U.S. Supreme Court United States v. Reese, 92 U.S.
214 (1875) United States v.
Reese 92 U.S.
214 ERROR TO THE CIRCUIT COURT OF THE
UNITED STATES FOR THE DISTRICT OF
KENTUCKY Syllabus 1. Rights and immunities created by or dependent upon the
Constitution of the United States can be protected by Congress. The
form and manner of that protection may be such as Congress, in the
legitimate exercise of its legislative discretion, shall provide,
and may be varied to meet the necessities of a particular
right.

															2. The Fifteenth Amendment to the Constitution does not confer
the right of suffrage, but it invests citizens of the United States
with the right of Page 92 U. S. 215 exemption from discrimination in the exercise of the elective
franchise on account of their race, color, or previous condition of
servitude, and empowers Congress to enforce that right by
"appropriate legislation."

															3. The power of Congress to legislate at all upon the subject of
voting at state elections rests upon this amendment, and can be
exercised by providing a punishment only when the wrongful refusal
to receive the vote of a qualified elector at such elections is
because of his race, color, or previous condition of servitude.

															4. The third and fourth sections of the Act of May 31, 1570, 16
Stat. 140, not being confined in their operation to unlawful
discrimination on account of race, color, or previous condition of
servitude, are beyond the limit of the Fifteenth Amendment and
unauthorized.

															5. As these sections are in general language broad enough to
cover wrongful acts without as well as within the constitutional
jurisdiction, and cannot be limited by judicial construction so as
to make them operate only on that which Congress may rightfully
prohibit and punish, held that Congress has not provided
by "appropriate legislation" for the punishment of an inspector of
a municipal election for refusing to receive and count at such
election the vote of a citizen of the United States of African
descent.

															6. Since the passage of the act which gives the presiding judge
the casting vote in cases of division and authorizes a judgment in
accordance with his opinion, Rev.Stat., sec. 650, this Court, if it
finds that the judgment as rendered is correct, need do no more
than affirm it. If, however, that judgment is reversed, all
questions certified, which are considered in the final
determination of the case here, should be answered.

															MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.

															This case comes hare by reason of a division of opinion between
the judges of the Circuit Court in the District of Kentucky. It
presents an indictment containing four counts, under secs. 3 and 4
of the Act of May 31, 1870, 16 Stat. 140, against two of the
inspectors of a municipal election in the State of Kentucky for
refusing to receive and count at such election the vote of William
Garner, a citizen of the United States of African descent. All the
questions presented by the certificate of division arose upon
general demurrers to the several counts of the indictment. Page 92 U. S. 216 In this Court, the United States abandons the first and third
counts and expressly waives the consideration of all claims not
arising out of the enforcement of the Fifteenth Amendment of the
Constitution.

															After this concession, the principal question left for
consideration is whether the act under which the indictment is
found can be made effective for the punishment of inspectors of
elections who refuse to receive and count the votes of citizens of
the United States, having all the qualifications of voters, because
of their race, color, or previous condition of servitude.

															If Congress has not declared an act done within a state to be a
crime against the United States, the courts have no power to treat
it as such. United States v.
Hudson , 7 Cranch 32. It is not claimed that there
is any statute which can reach this case unless it be the one in
question.

															Looking, then, to this statute, we find that its first section
provides that all citizens of the United States who are or shall be
otherwise qualified by law to vote at any election &c., shall
be entitled and allowed to vote thereat without distinction of
race, color, or previous condition of servitude, any constitution
&c., of the state to the contrary notwithstanding. This simply
declares a right, without providing a punishment for its
violation.

															The second section provides for the punishment of any officer
charged with the duty of furnishing to citizens an opportunity to
perform any act, which, by the constitution or laws of any state,
is made a prerequisite or qualification of voting, who shall omit
to give all citizens of the United States the same and equal
opportunity to perform such prerequisite, and become qualified on
account of the race, color, or previous condition of servitude, of
the applicant. This does not apply to or include the inspectors of
an election whose only duty it is to receive and count the votes of
citizens, designated by law as voters, who have already become
qualified to vote at the election.

															The third section is to the effect that whenever, by or under
the constitution or laws of any state &c., any act is or shall
be required to be done by any citizen as a prerequisite to qualify
or entitle him to vote, the offer of such citizen to perform the
act required to be done "as aforesaid" shall, if it Page 92 U. S. 217 fail to be carried into execution by reason of the wrongful act
or omission "aforesaid" of the person or officer charged with the
duty of receiving or permitting such performance, or offer to
perform, or acting thereon, be deemed and held as a performance in
law of such act; and the person so offering and failing as
aforesaid, and being otherwise qualified, shall be entitled to vote
in the same manner, and to the same extent, as if he had in fact
performed such act, and any judge, inspector, or other officer of
election whose duty it is to receive, count &c., or give effect
to the vote of any such citizen, who shall wrongfully refuse or
omit to receive, count &c., the vote of such citizen, upon the
presentation by him of his affidavit stating such offer, and the
time and place thereof, and the name of the person or officer whose
duty it was to act thereon, and that he was wrongfully prevented by
such person or officer from performing such act, shall, for every
such offense, forfeit and pay, &c.

															The fourth section provides for the punishment of any person who
shall, by force, bribery, threats, intimidation, or other unlawful
means, hinder, delay &c., or shall combine with others to
hinder, delay, prevent, or obstruct, any citizen from doing any act
required to be done to qualify him to vote, or from voting, at any
election.

															The second count in the indictment is based upon the fourth
section of this act, and the fourth upon the third section.

															Rights and immunities created by or dependant upon the
Constitution of the United States can be protected by Congress. The
form and the manner of the protection may be such as Congress, in
the legitimate exercise of its legislative discretion, shall
provide. These may be varied to meet the necessities of the
particular right to be protected.

															The Fifteenth Amendment does not confer the right of suffrage
upon anyone. It prevents the states, or the United States, however,
from giving preference, in this particular, to one citizen of the
United States over another on account of race, color, or previous
condition of servitude. Before its adoption, this could be done. It
was as much within the power of a state to exclude citizens of the
United States from voting on account of race &c., as it was on
account of age, property, Page 92 U. S. 218 or education. Now it is not. If citizens of one race having
certain qualifications are permitted by law to vote, those of
another having the same qualifications must be. Previous to this
amendment, there was no constitutional guaranty against this
discrimination; now there is. It follows that the amendment has
invested the citizens of the United States with a new
constitutional right which is within the protecting power of
Congress. That right is exemption from discrimination in the
exercise of the elective franchise on account of race, color, or
previous condition of servitude. This, under the express provisions
of the second section of the amendment, Congress may enforce by
"appropriate legislation."

															This leads us to inquire whether the act now under consideration
is "appropriate legislation" for that purpose. The power of
Congress to legislate at all upon the subject of voting at state
elections rests upon this amendment. The effect of art. 1, sec. 4,
of the Constitution, in respect to elections for senators and
representatives, is not now under consideration. It has not been
contended, nor can it be, that the amendment confers authority to
impose penalties for every wrongful refusal to receive the vote of
a qualified elector at state elections. It is only when the
wrongful refusal at such an election is because of race, color, or
previous condition of servitude that Congress can interfere and
provide for its punishment. If, therefore, the third and fourth
sections of the act are beyond that limit, they are
unauthorized.

															The third section does not in express terms limit the offense of
an inspector of elections, for which the punishment is provided, to
a wrongful discrimination on account of race, &c. This is
conceded, but it is urged that when this section is construed with
those which precede it and to which, as is claimed, it refers, it
is so limited. The argument is that the only wrongful act on the
part of the officer whose duty it is to receive or permit the
requisite qualification, which can dispense with actual
qualification under the state laws, and substitute the prescribed
affidavit therefor, is that mentioned and prohibited in sec. 2 --
to-wit, discrimination on account of race, &c., and that
consequently sec. 3 is confined in its operation to the same
wrongful discrimination. Page 92 U. S. 219 This is a penal statute, and must be construed strictly; not so
strictly, indeed, as to defeat the clear intention of Congress, but
the words employed must be understood in the sense they were
obviously used. United States v.
Wiltberger , 5 Wheat. 76, 85 [argument of counsel --
omitted]. If, taking the whole statute together, it is apparent
that it was not the intention of Congress thus to limit the
operation of the act, we cannot give it that effect.

															The statute contemplates a most important change in the election
laws. Previous to its adoption, the states, as a general rule,
regulated in their own way all the details of all elections. They
prescribed the qualifications of voters and the manner in which
those offering to vote at an election should make known their
qualifications to the officers in charge. This act interferes with
this practice, and prescribes rules not provided by the laws of the
states. It substitutes, under certain circumstances, performance
wrongfully prevented for performance itself. If the elector makes
and presents his affidavit in the form and to the effect
prescribed, the inspectors are to treat this as the equivalent of
the specified requirement of the state law. This is a radical
change in the practice, and the statute which creates it should be
explicit in its terms. Nothing should be left to construction if it
can be avoided. The law ought not to be in such a condition that
the elector may act upon one idea of its meaning and the inspector
upon another.

