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of the case by hearing the testimony and arguments, and thereupon to dispose of the party as law and justi<;eJllquire." "Thll singlll question is to be fully tried, not on affidavits, but upon testimony, not ex parte, but after a full hearing on both sides."· Mr,. Choate's argument in Re Neagle. The trial justice who has the petitioner in custody produces as his return the warrant and the prisoner. does not appear, and no one appears for him. Counsel for the petitioner has, under instructions of the court, notified the solicitor of the circuit in which Colleton county is included of this hearing, and the solicitor does not appear. To this extent the court is without assistaocll. I recognize to the' fullest extent the delicacy of the question, and would., not willingly enter into a discussion which wQuldseem .to interfere with. the process of the state court. It is a principle of right and of law, a'nd therefore of necessity, that such interference should be avoided between the courts of the United States and the state courts. G'oveUv.Heyman,11l U. S. 176; 4 Sup. Ct. Rep. 355. But the duty is cast on'this court of examining into the facts of cases like this,-of hearing and deciding them. This has been done. ThE!' testimony of disinterested witnesses has been taken, and compared with the affidavit of the state's witnesses,,;and the conclusion has been reached that cause and ground of the prosecution arise from the construction and erection of this telegraph line 'aud from objections to it. Let thE!' prisoner be discharged.

lJNI1'ED STATES". SANGES

(Circuit

et 01.

cOurt, N. D.

Geoigta. October 5, 1891.)

Thll amendments tQ theeonstitntlon of the United States. espeCiallr section l·of the fourteenth'amendment, so far as .they relate to,tbe rights of indi-, viduals,. are jotendefl to ,prevent thest.ates and tbe United States. or any persoos actiog undel' t4eir authoritv,' fr9m Interfering wIth existini rigbts, and do oot confer'any new rights;, and hence oDellannot claim that hi& right to testify before a. federal grand iury without interference from private iodividua!sis ooe coofe.rred by theoonstitution of the United States, within the meaoioi ofRet; St: Q'. S. §§ 5508,5509. which presoribe a pUnishment for any persons who oonsJiiire to' injure. oppress, threaten. ,or Intimidate allY citizeo in the free exercise or enJoyment of any right or privilege seCUred to him b1 the of tbe United f:;tat/ls. or becau"e of his. .having so exercised the' same." Expt.llrte Ynrbrough, 110 U.S. 65a, 4 Sup. Ct. Rep. U. S. 76.:58up. Ct-Rep. a5; Lancaster, 44 . , 152; U.,S.,v. Fea. R.ep.,8116,-distioguished. " . , '" . i.SAME-CON$PIRAOY-INDICTMIlNT. . " . ' deolaring that Ilall persons within the jurisdiction of the Rev. St.U. S. Unite4 S,,\,:tes.shall in state and ,erritory to make. and . enforce oontracts, to 8ue;be parties,glve eVidence, and full. and equal'benefit of 'alUaw8 an.d... proceed.iogs for th. Ill. seourity of perso.DS..0..00.. p.roperty as is.en.joyed by white citizens, and shall be subjeot;to like punisbmeot,paillll. penalties,. taxes. 'licenses. aiM exactions of every ,kind, 'and to no other." will not Bupport an indictment-for ai.ootispiraoy by private individuals to injareand oppress.a Citizen for teBtifylp,g, pefp.re a fe4eral grand jury, bp,he absence of allegatiQl\S, suob oitizen. wall. Ii person of color, or that the aota were C911lmitted becausll of his color and pre:vious QOxuiitioJl of.servitude.. . , j T" .,' .

CONSTITUTIONAL LAw-RIGHT TO T1lSTI7Y BEPOBBFBDEBAL GBbrD JURy-CON·· SP1RAOY. '. . .

UNITED STATES V. SANGES.

