UNITED STATES v. CBUIKSHANK et al.
Circuit Court. D. Louisiana. April Term, 1874.=
Civil Rights Bill--Indictment for Violation
--FOURTEENTH AND FIFTEENTH Amendments to
Constitution--Right to Vote-- Injuries to Negroes--How Cognizable.
1. An indictment, under the enforcement act or civil rights bill, for violating civil rights, should state that the offense charged was committed against the person injured by reason of his race, color or previous condition of servitude.
2. A charge that the defendants conspired to injure certain persons of African descent, being citizens of the United States, thereby to prevent them from exercising their rights as citizens, such as the right to peaceably assemble, to bear arms, etc. unless accompanied with an averment that the injury was committed by reason of the race, color, or previous condition of servitude of the person conspired against, is not sustainable in the courts or the United States.
3. Congress has power to legislate for the enforcement of any right granted by the constitution; but the power must be exercised according to the nature of the grant or guaranty. If it only be that congress or the legislature of state shall not pass laws for abridging the right, it is a guaranty against acts of the government only, state or federal, and not against the acts of individuals; and in such case congress has not power to legislate over the subject generally; but only to provide remedies or redress in the legislature or congress itself (as the case may be) should violate the prohibition. The fourteenth amendment of the constitution does not change the power of congress in this respect.
[Cited in Le Grand v. U.S., 12 Fed. 580; U.S. v. Harris, 106 U.S. 638, 1 Sup. Ct. 608: Logan v. U.S., 12 Sup. Ct. 624; Green v. Elbert, 11 C.C.A. 207, 63 Fed. 309.]
"...The first count is for a conspiracy to interfere with the right to "peaceably assemble together with each other, and with other citizens, for a peaceable and lawful purpose." This right Is guarantied in the first amendment to the constitution, which declares that "congress shall make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances." Does this disaffirmance of the power of congress to prevent the assembling of the people amount to an affirmative power to punish individuals for disturbing assemblies? This would be a strange inference. That is the prerogative of the states. It belongs to the preservation of the public peace and the fundamental rights of the people. The people of the states do not ask congress to protect the right, but demand that it shall not interfere with it. Has anything since occurred to give congress legislative power over the subject matter? The 14th amendment declares that no state shall by law abridge the privileges or Immunities of citizens of the United States. Grant that this prohibition now prevents the states from Interfering with the right to assemble, as being one of such privileges and immunities, still does it give congress power to legislate over the subject? Power to enforce the amendment is all that Is given to congress. If the amendment Is not violated, it has no power over the subject.
"The second count, which is for a conspiracy to interfere with certain citizens in their right to bear arms is open to the same criticism as the first...."
[NOTE. The order arresting the in conformity with the above opinion of Mr Justice Bradley was affirmed by the supreme court where it was carried on writ of error and certificate of division. 92 U.S. 542.]