															The elector, under the provisions of the statute, is only
required to state in his affidavit that he has been wrongfully
prevented by the officer from qualifying. There are no words of
limitation in this part of the section. In a case like this, if an
affidavit is in the language of the statute, it ought to be
sufficient both for the voter and the inspector. Laws which
prohibit the doing of things and provide a punishment for their
violation should have no double meaning. A citizen should not
unnecessarily be placed where, by an honest error in the
construction of a penal statute, he may be subjected to a
prosecution for a false oath, and an inspector of elections should
not be put in jeopardy because he, with equal honesty, entertains
an opposite opinion. If this statute limits the wrongful act which
will justify the affidavit to discrimination on account of race
&c., then a citizen who makes an affidavit that he has been Page 92 U. S. 220 wrongfully prevented by the officer, which is true in the
ordinary sense of that term, subjects himself to indictment and
trial, if not to conviction, because it is not true that he has
been prevented by such a wrongful act as the statute contemplated;
and if there is no such limitation, but any wrongful Act of
exclusion will justify the affidavit and give the right to vote
without the actual performance of the prerequisite, then the
inspector who rejects the vote because he reads the law in its
limited sense, and thinks it is confined to a wrongful
discrimination on account of race &c., subjects himself to
prosecution, if not to punishment, because he has misconstrued the
law. Penal statutes ought not to be expressed in language so
uncertain. If the legislature undertakes to define by statute a new
offense and provide for its punishment, it should express its will
in language that need not deceive the common mind. Every man should
be able to know with certainty when he is committing a crime.

															But when we go beyond the third section and read the fourth, we
find there no words of limitation, or reference even, that can be
construed as manifesting any intention to confine its provisions to
the terms of the Fifteenth Amendment. That section has for its
object the punishment of all persons who, by force, bribery
&c., hinder, delay &c., any person from qualifying or
voting. In view of all these facts, we feel compelled to say that
in our opinion, the language of the third and fourth sections does
not confine their operation to unlawful discriminations on account
of race, &c. If Congress had the power to provide generally for
the punishment of those who unlawfully interfere to prevent the
exercise of the elective franchise without regard to such
discrimination, the language of these sections would be broad
enough for that purpose.

															It remains now to consider whether a statute, so general as this
in its provisions, can be made available for the punishment of
those who may be guilty of unlawful discrimination against citizens
of the United States, while exercising the elective franchise, on
account of their race, &c.

															There is no attempt in the sections now under consideration to
provide specifically for such an offense. If the case is provided
for at all, it is because it comes under the general
prohibition Page 92 U. S. 221 against any wrongful act or unlawful obstruction in this
particular. We are therefore directly called upon to decide whether
a penal statute enacted by Congress, with its limited powers, which
is in general language broad enough to cover wrongful acts without
as well as within the constitutional jurisdiction, can be limited
by judicial construction so as to make it operate only on that
which Congress may rightfully prohibit and punish. For this
purpose, we must take these sections of the statute as they are. We
are not able to reject a part which is unconstitutional and retain
the remainder, because it is not possible to separate that which is
unconstitutional, if there be any such, from that which is not. The
proposed effect is not to be attained by striking out or
disregarding words that are in the section, but by inserting those
that are not now there. Each of the sections must stand as a whole,
or fall altogether. The language is plain. There is no room for
construction unless it be as to the effect of the Constitution. The
question, then, to be determined is whether we can introduce words
of limitation into a penal statute so as to make it specific when,
as expressed, it is general only.

															It would certainly be dangerous if the legislature could set a
net large enough to catch all possible offenders and leave it to
the courts to step inside and say who could be rightfully detained,
and who should be set at large. This would to some extent
substitute the judicial for the legislative department of the
government. The courts enforce the legislative will when
ascertained, if within the constitutional grant of power. Within
its legitimate sphere, Congress is supreme and beyond the control
of the courts; but if it steps outside of its constitutional
limitations and attempts that which is beyond its reach, the courts
are authorized to, and when called upon in due course of legal
proceedings must, annul its encroachments upon the reserved power
of the states and the people.

															To limit this statute in the manner now asked for would be to
make a new law, not to enforce an old one. This is no part of our
duty.

															We must therefore decide that Congress has not as yet provided
by "appropriate legislation" for the punishment of the offense
charged in the indictment, and that the circuit court Page 92 U. S. 222 properly sustained the demurrers and gave judgment for the
defendants.

															This makes it unnecessary to answer any of the other questions
certified. Since the law which gives the presiding judge the
casting vote in cases of division, and authorizes a judgment in
accordance with his opinion, Rev.Stat., sec. 650, if we find that
the judgment as rendered is correct, we need not do more than
affirm. If, however, we reverse, all questions certified, which may
be considered in the final determination of the case according to
the opinion we express, should be answered. Judgment affirmed. MR. JUSTICE CLIFFORD and MR. JUSTICE HUNT dissenting.

															MR. JUSTICE CLIFFORD:

															I concur that the indictment is bad, but for reasons widely
different from those assigned by the Court.

															States, as well as the United States, are prohibited by the
Fifteenth Amendment of the Constitution from denying or abridging
the right of citizens of the United States to vote on account of
race, color, or previous condition of servitude, and power is
vested in Congress by the second article of that amendment to
enforce that prohibition "by appropriate legislation."

															Since the adoption of that amendment, Congress has legislated
upon the subject, and, by the first section of the Enforcement Act,
it is provided that citizens of the United States, without
distinction of race, color, or previous condition of servitude,
shall, if otherwise qualified to vote in state, territorial, or
municipal elections, be entitled and allowed to vote at all such
elections, any constitution, law, custom, usage, or regulation of
any state or territory or by or under its authority, to the
contrary notwithstanding.

															Beyond doubt that section forbids all discrimination between
white citizens and citizens of color in respect to their right to
vote; but the section does not provide that the person or officer
making such discrimination shall be guilty of any offense, nor does
it prescribe that the person or officer guilty of making such
discrimination shall be subject to any fine, penalty, or Page 92 U. S. 223 punishment whatever. None of the counts of the indictment in
this case, however, is framed under that section; nor will it be
necessary to give it any further consideration except so far as it
may aid in the construction of the other sections of the act. 16
Stat. 140.

															Sec. 2 of the act will deserve more examination, as it assumes
that certain acts are or may be required to be done by or under the
authority of the constitution or laws of certain states, or the
laws of certain territories, as a prerequisite or qualification for
voting, and that certain persons or officers are or may be, by such
constitution or laws, charged with the performance of duties in
furnishing to such citizens an opportunity to perform such
prerequisites to become qualified to vote, and provides that it
shall be the duty of every such person or officer to give all such
citizens, without distinction of race, color, or previous condition
of servitude, the same and equal opportunity to perform such
prerequisites to become qualified to vote.

															Equal opportunity is required by that section to be given to all
such citizens, without distinction of race, color, or previous
condition of servitude, to perform the described prerequisite, and
the further provision of the same section is that if any such
person or officer charged with the performance of the described
duties shall refuse or knowingly omit to give full effect to the
requirements of that section, he shall for every such offense
forfeit and pay $500 to the person aggrieved, and also be deemed
guilty of a misdemeanor and punished as therein provided. Other
sections applicable to the subject are contained in the Enforcement
Act, to which reference will hereafter be made. 16 id. 141.

															1. Four counts are exhibited in the indictment against the
defendants, and the record shows that the defendants filed a
demurrer to each of the counts, which was joined in behalf of the
United States. Two of the counts -- to-wit, the first and the third
-- having been abandoned at the argument, the examination will be
confined to the second and the fourth. By the record, it also
appears that the defendants, together with one William Farnaugh, on
the 30th of January, 1873, were the lawful inspectors of a
municipal election held on that day in the City of Lexington, in
the State of Kentucky, pursuant to Page 92 U. S. 224 the constitution and laws of that state, and that they, as such
inspectors, were then and there charged by law with the duty of
receiving, counting, certifying, registering, reporting, and giving
effect to the vote of all citizens qualified to vote at said
election in Ward 3 of the city, and the accusation set forth in the
second count of the indictment is that one William Garner, at said
municipal election, offered to the said inspectors at the polls of
said election in said Ward 3 to vote for members of the said city
council, the said poll being then and there the lawful and proper
voting place and precinct of the said William Garner, who was then
and there a free male citizen of the United States and of the
state, of African descent and having then and there resided in said
state more than two years, and in said city more than one year,
next preceding said election, and having been a resident of said
voting precinct and ward in which he offered to vote more than
sixty days immediately prior to said election, and being then and
there, at the time of such offer to vote, qualified and entitled,
as alleged, by the laws of the state, to vote at said election.

															Offer in due form to vote at the said election having been made,
as alleged, by the said William Garner, the charge is that the said
William Farnaugh consented to receive, count, register, and give
effect to the vote of the party offering the same; but that the
defendants, constituting the majority of the inspectors at the
election, and as such having the power to receive or reject all
votes offered at said poll, did then and there, when the said party
offered to vote, unlawfully agree and confer with each other that
they, as such inspectors, would not take, receive, certify,
register, report, or give effect to the vote of any voters of
African descent offered at said election unless the voter so
offering to vote, besides being otherwise qualified to vote, had
paid to said city the capitation tax of one dollar and fifty cents
for the preceding year, on or before the 15th of January prior to
the day of the election, which said agreement, the pleader alleges,
was then and there made with intent thereby to hinder, prevent, and
obstruct all voters of African descent on account of their race and
color, though lawfully entitled to vote at said election, from so
voting. Taken separately, that allegation would afford some support
to the Page 92 U. S. 225 theory of the United States, but it must be considered in
connection with the allegation which immediately follows it in the
same count, where it is alleged as follows: that the defendants, in
pursuance of said unlawful agreement, did then and there, at the
election aforesaid, wrongfully and illegally require and demand of
said party, when he offered to vote as aforesaid, that he should,
as a prerequisite and qualification to his voting at said election,
produce evidence of his having paid to said city or its proper
officers the said capitation tax of one dollar and fifty cents for
the year preceding, on or before the 15th of January preceding the
day of said election, and the averment is to the effect that the
party offering his vote then and there refused to comply with that
illegal requirement and demand, or to produce the evidence so
demanded and required.

