Brazier v. Cherry Brief of Counsel for Appellees

    UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT,

IN THE

No. 18,620.

HATTIE BRAZIER,
Appellant,

v,
W, B. CHERRY et a!., 

Appellees,

Appeal from the United States District Court 
for the Middle District of Georgia,

BRIEF OF COUNSEL FOR APPELLEES.

CHARLES J, BLOCH, 
ELLSWORTH HALL, JR.,

710 Walnut Street Building, 
Macon, Georgia,

Attorneys for Appellees.

BLOCH, HALL, GROOVER and HAWKINS,
Of Counsel.

St, L ouis L a w  Printing Co., Inc., 415 N. Eighth Street. CEntral 1-4477.



INDEX,

[Page
Statement of the ease......................................................... 1

Argument ............................................................................  7
I. Appellant does not have an action for wrongful 

death under Title 42, U. S. C., 1981, 1983 or 1985. 
Neither does any one of these sections provide 
for a survival to her of any cause of action 
which her husband may have had.......................  7

II. The survival provision in § 6 of the Civil Rights 
Act of April 20, 1871 (42 U. S. C., § 1986), does 
not authorize the institution and maintenance
of the suit at bar................................................    11

III. Even if § 6 of the act of 1871 (42 U. S. C.,
§ 1986) should be construed to apply to actions 
created under § 2 of the Act of 1871 [42 U. S. C.,
§ 1985 (3)], it would not be applicable to the 
complaint in this action........................................  16

IV. Appellant has no right of action under Georgia
wrongful death and survival statutes by virtue 
of the provisions of Title 42, U. S. C., Section 
1988 ..........................................................................  19

V. Georgia’s Death Statute (§ 105-1302) (appel­
lant’s brief, page 14) gives no jurisdiction to the 
Federal Courts of this action, diversity being- 
absent ......................................................................  22

VI. The District Court correctly dismissed the com­
plaint against the corporate bonding company.. 23

Appendix ............................................................................  25



CITATIONS.

Cases.

Barnes Coal Corporation v. Retail Coal Merchants 
Assn., 128 F. 2d 645....................................................... 20

Cain v. Bowlby, 114 F. 2d 519 (2 ) .................................  16

Dennick v. Railroad Co., 103 U. S. 11, 21.....................  7
Dyer v. Kazuhisa Abe, 138 F. Supp. 220 (Reversed 

on other grounds, 256 F. 2d 728).............................  21

Frasier v. Public Service Interstate Transportation 
Co., 254 Fed. 132, 134..................................................... 10

Goodsell v. Hartforxl R. Co., 33 Conn. 55.....................  8

Hoffman v. Halden, 268 F. 2d 280 (38).........................  19

In re Stnpp, Fed. Cases No, 13,563, 23 Fed. Cas. at 
page 299............................................................................  21

Lee v. Pure Oil Co., 218 F. 2d 711.................................  8

Martin v. Baltimore & Ohio Railroad, 151 U. S. 673,
674 .................................................................................... 21

Mejia et al. v. United States, 152 F. 2d 686, 6 8 7 .... 8
Michigan Central R. Co. v. Yreeland, 227 U. S. 59, 57

L. Ed. 417........................................................................  22
Mobile Life Insurance Company v. Brame, 95 IT. S, 54. 7

Silverman v. Travelers Insurance Company, 277 F. 2d
257, 261 (1960)................................................................  8

St. L., S. F. & T. R. Co. v. Seale, U. S. C. A., Title 45,
§51, note 1556................................................................  17

The Harrisburg, 119 LT. S. 199......................................... 8
The Vessel M /V  “ Tungus,”  etc., et al. v. Skovgaard, 

decided February 24, 1959, 358 U. S. 588, 79 S. Ct.
503 .................................................................................... 8

United States v. Bowen, 100 U. S. 508 (1) 513.......... 19
United States v. Durrance et al., 101 F. 2d 109, 110. . 8
United States v. Hirsch, 100 U. S. 33, 35.......................  19

i i



I l l

Statutes.

IT. S. C. A., 1 to 4, pages 3 and 4 .................................  18
United States Code, Compact Edition, Complete to

December 3, 1928......................................... ................. 18, 20
28 U. S. C., § 1331................................................................  2
28 U. S. C., § 1343 (1), (2), (3) and (4 ) ............................ 2
28 U. S. C., § 1391 ( c ) ......................................................... 4
28 U. S. C. A., Rule 69..................................................... 20
42 U. S. G., §1981............................................................... 2,5
42 U. S. U, § 1983............................................................... 3,5
42 U. S. C., § 1985 (3 ) .............................. 4,5,6,11,13,14,16
42 IT. S. C., § 1986.......................................... 5,6,11,14,16,17
42 U. S. C., § 1988........................................................ 5,6,19

Constitution.

United States Constitution, Fourteenth Amendment,
Sec. 1................................................................................... 2

Texts.

16 American Jurisprudence, p. 35.................................  7
The Congressional Globe, April 19-20, 1871, p. 804.12,14,15



UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT,

IN THE

No, 18,620.

HATTIE BRAZIER, 
Appellant,

v,
W, B. CHERRY et al., 

Appellees,

Appeal from the United States District Court 
for the Middle District of Georgia,

BRIEF OF COUNSEL FOR APPELLEES.

STATEMENT OF THE CASE.

This is an appeal from a judgment of the United States 
District Court for the Middle District of Georgia sustain­
ing a motion to dismiss an action brought in that court 
under the Civil Eights Acts. The appellant, individually 
and as administratrix of her husband’s estate, sought 
damages for his alleged beating by police officer defend­
ants, and his consequent death. In the same action she 
sought to recover $10,000.00 from the corporate surety for 
one of the officers (R. 7).



9

We deem it important to call to the attention of this 
Court at the outset the bases upon which jurisdiction of 
the District Court was invoked (R. 2-3).

The first basis is Title 28, IT. S. § 1331.

The pertinent portion of this section is:
“ The district courts shall have original jurisdic­

tion of all civil actions wherein the matter in contro­
versy exceeds the sum or value of $10,000 exclusive 
of interest and costs, and arises under the Constitu­
tion, laws or treaties of the United States.”

Appellant alleged (R. 2) that this was “ a civil action 
arising under the Constitution and laws of the United 
States, to wit: The Fourteenth Amendment . . . Section 
1, and Title 42, United States Code, Section 1981, wherein 
the matter in controversy exceeds the sum of $10,000.00 
exclusive of interest and cost.”

The next basis:

Title 42, U. S. C., §1981, is:
“ All persons within the jurisdiction of the United 

States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of per­
sons and property as is enjoyed by wrhite citizens, and 
shall be subject to like punishment, pains, penalties, 
taxes, licenses, and exactions of every kind, and to 
no other.” 1

The jurisdiction of the court was also invoked under 
Title 28, United States Code, Section 1343 (1), (2), (3) 
and (4) (R. 2).

l  Of that section, the District Judge said in his opinion: “ Section 1981 
provides for equal rights under the law, but does not create any civil 
action for deprivation o f such rights” (R. 27).



