Citation Numbers： 12 F. 577
Judges： Woods
Filed Date： 7/6/1882
Status： Precedential
Modified Date： 9/9/2022
Many points have been presented by counsel for t'he plaintiff in error, in which a reversal of the judgment is demanded. Some of them are based upon alleged errors of the court in its charges to the jury. As the charges complained of are not incorporated in any bill of exceptions, but are inserted by the clerk without any authentication by the judge, they are not properly presented, and cannot be considered. There are, however, other grounds properly presented by motion in arrest of judgment, upon which a reversal of the judgment is asked. I am of opinion that one of these grounds is well taken; and as it is not only fatal to the judgment in this case, but also to any prosecution in a United States court for the acts charged in the information, it will be alone considered. The ground referred to was in substance as follows: Because the-act of congress upon which the prosecution rests was passed without any constitutional warrant.
The law, the violation of which is charged in the information, is that part of section 2 of the act of April 20, 1871, (17 St. 13-14,) which now constitutes section 5519 of the Bevised Statutes of the United States. It declares:
“If two or more persons in any state or territory conspire or go in disguise, on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any state or territory from giving or securing to all persons within such state or territory the equal protection of the lawg, each of said persons shall be punished by a fine of not" less than $500 nor more than $5,000, or by imprisonment with or without hard labor not less than six months nor more than six years, or by both said fine and imprisonment.”
The plaintiff in error insists that the constitution of the United States nowhere confers on congress the power to pass such an act, and the question for solution, therefore, is under what clause of the constitution, if any, can this legislation be sustained.
The fifteenth amendment can have, no application. That amendment relates to the right of citizens of the United States to vote. It
Section 5519 of the United States Revised Statutes has no reference to this right. The right guarantied by the fifteenth amendment is protected by sections 4 and 5 of the act of May 31, 1870, (16 St. 141;) sections 5506, 5507, Rev. St.
It requires no argument to show that a law which, according to the theory of the prosecution, and which in fact is intended to protect among other things the right of the citizen to give evidence in the courts, cannot be based on an article of the constitution which simply protects the right of the citizen to the elective franchise against discrimination on account of his race, color, or previous condition of slavery. Nor can authority for this legislation under review be found in the fourteenth amendment to the constitution." The only part of that amendment which can have any bearing upon the question in hand is the first and fifth sections. The first section declares:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any nerson within its jurisdiction the equal protection of the laws.”
The fifth section declares: “The congress shall have power to enforce by appropriate legislation the provisions of this article.”
It is perfectly clear, from the language of the first section above quoted, that when a state has been guilty of no violation of its provisions the section does not confer on congress the power to punish private individuals who, acting without any authority from the state, and it may be in defiance of its laws, invade those rights of the citizen which are protected by the amendment.
The scope of the two sections of the amendment above quoted has been defined in the supreme court of the United States in several cases. Thus, in U. S. v. Cruikshank, 92 U. S. 542, it was declared by the court, Mr. Justice Miller delivering its opinion, that the fourteenth amendment prohibits a state from depriving any person of life,
“It is a "guaranty of protection against the acts of the state government itself. - It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislation of the state, not a guaranty against the commission of individual offences; and the power of congress, whether express or implied, to legislate for the enforcement of such a guaranty does not extend .to passage of laws for the suppression of crime within the states. The enforcement of the guaranty does not require or authorize congress to perform the duty that the guaranty itself supposes it to be the duty of the state to perform, and which it requires the state to perform.”
Beeurring to section 5519 of the Revised Statutes we find that it is directed exclusively against the action of individuals, and not of the states; “if two or more persons in any state or territory conspire or go in disguise upon the highway or premises of another,” etc. And the information in this case, which follows the statute, charges an offence against three private individuals. It is, therefore, evident that no warrant can be found in the fourteenth amendment for the passage by congress of section 5519 of the Revised Statutes.
