U.S. Supreme Court United States v. Cruikshank, 92 U.S.
542 (1875) United States v.
Cruikshank 92 U.S.
542 ERROR TO THE CIRCUIT COURT OF THE
UNITED STATES FOR THE DISTRICT OF
LOUISIANA Syllabus 1. Citizens are the members of the political community to which
they belong. They are the people who compose the community, and
who, in their associated capacity, have established or submitted
themselves to the dominion of a government for the promotion of
their general welfare and the protection of their individual, as
well as their collective, rights. The duty of a government to
afford protection is limited always by the power it possesses for
that purpose.

															2. There is in our political system a government of each of the
several States, and a Government of the United States. Each is
distinct from the others, and has citizens of its own who owe it
allegiance, and whose rights, within its jurisdiction, it must
protect. The same person may be at the same time a citizen of the
United States and a citizen of a State, but his rights of
citizenship under one of those governments will be different from
those he has under the other.

															3. The Government of the United States, although it is, within
the scope of its powers, supreme and beyond the States, can neither
grant nor secure to its citizens rights or privileges which are not
expressly or by implication placed under its jurisdiction. All that
cannot be so granted or secured are left to the exclusive
protection of the States.

															4. The right of the people peaceably to assemble for lawful
purposes, with the obligation on the part of the States to afford
it protection, existed long before the adoption of the
Constitution. The First Amendment to the Constitution, prohibiting
Congress from abridging the right to assemble and petition, was not
intended to limit the action of the State governments in respect to
their own citizens, but to operate upon the National Government
alone. It left the authority of the States unimpaired, added
nothing to the already existing powers of the United States, and
guaranteed the continuance of the right only against Congressional
interference. The people, for their protection in the enjoyment of
it, must therefore look to the States, where the power for that
purpose was originally placed.

															5. The right of the people peaceably to assemble for the purpose
of petitioning Congress for a redress of grievances, or for
anything else connected with the powers or duties of the National
Government, is an attribute of national citizenship, and, as such,
under the protection of and guaranteed by the United States. The
very idea of a government republican in form implies that right,
and an invasion of it presents a case within the sovereignty of the
United States.

															6. The right to bear arms is not granted by the Constitution;
neither is it in any manner dependent upon that instrument for its
existence. The Second Amendments means no more than that it shall
not be infringed by Congress, and has no other effect than to
restrict the powers of the National Government.

															7. Sovereignty, for the protection of the rights of life and
personal liberty within the respective States, rests alone with the
States.

															8. The Fourteenth Amendment prohibits a State from depriving any
person of life, liberty, or property without due process of law,
and from denying to Page 92 U. S. 543 any person within its jurisdiction the equal protection of the
laws, but it adds nothing to the rights of one citizen as against
another. It simply furnishes an additional guaranty against any
encroachment by the States upon the fundamental rights which belong
to every citizen as a member of society. The duty of protecting all
its citizens in the enjoyment of an equality of rights was
originally assumed by the States, and it still remains there. The
only obligation resting upon the United States is to see that the
States do not deny the right. This the Amendment guarantees, but no
more. The power of the National Government is limited to the
enforcement of this guaranty.

															9. In Minor v.
Hoppersett , 21 Wall. 178, this Court decided that
the Constitution of the United States has not conferred the right
of suffrage upon anyone, and that the United States have no voters
of their own creation in the States. In United States v. Reese
et al., supra, p. 92 U. S. 214 , it
held that the Fifteenth Amendment has invested the citizens of the
United States with a new constitutional right, which is exemption
from discrimination in the exercise of the elective franchise on
account of race, color, or previous condition of servitude. The
right to vote in the States comes from the States; but the right of
exemption from the prohibited discrimination comes from the United
States. The first has not been granted or secured by the
Constitution of the United States, but the last has been.

															10. The counts of an indictment which charge the defendants with
having banded and conspired to injure, oppress, threaten, and
intimidate citizens of the United States of African descent,
therein named, and which, in substance respectively allege that the
defendants intended thereby to hinder and prevent such citizens in
the free exercise and enjoyment of rights and privileges granted
and secured to them in common with other good citizens by the
Constitution and law of the United States, to hinder and prevent
them in the free exercise of their right peacefully to assemble for
lawful purposes, deprive them of their respective several lives and
liberty of person without due process of law, prevent and hinder
them in the free exercise and enjoyment of their several rights to
the full and equal benefit of the law, prevent and hinder them in
the free exercise and enjoyment of their several and respective
rights to vote at any election to be thereafter by law had and held
by the people in and of the State of Louisiana, or to put them in
great fear of bodily harm and to injure and oppress them because,
being and having been in all things qualified, they had voted at an
election theretofore had and held according to law by the people of
said State -- do not present a case within the sixth section of the
Enforcement Act of May 31, 1870 (16 Stat. 141). To bring a case
within the operation of that statute, it must appear that the right
the enjoyment of which the conspirators intended to hinder or
prevent was one granted or secured by the Constitution or laws of
the United States. If it does not so appear, the alleged offence is
not indictable under any act of Congress.

															11. The counts of an indictment which, in general language,
charge the defendants with an intent to hinder and prevent citizens
of the United States of African descent, therein named, in the free
exercise and enjoyment of the rights, privileges, immunities, and
protection granted and secured to them Page 92 U. S. 544 respectively as citizens of the United States, and of the State
of Louisiana, because they were persons of African descent, and
with the intent to hinder and prevent them in the several and free
exercise and enjoyment of every, each, all, and singular the
several rights and privileges granted and secured to them by the
Constitution and laws of the United States do not specify any
particular right the enjoyment of which the conspirators intended
to hinder or prevent, are too vague and general, lack the certainty
and precision required by the established rules of criminal
pleading, and are therefore not good and sufficient in law.

															12. In criminal cases prosecuted under the laws of the
United

															States, the accused has the constitutional right "to be informed
of the nature and cause of the accusation." The indictment must set
forth the offence with clearness and all necessary certainty, to
apprise the accused of the crime with which he stands charged, and
every ingredient of which the offence is composed must be
accurately and clearly alleged. It is an elementary principle of
criminal pleading that, where the definition of an offence, whether
it be at common law or by statute, includes generic terms, it is
not sufficient that the indictment shall charge the offence in the
same generic terms as in the definition, but it must state the
species -- it must descend to particulars. The object of the
indictment is first, to furnish the accused with such a description
of the charge against him as will enable him to make his defence,
and avail himself of his conviction or acquittal for protection
against a further prosecution for the same cause, and, second, to
inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction if one
should be had. For this, facts are to be stated, not conclusions of
law alone. A crime is made up of acts and intent, and these must be
set forth in the indictment with reasonable particularity of time,
place, and circumstances.

															13. By the act under which this indictment was found, the crime
is made to consist in the unlawful combination with an intent to
prevent the enjoyment of any right granted or secured by the
Constitution, &c. All rights are not so granted or secured.
Whether one is so or not is a question of law, to be decided by the
court. The indictment should therefore state the particulars to
inform the court as well as the accused. It must appear from the
indictment that the acts charged will, if proved, support a
conviction for the offence alleged.

															This was an indictment for conspiracy under the sixth section of
the act of May 30, 1870, known as the Enforcement Act (16 Stat.
140), and consisted of thirty-two counts.

															The first count was for banding together, with intent
"unlawfully and feloniously to injure, oppress, threaten, and
intimidate" two citizens of the United States, "of African descent
and persons of color," "with the unlawful and felonious intent
thereby" them

															"to hinder and prevent in their respective free Page 92 U. S. 545 exercise and enjoyment of their lawful right and privilege to
peaceably assemble together with each other and with other citizens
of the said United States for a peaceable and lawful purpose."

															The second avers an intent to hinder and prevent the
exercise by the same persons of the "right to keep and bear arms
for a lawful purpose."

															The third avers an intent to deprive the same persons
"of their respective several lives and liberty of person, without
due process of law."

															The fourth avers an intent to deprive the same persons
of the

															"free exercise and enjoyment of the right and privilege to the
full and equal benefit of all laws and proceedings for the security
of persons and property"

															enjoyed by white citizens.

															The fifth avers an intent to hinder and prevent the
same persons

															"in the exercise and enjoyment of the rights, privileges,
immunities, and protection granted and secured to them respectively
as citizens of the said United States, and as citizens of the said
State of Louisiana, by reason of and for and on account of the race
and color"

															of the said persons.

															The sixth avers an intent to hinder and prevent the
same persons in

															"the free exercise and enjoyment of the several and respective
right and privilege to vote at any election to be thereafter by law
had and held by the people in and of the said State of
Louisiana."

															The seventh avers an intent "to put in great fear of
bodily harm, injure, and oppress" the same persons, "because and
for the reason" that, having the right to vote, they had voted.

															The eighth avers an intent "to prevent and hinder" the
same persons

															"in their several and respective free exercise and enjoyment of
every, each, all, and singular and several rights and privileges
granted and secured"

															to them "by the Constitution and laws of the United States."