That Section is:
“ The district courts shall have original jurisdiction 

of any civil action authorized by law to he com­
menced by any person: (1) To recover damages for 
injury to his person or property, or because of the 
deprivation of any right or privilege of a citizen of 
the United States, by any act done in furtherance of 
any conspiracy mentioned in Section 1985 of Title 42;

“ (2) To recover damages from any person who 
fails to prevent or to aid in preventing any wrongs 
mentioned in Section 1985 of Title 42 which he had 
knowledge were about to occur and power to prevent;

“ (3) To redress the deprivation, under color of any 
State law, statute, ordinance, regulation, custom or 
usage, of any right, privilege or immunity secured 
by the Constitution of the United States or by any 
Act of Congress providing for equal rights of citizens 
or of all persons within the jurisdiction of the United 
States.

“ (4) To recover damages or to secure equitable or 
other relief under any Act of Congress providing for 
the protection of civil rights, including the right to 
vote. ’ ’2

It was next stated in the complaint (R. 2): “ This ac­
tion is authorized by Title 42, United States Code, Sec­
tion 1983 . . . ”

That section provides:
“ Every person who, under color of any statute, or­

dinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within

2 Of that section, the D istrict Judge said in his opinion: “ This section 
gives the district courts jurisdiction only o f civil actions ‘authorized by 
law to be com m enced.’ Thus, the question arises whether the com plaint 
sets forth an action ‘authorized by law to be com m enced’ ” (R. 27).



4 -

the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Con­
stitution and laws, shall he liable to the party injured 
in an action at law, suit in equity, or other proper 
proceeding for redress.”  (Emphasis supplied.)3

The jurisdiction of the Court was also invoked under 
Title 28, United States Code, Section 1391 (c) . . .
(R. 3).

That section is:
“ A corporation may be sued in any judicial dis­

trict in which it is incorporated or licensed to do busi­
ness or is doing business, and such judicial district 
shall be regarded as the residence of such corporation 
for venue purposes.”

The sole applicability of that section to this case would 
be as to the phase of the controversy between the appel­
lant and The Fidelity and Casualty Company of New 
York, surety for one of the appellees.

Finally, appellant characterizes this action thus:
“ This is an action for redress pursuant to injury 

to a citizen by virtue of a conspiracy, whereby a per­
son is injured in his person and deprived of having 
and exercising rights and privileges as a citizen, for 
which damages in this suit are sought against one or 
more conspirators”  (R. 3).

To support the action thus characterized, she invoked 
Title 42, United States Code, Section 1985 (3), the perti­
nent portion of which is:

•'i Of this section and Section, 1985 which will be hereinafter alluded to, 
the D istrict Judge said in his opinion: “ These sections which create 
causes of action to redress deprivations of civil rights vest such causes 
o f action in the party injured or deprived. Neither section provides for 
the survival o f the right of action after the death of the 'party injured.’ 
Therefore, this court must answer the question whether, in the absence 
of a statutory provision, for survival, a right of action for deprivation of 
civil rights is extinguished by the death of the ‘party injured or de­
prived’ ”  (R. 28).



“  . . . in any case of conspiracy set forth in this 
section, if one or more persons engaged therein do, 
or cause to be done, any act in furtherance of the 
object of such conspiracy, whereby another is injured 
in his person or property, or deprived of having and 
exercising any right or privilege of a citizen of the 
United States, the party so injured or deprived may 
have an action for the recovery of damages, occa­
sioned by such injury or deprivation, against any one 
or more of the conspirators.” 4 (Emphasis added.)

We respectfully urge the Court to notice particularly 
that neither in her complaint (R. 2-9), nor in the amend­
ment thereto (R. 15-19), did the appellant invoke, rely 
upon, or even mention Title 42, U. S. C., § 1986, or Title 
42, U. 8, C., 1988.

The failure to invoke either of these sections becomes 
the more important when the Court perceives that, prior 
to the filing of her amendment, we, on behalf of the pres­
ent appellees, had filed a motion to dismiss under Rule 
12 (b) in which we asserted that the plaintiff had no 
cause of action either under the Fourteenth Amendment 
standing alone, or under Title 42, U. S. C., § 1981, or 
under Title 42, II. 8. C., 1983, or under Title 42, U. S. 0., 
1985 (3) (R. 10-12).

In that motion we contended:
# # # * * * #

(d) The Fourteenth Amendment, standing alone, does 
not entitle the plaintiff to recover on the allegations of 
her complaint;

(e) Title 42, U. 8. 0., §1981, creates no right of action 
in appellant;

(f) The action was not authorized by Title 42, U. S. C., 
§ 1983, for that any right of action which may have been

4 See note 3, supra.



given to Brazier thereby, did not survive or inure to the 
benefit of appellant;

(g) The action was not authorized by Title 42, U. S. C., 
§ 1985 (3), for that any right of action which may have 
been given to Brazier thereby did not survive and inure 
to the benefit of appellant (R. 10-11).

In that motion we explicitly set out that Title 42, 
IT. S. C., 1983, and 1985 (3), were derived from the Act of 
April 20, 1871, and that “ the only section of that Act 
which provides for the survival of any cause of action 
upon the death of any party due to alleged wrongful acts 
of the nature alleged in the complaint is section 6, now 
codified as Title 42, United States Code, Section 1986. If 
the plaintiff has any cause of action under that section, it 
would be limited to the recovery of $5,000.00 if com­
menced within one year after the accrual of the cause of 
action. This action was not so commenced”  (R. 11-12).

Twenty-one days after we filed that motion, the plain­
tiff-appellant filed an amendment to her complaint (R. 13- 
19). But- neither in it nor elsewhere prior to the filing of 
her brief in this Court did she “ invoke”  Title 42, U. S. C., 
§ 1986, or any portion of it.

The Court granted our motion to dismiss the complaint 
as amended. The grant was accompanied by an opinion 
(R. 25-30).

Ten days later, plaintiff filed a “ Motion for Reconsider­
ation”  (R. 31-2). In it, she claimed no rights under Title 
42, U. S. C., § 1986, or 42 U. S. C., § 1988.

This is true despite the fact that in our reply to the mo­
tion for reconsideration, we again called attention to § 6 of 
the Act of 1871 (42 U. S. C., § 1986) (R. 34-35).

The Court, two months later (August 11, 1960), filed a 
second opinion and order denying appellant’s motion for 
reconsideration (R. 39).

—  6 —



■— 7 •—

ARGUMENT,

T.

Appellant does not have an action for wrongful death 
under Title 42, U. S. C., 1981, 1983 or 1985. Neither does 
any one of these sections provide for a survival to her of 
any cause of action which her husband may have had.

