United States v. Reese/Dissent Hunt

by Ward Hunt

United States Supreme Court

92 U.S. 214

United States  v.  Reese

MR. JUSTICE HUNT:--

I am compelled to dissent from the judgment of the court in this case.

The defendants were indicted in the Circuit Court of the United States for the District of Kentucky. Upon the trial, the defendants were, by the judgment of the court, discharged from the indictment on account of its alleged insufficiency.

The fourth count of the indictment contains the allegations concerning the election in the city of Lexington; that by the statute of Kentucky, to entitle one to vote at an election in that State, the voter must possess certain qualifications recited, and have paid a capitation-tax assessed by the city of Lexington; that James F. Robinson was the collector of said city, entitled to collect said tax; that Garner, in order that he might be entitled to vote, did offer to said Robinson, at his office, to pay any capitation-tax which had been or could be assessed against him, or which was claimed against him; that Robinson refused to receive such tax on account of the race and color of Garner; that at the time of the election, having the other necessary qualifications, Garner offered his vote, and at the same time presented an affidavit to the inspector stating his offer aforesaid made to Robinson, with the particulars required by the statute, and the refusal of Robinson to receive the tax; that Farnaugh consented to receive his vote, but the defendants, constituting a majority of the inspectors, wrongfully refused to receive the same, which refusal was on account of the race and color of the said Garner.

This indictment is based upon the act of Congress of May 31, 1870. 16 Stat. 140.

The first four sections of the act are as follows:--

'SECTION 1. That all citizens of the United States, who are or shall be otherwise qualified by law to vote at any election by the people in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.

'SECT. 2. That if, by or under the authority of the constitution or laws of any State or the laws of any Territory, any act is or shall be required to be done as a prerequisite or qualification for voting, and, by such constitution or laws, persons or officers are or shall be charged with the performance of duties, in furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote, it shall be the duty of every such person and officer to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote, without distinction of race, color, or previous condition of servitude; and, if any such person or officer shall refuse or knowingly omit to give full effect to this section, he shall, for every such offence, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered by an action on the case with full costs, and such allowance for counsel-fees as the court shall deem just; and shall also, for every such offence, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court.

'SECT. 3. That whenever, by or under the authority of the constitution or laws of any State, or the laws of any Territory, any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with the duty of receiving or permitting such performance, or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had, in fact, performed such act; and any judge, inspector, or other officer of election, whose duty it is or shall be to receive, count, certify, register, report, or give effect to the vote of any such citizen who shall wrongfully refuse or omit to receive, count, certify, register, report, or give effect to the vote of such citizen, upon the presentation by him of his affidavit stating such offer, and the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall, for every such offence, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel-fees as the court shall deem just; and shall also, for every such offence, be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than $500, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court.

'SECT. 4. That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall, for every such offence, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered by an action on the case, with full costs and such allowance for counsel-fees as the court shall deem just; and shall also, for every such offence, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than $500, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court.' It is said, in opposition to this indictment and in hostility to the statute under which it is drawn, that while the second section makes it a penal offence for any officer to refuse an opportunity to perform the prerequisite therein referred to on account of the race and color of the party, and therefore an indictment against that officer may be good as in violation of the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]], the third section, which relates to the inspectors of elections, omits all reference to race and color, and therefore no indictment can be sustained against those officers. It is said that Congress has no power to punish for violation of the rights of an elector generally, but only where such violation is attributable to race, color, or condition. It is said, also, that the prohibition of an act by Congress in general language is not a prohibition of that act on account of race or color.

Hence it is insisted that both the statute and the indictment are insufficient. This I understand to be the basis of the opinion of the majority of the court.

On this I observe,--

1. That the intention of Congress on this subject is too plain to be discussed. The [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] had just been adopted, the object of which was to secure to a lately enslaved population protection against violations of their right to vote on account of their color or previous condition. The act is entitled 'An Act to enforce the right of citizens of the United States to vote in the several States of the Union, and for other purposes.' The first section contains a general announcement that such right is not to be embarrassed by the fact of race, color, or previous condition. The second section requires that equal opportunity shall be given to the races in providing every prerequisite for voting, and that any officer who violates this provision shall be subject to civil damages to the extent of $500, and to fine and imprisonment. To suppose that Congress, in making these provisions, intended to impose no duty upon, and subject to no penalty, the very officers who were to perfect the exercise of the right to vote,-to wit, the inspectors who receive or reject the votes,-would be quite absurd.