															The next eight counts are a repetition of the first eight,
except that, instead of the words "band together," the words
"combine, conspire, and confederate together" are used. Three of
the defendants were found guilty under the first sixteen counts,
and not guilty under the remaining counts. Page 92 U. S. 546 The parties thus convicted moved in arrest of judgment on the
following grounds:

															1. Because the matters and things set forth and charged in the
several counts, one to sixteen inclusive, do not constitute
offences against the laws of the United States, and do not come
within the purview, true intent, and meaning of the act of
Congress, approved 31st May, 1870, entitled " An Act to enforce
the right of citizens of the United States, " &c.

															2. Because the matters and things in the said indictment set
forth and charged do not constitute offences cognizable in the
Circuit Court, and do not come within its power and
jurisdiction.

															3. Because the offences created by the sixth section of the act
of Congress referred to, and upon which section the aforesaid
sixteen counts are based, are not constitutionally within the
jurisdiction of the courts of the United States, and because the
matters and things therein referred to are judicially cognizable by
State tribunals only, and legislative action thereon is among the
constitutionally reserved rights of the several States.

															4. Because the said act, in so far as it creates offences and
imposes penalties, is in violation of the Constitution of the
United States, and an infringement of the rights of the several
States and the people.

															5. Because the eighth and sixteenth counts of the indictment are
too vague, general, insufficient, and uncertain, to afford the
accused proper notice to plead and prepare their defence, and set
forth no specific offence under the law.

															6. Because the verdict of the jury against the defendants is not
warranted or supported by law.

															On this motion, the opinions of the judges were divided, that of
the presiding judge being that the several counts in question are
not sufficient in law, and do not contain charges of criminal
matter indictable under the laws of the United States, and that the
motion in arrest of judgment should be granted. The case comes up
at the instance of the United States, on certificate of this
division of opinion.

															Sect. 1 of the Enforcement Act declares that all citizens of the
United States, otherwise qualified, shall be allowed to vote at all
elections, without distinction of race, color, or previous
servitude. Page 92 U. S. 547 Sect. 2 provides that if, by the law of any State or Territory,
a prerequisite to voting is necessary, equal opportunity for it
shall be given to all, without distinction, &c., and any person
charged with the duty of furnishing the prerequisite who refuses or
knowingly omits to give full effect to this section shall be guilty
of misdemeanor.

															Sect. 3 provides that an offer of performance in respect to the
prerequisite, when proved by affidavit of the claimant, shall be
equivalent to performance, and any judge or inspector of election
who refuses to accept it shall be guilty, &c.

															Sect. 4 provides that any person who, by force, bribery,
threats, intimidation, or other unlawful means, hinders, delays,
prevents, or obstructs any citizen from qualifying himself to vote,
or combines with others to do so, shall be guilty, &c.

															Sect. 5 provides that any person who prevents, hinders,
controls, or intimidates any person from exercising the right of
suffrage, to whom it is secured by the Fifteenth Amendment, or
attempts to do so, by bribery or threats of violence, or
deprivation of property or employment, shall be guilty, &c.

															The sixth section is as follows:

															"That if two or more persons shall band or conspire together, or
go in disguise upon the public highway, or upon the premises of
another, with intent to violate any provisions of this act, or to
injure, oppress, threaten, or intimidate any citizen with intent to
prevent or hinder his free exercise and enjoyment of any right or
privilege granted or secured to him by the Constitution or laws of
the United States, or because of his having exercised the same,
such persons shall be held guilty of felony, and, on conviction
thereof, shall be fined or imprisoned, or both, at the discretion
of the court -- the fine not to exceed $5,000 and the imprisonment
not to exceed ten years -- and shall, moreover, be thereafter
ineligible to, and disabled from holding, any office or place of
honor, profit, or trust created by the Constitution or laws of the
United States. " Page 92 U. S. 548 MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

															This case comes here with a certificate by the judges of the
Circuit Court for the District of Louisiana that they were divided
in opinion upon a question which occurred at the hearing. It
presents for our consideration an indictment containing sixteen
counts, divided into two series of eight counts each, based upon
sect. 6 of the Enforcement Act of May 31, 1870. That section is as
follows:--

															"That if two or more persons shall band or conspire together, or
go in disguise upon the public highway, or upon the premises of
another, with intent to violate any provision of this act, or to
injure, oppress, threaten, or intimidate any citizen, with intent
to prevent or hinder his free exercise and enjoyment of any right
or privilege granted or secured to him by the Constitution or laws
of the United States, or because of his having exercised the same,
such persons shall be held guilty of felony, and, on conviction
thereof, shall be fined or imprisoned, or both, at the discretion
of the court -- the fine not to exceed $5,000, and the imprisonment
not to exceed ten years -- and shall, moreover, be thereafter
ineligible to, and disabled from holding, any office or place of
honor, profit, or trust created by the Constitution or laws of the
United States."

															16 Stat. 141.

															The question certified arose upon a motion in arrest of judgment
after a verdict of guilty generally upon the whole sixteen counts,
and is stated to be whether

															"the said sixteen counts of said indictment are severally good
and sufficient in law, and contain charges of criminal matter
indictable under the laws of the United States."

															The general charge in the first eight counts is that of
"banding," and in the second eight that of "conspiring" together to
injure, oppress, threaten, and intimidate Levi Nelson and Alexander
Tillman, citizens of the United States, of African descent and
persons of color, with the intent thereby to hinder and prevent
them in their free exercise and enjoyment of rights and privileges
"granted and secured" to them "in common with all other good
citizens of the United States by the Constitution and laws of the
United States."

															The offences provided for by the statute in question do not
consist in the mere "banding" or "conspiring" of two or Page 92 U. S. 549 more persons together, but in their banding or conspiring with
the intent, or for any of the purposes, specified. To bring this
case under the operation of the statute, therefore, it must appear
that the right, the enjoyment of which the conspirators intended to
hinder or prevent, was one granted or secured by the Constitution
or laws of the United States. If it does not so appear, the
criminal matter charged has not been made indictable by any act of
Congress.

															We have in our political system a government of the United
States and a government of each of the several States. Each one of
these governments is distinct from the others, and each has
citizens of its own who owe it allegiance and whose rights, within
its jurisdiction, it must protect. The same person may be at the
same time a citizen of the United States and a citizen of a State,
but his rights of citizenship under one of these governments will
be different from those he has under the other. Slaughter-House
Cases , 16 Wall. 74.

															Citizens are the members of the political community to which
they belong. They are the people who compose the community, and
who, in their associated capacity, have established or submitted
themselves to the dominion of a government for the promotion of
their general welfare and the protection of their individual as
well as their collective rights. In the formation of a government,
the people may confer upon it such powers as they choose. The
government, when so formed, may, and when called upon should,
exercise all the powers it has for the protection of the rights of
its citizens and the people within its jurisdiction, but it can
exercise no other. The duty of a government to afford protection is
limited always by the power it possesses for that purpose.

															Experience made the fact known to the people of the United
States that they required a national government for national
purposes. The separate governments of the separate States, bound
together by the articles of confederation alone, were not
sufficient for the promotion of the general welfare of the people
in respect to foreign nations, or for their complete protection as
citizens of the confederated States. For this reason, the people of
the United States,

															"in order to form a more perfect union, establish justice,
insure domestic tranquillity, provide for Page 92 U. S. 550 the common defence, promote the general welfare, and secure the
blessings of liberty"

															to themselves and their posterity (Const. Preamble), ordained
and established the government of the United States, and defined
its powers by a Constitution, which they adopted as its fundamental
law, and made its rule of action.

															The government thus established and defined is to some extent a
government of the States in their political capacity. It is also,
for certain purposes, a government of the people. Its powers are
limited in number, but not in degree. Within the scope of its
powers, as enumerated and defined, it is supreme, and above the
States; but beyond, it has no existence. It was erected for special
purposes, and endowed with all the powers necessary for its own
preservation and the accomplishment of the ends its people had in
view. It can neither grant nor secure to its citizens any right or
privilege not expressly or by implication placed under its
jurisdiction.

															The people of the United States resident within any State are
subject to two governments -- one State and the other National --
but there need be no conflict between the two. The powers which one
possesses the other does not. They are established for different
purposes, and have separate jurisdictions. Together, they make one
whole, and furnish the people of the United States with a complete
government, ample for the protection of all their rights at home
and abroad. True, it may sometimes happen that a person is amenable
to both jurisdictions for one and the same act. Thus, if a marshal
of the United States is unlawfully resisted while executing the
process of the courts within a State, and the resistance is
accompanied by an assault on the officer, the sovereignty of the
United States is violated by the resistance, and that of the State
by the breach of peace in the assault. So, too, if one passes
counterfeited coin of the United States within a State, it may be
an offence against the United States and the State: the United
States because it discredits the coin, and the State because of the
fraud upon him to whom it is passed. This does not, however,
necessarily imply that the two governments possess powers in
common, or bring them into conflict with each other. It is the
natural consequence of a citizenship Page 92 U. S. 551 which owes allegiance to two sovereignties and claims protection
from both. The citizen cannot complain, because he has voluntarily
submitted himself to such a form of government. He owes allegiance
to the two departments, so to speak, and, within their respective
spheres, must pay the penalties which each exacts for disobedience
to its laws. In return, he can demand protection from each within
its own jurisdiction.

