States v. Guest, 383 U.S. 745 (1966)

The six defendants in this case were indicted by a United States grand jury in the Middle District of p. 747Georgia for criminal conspiracy in violation of 18 U. S. C. §241 (1964 ed.). That section provides in relevant part:

In five numbered paragraphs, the indictment alleged a single conspiracy by the defendants to deprive Negro citizens of the free exercise and enjoyment of several specified rights secured by the Constitution and laws of the United States.1 The defendants moved to dismiss p. 748the indictment on the ground that it did not charge an offense under the laws of the United States. The District Court sustained the motion and dismissed the indictment as to all defendants and all numbered paragraphs of the indictment. 246 F. Supp. 475.

The criteria for coverage of motion picture theaters by the Act are stated in §§201 (b)(3) and 201 (c)(3), 42 U. S. C. §§ 2000a p. 750The District Court held that this paragraph of the indictment failed to state an offense against rights secured by the Constitution or laws of the United States. The court found a fatal flaw in the failure of the paragraph to include an allegation that the acts of the defendants were motivated by racial discrimination, an allegation the court thought essential to charge an interference with rights secured by Title II of the Civil Rights Act of 1964.4 The court went on to say that, in any event, 18 U. S. C. § 241 is not an available sanction to protect rights secured by that title because § 207 (b) of the 1964 Act, 42 U. S. C. § 2000a-6 (b) (1964 ed.), specifies that the remedies provided in Title II itself are

4The District Court said: “The Government contends that the rights enumerated in paragraph 1 stem from Title 2 of the Civil Rights Act of 1964, and thus automatically come within the purview of §241. The Government conceded on oral argument that paragraph one would add nothing to the indictment absent the Act. It is not clear how the rights mentioned in paragraph one can be said to come from the Act because § 201 (a), upon which the draftsman doubtless relied, lists the essential element ‘without discrimination or segregation on the ground of race, color, religion, or national origin.’ This element is omitted from paragraph one of the indictment, and does not appear in the charging part of the indictment. The Supreme Court said in Cruikshank, supra, 92 U. S. at page 556, where deprivation of right to vote was involved, “‘We may suspect that “race” was the cause of the hostility; but it is not so averred. This is material to a description of the substance of the offense and cannot be supplied by implication. Everything essential must be charged positively, not inferentially. The defect here is not in form, but in substance.’ ” 246 F. Supp. 475,484. p. 751to be the exclusive means of enforcing the rights the title secures.5

Moreover, inclusion of Fourteenth Amendment rights within the compass of 18 U. S. C. § 241 does not render the statute unconstitutionally vague. Since the gravamen of the offense is conspiracy, the requirement that the offender must act with a specific intent to p. 754interfere with the federal rights in question is satisfied. Screws v. United States, 325 U. S. 91; United States n . Williams, 341 U. S. 70, 93-95 (dissenting opinion). And the rights under the Equal Protection Clause described by this paragraph of the indictment have been so firmly and precisely established by a consistent line of decisions in this Court,6 that the lack of specification of these rights in the language of § 241 itself can raise no serious constitutional question on the ground of vagueness or indefiniteness.

8 See p. 747, supra. 9 Thus, contrary to the suggestion in Mr . Just ice Bren na n ’s separate opinion, nothing said in this opinion has the slightest bearing on the validity or construction of Title III or Title IV of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000b, 2000c (1964 ed.). p. 756forces leading to the constitutional violation. See, e. g., Shelley v. Kraemer, 334 U. S. 1; Pennsylvania v. Board of Trusts, 353 U. S. 230; Burton v. Wilmington Parking Authority, 365 U. S. 715; Peterson v. City of Greenville, 373 U. S. 244; Lombard v. Louisiana, 373 U. S. 267; Griffin v. Maryland, 378 U. S. 130; Robinson v. Florida, 378 U. S. 153; Evans n . Newton, supra.