2. Garner, a citizen of African descent, had offered to the collector of taxes to pay any capitation-tax existing or claimed to exist against him as a prerequisite to voting at an election to be held in the city of Lexington on the thirtieth day of January, 1873. The collector illegally refused to allow Garner, on account of his race and color, to make the payment. This brought Garner and his case within the terms of the third section of the statute, that 'the person so offering and failing as aforesaid'-that is, who had made the offer which had been illegally rejected on account of his race and color-shall be entitled to vote 'as if he had, in fact, performed such act.' He then made an affidavit setting forth these facts, stating, with the particularity required in the statute, that he was wrongfully prevented from paying the tax, and presented the same to the inspector, who wrongfully refused to receive the same, and to permit him to vote, on account of his race and color.

A wrongful refusal to receive a vote which was, in fact, incompetent only by reason of the act 'aforesaid,'-that is, on account of his race and color,-brings the inspector within the statutory provisions respecting race and color. By the words 'as aforesaid,' the provisions respecting race and color of the first and second sections of the statute are incorporated into and made a part of the third and fourth sections.

To illustrate: Sect. 4 enacts, that if any person by unlawful means shall hinder or prevent any citizen from voting at any election 'as aforesaid,' he shall be subject to fine and imprisonment. What do the words, 'as aforesaid,' mean? They mean, for the causes and pretences or upon the grounds in the first and second sections mentioned; that is, on account of the race or color of the person so prevented. All those necessary words are by this expression incorporated into the fourth section. The same is true of the words 'the wrongful act or omission as aforesaid,' and 'the person so offering and failing as aforesaid,' in the third section.

By this application of the words 'as aforesaid,' they become pertinent and pointed. Unless so construed, they are wholly and absolutely without meaning. No other meaning can possibly be given to them. 'The person (Garner) so offering and failing as aforesaid shall be entitled to vote as if he had performed the act.' He failed 'as aforesaid' on account of his race. The inspectors thereupon 'wrongfully refused to receive his vote' because he had not paid his capitation-tax. His race and color had prevented that payment. The words 'hindered and prevented his voting as aforesaid,' in the fourth section, and in the third section the words 'wrongfully refuse' and 'as aforesaid,' sufficiently accomplish this purpose of the statute. They amount to an enactment that the refusal to receive the vote on account of race or color shall be punished as in the third and fourth sections is declared.

I am the better satisfied with this construction of the statute, when, looking at the Senate debates at the time of its passage, I find, 1st, That attention was called to the point whether this act did make the offence dependent on race, color, or previous condition; 2d, That it was conceded by those having charge of the bill that its language must embrace that class of cases; 3d, That they were satisfied with the bill as it then stood, and as it now appears in the act we are considering.

The particularity required in an indictment or in the statutory description of offences has at times been extreme, the distinctions almost ridiculous. I cannot but think that in some cases good sense is sacrificed to technical nicety, and a sound principle carried to an extravagant extent. The object of an indictment is to apprise the court and the accused of what is charged against him, and the object of a statute is to declare or define the offence intended to be made punishable. It is laid down, that 'when the charge is not the absolute perpetration of an offence, but its primary characteristic lies in the intent, instigation, or motives of the party towards its perpetration, the acts of the accused, important only as developing the mala mens, and not constituting of themselves the crime, need not be spread upon the record.' United States v. Almeida, Whart. Prec. 1061, 1062, note; 1 Whart. C. L. § 285, note.