															Offenses created by statute, as well as offenses created at
common law, with rare exceptions, consist of more than one
ingredient, and in some cases of many, and the rule is universal
that every ingredient of which the offense is composed must be
accurately and clearly alleged in the indictment or the indictment
will be bad on demurrer, or it may be quashed on motion, or the
judgment may be arrested before sentence, or be reversed on a writ
of error. United States v.
Cook , 17 Wall. 174.

															Matters well pleaded, it is true, are admitted by the demurrer;
but it is equally true that every ingredient of the offense must be
accurately and clearly described and that no indictment is
sufficient if it does not accurately and clearly describe all the
ingredients of which the offense is composed.

															Citizens of the United States, without distinction of race,
color, or previous condition of servitude, if otherwise qualified
to vote at a state, territorial, or municipal election, shall be
entitled and allowed to vote at such an election, even though the
constitution, laws, customs, usages, or regulations of the state or
territory do not allow, or even prohibit, such voter from
exercising that right. 16 Stat. 140, sec. 1.

															Evidently the purpose of that section is to place the male
citizen of color, as an elector, on the same footing with the white
male citizen. Nothing else was intended by that provision, Page 92 U. S. 226 as is evident from the fact that it does not profess to enlarge
or vary the prior existing right of white male citizens in any
respect whatever. Conclusive support to that theory is also derived
from the second section of the same act, which was obviously passed
to enforce obedience to the rule forbidding discrimination between
colored male citizens and white male citizens in respect to their
right to vote at such elections.

															By the charter of the City of Lexington, it is provided that a
tax shall be levied on each free male inhabitant of twenty-one
years of age and upwards, except paupers, inhabiting said city, at
a ratio not exceeding one dollar and fifty cents each. Sess.Laws
1867, p. 441.

															Such citizens, without distinction of race, color, or previous
condition of servitude, in order that they may be entitled to vote
at any such election, must be free male citizens

															"over twenty-one years of age, have been a resident of the city
at least six months, and of the ward in which he resides at least
sixty days, prior to the day of the election, and have paid the
capitation tax assessed by the city on or before the 15th of
January preceding the day of election."

															2 Sess.Laws 1870, p. 71.

															White male citizens, not possessing the qualifications to vote
required by law, find no guaranty of the right to exercise that
privilege by the first section of the Enforcement Act; but the
mandate of the section is explicit and imperative, that all
citizens, without distinction of race, color, or previous condition
of servitude, if otherwise qualified to vote at any state,
territorial, or municipal election, shall be entitled and allowed
to vote at all such elections, even though forbidden so to do, on
account of race, color, or previous condition of servitude, by the
constitution of the state, or by the laws, custom, usage, or
regulation of the state or territory, where the election is
held.

															Disability to vote of every kind, arising from race, color, or
previous condition of servitude, is declared by the first section
of that act to be removed from the colored male citizen; but unless
otherwise qualified by law to vote at such an election, he is no
more entitled to enjoy that privilege than a white male citizen who
does not possess the qualifications required by law to constitute
him a legal voter at such an election. Page 92 U. S. 227 Legal disability to vote at any such election, arising from
race, color, or previous condition of servitude, is removed by the
Fifteenth Amendment, as affirmed in the first section of the
Enforcement Act; but the Congress knew full well that cases would
arise where the want of other qualifications, if not removed, might
prevent the colored citizen from exercising the right of suffrage
at such an election, and the intent and purpose of the second
section of the act are to furnish to all citizens an opportunity to
remove every such other disability to enable them to become
qualified to exercise that right, and to punish persons and
officers charged with any duty in that regard who unlawfully and
wrongfully refuse or willfully omit to cooperate to that end. Hence
it is provided that where any act is or shall be required to be
done as a prerequisite or qualification for voting, and persons or
officers are charged in the manner stated with the performance of
duties in furnishing to citizens an opportunity to perform such
prerequisite or to become qualified to vote, it shall be the duty
of every such person and officer to give all citizens, without
distinction of race, color, or previous condition of servitude, the
same and equal opportunity to perform such prerequisite, and to
become qualified to vote.

															Persons or officers who wrongfully refuse or knowingly omit to
perform the duty with which they are charged by that clause of the
second section of the Enforcement Act commit the offense defined by
that section, and incur the penalty, and subject themselves to the
punishment, prescribed for that offense.

															Enough appears in the second court of the indictment to show
beyond all question that it cannot be sustained under the second
section of the Enforcement Act, as the count expressly alleges that
the defendants as such inspectors, at the time the complaining
party offered his vote, refused to receive and count the same
because he did not produce evidence that he had paid to the city
the capitation tax of one dollar and fifty cents assessed against
him for the preceding year, which payment, it appears by the law of
the state, is a prerequisite and necessary qualification to enable
any citizen to vote at that election, without distinction of race,
color, or previous condition of servitude; and the express
allegation of the count is that the party offering his vote then
and there refused to comply with that prerequisite, Page 92 U. S. 228 and then and there demanded that his vote should be received and
counted without his complying with that prerequisite.

															Argument to show that such allegations are insufficient to
constitute the offense defined in the second section of the
Enforcement Act or any other section of that act is quite
unnecessary, as it appears in the very terms of the allegations
that the party offering his vote was not, irrespective of his race,
color, or previous condition of servitude, a qualified voter at
such an election by the law of the state where the election was
held.

															Persons within the category described in the first section of
the Enforcement Act, of whom it is enacted that they shall be
entitled and allowed to vote at such an election, without
distinction of race, color, or previous condition of servitude, are
citizens of the United States otherwise qualified to vote at the
election pending, and inasmuch as it is not alleged in the count
that the party offering his vote in this case was otherwise
qualified by law to vote at the time he offered his vote, and
inasmuch as no excuse is pleaded for not producing evidence to
establish that prerequisite of qualification, it is clear that the
supposed offense is not set forth with sufficient certainty to
justify a conviction and sentence of the accused.

															2. Defects also exist in the fourth count, but it becomes
necessary, before considering the questions which those defects
present, to examine with care the third section of the Enforcement
Act. Sec. 3 of that act differs in some respects from the second
section -- as, for example, sec. 3 provides that whenever under the
constitution and laws of a state or the laws of a territory any act
is or shall be required to be done by any such citizen as a
prerequisite to qualify or entitle him to vote, the offer of any
such citizen to perform the act required to be done as aforesaid
shall, if it fail to be carried into execution by reason of the
wrongful act or omission aforesaid of the person or officer charged
with the duty of receiving or permitting such performance or offer
to perform, be deemed and held as a performance in law of such act,
and the person so offering and failing as aforesaid, and being
otherwise qualified, shall be entitled to vote in the same manner
and to the same extent as if he had in fact performed the said act.
By that clause of the section, it is enacted that the offer of the
party interested to Page 92 U. S. 229 perform the prerequisite act to qualify or entitle him to vote
shall, if it fail for the reason specified, have the same effect as
the actual performance of the prerequisite act would have; and the
further provision is that any judge, inspector, or other officer of
election, whose duty it is or shall be to receive, count, certify,
register, report, or give effect to the vote of such citizen, upon
the presentation by him of his affidavit, stating such offer and
the time and place thereof, and the name of the officer or person
whose duty it was to act thereon, and that he was wrongfully
prevented by such person or officer from performing such act, shall
for every such offense forfeit and pay the sum of $500 dollars to
the person aggrieved, and also be guilty of a misdemeanor.

															Payment of the capitation tax on or before the 15th of January
preceding the day of the election is beyond all doubt one of the
prerequisite acts, if not the only one, referred to in that part of
the section, and it is equally clear that the introductory clause
of the section is wholly inapplicable to a case where the citizen,
claiming the right to vote at such an election, has actually paid
the capitation tax as required by the election law of the state.
Voters who have seasonably paid the tax are in no need of any
opportunity to perform such a prerequisite to qualify them to vote;
but the third section of the act was passed to provide for a class
of citizens who had not paid the tax, and who had offered to pay
it, and the offer had failed to be carried into execution by reason
of the wrongful act or omission of the person or officer charged
with the duty of receiving or permitting the performance of such
prerequisite.

															Qualified voters by the law of the state are male citizens over
twenty-one years of age who have been residents of the city at
least six months and of the ward in which they reside at least
sixty days, immediately prior to the day of the election, and who
have paid the capitation tax assessed by the city on or before the
fifteenth day of January preceding the day of the election.
Obviously the payment of the capitation tax on or before the time
mentioned is a prerequisite to qualify the citizen to vote, and the
purpose of the second section is to secure to the citizen an
opportunity to perform that prerequisite and to punish the persons
and officers charged with the duty of Page 92 U. S. 230 furnishing the citizen with such an opportunity to perform such
prerequisite in case such person or officer refuses or knowingly
omits to do his duty in that regard. Grant that, still it is clear
that the punishment of the offender would not retroact and give
effect to the right of the citizen to vote, nor secure to the
public the right to have his vote received, counted, registered,
reported, and made effectual at that election.

															3. Injustice of the kind, it was foreseen, might be done, and to
remedy that difficulty the third section was passed, the purpose of
which is to provide that the offer of any such citizen to perform
such prerequisite, if the offer fails to be carried into execution
by reason of the wrongful act or omission of the person or officer
charged with the duty of receiving or permitting such performance,
shall be deemed and held as a performance in law of such act and
prerequisite; and the person so offering to perform such
prerequisite, and so failing by reason of the wrongful act or
omission of the person or officer charged with such duty, if
otherwise qualified, shall be entitled to vote in the same manner
and to the same extent as if he had, in fact, performed such
prerequisite act. Nothing short of the performance of the
prerequisite act will entitle any citizen to vote at any such
election in that state if the opportunity to perform the
prerequisite is furnished as required by the Act of Congress, but
if those whose duty it is to furnish the opportunity to perform the
act refuse or omit so to do, then the offer to perform such
prerequisite act, if the offer fails to be carried into execution
by the wrongful act or omission of those whose duty it is to
receive and permit the performance of the prerequisite act, shall
have the same effect in law as the actual performance.