															The Government of the United States is one of delegated powers
alone. Its authority is defined and limited by the Constitution.
All powers not granted to it by that instrument are reserved to the
States or the people. No rights can be acquired under the
Constitution or laws of the United States, except such as the
Government of the United States has the authority to grant or
secure. All that cannot be so granted or secured are left under the
protection of the States.

															We now proceed to an examination of the indictment, to ascertain
whether the several rights, which it is alleged the defendants
intended to interfere with, are such as had been in law and in fact
granted or secured by the Constitution or laws of the United
States.

															The first and ninth counts state the intent of the defendants to
have been to hinder and prevent the citizens named in the free
exercise and enjoyment of their

															"lawful right and privilege to peaceably assemble together with
each other and with other citizens of the United States for a
peaceful and lawful purpose."

															The right of the people peaceably to assemble for lawful
purposes existed long before the adoption of the Constitution of
the United States. In fact, it is, and always has been, one of the
attributes of citizenship under a free government. It "derives its
source," to use the language of Chief Justice Marshall in Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 211 ,
"from those laws whose authority is acknowledged by civilized man
throughout the world." It is found wherever civilization exists. It
was not, therefore, a right granted to the people by the
Constitution. The Government of the United States, when
established, found it in existence, with the obligation on the part
of the States to afford it protection. As no direct power over it
was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id., 22 U. S. 203 ,
subject to State jurisdiction. Page 92 U. S. 552 Only such existing rights were committed by the people to the
protection of Congress as came within the general scope of the
authority granted to the national government.

															The first amendment to the Constitution prohibits Congress from
abridging "the right of the people to assemble and to petition the
government for a redress of grievances." This, like the other
amendments proposed and adopted at the same time, was not intended
to limit the powers of the State governments in respect to their
own citizens, but to operate upon the National Government alone. Barron v. The City of
Baltimore , 7 Pet. 250; Lessee
of Livingston v. Moore, id. , 551; Fox v.
Ohio , 5 How. 434; Smith v.
Maryland , 18 id. 76; Withers
v. Buckley , 20 id. 90; Pervear v. The
Commonwealth , 5 Wall. 479; Twitchell
v. The Commonwealth , 7 id. 321; Edwards v.
Elliott , 21 id. 557. It is now too late to
question the correctness of this construction. As was said by the
late Chief Justice, in Twitchell v. The
Commonwealth , 7 Wall. 325, "the scope and
application of these amendments are no longer subjects of
discussion here." They left the authority of the States just where
they found it, and added nothing to the already existing powers of
the United States.

															The particular amendment now under consideration assumes the
existence of the right of the people to assemble for lawful
purposes, and protects it against encroachment by Congress. The
right was not created by the amendment; neither was its continuance
guaranteed, except as against congressional interference. For their
protection in its enjoyment, therefore, the people must look to the
States. The power for that purpose was originally placed there, and
it has never been surrendered to the United States.

															The right of the people peaceably to assemble for the purpose of
petitioning Congress for a redress of grievances, or for any thing
else connected with the powers or the duties of the national
government, is an attribute of national citizenship, and, as such,
under the protection of, and guaranteed by, the United States. The
very idea of a government republican in form implies a right on the
part of its citizens to meet peaceably for consultation in respect
to public affairs and to petition for a redress of grievances. If
it had been alleged in Page 92 U. S. 553 these counts that the object of the defendants was to prevent a
meeting for such a purpose, the case would have been within the
statute, and within the scope of the sovereignty of the United
States. Such, however, is not the case. The offence, as stated in
the indictment, will be made out, if it be shown that the object of
the conspiracy was to prevent a meeting for any lawful purpose
whatever.

															The second and tenth counts are equally defective. The right
there specified is that of "bearing arms for a lawful purpose."
This is not a right granted by the Constitution. Neither is it in
any manner dependent upon that instrument for its existence. The
second amendment declares that it shall not be infringed, but this,
as has been seen, means no more than that it shall not be infringed
by Congress. This is one of the amendments that has no other effect
than to restrict the powers of the national government, leaving the
people to look for their protection against any violation by their
fellow citizens of the rights it recognizes, to what is called, in The City of New York v.
Miln , 11 Pet. 139, the "powers which relate to
merely municipal legislation, or what was, perhaps, more properly
called internal police," "not surrendered or restrained" by the
Constitution of the United States.

															The third and eleventh counts are even more objectionable. They
charge the intent to have been to deprive the citizens named, they
being in Louisiana, "of their respective several lives and liberty
of person without due process of law." This is nothing else than
alleging a conspiracy to falsely imprison or murder citizens of the
United States, being within the territorial jurisdiction of the
State of Louisiana. The rights of life and personal liberty are
natural rights of man. "To secure these rights," says the
Declaration of Independence, "governments are instituted among men,
deriving their just powers from the consent of the governed." The
very highest duty of the States, when they entered into the Union
under the Constitution, was to protect all persons within their
boundaries in the enjoyment of these "unalienable rights with which
they were endowed by their Creator." Sovereignty, for this purpose,
rests alone with the States. It is no more the duty or within the
power of the United States to punish for a conspiracy Page 92 U. S. 554 to falsely imprison or murder within a State, than it would be
to punish for false imprisonment or murder itself.

															The Fourteenth Amendment prohibits a State from depriving any
person of life, liberty, or property without due process of law,
but this adds nothing to the rights of one citizen as against
another. It simply furnishes an additional guaranty against any
encroachment by the States upon the fundamental rights which belong
to every citizen as a member of society. As was said by Mr. Justice
Johnson, in Bank of Columbia v.
Okely , 4 Wheat. 244, it secures

															"the individual from the arbitrary exercise of the powers of
government, unrestrained by the established principles of private
rights and distributive justice."

															These counts in the indictment do not call for the exercise of
any of the powers conferred by this provision in the amendment.

															The fourth and twelfth counts charge the intent to have been to
prevent and hinder the citizens named, who were of African descent
and persons of color, in

															"the free exercise and enjoyment of their several right and
privilege to the full and equal benefit of all laws and
proceedings, then and there, before that time, enacted or ordained
by the said State of Louisiana and by the United States, and then
and there, at that time, being in force in the said State and
District of Louisiana aforesaid, for the security of their
respective persons and property, then and there, at that time
enjoyed at and within said State and District of Louisiana by white
persons, being citizens of said State of Louisiana and the United
States, for the protection of the persons and property of said
white citizens."

															There is no allegation that this was done because of the race or
color of the persons conspired against. When stripped of its
verbiage, the case as presented amounts to nothing more than that
the defendants conspired to prevent certain citizens of the United
States, being within the State of Louisiana, from enjoying the
equal protection of the laws of the State and of the United
States.

															The Fourteenth Amendment prohibits a State from denying to any
person within its jurisdiction the equal protection of the laws;
but this provision does not, any more than the one which precedes
it, and which we have just considered, add anything Page 92 U. S. 555 to the rights which one citizen has under the Constitution
against another. The equality of the rights of citizens is a
principle of republicanism. Every republican government is in duty
bound to protect all its citizens in the enjoyment of this
principle, if within its power. That duty was originally assumed by
the States, and it still remains there. The only obligation resting
upon the United States is to see that the States do not deny the
right. This the amendment guarantees, but no more. The power of the
national government is limited to the enforcement of this
guaranty.

															No question arises under the Civil Rights Act of April 9, 1866
(14 Stat. 27), which is intended for the protection of citizens of
the United States in the enjoyment of certain rights, without
discrimination on account of race, color, or previous condition of
servitude, because, as has already been stated, it is nowhere
alleged in these counts that the wrong contemplated against the
rights of these citizens was on account of their race or color.

															Another objection is made to these counts that they are too
vague and uncertain. This will be considered hereafter, in
connection with the same objection to other counts.

															The sixth and fourteenth counts state the intent of the
defendants to have been to hinder and prevent the citizens named,
being of African descent, and colored,

															"in the free exercise and enjoyment of their several and
respective right and privilege to vote at any election to be
thereafter by law had and held by the people in and of the said
State of Louisiana, or by the people of and in the parish of Grant
aforesaid."

															In Minor v.
Happersett , 21 Wall. 178, we decided that the
Constitution of the United States has not conferred the right of
suffrage upon anyone, and that the United States have no voters of
their own creation in the States. In United States v. Reese et
al., supra, p. 92 U. S. 214 , we
hold that the Fifteenth Amendment has invested the citizens of the
United States with a new constitutional right, which is, exemption
from discrimination in the exercise of the elective franchise on
account of race, color, or previous condition of servitude. From
this, it appears that the right of suffrage is not a necessary
attribute of national citizenship, but that exemption from
discrimination in the exercise of that right on Page 92 U. S. 556 account of race, &c., is. The right to vote in the States
comes from the States, but the right of exemption from the
prohibited discrimination comes from the United States. The first
has not been granted or secured by the Constitution of the United
States, but the last has been.

															Inasmuch, therefore, as it does not appear in these counts that
the intent of the defendants was to prevent these parties from
exercising their right to vote on account of their race, &c.,
it does not appear that it was their intent to interfere with any
right granted or secured by the Constitution or laws of the United
States. We may suspect that race was the cause of the hostility,
but it is not so averred. This is material to a description of the
substance of the offence, and cannot be supplied by implication.
Everything essential must be charged positively, and not
inferentially. The defect here is not in form, but in
substance.