In the case before us, the acts constituting the offence are all spread out in the indictment, and the alleged defects are in the facts constituting the mala mens. The refusal to receive an affidavit as evidence that the tax had been paid by Garner, and the rejection of his vote, are the essential acts of the defendants which constitute their guilt. The rest is matter of motive or instigation only. As to these, the extreme particularity and the strict construction expected in indictments, and penal statutes would seem not to be necessary. In Sickles v. Sharp, 13 Johns. 49, it is said, 'The rule that penal statutes are to be strictly construed admits of some qualification. The plain and manifest intention of the legislature ought to be regarded.' In United States v. Hartwell, 6 Wall. 385, it is said, 'The object in construing penal as well as other statutes is to ascertain the legislative intent. The words must not be narrowed to the exclusion of what the legislature intended to embrace, but that intention must be gathered from the words. When the words are general, and embrace various classes of persons, there is no authority in the court to restrict them to one class, when the purpose is alike applicable to all.' In Ogden v. Strong, 2 Paine, C. C. 584, it is said, 'Statutes must be so construed as to make all parts harmonize, and give a sensible effect to each. It should not be presumed that the legislature meant that any part of the statute should be without meaning or effect.'

In United States v. Morris, 14 Pet. 474, the statute made it unlawful for a person 'voluntarily to serve on a vessel employed and made use of in the transportation of slaves from one foreign country to another.' No slaves had been actually received or transported on board the defendant's vessel; but the court held that the words of the statute embraced the case of a vessel sailing with the intent to be so employed. The court say, 'A penal statute will not be extended beyond the plain meaning of its words; . . . yet the evident intention of the legislature ought not to be defeated by a forced and overstrict construction.'

In the case of The Donna Mariana, 1 Dods. 91, the vessel was condemned by Sir William Scott under the English statute condemning vessels in which slaves 'shall be exported, transported, carried,' &c., although she was on her outward voyage, and had never taken a slave on board. 'The result is, that, where the general intent of a statute is to prevent certain acts, the subordinate proceedings necessarily connected with them, and coming within that intent, are embraced in its provisions.' Id.

In Hodgman v. People, 4 Den. 235, 5 id. 116, an act subjecting an offender to 'the penalties' of a prior act was held to subject him to an indictment, as well as to the pecuniary penalties in the prior statute provided for. Especially should this liberal rule of construction prevail, where, though in form the statute is penal, it is in fact to protect freedom.

An examination of the surrounding circumstances, a knowledge of the evil intended to be prevented, a clear statement in the statute of the acts prohibited and made punishable, a certain knowledge of the legislative intention, furnish a rule by which the language of the statute before us is to be construed. The motives instigating the acts forbidden, and by which those acts are brought within the jurisdiction of the Federal authority, need not be set forth with the technical minuteness to which reference has been made. The intent is fully set forth in the second section; and the court below ought to have held, that, by the references in the third and fourth sections to the motives and instigations declared in the second section, they were incorporated into and became a part of the third and fourth sections, and that a sufficient offence against the United States authority was therein stated.

I hold, therefore, that the third and fourth sections of the statute we are considering do provide for the punishment of inspectors of elections who refuse the votes of qualified electors on account of their race or color. The indictment is sufficient, and the statute sufficiently describes the offence.

The opinion of the majority of the court discusses no subjects except the sufficiency of the indictment and the validity of the act of May 31, 1870. Holding that there was no valid law upon which the crime charged could be predicated, it became unnecessary that the opinion should discuss other points. If it had been held by the court that the indictment was good, and that the statute created the offence charged, the question would have arisen, whether such statute was constitutional; and it was to this question that much the larger part of the argument of the counsel in the cause was directed. If the conclusions I have reached are correct, this question directly presents itself; and I trust it is not unbecoming that my views upon the constitutional points thus arising should be set forth. I have no warrant to say that those views are, or are not, entertained by any or all of my associates. The opinions and the arguments are those of the writer only.

The question of the constitutionality of the act of May 31, 1870, arises mainly upon the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] to the Constitution of the United States. It is as follows:--

'1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

'2. The Congress shall have power to enforce this article by appropriate legislation.'

I observe, in the first place, that the right here protected is in behalf of a particular class of persons; to wit, citizens of the United States. The limitation is to the persons concerned, and not to the class of cases in which the question shall arise. The right of citizens of the United States to vote, and not the right to vote at an election for United States officers, is the subject of the provision. The person protected must be a citizen of the United States; and, whenever a right to vote exists in such person, the case is within the amendment. This is the literal and grammatical construction of the language; and that such was the intention of Congress will appear from many considerations. As originally introduced by Mr. Senator Henderson, it read, 'No State shall deny or abridge the right of its citizens to vote and hold office on account of race, color, or previous condition.' Globe, 1868–69, pt. i. p. 542, Jan. 23, 1869.