															Such an offer to perform can have the same effect in law as
actual performance only in case where it fails to be carried into
execution by reason of the wrongful act or omission of the person
or officer charged with the duty of receiving or permitting such
performance, from which it follows that the offer must be made in
such terms and under such circumstances that if it should be
received and carried into execution, it would constitute a legal
and complete performance of the prerequisite act. What the law of
the state requires in that regard is that Page 92 U. S. 231 the citizen offering to vote at such an election should have
paid the capitation tax assessed by the city, which in this case
was one dollar and fifty cents, on or before the 15th of January
preceding the day of election. Unless the offer is made in such
terms and under such circumstances that if it is accepted and
carried into execution, it would constitute a legal and complete
performance of the prerequisite act, the person or officer who
refused or omitted to carry the offer into execution would not
incur the penalty nor be guilty of the offense defined by that
section of the act, for it could not be properly alleged that it
failed to be carried into effect by the wrongful act or omission of
the person or officer charged with the duty of receiving and
permitting such performance.

															Viewed in the light of these suggestions, it must be that the
offer contemplated by the third section of the act is an offer made
in such terms and under such circumstances that if it be accepted
and carried into execution by the person or officer to whom it is
made, it will constitute a complete performance of the prerequisite
and show that the party making the offer, if otherwise qualified,
is entitled to vote at the election.

															Evidence is entirely wanting to show that the authors of the
Enforcement Act ever intended to abrogate any state election law
except so far as it denies or abridges the right of the citizen to
vote on account of race, color, or previous condition of servitude.
Every discrimination on that account is forbidden by the Fifteenth
Amendment, and the first section of the act under consideration
provides, as before remarked, that

															"all citizens, otherwise qualified to vote, . . . shall
be entitled and allowed to vote, . . . without distinction of race,
color, or previous condition of servitude, any constitution,
law"

															&c., to the contrary notwithstanding. State election laws
creating such discriminations are superseded in that regard by the
Fifteenth Amendment, but the Enforcement Act furnishes no ground to
infer that the lawmakers intended to annul the state election laws
in any other respect whatever. Had Congress intended by the third
section of that act to abrogate the election law of the state
creating the prerequisite in question, it is quite clear that the
second section would have been wholly unnecessary, as it would be a
useless regulation to provide the Page 92 U. S. 232 means to enable citizens to comply with a prerequisite which is
abrogated and treated as null by the succeeding section. Statutes
should be interpreted, if practicable, so as to avoid any
repugnancy between the different parts of the same and to give a
sensible and intelligent effect to every one of their provisions;
nor is it ever to be presumed that any part of a statute is
supererogatory or without meaning. Potter's Dwarris 145.

															Difficulties of the kind are all avoided if it be held that the
second section was enacted to afford citizens an opportunity to
perform the prerequisite act to qualify themselves to vote, and to
punish the person or officer who refuses or knowingly omits to
perform his duty in furnishing them with that opportunity, and that
the intent and purpose of the third section are to protect such
citizens from the consequences of the wrongful refusal or willful
omission of such person or officer to receive and give effect to
the actual offer of such citizen to perform such prerequisite, if
made in terms and under such circumstances that the offer, if
accepted and carried into execution, would constitute an actual and
complete performance of the act made a prerequisite to the right of
voting by the state law. Apply these suggestions to the fourth
count of the indictment and it is clear that the allegations in
that regard are insufficient to describe the offense defined by the
third section of the Enforcement Act.

															4. Beyond all doubt, the general rule is that in an indictment
for an offense created by statute, it is sufficient to describe the
offense in the words of the statute, and it is safe to admit that
that general rule is supported by many decided cases of the highest
authority; but it is equally certain that exceptions exist to the
rule, which are as well established as the rule itself, most of
which result from another rule of criminal pleading, which, in
framing indictments founded upon statutes, is paramount to all
others and is one of universal application -- that every ingredient
of the offense must be accurately and clearly expressed, or in
other words that the indictment must contain an allegation of every
fact which is legally essential to the punishment to be inflicted. United States v.
Cook , 17 Wall. 174.

															Speaking of that principle, Mr. Bishop says it pervades the Page 92 U. S. 233 entire system of the adjudged law of criminal procedure, as
appears by all the cases; that wherever we move in that department
of our jurisprudence, we come in contact with it; and that we can
no more escape from it than from the atmosphere which surrounds us.
1 Bishop, Cr.Pro., 2d ed., sec. 81; Archbold's Crim.Plead., 15th
ed., 54; 1 Stark Crim.Plead., 236; 1 Am.Cr.Law, 6th rev. ed., sec.
364; Steel v. Smith, 1 Barn. & Ald. 99.

															Examples of the kind, where it has been held that exceptions
exist to the rule that it is sufficient in an indictment founded
upon a statute to follow the words of the statute, are very
numerous and show that many of the exceptions have become as
extensively recognized and are as firmly settled as any rule of
pleading in the criminal law. Moreover, says Mr. Bishop, there must
be such an averment of facts as shows prima facie guilt in
the defendant, and if, supposing all the facts set out to be true,
there is, because of the possible nonexistence of some fact not
mentioned, room to escape from the prima facie conclusion
of guilt, the indictment is insufficient, which is the exact case
before the court. 1 Bishop, Cr.Pro., 2d ed., sec. 325.

															It is plain, says the same learned author, that if, after a full
expression has been given to the statutory terms, any of the other
rules relating to the indictment are left uncomplied with, the
indictment is still insufficient. To it must be added what will
conform also to the other rules. Consequently the general doctrine
that the indictment is sufficient if it follows the words of the
statute creating and defining the offense, is subject to
exceptions, requiring the allegation to be expanded beyond the
prohibiting terms. 1 id., sec. 623.

															In general, says Marshall, C.J., it is sufficient in a libel
(being a libel of information) to charge the offense in the very
words which direct the forfeiture; but the proposition is not, we
think, universally true. If the words which describe the subject of
the law are general, . . . we think the charge in the libel ought
to conform to the true sense and meaning of those words as used by
the legislature. The Mary
Ann , 8 Wheat. 389.

															Similar views are expressed by this Court in United
States v. Page 92 U. S. 234 Gooding, 12 Wheat. 474, in which the opinion was given
by Mr. Justice Story. Having first stated the general rule that it
is sufficient certainty in an indictment to allege the offense in
the very terms of the Statute, he proceeds to remark,

															"We say in general for there are doubtless cases where more
particularity is required, either from the obvious intention of
the legislature or from the application of known
principles of law. Known principles of law require more
particularity in this case, in order that all the ingredients of
the offense may be accurately and clearly alleged, and it is
equally clear that the intention of the legislature also requires
the same thing, as it is obvious that the mere statement of the
party that he offered to perform the prerequisite was never
intended to be made equivalent to performance unless such statement
was accompanied by an offer to pay the tax, and under circumstances
which shown that he was ready and able to make the payment.
Authorities are not necessary to prove that an indictment upon a
statute must state all such facts and circumstances as constitute
the statute offense, so as to bring the party indicted precisely
within the provisions of the statute defining the offense."

															Statutes are often framed, says Colby, to meet the relations of
parties to each other, to prevent frauds by the one upon the other,
and in framing such statutes, the language used is often
elliptical, leaving some of the circumstances expressive of the
relations of the parties to each other to be supplied by intendment
or construction. In all such cases, the facts and circumstances
constituting such relation must be alleged in the indictment,
though not expressed in the words of the statute. 2 Colby, Cr.Law,
114; People v. Wibur, 4 Park Cr.Cas. 21; Com. v.
Cook, 18 B.Monr. 149; Pearce v. State, 1 Sneed 63; People v. Stone, 9 Wend. 191; Whiting v. State, 14 Conn. 487; Anthony v. State, 29 Ala. 27; 1 Am.Cr.Law,
6th rev. ed., sec. 364, note d , and cases cited.

															Like the preceding counts, the preliminary allegations of the
fourth count are without objection; and the jury proceed to present
that the party offering to vote, having then and there all the
qualifications, as to age, citizenship, and residence, required by
the state law, did, on the thirtieth day of January, 1873, in order that he might become qualified to vote at said
election, Page 92 U. S. 235 offer to the collector at his office in said city to pay any
capitation tax due from him to said city, or any capitation tax
that had been theretofore assessed against him by said city, or
which could be assessed against him by said city, or which said
city or said collector claimed was due from him to said city, and
that the said collector then and there wrongfully refused, on
account of his race or color, to give the said party an opportunity
to pay said capitation tax for the preceding year, and then and
there wrongfully refused to receive said tax from the said party in
order that he might become qualified to vote at said election, the
said collector having then and there given to citizens of the white
race an opportunity to pay such taxes due from them to said city,
in order that they might become qualified for that purpose.

															All that is there alleged may be admitted, and yet it may be
true that the complaining party never made any offer at the time
and place mentioned to pay the capitation tax of one dollar and
fifty cents due to the city at the time and place mentioned, in
such terms, and under such circumstances, that if the offer as made
had been accepted by the person or officer to whom the offer was
made, and that such person or officer had done everything which it
was his duty to do, or everything which it was in his power to do,
to carry it into effect, the offer would have constituted
performance of the prerequisite act.