It is a general rule of the common law that no action 
will lie to recover damages for the death of a human 
being occasioned by the negligent, or other wrongful, act 
of another, however close may be the relation between the 
deceased and the plaintiff' and however clearly the death 
may involve pecuniary loss to a plaintiff.5

The earliest expression of this rule by the Supreme 
Court of the United States seems to have been in 1877 in 
the case of Mobile Life Insurance Company v. Brame, 95
U. S. 54. There at page 56, the Court said:

“ The authorities are so numerous and so uniform 
to the proposition that by the common law no civil 
action lies for an injury which results in death, that 
it- is impossible to speak of it as a proposition open to 
question. ’ ’

And at page 759, is this statement: “ By the common 
law, actions for injuries to the person abate by death, and 
cannot be revived or maintained by the executor or the 
heir.”

Three years later the Court said: “ The right to recover 
for an injury to the person, resulting in death, is of very 
recent origin, and depends wholly upon statutes of the 
different States.”

Dennick v. Railroad Co., 103 U. S. 11, 21.
r> 16 Am erican Jurisprudence, p. 35.



-—  8 —

This Court is, of course, fully cognizant of the principle 
having applied it frequently, e. g .:

In United States v. Durrance et ah, 101 F. 2d 109, 110: 
“ Therefore, in cases like this, the right of recovery is 
entirely dependent upon statutory law.”

In Mejia et al. v. United States, 152 F. 2d 686, 687, “ The 
right to claim damages for death exists by statutory pro­
visions alone.”

In Silverman v. Travelers Insurance Company, 277 F.
2d 257, 261 (1960): “ In the common law there was no 
right of action for wrongful death.”

In The Vessel M/V “ Tungus,” etc., et al. v, Skovgaard,
decided February 24, 1959, 358 U. S. 588, 79 S. Ct. 503, 
Justice Stewart, writing for the majority, began “ as did 
the Court of Appeals with the established principle of 
maritime law that in the absence of a statute there is no 
action for wrongful death.”

He cited The Harrisburg, 119 U. S. 199—one of the 
foundation stones. It had cited Goodsell v. Hartford R. 
Co., 33 Conn. 55, in which the Court had said:

“ It is a singular fact, that by the common law 
the greatest injury which one man can inflict on an­
other, the taking of his life, is without a private 
remedy. ’ ’

Justice Stewart, while on the United States Court of 
Appeals for the Sixth Circuit, had written for the Court 
in Lee v. Pure Oil Co., 218 F. 2d 711, and said:

“ The right to recover for wrongful death exists, if 
it exists at all, by virtue of some statute, state or 
federal. ’ ’

For this action to have been maintained in the Federal 
Court there must have been a federal statute giving the



appellant a cause of action for the alleged wrongful death 
of her husband. The District Judge said there was none 
(R. 29) and hence dismissed the action (R. 30).

Counsel for the appellant filed their motion for recon­
sideration bringing “ to the court’s attention for the first- 
time in their brief submitted with their motion for recon­
sideration a decision by Judge John P. Barnes, Chief 
Judge of the United States District Court for the North­
ern District of Illinois holding that ‘ party injured’ as 
used in Section 1983 includes the administratrix of the 
estate of one who was killed in violation of that section. 
Davis v. Johnson, 138 F. Supp. 572 (N. D. 111. 1955)”  (R. 
31; R. 39-40).

We filed a reply to this motion and to the brief with 
respect to it. That reply appears in the record in full 
(R. 32-39) so there appears no need to burden this brief 
with a repetition of all that was said there.

Again the District Judge wrote an opinion (R. 39-43) 
and denied the motion for reconsideration. In the course 
of it he used these cogent sentences: “ The plaintiff, ad­
mitting that there is no specific survival provision in the 
civil rights act, claims that, as the result of a personal 
tort committed against her husband resulting in his death, 
her property has been injured. If she were legally cor­
rect there would be no need for wrongful death statutes”  
(R. 43).

In her brief here (pages 9-12), appellant reiterates this 
position. She, referring to Section 1985 (3), continues to 
assert that Congress had one situation in mind when it 
used the phrase “ the party so injured or deprived.”  As 
the trial judge said: “ If she were legally correct there 
would be no need for wrongful death statutes.”

She is seeking from this court not adjudication but 
legislation.

— 9 •—-



10

She argues that “ every American jurisdiction has either 
a wrongful death or survival statute . . . Indeed, the 
prevalence of these statutes is so widespread that they 
may now be said to constitute the general law.”

She would have the courts amend the civil rights acts 
by adding to them what she considers to constitute the 
“ general law.”

In Frasier v. Public Service Interstate Transportation 
Co., 254 Fed. 182, 134, Judge Medina speaking for the 
Court said:

“ The common law did not recognize any cause of 
action arising from the death of a person due to the 
negligent or wilful act of another, . . . but statutes 
collected in note, 39 Iowa L. Rev. 494, 495, n. 5 (1954),B 
and constitutional provisions adopted in some of the 
states, see 16 Am. Jur., Death, § 51, have created a 
right to sue and recover damages based on such a 
wrongful death. . . . Similarly, the state statutes 
creating an action for wrongful death differ in many 
respects, the most important differences being found 
in their provisions regarding who may bring the 
action, the time limitation . . ., the method of 
measuring damages, and the limitation on the amount 
of damages reasonable . . . Because of the differ­
ences among the state statutory provisions regarding 
the damages recoverable in a wrongful death action, 
the amount actually recovered is often dependent upon 
the statute under which the action is brought.”

Under what statute is this action brought?

She brings it individually and as administratrix of the 
estate of James Brazier (E. 2).

What statute authorizes such?
« This is cited at page 9 of appellant’s brief.



— 11 —

She first sued for $170,448.00 (R. 4). By amendment 
she increased that figure to $180,448.00 (R. 16-17).

She first sued for $120,448.00 for “ General Damages”  
(R. 7). She amended so as to ask $10,000.00 additional 
for the “ injuries upon the head, scalp and body of the 
said James C. Brazier”  (R. 18).

She sued for “ Smart Damages”  in the sum of $50,000.00 
(R. 14) (R. 19).

What, statute authorizes any such damages? What stat­
ute authorizes the “ reasonable attorney’s fees for which 
she sues” ? (R. 7, par. 15.)

II.

The survival provision in § 6 of the Civil Rights Act of 
April 20, 1871 (42 U. S. C., § 1986), does not authorize the 
institution and maintenance of the suit at bar.

Appellant’s counsel now argue: “ The survival provision 
of § 1986 was intended by the framers also to cover Sec­
tion 1985 as the legislative history clearly reveals.”

Before disputing and debating that premise let us say 
that no such contention was made in the court below. The 
District Judge decided the case on the basis of the plain­
tiff having admitted “ that there is no specific survival 
provision in the civil rights act.”  Now the plaintiff- 
appellant contends that the survival provision of § 6 of the 
Act (Title. 42, U. S. C., §1986) applies to actions under 
§ 2 of the Act [Title 42, U. S. G, 1985 (3)].

