$285

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the high seas, offenses against the law of nations, treason, and counterfeiting the securities and current coin of the United States, no one doubts the power of congress to provide for the punishment of all crimes and offenses against the United States, whether committed within one of the states of the Union or within territory over which congress has plenary and exclusive jurisdiction.

To accomplish this end, congress has the right to enact laws for the arrest and commitment of those accused of any such crime or offense, and for holding them in safe custody until indictment and trial; and persons arrested and held pursuant to such laws are in the exclusive custody of the United States, and are not subject to the judicial process or executive war. rant of any state. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397; Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. Rep. 544. The United States, having the absolute right to hold such prisoners, have an equal duty to protect them, while so held, against assault or injury from any quarter. The existence of that duty on the part of the government necessarily implies a corresponding right of the prisoners to be so protected; and this right of the prisoners is a right secured to them by the constitution and laws of the United States.

The statutes of the United States have provided that any person accused of a crime or offense against the United States may, by any United States judge or commissioner of a circuit court, be arrested and confined or bailed, as the case may be, for trial before the court of the United States having cognizance of the offense; and, if bailed, may be arrested by his bail and delivered to the marshal or his deputy, before any judge or other officer having power to commit for the offense, and be thereupon recommitted to the custody of the marshal, to be held until discharged by due course of law. Rev. St. §§ 1014, 1018. They have also provided that all the expenses attendant upon the transportation from place to place, and upon the temporary or permanent confinement, of persons arrested or committed under the laws of the United States, shall be paid out of the treasury of the United States: and that the marshal, in case of necessity, may provide a convenient place for a temporary jail, and "shall make such other provision as he may deem expedient and necessary for the safe-keeping of the prisoners arrested or committed under the authority of the United States, until permanent provision for that purpose is made by law." Rev. St. §§ 5536-5538.

In the case at bar, the indictments alleged, the evidence at the trial tended to prove, and the jury have found by their verdict, that while Charles Marlow and five others, citizens of the United States, were in the custody and control of a deputy-marshal of the United States, under writs of commitment from a commissioner of the circuit court, in default of bail, to answer to indictments for an offense against the laws of the United States, the plaintiffs in error conspired to injure and oppress them in the free exercise and en

joyment of the right secured to them by the constitution and laws of the United States, to be protected, while in such custody and control of the deputy-marshal, against assault and budily harm, until they had been discharged by due process of the laws of the United States.

If, as some of the evidence introduced by the government tended to show, the deputy-marshal and his assistants made no attempt to protect the prisoners, but were in league and collusion with the conspirators, that does not lessen or impair the right of protection secured to the prisoners by the constitution and laws of the United States.

The prisoners were in the exclusive custody and control of the United States, under the protection of the United States, and in the peace of the United States. There was a co-extensive duty on the part of the United States to protect against lawless violence persons so within their custody, control, protection, and peace; and a corresponding right of those persons, secured by the constitution and laws of the United States, to be so protected by the United States. If the officers of the United States, charged with the performance of the duty, in behalf of the United States, of affording that protection and securing that right, neglected or violated their duty, the prisoners were not the less under the shield and panoply of the United States.

The cases heretofore decided by this court, and cited in behalf of the plaintiffs in error, are in no way inconsistent with these views, but, on the contrary, contain much to support them. The matter considered in each of those cases was whether the particular right there in question was secured by the constitution of the United States, and was within the acts of con. gress. But the question before us is sog important, and the learned counsel for the plaintiffs in error have so strongly⚫ relied on those cases, that it is fit to review them in detail.

In U. S. v. Reese, 92 U. S. 214, 217, (de. cided at October term, 1875,) this court, speaking by Chief Justice WAITE, said: "Rights and immunities created by or dependent upon the constitution of the United States can be protected by congress. The form and the manner of the protection may be such as congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected." The decision in that case was that the fifteenth amendment of the constitution did not confer on citizens of the United States the right to vote, but only the right of exemption from being denied by a state the right to vote on account of race, color, or previous condition of servitude; and therefore that sections 3 and 4 of the enforcement act of May 31, 1870, (16 St. pp. 140, 141, re-enacted in Rev. St. §§ 20072009, 5506,) undertaking to punish the denial or obstruction of the right to vote under the laws of any state or territory, and not grounded on such discrimination, were unconstitutional.