14 Art. IV, Articles of Confederation. 15 See Chafee, Three Human Rights in the Constitution of 1787, at 185 (1956). ‘ p. 759merce power surely encompasses the movement in interstate commerce of persons as well as commodities. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203; Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204, 218-219; Hoke v. United States, 227 U. S. 308, 320; United States v. Hill, 248 U. S. 420, 423. It is also well settled in our decisions that the federal commerce power authorizes Congress to legislate for the protection of individuals from violations of civil rights that impinge on their free movement in interstate commerce. Mitchell v. United States, 313 U. S. 80; Henderson v. United States, 339 U. S. 816; Boynton v. Virginia, 364 U. S. 454; Atlanta Motel v. United States, 379 U. S. 241; Katzenbach v. McClung, 379 U. S. 294.

I join Parts I and II1 of the Court’s opinion, but I cannot subscribe to Part III in its full sweep. To the extent that it is there held that 18 U. S. C. § 241 (1964 ed.) reaches conspiracies, embracing only the action of p. 763745 Opinion of Harl an , J.

The dictum in Corfield was given general approval in the first opinion of this Court to deal directly with the right of free movement, Crandall v. Nevada, 6 Wall. 35, p. 765which struck down a Nevada statute taxing persons leaving the State. It is first noteworthy that in his concurring opinion Mr. Justice Clifford asserted that he would hold the statute void exclusively on commerce grounds for he was clear “that the State legislature cannot impose any such burden upon commerce among the several States.” 6 Wall., at 49. The majority opinion of Mr. Justice Miller, however, eschewed reliance on the Commerce Clause and the Import-Export Clause and looked rather to the nature of the federal union:

“He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are p. 766conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.” 6 Wall., at 44. The focus of that opinion, very clearly, was thus on impediments by the States on free movement by citizens. This is emphasized subsequently when Mr. Justice Miller asserts that this approach is “neither novel nor unsupported by authority,” because it is, fundamentally, a question of the exercise of a State’s taxing power to obstruct the functions of the Federal Government: “[T]he right of the States in this mode to impede or embarrass the constitutional operations of that government, or the rights which its citizens hold under it, has been uniformly denied.” 6 Wall., at 44-45.

Although the right to travel thus has respectable precedent to support its status as a privilege and immunity of national citizenship, it is important to note that those cases all dealt with the right of travel simply as affected by oppressive state action. Only one prior case in this Court, United States v. Wheeler, 254 U. S. 281, was argued precisely in terms of a right to free movement as against interference by private individuals. There the Government alleged a conspiracy under the predecessor of § 241 against the perpetrators of the notorious Bisbee Deportations.2 The case was argued straightforwardly in terms of whether the right to free ingress and p. 767745 Opinion of Har lan , J.

A second possible constitutional basis for the right to move among the States without interference is the Commerce Clause. When Mr. Justice Washington articulated p. 768the right in Corfield, it was in the context of a state statute impeding economic activity by outsiders, and he cast his statement in economic terms. 4 Wash. C. C., at 380-381. The two concurring Justices in Crandall v. Nevada, supra, rested solely on the commerce argument, indicating again the close connection between freedom of commerce and travel as principles of our federal union. In Edwards v. California, 314 U. S. 160, the Court held squarely that the right to unimpeded movement of persons is guaranteed against oppressive state legislation by the Commerce Clause, and declared unconstitutional a California statute restricting the entry of indigents into that State.

The case of In re Debs, 158 U. S. 564, may be thought to raise some doubts as to this proposition. There the United States sought to enjoin Debs and members of his union from continuing to obstruct—by means of a strike—interstate commerce and the passage of the mails. The Court held that Congress and the Executive could certainly act to keep the channels of interstate commerce open, and that a court of equity had no less power to enjoin what amounted to a public nuisance. It might p. 769745 Opinion of Harl an , J.

One other possible source for the right to travel should be mentioned. Professor Chafee, in his thoughtful study, Freedom of Movement,” 5 finds both the privileges and immunities approach and the Commerce Clause approach unsatisfactory. After a thorough review of the history p. 770and cases dealing with the question he concludes that this “valuable human right,” id., at 209, is best seen in due process terms:

Viewing the right to travel in due process terms, of course, would clearly make it inapplicable to the present case, for due process speaks only to governmental action. p. 771745 Opinion of Har lan , J.