Some of counsel for the appellant here were of counsel 
for appellees in Board of Supervisors, etc., v. Ludley et al., 
252 P. 2d 372, wherein this court said: “ Moreover, this 
point was not urged in the court below and need not be 
considered on this appeal”  (op. cit. p. 377).

That decision, and those upon which it is based, per­
haps will dispose of this contention of appellant.



We are not content to rest our opposition to it on that 
basis alone.

The legislative history of the 1871 Civil Rights Act is 
extensive.

It reveals that this Act had its origin in H. R. No. 320—• 
42nd Congress. On April 20, 1871, the Senate and House 
were in disagreement. One of the causes of the disagree­
ment was what was called the “ Sherman amendment.” 7 
It sought to impose liability on towns and counties in 
certain events. There was no question “ before the House”  
as to any survival provision or as to the creation of any 
right of action in the event of the death of the person 
injured or deprived (The Congressional Globe, April 19- 
20, 1871, p. 804). Representative Poland rose “ for the 
purpose of making a privileged report.”  He presented 
the report of conference on the disagreeing votes of the 
two Houses on House bill No. 320.

In it, it was proposed “ that the two Houses agree to a 
substitute for the twenty-first Amendment of the Senate, 
as follows:

7 The Sherman Am endm ent was as follow s:
“ That if any house, tenement, cabin, shop, building, barn, or granary 

shall be unlawfully or feloniously dem olished, pulled down, burned, or 
destroyed, wholly or in part, by any persons riotously and tumultuously 
assem bled together; or if any person shall unlawfully and with force and 
violence be whipped, scourged, wounded, or killed by any persons riot­
ously and tumultuously assem bled together; and if such offense was com ­
mitted to deprive any person o f  any right conferred upon him by the 
Constitution and laws of the United States, or to deter him or punish him 
for exercising such right, or by reason of his race, color, or previous 
condition of servitude, in every such case the inhabitants of’ the county, 
city, or parish in which any of the said offenses shall be com m itted shall 
be liable to pay full com pensation to the person or persons damnified by 
such offense if living, or to his w idow or legal representative if dead; 
and such com pensation may be recovered by such person or his repre­
sentative by a suit in any court o f the United States of com petent juris­
diction in the district in which the offense was com m itted, to be in the 
name of the person injured, or his legal representative, and against said 
county, city, or parish. And execution may be issued on a judgm ent ren­
dered’ in such suit and may be levied upon any property, real or per­
sonal, of any person in said county, city or parish, and the said county, 
city, or parish may recover the full amount o f such judgment, costs and 
interest, from  any person o r  persons engaged as principal or accessory 
in such ’ riot in an action in any court of com petent jurisdiction .”



— 13 -

“ Sec. 6. And be it further enacted That any person or 
persons having knowledge that any of the wrongs con­
spired to be done and mentioned in the second section of 
this act are about to be committed, and having power to 
prevent or aid in preventing the same, shall neglect or 
refuse so to do, and such wrongful act shall be committed, 
such person or persons shall be liable to the person in­
jured, or his legal representatives, for all damages caused 
by any such wrongful act, which such first-named person 
or persons by reasonable diligence could have prevented; 
and such damages may be recovered in an action on the 
case in the proper circuit court of the United States, and 
any number of persons guilty of such wrongful neglect or 
refusal may be joined as defendants in such action: Pro­
vided, that such action shall be commenced within one 
year after such cause of action shall have accrued. And 
if the death of any person shall be caused by any such 
wrongful act and neglect, the legal representatives of such 
deceased person shall have such action therefor, and may 
recover not exceeding $5,000 damages therein for the ben­
efit of the widow of such deceased person, if any there be; 
but if there be no widow, for the benefit of the next of 
kin of such deceased person.”  (Emphasis added.) (Ibid, 
p. 804.)

At the outset let it be noted that the proposed section 
6 in the language first hereinabove emphasized creates by 
its very words a liability to the person injured or his legal 
representative. On the contrary, section 2 of the act, now 
codified as Title 42, U. S, C., 1985 (3) creates a right of 
action only in favor of “ the party so injured or deprived”  
omitting any mention there of the personal representative 
of the party so injured or deprived.

Furthermore in section 6 the right of action created 
in favor of legal representatives depends upon death hav­
ing been caused not merely by “ any such wrongful act”  
but by “ any such wrongful act and neglect” .



— 14

In section 2 as it appears in Chapter XXII, Forty-Second 
Congress, Sess. 1, there is no right of action created except 
in “ the person so injured or deprived” . In section 6, the 
right is given to person injured or his legal representative. 
(In an amount not exceeding Five Thousand Dollars.)

In the United States Code of 1926, section 2 appears as 
Title 8, § 47. The only right of action conferred is on the 
“ party so injured or deprived” . Section 6 appears as 
Title 8, § 48. It follows the language of the 1871 act, and 
continues the right of action under it, for the wrongful 
act and neglect, not only in favor of party injured but also 
in favor of his legal representatives. (Still limited in 
amount to $5,000.00.)

These differences continue to this day as the act is codi­
fied in Title 42, United States Code. Title 42, U. S. C., 
1985 (3) vests the right of action only in “ the party so 
injured or deprived” ; Title 42, U. S. C., 1986 continues 
the right of action (in an amount not. exceeding $5,000.00 
damages) in the party injured, or his legal representative 
if the death “ be caused by any such wrongful act and 
neglect. ’ ’

Representative Poland made no mention in his state­
ment of any reason for permitting a right in personal rep­
resentatives in Section 6 actions but not in section 2 ac­
tions.8 He did not refer to or discuss the subject.

Our investigation of the legislative history of section 6 
was prompted by a purported quotation from the Congres­
sional Globe of remarks of Representative Shellabarger, 
appearing on page 7 of appellant’s brief. The first eighteen 
words of the quotation are: “  That if the death of a party 
shall be occasioned, there shall still be a right of action.”  
These words do not form a complete grammatical sentence. 
Hence, we wondered. Fortunately, we had access, too, to

8 In the opinion o f the D istrict Judge (R . 42) the trial judge treats of 
possible reasons for the differentiation.



this volume of the Congressional Globe. The Congres­
sional Globe discloses that during Mr. Poland’s presenta­
tion, Mr. Cox queried: “ How do you propose to measure 
damages for presumed neglect!”  During Mr. Shellabarg- 
er’s remarks (p. 805) he said: “ Now, here my friend from 
New York (Mr. Cox) asked how the damages should be 
measured, and somebody replied, ‘ Let them be measured 
in a hat.’ But there is one method of measuring damages, 
as it exists in our State, to wit: that if the death of a party 
shall be occasioned there shall still be a right of action.”  
(Emphasis added.) That is the context of the eighteen 
words. Then followed the balance of the quotation as it 
appears on pages 7 and 8 of appellant’s brief in which he 
gave his “ interpretation” — “ that this language operates 
back upon the second section.”  He was apparently not 
questioned on the subject, and therefore he was not faced 
with the utter differences between the language of the 
second section and the language of the sixth to which 
differences we have alluded.

