committing this conspiracy they committed the offense of burglary. Or, suppose that they do not find-that we are not able to establish the burglary-the verdict would be "guilty of conspiracy," but not guilty of the commission of the crime of burglary, in the act of committing the conspiracy. A special verdict, such as is set forth in this Massachusetts case, guilty of manufacturing the indigo, but not of selling it." In other words, a special verdict. But if your honors please, this indictment, so far as our duty in constructing and presenting it here, is defensible upon the ground that we have done precisely what the statute authorized and intended that we should do; that if, in the act of violating any provision in either of the two preceding sections they shall commit any other felony, upon the conviction of conspiracy they shall be punished according to the felony, and we consider that in charging this burglary-the incorporation of this burglary, under the laws of South Carolina-into this court, in order to fix the quantum of punishment, which this court may award to the conspiracy, falls very far short of claiming for this court that.they may take cognizance of the crime of burglary, and try and punish it. They are not authorized in this act to punish for burglary; the act does not attempt to say they have the power to punish for burglary, but it does authorize an inquiry in connection with the conspiracy whether the crime has been committed. If it appears by the verdict of the jury that the crime of burglary, according to the law of South Carolina, has been committed, then what? That you sentence them for burglary? Not at all. That stops at that point, and you simply look into the laws of South Carolina to find the punishment which you would affix to the crime of burglary if you had jurisdiction over it, and then you affix that punishment not to the burglary but to the conspiracy. Now, if your honors please, we come to the fourth count, and I will be as brief as possible.

The substantial exceptions urged to the fourth count are similar to the preceding counts, that it does not allege that Rainey was a citizen of the United States. The fourth count charges Allen Crosby and three other defendants with an attempt to control Amzi Rainey in the exercise of the right of suffrage, and though this count is drawn under the fifth section of the act, it charges the direct offense and not the conspiracy to commit an offense. It charges the direct offense of an attempt to control Amzi Rainey in the exercise of the right of suffrage, and the objection is made that we have not stated that Amzi Rainey is a citizen of the United States. Our answer is, that the statute does not require us, in order to complete this offense, to state that he was a citizen of the United States. The court will observe that we have examined this act, and that we have had our reasons, whether good or otherwise, for the manner of drawing these indictments. The fifth section, under which this fourth count is drawn, simply says, "If any person shall prevent, hinder, control or intimidate, or shall attempt to hinder, control, or intimidate "what-any citizen of the United States? Not at all; any person from exercising or in exercising the right of suffrage," and so instead of saying Amzi Rainey, a citizen of the United States, duly qualified to vote, we have simply said Amzi Rainey, a person. It is also objected that it is not stated that the right was then secured to him, but that the language of the count is "to whom the right of suffrage is secured and guaranteed by the fifteenth amendment to the Constitution of the United States." We cannot think there is substance to that objection.

The amendment, the court has judicial knowledge, was then in force, for the rights secured by the fifteenth amendment have always been secured since that amendment has been in force. Another objection is, that it is not alleged that he was otherwise qualified to vote than by the fifteenth amendment, and in this respect we follow again the language of the statute, which simply says, to whom the right of suffrage guaranteed by the Constitution of the United States"- the statute does not require us to do more than to say that it was guaranteed and secured by the fifteenth amendment to the Constitution of the United States. There is no reference or requirement, but the objection is raised that the fifteenth amendment clothes no one with the right of suffrage absolute.

We are disposed to admit, if you honors please, that the fifteenth amendment does not clothe any one absolutely with the right of suffrage; but that it is substantially, practically, and really secured to the colored people of the United States, to those who have been slaves, or who are of a dark color, or of African descent.

We say that the objection is too nice, that the fifteenth amendment gives to them the right to vote; strictly speaking, it only protects them, we agree with counsel for the defense; it only protects them against discrimination on account of race, color or previous condition; but, practically, really, as a great public fact throughout the length and breadth of the Union the fifteenth amendment does secure and does guarantee to this class of our citizens the right to vote, and it was so regarded by Congress, in making use of this language which we have exactly followed in this section of the act, "to whom the right of suffrage is secured or guaranteed by the fifteenth amendment to the Constitution of the United States."