In U. S. v. Cruikshank, 92 U. S. 542, al

the same term, in which also the opinion was delivered by the chief justice, the indictment was ou section 6 of the enforcement act of 1870, (re-enacted in Rev. St. § 5508, under which the present conviction was had,) and the points adjudged on the construction of the constitution and the extent of the powers of congress were as follows:

(1) It was held that the first amendment of the constitution, by which it was ordained that congress should make no law abridging the right of the people peaceably to assemble and to petition the government for redress of grievances, did not grant to the people the right peaceably to assemble for lawful purposes, but recognized that right as already existing, and did not guaranty its continuance except as against acts of congress; and therefore the general right was not a right secured by the constitution of the United States. But the court added:

The right of the people peaceably to assemble for the purpose of petitioning congress for a redress of grievances, or for anything else connected with the powers or the duties of the national gov. ernment, is an attribute of national citizenship, and, as such, under the protec tion of, and guarantied by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs, and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the cause would have been within the statute, and within the scope of the sovereignty of the United States.' 92 U. S. 552, 553.

(2) It was held that the second amend ment of the constitution, declaring that "the right of the people to keep and bear arms shall not be infringed," was equally limited in its scope. 92 U. S. 553.

(3) It was held that a conspiracy of individuals to injure, oppress, and intimi date citizens of the United States, with intent to deprive them of life and liberty without due process of law, did not come within the statute, nor under the power of congress, because the rights of life and liberty were not granted by the constitution, but were natural and inalienable rights of man; and that the fourteenth amendment of the constitution, declaring that no state shall deprive any person of life, liberty, or property, without due process of law, added nothing to the rights of one citizen as against another, but simply furnished an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society. It was of these fundamental rights of life and liberty, not created by or dependent on the constitution, that the court said: "Sovereignty, for this purpose, rests alone with the states. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a state than it would be to punish for false imprisonment or murder itself." 92 U. S. 553, 554.

(4) It was held that the provision of the fourteenth amendment, forbidding any state to deny to any person within its jurisdiction the equal protection of the laws, gave no greater power to congress. 92 U. S. 555.

(5) It was held, in accordance with U. S. v. Reese, above cited, that counts for conspiracy to prevent and hinder citizens of the African race in the free exercise and enjoyment of the right to vote at state elections, or to injure and oppress them for having voted at such elections, not alleging that this was on account of their race, or color, or previous condition of servitude, could not be maintained; the court saying: "The right to vote in the states comes from the states; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the constitution of the United States, but the last has been." 92 U. S. 556.

Nothing else was decided in U. S v. Cruikshank, except questions of the technical sufficiency of the indictment, having no bearing upon the larger questions.

The main principles on which that decision was based had been clearly summed up by Mr. Justice BRADLEY when the same case was before the circuit court, as follows: "It is undoubtedly a sound proposition that, whenever a right is guarantied by the constitution of the United States, congress has the power to provide for its enforcement, either by implication arising from the correlative duty of government to protect, wherever a right to the citizen is conferred, or under the general power (contained in article 1, § 8, par. 18) 'to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or any department or officer thereof.'" "With regard to those acknowledged rights and privileges of the citizen, which form a part of his political inheritance derived from the mother country, and which were challenged and vindicated by centuries of stubborn resistance to arbitrary power, they belong to him as his birthright, and it is the duty of the particular state of which he is a citizen to protect and enforce them, and to do naught to deprive him of their full enjoyment. When any ofe these rights and privileges are secured in? the constitution of the United States only by a declaration that the state or the United States shall not violate or abridge them, it is at once understood that they are not created or conferred by the constitution, but that the constitution only guaranties that they shall not be impaired by the state, or the United States, as the case may be. The fulfillment of this guaranty by the United States is the only duty with which that government is charged. The affirmative enforcement of the rights and privileges themselves, unless some. thing more is expressed, does not devolve upon it, but belongs to the state government as a part of its residuary sovereignty." 1 Woods, 308, 314–316.