The conference committee report was agreed to—yeas 
93, nays 74, not voting 63 (Op. cit. p. 808).

The author of appellant’s brief deems the enactment of 
the proposed legislation to have been a sustaining of Rep­
resentative Shellabarger’s position. We daresay that what 
the Representative was talking about when he said, “ 1 
do not know that I will be sustained in that, that this 
language (referring to the language of survival) operates 
back upon the second section [1985]),”  was a “ sustain­
ing”  by the courts.

His language denotes a doubt even in his mind as to his 
opinion. No one else seems to have discussed that par­
ticular question at that time.* It comes up now 90 years 
later for apparently its first adjudication in court. We

* W e have not examined the entire volum e of the Congressional Globe.



—  16 —

respectfully submit that in adjudicating it, the Court 
should give heed to those features which show the utter 
differences in the language used by Congress in § 2 and 
§6. Not only that but also—the statute is in derogation 
of the common law and is therefore to be construed strictly. 
Cain v. Bowlby, 114 F. 2d 519 (2).

ITT.

Even if § 6 of the act of 1871 (42 U, S. 0., § 1986) should 
he construed to apply to actions created under § 2 of the 
Act of 1871 [42 U. S. C., § 1985 (3)], it would not be ap­
plicable to the complaint in this action.

Even if § 6 should be construed to apply to § 2, it would 
not save the complaint in this action.

Praetermitting any present discussion of whether the 
action must have been commenced within one year after 
the cause of action accrued, it is perfectly clear that under 
section 6 “ if the death of any person shall be caused by 
any such wrongful act and neglect, the legal representa­
tives of such person shall have such action therefor, and 
may recover not exceeding five thousand dollars damages 
therein, for the benefit of the widow of such deceased per­
son, if any there be, or if there be no widow, for the bene­
fit of the next of kin of such deceased person.”

Therefore, if there is any right of action for death oc­
casioned by the injury alluded to in § 2, that right of action 
is a statutory one, the complainant must be the personal 
representative of the deceased, and damages are limited 
to $5,000.00.

To paraphrase the language of Judge Hutcheson in 
Roth v. Cox, 210 F. 2d 76, 81, if section 6 is now invoked, 
must not the appellant ‘ ‘ take the statutory cause of action 
cum onere, the bitter with the sweet” ?



-— 17 -

Even if these latest contentions of counsel for the appel­
lant as to the application of § 6 to § 2 are correct, the 
right of action which would thereby be created would be 
one not declared upon by appellant nor relied upon in her 
complaint. On the contrary, the complaint is brought by 
Hattie Brazier, Individually and as Administratrix of the 
estate of James Brazier, plaintiff. It seeks damages of 
every conceivable nature plus attorneys’ fees (E. 7).

The situation may be analogized in some respects to a 
suit under the Federal Employers’ Liability Act. Where 
it is applicable, no one but the personal representative 
can maintain the action, and the damages recoverable are 
only those permitted by the statute.

St. L., S. F. &  T. B, Co. v. Seale, U. S. C. A., Title 4b, 
§ 51, note 1556.

We have thus far praetermitted any discussion of the 
statute of limitations which is a part of the right of action 
created by § 6 of the 1871 Act.

Of it, counsel for the appellant say in their brief: “ It 
will be noted that the sentence following the survival pro­
vision contains a one year statute of limitation. This, 
however, refers to the section and not to the act, other 
portions of which have been held to be controlled by the 
appropriate state statute of limitation. See O’Sullivan v. 
Felix, 233 U. S. 318; Johnson v. Yeilding, 165 F. Supp. 76.”  
(Footnote, page 8)

The phrase “ this section”  occurs in the codification of 
§ 6 of the 1871 act (42 U. S. C., § 1986). It does not ap­
pear in the original act. Section 6 of the original act 
creates the liability for wrongful act and neglect and then 
has this proviso: “ Provided, That such action shall be 
commenced within one year after such cause of action shall 
have accrued; and if the death of any person shall be



— 18 —

caused by any such wrongful act and neglect, the legal rep­
resentatives of such deceased person shall have such action 
therefor, and may recover not exceeding live thousand 
dollars damages therein, for the benefit of the widow of 
such deceased person, if any there be, or if there be no 
widow, for the benefit of the next of kin of such deceased 
person”  (Emphasis added).

If the proviso should be carried forward so as to permit 
a right of action for death under § 2, there must be carried 
forward with it all limitations and provisions contained 
in the proviso of the original act. (The original act ap­
pears in full in the Appendix hereto.)

The Code of the Laws of the United States of America 
(United States Code) was adopted by an act passed by the 
Sixty-ninth Congress entitled “ An Act to Consolidate, 
Codify and Set Forth the general and permanent laws of 
the United States in force December seventh, one thousand 
nine hundred and twenty-five.”  That act appears in full 
in U. S. C. A. 1 to 4, pages 3 and 4, and United States 
Code, Compact Edition, complete to December 3, 1928, 
page (1).

It provides in part:
“ In case of any inconsistency arising through omis­

sion or otherwise between the provisions of any 
section of this Code and the corresponding portion of 
legislation heretofore enacted effect shall be given for 
all purposes whatsoever to such enactments.”

That enactment is a legislative declaration of what the 
Supreme Court had previously said with respect to the 
older compilation known as the “ Revised Statutes,”  to 
w it:

“ It must be admitted that in construing any part 
of the Revised Statutes it is admissible, and often



19 —

necessary, to recur to its connection in the act of which 
it was originally a part.”

United States v, Hirsch, 100 IT. S. 33, 35.

The Court may recur to the original statutes “ when 
necessary to construe doubtful language used in the re­
vision. ’ ’

United States v. Bowen, 100 IT. S. 508 (1) 513.

So, even if the court should deem section 6 applicable 
to section 2, there would thereby be created a statutory 
action for death to be instituted by the personal represent­
ative of the deceased within one year after the cause of 
action accrued, with recovery limited to live thousand 
dollars. The action under review meets no one of the 
tests.9

We have not overlooked Hoffman v. Halden, 268 F. 2d 
280 (38) which we do not deem controlling. The court 
there said: “ The problem of the statute of limitations is 
very much in the case . . . neither appellant nor respond­
ents have adequately analyzed or briefed the problems 
pertaining to such issue.”

Additionally, the question at issue here was not an issue 
there.

IV.

Appellant has no right of action under Georgia wrongful 
death and survival statutes by virtue of the provisions of 
Title 42, U. S. C., Section 1988.

That section is set out in full at page 13 of appellant’s 
brief. It is derived from Acts April 9, 1866, c. 31, §3, 14 
Stat. 27; May 31, 1870, c. 114, § 18, 16 Stat. 144.

9 James Brazier’s injuries were allegedly sustained April 20-21, 1958 
(Complaint, § 7, R. 5 ); he died April 25, 1958 (R. 4 ); the action was insti­
tuted April 19, 1960 (R. 2).