To decline to find a constitutional right of the nature asserted here does not render the Federal Government p. 773745 Opinion of Harl an , J.

If I have succeeded in showing anything in this constitutional exercise, it is that until today there was no federal right to be free from private interference with interstate transit, and very little reason for creating one. Although the Court has ostensibly only “discovered” this private right in the Constitution and then applied §241 mechanically to punish those who conspire to threaten it, it should be recognized that what the Court has in effect done is to use this all-encompassing criminal statute to fashion federal common-law crimes, forbidden to the federal judiciary since the 1812 decision in United States v. Hudson, 7 Cranch 32. My Brother Douglas , dissenting in United States v. Classic, supra, p. 774noted well the dangers of the indiscriminate application of the predecessor of § 241: “It is not enough for us to find in the vague penumbra of a statute some offense about which Congress could have legislated, and then to particularize it as a crime because it is highly offensive.” 313 U. S., at 331-332.

I join Part I of the Court’s opinion. I reach the same result as the Court on that branch of the indictment discussed in Part III of its opinion but for other reasons. See footnote 3, infra. And I agree with so much of Part II as construes 18 U. S. C. § 241 (1964 ed.) to encompass conspiracies to injure, oppress, threaten or intimidate citizens in the free exercise or enjoyment of Fourteenth Amendment rights and holds that, as so construed, § 241 is not void for indefiniteness. I do not agree, however, with the remainder of Part II which holds, as I read the opinion, that a conspiracy to interfere with the exercise of the right to equal utilization of p. 775state facilities is not, within the meaning of § 241, a conspiracy to interfere with the exercise of a “right . . . secured ... by the Constitution” unless discriminatory conduct by state officers is involved in the alleged conspiracy. I.

The Court deals with this contention by seizing upon an allegation in the indictment concerning one of the means employed by the defendants to achieve the object of the conspiracy. The indictment alleges that the object of the conspiracy was to be achieved, in part, “[b]y causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts . . . .” The Court reads this allegation as “broad enough to cover a charge of active connivance by agents of the State in the making of the ‘false reports,’ or other conduct amounting to official discrimination clearly sufficient to constitute denial of rights protected by the Equal Protection Clause,” and the Court holds that this allegation, so construed, is sufficient to “prevent dismissal of this p. 776branch of the indictment.” 1 I understand this to mean that, no matter how compelling the proof that private conspirators murdered, assaulted, or intimidated Negroes in order to prevent their use of state facilities, the prosecution under the second numbered paragraph must fail in the absence of proof of active connivance of law enforcement officers with the private conspirators in causing the false arrests.

Hence, while the order dismissing the second numbered paragraph of the indictment is reversed, severe limitations on the prosecution of that branch of the indictment are implicitly imposed. These limitations could only stem from an acceptance of appellees’ contention that, because there exist no Equal Protection Clause rights against wholly private action, a conspiracy of private persons to interfere with the right to equal utilization of state facilities described in the second numbered paragraph is not a conspiracy to interfere with a “right . . . secured ... by the Constitution” within the meaning of § 241. In other words, in the Court’s p. 777view the only right referred to in the second numbered paragraph that is, for purposes of § 241, “secured . . . by the Constitution” is a right to be free—when seeking access to state facilities—from discriminatory conduct by state officers or by persons acting in concert with state officers.2