AfLaw. AtJheOctoher term of the United States circuit Cburt for the northern distrlcf,ofGeorgia, the grand jury rettitped an indictment under sectionS 550$i:'5599, Rev. St. U. S., against defendants, for conspiring'to injure and oppress a citi,zenof the United States in the exercise of civil rights, and for murder of said citizen. The indictment charges"Th,at on the 11th day of November, Anno Domini, eighteen hundred and ninety, {11th November, 1890,) one Joseph Wright. near Marietta, inthe it\ the district aforesaid, 'was then and there a citizen ot the ,and was then and there returning to his home in Cobb connty from 4tlanta, baving. while in Atlanta, appeared as a witness and testified on said date befoJ'e the Umted States grand jury for said northern district of Georgia; then and there legallY sitting. and Clothed with plJwerto inquire into and true'presentment make'of all crilIlescommittedln said northern district ofGe?rgia,ftgainst the laWBofthe UnitBdStates,as,to :Violations of ternal reVenUe laws of the, United States, by one William Teasley and De,nnis were respectively and severally charged with on the busiJ}6as i of retail liquor dealers Within said disttict, on the 10th of NoWl:l9, 1st of April, 1890,1sto(July. 1890, and 20th of October. 1890; without' having paid the special tax, a,s required by law; the said Joseph Wright haVing come from his po me indobb cOl1nt,to Atlanta, before said United States grand jury, on tile 10th and 11th 01 November, 1890. in response J\nd in obedience to sub;pama cOmIJ;landing him to appear as a Witness for tM U!'!'ited States against said 'and Alexander, and against each Of, them 'te,spectively. William Teasley and Dennis Al'exander. '.rliat, to-wit, the day aforesaid, 11th of November. 18!:JO; while the' said'Joseph Wrightwas sUllsaid witness under said s lIbpcena from the said United States court, George Banges, DEmnis Alexalldel', Isaac Smith, and together with divers other eVil-disposed p\lrsons, whose names ate to t;he grand jurors aforesaid unknown, did then and there combine. con. and,confederate, by and between themselves, with force anqarms.,tp him, tho. said Josoph in free and Joymentof a nght and pnvilege then and there secured to hIm, tpe sald Joseph Wright. by the constitution and by-laws of the"United States. and said Joseph. Wright. was then and the're in the free exercise and enj\1yment of said right alid privilege. to-wit. the right and privilege. as a ci,tizen of the United ::;tates. to inform the propel' of the United States of violat,ions of its internal revenue. and of attempts to ,defraud the United States. by the said Williani'.reasley and Dennis Alexarider. and the right and privilege of a citizen of the United States to aid in preventing sncbattempts to defraud the United States of Its revenues. and to prosecute such cases, and the right. ,privilege. and duty of said Wright. as a citizen olthe United States, to obey the process of the court, and to COlli ply with and answer the subpcenas of said United States court, iil obedience thereto to appear. and testify as a witness;freely, fully. and truthfully. before said United States grand jury in Atlanta, for the northern district of Georgia. to any matter pending therein, criminating. and tending to criminate. said William Teasley. said Alexander. and other persons, for violating the internal revenue laws of the Un'ited States. and return to his home in peace and safety after so testifying. and the right and privilege of said ,Joseph Wright. as a citizen of the United States, to be secure. safe. and in from for haVing exercised and enjoyed the said rights. privileges, and immunities hereinbefore enumerated, secured to him. the said JQSeph Wright. 1\8 a citizen <lfthe; United States, by' the coqstitution and laws of the United States; and tile, ll&id George Alexander, Isaac ,Smith, andCharlea

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Porter, together with divers other eVil-diRposed persons, having so combined, oonspire<j,.aJ¥lconfederated, did thereafter, in pursuance of such combination anJcon!3piracy. on, to-wit,the day aforesaid, in the county of Cobb, and the district aforesaid, to-wit, on the 11th of November, 1890, at night, then and thE!l-a go on the and then and there assault him, the said Joseph Wright, 'with deadly wAapons, to-wit, with pistols, then and there loaded with gunpowder and' leaden bullets, and did then and there discharge the said deadly weapons to, at, and against him, the said Joseph Wright. and did wound and IWLim him, the said Joseph Wright; and they, the said George Banges; Delinis AJexander, Isaac Bmith, and Charles Porter, in pursuance of said and while then and there in prosecution of said conspiracy, as aforesaid, With force and arms, in and upon the body of said Joseph Wright, then anll there, in the peace of the United States, being feloniously, willfully, and of their" malice aforethought, and from a deliberate and premeditated design to effect the death of the said Joseph Wright, did then and there shoot off a,nd discharge at and against him, the said Joseph Wright, loaded pistols, then and there loaded with gunpOWder and leaden bullets, and discharging said loaded pistols, as aforesaid, they, the said by shooting 01I George Banges, .Dennis Alexandl;lr, Isaac Smith, and Charles Porter, did then and theI' wiUfu11y, and of their m\lUce .aforethought, strike and penetrate the ! body of said Joseph Wright with leaden, bullets, and did then and thl'lre inflict upon him, the said Joseph Wright, mortal wounds, of which mortal wounds he, the said Joseph Wright, did then and there immediately die. And so the grand jurors aforesaiq dofind and pr.esent, on tbeir oaths, that the said George Sanges, Dennis Alexander., l$aac$mith, andChades Porter did then and there feloniously, and of their malice aforethought, .kill and murder the said Joseph Wright, then and of,and iJl the peace of, the United Bt3tes, while they, the said George Dennis 41exander, Isaac Smith, Ch3rles Porter, and their other co-conspirators, to .the grand j nrors unknown, were then and there prosecuting said conspiracy to injure and oppress the said Joseph Wright, with intent of them, the said conspirators, to prevent and hinder the said Joseph Wrightln the free exercise and enjoyment of his said fight and privilege as a citizen of the United States, then and there secured to him, the said Joseph Wright, by the constitution and laws of the United States of America, as aforesaid, such a citizen of the United States, contrary to the form of the statute in such case made and prOVided, and against .the peace and dignity of the United States of America. [Signed] "B. A. DARNELL, U. B. Attorney." The cause having come on for trial, the defendants demurred to this iridictment upon five grounds, only two of which were relied on in the argumento,fcounsel. These are' "Fourth. Because there are no such rights or privileges secured to the party conspired against by the constitution and laws of the United States as those set out in the indictment. "Fifth. Because, on the facts alleged in said indictment, there is no crime 01' offense set out of which the courts of the United States can take cognizance."