Again, the objection appears that no election is set forth, and our answer is as before. The objection to the fifth count, which is the same as the fourth, with the addition that in committing the offense they did commit burglary according to the laws of South Carolina. The same objections are taken and the same answers are applicable.

We come now to the sixth count, which charges a conspiracy with intent to injure, threaten or intimidate Amzi Rainey, a citizen of the United States, because of the attempt

to use them, granted and secured to him by the Constitution and laws of the United States, to wit, the right of suffrage. The same objections as to persons, means, &c., as were urged to the second count, are urged to this, and in addition that it contains no separate allegation. I believe that was the objection, that he actually exercised the right. It simply charges that the conspiracy was with the intent to injure, oppress, threaten, and intimidate him, because of his free exercise. Our answer again is that here we have followed the language of the statute. It simply requires us to charge that he was oppressed, threatened or intimidated, or that the conspiracy was to threaten and intimidate him, because of his free exercise of the right.

I would say again, as we have said to every objection to this indictment, that it is substantially and sufficiently averred in the allegation that it was because of his exercise; that it is not necessary that we should go further and say that he exercised, and because of that exercise he was oppressed and intimidated. In the first place, we have followed the statute strictly, and in the next place, according to the common-law principles, we have sufficiently averred it in stating that it was done because of his exercise of the right of suffrage.

The seventh count is of the same offense, together with the crime of burglary, and of that I have nothing further to say.

We come now to the eighth count, which charges a conspiracy, with intent to 'deprive Amzi Rainey of a right and privilege secured to him by the Constitution of the United States, to wit, the right to be secure in his person, houses, papers and effects from unreasonable searches and seizures.

The objection that was urged against this count-the main objection-is that this is a right which can only be protected and vindicated by the State laws. That while it is undeniable that citizens of the United States have the right under the Constitution, its fourth amendment, to be secure in their person, houses, papers and effects, from unreasonable searches and seizures, yet that it is a right which depends in its practical value and enforcement upon the State laws; I believe I am correct in stating the objection. I think counsel for the defendants agreed yesterday that the concluding section of the fourteenth and fifteenth amendments, which clothed Congress with the power by appropriate legislation to enforce the provisions of those two constitutional amendments, were not necessary; that the general power had already been reserved to the Congress to enforce the provisions-the rights that were secured by the Constitution to the citizens of the United States.

All that is precisely what we claim in the present instance this act claims to do. That is precisely what we claim is the purpose of this act, to enforce this right of the people of the United States to be secure against unreasonable searches and seizure, through a statute of the United States. And if the power to enforce and secure to citizens of the United States the rights that are guaranteed to them by the Constitution does reside in Congress, as I understand the counsel to agree on yesterday, that subsequently those sections of the fourteenth and fifteenth amendments were unnecessary, then here is a statute which undertakes directly and without leaving it any longer to State laws to protect the citizen of the United States from unreasonable searches and seizure. Congress, it is admitted, if I am not mistaken, has the right to secure to its citizens their constitutional privileges, immunities, and rights by appropriate legislation, and how is the legislation which seeks to secure to Amzi Rainey his rights under the Constitution, to be secure in his person, papers and effects, from unreasonable searches and seizure? What is to prevent the Congress of the United States from doing this?

I acknowledge, with the counsel who addressed you yesterday, that almost every personal right to which he referred, as the right to be secure from an assault here in this court-house, is secured to him by the State laws. But is it not also competent, if those rights are guaranteed to citizens of the United States by the Constitution of the United States, is it not an admitted right of Congress, by appropriate legislation, directly to enforce those rights, and no longer to leave them only concurrently to be exercised by the State courts? It is true, as the counsel said yesterday, that he and I are protected in all our constitutional rights by the laws of our respective States. But it is not true, if your honors please, of Amzi Rainey, and many others; and Congress saw it, and in an exercise of power, which I understand counsel to admit as belonging to Congress, it has said we will protect you. The Constitution of the country protects you. The right to be secure against unreasonable searches and seizures. You are not secure. Large classes of the citizens of the United States are not secure, and we denounce a penalty against those who shall conspire to rob you of these constitutional rights.

The ninth, tenth and eleventh counts of this indictment, as the court is aware, are drawn under the provision of the act of April 20, 1871.

