[282]

[283]

[284]

pendence of the government of the Union on the court of the United States having cogni-
those of the states, for the execution of the zance of the offense; and, if bailed, may be
great powers assigned to it. Its means are arrested by his bail and delivered to the
adequate to its ends and on those means marshal or his deputy, before any judge or
alone was it expected to rely for the accom- other officer having power to commit for the
plishment of its ends. To impose on it the offense, and be thereupon recommitted to the
necessity of resorting to means which it can-custody of the marshal, to be held until dis-
not control, which another government may charged by due course of law. Rev. Stat.
furnish or withhold, would render its course § 1014, 1018. They have also provided
precarious, the result of its measures uncer-
tain, and create a dependence on other gov-
ernments, which might disappoint its most
important designs, and is incompatible with
the language of the Constitution." 47 U. S.
4 Wheat. 316, 405, 424 [4: 579, 601, 605].
Among the powers which the Constitution
expressly confers upon Congress is the power
to make all laws necessary and proper for
carrying into execution the powers specifi-
cally granted to it, and all other powers
vested by the Constitution in the government
of the United States, or in any department
or officer thereof. In the exercise of this
general power of legislation, Congress may
use any means, appearing to it most eligible
and appropriate, which are adapted to the
end to be accomplished, and are consistent
with the letter and the spirit of the Consti-
tution. M'Culloch v. Maryland, 47 U. S. 4
Wheat. 316, 421 [4: 579, 605]; Juilliard v.
Greenman, 110 U.ˇS. 421, 440, 441 [28: 204,
211, 212].

Although the Constitution contains no grant, general or specific, to Congress of the power to provide for the punishment of crimes, except piracies and felonies on the high seas, offenses against the law of nations, treason, and counterfeiting the securities and current coin of the United States, no one doubts the power of Congress to provide for the punishment of all crimes and offenses against the United States, whether committed within one of the states of the Union, or within territory over which Congress has plenary and exclusive jurisdiction.

To accomplish this end, Congress has the right to enact laws for the arrest and commitment of those accused of any such crime or offense, and for holding them in safe custody until indictment and trial; and persons arrested and held pursuant to such laws are in the exclusive custody of the United States, and are not subject to the judicial process or executive warrant of any State. Ableman v. Booth, 62 U. S. 21 How. 506 [16: 169]; Tarble's Case, 80 U. S. 13 Wall. 397 [20: 597]; Robb v. Connolly, 111 U. S. 624 [28: 542]. The United States, having the absolute right to hold such prisoners, have an equal duty to protect them, while so held, against assault or injury from any quarter. The existence of that duty on the part of the government necessarily implies a corresponding right of the prisoners to be so protected; and this right of the prisoners is a right secured to them by the Constitution and laws of the United States.

The statutes of the United States have provided that any person accused of a crime or offense against the United States may by any United States judge or commissioner of a Circuit Court be arrested and confined, or bailed, as the case may be, for trial before

that all the expenses attendant upon the
transportation from place to place, and upon
the temporary or permanent confinement, of
persons arrested or committed under the laws
of the United States, shall be paid out of
the Treasury of the United States; and that
the marshal, in case of necessity, may pro-
vide a convenient place for a temporary jail,
and "shall make such other provision as he
may deem expedient and necessary for the
safe-keeping of the prisoners arrested or com-
mitted under the authority of the United
States, until permanent provision for that
purpose is made by law." Rev. Stat. § 5536-
5538.

In the case at bar, the indictments alleged,
the evidence at the trial tended to prove,
and the jury have found by their verdict,
that while Charles Marlow and five others,
citizens of the United States, were in the
custody and control of a deputy marshal of
the United States under writs of commitment
from a commissioner of the Circuit Court,
in default of bail, to answer to indictments
for an offense against the laws of the United
States, the plaintiffs in error conspired to
injure and oppress them in the free exercise
and enjoyment of the right, secured to them
by the Constitution and laws of the United
States, to be protected, while in such custody
and control of the deputy marshal, against
assault and bodily harm, until they had been
discharged by due process of the laws of the
United States.

If, as some of the evidence introduced by the government tended to show, the deputy marshal and his assistants made no attempt to protect the prisoners, but were in league and collusion with the conspirators, that does not lessen or impair the right of protection, secured to the prisoners by the Constitution and laws of the United States.

The prisoners were in the exclusive custody and control of the United States, under the protection of the United States, and in the peace of the United States. There was a coextensive duty on the part of the United States to protect against lawless violence persons so within their custody, control, protection and peace; and a corresponding right of those persons, secured by the Constitution and laws of the United States, to be so protected by the United States. If the officers of the United States, charged with the performance of the duty, in behalf of the United States, of affording that protection and securing that right, neglected or violated their duty, the prisoners were not the less under the shield and panoply of the United States.

