New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-05-09
ENFORCING THE RIGHT TO VOTE
Decision by Judge Woods

The United States VS.. John Hall. Jr., and
William Pettigrew-Fifth Circuit and
Southern District of Alabama, April term,
1871.
This case was heard by Woods and
Busteed, j. j., on demurrer TO the indict-
ment. Woods delivered the opinion OF the
court.
This is an indictment for q violation of
the sixth section of the act of Congress,
approved May 81, 1870, entitled an act to
enforce the rights of citizens of the United
States TO vote in the several States of this
Union, and for other purposes. 1t contains
two counts. The first count in substance
charges that the defendants did unlawfully
and feloniously band and conspire together
with intent to injure, oppress, threaten and
intimidate Charles Hays and others, naming
them, citizens of the United States of Amer
ica. with intent to hinder and prevent their
free exercise and enjoyment OF the right of
freedom of speech, the same being right
and privilege granted and secured to them
by the constitution of the United States.
The second count charges in substance
that the defendants did unlawfully and
feloniously band and conspire together
with intent to injure, oppress, threaten aud
intimidate William Miller and others,
naming them, good and lawful citizens of
the United States, with intent to prevent
and hinder their free exercise and enjoy
ment of the right and privilege to peaceably
assemble, the same being a right and privi-
lege granted and secured to them by the
constitution OF the United States.
A demurrer is filed to this indictment,
based on the following grounds:
/. That the matters charged in said
counts are not in violation of any right or
privilege granted or secured by the consti-
tuition of the United States.
. That they are not in violation of any
provision of the act of Congress, on which
the indictment is based, or of any statute
of the United States.
3. That each of said counts charges the
commission OF several and distinct offenses.
Article one of amendments to the con-
stitution provides that Congress shall make
no law respecting an establishment of reli-
gion, or prohibiting the free exercise there
of, or abridging the freedom of speech or
OF the press, or the right OF the people
''peaceably to assemble and petition the
government TOR redress of grievances"
1t is not claimed by counsel for the United
States that freedom of speech and the right
peaceably to assemble are rights granted by
the constitution, but it is asserted that they
are rights recognized and secured.
On the other hand, counsel for defendants
assert that while the constitution recognizes
the existence of these rights, it does not Sc
cure them. That the constitution only in
hibits Congress from impairing them, but
that no such restriction applies 10 the States.
In the case of Permoh VS.. First Munich
pality, 3 Howard, 600, it was held by the
Supreme Court that "the constitution makes
no provision for protecting the citizens of
the respective States in their religious hber-
ties. That is left to the State constitutions
and laws; nor is there any inhibition i'm
posed by the constitution of the United
States in this respect upon the States"
This language may well be applied also
to the rights of freedom of speech, and the
right peaeeably to assemble, which are re-
ferred to in the same article of amendment
as the right of religious liberty.
So in Barron VS.. Baltimore, Peters, 243
The same court held that 1.-The provision
in the fifth amendment declaring that pri-
vate property shall not be taken for public
use without due compensation" is intended
solely as limitation upon the exercise of
power by Congress, and is not applicable
to the legislation of the States.
In Purveyer VS. the Commonwealth,
Wallace, 476, the Supreme Court held
that the provision in the eighth article of
amendment that excessive fines" shall
not be imposed nor cruel and unusual
punishments inflicted applies TO national
not to State legislation.
The result of these and other authorities
to the same etfset is that the rights of free
dom of speech and the right peaceably to
assemble, and other rights enumerated in
the first eight articles of the amendment
are protected by the constitution only
against the legislation of Congress. and not
against the legislation of the States.
Nevertheless it is true that these rights
are secured to the people of the United
States. The security may not be perfect
and complete. These rights may be im-
paired by State legislation, yet they are
secured against the action OF Congress.
Can it be said, with truth, that the right of
trial by jury, the right of the accused to be
confronted with the witness against him,
the right not to be deprived of life, liberty
or property without due process of law, are
not secured by the constitution of the
United States We think that all rights
which are protected against either national
or State legislation may fairly be said to
be secured rights.
If we assume, then, that the right of
freedom of speech and the right peaceably
to assemble are rights secured by the con-
stitution of the United States, then the first
two grounds of demurrer must be over
ruled, for the indictment alleges that the
defendants did conspire together to injure
and oppress the parties named with intent
to prevent and hinder their free exercise
and enjoyment of rights secured by the
to wit The right of freedom
of speech, and the right peaceably to
assemble, and this the statute declares to be
an otfense.
The argument of the demurrer has taken
a wide range, and the questions not dis
tinctly presented by it have been submitted
to our consideration. AS this discussion has
called in question the power of Congress to
pass the act in which the Indictment is
we will proceed to consider this
objection to the indictment.
1t is claimed that when Congress is pro-
hibited from interfering with right by
legislation that does not authorize Congress
TO protect that right by legislation, that as
5he States are not prohibited by the constitu-
ion from interference with the rights under
Congress, although prohibited
tself from impairing these rights, has no
grant of power to interfere for their pro-
,ection as against the States; that the first
light articles of amendment were passed as
limitations upon the power of Congress,
md that the history of the constitution
shows that in the adoption of these articles
{ was not the purpose of the people to en-
arge, but to restrain the power of Congress.
In the FederatiSt, article eighty four, Mr..
hamilton, in replying to the objection that |
he proposed constitution of the United |
states contained no bill of rights, says: Il |
firm that bills of rights in the sense and to |
he extent they are contended for are not !
My unnecessary to the proposed constitu-
ion, but would be even dangerous. They
Tould contain various exceptions to powers
tnd