of the United States when it is an offense against the United States, and of the State of South Carolina when it is an offense against the State of South Carolina, and to omit it in any indictment vitiates that indictment. I will state to your honors some authorities on that point. [The counsel here cited from Chitty's Criminal Law, page 246, authority in reference to materiality in concluding indictments in the form stated by counsel.]

To show that this old rule of the common law has been adopted in this country, I will read from the 1st Brightly's Digest, page 206, section 157. I have endeavored to get the cases cited by Brightly, but have been unable to obtain the books in which they are reported. [Counsel here quoted the section in Brightly referred to by him.]

This third count, as I have said, in the first place goes on to allege that the conspiracy was to oppress, threaten, and intimidate Amzi Rainey, a citizen of the United States, with intent to prevent and hinder his free exercise and enjoyment of a right and privilege granted and secured to him by the Constitution and laws of the United States as in the second count, and all my objections made to those other counts for want of certainty, &c., apply equally well to this. What I now want to call the attention of the court to, is an addendum which brings us under this jurisdiction of the State laws. In the first place, your honors will find that the burglarious entry, charged here, into the dwelling-house of Amzi Rainey, is not alleged as an overt act of the conspiracy. Not at all. Nor as an act within the scope of the conspiracy. It is alleged altogether as an independent act; simply that while in the act of violating the rights of Rainey with respect to the suffrage, they entered his house burglariously in the night-time with intent to commit a felony. The intent was not to carry out the purpose of the conspiracy, but with intent to commit a felony, and what felony? A burglary, a totally different felony or crime which is charged in the fore-part of the indictment; but with intent to commit a burglary, and the further felony or misdemeanor, to wit, with intent to beat him and to wound him. For what purpose? Simply with the intent to beat and to wound, not to beat and to wound him so that he could not vote. It is alleged simply as a distinct burglary, assault, battery, wounding, and cutting. Now, first of all, let me refer to the section stated in this indictment. In the first place I will give the fifth section, which is to hinder and intimidate a person from exercising the right of suffrage by threats-threats of depriving such person of employment; and then the sixth section, which is the conspiracy section, to effect the same object. Then comes the seventh section, on which this count is framed. [Counsel here read section seven of the enforcement act.]

Well, then, as a matter of course, to punish a man for committing a burglary, or a murder, or an assault and battery under this section, his offense must be overt-the indictment must show it and must have a proper conclusion. It must appear what felony, crime, or misdemeanor has been committed. It won't do to say that, in the act of committing the previous felony or crime, he committed generally a felony, crime, or misdemeanor. It might be a murder, and the man would have no notice of whom he murdered. It happened to be burglary here, and the gentleman has very properly drawn a very good indictment. I take no exception to it. He had a form for that, and he has followed the form very accurately. That is, in fact, the only good offense set forth in this whole count.

Now, as I said, what authority have your honors to try these men? Not burglary of the post-office. Not a burglary committed in a place where the United States has exclusive jurisdiction and defines the crime of burglary, and punishes its soldiers or other parties who commit burglary within that particular locality. Not burglary in a vessel on the high seas or within any arm of the sea, or anywhere where the maritime jurisdiction extends. Not burglary of a post-office or of a public building of any sort. Not at all. Not a burglary connected in any sense with any function of the Government of the United States, or that it is allowed to protect. Not at all. It is simply an individual burglary, wounding, battery, committed in a State-not in a Territory-not in a place beyond the jurisdiction of State or Territory-but committed right within the State jurisdiction, in time of peace. Not in the land or naval forces, but just as expressly a domestic burglary as any. Now, what is this petit jury called here to try? That serious offense of burglary.

Will it be contended that your honors have any jurisdiction to try or punish a man for any such offense? For you must try him first and find him guilty first before you can apply the punishment. You may say that the punishment is only intended to be applied to the conspiracy; but I say you must first convict him of the burglary, or perhaps of the murder, before you can apply the punishment. Suppose they committed murder in some instances in a place entirely confined as to the jurisdiction, where the United States had no jurisdiction to try any offense except one committed by one of its officers. He is simply described as a citizen of the State and his house as a dwelling-house of a citizen of the State.