															Actual payment of the capitation tax on or before the 15th of
January preceding the day of election is the prerequisite act to be
performed to qualify the citizen, without distinction of race,
color, or previous condition of servitude, to vote at said
election. Such an offer, therefore, in order that it may be deemed
and held as a performance in law of such prerequisite, must be an
offer to pay the amount of the capitation tax; and the party making
the offer must then and there possess the ability and means to pay
the amount to the person or officer to whom the offer is made, for
unless payment of the amount of tax is then and there made to the
said person or officer, he would not be authorized to discharge the
tax, and could not carry the offer into execution without violating
his duty to the city.

															5. Readiness to pay, therefore, is necessarily implied from Page 92 U. S. 236 the language of the third section, as it is only in case the
offer fails to be carried into execution by reason of the wrongful
act or omission of the person or officer charged with the duty of
receiving or permitting such performance that the offer can be
deemed and held as performance in law of such prerequisite act.
Where the party making the offer is not ready to pay the tax to the
person or officer to whom the offer is made, and has not then and
there the means to make the payment, it cannot be held that the
offer fails to be carried into execution by reason of the wrongful
act or omission of the person or officer to whom the offer is made,
as it would be a perversion of law and good sense to hold that it
is the duty of such a person or officer to carry such an offer into
execution by discharging the tax without receiving the amount of
the tax from the party making the offer of performance.

															Giving full effect to the several allegations of the count,
nothing approximating to such a requirement is therein alleged, nor
can anything of the kind be implied from the word "offer" as used
in any part of the indictment. Performance of that prerequisite, by
citizens otherwise qualified, entitles all such, without
distinction of race, color, or previous condition of servitude, to
vote at such an election, and the offer to perform the same, if the
offer is made in terms, and under such circumstances, that if it be
accepted and carried into execution, it will constitute
performance, will also entitle such citizens to vote in the same
manner and to the same extent as if they had performed such
prerequisite, provided the offer fails to be carried into execution
by reason of the wrongful act or omission of the person or officer
charged with the duty of receiving and permitting such
performance.

															Judges, inspectors, and other officers of elections, must take
notice of these provisions, as they constitute the most essential
element or ingredient of the offense defined by the third section
of the act. Officers of the elections, whether judges or
inspectors, are required to carry those regulations into full
effect, and the provision is, that any judge, inspector, or other
officer of election, whose duty it is or shall be to receive,
count, certify, register, report, or give effect to the vote of
such citizens, who shall wrongfully refuse or omit to receive,
count, certify, Page 92 U. S. 237 register, or give effect to the vote of any such citizen, upon
the presentation by him of his affidavit stating such offer, and
the time and place thereof, and the name of the officer or person
whose duty it was to act on such offer, and that he, the citizen,
was wrongfully prevented by such person or officer from performing
such prerequisite act, shall for every such offense forfeit and pay
the sum of $500 to the person aggrieved, and also be guilty of a
misdemeanor, and be fined and imprisoned as therein provided.

															6. Of course, it must be assumed that the terms of the affidavit
were exactly the same as those set forth in the third count of the
indictment, and if so it follows that the word "offer" used in the
affidavit must receive the same construction as that already given
to the same word in that part of the section which provides that
the offer, if it fail to be carried into execution by reason of the
wrongful act or omission of the person or officer charged with the
duty of receiving or permitting such performance, shall be deemed
and held as a performance in law of such prerequisite act. Decisive
confirmation of that view is derived from the fact that the
complaining party is only required to state in his affidavit the
offer, the time, and the place thereof, the name of the person or
officer whose duty it was to act thereon, and that he, the affiant,
was wrongfully prevented by such person or officer from performing
such prerequisite act.

															None will deny, it is presumed, that the word "offer" in the
affidavit means the same thing as the word "offer" used in the
declaratory part of the same section, and if so it must be held
that the offer described in the affidavit must have been one made
in such terms and under such circumstances that if the offer had
been accepted, it might have been carried into execution by the
person or officer to whom it was made -- or in other words it must
have been an offer to do whatever it was necessary to do to perform
the prerequisite act, and it follows that if the word "offer," as
used in the Act of Congress, necessarily includes readiness to pay
the tax, it is equally clear that the affidavit should contain the
same statement. Plainly it must be so, for unless the offer has
that scope, if it failed to be carried into execution, it could not
be held that the failure was by Page 92 U. S. 238 the wrongful act or omission of the person or officer to whom
the offer was made. Such a construction must be erroneous, for if
adopted it would lead to consequences which would shock the public
sense, as it would require the collector to discharge the tax
without payment, which would be a manifest violation of his duty.
Taken in any point of view, it is clear that the third count of the
indictment is too vague, uncertain, and indefinite in its
allegations to constitute the proper foundation for the conviction
and sentence of the defendants. Even suppose that the signification
of the word "offer" is sufficiently comprehensive to include
readiness to perform, which is explicitly denied, still it is clear
that the offer, as pleaded in the fourth count, was not in season
to constitute a compliance with the prerequisite qualification, for
the reason that the state statute requires that the capitation tax
shall be paid on or before the fifteenth day of January preceding
the day of the election.

															Having come to these conclusions, it is not necessary to examine
the fourth section of the Enforcement Act, for the reason that it
is obvious without much examination that no one of the counts of
the indictment is sufficient to warrant the conviction and sentence
of the defendants for the offense defined in that section.

															MR. JUSTICE HUNT:

															I am compelled to dissent from the judgment of the Court in this
case.

															The defendants were indicted in the Circuit Court of the United
States for the District of Kentucky. Upon the trial, the defendants
were, by the judgment of the court, discharged from the indictment
on account of its alleged insufficiency.

															The fourth count of the indictment contains the allegations
concerning the election in the city of Lexington; that by the
statute of Kentucky, to entitle one to vote at an election in that
state, the voter must possess certain qualifications recited, and
have paid a capitation tax assessed by the City of Lexington; that
James F. Robinson was the collector of said city, entitled to
collect said tax; that Garner, in order that he might be entitled
to vote, did offer to said Robinson, at his office, to pay any
capitation tax which had been or could be assessed against Page 92 U. S. 239 him, or which was claimed against him; that Robinson refused to
receive such tax on account of the race and color of Garner; that
at the time of the election, having the other necessary
qualifications, Garner offered his vote, and at the same time
presented an affidavit to the inspector stating his offer aforesaid
made to Robinson, with the particulars required by the statute, and
the refusal of Robinson to receive the tax; that Farnaugh consented
to receive his vote, but the defendants, constituting a majority of
the inspectors, wrongfully refused to receive the same, which
refusal was on account of the race and color of the said
Garner.

															This indictment is based upon the Act of Congress of May 31,
1870, 16 Stat. 140.

															The first four sections of the act are as follows:

															"SECTION 1. That all citizens of the United States, who are or
shall be otherwise qualified by law to vote at any election by the
people in any state, territory, district, county, city, parish,
township, school district, municipality, or other territorial
subdivision, shall be entitled and allowed to vote at all such
elections, without distinction of race, color, or previous
condition of servitude; any constitution, law, custom, usage, or
regulation of any state or territory, or by or under its authority,
to the contrary notwithstanding."

															"SEC. 2. That if, by or under the authority of the constitution
or laws of any state or the laws of any territory, any act is or
shall be required to be done as a prerequisite or qualification for
voting, and, by such constitution or laws, persons or officers are
or shall be charged with the performance of duties, in furnishing
to citizens an opportunity to perform such prerequisite, or to
become qualified to vote, it shall be the duty of every such person
and officer to give to all citizens of the United States the same
and equal opportunity to perform such prerequisite, and to become
qualified to vote, without distinction of race, color, or previous
condition of servitude, and if any such person or officer shall
refuse or knowingly omit to give full effect to this section, he
shall, for every such offense, forfeit and pay the sum of $500 to
the person aggrieved thereby, to be recovered by an action on the
case with full costs, and such allowance for counsel fees as the
court shall deem just; and shall also, for every such offense, be
deemed guilty of a misdemeanor, and shall, on conviction thereof,
be fined not less than five Page 92 U. S. 240 hundred dollars, or be imprisoned not less than one month and
not more than one year, or both, at the discretion of the
court."

															"SEC. 3. That whenever, by or under the authority of the
constitution or laws of any state, or the laws of any territory,
any act is or shall be required to [be] done by any citizen as a
prerequisite to qualify or entitle him to vote, the offer of any
such citizen to perform the act required to be done as aforesaid
shall, if it fail to be carried into execution by reason of the
wrongful act or omission aforesaid of the person or officer charged
with the duty of receiving or permitting such performance, or offer
to perform, or acting thereon, be deemed and held as a performance
in law of such act; and the person so offering and failing as
aforesaid, and being otherwise qualified, shall be entitled to vote
in the same manner and to the same extent as if he had, in fact,
performed such act; and any judge, inspector, or other officer of
election, whose duty it is or shall be to receive, count, certify,
register, report, or give effect to the vote of any such citizen
who shall wrongfully refuse or omit to receive, count, certify,
register, report, or give effect to the vote of such citizen, upon
the presentation by him of his affidavit stating such offer, and
the time and place thereof, and the name of the officer or person
whose duty it was to act thereon, and that he was wrongfully
prevented by such person or officer from performing such act,
shall, for every such offense, forfeit and pay the sum of $500 to
the person aggrieved thereby, to be recovered by an action on the
case, with full costs, and such allowance for counsel fees as the
court shall deem just; and shall also, for every such offense, be
guilty of a misdemeanor, and shall, on conviction thereof, be fined
not less than $500, or be imprisoned not less than one month and
not more than one year, or both, at the discretion of the
court."