The Judiciary Committee reported back the resolution in this from: 'The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude. The Congress, by appropriate legislation, may enforce the provisions of this article.' Id. Omitting the words 'and hold office,' this is the form in which it was adopted. The class of persons indicated in the original resolution to be protected were described as citizens of a State; in the resolution when reported by the committee, as citizens of the United States. In neither resolution was there any limitations as to the character of the elections at which the vote was to be given. If there was a right to vote, and the person offering the vote was a citizen, the clause attached. It is both illiberal and illogical to say that this protection was intended to be limited to an election for particular officers; to wit, those to take part in the affairs of the Federal government.

Congress was now completing the third of a series of amendments intended to protect the rights of the newly emancipated freedmen of the South.

In the adoption of the Thirteenth Amendment,-that slavery or involuntary servitude should not exist within the United States, or any place subject to their jurisdiction,-it took the first and the great step for the protection and confirmation of the political rights of this class of persons.

In the adoption of the [[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]],-that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States in which they reside,' and that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,'-another strong measure in the same direction was taken.

A higher privilege was yet untouched; a security, vastly greater than any thus far given to the colored race, was not provided for, but, on the contrary, its exclusion was permitted. This was the elective franchise,-the right to vote at the elections of the country, and for the officers by whom the country should be governed.

By the second section of the [[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]], each State had the power to refuse the right of voting at its elections to any class of persons; the only consequence being a reduction of its representation in Congress, in the proportion which such excluded class should bear to the whole number of its male citizens of the age of twenty-one years. This was understood to mean, and did mean, that if one of the late slaveholding States should desire to exclude all its colored population from the right of voting, at the expense of reducing its representation in Congress, it could do so.

The existence of a large colored population in the Southern States, lately slaves and necessarily ignorant, was a disturbing element in our affairs. It could not be overlooked. It confronted us always and everywhere. Congress determined to meet the emergency by creating a political equality, by conferring upon the freedmen all the political rights possessed by the white inhabitants of the State. It was believed that the newly enfranchised people could be most effectually secured in the protection of their rights of life, liberty, and the pursuit of happiness, by giving to them that greatest of rights among freemen,-the ballot. Hence the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] was passed by Congress, and adopted by the States. The power of any State to deprive a citizen of the right to vote on account of race, color, or previous condition of servitude, or to impede or to obstruct such right on that account, was expressly negatived. It was declared that this right of the citizen should not be thus denied or abridged.

The persons affected were citizens of the United States; the subject was the right of these persons to vote, not at specified elections or for specified officers, not for Federal officers or for State officers, but the right to vote in its broadest terms.

The citizen of this country, where nearly every thing is submitted to the popular test and where office is eagerly sought, who possesses the right to vote, holds a powerful instrument for his own advantage. The political and personal importance of the large bodies of emigrants among us, who are intrusted at an early period with the right to vote, is well known to every man of observation. Just so far as the ballot to them or to the freedman is abridged, in the same degree is their importance and their security diminished. State rights and municipal rights touch the numerous and the every-day affairs of life: those of the Federal government are less numerous, and, to most men, less important. That Congress, possessing, in making a constitutional amendment, unlimited power in what it should propose, intended to confine this great guaranty to a single class of elections,-to wit, elections for United States officers,-is scarcely to be credited.

I hold, therefore, that the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] embraces the case of elections held for state or municipal as well as for federal officers; and that the first section of the act of May 31, 1870, wherein the right to vote is freed from all restriction by reason of race, color, or condition, at all elections by the people,-state, county, town, municipal, or of other subdivision, is justified by the Constitution.

It is contended, also, that, in the case before us, there has been no denial or abridgment by the State of Kentucky of the right of Garner to vote at the election in question. The State, it is said, by its statute authorized him to vote; and, if he has been illegally prevented from voting, it was by an unauthorized and illegal act of the inspectors.