S. A. Darnell, U. S. Dist. Atty., and E. A. Angier, Asst. U. S. Dist. Atty. J. E. Mosley, W. Glenn, and I. Z.Foster, for defendants. Before LAMAR, Justice, and NEWMAN, J.

LAMA,B, Justice. The two sections of the Revised Statutes under which 'this. indictment is. drawn, and which were relied on in. the argu-

UNITED STATES fl. SANGES.

ment of the attorneys for the United States, viz., 5508 and 5509, are in the following language:
"Sec. 5508. If two or more persons conspire to injure. oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another. with intent to prevent or binder his free exercise or enjoyment of any right or privilege so secured, tbey sball be fined not more than five thousand dollars, and imprisoned not more than ten years. and shall, moreover, thereafter be ineligillie to any office or place of honor. profit, or trust created by the constitution or Jaws of the United States. "Sec. 5509. If in the act of violating any provision in any of the two pre-. ceding sections any,other felony or misdemeanor be committed, the offender shall be punished for the same with such punishment ail is attached to sucb felony ,or misdemeanor by the laws of the state in which the offense is COIJ,lmUted."

, The"questions presented by this demurrer are: Does an indictment which charges the ·defendant with conspiring to oppress and injure a citizen ofthe United States in the exercise of his right to appear and testify asa witness before the grand jury ofa federal coutt, and also with hayiiigji'npursuance ofsU'ch conspiracy, murdered him, because of his inge:lCercised that right; describe an offense within the sections referred to? Is the right to appear as a witness and to testify before a p;rand jury of a federal court a right secured by the constitution and laws of theUilited States, in the sense in which that language is employed in those sections? These questions are not altogether free from difficulty, in view of other sections which have an important bearing on the case, iIi view of the acts of congress from which they are taken, and especially in view of the numerous decisions of the supreme court of the United States in which that court has had occasion to express its views upon the amendments to the constitution of the United States for the enforcement of which those statutes were avowedly passed. The two sections of the Revised Statutes uuder which this indictment is conceded to be drawn are taken from the acts of congress approved 31st May, 1870, (16 St. 141,) known as the "Enforcement Act," entitled" An act to enforce the rights of citizens of the United States to vote in the several states of this Union, and for other purposes." The sixth and seventh sections of the act are incorporated into the text of sections 5508,5509. Rev. St. All the preceding sections of the act relate directly and exclusively to the protection of colored citizens in the exercise of the right of suffrage in the several states. Its fifth section makes it a penal of. fense for any person to prevent, hinder, or intimidate any person from exercising the right of suffrage, to whom it is secured by the fifteenth amendment, by means of bribery, threats, or threats of depriving of occupation, or of ejecting from land or tenements, or of refusing to reneW a lease, or of violence to such person or his family. There is nothing in this fifth section which aims at a conspiracy. The sixth section doee refer,in positive terms, to a conspiracy, and it is insisted by counsel for v.48F.no.1-6

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the prQl!ediitionthat its languagejretained in the Revi,edStatutes"refers to such a conspiracy as is set forth in this indic,Jtment,and that the federal courts have jurisdiction offense as cllarge,d. The attorneygeneral of the United States clearly does not concur in' this construction. In his late annual report he uses the following language: "It is certainlyim anomaly lngovernment that those who have committed murders for the purpose of' stopping prosecution in the federal cOlltts should not only not be'tlUnished.but not even be put upon trial. although, in at least two c!\sesin one district during lB90, well known. Yet sllchis the fact. It is needless to say that thtffederal have no adequate jUl'tsdiction of these Off6mell. [Italics ours.] Section 5509'of the Revised Statutes provides that, if anrperson attempts, by intimidation. threats, etc., to prevent any eitizt'n from exercising the right of suffrage, and in so doing commits a felony; or if h'oor more persons conspire to debar any person from the enjoymerit (jf'any of his civil rights, and in so doing commit a felony, such felony shall 00 punished according to the laws of the state wherein the same is committed. If section 5509 were so broadened as to make any felony committed any statute ot the United States triable in the while in the act of United and ptlliishable accord1.og to the la W8 of ,the state wherein the 8ame hi eommitted,it wduld greatly hll'lpin the adminlsttation of j llstice. So long, as persons who killofIlcer,s, witnesses, or jurors for. the purpose.of impeding, the of ,justice only be tried and punished jna federal cOl.lrt as for a mi,nor offense, the adrpinistration Clf the laws, and in will have little respect.'" See AnnuaHReport of the Attorney General of too United States for the yearlSeO, (Dec. 1,1890,) pp.xiii., xiv. This construction of the attorney general derives: some support from the fact that, the enforcement aot of 1870 itself was primarily passed to secure and enforce the equal rightof suffr,age to all citizens, irrespective of race,oolor, or previous condition of servitude. 1 Woods, 320. In the case of Baldwin v. Franks, 120 U. S. 678,691,7 Sup. Ct. Rep. 656, 763, tqe supreme court ofthe United States, in its opinion, delivered by Mr. Chief Justic,e WAlTE, referring to, section 5508, and the statute from which it was, taken,used the following language: "That,statute'was the act of MaySl, 1870, c. 114, (16 St. <140,) ·toenforce the rigbt.ofcitizens of the United Sta,tell to vote in the,several states of this UniOIl,}Ul,q. for"otherpurposell,' It is the which was,u Ilder consideration aato its se<:tions in U. S. v. Reese, 92 U.S. 214, .and from its title. as 'wllUas' its text. it Is apparent that the great purpose of congress in its enactment was to enforce the politiCiah.. ights of ·citizens of,' the United States iIilthe several states. Under thes6ciJ!cumst,ances, tnere' caDnotbe 8 doubt that originally the word' citizen' 'was llsed in its political sense, and. as the Statutes. are. but.a revision and consolidation. of the.l3tatutes in 1, 1873. is that .the word has the sfLm8 mElRnforce ing there,11lat it had originally. This particular section is.8 Bubstantialre. enactment of section 6 ofth.e Qriginal act; which is foundamiJng the sections that deal e'tclusively with the political tights of citizens, especially their right evidently! intended to prevent discriminations in this parto ticular against, voterson,accouot of ·race. color, or preyiolls condition of But, if it be assumed that this section was intended to have It wider scope than protection to the rigM to vote, and to 'extend to any right