eral law). The term “secured” means “created by, arising under or dependent upon,” Logan n . United States, 144 U. S. 263, 293, rather than “fully protected.” A right is “secured ... by the Constitution” within the meaning of § 241 if it emanates from the Constitution, if it finds its source in the Constitution. Section 241 must thus be viewed, in this context, as an exercise of congressional power to amplify prohibitions of the Constitution addressed, as is invariably the case, to government officers; contrary to the view of the Court, I think we are dealing here with a statute that seeks to implement the Constitution, not with the “bare terms” of the Constitution. Section 241 is not confined to protecting rights against private conspiracies that the Constitution or another federal law also protects against private interferences. No such duplicative function was envisioned in its enactment. See Appendix in United States v. Price, post, p. 807. Nor has this Court construed § 241 in such a restrictive manner in other contexts. Many of the rights that have been held to be encompassed within § 241 are not additionally the subject of protection of specific federal legislation or of any provision of the Constitution addressed to private individuals. For example, the prohibitions and remedies of § 241 have been declared to apply, without regard to whether the alleged violator was a government officer, to interferences with the right to vote in a federal election, Ex parte Yarbrough, 110 U. S. 651, or primary, United States v. Classic, 313 U. S. 299; the right to discuss public affairs or petition for redress of grievances, United States v. Cruikshank, 92 U. S. 542, 552, cf. Hague v. CIO, 307 U. S. 496, 512-513 (opinion of Roberts, J.); Collins v. Hardyman, 341 U. S. 651, 663 (dissenting opinion); the right to be protected against violence while in the lawful custody of a federal officer, Logan v. United States, 144 U. S. 263; and the right to inform of violations of p. 780federal law, In re Quarles and Butler, 158 U. S. 532. The full import of our decision in United States v. Price, post, p. 787, at pp. 796-807, regarding § 241 is to treat the rights purportedly arising from the Fourteenth Amendment in parity with those rights just enumerated, arising from other constitutional provisions. The reach of § 241 should not vary with the particular constitutional provision that is the source of the right. For purposes of applying § 241 to a private conspiracy, the standard used to determine whether, for example, the right to discuss public affairs or the right to vote in a federal election is a “right . . . secured ... by the Constitution” is the very same standard to be used to determine whether the right to equal utilization of state facilities is a “right . . . secured ... by the Constitution.”

For me, the right to use state facilities without discrimination on the basis of race is, within the meaning of § 241, a right created by, arising under and dependent upon the Fourteenth Amendment and hence is a right “secured” by that Amendment. It finds its source in that Amendment. As recognized in Strauder v. West Virginia, 100 U. S. 303, 310, “The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights . . . .” The Fourteenth Amendment commands the State to provide the members of all races with equal access to the public facilities it owns or manages, and the right of a citizen to use those facilities without discrimination on the basis of race is a basic corollary of this command. Cf. Brewer v. Hoxie School District No. 46, 238 F. 2d 91 (C. A. 8th Cir. 1956). Whatever may be the status of the right to equal utilization of privately owned facilities, see generally Bell v. Maryland, 378 U. S. 226, it must be emphasized that we p. 781are here concerned with the right to equal utilization of public facilities owned or operated by or on behalf of the State. To deny the existence of this right or its constitutional stature is to deny the history of the last decade, or to ignore the role of federal power, predicated on the Fourteenth Amendment, in obtaining nondiscriminatory access to such facilities. It is to do violence to the common understanding, an understanding that found expression in Titles III and IV of the Civil Rights Act of 1964, 78 Stat. 246, 42 U. S. C. §§ 2000b, 2000c (1964 ed.), dealing with state facilities. Those provisions reflect the view that the Fourteenth Amendment creates the right to equal utilization of state facilities. Congress did not preface those titles with a provision comparable to that in Title II5 explicitly creating the right to equal utilization of certain privately owned facilities. Congress rightly assumed that a specific legislative declaration of the right was unnecessary, that the right arose from the Fourteenth Amendment itself.