The ninth count, which is a conspiracy for the purpose of preventing Amzi Rainey of the equal protection of the laws, contrary to the act of Congress in such case made and provided, and against the peace and dignity of the United States. And that is the charge. This count is founded upon the second section of the act of April 20, 1871, which provides that if two or more persons in any State shall conspire together-omitting unnecessary words-for the purpose of depriving any person or class of persons of the equal protection of the laws. We have followed the language of the statute, and we have charged these defendants with conspiracy together to deprive any person, to wit, Amzi Rainey, of the

equal protection of the laws. The objection is made that we should have said what laws, what manner, and on what occasion. Our first answer is, that the statute does not require this; that the offense exists under the provisions of the statutes, which are simply, and only, that they shall conspire to deprive a person of the equal protection of the laws.

The tenth count is for a similar conspiracy of equal privileges and immunities under the law. And here, too, we followed the exact language," shall conspire together to deprive any person from equal protection under the laws."

The same objections are made to this count, and the answer is the same: that we have followed the statute, and that is purely a statutory offense. The last count charges a similar conspiracy for the purpose of depriving Amzi Rainey, a citizen of the United States, lawfully entitled to vote in his person, on account of his having given his support in a lawful manner, in favor of the election of A. S. Wallace, a lawfully qualified person, as member of Congress of the United States.

And here again we have followed, in every particular, the language of the statute. If two or more persons shall conspire together to injure any citizen-did conspire together to injure Amzi Rainey"-in his person or property.

The count charges that they did conspire to injure Amzi Rainey in his person, on account of such support and advocacy.

I think I heard something yesterday about the necessity for charging that it was for voting; some reference to the word support, instead of vote. The word "support" is a statutory word, and we have so charged it-on account of giving his support in a lawful manner in favor of the election of any lawfully qualified person; "in favor of the election of A. S. Wallace, a lawfully qualified person -as a member of the Congress of the United States. In all these particulars we have followed the language of the statute.

A recess was here taken, at the conclusion of which the district attorney addressed the court in opposition to the motion to quash, after which the court adjourned till to-morrow.

SEVENTH DAY'S PROCEEDINGS.

DECEMBER 6.

Hon. Hugh L. Bond, circuit judge, presiding, Hon. Geo. S. Bryan, district judge and associate justice.

On motion of J. D. Witherspoon, attorney, Bishop Sanderfer and John Little, of York County, charged with conspiracy, were admitted to bail in the sum of $3,000 each, Mr. Edward Hope becoming security.

In the case of the United States vs. Allen Crosby and others, for violation of the enforcement act, the opinion of the court was delivered on the motion to quash. It was read by the presiding judge, and is as follows:

OPINION.

After the prolonged and very able argument of counsel upon this motion to quash, we feel embarrassed, gentlemen, that upon so little deliberation we are to pass judgment upon the grave question raised here. But the fact that so many persons are now in confinement upon these charges, and that so many witnesses are in attendance upon the court, at great personal expense, makes it necessary that we should not delay longer. And the first objection to the first count in the indictment is, that the section of the act of May 31, 1870, which this count charges the parties with conspiring to violate, declares no penalty for the offense.

The first section of the act declares a right. It is referred to in this count by its number, and with sufficient certainty, it seems to us, to enable the parties charged after trial to plead the verdict rendered in this case in bar to another indictment. After declaring the right, the statute proceeds in section seven to define the punishment for its violation. It is not necessary, it seems to us, that each section of the act should contain or disclose the penalty for its infraction. That is often, as in this statute, referred to a later and generally to the closing section of the act defining the crime or offense, and is made applicable to all the antecedent sections. It is objected, moreover, that this count does not contain the names of the parties who, being entitled to vote, were to be hindered and prevented from the exercise of the elective franchise by the traversees.

It must be remembered that this is not an indictment to punish a wrong done to individuals against the peace and dignity of the United States, but for a conspiracy to do that wrong. The offense is completed the moment the compact is formed, whether any person within the contemplation of the first section has actually been hindered or not. If the traversees never committed any overt act, but separated and went home after the completion of the conspiracy, they have incurred the penalty which the seventh section prescribes. So it makes no difference what particular person the conspiracy when put in motion first reached. The act complained of is the conspiracy, and if it be true that any person was hindered or prevented from the exercise of the right granted by the first section, such hinderance and prevention is only proof of the conspiracy, and does not in anywise tend to make the crime more complete. It is generally sufficient, in charging a statutoryoffense, to set it out in the words of the statute.