															The seventh and fifteenth counts are no better than the sixth
and fourteenth. The intent here charged is to put the parties named
in great fear of bodily harm, and to injure and oppress them,
because, being and having been in all things qualified, they had
voted

															"at an election before that time had and held according to law
by the people of the said State of Louisiana, in said State,
to-wit, on the fourth day of November, A.D. 1872, and at divers
other elections by the people of the State, also before that time
had and held according to law."

															There is nothing to show that the elections voted at were any
other than State elections, or that the conspiracy was formed on
account of the race of the parties against whom the conspirators
were to act. The charge as made is really of nothing more than a
conspiracy to commit a breach of the peace within a State.
Certainly it will not be claimed that the United States have the
power or are required to do mere police duly in the States. If a
State cannot protect itself against domestic violence, the United
States may, upon the call of the executive, when the legislature
cannot be convened, lend their assistance for that purpose. This is
a guaranty of the Constitution (art. 4, sect. 4), but it applies to
no case like this.

															We are therefore of the opinion that the first, second, third,
fourth, sixth, seventh, ninth, tenth, eleventh, twelfth,
fourteenth, Page 92 U. S. 557 and fifteenth counts do not contain charges of a criminal nature
made indictable under the laws of the United States, and that
consequently they are not good and sufficient in law. They do not
show that it was the intent of the defendants, by their conspiracy,
to hinder or prevent the enjoyment of any right granted or secured
by the Constitution.

															We come now to consider the fifth and thirteenth and the eighth
and sixteenth counts, which may be brought together for that
purpose. The intent charged in the fifth and thirteenth is

															"to hinder and prevent the parties in their respective free
exercise and enjoyment of the rights, privileges, immunities, and
protection granted and secured to them respectively as citizens of
the United States, and as citizens of said State of Louisiana . . .
for the reason that they, . . . being then and there citizens of
said State and of the United States, were persons of African
descent and race, and persons of color, and not white citizens
thereof;"

															and in the eighth and sixteenth, to hinder and prevent them

															"in their several and respective free exercise and enjoyment of
every, each, all, and singular the several rights and privileges
granted and secured to them by the Constitution and laws of the
United States."

															The same general statement of the rights to be interfered with
is found in the fifth and thirteenth counts.

															According to the view we take of these counts, the question is
not whether it is enough, in general, to describe a statutory
offence in the language of the statute, but whether the offence has
here been described at all. The statute provides for the punishment
of those who conspire

															"to injure, oppress, threaten, or intimidate any citizen, with
intent to prevent or hinder his free exercise and enjoyment of any
right or privilege granted or secured to him by the Constitution or
laws of the United States."

															These counts in the indictment charge, in substance that the
intent in this case was to hinder and prevent these citizens in the
free exercise and enjoyment of "every, each, all, and singular" the
rights granted them by the Constitution, &c. There is no
specification of any particular right. The language is broad enough
to cover all.

															In criminal cases, prosecuted under the laws of the United
States, the accused has the constitutional right "to be
informed Page 92 U. S. 558 of the nature and cause of the accusation." Amend. VI. In United States v.
Mills , 7 Pet. 142, this was construed to mean that
the indictment must set forth the offence "with clearness and all
necessary certainty, to apprise the accused of the crime with which
he stands charged;" and in United States v.
Cook , 17 Wall. 174 that "every ingredient of which
the offence is composed must be accurately and clearly alleged." It
is an elementary principle of criminal pleading that, where the
definition of an offence, whether it be at common law or by
statute,

															"includes generic terms, it is not sufficient that the
indictment shall charge the offence in the same generic terms as in
the definition, but it must state the species -- it must descend to
particulars."

															1 Arch.Cr.Pr. and Pl. 291. The object of the indictment is,
first, to furnish the accused with such a description of the charge
against him as will enable him to make his defence, and avail
himself of his conviction or acquittal for protection against a
further prosecution for the same cause; and, second, to inform the
court of the facts alleged, so that it may decide whether they are
sufficient in law to support a conviction, if one should be had.
For this, facts are to be stated, not conclusions of law alone. A
crime is made up of acts and intent; and these must be set forth in
the indictment, with reasonable particularity of time, place, and
circumstances.

															It is a crime to steal goods and chattels, but an indictment
would be bad that did not specify with some degree of certainty the
articles stolen. This because the accused must be advised of the
essential particulars of the charge against him, and the court must
be able to decide whether the property taken was such as was the
subject of larceny. So, too, it is in some States a crime for two
or more persons to conspire to cheat and defraud another out of his
property, but it has been held that an indictment for such an
offence must contain allegations setting forth the means proposed
to be used to accomplish the purpose. This because, to make such a
purpose criminal, the conspiracy must be to cheat and defraud in a
mode made criminal by statute; and, as all cheating and defrauding
has not been made criminal, it is necessary for the indictment to
state the means proposed, in order that the court Page 92 U. S. 559 may see that they are in fact illegal. State v. Parker, 43 N. H. 83; State v. Keach, 40 Vt. 118; Alderman v.
The People, 4 Mich. 414; State v. Roberts, 34 Me. 32.
In Maine, it is an offence for two or more to conspire with the
intent unlawfully and wickedly to commit any crime punishable by
imprisonment in the State prison ( State v. Roberts ), but
we think it will hardly be claimed that an indictment would be good
under this statute which charges the object of the conspiracy to
have been "unlawfully and wickedly to commit each, every, all, and
singular the crimes punishable by imprisonment in the State
prison." All crimes are not so punishable. Whether a particular
crime be such a one or not is a question of law. The accused has,
therefore, the right to have a specification of the charge against
him in this respect in order that he may decide whether he should
present his defence by motion to quash, demurrer, or plea, and the
court that it may determine whether the facts will sustain the
indictment. So here, the crime is made to consist in the unlawful
combination with an intent to prevent the enjoyment of any right
granted or secured by the Constitution, &c. All rights are not
so granted or secured. Whether one is so or not is a question of
law, to be decided by the court, not the prosecutor. Therefore, the
indictment should state the particulars, to inform the court as
well as the accused. It must be made to appear -- that is to say,
appears from the indictment, without going further -- that the acts
charged will, if proved, support a conviction for the offence
alleged.

															But it is needless to pursue the argument further. The
conclusion is irresistible that these counts are too vague and
general. They lack the certainty and precision required by the
established rules of criminal pleading. It follows that they are
not good and sufficient in law. They are so defective that no
judgment of conviction should be pronounced upon them. The order of the Circuit Court arresting the judgment upon
the verdict is, therefore, affirmed; and the cause remanded, with
instructions to discharge the defendants. MR. JUSTICE CLIFFORD dissenting.

															I concur that the judgment in this case should be arrested, but
for reasons quite different from those given by the court. Page 92 U. S. 560 Power is vested in Congress to enforce by appropriate
legislation the prohibition contained in the Fourteenth Amendment
of the Constitution, and the fifth section of the Enforcement Act
provides to the effect that persons who prevent, hinder, control,
or intimidate, or who attempt to prevent, hinder, control, or
intimidate, any person to whom the right of suffrage is secured or
guaranteed by that amendment, from exercising or in exercising such
right by means of bribery or threats; of depriving such person of
employment or occupation; or of ejecting such person from rented
house, lands, or other property; or by threats of refusing to renew
leases or contracts for labor; or by threats of violence to himself
or family -- such person so offending shall be deemed guilty of a
misdemeanor and, on conviction thereof, shall be fined or
imprisoned, or both, as therein provided. 16 Stat. 141.

															Provision is also made, by sect. 6 of the same act that if two
or more persons shall band or conspire together, or go in disguise,
upon the public highway, or upon the premises of another, with
intent to violate any provision of that act, or to injure, oppress,
threaten, or intimidate any citizen with intent to prevent or
hinder his free exercise and enjoyment of any right or privilege
granted or secured to him by the Constitution and laws of the
United States, or because of his having exercised the same, such
persons shall be deemed guilty of felony, and, on conviction
thereof, shall be fined or imprisoned, or both, and be further
punished as therein provided.

															More than one hundred persons were jointly indicted at the April
Term, 1873, of the Circuit Court of the United States for the
District of Louisiana, charged with offences in violation of the
provisions of the Enforcement Act. By the record, it appears that
the indictment contained thirty-two counts, in two series of
sixteen counts each; that the first series were drawn under the
fifth and sixth sections of the act; and that the second series
were drawn under the seventh section of the same act; and that the
latter series charged that the prisoners are guilty of murder
committed by them in the act of violating some of the provisions of
the two preceding sections of that act.

															Eight of the persons named in the indictment appeared on Page 92 U. S. 561 the 10th of June, 1874, and went to trial under the plea of not
guilty, previously entered at the time of their arraignment. Three
of those who went to trial -- to-wit, the three defendants named in
the transcript -- were found guilty by the jury on the first series
of the counts of the indictment, and not guilty on the second
series of the counts in the same indictment.

															Subsequently, the convicted defendants filed a motion for a new
trial, which motion being overruled, they filed a motion in arrest
of judgment. Hearing was had upon that motion and, the opinions of
the judges of the Circuit Court being opposed, the matter in
difference was duly certified to this Court, the question being
whether the motion in arrest of judgment ought to be granted or
denied.