Now, suppose it were murder; when you try him for murder-when you are going to punish him for murder, you are going to hang him if he is guilty-how will you ascertain if he is guilty? What authority, what act of Congress gave you the authority to try such an offense as that, and apply such a severe penalty? If the court please, have you any jurisdiction to try such an offense as that? Now, I hold, in the first place, in regard to those criminals and crimes, that in the United States, anywhere, no mere common-law offense is within the jurisdiction of any of the United States courts, circuit, district, or any other, and any common-law offense over crime, by the United States, must be a crime defined and punished by some act of Congress. There are no crimes mentioned in the Constitution, as

crimes, within the cognizance of the General Government, except those of treason and piracy. Congress had the power of enlarging the jurisdiction over crimes by, the Constitution, before these amendments were adopted. In the eighth section of the legislative article is the provision that Congress may pass any law to carry out the provisions of the Constitution, or any part of it. Congress could establish post-offices, under its constitutional authority. It must protect its post-offices and the carrying of the mails, and define crimes in regard to the protection and sanctity of the mail. So with regard to the coinage of money, which was a matter exclusively belonging to Congress. You will find a vast deal of legislation on the subject of forging. All those crimes are defined and punished. As to the public lands, the offense of trespassing on the public lands, as to navigation and offenses against vessels, piracy, murder on board of vessels, all sorts of crimes committed on board vessels, are provided against because the regulation of commerce and the protection of Congress by the Federal power. They have again, with regard to the districts entirely within the jurisdiction of the United States, the jurisdiction of the particular land or soil as granted by the State to Congress; there also in the matter of crime, whether it is against the United States, or navigation of the United States, commerce, coinage, or anything but an individual crime, such as murder by A or B, both of them being within a fort or Federal ground, of which exclusive jurisdiction is granted by the State. There Congress legislates with regard to crimes. They do not in any sense interfere with regulations of the State government, because it is in their authority to punish there. The State has surrendered its sovereignty over that particular locality. You cannot try a man for committing a murder in a dock-yard by the State laws; therefore, from necessity, the Federal Government must punish crimes that happen on Federal grounds. I undertake to say that there is not a law of Congress passed prior to this act, so far as I have seen-and I have been a very long time at the bar and had a great many occasions to look at the Constitution of the United States—and I don't know a single one where an offense against the State sovereignty in a place over which the State has exclusive jurisdiction that does not in any way interfere with any power or duty devolved upon the Čongress. I think you may look forever to find any other statute under which such a jurisdiction as is given in that seventh section to try an individual subject exclusively to the jurisdiction of the State for a crime of a domestic nature in that State, "and against the peace and dignity of the State."

This, then, is the charge. Being a burglary in York County, South Carolina, in the house of an individual not an officer of the Government, upon the person of that individual not an officer in the exercise of his duty. A burglary and entry into that house, obliged to be with the intent to commit a felony, and that felony specified to be an assault with intent to wound--that being the character of that charge.

I repeat it, that there is not an element in it that would give your honors jurisdiction, or call a jury here to pass upon it, or permit you to sentence a man to imprisonment for burglary or, may be, murder; that judgment for murder under any jurisdiction that you have under the Constitution of the United States; and your honors will not forget that it is only under the Constitution that you act. And will the gentleman find me any authority in that Constitution which will authorize Congress to pass a law to punish crimes committed in this State? If simply domestic crime, your honors will not forget that it is not alleged at all that this act was in furtherance of the conspiracy. Not at all. Nor was it a part of the conspiracy. Nor did it come within the scope of the conspiracy. But it was an independent act, with no ally or intent of depriving a man from voting, but an intent to burglariously enter his house to commit a felony-not that he might thereby not be able to go to the polls. It simply ends there with the beating and wounding.

This is one of those great questions that arise and deserve the most mature consideration. Your honors may hesitate-may, perhaps, prefer to refer this question to the Supreme Court of the United States. Undoubtedly, it will go there. It may happen that in the course of any administration of this law, the point, perhaps, not being made, or the defendant being without counsel, the court may run into the difficulty, into the great error, of trying a man for a domestic murder in a court of the United States and hang him.

I therefore object to this count; first, because it concludes against the peace and dignity of South Carolina. Besides this objection, if the court please, and the further objection that I have stated that the charge is particularly against the State, not against the United States, and that this court has no jurisdiction to try that offense. Then the next objection which I stated to the other counts, that Rainey did not state his qualifications as a voter; that no election is stated at which he was deprived or was to be deprived of voting; that the names are not set out, and those qualifications not derived from State laws in any respect, which are necessary to arrive at a legal conclusion that he was a voter.