The thirteenth amendment declares that “neither slavery nor involuntary servitude, except as a punishment of crime whereof the party shall have been duly convicted, shall exist within .the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.” Does this amendment clothe congress with the authority to pass the section under consideration ? It may be conceded that this amendment
Congress has by virtue of this amendment declared “that all persons within the jurisdiction of the United States shall have the same right in every state and territory * * ® to give evidence * * * as is enjoyed by white persons.” Act of May 31, 1870, § 16, (16 St. 144; Rev. St. 1977.) The power of congress to do this has been recognized by at least two of the justices of the supreme court. Mr. Justice Swayne in U. S. v. Rhodes, 1 Abb. (U. S.) 28, and Mr. Justice Bradley in U. S. v. Cruikshank, 1 Woods, 308. Conceding, then, that congress had the power by virtue of the thirteenth amendment to confer on the persons enfranchised thereby the same right to testily as is enjoyed by white persons, and to punish the invasion of that right, the question remains, has that power been exercised by appropriate legislation by the passage of section 5519 of the Eevised Statutes?
I feel constrained by the authority of the supreme court of the United States to say that it has not.
Under the section referred to, it would be an offence for two or more white persons to conspire, etc., to prevent another white person from enjoying the right and privilege of testifying in a court of justice. It would be an offence for two or more colored persons, enfranchised slaves, to conspire with the same purpose, against a white citizen, or against a colored citizen who had ever been a slave. It is, therefore, perfectly clear that the law is broader than the amendment by which it is attempted to be justified. It covers cases both within and outside of its provisions. The law under which two or more free white men could be punished for conspiring to deprive another free white man of the right to testify, cannot be based on the amendment which prohibits slavery and involuntary servitude.
The thirteenth amendment does not, therefore, authorize the law in question.
Upon this question the case of U. S. v. Reese, 92 U. S. 214, is in point. In that case the supreme court had under consideration the constiutionality of the third and fourth sections of the act of May 31, 1870, (16 St. 140; Rev. St. §§ 2007, 2008, 5506.)
The third section of this act made it an offence for any judge, inspector, or other officer of election whose duty it was under the circumstances therein stated to receive, count, etc., a vote of any citizen, to wrongfully refuse to receive and count the same; and the fourth section made it an offence for any person, by force, bribery, etc., or
The attempt was made to sustain these sections as warranted by the fifteenth amendment to the constitution of the United States. But the supreme court held it not to be appropriate legislation under that amendment. The ground of the decision was that the sections referred to were broad enough, not only to punish those who hindered and delayed the enfranchised colored citizen from voting on account of his race, color, or previous condition of servitude, but also those who hindred and delayed the free white citizen. The court, speaking by Mr. Chief Justice Waite, said:
“It would certainly be dangerous if the legislature could not set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would to some extent substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained if within the constitutional grant of power. But if congress steps outside of its constitutional limitation and attempts that which is beyond its reach, the courts are authorized to, and when called upon must, annul its encroachments upon the reserved rights of the states and the people. And the court declared that it could not limit the statute so far as to bring it within the constitutional power of congress and cominded. We must therefore decide that congress has not as yet provided by appropriate legislation for the punishment of the offence charged in the indictment.”
This decision is directly in point and shows that the section of the law upon which the information in this case is based is not warranted by the thirteenth amendment. It is true that the information alleges that the defendants conspired against Bolton on account of his race and color. But the act of congress cannot be helped by the information. If the law is without constitutional warrant, no averments of the pleader can give it vitality. There is only one other clause in the constitution of the United States which, in the remotest degree, can be supposed to sustain the section under consideration. I refer to section 2 of article 4, which declares the citizens of each state should be entitled to all the privileges and immunities of citizens of the sev eral states. But this section, like the fourteenth amendment, is directed against state action. Its object was to place the citizens of each state upon the same footing with citizens of other states to relieve them from the disabilities of alienage in other states, and inhibit discriminative legislation against them by other states. Paul v. Virginia, 8 Wall. 168. It was never supposed that under it con
As, therefore, there is no valid law by which the judgment of the district court in this case can be sustained, its judgment must be reversed and the cause remanded with directions to discharge the prisoner.