UNITED STATES V. SANGES.

83.

secured by the constitution and laws of the United States, the construction of the attorney general is still corroborated by the further fact that, after it was passed, congress enacted another law, which, in express terms, described the offense of conspiring to intimidate and deter a witness from attending and testifying in a federal court, and also prescribing a punishment entirely different from that prescribed in sections 5508 and 5509. The act referred to was passed April 20, 1871, (17 St. 13,) entitled "An act to enforce 14th amendment to the constitution of the United States, and for other purposes." Its second section is contained in section 5406 of the Revised Statutes, which is as follows: "If two or more persons in any state or territory conspire to deter by force, intimidation, or threat any party or witness in any court of the United States from attending such court, or from testifying ta any matter pending therein, fully, and trutQfully, or to injure such party or witness in his pt'rson or propt'rty on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit jury. or any such jury, or to injure such jurorin hls person 01" property on account of any verdict. presentment. or indictment laWfully assented to by him. or of his being or haVing bl'en such juror. each of such persons shall be punislll'd by a fipeof, less than $500 nor more than $5,000.01" imprisonment, with or without hard labor, not lessthan sile months nor more than sile years, or by both such fine and imvri$onment." Act April 20. 1871. (17 St. c. 22, §§2,13.) This section is in chapter.4 of the Revised. Statutes, under the' head of "Crimes against Justicej"and it is very proped)' there, for it manifestly relates to those crimes and misdemeanors which affect the government, its public polity, and the achninistration of its Jaws in its courts of justice, as distinguished from those offenses which are pointed against tlH:l ciyil rights of private persons. The congress of the United States clearly possesses the constitutional power, and is charged with the constitutional duty, to protect all the agencies of the federal government, including the courts, their officers, and all persons whose attendance is in the proceedings of those courts, such as parties, witnesses, and jurors. That power' and duty of protection have been exercised and performed with regard to parties, witnesses, and jurors in section 5406, above quoted. We loire informed by the brief of the assistant UnHed States attorney that there is pending in the court a separate indictment, under section 5406, against these delendants, charging them with the offense made penal by that section. Hence, the particular effect of our decision upon the demurrer to this indictment now belore us will be the determination of tbe'question whether, in the event of oonviction of these deftmq.ants of the. crime of having conspirt:d to deter by force the witness Wright from attending the United States court, or from testifying therein, or of !;laying, injured him in his person on account of huving so testitied, tl)eir shall be that prescribed in section 5406, or that prescl'ib.ed and 5509.. The right or.duty 9f the government 'to the protection given by section 5406 to :and