— 20

In the “ United States Code, Compact Edition, complete 
to December 3, 1928“  it appeared as Title 28, § 729 under 
Chapter 18—Procedure. It so remained in the 1946 Edition 
of the United States Code. That this section does not en­
compass substantive rights but merely procedural matters 
may be demonstrated by the note of the Advisory Com­
mittee under Rule 69, 28 U. S. C. A.

The section does not create a right of action. It merely 
provides for the enforcement of such rights of action and 
causes of action as may have been created by the Congress.

In Barnes Coal Corporation v. Retail Coal Merchants 
Assn., 128 F. 2d 645, at page 649, Circuit Judge Parker 
speaking for the court said:

“  . . . it is well settled that with respect to a cause 
of action created by act of Congress, the question of 
survival is not one of procedure but one which depends 
‘ on the substance of the cause of action.’ Schreiber 
v. Sharpless, 110 U. S. 76, 80, . . .; Martin’s Admr. 
v. Baltimore & 0. R. Co., 151 U. S. 673, 692 . . . And, 
unless the cause of action as so created by Act of Con­
gress survives, it does not survive by reason of state 
law. Michigan Central R. Co. v. Vreeland, 227 U. S. 
59, 67; 33 S. Ct. 192, 57 L. Ed. 417; . . . ”  (Emphasis 
added).

In the Schreiber case, supra, at page 80, the court said: 
“ If the cause of action survives, the practice, pleadings 
and forms and modes of proceedings in the courts of the 
State may be resorted to in the courts of the United States 
for the purpose of keeping the suit alive and bringing in 
the proper parties. Rev. Stat. § 914. But if the cause of 
action dies with the person, the suit abates and cannot be 
revived” (Emphasis supplied).

“ The question whether a cause of action survives 
to the personal representative of a deceased person,



— 21 —

is a question not of procedure, but of right; and, 
when the eause of action does not arise under a law 
of the United States, depends upon the law of the 
State in which the suit is brought.”

Martin v. Baltimore &  Ohio Railroad, 151 U. S. 
673, 674 (Emphasis added).

It follows that if the cause of action does arise under a 
law of the United States, the question of survival does not 
depend upon the law of the State in which the suit is 
brought.

It follows, too, that if the cause of action involved in the 
complaint here does not arise under a law of the United 
States, the Federal Court in which it was instituted had no 
jurisdiction.

“ Congress does not have to provide a federal forum 
for every statutory right it creates, but recovery or 
relief cannot be had in Federal District Court under 
the Civil Rights Act without existence of jurisdictional 
basis in statute defining original jurisdiction of the 
Federal District Courts. 28 U. S. C. A.., §1343 (3), 
42 U .S .C . A., §1983.”

Dyer v. Kazuhisa Abe, 138 F. Supp. 220 (Reversed 
on other grounds, 256 F. 2d 728).

At pages 228-9 of the opinion in the case just cited is: 
“  . . . Fourteen Stat. 27, as amended, 42 U. S. C. A., § 1988, 
does not aid plaintiff in this regard. It has reference to 
procedure, not jurisdiction.”

“ . . . section 722 (now Title 42, U. S. C., § 1988) 
manifestly has reference not to the rules of decision, 
but to the forms of process and remedy.”

In re Stupp, Fed. Cases No. 13,563, 23 Fed. Cas. 
at page 299.



— 22 —

y .

Georgia’s Death Statute (§ 105-1302) (appellant’s brief, 
page 14) gives no jurisdiction to the Federal Courts of 
this action, diversity being absent.

This proposition is squarely decided by the Supreme 
Court in Michigan Central R. Co. v. Vreeland, 227 U. S. 
59, 57 L. Ed. 417, which we cited to the District Judge. In 
his original opinion in this case, he quotes from it:

“ The statutes of many of the states expressly pro­
vide for the survival of the right of action which the 
injured person might have prosecuted if he had sur­
vived. But unless this Federal statute which declares 
the liability here asserted provides that the right of 
action shall survive the death of the injured employee, 
it does not pass to his representative, notwithstanding 
state legislation. The question of survival is not one 
of procedure, ‘ but one which depends on the substance 
of the cause of action’ . . . Nothing is> better settled 
than that, at common law, the right of action for an 
injury to the person is extinguished by the death of 
the party injured. The rule, ‘ actio personalis moritur 
cum persona’ applies, whether the death from the 
injury be instantaneous or not”  (R. 28-29).

The District Judge was quoting from page 67 of the 
opinion.

The fourth headnote of this opinion as it appears 227 
U. 8. 59, is: “ A Federal statute upon a subject exclusively 
under Federal control must be construed by itself and 
cannot be pieced out by state legislation. If a liability does 
not exist under the Federal Employers’ Liability Act of 
1908, it does not exist, by virtue of any state legislation on 
the same subject.”

In their discussion of this phase of the case, counsel for 
the appellant have not even alluded to the Vreeland case. 
It is apt and controlling.



— 23 —

VI.

The District Court correctly dismissed the complaint 
against the corporate bonding company.

It is not alleged that the bonding company was guilty of 
any violation of any Civil Eights Act with respect to 
James Brazier.

Therefore any right which the plaintiff may have to sue 
the bonding company in the Federal Court arises from the 
diversity jurisdiction of the court.

With respect to that issue, the District Judge said in 
his opinion:

“ Plaintiff also attempts to invoke the diversity 
jurisdiction of this court, alleging that defendant 
Fidelity and Casualty Company of New York is a 
New York corporation. But this court does not have 
diversity jurisdiction unless all defendants are citizens 
of states diverse from the state of plaintiff’s citizen­
ship. Russell v. Basila Mfg. Co., 246 F. 2d 432 . . . 
It affirmatively appears from plaintiff’s complaint that 
plaintiff is a citizen of Georgia, and the individual 
defendants, being public officers of Dawson or Terrell 
County, Georgia, are obviously citizens of this state 
also. Therefore, diversity jurisdiction is lacking. Even 
if Fidelity and Casualty Company of New York were 
the sole defendant named, the court would still lack 
jurisdiction for the reason that plaintiff’s complaint 
affirmatively shows that the bond executed by Fidel­
ity as surety is limited to $10,000, while the jurisdic­
tional amount required in a diversity action is more 
than $10,000”  (R, 29-30).

While appellant’s brief asserts (p. 17) that the District 
Court wrongfully dismissed the complaint against the cor­
porate bonding company, and her assertion is briefly dis-



— 24

cussed, there is nothing in it to warrant a different con­
clusion from that reached by the District Court, bolstered 
by the authority cited.

We respectfully assert that, the judgment of the Court 
below was correct and should be affirmed.

ELLSWORTH HALL, JR.,
710' Walnut Street Building, 

Macon, Georgia,
Attorneys for Appellees.

BLOCH, HALL, GROOVER & HAWKINS,
Of Counsel.