The word 'State' 'describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government. It is not difficult to see, that, in all these senses, the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government or united by looser and less definite relations, constitute the State. . . . In the Constitution, the term 'State' most frequently expresses the combined idea just noticed, of people, territory, and government. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States under a common constitution which forms the distinct and greater political unit which that constitution designates as the United States, and makes of the people and States which compose it one people and one country.' Texas v. White, 7 Wall. 720, 721.

That the word 'State' is not confined in its meaning to the legislative power of a community is evident, not only from the authority just cited, but from a reference to the various places in which it is used in the Constitution of the United States. A few only of these will be referred to.

The power of Congress to 'regulate commerce among the several States' (sect. 8, subd. 3) refers to the commerce between the inhabitants of the different States, and not to transactions between the political organizations called 'States.' The people of a State are here intended by the word 'State.' The numerous cases in which this provision has been considered by this court were cases where the questions arose upon individual transactions between citizens of different States, or as to rights in, upon, or through the territory of different States.

'Vessels bound to or from one State shall not be obliged to enter, clear, or pay duties, in another.' Sect. 9, subd. 5. This refers to region or locality only.

So 'the electors (of President and Vice-President) shall meet in their respective States, and vote,' &c. Art. 2, sect. 1, subd. 3.

Again: when it is ordained that the judicial power of the United States shall extend 'to controversies between two or more States, between a State and the citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign States, citizens, or subjects' (art. 3, sect. 2, subd. 1), we find different meaning attached to the same word in different parts of the same sentence. The controversy 'between two or more States' spoken of refers to the political organizations known as States; the controversy 'between a State and the citizens of another State' refers to the political organization of the first-named party, and again to the persons living within the locality where the citizens composing the second party may reside; the controversy 'between citizens of different States, between citizens of the same State claiming lands under grants of different States,' refers to the local region or territory described in the first branch of the sentence, and to the political organization as to the grantor under the second branch.

'Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings, of every other State.' Art. 4, sect. 1. Full faith shall be given in or throughout the territory of each State. By whom? By the sovereign State, by its agencies and authorities. To what is faith and credit to be given? To the acts of the political organization known as the State. Not only this, but to all its agencies, to the acts of its executive, to the acts of its courts of record. The expression 'State,' in this connection, refers to and includes all these agencies; and it is to these agencies that the legislation of Congress under this authority has been directed, and it is to the question arising upon the agencies of the courts that the questions have been judicially presented. Hampton v. McConnell, 3 Wheat. 234; Green v. Sacramento, 3 W. C. C. 17; Bank of Alabama v. Dalton, 9 How. 528. The judicial proceedings of a State mean the proceedings of the courts of the State. It has never been doubted, that, under the constitutional authority to provide that credit should be given to the records of a 'State,' it was lawful to provide that credit should be given to the records of the courts of a State. For this purpose, the court is the State.

The provision, that 'the United States shall guarantee to every State a republican form of government,' is a guaranty to the people of the State, and may be exercised in their favor against the political power called the 'State.'

It seems plain that when the Constitution speaks of a State, and prescribes what it may do or what it may not do, it includes, in some cases, the agencies and instrumentalities by which the State acts. When it is intended that the prohibition shall be upon legislative action only, it is so expressed. Thus, in art. 1, sect. 10, subd. 1, it is provided that 'no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.' The provision is, not that no State shall impair the obligation of contracts, but that no State shall pass a law impairing the obligation of contracts.