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witnesses arises, not so much from the interest or right of those persons, as from the necessity of the government itself that the great agencies of its judicial organism should not be impeded in their official administration of the laws, and that all its instrumentalities should be protected against the obstructions of force or fraud. The status of a witness in a court, pending either a civil or criminal proceeding, is in law regarded as one of obligation and duty, which he is compelled to perform, or of a function which he is obliged to discharge, rather than a right on his part which he mayor may not exercise, according to his own will. The right, in relation to his testimony; is the right of the parties litigant, or of the government, as the casE' may be, to have it taken; not his own, either to offer or withhold. They are entitled to the process of the court to compel his attendance, and, when he attends, to compel hiro to testify, even against his will, to the whole truth, and nothing but the truth. With respect to the prosecution for a crime pending in a federal court, or in a United States grand jury, the right which this particular section designs to protect is a public right, i. the right of the United States to have its witnesses and their and to have them protected in going to and returning from the court. The wrong punished in such cases is a public wrong, and its correlative is a publi,c right. Section 55Q8 presupposes that the "right or privilege" involved has already been secured by the constitution and laws of the United States, and therefore it is necessary to turn to them for the definition of the right in this indictment charged to be'violated, in order to determine whether the indictment is authorized by the provisions of that section. Fortunately we are not without judicial construction of these provisions and of other statutes relating to cognate subjects, as well as judicial expositions of the constitutional amendments which it is contended contained the authority for their enactment. Slaughter-House Cases, 16 Wall. 36;U. S. v. Oruikshank, 1 Woods, 308, 92 U.S. 542; U. S. v. Reese, ld. 214; U. S. v. Harris, 106 U. S. 629, 1 Sup. Ct. Rep. 601; Strauder v 'lfest Virginia, 100 U. S. 303; Ex parte Virginia, 100 U. S. 339; Bradwell v. State, 16 Wall. 130; Hurtado v. California, 110 U. S. 516,4 Sup. Ct. Rep. 111, 292; Civil Rights Oases, 109 U. S. 3, 3 Sup. Ct. Rep. 18; Ex parte Yarbrough, 1l0U. S. 651, 4 Sup. Ct. Rep. 152; U. S. v. Waddell, 112 U. S. 76,5 Sup. Ct. Rep. 35. The case of U. S. v. Cruiksharik, 8upra, arose from an indictment .containing numerous counts drawn under the sixth and seventh sections of the enforcement act of May 31, 1870, charging the defendants with together to hinder and prevent certain citizens of the United States in the exercise of various civil rights therein described. The sections in the enforcement act on which the indictment in the Cruikshank Case· was founded are, as we have stated, the same in substance as those on which the indictment in this case was founded. All the counts in the former indictment were held by Judge BRADLEY in the court below, (1 Woods,308.) and by the supreme court, (92 U. S. 54S,)to be not sufficientto sustain a conviction because the sixth and sev'enth sections of the were unauttroi-ized by the constitution. 'As the

e.,

UNITED STATES t1. SANGES.

constitutional amendments relied upon in the support of those sections are clearly illustrated, and the limits within which they may be enforced by congress are distinctly defined, in the able opinion of the court in that case, delivered by Chief Justice WAITE, we deem it proper to quote more freely from it than usual. The chief ground of the decision is that the clauses in the constitutional amendments relied on to sustain the validity of the enforcement act were guaranties of rights against the action of the goverm:nent only, federal or state, and not against individuals; and that, therefore, they do not afford constitutional ground for pel1allegislation against individuals. The rights specified in that indictment which the defendants were ac{'used of conspiring to hinder and interfere with were-First, the right of peaceably assembling together for a peaceful and lawful purpose; seCond, the right of bearing arms fOT a lawful purpose; third, the right to be protected against the deprivation of life, and liberty of person, without due process of law; fourth, the right of equal protection of the laws of the state and of the United States; fifth, the right of voting as a citizen of tlJe United States, irrespective of 'race, color, or previous condition of servitude. The court held that none of these rights are granted by the constitution, nor dependent upon it for their existence, but are onlyguarantied against state or federal infringement. Speaking of the first-mentioned right, to-wit, the right to assemble together for a peaceable purpose, it says: "The first amendmenttd the constitution prohibits congress from abridging' the right of the people to assemble, and to petition the government for a, redress of grievances.' ... .' ... The partiCUlar amendment now under consideration assumes the existence of a right for the people to assemble for lawful pUrposes, and protects it against encroachment by congress. The right was not created by the amendment; neither was its continuance guarantied, except as against congressional interference. For their protection in its eiljoytIlenti therefore. the people must look to the states. The power Jor that purpose was originally placed there, and it has never been surrendered to the United States." 92 U. S. 552. With regard to the second right specified in the indictment, namely, the right to bear arms for a lawful purpose, it says: "The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaVing the people to look for their protection. against any violation by their fellow-citizens of the rights it recognized, to what is called, in City Of New Y01'k v. HUn, 11 Pet. 109, · the powers which relate to merely municipal legislation, or what was, perhaps. more properly called internal police,' · not surrendered or restrained' by the constitution of the United States." 92 U. S. 553. Referring to the charge in that indictment, that the defendants conspired to dt>prive the citizens named therein of their several lives and liberty 'Without due process oflaw, the court says: "Thei4tli amendment prohibits a state from depriving any person of life, liberty, or property without due process of law; 'but this add$ nothing to the rights of one citizen as against another.'1t simplytucnlshtlS all'