I acknowledge that some of the decisions of this Court, most notably an aspect of the Civil Rights Cases, 109 U. S. 3, 11, have declared that Congress’ power under p. 783§ 5 is confined to the adoption of “appropriate legislation for correcting the effects of . . . prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous.” I do not accept—and a majority of the Court today rejects—this interpretation of § 5. It reduces the legislative power to enforce the provisions of the Amendment to that of the judiciary;7 and it attributes a far too limited objective to the Amendment’s sponsors.8 Moreover, the language of § 5 of the Fourteenth Amendment and § 2 of the Fifteenth Amendment are virtually the same, and we recently held in South Carolina v. Katzenbach, ante, p. 301, at 326, that “(t]he basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States.” The classic formulation of that test by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421, was there adopted:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, p. 784which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” It seems to me that this is also the standard that defines the scope of congressional authority under § 5 of the Fourteenth Amendment. Indeed, South Carolina n . Katzenbach approvingly refers to Ex parte Virginia, 100 U. S. 339, 345-346, a case involving the exercise of the congressional power under § 5 of the Fourteenth Amendment, as adopting the McCulloch v. Maryland formulation for “each of the Civil War Amendments.”

The indictment in No. 60 contains four counts, each of which names as defendants the three officials and 15 nonofficial persons. The First Count charges, on the basis of allegations substantially as set forth above, that all of the defendants conspired “to wilfully subject” Schwerner, Chaney and Goodman “to the deprivation p. 792of their right, privilege and immunity secured and protected by the Fourteenth Amendment to the Constitution of the United States not to be summarily punished without due process of law by persons acting under color of the laws of the State of Mississippi.” This is said to constitute a conspiracy to violate § 242, and therefore an offense under 18 U. S. C. § 371 (1964 ed.). The latter section, the general conspiracy statute, makes it a crime to conspire to commit any offense against the United States. The penalty for violation is the same as for direct violation of § 242—that is, it is a misdemeanor.4

The contrary view in a § 242 context was expressed by the dissenters in Screws, 325 U. S., at 147-149, and was rejected then, later in Williams II, and finally—in a § 1983 case—in Monroe v. Pape, supra. Cf. Peterson v. City of Greenville, 373 U. S. 244, 250 (separate opinion of Har la n , J.). Recent decisions of this Court which have given form to the “state action” doctrine make it clear that the indictments in this case allege conduct on the part of the “private” defendants which constitutes “state action,” and hence action “under color” of law within § 242. In Burton v. Wilmington Parking Authority, 365 U. S. 715, we held that there is “state action” whenever the “State has so far insinuated itself into a position of interdependence [with the otherwise 'private’ person whose conduct is said to violate the Fourteenth Amendment] . . • that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth p. 795787 Opinion of. the Court.

But the District Court purported to read the statutes with the gloss of Williams I. In that case, the only case in which this Court has squarely confronted the point at issue, the Court did in fact sustain dismissal of an indictment under § 241. But it did not, as the District Court incorrectly assumed, hold that § 241 is inapplicable to Fourteenth Amendment rights. The Court divided equally on the issue. Four Justices, in an opinion by Mr. Justice Frankfurter, were of the view that §241 “only covers conduct which interferes with rights arising from the substantive powers of the Federal Government”—rights “which Congress can beyond doubt p. 798constitutionally secure against interference by private individuals.” 341 U. S., at 73, 77. Four other Justices, in an opinion by Mr . Just ice Douglas , found no support for Mr. Justice Frankfurter’s view in the language of the section, its legislative history, or its judicial interpretation up to that time. They read the statute as plainly covering conspiracies to injure others in the exercise of Fourteenth Amendment rights. They could see no obstacle to using it to punish deprivations of such rights. Dismissal of the indictment was affirmed because Mr . Justi ce Black voted with those who joined Mr. Justice Frankfurter. He did so, however, for an entirely different reason—that the prosecution was barred by res judicata—and he expressed no view on the issue whether “§ 241, as applied, is too vague and uncertain in scope to be consistent with the Fifth Amendment.” Williams I thus left the proper construction of § 241, as regards its applicability to protect Fourteenth Amendment rights, an open question.

As we have consistently held “The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.” Williams I, 341 U. 8., at 92 (opinion of Douglas , J.). In the present case, the participation by law enforcement officers, as p. 800alleged in the indictment, is clearly state action, as we have discussed, and it is therefore within the scope of the Fourteenth Amendment.

