United States v. Harris (106 U.S. 629)

Section 5519 of the Revised Statutes of the United States declares:

'If two or more persons in any state or territory conspire or go in disguise upon the highway or on the premises of another for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any state or territory from giving or securing to all persons within such state or territory the equal protection of the laws, each of said persons shall be punished by a fine of not less than $500 nor more than $5,000, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment.'

This section was originally a part of section 2 of the act of April 20, 1861, (17 St. 13, 14.)

At the November term, 1876, of the United States circuit court for the western district of Tennessee, an indictment, based on this section, was teturned by the grand jury against one R. G. Harris and 19 others. The indictment contained four counts. The first count charged as follows:

'That R. G. Harris, [and 19 others, naming them,] yeomen of the county of Crockett, in the state of Tennessee, and all late of the county and district aforesaid, on, to-wit, the fourteenth day of August, in the year of our Lord one thousand eight hundred and seventy-six, in the county of Crockett, in said state and district, and within the jurisdiction of this court, unlawfully, with force and arms, did conspire together with certain other persons whose names are to the grand jurors aforesaid unknown, then and there, for the purpose ofdepriving Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, then and there being citizens of the United States and of said state, of the equal protection of the laws, in this, to-wit, that therefore, to-wit, on the day and year aforesaid, in said county, the said Robert R. Smith, william J. Overton, George W. Wells, Jr., and P. M. Wells, having been charged with the commission of certain criminal offenses, the nature of which said criminal offenses being to the grand jurors aforesaid unknown, and having upon such charges then and there been duly arrested by the lawful and constituted authorities of said state, to-wit, by one William A. Tucker, the said William A. Tucker then and there being a deputy sheriff of said county, and then and there acting as such; and having been so arrested as aforesaid, and being then and there so under arrest and in the custody of said deputy sheriff as aforesaid, they, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, were there and then by the laws of said state entitled to the due and equal protection of the laws thereof, and were then and there entitled under the said laws to have their persons protected from violence when so then and there under arrest as aforesaid. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said R. G. Harris, [and 19 others, naming them,] with certain other persons whose names are to the said grand jurors unknown, did then and there, with force and arms, unlawfully conspire together as aforesaid then and there for the purpose of depriving them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, of their rights to the due and equal protection of the laws of said state, and of their rights to be protected in their persons from violence while so then and there under arrest as aforesaid, and while so then and there in the custody of the said deputy sheriff, and did then and there deprive them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, of such rights and protection, and of the due and equal protection of the laws of the said state, by then and there, while so under arrest as aforesaid, and while so then and there in the custody of the said deputy sheriff as aforesaid, beating, bruising, woulding, and otherwise ill-treating them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

The second count charged that the defendants, with force and arms, unlawfully did conspire together for the purpose of preventing and hindering the constituted authorities of the state of Tennessee, to-wit, the said William A. Tucker, deputy sheriff of said county, from giving and securing to the said Robert R. Smith and others, naming them, the due and equal protection of the laws of said state, in this, to-wit, that at and before the entering into said conspiracy, the said Robert R. Smith and others, naming them, were held in the custody of said deputy sheriff by virtue of certain warrants duly issued against them, to answer certain criminal charges, and it thereby became and was the duty of said deputy sheriff to safely keep in his custody the said Robert R. Smith and others while so under arrest, and then and there give and secure to them the equal protection of the laws of the state of Tennessee; and that the defendants did then and there conspire together for the purpose of preventing and hindering the said deputy sheriff from then and there safely keeping, while under arrest and in his custody, the said Robert R. Smith and others, and giving and securing to them the equal protection of the laws of said state.

The third count was identical with the second, except that the conspiracy was charged to have been for the purpose of hindering and preventing said William A. Tucker, deputy sheriff, from giving and securing to Robert R. Smith alone the due and equal protection of the laws of the state.

The fourth count charged that the defendants did conspire together for the purpose of depriving said P. M. Wells, who was then and there a citizen of the United States and the state of Tennessee, of the equal protection of the laws, in this, to-wit: said Wells having been charged with an offense against the laws of said state, was duly arrested by said Tucker, deputy sheriff, and so being under arrest was entitled to the due and equal protection of said laws, and to have his person protected from violence while so under arrest; and the said defendants did then and there unlawfully conspire together for the purpose of depriving said Wells of his right to the equal protection of the laws, and of his right to be protected in person from violence while so under arrest, and 'did then and there deprive him of such rights and protection, and of the due and equal protection of the laws of the state of Tennessee, by then and there, and while he, the said P. M. Wells, was so then and there under arrest as aforesaid, unlawfully beating, bruising, wounding, and killing him, the said P. M. Wells, contrary to the form of the statute in such case made and provided,' etc.

The defendants demurred to the indictment on several grounds, among them the following:

(1) 'Because the offenses created by section 5519 of the Revised Statutes of the United States, and upon which section the aforesaid four 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 rights reserved to the several states and inhibited to congress by the constitution of the United States;' and—

(2) 'Because the said section 5519 of the Revised Statutes of the United States, in so far as it creates offenses 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 thereof.'

The case was heard in the circuit court on the demurrer to the indictment, and, as the record states,--

'Came the district attorney, on behalf of the United States, and came also the defendants indicted herein, by their attorneys, when this case came on to be heard before the Hon. JOHN BAXTER, circuit judge, and the Hon. CONNALLY F. TRIGG, district judge, presiding, on the demurrer of the said defendants, filed herein on the fifth day of February, A. D. 1878, to the indictment herein, and the said judges being divided in opinion on the point of the constitutionality of the section of the Revised Statutes of the United States on which the said indictment is based, being section No. 5519 thereof, * * * after argument, hereby direct the said point * * * to be certified to the supreme court of the United States for its decision thereon, and the same is accordingly ordered. And it is further ordered by the court that this case be continued until the decision of said supreme court in the premises.'

Section 651 of the Revised Statutes, which authorizes certificates of division of opinion, declares:

'Whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court, upon which the judges are divided in opinion, the point upon which they disagree shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified, under the seal of the court, to the supreme court at their next session; but nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had with out prejudice to the merits.'

''Sol. Gen. Phillips'', for the United States.

No counsel for Harris and others.

WOODS, J.