In Strauder v. West Virginia, 100 U. S. 303, (at October term, 1879,) in which it

was adjudged that the provision of the fourteenth amendment, forbidding any state to deny to any person within its jurisdiction the equal protection of the laws, was violated by statutes of a state providing that white men only should be the jurors on the trial of a black man, the court, speaking by Mr. Justice STRONG, said: “A right or an immunity, whether created by the constitution or only guarantied by it, even without any express delegation of power, may be protected by congress. 100 U. S. 310.

In Ex parte Virginia, 100 U. S. 339, (at the same term,) the court upheld the constitutionality of the civil rights act of March 1, 1875, c. 114, § 4, (18 St. p. 336,) enacting that no citizen, having all other qualifications provided by law, should be disqualified from service as a juror in any court of the United States or of any state, on account of race, color, or previous condition of servitude, and that any officer charged with the duty of selecting jurors, who should exclude any citizen for such cause, should be guilty of a misdemeanor.

In U. S. v. Harris, 106 U. S. 629, 1 Sup. Ct. Rep. 601, (at October term, 1882,) the indictment was for conspiring to deprive, and for depriving, certain citizens of the United States of the equal protection of the laws, in this: that they were in the custody of officers of a state, under lawful arrest on charges of crime, and were, "by the laws of said state, entitled to the due and equal protection of the laws thereof," and "to have their persons protected from violence when so under arrest as aforesaid." That indictment was on section 5519 of the Revised Statutes, which assumed to punish a conspiracy for the purpose of depriving any person or class of persons of the equal protection of the laws. The court, following the Cases of Reese and Cruikshank, above stated, held that section to be unconstitutional, because broader than the thirteenth, fourteenth, and fifteenth amendments to the constitution of the United States would justify. The case is clearly distinguished from the case at bar by the facts that those prisoners were in the custody of officers, not of the United States, but of the state, and that the laws, of the equal protection of which they were alleged to have been deprived, were the laws of the state only.

In the cases reported under the head of the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. Rep. 18, (at October term, 1883,) the whole extent of the decision was that sections 1 and 2 of the civil rights act of March 1, 1875, c. 114, (18 St. p. 336.) declaring all persons within the jurisdiction of the United States to be entitled to the full and equal enjoyment of inns, public conveyances, and places of public amusement, and assuming to punish the denial of such enjoyment to any citizen, "except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude," were unconstitutional, because not authorized, either by the thirteenth amendment, abolishing slavery, or by the fourteenth amendment, the general scope and purpose of v.12s.c.-40

which were thus defined by Mr. Justice BRADLEY in delivering judgment: "It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. "It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize congress to create a code of inunicipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment." "Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them, and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make congress take the place of the state legislatures, and to supersede them." 109 U. S. 11, 13, 3 Sup. Ct. Rep. 18.

In Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. Rep. 152, (at the same term.) it was adjudged that both section 5508 of the Revised Statutes (on which these indictments are founded) and section 5520, punishing conspiracy to prevent by force, intimidation, or threats any citizen from lawfully giving his support to the election of a qualified person as presidential elector or member of congress, were constitutional, because within the implied powers of congress. In answer to the argument that the parties assaulted were not offi cers of the United States, and that their protection by congress in exercising the right to vote did not stand on the same ground with the protection of election officers of the United States, the court, speaking by Mr. Jusice MILLER, said: "But the distinction is not well taken. The power in either case arises out of the circumstance that the function in which the party is engaged, or the right which he is about to exercise, is dependent on the laws of the United States. In both cases it is the duty of that government to see that he may exercise this right freely, and to protect him from violence while so doing, or on account of so doing. This duty does not arise solely from the interest of the party concerned, but from the necessity of the government itself, that its service shall be free from the adverse influence of force and fraud practiced on its agents, and that the votes by which its members of congress and it president are elected shall be the free votes of the electors, and the officers thus chosen the free and uncorrupted choice of those who have the right to take part in that choice." 110 U. S. 662, 4 Sup. Ct. Rep. 157.