															Two only of the causes of arrest assigned in the motion will be
considered in answering the questions certified: (1) because the
matters and things set forth and charged in the several counts in
question do not constitute offences against the laws of the United
States, and do not come within the purview, true intent, and
meaning of the Enforcement Act; (2) because the several counts of
the indictment in question are too vague, insufficient, and
uncertain to afford the accused proper notice to plead and prepare
their defence, and do not set forth any offence defined by the
Enforcement Act.

															Four other causes of arrest were assigned, but, in the view
taken of the case, it will be sufficient to examine the two causes
above set forth.

															Since the questions were certified into this Court, the parties
have been fully heard in respect to all the questions presented for
decision in the transcript. Questions not pressed at the argument
will not be considered, and, inasmuch as the counsel in behalf of
the United States confined their arguments entirely to the
thirteenth, fourteenth, and sixteenth counts of the first series in
the indictment, the answers may well be limited to these counts,
the others being virtually abandoned. Mere introductory allegations
will be omitted as unimportant, for the reason that the questions
to be answered relate to the allegations of the respective counts
describing the offence.

															As described in the thirteenth count, the charge is that the Page 92 U. S. 562 defendants did, at the time and place mentioned, combine,
conspire, and confederated together, between and among themselves,
for and with the unlawful and felonious intent and purpose one Levi
Nelson and one Alexander Tillman, each of whom being then and there
a citizen of the United States, of African descent, and a person of
color, unlawfully and feloniously to injure, oppress, threaten, and
intimidate, with the unlawful and felonious intent thereby the said
persons of color, respectively, then and there to hinder and
prevent in their respective and several free exercise and enjoyment
of the rights, privileges, and immunities, and protection, granted
and secured to them respectively as citizens of the United States
and citizens of the State, by reason of their race and color; and
because that they, the said persons of color, being then and there
citizens of the State and of the United States, were then and there
persons of African descent and race, and persons of color, and not
white citizens thereof, the same being a right or privilege granted
or secured to the said persons of color respectively, in common
with all other good citizens of the United States, by the Federal
Constitution and the laws of Congress.

															Matters of law conceded, in the opinion of the Court, may be
assumed to be correct without argument, and, if so, then discussion
is not necessary to show that every ingredient of which an offence
is composed must be accurately and clearly alleged in the
indictment, or the indictment will be bad, and 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.

															Offences created by statute, as well as offences at common law,
must be accurately and clearly described in an indictment, and, if
the offence cannot be so described without expanding the
allegations beyond the mere words of the statute, then it is clear
that the allegations of the indictment must be expanded to that
extent, as it is universally true that no indictment is sufficient
which does not accurately and clearly allege all the ingredients of
which the offence is composed, so as to bring the accused within
the true intent and meaning of the statute defining the offence.
Authorities of great weight, besides those referred to by me, in
the dissenting opinion just read, Page 92 U. S. 563 may be found in support of that proposition. 2 East, P.C. 1124; Dord v. People, 9 Barb. 675; Ike v. State, 23
Miss. 525; State v. Eldridge, 7 Eng. 608.

															Every offence consists of certain acts done or omitted under
certain circumstances, and, in the indictment for the offence, it
is not sufficient to charge the accused generally with having
committed the offence, but all the circumstances constituting the
offence must be specially set forth. Arch.Cr.Pl., 15th ed., 43.

															Persons born on naturalized in the United States, and subject to
the jurisdiction thereof, are citizens thereof, and the Fourteenth
Amendment also provides that no State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States. Congress may, doubtless, prohibit any violation of
that provision, and may provide that any person convicted of
violating the same shall be guilty of an offence and be subject to
such reasonable punishment as Congress may prescribe.

															Conspiracies of the kind described in the introductory clause of
the sixth section of the Enforcement Act are explicitly forbidden
by the subsequent clauses of the same section, and it may be that,
if the indictment was for a conspiracy at common law, and was
pending in a tribunal having jurisdiction of common law offences,
the indictment in its present form might be sufficient even though
it contains no definite allegation whatever of any particular overt
act committed by the defendants in pursuance of the alleged
conspiracy.

															Decided cases may doubtless be found in which it is held that an
indictment for a conspiracy at common law may be sustained where
there is an unlawful agreement between two or more persons to do an
unlawful act, or to do a lawful act by unlawful means, and
authorities may be referred to which support the proposition that
the indictment, if the conspiracy is well pleaded, is sufficient
even though it be not alleged that any overt act had been done in
pursuance of the unlawful combination.

															Suffice it to say, however that the authorities to that effect
are opposed by another class of authorities equally respectable,
and even more numerous, which decide that the indictment is Page 92 U. S. 564 bad unless it is alleged that some overt act was committed in
pursuance of the intent and purpose of the alleged conspiracy; and
in all the latter class of cases, it is held that the overt act, as
well as the unlawful combination, must be clearly and accurately
alleged.

															Two reasons of a conclusive nature, however, may be assigned
which show beyond all doubt that it is not necessary to enter into
the inquiry which class of those decisions is correct.

															1. Because the common law is not a source of
jurisdiction in the circuit courts, nor in any other Federal
court.

															Circuit Courts have no common law jurisdiction of offences of
any grade or description, and it is equally clear that the
appellate jurisdiction of the Supreme Court does not extend to any
case or any question, in a case not within the jurisdiction of the
subordinate Federal courts. State v. Wheeling Bridge Co., 13 How. 503; United States v. Hudson et
al. , 7 Cranch 32.

															2. Because it is conceded that the offence described in the
indictment is an offence created and defined by an act of
Congress.

															Indictments for offences created and defined by statute must in
all cases follow the words of the statute, and, where there is no
departure from that rule, the indictment is in general sufficient,
except in cases where the statute is elliptical or where, by
necessary implication, other constituents are component parts of
the offence, as where the words of the statute defining the offence
have a compound signification or are enlarged by what immediately
precedes or follows the words describing the offence, and in the
same connection. Cases of the kind do arise, as where, in the
dissenting opinion in United States v. Reese et al.,
supra, p. 92 U. S. 222 ,
it was held that the words offer to pay a capitation tax were so expanded by a succeeding clause of the same sentence that
the word "offer" necessarily included readiness to perform what was
offered, the provision being that the offer should be equivalent to
actual performance if the offer failed to be carried into execution
by the wrongful act or omission of the party to whom the offer was
made.

															Two offences are in fact created and defined by the sixth
section of the Enforcement Act, both of which consist of a Page 92 U. S. 565 conspiracy with an intent to perpetrate a forbidden act. They
are alike in respect to the conspiracy, but differ very widely in
respect to the act embraced in the prohibition.

															1. Persons, two or more, are forbidden to band or conspire
together, or go in disguise upon the public highway, or on the
premises of another, with intent to violate any provision
of the Enforcement Act, which is an act of twenty-three
sections.

															Much discussion of that clause is certainly unnecessary, as no
one of the counts under consideration is founded on it, or contains
any allegations describing such an offence. Such a conspiracy with
intent to injure, oppress, threaten, or intimidate any person is
also forbidden by the succeeding clause of that section, if it be
done with intent to prevent or hinder his free exercise and
enjoyment of any right or privilege granted or secured to
him by the Constitution or laws of the United States, or because of
having exercised the same. Sufficient appears in the thirteenth
count to warrant the conclusion that the grand jury intended to
charge the defendants with the second offence created and defined
in the sixth section of the Enforcement Act.

															Indefinite and vague as the description of the offence there
defined, is, it is obvious that it is greatly more so as described
in the allegations of the thirteenth count. By the act of Congress,
the prohibition is extended to any right or privilege granted or secured by the Constitution or laws of Congress, leaving
it to the pleader to specify the particular right or privilege
which had been invaded in order to give the accusation that
certainty which the rules of criminal pleading everywhere require
in an indictment; but the pleader in this case, overlooking any
necessity for any such specification, and making no attempt to
comply with the rules of criminal pleading in that regard,
describes the supposed offence in terms much more vague and
indefinite than those employed in the act of Congress.

															Instead of specifying the particular right or privilege which
had been invaded, the pleader proceeds to allege that the
defendants, with all the others named in the indictment, did
combine, conspire, and confederate together, with the unlawful
intent and purpose the said persons of African descent and Page 92 U. S. 566 persons of color then and there to injure, oppress, threaten,
and intimidate, and thereby then and there to hinder and prevent
them in the free exercise and enjoyment of the rights,
privileges, and immunities and protection granted and secured
to them as citizens of the United States and citizens of the State,
without any other specification of the rights, privileges,
immunities, and protection which had been violated or invaded, or
which were threatened except what follows -- to-wit, the same being
a right or privilege granted or secured in common with all other
good citizens by the Constitution and laws of the United
States.

															Vague and indefinite allegations of the kind are not sufficient
to inform the accused in a criminal prosecution of the nature and
cause of the accusation against him within the meaning of the sixth
amendment of the Constitution.

															Valuable rights and privileges almost without number are granted
and secured to citizens by the Constitution and laws of Congress,
none of which may be with impunity invaded in violation of the
prohibition contained in that section. Congress intended by that
provision to protect citizens in the enjoyment of all such rights
and privileges, but, in affording such protection in the mode there
provided, Congress never intended to open the door to the invasion
of the rule requiring certainty in criminal pleading, which for
ages has been regarded as one of the great safeguards of the
citizen against oppressive and groundless prosecutions.