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addition$lg.uttranty against by the states uppn the fundamental rights which belong to every citizen as a member of society." 92 U. S. 554. In connection, the "ThIs is n()thIng else than &llegin'g a conspIracy to falsely imprison or murder citizens oithe UnIted States,being withi!) lhe territonal jurIsdiction of the state ofLouisiana. The rights of }ife and personal liberty lire natural rights of man. ·To secure these rights,' sa)"s the Declaration of Independence, ·go'vernments are instituted among ml'n, deriving theIr just powers from the consent of the governoo."The very highl'st duty of the states When they entered into the Union under the cunstitution was to protect all pel'sonswithIn tlleIr boundarlesin the enjoyment of thesf' · unalienable rIghts with which they were endowed by their Creator.' SovereIgnty for this purpose rests alone with the states., It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a than it would -be to punish for false Imprisonment or murder itself. · · · These COllnts in the indictment do not call for the exercise of any of the powers conferred by this provision in the amendment." ld. 553. 554. With regard to the fourth right mentioned in that indictment which the defendants were charged with cOnspiring to violate, viz., the right of of Louisiana and of enjoying ,the equal protection of the laws of the the United States, the court says: "The fourteenth amendment prohibitS astate from denying to any person within its jurisdiction the equal protection of the laws; but this provision dot'S not, any more than the one wbich precedes it, and which we have just considered, add anything to tl,81'ights.which one citizen has under the constitution aKRiDl!t another. .'J'he equality of the rights of citizens is a principle of republicanism. Every :rep!1blican government is in duty bound to protect of this principle, if within its power. all its ,citizens in the That dnty was originally assumed by the states. and it stUl remains there. The only obliglltil)Q l'esting,upon the United Slates is to see that the states do not deny thll' right. This the Kuarantees, but no more. The powf'r. of the. ,national. government is limited to the enforcement of this guaranty." Id. 554, 555. It is hardly ,necessary to go over" the other cases which in another place in this opinion we have cited, for convenience oJ reference. In the decisions of the supreme court upon them it has been found necessary to pass upon the construction of tbeseand many other sections of the Revised Statutes in their application to the varying facts presented by each case; but they all show the $teady adherence of that court to the fundamentalprinciplesenunchlted by Mr. Justice BRADI.EY in the case the supreme of U. S. v.OrlJ,ikshnnk, 1 Woods, 308, and reiterated court of the United States, in the same case on a writ of error. They all agree that, aside from the e:lttinction of slavery and the declaration Of n.ational citizenship,. the .constitutional amendments are restrictive and the actio.n of the states, upon the power of the and there is nothing intheil,' or spirit which indicates tbat they are to. be enf<>;rce<i by congressiqnlll enactments, authorizingthe trial, confor individual invasions of individual rights, unless committed.,uil,der stateauthoritYi that the four-

UNlTEP

SANGES.

teenth amendment guaralltied immunity from state laws and state acts invading the privileges and rights specified in the amendment, but conferred no rights upon one citizen as against another; that the provision of the fourteenth amendment, authorizing congress to enforce its guaranties by legislation, means such legislation as is necessary to control and counteract state abridgment; and that the protection and enforcement of the rights of citizens of the United States provided in t11eenact of 1870 and the civil rights act of 1875 apply only to such rights aS,are granted by and dependent on the constitution and valid and constitutional laws of the. United'States. In the light of these pripciples"as laid down by the supreme court of the United States, we are not prepared to say that the right of any person: to be a witness, audto attend court for the purpose of his testhnony, is a right granted by the constitution. The constitution has no pro\·ision in rehttion to witnesses and theit- testimony in cOlIrt, except that in article 5, declaring, that no person shall be compelled in a. criminal case to be a witness against himself, and the one in article 6, which declares that in criminal prosecutions the accused shall enjoy the right to be conlrontedwiiththe witnesses against him; and to have compulsory process for obtaining witnesses in his favor. 'rhe giving and receivirigof evidence as and vital prtnciple in, the proceedings of all courts had beet:l firmly established in English'and can law long anterior to the adoption of the constitution. It did not originate in the constitution, and is not in any manner dependent for its existence upon that instrument. Is there any law of congress outside of sections 5508 and '5509 which secures the right, in question? We have already shown that it is not secured as a private right by seC. tion 5406, either in express terms or by impli(lation. . Weare· not unmindful of the fact that the sixteenth section of the foreernehf act of 187,0 mentions the giving of evidence as a. right. Tha.t law, as we find it incorporated into the Revised Statutes of the United thatStates, (section
".All persons within tllejurisdictionof the United States shaU'havethe same right in every state tomake and to sue, of aUlaW8 and probe parties, give eyidence,and to the full and eq ceedings for the secutity,of persons and pl'opertYaB js enjoyea by white citizens, and shall be SUbject to like punishment, pains, penalties, taxes, licen"es, and exactions of every kind, and to no other."

Manifestly the right to give evidence, which it is the intention of this section to 'secure, is not the right alleged to have been violated in the indictment nnder consideration. It unquestionably secures to persons of color the same right to give evidence as is enjoyed by white citizens. Its express. purpose, ,as in section 858, is to take. care of the colored witnesses in the United States;cuurts, to remove alldiscriminlltion against them as witnesses, and to ma,ke the la.Wli ,of the the galJge. of the competencyof all witnesses. But there iSianother view which demopstrates,tha.t this section does not sustain the indictment in t9i8 case.,. We cannot present it more forcibly than by quoting the following frqm,the opinion

88
Rights Case8,supra.

FEDERAL REl'ORTER,

vol. 48.