In U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct. Rep. 35, (at October term, 1884,) the court reaffirmed the constitutionality o section 5508 of the Revised Statutes, and speaking by the same eminent judge, said "The statute itself is careful to limit its

operation to an obstruction or oppression in 'the free exercise of a right or privilege secured by the constitution or laws of the United States, or because of his having exercised such rights.' The protection of this section extends to no other right, to no right or privilege dependent on a law or laws of the state. Its object is to guar. anty safety and protection to persons in the exercise of rights dependent on the laws of the United States, including, of course, the constitution and treaties as well as statutes; and it does not, in this section at least, design to protect any other rights." 112 U. S. 79, 5 Sup. Ct. Rep. 36. The particular right held in that case to be dependent on and secured by the laws of the United States, and to be protected by section 5508 of the Revised Statutes against interference by individuals, was the right of a citizen, having made a homestead entry on public land, within the limits of a state, to continue to reside on the land for five years, for the purpose of perfecting his ti tle to a patent, under sections 2289-2291 of the Revised Statutes, of which the court said: "The right here guarantied is not the mere right of protection against personal violence. This, if the result of an ordinary quarrel or malice, would be cognizable under the laws of the state and by its courts. But it is something different from that. It is the right to remain on the land in order to perform the requirements of the act of congress, and, according to its rules, perfect his incipient title. Whenever the acts complained of are of a character to prevent this, or throw obstruction in the way of exercising this right, and for the purpose and with intent to prevent it, or to injure or oppress a person because he has exercised it, then, because it is a right asserted under the law of the United States, and granted by that law, those acts come within the purview of the statute and of the constitutional power of congress to make such statute." 112 U. S. 80, 5 Sup. Ct. Rep. 37.

In Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. Rep. 656, 763, (at October term, 1886,) it was decided that the word "citizen, "in section 5508 of the Revised Statutes, as in the original act of May 31, 1870, c. 114, § 6, was used in its political sense, and not as synonymous with "resident, "inhabitant," or "person," and therefore did not include an alien. It was in regard to that point that Chief Justice WAITE said: "This particular section is a substantial re-enactment of section 6 of the original act, which is found among the sections that deal exclusively with the political rights of citizens, especially their right to vote, and were evidently intended to prevent discriminations in this particular against voters on account of race, color, or previous condition of servitude.'" 120 U. S. 691, 7 Sup. Ct. Rep. 656, 763. He did not say that the section in question, but only that the sections among which it is found, "deal exclusively with the political rights of citizens." To have said that the section in question was so limited would have been in direct conflict with the decision in U. S. v. Waddell, above cited, to which the chief justice, at

the outset of his discussion of the question whether "citizen" included an alien, had referred as establishing the constitution. ality of the section.

The whole scope and effect of this series of decisions is that, while certain fundamental rights, recognized and declared, but not granted or created, in some of the amendments to the constitution, are thereby guarantied only against violation or abridgment by the United States or by the states, as the case may be, and cannot therefore be affirmatively enforced by congress against unlawful acts of individ uals, yet that every right created by, arising under, or dependent upon the constitution of the United States, may be protected and enforced by congress by such means and in such manner as congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the constitution, may, in its discretion, deem most eligible and best adapted to attain the object.

Among the particular rights which this court, as we have seen, has adjudged to be secured, expressly or by implication, by the constitution and laws of the United States, and to be within section 5508 of the Revised Statutes, providing for the punishment of conspiracies by individuals to oppress or injure citizens in the free exercise and enjoyment of rights so secured, are the political right of a voter to be protected from violence while exercisinghis right of suffrage under the laws of the *United States, and the private right of a citizen, having made a homestead entry, to be protected from interference while remaining in the possession of the land for the time of occupancy which congress has enacted shall entitle him to a patent.

In the case at bar the right in question does not depend upon any of the amendments to the constitution, but arises out of the creation and establishment by the constitution itself of a national government, paramount and supreme within its sphere of action. Any government which has power to indict, try, and punish for crime, and to arrest the accused, and hold them in safe-keeping until trial, must have the power and the duty to protect against unlawful interference its prisoners so held, as well as its executive and judicial officers charged with keeping and trying them.