															Judge Story says the indictment must charge the time and place
and nature and circumstances of the offence with clearness and
certainty, so that the party may have full notice of the charge and
be able to make his defence with all reasonable knowledge and
ability. 2 Story, Const., sect. 1785.

															Nothing need be added to show that the fourteenth count is
founded upon the same clause in the sixth section of the
Enforcement Act as the thirteenth count, which will supersede the
necessity of any extended remarks to explain the nature and
character of the offence there created and defined. Enough has
already been remarked to show that that particular clause of the
section was passed to protect citizens in the free exercise and
enjoyment of every right or privilege granted Page 92 U. S. 567 or secured to them by the Constitution and laws of Congress, and
to provide for the punishment of those who band or conspire
together, in the manner described, to injure, oppress, or
intimidate any citizen, to prevent or hinder him from the free
exercise and enjoyment of all such rights or privileges, or because
of his having exercised any such right or privilege so granted or
secured.

															What is charged in the fourteenth count is that the defendants
did combine, conspire, and confederate the said citizens of African
descent and persons of color to injure, oppress, threaten, and
intimidate, with intent the said citizens thereby to prevent and
hinder in the free exercise and enjoyment of the right and
privilege to vote at any election to be thereafter had and
held according to law by the people of the State, or by the
people of the parish, they, the defendants, well knowing that the
said citizens were lawfully qualified to vote at any such election
thereafter to be had and held.

															Confessedly, some of the defects existing in the preceding count
are avoided in the count in question -- as, for example, the
description of the particular right or privilege of the said
citizens which it was the intent of the defendants to invade is
clearly alleged; but the difficulty in the count is that it does
not allege for what purpose the election or elections were to be
ordered, nor when or where the elections were to be had and held.
All that is alleged upon the subject is that it was the intent of
the defendants to prevent and hinder the said citizens of African
descent and persons of color in the free exercise and enjoyment of
the right and privilege to vote at any election thereafter to
be had and held, according to law, by the people of the State,
or by the people of the parish, without any other allegation
whatever as to the purpose of the election, or any allegation as to
the time and place when and where the election was to be had and
held.

															Elections thereafter to be held must mean something different
from pending elections; but whether the pleader means to charge
that the intent and purpose of the alleged conspiracy extended only to the next succeeding elections to be held in the
State or parish, or to all future elections to be held in the State
or parish during the lifetime of the parties, may admit of Page 92 U. S. 568 a serious question which cannot be easily solved by anything
contained in the allegations of the count.

															Reasonable certainty, all will agree, is required in criminal
pleading; and, if so, it must be conceded, we think, that the
allegation in question fails to comply with that requirement.
Accused persons, as matter of common justice, ought to have the
charge against them set forth in such terms that they may readily
understand the nature and character of the accusation in order that
they, when arraigned, may know what answer to make to it, and that
they may not be embarrassed in conducting their defence; and the
charge ought also to be laid in such terms that, if the party
accused is put to trial, the verdict and judgment may be pleaded in
bar of a second accusation for the same offence.

															Tested by these considerations, it is quite clear that the
fourteenth count is not sufficient to warrant the conviction and
sentence of the accused.

															Defects and imperfections of the same kind as those pointed out
in the thirteenth count also exist in the sixteenth count, and of a
more decided character in the latter count than in the former,
conclusive proof of which will appear by a brief examination of a
few of the most material allegations of the charge against the
defendants. Suffice it to say without entering into details that
the introductory allegations of the count are in all respects the
same as in the thirteenth and fourteenth counts. None of the
introductory allegations alleges that any overt act was perpetrated
in pursuance of the alleged conspiracy, but the jurors proceed to
present that the unlawful and felonious intent and purpose of the
defendants were to prevent and hinder the said citizens of African
descent and persons of color, by the means therein described, in
the free exercise and enjoyment of each, every, all, and
singular the several rights and privileges granted and secured
to them by the Constitution and laws of the United States in common
with all other good citizens, without any attempt to describe or
designate any particular right or privilege which it was the
purpose and intent of the defendants to invade, abridge, or
deny.

															Descriptive allegations in criminal pleading are required to be
reasonably definite and certain, as a necessary safeguard Page 92 U. S. 569 to the accused against surprise, misconception, and error in
conducting his defence, and in order that the judgment in the case
may be a bar to a second accusation for the same charge.
Considerations of the kind are entitled to respect, but it is
obvious that, if such a description of the ingredient of an offence
created and defined by an act of Congress is held to be sufficient,
the indictment must become a snare to the accused, as it is
scarcely possible that an allegation can be framed which would be
less certain, or more at variance with the universal rule that
every ingredient of the offence must be clearly and accurately
described so as to bring the defendant within the true intent and
meaning of the provision defining the offence. Such a vague and
indefinite description of a material ingredient of the offence is
not a compliance with the rules of pleading in framing an
indictment. On the contrary, such an indictment is insufficient,
and must be held bad on demurrer or in arrest of judgment.

															Certain other causes for arresting the judgment are assigned in
the record which deny the constitutionality of the Enforcement Act;
but, having come to the conclusion that the indictment is
insufficient, it is not necessary to consider that question.

Summary:
The case of United States v. Cruikshank (1875) dealt with the rights of citizens and the duties of the state and federal governments to protect those rights. The Court affirmed that citizens owe allegiance to both their state and the United States governments, with distinct rights and protections under each.

The Court held that the First Amendment's prohibition on Congress abridging the right to assemble and petition applied only to the federal government and not the states. Similarly, the right to bear arms is not granted by the Constitution, and the Second Amendment restricts only federal, not state, action.

The Court also emphasized the importance of clear and definite allegations in criminal pleading to safeguard the accused and ensure that judgments can serve as a bar to future accusations.

Ultimately, the Court found the indictment in this case insufficient and ruled in favor of Cruikshank, highlighting the separate powers and duties of the state and federal governments in protecting citizens' rights.


U.S. Supreme Court Zucht v. King, 260
U.S. 174 (1922) Zucht v. King No. 84 Argued October 20,
1922 Decided November 13,
1922 260
U.S. 174 ERROR TO THE COURT OF CIVIL
APPEALS, FOURTH SUPREME JUDICIAL DISTRICT, OF THE STATE OF
TEXAS Syllabus l. A city ordinance is a law of a state within the meaning of
Jud.Code, § 237. P. 260 U. S.
176 .

															2. It is the duty of this Court to decline jurisdiction whenever
it appears that the constitutional question upon which jurisdiction
depends was not, at the time of granting the writ, a substantial
question. P. 260 U. S.
176 .

															3. City ordinances making vaccination a condition to attendance
at public or private schools and vesting broad discretion in health
authorities to determine when and under what circumstances the
requirement shall be enforced are consistent with the Fourteenth
Amendment, and, in view of prior decisions, a contrary contention
presents no substantial constitutional question. P. 260 U. S.
176 .

															4. The question whether city officials have administered a valid
ordinance in such a way as to deny the plaintiff the equal
protection of the laws is not one of those upon which the judgment
of a state court may be brought here by writ of error. P. 260 U. S.
177 .

															Writ of error to review 225 S.W. 267 dismissed.

															Error to a judgment of the court below affirming a judgment of a
trial court which dismissed the bill in a suit for injunction,
mandamus, and damages. Page 260 U. S. 175 MR. JUSTICE BRANDEIS delivered the opinion of the Court.

															Ordinances of the City of San Antonio, Texas, provide that no
child or other person shall attend a public school or other place
of education without having first presented a certificate of
vaccination. Purporting to act under these ordinances, public
officials excluded Rosalyn Zucht from a public school because she
did not have the required certificate and refused to submit to
vaccination. They also caused her to be excluded from a private
school. Thereupon Rosalyn brought this suit against the officials
in a court of the state. The bill charges that there was then no
occasion for requiring vaccination; that the ordinances deprive
plaintiff of her liberty without due process of law by, in effect,
making vaccination compulsory, and also that they are void because
they leave to the board of health discretion to determine when and
under what circumstances the requirement shall be enforced, without
providing any rule by which that board is to be guided in its
action and without providing any safeguards against partiality and
oppression. The prayers were for an injunction against enforcing
the ordinances, for a writ of mandamus to compel her admission to
the public school, and for damages. A general demurrer to the bill
of complaint was sustained by the trial court, and, plaintiff
having declined to amend, the bill was dismissed. This judgment was
affirmed by the Court of Civil Appeals for the Fourth Supreme
Judicial District. 225 S.W. 267. A motion for rehearing was
overruled, and an application Page 260 U. S. 176 for a writ of error to the Supreme Court of Texas was denied by
that court. A petition for a writ of certiorari filed in this Court
was dismissed for failure to comply with Rule 37. 257 U.S. 650. The
case is now here on writ of error granted by the Chief Justice of
the Court of Civil Appeals. It is assigned as error that the
ordinances violate the due process and equal protection clauses of
the Fourteenth Amendment, and that as administered they denied to
plaintiff equal protection of the laws.