															"SEC. 4. That if any person, by force, bribery, threats,
intimidation, or other unlawful means, shall hinder, delay,
prevent, or obstruct, or shall combine and confederate with others
to hinder, delay, prevent, or obstruct, any citizen from doing any
act required to be done to qualify him to vote or from voting at
any election as aforesaid, such person shall, for every such
offense, forfeit and pay the sum of $500 to the person aggrieved
thereby, to be recovered by an action on the case, with full costs
and such allowance for counsel fees as the court shall deem just,
and shall also, for every such offense, be deemed guilty of a
misdemeanor, and shall, on conviction thereof, be fined not less
than $500, or be imprisoned not less than one month and not more
than one year, or both, at the discretion of the court. " Page 92 U. S. 241 It is said, in opposition to this indictment and in hostility to
the statute under which it is drawn, that while the second section
makes it a penal offense for any officer to refuse an opportunity
to perform the prerequisite therein referred to on account of the
race and color of the party, and therefore an indictment against
that officer may be good as in violation of the Fifteenth
Amendment, the third section, which relates to the inspectors of
elections, omits all reference to race and color, and therefore no
indictment can be sustained against those officers. It is said that
Congress has no power to punish for violation of the rights of an
elector generally, but only where such violation is attributable to
race, color, or condition. It is said also that the prohibition of
an act by Congress in general language is not a prohibition of that
act on account of race or color.

															Hence it is insisted that both the statute and the indictment
are insufficient. This I understand to be the basis of the opinion
of the majority of the court.

															On this I observe:

															1. That the intention of Congress on this subject is too plain
to be discussed. The Fifteenth Amendment had just been adopted, the
object of which was to secure to a lately enslaved population
protection against violations of their right to vote on account of
their color or previous condition. The act is entitled "An Act to
enforce the right of citizens of the United States to vote in the
several states of the Union, and for other purposes." The first
section contains a general announcement that such right is not to
be embarrassed by the fact of race, color, or previous condition.
The second section requires that equal opportunity shall be given
to the races in providing every prerequisite for voting, and that
any officer who violates this provision shall be subject to civil
damages to the extent of $500, and to fine and imprisonment. To
suppose that Congress, in making these provisions, intended to
impose no duty upon, and subject to no penalty, the very officers
who were to perfect the exercise of the right to vote -- to-wit,
the inspectors who receive or reject the votes -- would be quite
absurd.

															2. Garner, a citizen of African descent, had offered to the
collector of taxes to pay any capitation tax existing or
claimed Page 92 U. S. 242 to exist against him as a prerequisite to voting at an election
to be held in the City of Lexington on the thirtieth day of
January, 1873. The collector illegally refused to allow Garner, on
account of his race and color, to make the payment. This brought
Garner and his case within the terms of the third section of the
statute, that "the person so offering and failing as aforesaid" --
that is, who had made the offer which had been illegally rejected
on account of his race and color -- shall be entitled to vote "as
if he had, in fact, performed such act." He then made an affidavit
setting forth these facts, stating, with the particularity required
in the statute, that he was wrongfully prevented from paying the
tax, and presented the same to the inspector, who wrongfully
refused to receive the same, and to permit him to vote, on account
of his race and color.

															A wrongful refusal to receive a vote which was in fact
incompetent only by reason of the act "aforesaid" -- that is, on
account of his race and color -- brings the inspector within the
statutory provisions respecting race and color. By the words "as
aforesaid," the provisions respecting race and color of the first
and second sections of the statute are incorporated into and made a
part of the third and fourth sections.

															To illustrate, sec. 4 enacts that if any person by unlawful
means shall hinder or prevent any citizen from voting at any
election "as aforesaid," he shall be subject to fine and
imprisonment. What do the words, "as aforesaid," mean? They mean,
for the causes and pretenses or upon the grounds in the first and
second sections mentioned -- that is, on account of the race or
color of the person so prevented. All those necessary words are by
this expression incorporated into the fourth section. The same is
true of the words "the wrongful act or omission as aforesaid," and
"the person so offering and failing as aforesaid," in the third
section.

															By this application of the words "as aforesaid," they become
pertinent and pointed. Unless so construed, they are wholly and
absolutely without meaning. No other meaning can possibly be given
to them. "The person (Garner) so offering and failing as aforesaid
shall be entitled to vote as if he had performed the act." He
failed "as aforesaid" on account of his Page 92 U. S. 243 race. The inspectors thereupon "wrongfully refused to receive
his vote" because he had not paid his capitation tax. His race and
color had prevented that payment. The words "hindered and prevented
his voting as aforesaid," in the fourth section, and in the third
section the words "wrongfully refuse" and "as aforesaid,"
sufficiently accomplish this purpose of the statute. They amount to
an enactment that the refusal to receive the vote on account of
race or color shall be punished as in the third and fourth sections
is declared.

															I am the better satisfied with this construction of the statute
when, looking at the Senate debates at the time of its passage, I
find, 1st, that attention was called to the point whether this act
did make the offense dependent on race, color, or previous
condition; 2d, that it was conceded by those having charge of the
bill that its language must embrace that class of cases; 3d, that
they were satisfied with the bill as it then stood, and as it now
appears in the act we are considering.

															The particularity required in an indictment or in the statutory
description of offenses has at times been extreme, the distinctions
almost ridiculous. I cannot but think that in some cases good sense
is sacrificed to technical nicety, and a sound principle carried to
an extravagant extent. The object of an indictment is to apprise
the court and the accused of what is charged against him, and the
object of a statute is to declare or define the offense intended to
be made punishable. It is laid down that

															"when the charge is not the absolute perpetration of an offense,
but its primary characteristic lies in the intent, instigation, or
motives of the party towards its perpetration, the acts of the
accused, important only as developing the mala mens, and
not constituting of themselves the crime, need not be spread upon
the record." United States v. Almeida, Whart.Prac. 1061, 1062, note;
1 Whart.C.L. § 285, note.

															In the case before us, the acts constituting the offense are all
spread out in the indictment, and the alleged defects are in the
facts constituting the mala mens. The refusal to receive an
affidavit as evidence that the tax had been paid by Garner, and the
rejection of his vote, are the essential acts of the defendants
which constitute their guilt. The rest is matter of motive or
instigation only. As to these, the extreme particularity and Page 92 U. S. 244 the strict construction expected in indictments, and penal
statutes would seem not to be necessary. In Sickles v.
Sharp, 13 Johns. 49, it is said,

															"The rule that penal statutes are to be strictly construed
admits of some qualification. The plain and manifest intention of
the legislature ought to be regarded."

															In United States v.
Hartwell , 6 Wall. 385, it is said,

															"The object in construing penal as well as other statutes is to
ascertain the legislative intent. The words must not be narrowed to
the exclusion of what the legislature intended to embrace, but that
intention must be gathered from the words. When the words are
general, and embrace various classes of persons, there is no
authority in the court to restrict them to one class, when the
purpose is alike applicable to all."

															In Ogden v. Strong, 2 Paine C.C. 584, it is said,

															"Statutes must be so construed as to make all parts harmonize,
and give a sensible effect to each. It should not be presumed that
the legislature meant that any part of the statute should be
without meaning or effect."

															In United States v.
Morris , 14 Pet. 474, the statute made it unlawful
for a person "voluntarily to serve on a vessel employed and made
use of in the transportation of slaves from one foreign country to
another." No slaves had been actually received or transported on
board the defendant's vessel, but the court held that the words of
the statute embraced the case of a vessel sailing with the intent
to be so employed. The court said,

															"A penal statute will not be extended beyond the plain meaning
of its words; . . . yet the evident intention of the legislature
ought not to be defeated by a forced and over-strict
construction."

															In the case of The Donna Mariana, 1 Dods. 91, the
vessel was condemned by Sir William Scott under the English statute
condemning vessels in which slaves "shall be exported, transported,
carried," &c., although she was on her outward voyage, and had
never taken a slave on board.

															"The result is that where the general intent of a statute is to
prevent certain acts, the subordinate proceedings necessarily
connected with them, and coming within that intent, are embraced in
its provisions." Id. In Hodgman v. People, 4 Den. 235, 5 id. 116,
an act subjecting Page 92 U. S. 245 an offender to "the penalties" of a prior act was held to
subject him to an indictment, as well as to the pecuniary penalties
in the prior statute provided for. Especially should this liberal
rule of construction prevail, where, though in form the statute is
penal, it is in fact to protect freedom.

															An examination of the surrounding circumstances, a knowledge of
the evil intended to be prevented, a clear statement in the statute
of the acts prohibited and made punishable, a certain knowledge of
the legislative intention, furnish a rule by which the language of
the statute before us is to be construed. The motives instigating
the acts forbidden, and by which those acts are brought within the
jurisdiction of the federal authority, need not be set forth with
the technical minuteness to which reference has been made. The
intent is fully set forth in the second section, and the court
below ought to have held, that, by the references in the third and
fourth sections to the motives and instigations declared in the
second section, they were incorporated into and became a part of
the third and fourth sections, and that a sufficient offense
against the United States authority was therein stated.

															I hold, therefore, that the third and fourth sections of the
statute we are considering do provide for the punishment of
inspectors of elections who refuse the votes of qualified electors
on account of their race or color. The indictment is sufficient,
and the statute sufficiently describes the offense.

															The opinion of the majority of the court discusses no subjects
except the sufficiency of the indictment and the validity of the
Act of May 31, 1870. Holding that there was no valid law upon which
the crime charged could be predicated, it became unnecessary that
the opinion should discuss other points. If it had been held by the
court that the indictment was good, and that the statute created
the offense charged, the question would have arisen, whether such
statute was constitutional, and it was to this question that much
the larger part of the argument of the counsel in the cause was
directed. If the conclusions I have reached are correct, this
question directly presents itself; and I trust it is not unbecoming
that my views upon the constitutional points thus arising should be
set forth. I have no warrant to say that those views are, or are
not, entertained Page 92 U. S. 246 by any or all of my associates. The opinions and the arguments
are those of the writer only.

