Year: 1877

!
Bile length. After explaining the nature
OF the charges contained in the several
courts and statutes alleged to have been
violated, he said. HThe controlling ele-
ment in the ofiense charged IN the fourth
and fifth counts is the race or color OF
Bush. 1t is not enough that the de


PENDANTS may have conspired against him
on account of his political opinions or on
account of his support or advocacy of
sny political party, for that is not the
crime of which they are in these counts
accused. In the second and third C UNITS
sqch is, in effect, the charge, but in the
fourth and fifth it is not to convict, and
in the latter counts it must appear that
the object of the defendants in their un-
lawful combinations was TO interfere with
his rig ht and privilege Of voting on ac-
count of bis race and color, without re-
gard to political belief or association. As
IT appears from the evidence that Bush
was killed on the 18th of September last
it follows that you must find that the con-
spiracy against him, whatever may have
been its character, was formed on or be-
lore that day. 1t has not been attempt.


ed on the part OF the defense to contra.


DICT the resistance offered by the govern
ment to prove that BUSH was colored


msD. that he was citizen OF the United


States or lawfully qualified voter OF
Aiken county, or member OF the politi-
| cal party, which on or about the 10Th Of
September last put Smalls in NOM
instion tor election as member OF Con-
gress for the Congressional District in
| which Aiken county is situated. 1t Is
not probable therefore that you will have
any difficulty in arriving at conclusion


upon these preliminary questions. The


real case before you is as TO the existence
OF the alleged conspiracy. 1t is to this


point that the evidence to which you
have been listening with such attention
for SO many days has been principally
directed, and here It Is proper tn say in


the outset that the defendants are


not on trial for the killing of Bush
nor for any other of the numerous
homicides that were committed during


The disturbances which followed the


alleged attack by two negroes on Mrs.
Harley and her little son, nea? Siverton,
on the morning of Friday, the 10Th of
September. The shocking details Of
these transactions which have besn given
in evidence, are only to be
considered by you with reference to
bearing on the existence OF an alleged


conspiracy to prevent by force,
intimidation and threats, the sup
port and advocacy by Bush OF the
election of Smalls, or 10 intlmldate him


on account of his race or color in the free
exercise of his right TO vote. However
much you may deprecste the acts which


have been described by the witnesses, the
punishment OF those guilty of them has
been committed by law to other courts


than this. The power Tor that purpose
exists in the government of the
State, and under our political
system the courts OF that
yorernment can alone be resorted to for
the trial and conviction OF such offenders,
out the acts themselves are proper sub
iecls for your consideration, SO far rs
they legally tend to prove the crime
charged in this Il dictment and which


has been made an otiense sgai nst the
laws of the United States. 1t is not tor
YOU to consider whether these laws are
wise or unwise; that was the duty OF


Congress when it passed them and having
been passed, neither you nor the court
have at this time anything else to do but


to see that they are properly enforced.


Their object is to protect the citizens OF
the United States IN the lawful enjoy
ment of the rights which have been


secured to them by the Constitution and
laws of the United States, and while in
this case they have been resorted TO on


account OF the alleged violation by white
men of the privileges of the colored men,
they are equally open to the whites


against the blacks should occasion re.


uuire. So Tar from arralgniug race
against race their object Is to pre-
vent such calamity. Neither
are you to inquire at whose instance the
| indictment has been found or the trial
had. Equally unimportant is it to you,
as 10 us, whether the state or its officers
have been unable or unwilling TO punish


offenses against its own laws or bring 10
| Judgment IN its own courts the violation
of its own peace. 1t is enough for us
that the United States government has
seen fit, through its own appropriate de


psrtment, to bring this case here tor
| judicial investigation. On the part OF
the defendants, 1t is claimed that at the
commencement Of the unfortunate occs-
sion which is in evidence, they were act
| ing as officers OF the law Tor the arrest
aid punishment OF the two negroes who
made the attack on Mrs. Hardy, and
afterwards for the suppression ot the riot
which arose out OF an attempt by the
colored people in that vicinity to re3ist
them in the performance OF
their duties. 1t is claimed on the part
of the government, that in process of the
law was used only rs pretex., and that
the real purpose OF the parties WAS TO
carry INTO effect conspiracy which had
| been found by them or some OF them
against Bush. This is the precise ques.
ton which yon are called upon 10 de-
ternlne, ard you are compelled to deter.
mine il on CITcumstantlal evidence alone


Tha. kind OF evidence. If tuIi and CON-
plete, is as convincing as that which Is
called direct, but TO warrant conviction
on such evidence alone, the clrcum-


stances proven must not only be
COL usistent with the theory of the
guilt of the defendant, but they
must be entirely inconsistent with any


other rational conclusion. To convict un.
der this indictment it is not necessary to
find that the conspiracy charged was


formed against Bush alone. 1t Is sutl-
cient if it is made to appear to your sat
| isfaction tnat ne was included anon
the persons actuslly consPired
assinst. Neither is il necessry thai
ne should have been mentioned
by name in the agreement or under


standing of the conspIrators. 1t is suttl


Gent ii you fad that conspiracy VA
formed against any one which include;
him and that in the execution OF com


mon purpose i. was actually carried int
effect against him. Each member o:
conspiracy is responsible personally toI


no