“The source of this section in the doings of the Ku Klux and the like is obvious and acts of violence obviously were in the mind of Congress. Naturally Congress put forth all its powers. ... [T]his p. 801section dealt with Federal rights and with all Federal rights, and protected them in the lump .... [It should not be construed so] as to deprive citizens of the United States of the general protection which on its face § 19 [now § 241] most reasonably affords.” 8

5 See H. R. Rep. No. 16, 39th Cong., 2d Sess., p. 12 et seq. p. 804governmental process in former Confederate States. It had declared the governments in 10 “unreconstructed” States to be illegal and had set up federal military administrations in their place. Congress refused to seat representatives from these States until they had adopted constitutions guaranteeing Negro suffrage, and had ratified the Fourteenth Amendment. Constitutional conventions were called in 1868. Six of the 10 States fulfilled Congress’ requirements in 1868, the other four by 1870.

I said upon a former occasion on this floor that the reconstruction policy of Congress had been progressive, and that it was necessary that it should be progressive still. The mere act of establishing governments in the recently insurgent States was one thing; the great principles upon which Congress proposed to proceed in establishing those governments was quite another thing, involving principles which lie at the very foundation of all that has been done, and which are intimately p. 808connected with all the results that must follow from that and from the legislation of Congress connected with the whole subject.

Mr. President, the condition which that thirteenth amendment imposed on the late insurrectionary States was one which demanded the serious consideration and attention of this Government. The equality which by the thirteenth, fourteenth, and fifteenth amendments has been attempted to be secured for the colored men, has not only subjected them to the operation of the prejudices which had theretofore existed, but it has raised against them still stronger prejudices and stronger feelings in order to fight down the equality by which it is claimed they are to control the legislation of that section of the country. They were turned loose among those people, weak, ignorant, and poor. Those among the white citizens there who have sought to maintain the rights which you have thrown upon that class of people, have to endure every species of proscription, of opposition, and of vituperation in order to carry out the policy of Congress, in order to lift up and to uphold the rights which you have conferred upon that class. It is p. 809for that reason not only necessary for the freedmen, but it is necessary for the white people of that section that there should be stringent and effective legislation on the part of Congress in regard to these measures of reconstruction.

The fifteenth amendment to the Constitution of the United States provides that 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. It speaks of the right of citizens to vote.” It has been said that voting is a privilege; but this amendment recognizes it as a right in the citizen; and this right is not to “be denied or abridged by the United States, or by any State.” What are we to understand by that? Can individuals abridge it with impunity? Is there no power in this Government to prevent individuals or associations of individuals from abridging or contravening that provision of the Constitution? If that be so, legislation is unnecessary. If our legislation is to apply only to the p. 810States, it is perfectly clear that it is totally unnecessary, inasmuch as we cannot pass a criminal law as applicable to a State; nor can we indict a State officer as an officer. It must apply to individuals. A State might attempt to contravene that provision of the Constitution by passing some positive enactment by which it would be contravened, but the Supreme Court would hold such enactment to be unconstitutional, and in that way the State would be restrained. But the word “deny” is used. There are various ways in which a State may prevent the full operation of this constitutional amendment. It cannot—because the courts would prevent it—by positive legislation, but by acts of omission it may practically deny the right. The legislation of Congress must be to supply acts of omission on the part of the States. If a State shall not enforce its laws by which private individuals shall be prevented by force from contravening the rights of the citizen under the amendment, it is in my judgment the duty of the United States Government to supply that omission, and by its own laws and by its own courts to go into the States for the purpose of giving the amendment vitality there.

There is no legislation that could reach a State to prevent its passing a law. It can only reach the individual citizens of the State in the enforcement of law. You have, therefore, in any appropriate legislation, to act on the citizen, not on the State. If you pass an act y which you make it an indictable offense for an officer p. 812to execute any law of a State by which he trespasses upon any of these rights of the citizen it operates upon him as a citizen, and not as an officer. Why can you not just as well extend it to any other citizen of the country?