This is to certify that I have this day served copies of 
this brief on (1) Donald L. Hollowell, Esq., (2) C. B. King, 
Esq., (3) Jack Greenberg and Tliurgood Marshall, Esq., 
by mailing copies to them by first class mail, postage pre­
paid, addressed to them at the following addresses re­
spectively :

(1) Cannolene Building (Annex)
859% Hunter Street, N. W.
Atlanta, Georgia

(2) 221 South Jackson Street 
Albany, Georgia

(3) 10 Columbus Circle 
New York 19, New York

Certificate of Service.

T h is ..........day of January, 1961.



— 25 —

F O R T Y -S E C O N D  CONGRESS. Sess. I. Ch . 22. 1871. 13

a re  United States, 
&c.;

CHAP. XXII. — An Act to enforce the Provisions of the Fourteenth Amendment to the April 20, 1871.
Constitution of the United States, and for other Purposes. Any person

Be it enacted by the Senate and House o f  Representatives o f the United any ĥiw.'&V.'of 
States o f America in Congress assembled, That any person who, tinder any State, de­
color of any law, statute, ordinance, regulation, custom, or usage o f any o?«nygright &e 
State, shall subject, or cause to be subjected, any person within the secured by the 
jurisdiction of the United States to the deprivation of any rights, privi- ^ n(jj1,i't1' i(°n of 
leges, or immunities secured by the Constitution of the United States, states,"made 
shall, any such law, statute, ordinance, regulation, custom, or usage of liable to the pnr- 
the State to the contrary notwithstanding, be liable to the party injured typ"^eedingsto 
in any action at law, suit in equity, or other proper proceeding for be in the courts 
redress ; such proceeding to be prosecuted in the several district or cir- °f 5ilc United 
cuit courts of the United States, with and subject to the same rights of St̂ 6' c[li 81 
appeal, review upon error, and other remedies provided in like cases in Vol. xiv. p. sr. 
such courts, under thSL.provisi.ons o f the act o f the ninth of April, eigh- 1>en“ !,y !?r 
teen hundred and sixty-six, entitled “  An act to protect all persons m the force to put 
United States in their civil rights, and to furnish the means of their vin- down thezovern- 
dication ”  ; and the other remedial laws of the United States which —  me,lt ot tlle 
in their nature applicable in such cases.

Sec. 2. That if two or more persons within any State or Territory of , or t0 hm!ier ,TT . , ... . , ‘ J J the execution ofthe United Mates shall conspire together to overthrow, or to put down, any law of the
or to destroy by force the government of the United States, or to levy United States; 
war against the United States, or to oppose by force the authority of the propertyTf'the7 
government of the United States, or by force, intimidation, or threat to United States; 
prevent, hinder, or delay the execution of any law of the United States, or 10 Prev!:nt 
or by force to seize, take, or possess any property of the United States hofd,ngTfflcc7m 
contrary to the authority thereof, or by force, intimidation, or threat to under the 
prevent any person from accepting or holding any office or trust or place f|5uc#
of confidence under the United States, or from discharging the duties any officer to 
thereof, or by force, intimidation, or threat to induce any officer of the leave the Sta,ei 
United States to leave any State, district, or place where his duties as or to injure 
such officer might lawfully he performed, or to injure him in his person him in person or 
or property on account of his lawful discharge of the duties o f his office, F'mPer,-v 
or to injure his person while engaged in the lawful discharge of the duties TCntghb"don% 
of his office, or to injure his property so as to molest, interrupt, hinder, his duty; 
or impede him in the discharge o f his official duty, or by force, intimida- 
tion, or threat to deter any party or witness in any court of the United witness from at- 
States from attending such court, or from testifying in any matter pend- 
ing in such court fully, freely, and truthfully, or to injure any such party 1 y"18 ert’  
or witness in his person or property on account o f his having so attended or to injure 
or testified, or by force, intimidation, or threat to influence the verdict, 
presentment, or indictment, o f any juror or grand juror in any court of fying; 
the United Slates, or to injure such juror in his person or property on “  infloenco 
account of any verdict, presentment, or indictment lawfully assented to a„y juror*;* **' 
by him, or on account of his being or having been such juror, or shall or to injure 
conspire together, or go in disguise upon the public highway or upon the couitof hisacts" 
premises of another for the purpose, either directly or indirectly, o f de- &o. ’
priving any person or any class of persons of the equal protection of the Penalty for 
laws, or of equal privileges or immunities under the laws, or for the pur- go!,*| m îsguise 
i ipse of preventing or hindering the constituted authorities of any Stale upon the publio 
from giving or securing to all persons within such State the equal pro- highway, &c. t» 
teetion of the laws, or shall conspire together for the purpose o f in any tonor clots of*" 
manner impeding, hindering, obstructing, or defeating the due course o f equal rights, &e. 
justice in any State or Territory, with intent to deny to any citizen o f the ^o^to prevent’ 
United States the due and equal'protection of the laws, or to injure any the State au- 
person in his person or his property for lawfully enforcing the right o f ! rotectTr.̂ oJl in 
any person or class of persons to the equal protection of the laws, or by their equal0 ”  
force, intimidation, or threat to prevent any citizen of the United States rights, 
lawfully entitled to vote from giving his support or advocacy in a lawful °̂rob_

struct, &c. the



14 FORTY-SECOND CONGRESS. Sess. I. Cn. 22. 1871.

due course of 
justice, &c. in 
any State with 
intent to deny to 
any citizen his 
equal rights 
under the law;

or, by force, 
fee. to prevent 
any citizen en­
titled to vote 
from advocating 
in a lawful man­
ner the election 
ofanv person, 
as, &c.

Courts.
Punishment.
Any conspira­

tor doing, &c. 
any act in fur­
therance of the 
object o f the 
conspiracy, and 
thereby injuring 
another, to be 
liable in dam­
ages therefor.

Proceedings to 
ba in courts of 
the United 
States.

1866, ch. 81.
Yol. xiv. p. 27.

What to be 
deemed a denial 

<by any State to 
any class of its 
people o f their 
equal protection 
uuder the laws.

When the due 
execution o f the 
laws, &c. is ob­
structed by vio­
lence, &c. the 
President shall 
do what he may 
deem necessary 
to suppress 
such violence, 
See.

Persons ar­
rested to be de­
livered to the 
m irshal.