of the sUpreme court, delivered by Mr. Justice BRADLEY, in the Oivil Referring to the provisions as above quoted, and other subsequent provisions in the statute from which the section was taken, the learned justice says: "This law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to-wit, the words · any law, statute, <!],"dinance, regulation, or custom to the contrary notwiLhstanding,' Which gave the declaratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to state laws, by making the penalty applytmly to those who shOuld subject parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any state or thus preserving the corrective ,character of legislation. Rev. St. §§ 19771979, 5510. 'Ie ... III In this connection is proper to state that civil rights, such as are guaranUed by the constitution against statA aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority, in the 'shape of laws, customs, or jUdicial or executive proceedings. Tile wrongful act of an indiVidual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputatlon; but, if not sanctioned in some way by the state, or not done understate authority. his rights remain in full force, and may presumably be vindicated, by rt'sol't to the laws of the state for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to. sue in the courter, or to be a witness or a juror. He may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may comrqit an 88sault against the person, or commit murdeJ:, or use ruffian violence. or slander the good name of a· fellow-citizen; but, unless protected in these wrongful acts by some shield l>f state law or state authority, Cal/-ll\>t destroy or injure the right; he will only render himself amenable tosatlsfa'ction or punishment;.and amenable therefor to the laws of the state where the wrongful acts are committed. Hence, in a11.those cases where the. constitution seeks to proteot the rights of a citizEln against discriminative and unjust laws of the state by prohibiting such laws, it is not individlfal offenses, but apr9gation and denial of, rights, which it denounces, and for which it clothes the ,congress with power to provide a remedy. ... ... 'I< And the remEidytobe prOVided must necessarily be' predicated upon that wrong. It mustassU!fje that in the cases provided for, the evil or wrong actually committed rests upon some state law or state authority for its excuse and perpetration.» 109 U. S. 16-18, 8 Sup. Ct. Rep. 25, 26. Our attention has been called to two cases (Ex parte Yarbrough, 11Q. U. S. 651,4 Sup. Ct. Rep. 152, and U. S. v. Waddell, 112 U. 76, 5 Sup. Ct. Rep. 35) as authorities in support of the theory of this indictment. The former of these two cases originated in an indictment in the circuit court of the United States for the northern district of Georgia. The indictment, founded on sections 5508, 5520, Rev. St., was fora conspira.cy to intimidate a citizen of African descent in the exercise of his right to vote for a member of congress, in execution of which they bruised and maltreated him, and that they did this on account of his. race, color, and previous condition of servitude. The court held that, inasmuch as the qualifiCation for the exercise of the right of suffrage:

'UNITED STATES 'V. SANG'ES.

in the choice of the members of the house of representatives is defined by the constitution, which expressly confers upon the congress the power to prescribe the time, place, and manner of holding ,the election, it may make such regulations as are necessary to guard it from fraud and violence, and punish the persons by whom they are disregarded. The principle which pervades this case is not in any way inconsistent with those laid down in the case of U. S. v. Oruikshank, and the OivilRightB Oa8es. In these last-named cases the court decided that' the rights named in the indictment, and alleged to be violated, were not created or conferred by the constitutional amendment, and that, therefore, section 5508, or rather the corresponding section of the statute of .1870, so far as itrelates to those rights, was not constitutional. In Ex parte Yarbrough the court beld that the right therein named and alleged to have been violated was created and conferred by the constitution in the body of the instrument itself, namely, the fourth section of the first article of the constitution of the United States, and also by the laws of congress passed in pursuance of the express power which that article conferred upon it. And the court, through Mr. Justice MILLER, says, speaking of the power to protect the parties assaulted: "The power in either case arises out of the circumstance that the function in which the party is engaged, or the right which he is about to exercise. is dependent -on the laws of the United States. In reply to the objection that the right to vote for a member of congress is not dependent upon the constitution and laws, but upon those of the state, it says: "It is not correct to say that the right to vote foi' a member of congress does not depend ·on the constitution of the United States." Again: "It is not true, therefore, that electors for members of congress owe their right to vote to the state law in any sense which makes the exercise of the right to depend exclusively on the law of the state." 110 U.S. 663, 664,4 Sup. Ct. Rep. 158. This is still more clearly shown in the case of U. S. v; Waddell, supra. In this case an information had been tiled against Waddell and others, charging them, under these sections, with having conspired together to deprive a citizen of the right to establish a homestead upon the public lands under the homestead laws. The court held that this was a case in which the right, against the exercise and enjoyment of which injury and oppression were charged, was created by, and grew directly out of, the constitutional legislation of congress. In delivering the opinion of the court, Mr. Justice MILLER said: "The protection of this section extends to no other right, to no right or privilege, dependent on a law or laws of the state. Its object is to guarantee safety .and protection to persons in the exercise of rights dependent on the Jaws of the United States, including,of course, the constitution and treaties. as well as statutes, and it does not, in this section at least, design to protect any other '·ights. [Italics ours.] The right aSllailed, obstructed, and its exercise prevented, or intended to be prevented, as set out in this petition, is very clearly a right wholly dependent upon the act of congress concerning the settlement aud sale of the publip lands of the United States. No such right exists, or can outside of anoot of congress. The constitution of the United States, ,bj article 4, § 3, in express terms vests in congress' the power to dispose of,

J1jlDERAL REPORTER,. vol. 48.

all needful rules and regulations respecting. the territory or other of the United States.' .()f its regulations. the one under consid13ratio)1; ft.uthorizes a class ()f persons, of whom Lindsey is one. to settle upon its land;· on payment of any inconsiderable sum of money. and the declaration of intent to make it a homestead. he is authQrized to reside there. It 112 U. S. 79;5 Sup. Ct. Rep. 36.