The word 'State' in the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] is to be construed as in the paragraph heretofore quoted respecting commerce among the States, and in that which declares that acts of a State shall receive full faith and credit in every other State; that is, to include the acts of all those who proceed under the authority of the State. The political organization called the 'State' can act only through its agents. It may act through a convention, through its legislature, its governor, or its magistrates and officers of lower degree. Whoever is authorized to wield the power of the State is the State, and this whether he acts within his powers or exceeds them. If a convention of the State of Kentucky should ordain or its legislature enact that no person of African descent, or who had formerly been a slave, should be entitled to vote at its elections, such ordinance or law would be void. It would be in excess of the power of the body enacting it. It would possess no validity whatever. It cannot be doubted, however, that it would afford ground for the jurisdiction of the courts under the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]. It is the State that speaks and acts through its agents; although such agents exercise powers they do not possess, or that the State does not possess, and although their action is illegal. Inspectors of elections represent the State. They exercise the whole power of the State in creating its actual government by the reception of votes and the declaration of the results of the votes. If they wilfully and corruptly receive illegal votes, reject legal votes, make false certificates by which a usurper obtains an office, the act is in each case the act of the State, and the result must be abided by until corrected by the action of the courts. No matter how erroneous, how illegal or corrupt, may be their action, if it is upon the subject which they are appointed to manage, it binds all parties, as the action of the State, until legal measures are taken to annul it. They are authorized by the State to act in the premises; and, if their act is contrary to their instructions or their duty, they are nevertheless officers of the State, acting upon a subject committed to them by the State, and their acts are those of the State. The legislature speaks; its officers act. The voice and the act are equally those of the State.

I am of the opinion, therefore, that the refusal of the defendants, inspectors of elections, to receive the vote of Garner, was a refusal by the State of Kentucky, and was a denial by that State, within the meaning of the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]], of the right to vote.

It is contended, further, that Congress has no power to enforce the provisions of this amendment by the enactment of penal laws; that the power of enforcement provided for is limited to correcting erroneous decisions of the State court, when presented to the Federal courts by appeal or writ of error. 'For example (it is said), when it is declared that no State shall deprive any person of life, liberty, or property, without due process of law, this declaration is not intended as a guaranty against the commission of murder, false imprisonment, robbery, or other crimes committed by individual malefactors, so as to give Congress power to pass laws for the punishment of such crimes in the several States generally.'

So far as the act of May, 1870, shall be held to include cases not dependent upon race, color, or previous condition, and so far as the power to impose pains and penalties for those offences may arise, I am not here called upon to discuss the subject.

So far as this argument is applied to legislation for offences committed on account of race or color, I hold it to be entirely unsound. If sound, it brings to an impotent conclusion the vigorous amendments on the subject of slavery. If there be no protection to the ignorant freedman against hostile legislation and personal prejudice other than a tedious, expensive, and uncertain course of litigation through State courts, thence by appeal or writ of error to the Federal courts, he has practically no remedy. It were as well that the amendments had not been passed. Of rights infringed, not one in a thousand could be remedied or protected by this process.

In adopting the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]], it was ordained as the second section thereof, 'The Congress shall have power to enforce this article by appropriate legislation.' This was done to remove doubts, if any existed, as to the former power; to add, at least, the weight of repetition to an existing power.

It was held in the United States Bank Cases and in the Legal-Tender Cases (McCullough v. Maryland, 4 Wheat. 316; Gibbons v. Ogden, 7 id. 204; New York v. Miln, 11 Pet. 102; Knox v. Lee, 12 Wall. 457; Dooley v. Smith, 13 id. 604) that it was for Congress to determine whether the necessity had arisen which called for its action. If Congress adjudges that the necessities of the country require the establishment of a bank, or the issue of legal-tender notes, that judgment is conclusive upon the court. It is not within their power to review it.

If Congress, being authorized to do so, desires to protect the freedman in his rights as a citizen and a voter, and as against those who may be prejudiced and unscrupulous in their hostility to him and to his newly conferred rights, its manifest course would be to enact that they should possess that right; to provide facilities for its exercise by appointing proper superintendents and special officers to examine alleged abuses, giving jurisdiction to the Federal courts, and providing for the punishment of those who interfere with the right. The statute-books of all countries abound with laws for the punishment of those who violate the rights of others, either as to property or person, and this not so much that the trespassers may be punished as that the peaceable citizen may be protected. Punishment is the means; protection is the end. The arrest, conviction, and sentence to imprisonment, of one inspector, who refused the vote of a person of African descent on account of his race, would more effectually secure the right of the voter than would any number of civil suits in the State courts, prosecuted by timid, ignorant, and penniless parties against those possessing the wealth, the influence, and the sentiment of the community. It is certain that in fact the legislation taken by Congress, which we are considering, was not only the appropriate, but the most effectual, means of enforcing the amendment.

That the legislation in this respect is constitutional is also proved by the previous action of Congress and of this court.