What unlaw­
ful combinations 
to be deemed a 
rebellion against 
the government 
o f the United 
States.

manner towards or in favor o f the election o f any lawfully qualified per­
son as an elector of President or Vice-President ot the United Slates, 
or as a member of the Congress of the United States, or to injure any 
such citizen in his person or property on account of such support or advo­
cacy, each and every person so offending shall he deemed guilty o f a 
high crime, and, upon conviction thereof in any district or circuit court 
of the United States or district or supreme court of any Territory of the 
United Slates having jurisdiction of similar offences, shall be punished by 
a line not less than live hundred nor more than five thousand dollars, or 
by imprisonment, with or without hard labor, as the court may determine, 
for a period of not less than six months nor more than six years, as the 
court may determine, or by both such fine and imprisonment as the court 
shall determine. And if any one or more persons engaged in any such 
conspiracy shall do, or cause to be done, any act in furtherance of the 
object of such conspiracy, whereby any person shall be injured in his 
person or property, or deprived of having and exercising any right or 
privilege of a citizen of the United States, the person so injured or 
deprived of such rights and privileges may have and maintain an action 
for the recovery of damages occasioned by such injury or deprivation of 
rights and privileges against any one or more of the persons engaged in 
such conspiracy, such action to he prosecuted in the proper district or 
circuit court of the United States, with and subject to the same rights 
of appeal, review upon error, and other remedies provided in like cases 
in such courts under the provisions of the act of April ninth, eighteen 
hundred and sixty-six, entitled “  An act to protect all persons in the 
United States in their civil rights, and to furnish the means of their 
vindication.”

S ec. 3. That in all cases where insurrection, domestic violence, un­
lawful combinations, or conspiracies in any State shall so obstruct or 
hinder the execution of the laws thereof, and of the United States, as 
to deprive any portion or class of the people of such State of any of the 
rights, privileges, or immunities, or protection, named in the Constitution 
and secured by this act, and the constituted authorities of such State 
shall either be unable to protect, or shall, from any cause, fail in or re­
fuse protection of the people in such rights, such facts shall be deemed a 
denial by such State Of the equal protection of the laws to which they are 
entitled under the Constitution o f the United States; and in all such 
cases, or whenever any such insurrection, violence, unlawful combination, 
or conspiracy shall oppose or obstruct the laws o f the United States or 
the due execution thereof, or impede or obstruct the due course of justice 
under the same, it shall be lawful for the President, and it shall be his 
duty to take such measures, by the employment o f the militia or the 
land and naval forces of the United States, or o f either, or by other 
means, as he may deem necessary for the suppression of such in-merec­
tion, domestic violence, or combinations; and any person who .-ball be 
arrested under the provisions of this and the preceding section shall he 
delivered to the marshal of the proper district, to be dealt with according 
to law.

S ec. 4. That whenever in any State or part of a State the unlawful 
combinations named in the preceding section of this net shall be organ­
ized and armed, and so numerous and powerful as to be abba by vio­
lence, to either overthrow or set at defiance the constituted authorities 
of such State, and of the United States within such State, or when the 
constituted authorities are in complicity with, or shall connive at the 
unlawful purposes of, such powerful and armed combinations; and 
whenever, by reason of either or all of the causes aforesaid, the convic­
tion of such offenders and the preservation of the public safety shall be­
come in such district impracticable, in every such case such combina­
tions shall be deemed a rebellion against the government of the United



FORTY-SECOND CONGRESS. S ess. I. Ch. 22. 1871. 15

Slates, and during the continuance of such rebellion, and within the 
limits of the district which shall be so under the sway thereof, such limits witlfin êrtain 
to be prescribed by proclamation, it shall be lawful for the President of limits, thePreai- 
the United States, when in his judgment the public safety shall require <**”)jr{jjf4rit of 
it, to suspend the privileges of the writ of habeas corpus, to the end that Kbe»*'rarpu*0 
such rebellion may he overthrown : Provided, That all the provisions of Provision* of 
the second section of an act entitled “ An act relating to habeas corpus, *ggg cj, gj  ̂2 
and regulating judicial proceedings in certain cases,” approved March Vol.’xii. p.’76ti’ 
third, eighteen hundred and sixty-three, which relate to the discharge of made applicable 
prisoners other than prisoners of war, and to the penalty for refusing to 11 pr0(jamatinn 
obey the order of the court, shall be in full force so far as the same are to be fir»t made, 
applicable to the provisions of this section: Provided further, That the &y o, . 424
President shall first have made proclamation, as now provided -by law, Vol. xii. p” 282. 
commanding such insurgents to disperse : And provided also, That the S «  PP s-w-wn. 
provisions of this section shall not be in force after the end of the next notto*tMbn°tirce 
regular session of Congress. after, &c.

S ec. 5. That no person shall be a grand or petit juror in any court of 
the United States upon any inquiry, hearing, or trial of any suit, pro- Certain per- 
ceeding, or prosecution based upon or arising under the provisions o f 'certain
this act who shall, in the judgment of the court, be in complicity with case*, 
any such combination or conspiracy ; and every such juror shall, before Juror* to take 
entering upon any such inquiry, hearing, or trial, take and subscribe an oatl1' 
oath in open court that he has never, directly or indirectly, counselled, 
advised, or voluntarily aided any such combination or conspiracy; and False swear- 
each and every person who shall take this oath, and shall therein swear ihfs oatMo be 
falsely, shall be guilty of perjury, and shall be subject to the pains and perjury, 
penalties declared against that crime, and the first section of the act Repeal of first 
entitled “ An act defining additional causes of challenge and prescribing sectioI> of «ct 
an additional oath for grand and petit jurors in the United States courts,” Vol.6xU.hp !« ’o 
approved June seventeenth, eighteen hundred and sixty-two, be, and the 
the same is hereby, repealed.

S ec. 6. That any person or persons, having knowledge that any of Any person 
the wrongs conspired to be done and mentioned in the second section of certain''wro ŝ 
this act are about to be committed, and having power to prevent or aid are about™be 
in preventing the same, shall neglect or refuse so to do, and such wrong- done, and having 
ful act shall be committed, such person or persons'shall be liable to the Pneg-
person injured, or his legal representatives, for all damages caused by lects’so to do, 
any such wrongful act which such first-named person or persons by “n.y ®uch 
reasonable diligence could have prevented ; and such damages may be hmafienabie’for 
recovered in an action on the case in the proper circuit court of the all damages 
United States, and any number of persons guilty of such wrongful “ suliL'therefor 
neglect or refusal may be joined as defendants in such action: Provided, in court* of the 
That such action shall he commenced within one year after such cause Tmted State*, 
o f action shall have accrued ; and if the death of any person shall be joined'L™efend- 
caused by any such wrongful act and neglect, the legal representatives ant-, 
o f such deceased person shall have such action therefor, and may {fXathta 
recover not exceeding five thousand dollars damages therein, for the caused by such 
benefit o f the widow of such deceased person, if any there be, or if there wrongful act, 
be no widow, for the benefit o f the next of kin o f such deceased person. MntartvMof'de-

S e c . 7. That nothing herein contained shall be construed to supersede ceased may 
or repeal any former act or law except so far as the same may be repug- JjJ"^"j"f0arctioni 
nant thereto; and any offences heretofore committed against the tenor who*e benefit, 
o f any former act shall be prosecuted, and any proceeding already com- Former laws, 
menced for the prosecution thereof shall be continued and completed, the not repealed, 
same as if this act had not been passed, except so far as the provisions Former offen- 
of this act may go to sustain and validate such proceedings. ce* be Profe-

A pfroved , April 20, 1871.