Again

·· The right here guaranteed is not tbe mere right of protection against personal .... ... ... It is the right to remain on the land in order to perform the reqliirements of the act ofcongl'ess. and,according to its rules, perfect bis incipient title. Whenever tbeacts complained of are of II character to prevent 'this. or throw obstruction in the way of exercisirig this rigbt, and for the purpose and with the intent to prevent it, or to injure or oppress a person because he has flxercised it, then, because it is a right asserted under the law of the United States, and granted by that law, those acts come within the purView of the statute and of the coustitutional power of congress to make such statute." ld. 80.

And one.of the quotations from Ex parte Yarbrough, which we have given above, follows.. These cases differ very materially from the case under cQn.sideration. Tqere the rights were undeniably (j,ependent upon the constitution of the United States, or the laws in pursuance thereof, and the rights in question there were such as fell clearly within the generally accepted view presented in previous decisions. They were such rights as might be enforced in a court of justice, and the denial of which by anyone would subject the offender to a liability to an action for civil damages or to criminal prosecution in the court. Here none of these element$ are found"as we think we have shown. We have also been referred to the case of U. S. v. Lancaster, 44 Fed. Rep. 896, decid.ed in the circuit court for the southern district of Georgia by Judge SPEJj:R, as a case in all essential features similar to this one; .and it is argued that on the authority of that case the demurrer herein should be overruled. We have examined the opinion of the learned jUdge in that case, and we have no hesitancy in saying that that case is not at all similar. to this. That was a case in which there was an indictment for conspiracy,. under sections 5508 and 5509, for injuring and oppressing a citizen of the United States in the exercise of . his right tOBue in the fed.eral cou,rt, and it was also alleged in the indictment that in the execution and furtherance of such conspiracy the defendant murdered said citizen. The right in that case was so clearly one dependent upon and growing out of the constitution and laws of congressrespecting the jurisdiction of United States courts that a bare mention of th¢ fact is sufficient t() show its entire dissimilarity to the ,Indictment charges to have been infringed. right which The indictment in this Case does not charge the defendants with a conspiracy to deprive a citizen of the United States,beiug a person of color, nnd because of his color and previous condition of servitude, of the right to be a witness a.nd testify in a federalcourt,a.nd· with murdering him. for having exercised the same; it does not allege that the state of Georgia, where the offense is charged to have been committed, has

UNITED S'tATES

fl.

EDGAR.

made or enforced any law the right of any citizen or citizens to be such witnesses or to give such it does not allege that the state has in any of· its departments,or by any of its officers, or by any of its agents acting under its authority, denied to any person the right to give evidence in any court; it does not allege that the state has failed to recognize and protect the rights of all citizens of of race, color, or previous condition of the United servitude, to attend the courts when summoned, and to testify fully and freely therein; but it is an indictment which alleges that the defendants committed the crime of murder upon the person therein named, within the territorial limits of the state of Georgia. It is the opinion of this court-Jllirst, that, irrespective of any question of the constitutional validity of sections 5508 and 5509, the indictment describes no offense within their purview; secondly,that any construction which brings the acts set forth in the indictment within the intent and meaning of these sections would render them, so far as they relate to witnesses and testimony, inconsistent with the constitution of the United States. It is our duty to adopt that construction which, without doing violence to the obvious import of the words, brings the enactment into harmony with the supreme law; and where the general words in a statute are equally susceptible of two constructions, one of which makes it accordant with the constitution, and the other renders it beyond the authority it confers, that construction should be adopted which brings the statute into harmony with the constitution. Grenada 00· .". Brogden, 112 U. S. 261, 269, 5 Sup. Ct. Rep. 125. " .We have given the questions involved in this case the attention which their importance demands, and, after a patient examination of the arguments advanced and the authorities cited by counsel on both sides, we have come to the conclusion that the indictment is not in law good and sufficient. It is ordered that the demurrer be sustained.

UNITED STATES .". EDGAR.

(otrcu.U Court" of Appeals, Etghth

OIirClJ;f,t.

October Term, 1891.)

bUDGRATION-"ALIEN CONTRACT LABOR LAW"-WHAT CONSTITUTES CONTRACT.

A laborer in England wrote to a manufactul'er in the United States statinll' that he tladheard the latter wanted men to work in a certain branch of the buslDess, and that himself and a comrade, wtlo were experienced therein, desired to come to this country, and asking that passes be sent them. The manufacturer replied, inclosing tiokets from Liverpool to St. LOUis, and stating that he could give ttle applicants steady work. Nothing was said on either side as to time or compensation. The la.borers came over on the tickets, but were returned by the commissioner of immigration at Philadelphia. that the letters did not constitute a contract "made previous to said importation and migration," within the meaning of Act Cong. Feb. 26, 1885, imposing a penalty for assisting or encouraging the Immigra tion of laborers under contract, since the act of coming to this country was necessary to make the arrangement a binding agreement in any respect. 45 Fed. Rep. 44, drmed.

48 F. 78 -

48 F1d 78