othersnamed in the indictment, did combine, conspire,and confederate together, with the unlawful intentand purpose the said persons of African descent and*566 persons of color then and there to injure, op-press, threaten, and intimidate, and thereby thenand there to hinder and prevent them in the free ex-ercise and enjoyment of the rights, privileges, andimmunities and protection granted and secured tothem as citizens of the United States and citizens ofthe State, without any other specification of therights, privileges, immunities, and protection whichhad been violated or invaded, or which werethreatened, except what follows; to wit, the samebeing a right or privilege granted or secured incommon with all other good citizens by the consti-

tution and laws of the United States.

Vague and indefinite allegations of the kind are notsufficient to inform the accused in a criminal pro-secution of the nature and cause of the accusationagainst him, within the meaning of the sixth amend-ment of the Constitution.

Valuable rights and privileges, almost without num-ber, are granted and secured to citizens by the con-stitution and laws of Congress; none of which maybe, with impunity, invaded in violation of the pro-hibition contained in that section. Congress inten-ded by that provision to protect citizens in the en-joyment of all such rights and privileges; but in af-fording such protection in the mode there providedCongress never intended to open the door to the in-vasion of the rule requiring certainty in criminalpleading, which for ages has been regarded as oneof the great safeguards of the citizen against op-pressive and groundless prosecutions.

Judge Story says the indictment must charge thetime and place and nature and circumstances of theoffence with clearness and certainty, so that theparty may have full notice of the charge, and beable to make his defence with all reasonable know-ledge and ability. 2 Story, Const., sect. 1785.

**8 Nothing need be added to show that the four-teenth count is founded upon the same clause in thesixth section of the Enforcement Act as the thir-teenth count, which will supersede the necessity ofany extended remarks to explain the nature andcharacter of the offence there created and defined.Enough has already been remarked to show thatthat particular clause of the section was passed toprotect citizens in the free exercise and enjoymentof every right or privilege granted *567 or securedto them by the constitution and laws of Congress,and to provide for the punishment of those whoband or conspire together, in the manner described,to injure, oppress, or intimidate any citizen, to pre-vent or hinder him from the free exercise and en-joyment of all such rights or privileges, or becauseof his having exercised any such right or privilege



so granted or secured.

What is charged in the fourteenth count is, that thedefendants did combine, conspire, and confederatethe said citizens of African descent and persons ofcolor to injure, oppress, threaten, and intimidate,with intent the said citizens thereby to prevent andhinder in the free exercise and enjoyment of theright and privilege to vote at any election to bethereafter had and held according to law by thepeople of the State, or by the people of the parish;they, the defendants, well knowing that the said cit-izens were lawfully qualified to vote at any suchelection thereafter to be had and held.

Confessedly, some of the defects existing in thepreceding count are avoided in the count in ques-tion; as, for example, the description of the particu-lar right or privilege of the said citizens which itwas the intent of the defendants to invade is clearlyalleged; but the difficulty in the count is, that itdoes not allege for what purpose the election orelections were to be ordered, nor when or where theelections were to be had and held. All that is al-leged upon the subject is, that it was the intent ofthe defendants to prevent and hinder the said cit-izens of African descent and persons of color in thefree exercise and enjoyment of the right and priv-ilege to vote at any election thereafter to be hadand held, according to law, by the people of theState, or by the people of the parish, without anyother allegation whatever as to the purpose of theelection, or any allegation as to the time and placewhen and where the election was to be had andheld.

Elections thereafter to be held must meansomething different from pending elections; butwhether the pleader means to charge that the intentand purpose of the alleged conspiracy extendedonly to the next succeeding elections to be held inthe State or parish, or to all future elections to beheld in the State or parish during the lifetime of theparties, may admit of *568 a serious question,which cannot be easily solved by any thing con-tained in the allegations of the count.

Reasonable certainty, all will agree, is required incriminal pleading; and if so it must be conceded,we think, that the allegation in question fails tocomply with that requirement. Accused persons, asmatter of common justice, ought to have the chargeagainst them set forth in such terms that they mayreadily understand the nature and character of theaccusation, in order that they, when arraigned, mayknow what answer to make to it, and that they maynot be embarrassed in conducting their defence; andthe charge ought also to be laid in such terms that,if the party accused is put to trial, the verdict andjudgment may be pleaded in bar of a second accus-ation for the same offence.

**9 Tested by these considerations, it is quite clearthat the fourteenth count is not sufficient to warrantthe conviction and sentence of the accused.

Defects and imperfections of the same kind as thosepointed out in the thirteenth count also exist in thesixteenth count, and of a more decided character inthe latter count than in the former; conclusive proofof which will appear by a brief examination of afew of the most material allegations of the chargeagainst the defendants. Suffice it to say, without en-tering into details, that the introductory allegationsof the count are in all respects the same as in thethirteenth and fourteenth counts. None of the intro-ductory allegations allege that any overt act wasperpetrated in pursuance of the alleged conspiracy;but the jurors proceed to present that the unlawfuland felonious intent and purpose of the defendantswere to prevent and hinder the said citizens ofAfrican descent and persons of color, by the meanstherein described, in the free exercise and enjoy-ment of each, every, all, and singular the severalrights and privileges granted and secured to themby the constitution and laws of the United States incommon with all other good citizens, without anyattempt to describe or designate any particular rightor privilege which it was the purpose and intent ofthe defendants to invade, abridge, or deny.

Descriptive allegations in criminal pleading are re-quired to be reasonably definite and certain, as a



necessary safeguard *569 to the accused againstsurprise, misconception, and error in conducting hisdefence, and in order that the judgment in the casemay be a bar to a second accusation for the samecharge. Considerations of the kind are entitled torespect; but it is obvious, that, if such a descriptionof the ingredient of an offence created and definedby an act of Congress is held to be sufficient, theindictment must become a snare to the accused; asit is scarcely possible that an allegation can beframed which would be less certain, or more atvariance with the universal rule that every ingredi-ent of the offence must be clearly and accuratelydescribed so as to bring the defendant within thetrue intent and meaning of the provision definingthe offence. Such a vague and indefinite descriptionof a material ingredient of the offence is not a com-pliance with the rules of pleading in framing an in-dictment. On the contrary, such an indictment is in-sufficient, and must be held bad on demurrer or inarrest of judgment.

Certain other causes for arresting the judgment areassigned in the record, which deny the constitution-ality of the Enforcement Act; but, having come tothe conclusion that the indictment is insufficient, itis not necessary to consider that question.

U.S.,1875U.S. v. Cruikshank92 U.S. 542, 2 Otto 542, 1875 WL 17550 (U.S.La.),23 L.Ed. 588

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