The cases heretofore decided by this court, and cited in behalf of the plaintiffs in error, are in no way inconsistent with these views, but, on the contrary, contain much to sup

[285

port them. The matter considered in each | the statute, and within the scope of the sovof those cases was whether the particular ereignty of the United States." 92 U. S. right there in question was secured by the 552, 553 [23: 591]. Constitution of the United States, and was within the acts of Congress. But the question before us is so important, and the learned [286] counsel for the plaintiffs in error have so strongly relied on those cases, that it is fit to review them in detail.

2d. It was held that the 2d amendment to the Constitution, declaring "That the rights of the people to keep and bear arms shall not be infringed," was equally limited in its scope. 92 U. S. 553 [23: 591].

3d. It was held that a conspiracy of in-
In United States v. Reese, 92 U. 8. 214, 217 dividuals to injure, oppress and intimidate
[23: 563, 564], decided at October term, 1875, citizens of the United States, with intent to
this court, speaking by Chief Justice Waite, deprive them of life and liberty without due
said: "Rights and immunities created by process of law, did not come within the
or dependent upon the Constitution of the statute, nor under the power of Congress,
United States can be protected by Congress. because the rights of life and liberty were
The form and the manner of the protection not granted by the Constitution, but were
may be such as Congress, in the legitimate natural and inalienable rights of man; and
exercise of its legislative discretion, shall that the 14th Amendment of the Constitution,
provide. These may be varied to meet the declaring that no State shall deprive any
necessities of the particular right to be pro- person of life, liberty or property, without
tected." The decision in that case was that due process of law, added nothing to the
the 15th Amendment of the Constitution did rights of one citizen as against another, but
not confer on citizens of the United States simply furnished an additional guaranty
the right to vote, but only the right of ex-against any encroachment by the states upon
emption from being denied by a State the
right to vote on account of race, color or
previous condition of servitude; and there-
fore that sections 3 and 4 of the Enforcement
Act of May 31, 1870, (16 Stat. at. L. 140,
141, re-enacted in Rev. Stat. § 2007-2009,
5506,) undertaking to punish the denial or
obstruction of the right to vote under the
laws of any State or Territory, and not
grounded on such discrimination, were un-
constitutional.

In United States v. ruikshank, 92 U. S. 542 [23: 588], at the same term, in which also the opinion was delivered by the Chief Justice, the indictment was on section 6 of the Enforcement Act of 1870, (re-enacted in Rev. Stat. § 5508, under which the present conviction was had,) and the points adjudged on the construction of the Constitution and the extent of the powers of Congress were as follows:

1st. It was held that the 1st Amendment of the Constitution, by which it was ordained that Congress should make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances, did not grant to the people the right peaceably to assemble for lawful purposes, but recognized that right as already existing, and did not guarantee its continuance except as against acts of Congress; and therefore the general right was not a right secured by the Constitution of the United States. But the court added: "The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within

the fundamental rights which belong to
every citizen as a member of society. It
was of these fundamental rights of life and
liberty, not created by or dependent on the
Constitution, that the court said: "Sov-
ereignty, 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 State, than it would be to punish
for false imprisonment or murder itself."
92 U. S. 553, 554 [23: 591, 592].

4th. It was held that the provision of the
14th Amendment, forbidding any State to
deny to any person within its jurisdiction
the equal protection of the laws, gave no
greater power to Congress. 92 U. S. 555
[23: 592].

5th. It was held, in accordance with Inited States v. Reese, above cited, that counts for conspiracy to prevent and hinder citizens of the African race in the free exercise and enjoyment of the right to vote at state elections, or to injure and oppress them for having voted at such elections, not alleging that this was on account of their race, or color, or previous condition of servitude, could not be maintained; the court saying: "The right to vote in the states comes from the states; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been." 92 U. S. 556 [23: 592].

Nothing else was decided in United States v. Cruikshank, except questions of the technical sufficiency of the indictment, having no bearing upon the larger questions.