															The validity of the ordinances under the federal Constitution
was drawn in question by objections properly taken below. A city
ordinance is a law of the state within the meaning of § 237 of the
Judicial Code, as amended, which provides a review by writ of error
where the validity of a law is sustained by the highest court of
the state in which a decision in the suit could be had. Atlantic Coast Line v. Goldsboro, 232 U.
S. 548 , 232 U. S. 555 .
But, although the validity of a law was formally drawn in question,
it is our duty to decline jurisdiction whenever it appears that the
constitutional question presented is not, and was not at the time
of granting the writ, substantial in character. Sugarman v.
United States, 249 U. S. 182 , 249 U. S. 184 .
Long before this suit was instituted, Jacobson v.
Massachusetts, 197 U. S. 11 , had
settled that it is within the police power of a state to provide
for compulsory vaccination. That case and others had also settled
that a state may, consistently with the federal Constitution,
delegate to a municipality authority to determine under what
conditions health regulations shall become operative. Laurel
Hill Cemetery v. San Francisco, 216 U.
S. 358 . And still others had settled that the
municipality may vest in its officials broad discretion in matters
affecting the application and enforcement of a health law. Lieberman v. Van de Carr, 199 U.
S. 552 . A long line of decisions by this Court had also
settled Page 260 U. S. 177 that, in the exercise of the police power, reasonable
classification may be freely applied, and that regulation is not
violative of the equal protection clause merely because it is not
all-embracing. Adams v. Milwaukee, 228 U.
S. 572 ; Miller v. Wilson, 236 U.
S. 373 , 236 U. S. 384 .
In view of these decisions, we find in the record no question as to
the validity of the ordinance sufficiently substantial to support
the writ of error. Unlike Yick Wo v. Hopkins, 118 U.
S. 356 , these ordinances confer not arbitrary power, but
only that broad discretion required for the protection of the
public health.

															The bill contains also averments to the effect that, in
administering the ordinance, the official have discriminated
against the plaintiff in such a way as to deny to her equal
protection of the laws. These averments do present a substantial
constitutional question. Neal v. Delaware, 103 U.
S. 370 . But the question is not of that character which
entitles a litigant to a review by this Court on writ of error. The
question does not go to the validity of the ordinance, nor does it
go to the validity of the authority of the officials. Compare
United States v. Taft, 203 U. S. 461 ; Champion Lumber Co. v. Fisher, 227 U.
S. 445 ; Yazoo & Mississippi Valley R. Co. v.
Clarksdale, 257 U. S. 10 . This
charge is of an unconstitutional exercise of authority under an
ordinance which is valid. Compare Stadelman v. Miner, 246 U. S. 544 .
Unless a case is otherwise properly here on writ of error,
questions of that character can be reviewed by this Court only on
petition for a writ of certiorari. Writ of error dismissed.

Summary: The Supreme Court dismissed the writ of error, finding no substantial constitutional question presented regarding the validity of city ordinances on vaccination and school attendance. The Court affirmed that vaccination requirements fall within the state's police power and that municipalities can delegate authority and exercise discretion in applying health regulations. Allegations of unequal enforcement by officials did not pertain to the validity of the ordinance or their authority and thus could not be reviewed via a writ of error.


U.S. Supreme Court United States v. Miller, 307
U.S. 174 (1939) United States v.
Miller No. 696 Argued March 30, 1939 Decided May 15, 1939 307
U.S. 174 APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE WESTERN DISTRICT OF
ARKANSAS Syllabus The National Firearms Act, as applied to one indicted for
transporting in interstate commerce a 12-gauge shotgun with a
barrel less than 18 inches long without having registered it and
without having in his possession a stamp-affixed written order for
it, as required by the Act, held: 1. Not unconstitutional as an invasion of the reserved powers of
the States. Citing Sonzinsky v. United States, 300 U. S. 506 , and
Narcotic Act cases. P. 307 U. S.
177 .

															2. Not violative of the Second Amendment of the Federal
Constitution. P. 307 U. S.
178 .

															The Court cannot take judicial notice that a shotgun having a
barrel less than 18 inches long has today any reasonable relation
to the preservation or efficiency of a well regulated militia, and
therefore cannot say that the Second Amendment guarantees to the
citizen the right to keep and bear such a weapon. 26 F. Supp.
1002 , reversed.

															APPEAL under the Criminal Appeals Act from a judgment sustaining
a demurrer to an indictment for violation of the National Firearms
Act. Page 307 U. S. 175 MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

															An indictment in the District Court, Western District Arkansas,
charged that Jack Miller and Frank Layton

															"did unlawfully, knowingly, willfully, and feloniously transport
in interstate commerce from the town of Claremore in the State of
Oklahoma to the town of Siloam Springs in the State of Arkansas a
certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun
having a barrel less than 18 inches in length, bearing
identification number 76230, said defendants, at the time of so
transporting said firearm in interstate commerce as aforesaid, not
having registered said firearm as required by Section 1132d of
Title 26, United States Code (Act of June 26, 1934, c. 737, Sec. 4
[§ 5], 48 Stat. 1237), and not having in their possession a
stamp-affixed written order for said firearm as provided by Section
1132c, Title 2, United States Code (June 26, 1934, c. 737, Sec. 4,
48 Stat. 1237) and the regulations issued under authority of the
said Act of Congress known as the 'National Firearms Act,' approved
June 26, 1934, contrary to the form of the statute in such case
made and provided, and against the peace and dignity of the United
States. [ Footnote 1 ] " Page 307 U. S. 176 A duly interposed demurrer alleged: the National Firearms Act is
not a revenue measure, but an attempt to usurp police power
reserved to the States, and is therefore unconstitutional. Also, it
offends the inhibition of the Second Amendment to the Constitution
-- "A well regulated Militia, being necessary to the security of a
free State, the right of people to keep and bear Arms, shall not be
infringed." Page 307 U. S. 177 The District Court held that section eleven of the Act violates
the Second Amendment. It accordingly sustained the demurrer and
quashed the indictment.

															The cause is here by direct appeal.

															Considering Sonzinsky v. United States (1937), 300 U. S. 506 , 300 U. S. 513 ,
and what was ruled in sundry causes arising Page 307 U. S. 178 under the Harrison Narcotic Act [ Footnote 2 ] -- United States v. Jin Fuey Moy (1916), 241 U. S. 394 , United States v. Doremus (1919), 249 U. S.
86 , 249 U. S. 94 ; Linder v. United States (1925), 268 U. S.
5 ; Alston v. United States (1927), 274 U.
S. 289 ; Nigro v. United States (1928), 276 U. S. 332 --
the objection that the Act usurps police power reserved to the
States is plainly untenable.

															In the absence of any evidence tending to show that possession
or use of a "shotgun having a barrel of less than eighteen inches
in length" at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot
say that the Second Amendment guarantees the right to keep and bear
such an instrument. Certainly it is not within judicial notice that
this weapon is any part of the ordinary military equipment, or that
its use could contribute to the common defense. Aymette v.
State, 2 Humphreys (Tenn.) 154, 158.

															The Constitution, as originally adopted, granted to the Congress
power --

															"To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions; To provide
for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of
the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress."

															With obvious purpose to assure the continuation and render
possible the effectiveness of such forces, the declaration and
guarantee of the Second Amendment were made. It must be interpreted
and applied with that end in view.

															The Militia which the States were expected to maintain and train
is set in contrast with Troops which they Page 307 U. S. 179 were forbidden to keep without the consent of Congress. The
sentiment of the time strongly disfavored standing armies; the
common view was that adequate defense of country and laws could be
secured through the Militia -- civilians primarily, soldiers on
occasion.

															The signification attributed to the term Militia appears from
the debates in the Convention, the history and legislation of
Colonies and States, and the writings of approved commentators.
These show plainly enough that the Militia comprised all males
physically capable of acting in concert for the common defense. "A
body of citizens enrolled for military discipline." And further,
that ordinarily, when called for service these men were expected to
appear bearing arms supplied by themselves and of the kind in
common use at the time.

															Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out
"that king Alfred first settled a national militia in this
kingdom," and traces the subsequent development and use of such
forces.

															Adam Smith's Wealth of Nations, Book V, Ch. 1, contains an
extended account of the Militia. It is there said: "Men of
republican principles have been jealous of a standing army as
dangerous to liberty."

															"In a militia, the character of the labourer, artificer, or
tradesman, predominates over that of the soldier: in a standing
army, that of the soldier predominates over every other character,
and in this distinction seems to consist the essential difference
between those two different species of military force."

															"The American Colonies In The 17th Century," Osgood, Vol. 1, ch.
XIII, affirms in reference to the early system of defense in New
England --

															"In all the colonies, as in England, the militia system was
based on the principle of the assize of arms. This implied the
general obligation of all adult male inhabitants to possess arms,
and, with certain exceptions, to Page 307 U. S. 180 cooperate in the work of defence."

															"The possession of arms also implied the possession of
ammunition, and the authorities paid quite as much attention to the
latter as to the former."

															"A year later [1632] it was ordered that any single man who had
not furnished himself with arms might be put out to service, and
this became a permanent part of the legislation of the colony
[Massachusetts]."