In the very recent case of Neagle, 135 U. S. 1, 10 Sup. Ct. Rep. 658, (at October term, 1889,) it was held that, although there was no express act of congress authorizing the appointment of a deputy-marshal or other officer to attend a justice of this court while traveling in his circuit, and to protect him against assault or injury, it was within the power and the duty of the executive department to protect a judge of any of the courts of the United States, when there was just reason to believe that he would be in personal danger while executing the duties of his office; that an assault upon such a judge while in discharge of his official duties was a breach of the peace of the United States, as distinguished from the peace of the state in which the assault took place; and that a deputy-marshal of the United States, spe

cially charged with the duty of protecting | and guarding a judge of a court of the United States, had imposed upon him the duty of doing whatever might be necessary for that purpose, even to the taking of human life.

In delivering judgment Mr. Justice MILLER, repeating the language used by Mr. Justice BRADLEY, speaking for the court in Ex parte Siebold, 100 U. S. 371, 394, said: "It is argued that the preservation of peace and good order in society is not within the powers confided to the government of the United States, but belongs exclusively to the states. Here again we are met with the theory that the government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that government. We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. 135 U. S. 60, 10 Sup. Ct. Rep. 666. After further discussion of that question, and of the powers of sheriffs in the state of California, where the transaction took place, Mr. Justice MILLER added: "That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the state of California,-are questions too clear to need argument to prove them." 135 U. S. 69, 10 Sup. Ct. Rep. 670.

The United States are bound to protect against lawless violence all persons in their service or custody in the course of the administration of justice. This duty and the correlative right of protection are not limited to the magistrates and officers charged with expounding and executing the laws, but apply, with at least equal force, to those held in custody on accusation of crime, and deprived of all means of self-defense.

For these reasons, we are of opinion that the crime of which the plaintiffs in error were indicted and convicted was within the reach of the constitutional powers of congress, and was covered by section 5508 of the Revised Statutes; and it remains to be considered whether they were denied any legal right by the other rulings and instructions of the circuit court.

2. The objection to the consolidation of the indictments on which the plaintiffs in error were tried and convicted cannot prevail.

Congress has enacted that, "when there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined,

instead of having several indictments the whole may be joined in one indictment in separate counts; and, if two or more indictments are found in such cases, the court may order them to be consolidated." Rev. St. § 1024.

The record before us shows that the court below at different times made three orders of consolidation.

The only exception taken by the defendants to any of these orders was to the first one, made at October term, 1890, by which four of the indictments on which a trial was afterwards had were ordered to be consolidated with five earlier indictments, which included other defendants and different offenses.

By the second order of consolidation, made on a subsequent day of the same term, the five earlier indictments were ordered to be separated, so that in this respect the case stood as if they had never been consolidated with the four later ones. Two of the defendants in one of these four indictments were ordered to be severed and tried separately; and the former or der of consolidation was confirmed as to the four indictments, all of which, as they then stood, were charges against the same persons "for the same act or transaction,' or at least "for two or more acts or transactions connected together," and therefore within the very terms and purpose of the section of the Revised Statutes above quoted, and might perhaps have been ordered, in the discretion of the court, to be tried together, independently of any statute upon the subject. See Ex parte Yarbrough, 110 U. S. 651, 655, 4 Sup. Ct. Rep. 152; U. S. v. Marchant, 12 Wheat. 480; Withers v. Com., 5 Serg. & R. 59. And to this order no exception was taken.

By the third order of consolidation, indeed, made at February term, 1891, shortly before the trial, a new indictinent against different persons for the same crime was consolidated with the four indictments. But it is unnecessary to consider whether this was open to objection, since none of the defendants objected or excepted to it. They may all have considered it more advantageous or more convenient to have the new indictment tried together with the other four. Having gone to trial, without objection, on the indictments as consolidated under the last order of the court, it was not open to any of them to take the objection for the first time after verdict.

3. The objection made to the four indictments, that they should have been found by the grand jury at Graham, and not at Dallas, is based on a misapprehension of the acts of congress upon that subject. By the act of February 24, 1879, c. 97, § 1, creating the northern judicial district of Texas, Young county is one of the counties included in that district; by section 4 the terms of the courts in that district are to be held at Waco, at Dallas, and at Graham; and by section 5 "all process issued against defendants residing in the counties of" Young and certain adjoining counties "shall be returned to Graham, and against defendants residing in certain other counties, to Waco and to Dallas, respectively. 20 St. pp. 318, 319. By the act