Art. 4, sect. 5, subd. 3, of the Constitution provides as follows: 'No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.'

At the time of the adoption of the Constitution containing this provision, slavery was recognized as legal in many States. The rights of the slaveholder in his slave were intended to be protected by this clause. To enforce this protection, Congress, from time to time, passed laws providing not only the means of restoring the escaped slave to his master, but inflicting punishment upon those who violated that master's rights. Thus, as early as 1793, Congress enacted not only that the master or his agent might seize and arrest such fugitive slave, and, upon obtaining a certificate from a judge or magistrate, carry him back to the State from whence he escaped, and return him into slavery, but that every person who hindered or obstructed such master or agent, or who harbored or concealed such fugitive, after notice that he was such, should be subject to damages not only, but to a penalty of $500, to be recovered for the benefit of the claimant in any court proper to try the same. I Stat. 302. By the act of 1850 (9 Stat. 462), the circuit courts were ordered to enlarge the number of commissioners, 'with a view to afford reasonable facilities to reclaim fugitives from labor.'

The ninth section of the act provided that any person who should wilfully obstruct or hinder the removal of such fugitive, either with or without process, or should rescue or aid or abet an attempt to escape, or should harbor or conceal the fugitive, having notice, should for either of said offences be subject to a fine not exceeding $1,000, and imprisonment not exceeding six months, by indictment and conviction in the United States Court, 'and shall pay and forfeit, by way of civil damages to the party injured by such illegal conduct, the sum of $1,000 for each fugitive so lost as aforesaid, to be recovered by action of debt,' &c.

In Prigg v. Pennsylvania, 16 Pet. 539, the legislation of 1793 was held to be valid.

It was held in Sims's Case, 7 Cush. 285, that the act of 1850 was constitutional, and that the State tribunals cannot by writ of habeas corpus interfere with the Federal authorities when acting upon cases arising under that act.

In Ableman v. Booth, 21 How. 506, it was held by this court that the Fugitive-slave Act of 1850 was constitutional in all its provisions, and that a habeas corpus under the State laws must not be obeyed, but the authority of the United States must be executed.

The case of Prigg, decided under the act of 1793, and that of Booth, under the act of 1850, are pertinent to the present question.

In the former case, it was held that the act of 1793, so far as it authorized the owner to seize and recapture his slave in any State of the Union, was self-executing, requiring no aid from legislation, either State or National. The clause relating to fugitive slaves, it is there said, is found in the National and not in the State Constitution. It was said to be a necessary conclusion, in the absence of all positive provision to the contrary, that the national government is bound through its own departments, legislative, judicial, or executive, to carry into effect all the rights and duties imposed upon it by the Constitution.

This doctrine is useful at the present time, and is pertinent to the point we are considering. The clause protecting the freedmen, like that sustaining the rights of slaveholders, is found in the Federal Constitution only. Like the former, it provides the means of enforcing its authority, through fines and imprisonments, in the Federal courts; and here, as there, the national government is bound, through its own departments, to carry into effect all the rights and duties imposed upon it by the Constitution. In connection with the clause of the Constitution just quoted, there was not found, as here, an express authority in Congress to enforce it by appropriate legislation; and yet the court decide not only that Congress had power to enforce its provisions by fine and imprisonment, but that the right to legislate on the subject belongs to Congress exclusively. Courts should be ready, now and here, to apply these sound and just principles of the Constitution.

This provision of the Contitution and these decisions seem to furnish the rule of deciding the constitutionality of the law in question, rather than that which provides that life, liberty, or property, shall not be interfered with except by due process of law. It is not necessary to consider how far Congress may legislate upon individual crimes under that provision. If I am right in this view, the legislation we are considering-to wit, the enforcement of the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] by the means of penalties and indictments-is legal.

It is a well-settled principle, that, if an indictment contain both good counts and bad counts, a judgment of guilty upon the whole indictment will be sustained.

The record shows that the court below considered each and every count of the indictment as insufficient, and that judgment was entered discharging the defendants without day; i. e., from the whole indictment. Upon the view I have taken of the validity of the fourth count, this judgment was erroneous. It should be reversed, and a trial ordered upon the indictment.