															The question of the constitutionality of the Act of May 31,
1870, arises mainly upon the Fifteenth Amendment to the
Constitution of the United States. It is as follows:

															"1. The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any state on
account of race, color, or previous condition of servitude."

															"2. The Congress shall have power to enforce this article by
appropriate legislation."

															I observe in the first place that the right here protected is in
behalf of a particular class of persons -- to-wit citizens of the
United States. The limitation is to the persons concerned, and not
to the class of cases in which the question shall arise. The right
of citizens of the United States to vote, and not the right to vote
at an election for United States officers, is the subject of the
provision. The person protected must be a citizen of the United
States, and, whenever a right to vote exists in such person, the
case is within the amendment. This is the literal and grammatical
construction of the language, and that such was the intention of
Congress will appear from many considerations. As originally
introduced by Mr. Senator Henderson, it read, "No state shall deny
or abridge the right of its citizens to vote and hold office on
account of race, color, or previous condition." Globe, 1868-69, pt.
i. p. 542, Jan. 23, 1869.

															The Judiciary Committee reported back the resolution in this
from:

															"The right of citizens of the United States to vote and hold
office shall not be denied or abridged by the United States or any
state on account of race, color, or previous condition of
servitude. The Congress, by appropriate legislation, may enforce
the provisions of this article." Id. Omitting the words "and hold office," this is the
form in which it was adopted. The class of persons indicated in the
original resolution to be protected were described as citizens of a
state; in the resolution when reported by the committee, as
citizens of the United States. In neither resolution was there any
limitations as to the character of the elections at which the vote
was to be given. If there was a right to vote, and the person
offering Page 92 U. S. 247 the vote was a citizen, the clause attached. It is both
illiberal and illogical to say that this protection was intended to
be limited to an election for particular officers -- to-wit those
to take part in the affairs of the federal government.

															Congress was now completing the third of a series of amendments
intended to protect the rights of the newly emancipated freedmen of
the South.

															In the adoption of the Thirteenth Amendment -- that slavery or
involuntary servitude should not exist within the United States, or
any place subject to their jurisdiction -- it took the first and
the great step for the protection and confirmation of the political
rights of this class of persons.

															In the adoption of the Fourteenth Amendment -- that

															"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the states in which they reside,"

															and that

															"No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States, nor
shall any state deprive any person of life, liberty, or property,
without due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws,"

															another strong measure in the same direction was taken.

															A higher privilege was yet untouched; a security, vastly greater
than any thus far given to the colored race, was not provided for,
but, on the contrary, its exclusion was permitted. This was the
elective franchise -- the right to vote at the elections of the
country and for the officers by whom the country should be
governed.

															By the second section of the Fourteenth Amendment, each state
had the power to refuse the right of voting at its elections to any
class of persons, the only consequence being a reduction of its
representation in Congress, in the proportion which such excluded
class should bear to the whole number of its male citizens of the
age of twenty-one years. This was understood to mean and did mean
that if one of the late slaveholding states should desire to
exclude all its colored population from the right of voting at the
expense of reducing its representation in Congress, it could do
so.

															The existence of a large colored population in the southern Page 92 U. S. 248 states, lately slaves and necessarily ignorant, was a disturbing
element in our affairs. It could not be overlooked. It confronted
us always and everywhere. Congress determined to meet the emergency
by creating a political equality, by conferring upon the freedmen
all the political rights possessed by the white inhabitants of the
state. It was believed that the newly enfranchised people could be
most effectually secured in the protection of their rights of life,
liberty, and the pursuit of happiness by giving to them that
greatest of rights among freemen -- the ballot. Hence the Fifteenth
Amendment was passed by Congress and adopted by the states. The
power of any state to deprive a citizen of the right to vote on
account of race, color, or previous condition of servitude or to
impede or to obstruct such right on that account was expressly
negatived. It was declared that this right of the citizen should
not be thus denied or abridged.

															The persons affected were citizens of the United States; the
subject was the right of these persons to vote, not at specified
elections or for specified officers, not for federal officers or
for state officers, but the right to vote in its broadest
terms.

															The citizen of this country, where nearly everything is
submitted to the popular test and where office is eagerly sought,
who possesses the right to vote, holds a powerful instrument for
his own advantage. The political and personal importance of the
large bodies of emigrants among us, who are entrusted at an early
period with the right to vote, is well known to every man of
observation. Just so far as the ballot to them or to the freedman
is abridged, in the same degree is their importance and their
security diminished. State rights and municipal rights touch the
numerous and the everyday affairs of life; those of the federal
government are less numerous, and, to most men, less important.
That Congress, possessing, in making a constitutional amendment,
unlimited power in what it should propose, intended to confine this
great guaranty to a single class of elections -- to-wit, elections
for United States officers -- is scarcely to be credited.

															I hold therefore that the Fifteenth Amendment embraces the case
of elections held for state or municipal as well as for federal
officers, and that the first section of the Act of May Page 92 U. S. 249 31, 1870, wherein the right to vote is freed from all
restriction by reason of race, color, or condition, at all
elections by the people -- state, county, town, municipal, or of
other subdivision -- is justified by the Constitution.

															It is contended also that in the case before us there has been
no denial or abridgment by the State of Kentucky of the right of
Garner to vote at the election in question. The state, it is said,
by its statute authorized him to vote, and if he has been illegally
prevented from voting, it was by an unauthorized and illegal Act of
the inspectors.

															The word "state"

															"describes sometimes a people or community of individuals united
more or less closely in political relations, inhabiting temporarily
or permanently the same country; often it denotes only the country
or territorial region inhabited by such a community; not
unfrequently it is applied to the government under which the people
live; at other times it represents the combined idea of people,
territory, and government. It is not difficult to see that in all
these senses the primary conception is that of a people or
community. The people, in whatever territory dwelling, either
temporarily or permanently and whether organized under a regular
government or united by looser and less definite relations,
constitute the state. . . . In the Constitution, the term 'state'
most frequently expresses the combined idea just noticed, of
people, territory, and government. A state, in the ordinary sense
of the Constitution, is a political community of free citizens,
occupying a territory of defined boundaries, organized under a
government sanctioned and limited by a written constitution, and
established by the consent of the governed. It is the union of such
states under a common constitution which forms the distinct and
greater political unit which that constitution designates as the
United States, and makes of the people and states which compose it
one people and one country." Texas v.
White , 7 Wall. 720, 74 U. S.
721 .

															That the word "state" is not confined in its meaning to the
legislative power of a community is evident not only from the
authority just cited, but from a reference to the various places in
which it is used in the Constitution of the United States. A few
only of these will be referred to.

															The power of Congress to "regulate commerce among the Page 92 U. S. 250 several states," sec. 8, subd. 3, refers to the commerce between
the inhabitants of the different states, and not to transactions
between the political organizations called "states." The people of
a state are here intended by the word "state." The numerous cases
in which this provision has been considered by this Court were
cases where the questions arose upon individual transactions
between citizens of different states, or as to rights in, upon, or
through the territory of different states.

															"Vessels bound to or from one state shall not be obliged to
enter, clear, or pay duties, in another." Sec. 9, subd. 5. This
refers to region or locality only.

															So "the electors (of President and Vice-President) shall meet in
their respective states, and vote," &c. Art. 2, sec. 1, subd.
3.

															Again, when it is ordained that the judicial power of the United
States shall extend

															"to controversies between two or more states, between a state
and the citizens of another state, between citizens of different
states, between citizens of the same state claiming lands under
grants of different states, and between a state or the citizens
thereof and foreign states, citizens, or subjects,"

															art. 3, sec. 2, subd. 1, we find different meaning attached to
the same word in different parts of the same sentence. The
controversy "between two or more states" spoken of refers to the
political organizations known as states; the controversy "between a
state and the citizens of another state" refers to the political
organization of the first-named party, and again to the persons
living within the locality where the citizens composing the second
party may reside; the controversy "between citizens of different
states, between citizens of the same state claiming lands under
grants of different states," refers to the local region or
territory described in the first branch of the sentence, and to the
political organization as to the grantor under the second
branch.

															"Full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings, of every other
state." Art. 4, sec. 1. Full faith shall be given in or throughout
the territory of each state. By whom? By the sovereign state, by
its agencies and authorities. To what is Page 92 U. S. 251 faith and credit to be given? To the acts of the political
organization known as the state. Not only this, but to all its
agencies, to the acts of its executive, to the acts of its courts
of record. The expression "state," in this connection, refers to
and includes all these agencies, and it is to these agencies that
the legislation of Congress under this authority has been directed,
and it is to the question arising upon the agencies of the courts
that the questions have been judicially presented. Hampton v.
McConnell , 3 Wheat. 234; Green v.
Sacramento, 3 W.C.C. 17; Bank of Alabama v.
Dalton , 9 How. 528. The judicial proceedings of a
state mean the proceedings of the courts of the state. It has never
been doubted that under the constitutional authority to provide
that credit should be given to the records of a "state," it was
lawful to provide that credit should be given to the records of the
courts of a state. For this purpose, the court is the state.

															The provision that "the United States shall guarantee to every
state a republican form of government," is a guaranty to the people
of the state, and may be exercised in their favor against the
political power called the "state."

															It seems plain that when the Constitution speaks of a state, and
prescribes what it may do or what it may not do, it includes, in
some cases, the agencies and instrumentalities by which the state
acts. When it is intended that the prohibition shall be upon
legislative action only, it is so expressed. Thus, in art. 1, sec.
10, subd. 1, it is provided that "no state shall pass any bill of
attainder, ex post facto law, or law impairing the
obligation of contracts." The provision is, not that no state shall
impair the obligation of contracts, but that no state shall pass a
law impairing the obligation of contracts.