If the statute uses a common-law name for a crime which it proposes to punish, the indictment must set forth the various ingredients of the crime which go to make up the offense at common law. But when the statute itself creates the offense and defines it, it is sufficient if the indictment use the words of the statute, unless the words be indefinite and vague, ambiguous or general, in which case the indictment must so particularize the act complained of that the party charged shall be in no doubt of the offense alleged against him.

The certainty required is that which will enable him to plead the verdict in bar of any future action.

It is alleged, in this count, that this conspiracy was to go into operation at an election not yet held, to wit, the third Wednesday of October, 1872, and it is objected that this is not sufficient. That the right to vote is not a continuing right, but exists only at the time of its immediate exercise.

It would be strange, indeed, if parties could not be punished, if it be necessary to punish them at all, for any offense but those committed against this act, on election day, and in the direct exercise of the elective franchise. The usefulness of the act of Congress would be entirely frustrated by such requirement. A man may be so effectually intimidated weeks before an election that he would not dare to go within a mile of the polls, and all the mischief the act is intended to remedy would flourish, and no punishment could be awarded them under this construction, because the right to vote is not a subsisting right, but one which recurs to the citizen on election day. We do not so hold. The uncertainty which the count leaves as to whether this was a State election or a Federal is urged as fatal.

The indictment charges that this was a conspiracy to violate the first section of the act. This section declares that all citizens shall be allowed to vote at all elections who are qualified by law to vote, without distinction of race, color, or previous condition of servitude. Congress has never assumed the power to prescribe the qualifications of voters in the several States. To do so is left entirely with the States themselves.

But the Constitution has declared that the States shall make no distinction on the grounds stated in this first section, and by this legislation Congress has endeavored, in a way which Congress thought appropriate, to enforce it.

It is this act of appropriate legislation, and the first section of it, which the defendants are charged with violating, and we think it makes no difference at what election, whether it be State or Federal, he is intimidated or hindered from voting, because of his race, color, or previous condition of servitude.

Congress may have found it difficult to devise a method by which to punish a State which, by law, made such distinction, and may have thought that legislation most likely to secure the end in view, which punished the individual citizen who acted by virtue of a State law, or upon his individual responsibility.

If the act be within the scope of the amendment, and in the line of its purpose, Congress is the sole judge of its appropriateness.

The next objection, which is, that the count does not set forth the qualification of the voter is sufficiently answered, we think, in the remarks we have made respecting the requirements of indictments setting forth statutory offenses.

We are of opinion that the second count of the indictment is bad, because it does not allege that Amzi Rainey was qualified to vote; and for another reason more fatal, that it alleges the right of Rainey to vote to be a right and privilege granted to him by the Constitution of the United States. This, as we have shown, is not so. The right of a citizen to vote depends upon the laws of the State in which he resides, and is not granted to him by the Constitution of the United States, nor is such right guaranteed to him by that instrument. All that is guaranteed is that he shall not be deprived of the suffrage by reason of his race, color, or previous condition of servitude.

The third count is a repetition of the second, with a clause setting out a charge of burglary, concerning the court's jurisdiction over such charge. The court is divided in opinion, and will therefore make no comment on it at this time.

The fourth count is obnoxious to the objection that neither the citizenship of Rainey nor the fact of his qualifications to vote is set out.

The fifth count repeats the charge contained in the fourth, with the additional clause contained in the third count, and the court refrains from noticing it for the reasons given as to the third count.

The sixth count is intended to charge a conspiracy to oppress Rainey for having, prior to 1st February, 1871, exercised the right of suffrage, and would be good if it were drawn with the particularity of the first count, which charges a conspiracy to oppress, to prevent the future exercise of this right. It does not, however, contain any allegation of the fact of qualification, nor that the party was entitled to vote in York County, or anywhere else, or that he ever exercised his right to vote.

The seventh count is a repetition of the sixth, with the charge of burglary added, as in the third count.

The eighth count alleges a conspiracy to prevent and hinder Rainey from the exercise of a right secured to him by the Constitution of the United States, which is defined to be the right to be secure in his person and papers against unreasonable search.