The main principles on which that decision was based had been clearly summed up by Mr. Justice Bradley when the same case was before the Circuit Court, as follows: "It is undoubtedly a sound proposition, that whenever a right is guaranteed by the Constitution of the United States, Congress has the power to provide for its enforcement, either by implication arising from the correlative duty of government to protect, wherever a

[288]

[289]

tional, because broader than the 13th, 14th
and 15th Amendments to the Constitution of
the United States would justify. The case
is clearly distinguished from the case at bar
by the facts that those prisoners were in the
custody of officers, not of the United States,
but of the State, and that the laws, of the
equal protection of which they were alleged
to have been deprived, were the laws of the
State only.

right to the citizen is conferred, or under tection of the laws thereof," and "to have
the general power (contained in art. 1, § 8, their persons protected from violence when
par. 18) to make all laws necessary and so under arrest as aforesaid." That_indict-
proper for carrying into execution the fore- ment was on section 5519 of the Revised
going powers, and all other powers vested Statutes, which assumed to punish a con-
by this Constitution in the government of spiracy for the purpose of depriving any
the United States, or any department or officer person or class of persons of the equal pro-
thereof.'" "With regard to those acknowl-tection of the laws. The court, following
edged rights and privileges of the citizen, the cases of Reese and Cruikshank, above
which form a part of his political inheritance stated, held that section to be unconstitu-
derived from the mother country, and which
were challenged and vindicated by centuries
of stubborn resistance to arbitrary power,
they belong to him as his birthright, and it
is the duty of the particular State of which
he is a citizen to protect and enforce them,
and to do naught to deprive him of their full
enjoyment. When any of these rights and
privileges are secured in the Constitution of
the United States only by a declaration that
the State or the United States shall not vio-
late or abridge them, it is at once understood
that they are not created or conferred by the
Constitution, but that the Constitution only
guarantees that they shall not be impaired
by the State, or the United States, as the case
may be. The fulfillment of this guaranty by
the United States is the only duty with which
that government is charged. The affirmative
enforcement of the rights and privileges
themselves, unless something more is ex-
pressed, does not devolve upon it, but be-
longs to the state government as a part of
its residuary sovereignty." 1 Woods, 308,

314-316.

In the cases reported under the head of the
Civil Rights Cases, 109 U. S. 3 [27: 835], at
October term, 1883, the whole extent of the
decision was that sections 1 and 2 of the
Civil Rights Act of March 1, 1875, chap.
114, (18 Stat. at L. 336), declaring all per-
sons within the jurisdiction of the United
States to be entitled to the full and equal
enjoyment of inns, public conveyances, and
places of public amusement, and assuming
to punish the denial of such enjoyment to
any citizen, "except for reasons by law ap-
plicable to citizens of every race and color,
and regardless of any previous condition of
servitude," were unconstitutional, because
not authorized, either by the 13th Amend-
ment, abolishing slavery, or by the 14th
Amendment, the general scope and purpose
of which were thus defined by Mr. Justice
Bradley in delivering judgment. "It is
state action of a particular character that is
prohibited. Individual invasion of individ
ual rights is not the subject-matter of the
Amendment." "It does not invest Congress
with power to legislate upon subjects which
are within the domain of state legislation;
but to provide modes of relief against state
legislation, or state action, of the kind re-
ferred to. It does not authorize Congress to
create a code of municipal law for the reg-
In Ex parte Virginia, 100 U. S. 339 [25: ulation of private rights; but to provide
676], at the same term, the court upheld modes of redress against the operation of
the constitutionality of the Civil Rights state laws, and the action of state officers,
Act of March 1, 1875, chap. 114, § 4, (18 executive or judicial, when these are sub-
Stat. at L. 336), enacting that no citizen, versive of the fundamental rights specified
having all other qualifications provided by in the amendment." "Such legislation can-
law, should be disqualified from service as not properly cover the whole domain of
a juror in any court of the United States or rights appertaining to life, liberty and
of any State, on account of race, color or property, defining them and providing for
previous condition of servitude, and that their vindication. That would be to estab-
any officer, charged with the duty of select-lish a code of municipal law regulative of
ing jurors, who should exclude any citizen
for such cause, should be guilty of a mis-
demeanor.

In Strauaer v. West Virginia, 100 U. S. 303 [25: 664], at October term, 1879, in which it was adjudged that the provision of the 14th Amendment, forbidding any State to deny to any person within its jurisdiction the equal protection of the laws, was violated by statutes of a State providing that white men only should be the jurors on the trial of a black man, the court, speaking by Mr. Justice Strong, said: "A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress." 100 U. S. 310 [25: 666].

In United States v. Harris, 106 U. S. 629 [27: 290], at October term, 1882, the indictment was for conspiring to deprive, and for depriving, certain citizens of the United States of the equal protection of the laws, in this, that they were in the custody of of ficers of a State under lawful arrest on charges of crime, and were, "by the laws of sid State, entitled to the due and equal pro

all private rights between man and man in
society. It would be to make Congress take
the place of the state legislatures and to
supersede them." 109 U. S. 11, 18 [27:
839. 840].