Now, the fourth count, if the court please, is one that does not charge any conspiracy, but charges a direct act-that at York, on the 1st day of February, 1871, "unlawfully did attempt," not conspire, but did attempt to control Amzi Rainey in exercising the right of suffrage, to whom the right of suffrage is guaranteed by the fifteenth amendment to the Constitution of the United States," and now, will the court mark this? Here he did not even state the qualification that Amzi Rainey is so much as a citizen of the United States, nor as, in some counts, that he was twenty-one years of age; and charges that they did unlawfully attempt to control Amzi Rainey in exercising the right of suffrage, "to whom the

right of suffrage is secured and guaranteed by the fifteenth amendment of the Constitution of the United States, contrary," &c. It does not state, as I have said, that he is so much as a citizen of the United States, or that he is of the age of twenty-one years; and states no qualifications necessary to make him a voter in the county of York, except that he is twenty-one years of age, but no qualification as to residence in the State for one year, or a residence within the county for sixty days prior to voting. It did not even state generally that he was qualified to vote; did not even state the legal conclusion from the facts; all it states is that Amzi Rainey was controlled in exercising the right of suffrage, to whom the right of suffrage is secured, &c.

To whom the right of suffrage is secured. Your honors will recollect that the thirteenth amendment abolishes slavery, while the fourteenth declares the colored people shall be citizens, and makes all persons born in this country, or naturalized in this country, citizens of the United States, and securing to such persons their immunities and privileges as such citizens. This is the scope of the fourteenth, except its prohibitory clause, which it is not necessary to mention.

Now we come to the fifteenth, which is suffrage. Let us read it. This is the one referred to in this count as the one that gave to Rainey the right of suffrage:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State."

What does this mean? Is it a grant? A specification of the qualification necessary to vote? Does it grant the right to vote absolutely, without reference to citizenship? Without reference to residence in any State, without reference to age or sex? Is that the way the gentleman construes this section? That it gives a general grant to all persons, citizens of the United States, to vote? Not merely black and white, but, as well, male and female?

To read it as the gentleman would read it, it is a universal grant of the right to vote to all those persons. But it is not understood in that way. It does not say that the rights of citizens of the United States to vote shall be universal, but the right shall not be denied or abridged by the United States or any State. Why? On account of race, color, or previous condition of servitude.

Now, when we look for the construction of the law-and a very good way is to look at the mischief to be remedied by the law-we look at the previous conditions of things; see what the mischief was and what the remedy is. We must not extend the remedy beyond the known mischief. Now, what was the mischief? Did the citizens of the United States generally require from Congress the grant to vote at all elections? Had they not a capacity to vote without a grant from Congress? Was the mischief that white citizens could not vote? That white male citizens, having proper qualifications, could not vote? Why, no! These amendments were intended to protect the colored race.

The mischief was that black men could not vote in all the States. That those who had been slaves could not vote. That colored men, (although they might have all the qualifications,) there was a discrimination against them in many of the States. Some maintained that they could not acquire total citizenship at all, as was held by the Supreme Court of the United States in the Dred Scott case. Now it was intended to remedy all that.

In the first place slavery was abolished; then, the next, they were made citizens of the United States-which was the first step toward making them voters. What next? Finally, by this section, they were given the right to vote as white men, that is, this provides that there shall be no discrimination against any citizens of the United States because of their color or previous condition. Is not this the meaning of it? Does it state a qualification or pretend to give a right? It is provided that there shall be against these men, made citizens of the United States, no right to discriminate on account of color or previous condition. Now a very grave question arises here, whether this can be extended by construction to a right to vote at State elections; whether this is the meaning of it; because, if we give that meaning to it, then we violate various other provisions of the Constitution, whether or not it is not to be confined to the mere matter of elections in Congress and for electors of President and Vice-President. Your honors will observe that the Constitution of the United States makes no provision for the qualification of voters in the State.

It confines itself to the members of Congress. It provides, with regard to Congressmen, certain qualifications, that they must be twenty-five years of age, and must have resided for seven years within the United States; and it provides, for the Senate, that they must be at least thirty years of age, and resided at least nine years in the State from which they were elected. It makes no further provision for the person, as a candidate; and as to the person and qualification of those who are to vote, there is no qualification anywhere, not even in this amendment, other than that they must be persons qualified to vote for the largest branch of their own domestic assembly, or legislature. The qualifications of voters Congress leaves to the domestic policy of the State. In some of the States most men of color have been allowed to vote, sometimes, with the property qualification. Congress did not interfere with that, any more than to say you shall not discriminate; if you have a property qualification for black men, in your constitution, to vote, it shall be there no longer; all must be equal. Then, I repeat, may it please your honors, wherever they found them, the right to vote, upon the fifteenth amendment, they have looked in the wrong place; for, if Amzi Rainey can vote, simply because of the right secured to him by the fifteenth amendment,

according to the construction given by the gentleman, he can vote whether he is twentyone or not-whether he has resided in York County or not, or whether he is an inhabitant of this State or not. If he receives the grant from Congress, and his authority to vote, he must still fulfill the qualifications required by the State; that is, every one which must be fulfilled by white men must be fulfilled by him.