The article in the Constitution of the United States, to enforce which this count is supposed to be drawn, has long been decided to be a mere restriction upon the United States itself. The right to be secure in one's house is not a right derived from the Constitution, but it existed long before the adoption of the Constitution, at common law, and cannot be said to come within the meaning of the words of the act, "right, privilege, or immunity granted or secured by the Constitution of the United States."

The ninth count is entirely too indefinite, and the defendants could not possibly know from its language with what offense they were charged, and the same objection is valid as to the tenth count.

power

The eleventh and last count of the indictment charges a conspiracy to injure Rainey because he had previously voted for a member of Congress. We have no doubt of the of Congress to interfere in the protection of voters at Federal elections, and that that power existed before the adoption of either of the recent amendments. It is a power necessary to the existence of Congress, and this count seems to set forth the charge with sufficient perspicuity, and is not liable to the objections urged against it.

The motion to quash is overruled as to the first and eleventh counts of the indictment, and sustained as to the others, excepting such as the court is divided respecting.

Mr. Stanbery offered an entry which he had drawn in case there should be a difference of opinion on the question of the counts that referred to burglary.

Mr. Corbin said, with the permission of the court, he would withdraw the burglary count wherever it appeared in the indictment, with the distinct understanding that if they should feel it desirable to renew that count they might do so, giving the defense an opportunity to object if they desired it.

Mr. Stanbery objected, that the gentleman could not enter a nol. pros. at this stage of the

case.

Mr. Johnson thought the opinion of the court having been given that that part of the indictment should be quashed, there was nothing to be withdrawn, and the division should be certified to the court above.

Judge BOND. There is no question in the case when the counts in the indictment are not before the court, but are withdrawn. 'di

ere 'd

Mr. Staubery said that the act of Congress was peremptory, that when the court were vided they were to certify their division to the Supreme Court.

Mr. JOHNSON. The counts are not before the court, but the indictments are, and the counts are in the indictment. The prosecution attempted to sustain each one of the counts in the indictment; there are three or four of the counts, if not more, that charge that some other crimes than felony were committed, and a felony as expressly prohibited by the several sections under which these counts have been framed. After the court has divided in opinion on that, we submit we are entitled to have that question certified to the Supreme Court. We are not to wait here till the counsel think proper to bring up some other case. Why should not the question be decided at the earliest possible moment; for it is one of great moment and gravity-a question involving the authority of the United States, and the authority of the States of the United States-and is a question of interest to the whole public, and not to the people of South Carolina alone. The decision pronounced there will settle it for all time. ·

Judge BOND. The difficulty is, Mr. Johnson, that we cannot send a question up to the Supreme Court which does not actually exist in any case happening in the court. The Government has withdrawn the count which raised the question, and the Supreme Court will be determining a question which does not exist in any case in the court, at this time. Mr. Stanbery again objected to the entry of a nol. pros. without the consent of the defendants.

Mr. JOHNSON. When your honors say that the case is not before the court, with due deference to that impression, I think that you are under a misapprehension. The case was before the court this morning, when your honors pronounced your decision. You have told the prosecutor that they cannot go before the jury, because the law is against them, or, at least, that you are divided in opinion. What has put it out of the court?

Judge BRYAN. My judgment of the question is as to whether the court has not the discretion to deny the motion of the counsel, and I am of opinion that the court has that discretion; they cannot act absolutely, and it is dependent upon the court whether they shall, and I am of the decided opinion that the construction that is passed is a very vital one, and one that ought to be given at the first moment. It is not necessary, simply in this case, but it is of importance to every State, and for the country, and the sooner the Supreme Court can act upon this matter the better. As far as I am concerned, I do not agree to the motion of the counsel.

Mr. CORBIN. If the court please, there is one objection to which I do not think it necessary to call the attention of the court, because I thought the court saw it clearly, as I did. That is this: The court have pronounced a judgment of bad upon the count to which this charge of burglary is attached, and I had it in mind to hand out an indictment to meet this objection, and then attach another crime, another felony, to it.

Mr. JOHNSON. Nothing can go up except the constitutionality of that particular provision. The sole question will be, has Congress the right to provide that if wrong be committed,