															The word "state" in the Fifteenth Amendment is to be construed
as in the paragraph heretofore quoted respecting commerce among the
states, and in that which declares that acts of a state shall
receive full faith and credit in every other state -- that is, to
include the acts of all those who proceed under the authority of
the state. The political organization called the "state" can act
only through its agents. It may act through a convention, through
its legislature, its governor, or its magistrates and officers of
lower degree. Whoever is authorized to Page 92 U. S. 252 wield the power of the state is the state, and this whether he
acts within his powers or exceeds them. If a convention of the
State of Kentucky should ordain or its legislature enact that no
person of African descent, or who had formerly been a slave, should
be entitled to vote at its elections, such ordinance or law would
be void. It would be in excess of the power of the body enacting
it. It would possess no validity whatever. It cannot be doubted,
however, that it would afford ground for the jurisdiction of the
courts under the Fifteenth Amendment. It is the state that speaks
and acts through its agents; although such agents exercise powers
they do not possess, or that the state does not possess, and
although their action is illegal. Inspectors of elections represent
the state. They exercise the whole power of the state in creating
its actual government by the reception of votes and the declaration
of the results of the votes. If they willfully and corruptly
receive illegal votes, reject legal votes, make false certificates
by which a usurper obtains an office, the act is in each case the
act of the state, and the result must be abided by until corrected
by the action of the courts. No matter how erroneous, how illegal
or corrupt, may be their action, if it is upon the subject which
they are appointed to manage, it binds all parties as the action of
the state until legal measures are taken to annul it. They are
authorized by the state to act in the premises, and if their act is
contrary to their instructions or their duty, they are nevertheless
officers of the state, acting upon a subject committed to them by
the state, and their acts are those of the state. The legislature
speaks; its officers act. The voice and the act are equally those
of the state.

															I am of the opinion, therefore, that the refusal of the
defendants, inspectors of elections, to receive the vote of Garner
was a refusal by the State of Kentucky, and was a denial by that
state, within the meaning of the Fifteenth Amendment, of the right
to vote.

															It is contended further that Congress has no power to enforce
the provisions of this amendment by the enactment of penal laws;
that the power of enforcement provided for is limited to correcting
erroneous decisions of the state court, when presented to the
federal courts by appeal or writ of error.

															"For Page 92 U. S. 253 example (it is said), when it is declared that no state shall
deprive any person of life, liberty, or property, without due
process of law, this declaration is not intended as a guaranty
against the commission of murder, false imprisonment, robbery, or
other crimes committed by individual malefactors, so as to give
Congress power to pass laws for the punishment of such crimes in
the several states generally."

															So far as the Act of May, 1870, shall be held to include cases
not dependent upon race, color, or previous condition, and so far
as the power to impose pains and penalties for those offenses may
arise, I am not here called upon to discuss the subject.

															So far as this argument is applied to legislation for offenses
committed on account of race or color, I hold it to be entirely
unsound. If sound, it brings to an impotent conclusion the vigorous
amendments on the subject of slavery. If there be no protection to
the ignorant freedman against hostile legislation and personal
prejudice other than a tedious, expensive, and uncertain course of
litigation through state courts, thence by appeal or writ of error
to the federal courts, he has practically no remedy. It were as
well that the amendments had not been passed. Of rights infringed,
not one in a thousand could be remedied or protected by this
process.

															In adopting the Fifteenth Amendment, it was ordained as the
second section thereof, "The Congress shall have power to enforce
this article by appropriate legislation." This was done to remove
doubts, if any existed, as to the former power; to add at least the
weight of repetition to an existing power.

															It was held in the United States Bank Cases and in the Legal Tender Cases, 17 U. S. Maryland, 4 Wheat. 316; Gibbons v.
Ogden , 7 Wheat. 204; New York
v. Miln , 11 Pet. 102; Knox v.
Lee , 12 Wall. 457; Dooley v.
Smith , 13 Wall. 604, that it was for Congress to
determine whether the necessity had arisen which called for its
action. If Congress adjudges that the necessities of the country
require the establishment of a bank, or the issue of legal tender
notes, that judgment is conclusive upon the court. It is not within
their power to review it.

															If Congress, being authorized to do so, desires to protect the
freedman in his rights as a citizen and a voter, and as against Page 92 U. S. 254 those who may be prejudiced and unscrupulous in their hostility
to him and to his newly conferred rights, its manifest course would
be to enact that they should possess that right; to provide
facilities for its exercise by appointing proper superintendents
and special officers to examine alleged abuses, giving jurisdiction
to the federal courts, and providing for the punishment of those
who interfere with the right. The statute books of all countries
abound with laws for the punishment of those who violate the rights
of others, either as to property or person, and this not so much
that the trespassers may be punished as that the peaceable citizen
may be protected. Punishment is the means; protection is the end.
The arrest, conviction, and sentence to imprisonment, of one
inspector, who refused the vote of a person of African descent on
account of his race, would more effectually secure the right of the
voter than would any number of civil suits in the state courts,
prosecuted by timid, ignorant, and penniless parties against those
possessing the wealth, the influence, and the sentiment of the
community. It is certain that in fact the legislation taken by
Congress, which we are considering, was not only the appropriate,
but the most effectual, means of enforcing the amendment.

															That the legislation in this respect is constitutional is also
proved by the previous action of Congress and of this Court.

															Art. 4, sec. 5, subd. 3, of the Constitution provides as
follows:

															"No person held to service or labor in one state, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service or
labor may be due."

															At the time of the adoption of the Constitution containing this
provision, slavery was recognized as legal in many states. The
rights of the slaveholder in his slave were intended to be
protected by this clause. To enforce this protection, Congress,
from time to time, passed laws providing not only the means of
restoring the escaped slave to his master, but inflicting
punishment upon those who violated that master's rights. Thus as
early as 1793, Congress enacted not only that the master or his
agent might seize and arrest such fugitive slave, and, upon
obtaining a certificate from a judge or magistrate, carry him
back Page 92 U. S. 255 to the state from whence he escaped and return him into slavery,
but that every person who hindered or obstructed such master or
agent or who harbored or concealed such fugitive after notice that
he was such, should be subject to damages not only, but to a
penalty of $500, to be recovered for the benefit of the claimant in
any court proper to try the same. 1 Stat. 302. By the Act of 1850,
9 Stat. 462, the circuit courts were ordered to enlarge the number
of commissioners, "with a view to afford reasonable facilities to
reclaim fugitives from labor."

															The ninth section of the act provided that any person who should
willfully obstruct or hinder the removal of such fugitive, either
with or without process, or should rescue or aid or abet an attempt
to escape, or should harbor or conceal the fugitive, having notice,
should for either of said offenses be subject to a fine not
exceeding $1,000 and imprisonment not exceeding six months, by
indictment and conviction in the United States court,

															"and shall pay and forfeit, by way of civil damages to the party
injured by such illegal conduct, the sum of $1,000 for each
fugitive so lost as aforesaid, to be recovered by action of
debt,"

															&c.

															In Prigg v.
Pennsylvania , 16 Pet. 539, the legislation of 1793
was held to be valid.

															It was held in Sims's Case, 7 Cush. 285, that the Act
of 1850 was constitutional and that the state tribunals cannot by
writ of habeas corpus interfere with the federal authorities when
acting upon cases arising under that act.

															In Ableman v.
Booth , 21 How. 506, it was held by this Court that
the Fugitive Slave Act of 1850 was constitutional in all its
provisions, and that a habeas corpus under the state laws must not
be obeyed, but the authority of the United States must be
executed.

															The case of Prigg, decided under the Act of 1793, and that of
Booth, under the Act of 1850, are pertinent to the present
question.

															In the former case, it was held that the Act of 1793, so far as
it authorized the owner to seize and recapture his slave in any
state of the Union, was self-executing, requiring no aid from
legislation, either state or national. The clause relating to
fugitive slaves, it is there said, is found in the national, and
not Page 92 U. S. 256 in the state, constitution. It was said to be a necessary
conclusion, in the absence of all positive provision to the
contrary, that the national government is bound through its own
departments, legislative, judicial, or executive, to carry into
effect all the rights and duties imposed upon it by the
Constitution.

															This doctrine is useful at the present time and is pertinent to
the point we are considering. The clause protecting the freedmen,
like that sustaining the rights of slaveholders, is found in the
federal Constitution only. Like the former, it provides the means
of enforcing its authority, through fines and imprisonments, in the
federal courts, and here, as there, the national government is
bound, through its own departments, to carry into effect all the
rights and duties imposed upon it by the Constitution. In
connection with the clause of the Constitution just quoted, there
was not found, as here, an express authority in Congress to enforce
it by appropriate legislation, and yet the court decided not only
that Congress had power to enforce its provisions by fine and
imprisonment, but that the right to legislate on the subject
belongs to Congress exclusively. Courts should be ready, now and
here, to apply these sound and just principles of the
Constitution.

															This provision of the Constitution and these decisions seem to
furnish the rule of deciding the constitutionality of the law in
question, rather than that which provides that life, liberty, or
property, shall not be interfered with except by due process of
law. It is not necessary to consider how far Congress may legislate
upon individual crimes under that provision. If I am right in this
view, the legislation we are considering -- to-wit, the enforcement
of the Fifteenth Amendment by the means of penalties and
indictments -- is legal.

															It is a well settled principle that if an indictment contain
both good counts and bad counts, a judgment of guilty upon the
whole indictment will be sustained.

															The record shows that the court below considered each and every
count of the indictment as insufficient, and that judgment was
entered discharging the defendants without day -- i.e., from the whole indictment. Upon the view I have taken of the
validity of the fourth count, this judgment was erroneous. It
should be reversed and a trial ordered upon the indictment.