Now, again, if the court please, a small matter, but I will state it: There is something necessary to make this indictment a little more certain-"And did attempt to control Amzi Rainey in exercising the right of suffrage, to whom the right of suffrage is secured." Now, your honors, mark that! "Is secured and guaranteed by the fifteenth amendment!" Now, suppose that amendment gave the right to vote-we refer to the State constitution of the State still. So much for that.

The fifth count; it also does not charge a conspiracy. It charges, first, an interference with his exercise of the right of suffrage, just as the fourth count does, and then superadds the charge of burglary.

The sixth count is very much like this, except in this: that the allegation is, "unlawfully did conspire together, with intent to injure, oppress, threaten, and intimidate Amzi Rainey, a citizen of the United States, because of his free exercise of a right and privilege granted and secured to him by the Constitution and laws of the United States, to wit, the right of suffrage." When-how prevented? Before an election, or after an election; before he voted, or after he voted? Was it a conspiracy to prevent his voting, or a conspiracy to punish him because he voted? It is intended to be the last, otherwise it would be identical with the former count. The language is this: "because of his free exercise of a right and privilege granted and secured to him by the Constitution and laws of the United States." Conspire to injure him because of his free exercise! When? Where? Where did he exercise this right? For what exercise of that right did these men conspire together? All left uncertain! It is impossible to tell whether they intended to injure him prior to or after the exercise of this right. It is not because he exercised his right at a certain election by voting at that election. It is not alleged that he voted at any election, or that he tried to vote at any election; or, for voting, or trying to vote, he was afterward interfered with. I can make nothing out it, and it is not material that it should be shown, under that section of the statute, that he exercised the right of voting.

The next is the seventh. That is precisely like the one I just read, and subject to the same objections. And then again comes this burglary and felony and other matters superadded, "against the peace and dignity of South Carolina."

The eighth count is a new one: "That these defendants did conspire together," with intent to injure, oppress, threaten, and intimidate Amzi Rainey, a citizen of the United States, with intent to prevent and hinder his free exercise and enjoyment of a right and privilege granted and secured to him by the Constitution of the United States, to wit: "the right to be secure in his person, houses, papers, and effects against unreasonable searches and seizures, contrary to the act of Congress in such cases made and provided." That is the whole

count.

There is no act of Congress to secure a man against searches and seizures. It is declared to be a right in the Constitution; so is the right of personal liberty and a thousand other rights that are sacred rights secured to me by the Constitution of the United States. But I cannot go to a Federal tribunal to vindicate them. On the contrary, there are very few causes that I can go to a Federal tribunal to vindicate. I cannot go to the Supreme Court of the United States to enforce any contract. Generally, it is contracts violated by a State law that come within that jurisdiction, or when I am a citizen of one State I can apply for Federal jurisdiction against a citizen of another State. So in certain other instances, upon a claim, under act of Congress, by grant or otherwise, when the State overrules my claim, I can go to the Federal legislature and protect my title. The Constitution gave me the right of personal security to defend that right and recover damages and punish the offender for committing an assault and battery upon me. Can I come to this court, because it is a right secured to me by the Constitution? No; I go to a State tribunal competent to give me relief. It is not only an offense against me, but against the dignity of the commonwealth that represents the parens patriæ powers and guarantees, and receives all the rights, immunities, and privileges secured to the citizen of the United States by the Constitution of the United States. It could not be asked that the United States should do anything more than declare these sacred rights; but as to their enforcement, the Federal jurisdiction is limited, and wherever it is exercised there must be a reason for it, as of residence.

Most certainly these propositions that I am arguing are so plain that I would dismiss a lawyer from my office if he were not quite as familiar with them as I.