In Ex parte Yarbrough, 110 U. S. 651 [28:
274], at the same term, it was adjudged that
both section 5508 of the Revised Statutes
(on which these indictments are founded)
and section 5520, punishing conspiracy to
prevent by force, intimidation or threats any
citizen from lawfully giving his support

[290

[291]

[292]

to the election of a qualified person as pres- | plained of are of a character to prevent this,
idential elector or member of Congress,
were constitutional, because within the im-
plied powers of Congress. In answer to the
argument that the parties assaulted were not
officers of the United States, and that their
protection by Congress in exercising the
right to vote did not stand on the same
ground with the protection of election officers
of the United States, the court, speaking by
Mr. Justice Miller, said: "But the distinc-
tion is not well taken. 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 both cases, it is the duty of that govern-
ment to see that he may exercise this right
freely, and to protect him from violence
while so doing, or on account of so doing.
This duty does not arise solely from the in-
terest of the party concerned, but from the
necessity of the government itself, that its
service shall be free from the adverse in-
fluence of force and fraud practiced on its
agents and that the votes by which its
memb of Congress and its President are
elected shall be the free votes of the electors,
and the officers thus chosen the free and un-
corrupted choice of those who have the right
to take part in that choice." 110 U. S. 662
[28: 277].

or throw obstruction in the way of exercising
this right, and for the purpose and with
intent to prevent it, or to injure or oppress
a person because he has exercised 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 constitutional power of
Congress to make such statute." 112 U. S.
80 [28: 674].

In Baldwin v. Franks, 120 U. S. 678 [30: 766], at October term, 1886, it was decided that the word "citizen," in section 5508 of the Revised Statutes, as in the original Act of May 31, 1870, chap. 114, § 6, was used in its political sense, and not as synonymous with "resident," "inhabitant" or "person, and therefore did not include an alien. It was in regard to that point that Chief Justice Waite said: "This particular section is a substantial re-enactment of section 6 of the original Act, which is found among the sections that deal exclusively with the political rights of citizens, especially their right to vote, and were evidently intended to prevent discriminations in this particular against voters on account of race, color or previous condition of servitude.' 120 U. S. 691 [30: 770]. He did not say that the section in question, but only that the sections among which it is found, "deal exclusively with the political rights of citizens." To have said that the section in question was so limited would have been in direct conflict with the decision in United States v. Waddell, above cited, to which the Chief Justice, at the outset of his discussion of the question whether "citizen" included an alien, had referred as establishing the constitutionality of the section.

The whole scope and effect of this series of decisions is that, while certain fundamental rights, recognized and declared, but not granted or created, in some of the amendments to the Constitution, are thereby guaranteed only against violation or abridg ment by the United States, or by the states, as the case may be, and cannot therefore be affirmatively enforced by Congress against unlawful acts of individuals; yet that every right, created by, arising under, or dependent upon, the Constitution of the United States, may be protected and enforced by Congress by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may in its discretion deem most eligible and best adapted to attain the object.

In United States v. Waddell, 112 U. S. 76
[28: 673], at October term, 1884, the court
reaffirmed the constitutionality of section
5508 of the Revised Statutes, and, speaking
by the same eminent judge, said: "The
statute itself is careful to limit its operation
to an obstruction or oppression in the free
exercise of a right or privilege secured by
the Constitution or laws of the United States,
or because of his having exercised such
rights. The protection of this section ex-
tends to no other right, to no right or privi-
lege dependent on a law or laws of the State.
Its object is to guarantee safety and protec-
tion to persons in the exercise of rights
dependent on the laws 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 rights." 112 U. S. 79 [28: 673]. The
particular right, held in that case to be de-
pendent on and secured by the laws of the
United States, and to be protected by section
5508 of the Revised Statutes against inter-
ference by individuals, was the right of a
citizen, having made a homestead entry on
public land, within the limits of a State, to
continue to reside on the land for five years,
for the purpose of perfecting his title to a pat- Among the particular rights which this
ent, under sections 2259-2291 of the Revised court, as we have seen, has adjudged to be
Statutes, of which the court said: "The secured, expressly or by implication, by the
right here guaranteed is not the mere right Constitution and laws of the United States,
of protection against personal violence. and to be within section 5508 of the Revised
This, if the result of an ordinary quarrel or Statutes, providing for the punishment of
malice, would be cognizable under the laws conspiracies by individuals to oppress or
of the State and by its courts. But it is injure citizens in the free exercise and en-
something different from that. It is the joyment of rights so secured, are the political
right to remain on the land in order to per- right of a voter to be protected from violence
form the requirements of the Act of Con- while exercising his right of suffrage under
gress, and, according to its rules, perfect his the laws of the United States; and the pri-
incipient title. Whenever the acts com-vate right of a citizen, having made a home-

[293]

[294]