There are, Mr. President, various ways in which the right secured by the fifteenth amendment may be abridged by citizens in a State. If a State should undertake by positive enactment, as I have said, to abridge the right of suffrage, the courts of the country would prevent it; and I find that in section two of the bill which has been proposed as a substitute by the Judiciary Committee of the Senate provision is made for cases where officers charged with registration or officers charged with the assessment of taxes and with making the proper entries in connection therewith, shall refuse the right to register or to pay taxes to a citizen. I believe the language of the Senate bill is sufficiently large and comprehensive to embrace any other class of officers that might be charged with any act that was necessary to enable a citizen to perform any prerequisite to voting. But, sir, individuals may prevent the exercise of the right of p. 813suffrage; individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the fourteenth amendment, as well as trespass upon the right conferred by the fifteenth. Not only citizens, but organizations of citizens, conspiracies, may be and are, as we are told, in some of the States formed for that purpose. I see in the fourth section of the Senate bill a provision for cases where citizens by threats, intimidation, bribery, or otherwise prevent, delay, or hinder the exercise of this right; but there is nothing here that strikes at organizations of individuals, at conspiracies for that purpose. I believe that any bill will be defective which does not make it a highly penal offense for men to conspire together, to organize themselves into bodies, for the express purpose of contravening the right conferred by the fifteenth amendment.

But, sir, there is a great, important omission in this bill as well as in that of the House. It seems not to have struck those who drew either of the two bills that the prevention of the exercise of the right of suffrage was not the only or the main trouble that we have upon our hands. Suppose there shall be an organization of individuals, or, if you please, a single individual, who shall take it upon himself to compel his fellow citizens to vote in a particular way. Suppose he threatens to discharge them from employment, to bring upon them the outrages whibh are being perpetrated by the Kuklux organizations, so as not to prevent their voting, but to compel them to vote in accordance with the dictates of the party who brings this coercion upon them. It seems to me it is necessary that we should legislate against that. That is a more threatening view of the subject than the mere preventing of registration or of entering men’s names upon the assessment books for taxation or of depositing the ballot in the box. I think the bill cannot be perfected to meet the emergencies of the occasion p. 814unless there be a section which meets that view of the case.

“Sec . 6. And be it further enacted, That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, such person shall be held guilty of felony, and on conviction thereof shall be fined and imprisoned; the fine not to exceed $5,000 and the imprisonment not to exceed ten years; and shall, moreover, be thereafter ineligible to and disabled from holding any office or place of honor, p. 815profit, or trust created by the Constitution or laws of the United States.

I think the most effective mode of preventing this intimidation and these attempts at coercion, as well as the outrages which grow out of these attempts, would be found in making any offense committed in the effort to violate them indictable before the courts of the United States. As was said before, in the discussion of the Georgia question in the Senate, the juries in the communities where these outrages are committed are often composed of men who are engaged in them, or of their friends, or of those who connive at them, or of persons p. 817who are intimidated by them, and in many instances they dare not bring in a true bill when there is an attempt to indict, or if a true bill be found, they dare not go for conviction on the final trial. It is for that reason that I believe it will be better, it will be the only effective remedy, to take such offenders before the courts of the United States, and there have them tried by a jury which is not imbued with the prejudices and interests of those who perpetrate the crimes.

But there is a use for these forces which seems not to have been adverted to in either the civil rights bill or in the bill that is now pending before the Senate. It is the holding of these offenders for examination and trial after they are arrested. Their confederates, if they are put in the common prisons of the State, will in nine cases out of ten release them. But more important still is it to use these forces to compel the attendance of witnesses; for a subterfuge resorted to is to keep witnesses away p. 818from the trial. In many instances witnesses are more or less implicated in the commission of the offense. In other cases the witnesses are intimidated and cannot be obtained upon the trial. So in the amendment which I have prepared I have proposed that these forces may be used to enforce the attendance of witnesses both upon the examination and the trial. My purpose in introducing this was to perfect the Senate bill. I think, as I said yesterday, that that bill is liable to less objection than the House bill. I think it is more efficacious in its provisions. I think it is better that the Senate should direct its attention to perfecting that bill, in order that it may be made, when perfected, a substitute for the bill that came from the House.