															Also,

															"Clauses intended to insure the possession of arms and
ammunition by all who were subject to military service appear in
all the important enactments concerning military affairs. Fines
were the penalty for delinquency, whether of towns or individuals.
According to the usage of the times, the infantry of Massachusetts
consisted of pikemen and musketeers. The law, as enacted in 1649
and thereafter, provided that each of the former should be armed
with a pike, corselet, head-piece, sword, and knapsack. The
musketeer should carry a 'good fixed musket,' not under bastard
musket bore, not less than three feet, nine inches, nor more than
four feet three inches in length, a priming wire, scourer, and
mould, a sword, rest, bandoleers, one pound of powder, twenty
bullets, and two fathoms of match. The law also required that
two-thirds of each company should be musketeers."

															The General Court of Massachusetts, January Session 1784,
provided for the organization and government of the Militia. It
directed that the Train Band should "contain all able bodied men,
from sixteen to forty years of age, and the Alarm List, all other
men under sixty years of age, . . ." Also,

															"That every noncommissioned officer and private soldier of the
said militia not under the controul of parents, masters or
guardians, and being of sufficient ability therefor in the judgment
of the Selectmen of the town in which he shall dwell, shall equip
himself, and be constantly provided with a good fire arm,"

															etc.

															By an Act passed April 4, 1786, the New York Legislature
directed:

															"That every able-bodied Male Person, being Page 307 U. S. 181 a Citizen of this State, or of any of the United States, and
residing in this State, (except such Persons as are hereinafter
excepted) and who are of the Age of Sixteen, and under the Age of
Forty-five Years, shall, by the Captain or commanding Officer of
the Beat in which such Citizens shall reside, within four Months
after the passing of this Act, be enrolled in the Company of such
Beat. . . . That every Citizen so enrolled and notified shall,
within three Months thereafter, provide himself, at his own
Expense, with a good Musket or Firelock, a sufficient Bayonet and
Belt, a Pouch with a Box therein to contain not less than
Twenty-four Cartridges suited to the Bore of his Musket or
Firelock, each Cartridge containing a proper Quantity of Powder and
Ball, two spare Flints, a Blanket and Knapsack; . . ."

															The General Assembly of Virginia, October, 1785, (12 Hening's
Statutes) declared,

															"The defense and safety of the commonwealth depend upon having
its citizens properly armed and taught the knowledge of military
duty."

															It further provided for organization and control of the Militia,
and directed that "All free male persons between the ages of
eighteen and fifty years," with certain exceptions, "shall be
inrolled or formed into companies." "There shall be a private
muster of every company once in two months."

															Also that

															"Every officer and soldier shall appear at his respective
muster-field on the day appointed, by eleven o'clock in the
forenoon, armed, equipped, and accoutred, as follows: . . . every
non-commissioned officer and private with a good, clean musket
carrying an ounce ball, and three feet eight inches long in the
barrel, with a good bayonet and iron ramrod well fitted thereto, a
cartridge box properly made, to contain and secure twenty
cartridges fitted to his musket, a good knapsack and canteen, and
moreover, each non-commissioned officer and private shall have at
every muster one pound of good Page 307 U. S. 182 powder, and four pounds of lead, including twenty blind
cartridges, and each serjeant shall have a pair of moulds fit to
cast balls for their respective companies, to be purchased by the
commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the
Blue Ridge, and the counties below adjoining thereto, shall not be
obliged to be armed with muskets, but may have good rifles with
proper accoutrements, in lieu thereof. And every of the said
officers, non-commissioned officers, and privates, shall constantly
keep the aforesaid arms, accoutrements, and ammunition ready to be
produced whenever called for by his commanding officer. If any
private shall make it appear to the satisfaction of the court
hereafter to be appointed for trying delinquencies under this act
that he is so poor that he cannot purchase the arms herein
required, such court shall cause them to be purchased out of the
money arising from delinquents."

															Most if not all of the States have adopted provisions touching
the right to keep and bear arms. Differences in the language
employed in these have naturally led to somewhat variant
conclusions concerning the scope of the right guaranteed. But none
of them seems to afford any material support for the challenged
ruling of the court below.

															In the margin, some of the more important opinions and comments
by writers are cited. [ Footnote
3 ]

															We are unable to accept the conclusion of the court below, and
the challenged judgment must be reversed. The cause will be
remanded for further proceedings.

															MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this cause.

															[ Footnote 1 ]

															Act of June 26, 1934, c. 757, 48 Stat. 1236-1240, 26 U.S.C. §
1132.

															"That for the purposes of this Act --"

															"(a) The term 'firearm' means a shotgun or rifle having a barrel
of less than eighteen inches in length, or any other weapon, except
a pistol or revolver, from which a shot is discharged by an
explosive if such weapon is capable of being concealed on the
person, or a machine gun, and includes a muffler or silencer for
any firearm whether or not such firearm is included within the
foregoing definition [The Act of April 10, 1936, c. 169, 49 Stat.
1192 added the words], but does not include any rifle which is
within the foregoing provisions solely by reason of the length of
its barrel if the caliber of such rifle is .22 or smaller and if
its barrel is sixteen inches or more in length."

															"Sec. 3. (a) There shall be levied, collected, and paid upon
firearms transferred in the continental United States a tax at the
rate of $200 for each firearm, such tax to be paid by the
transferor, and to be represented by appropriate stamps to be
provided by the Commissioner, with the approval of the Secretary,
and the stamps herein provided shall be affixed to the order for
such firearm, hereinafter provided for. The tax imposed by this
section shall be in addition to any import duty imposed on such
firearm."

															"Sec. 4. (a) It shall be unlawful for any person to transfer a
firearm except in pursuance of a written order from the person
seeking to obtain such article, on an application form issued in
blank in duplicate for that purpose by the Commissioner. Such order
shall identify the applicant by such means of identification as may
be prescribed by regulations under this Act: Provided, That, if the applicant is an individual, such identification shall
include fingerprints and a photograph thereof."

															"(c) Every person so transferring a firearm shall set forth in
each copy of such order the manufacturer's number or other mark
identifying such firearm, and shall forward a copy of such order to
the Commissioner. The original thereof, with stamps affixed, shall
be returned to the applicant."

															"(d) No person shall transfer a firearm which has previously
been transferred on or after the effective date of this Act, unless
such person, in addition to complying with subsection (c),
transfers therewith the stamp-affixed order provided for in this
section for each such prior transfer, in compliance with such
regulations as may be prescribed under this Act for proof of
payment of all taxes on such firearms."

															"Sec. 5. (a) Within sixty days after the effective date of this
Act every person possessing a firearm shall register, with the
collector of the district in which he resides, the number or other
mark identifying such firearm, together with his name, address,
place where such firearm is usually kept, and place of business or
employment, and, if such person is other than a natural person, the
name and home address of an executive officer thereof: Provided, That no person shall be required to register
under this section with respect to any firearm acquired after the
effective date of, and in conformity with the provisions of, this
Act."

															"Sec. 6. It shall be unlawful for any person to receive or
possess any firearm which has at any time been transferred in
violation of section 3 or 4 of this Act."

															"Sec. 11. It shall be unlawful for any person who is required to
register as provided in section 5 hereof and who shall not have so
registered, or any other person who has not in his possession a
stamp-affixed order as provided in section 4 hereof, to ship,
carry, or deliver any firearm in interstate commerce."

															"Sec. 12. The Commissioner, with the approval of the Secretary,
shall prescribe such rules and regulations as may be necessary for
carrying the provisions of this Act into effect."

															"Sec. 14. Any person who violates or fails to comply with any of
the requirements of this Act shall, upon conviction, be fined not
more than $2,000 or be imprisoned for not more than five years, or
both, in the discretion of the court."

															"Sec. 16. If any provision of this Act, or the application
thereof to any person or circumstance, is held invalid, the
remainder of the Act, and the application of such provision to
other persons or circumstances, shall not be affected thereby."

															"Sec. 18. This Act may be cited as the 'National Firearms
Act.'"

															[ Footnote 2 ]

															Act December 17, 1914, c. 1, 38 Stat. 785; February 24, 1919, c.
18, 40 Stat. 1057.

															[ Footnote 3 ]

															Concerning The Militia -- Presser v. Illinois, 116 U. S. 252 ; Robertson v. Baldwin, 165 U. S. 275 ; Fife v. State, 31 Ark. 455; Jeffers v. Fair, 33
Ga. 347; Salina v. Blaksley, 72 Kan. 230; 83 P. 619; People v. Brown, 253 Mich. 537; 235 N.W. 245; Aymette
v. State, 2 Humphr. (Tenn.) 154; State v. Duke, 42
Texas 455; State v. Workman, 35 W.Va. 367; 14 S.E. 9;
Cooley's Constitutional Limitations, Vol. 1, p. 729; Story on The
Constitution, 5th Ed., Vol. 2, p. 646; Encyclopaedia of the Social
Sciences, Vol. X, p. 471, 474.

Summary: The National Firearms Act, which regulates the possession and transportation of certain firearms, was challenged in the case of United States v. Miller (1939). The Supreme Court upheld the Act, ruling that it did not violate the Second Amendment as it pertained to a shotgun with a barrel less than 18 inches long. The Court found that such a weapon has no reasonable relation to the preservation or efficiency of a well-regulated militia, and therefore, the Second Amendment does not guarantee the right to keep and bear such arms.