We live in the States; we are protected by the States. What surrounds me, when I am at home or here, but State law? That is over me, above me, and around me. Great God! have we forgotten altogether that we are citizens of States, and that we have States to protect us? I am a Union man, in every sense of the word. I have stood by it always, and shall stand up forever for the Union. I am against certain rights called "State rights," but such rights as these, any one that invades such rights will find me, from first to last, with his antagonist. While I would not give to the States rights that have been surrendered to the United States, I will fight to the last ditch against Federal usurpation, either through the

legislative, executive, or judicial authority. These are not political privileges: they are personal sacred immunities, that attach to us as individuals, and are protected by the domestic law. I hope to God never to live in a country in which the laws of the country, within its proper jurisdiction, do not protect me in the exercise of my rights and privileges.

What is the next count? "Unlawfully conspiring to deprive Amzi Rainey of the equal protection of the law." The equal protection of the law? Why, are not all entitled here to the equal protection of the law? Citizens of South Carolina, am I not just as equally protected in South Carolina as in my own State? Can any man in South Carolina assault me because I am not a citizen of South Carolina? The laws of South Carolina protect me; are bound to protect me. These natural rights, these sacred rights, they belong to every individual and every person. These are the rights that a State is competent to protect, if a State is competent to do anything. Depriving him of the equal protection of the law, how can that be done? What way? The gentleman does not tell us. Why, the only way in which it could be done would be to imprison him where no officer of justice could find him. Again, it is not alleged what laws there are that he is prevented from having the enjoyment of-State laws or Federal. The gentleman has just taken the language of the statute, and attempted to make an indictment by using that language.

If a statute provides that a man shall be imprisoned ten years for committing burglary, it wouldn't do to say in the indictment "that he committed burglary." All the circumstances are not stated in the statute. But they must be in the indictment.

I have seen statutes so full that merely copying the language, with a few verbal alterations, would make a good indictment; but such things are rare.

The tenth count is identical with the ninth, except that the purpose is to deprive him of equal privileges and immunities under the law. The other is The other is "equal protection." This is equal privileges and immunities," which I have discussed already.

Now comes the eleventh, which is as follows, and I am glad to say it is the last one: "And the jurors aforesaid, &c., present that Allen Crosby, &c., unlawfully did conspire together to injure Amzi Rainey, a citizen of the United States, lawfully entitled to vote, in his person, on account of giving his support, in a lawful manner, in favor of the election of A. S. Wallace, a law fully qualified person, as a member of the Congress of the United States."

Now, this is intended to embrace a case of a conspiracy to injure the party after he has given his vote, under this law of the statute, "in favor of the election of A. S. Wallace, a lawfully qualified person." What! Wallace a lawfully qualified person as a member of Congress of the United States! Why, it is necessary, under the United States laws, that Mr. Wallace should be twenty-five years of age; that he should have resided in this State seven years; and then, by the State law, that he should have resided in the State, I don't know how long-a year, I suppose. There are no facts to show this. Your honors should have the facts, in order to draw the legal conclusions-not the district attorney, nor the jury, for perhaps they might go very much astray. Is not that the universal rule?

At the conclusion of Mr. Stanbery's argument, Mr. Corbin rose and stated that the motion was unexpected to him, and that it would be necessary, in order to reply as he desired, to have additional time, that he might examine the authorities.

Upon Mr. Corbin's suggestion, the court adjourned until Tuesday, at 10 o'clock.

SIXTH DAY'S PROCEEDINGS.

DECEMBER 5.

Judge Hugh L. Bond presiding; associate judge, Hon. George S. Bryan. The court met pursuant to adjournment. There were a large number of spectators present; if anything, more than on any preceding day. Mr. Stanbery said:

I want to bring to the notice of your honors one or two authorities, and will make a further statement as to one point. I read now from Wharton's American Criminal Law, volume 3, page 2290: " If any two or more persons shall conspire or agree falsely and maliciously to charge or indict any other person, or cause or procure him to be charged or indicted in any court or criminal jurisdiction, the persons so offending shall be guilty of a misdemeanor," &c.

Now, in note B, "Under this statute the particular means intended to be used should be alleged, in order that the court may see whether they are in themselves criminal, or amount to a cheat, or obtaining goods by false pretenses. So an indictment for a cheat must set forth the means by which the cheat was effected." Authorities given. "It would, therefore, seem to follow that when the charge is a conspiracy to commit those crimes, the indictment should be equally explicit, and such was the decision of the court for the correction of errors in Lambert vs. The People, 9 Cowen, 578. In that case the decision was made by a bare majority, but the dissenting opinions were based upon the assumption that a conspiracy to defraud any one of his property, by any means, constituted a crime. But the revised statutes have put that question at rest by defining the crime in accordance with the decision of the majority of the court on that case, and thus restricting the offense to much narrower limits. But the dissenting members of the court assumed the law to restrict it."