United States v. Price Brief for Appellant

    Nos. 59, 60

Jit M  j&tjime dfourt of to  United states
O ctober  T e r m , 1965

U n it e d  S ta t e s  of  A m e r ic a , a p p e l l a n t

v.

C e c il  R a y  P r ic e , e t  a l .

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI, EASTERN DIVISION

BRIEF FOR THE UNITED STATES

THURGOOD M ARSH ALL,
Solicitor General,

JOHN DOAR,
Assistant Attorney General,

LOTUS F. CLAIBORNE,
Assistant to the Solicitor General, 

GERALD  P. CHOPPIN,
P E T E R  S. SM ITH ,

Attorneys,
Department of Justice, 

Washington, D.C., S05S0.



I N D E X

Page

Opinions Below______________________________________________  1
Jurisdiction__________________________________________________  1
Questions presented_________________   2
Statutes involved____________________________________________ 2
Statement____________________ :______________________________  3
Argument:

Introduction and Summary____________________________  7
I. Section 241 of the Criminal Code protects rights 

secured by the Due Process Clause of the Four­
teenth Amendment____ __________________ :_________  12

A. The text and context of Section 241_________  15
B. The legislative history of Section 241_____ 25

II. Section 242 of the Criminal Code reaches private
individuals who act in association with state 
officers to carry out a scheme to invade rights
secured by the provision_________________________ 28

Conclusion___________________________________________________  36
Appendix____________________________________________________  37
Cases:

Baldwin v. Franks, 120 U.S. 678______________________  20
Baldwin v. Morgan, 251 F. 2d 780____________________ 31, 35
Barron v. United States, 5 F. 2d 799___________________ 34
Burton v. Wilmington Parking Authority, 365 U.S. 715_ 30
Civil Rights Cases, 109 U.S. 1__________________________ 25
DiPreia v. United States, 270 Fed. 73---------------------------  33
Downie v. Powers, 193 F. 2d 760______________________  32
Elk v. Wilkins, 112 U.S. 94____________________________  22
Gebardi v. United States, 287 U.S. 112-------------------------- 10
Griffin v. Maryland, 378 U.S. 130______________________ 30
Guinn v. United States, 238 U.S. 347----------------------  14, 17, 21
Haggerty v. United States, 5 F. 2d 224_________________ 34
Hampton v. City oj Jacksonville, 304 F. 2d 320_______  31
Hodges v. United States, 203 U.S. 1____________________  14
James v. Bowman, 190 U.S. 127-----------------------------------  28
Jin Fuey M oy  v. United States, 254 U.S. 189--------------  9

(T.)
786- 542— 65------------1



II

Cases— Continued Page
Koehler v. United States, 189 F. 2d 711---------------- -------34, 35
Logan v. United States, 144 U.S. 263------------------- 8, 16, 21, 22
Lombard v. Louisiana, 373 U.S. 267-----------------------------  30
M ay  v. United States, 175 F. 2d 994----------------------------- 34
McNeese v. Board of Education, 373 U.S. 668-------------- 31
Melling v. United States, 25 F. 2d 92---------------------------  33
Minor v. ILappersett, 21 Wall. 162--------------------------------  21
Monroe v. Pape, 365 U.S. 167--------------------------------------- 31
Motes v. United States, 178 U.S. 458----------------------------  17, 22
Nye db Nissen v. United States, 168 F. 2d 846, affirmed,

336 U.S. 613_________________________________________  9
Pennsylvania v. Board of Trusts, 353 U.S. 230------------  30
Peterson v. City of Greenville, 373 U.S. 244------------------  30
Pope v. Williams, 193 U.S. 621------------------------------------  21
In re Quarles, 158 U.S. 532_______ _____________________ 16, 22
Reynolds v. Sims, 377 U.S. 533------------------------------------- 31
Ex parte Riggins, 134 Fed. 404-------------------------------------- 13
Robinson v. Florida, 378 U.S. 153--------------------------------- 30
Screws v. United States, 325 U.S. 91---------- 7, 8, 14, 18, 19, 29
Simkins v. Moses H. Cone Memorial Hospital, 323 F.

2d 959________________________________________________  31
Slaughter-House Cases, 16 Wall. 36------------------------------  27
Smith v. Holiday Inns of America, 336 F. 2d 630_____  31
Strauder v. West Virginia, 100 U.S. 303-----------------------  25
Swanne Soon Young Pang v. United States, 209 F. 2d

245___________________________________________________  33
Turner v. City of Memphis, 369 U.S. 350___________  31
United States v. Bayer, 4 Dill. 407, 24 Fed. Cas. 1046.. 34
United States v. Borden Co., 308 U.S. 188_____________  9
United States v. Braverman, 373 U.S. 405_____________  2
United States v. Classic, 313 U.S. 299__________  14, 17, 19, 21
United States v. Cruikshank, 92 U.S. 542______________  14
United States v. Decker, 51 F. Supp. 20_______________  33
United States v. Guest, No. 65, this term__________  16, 22, 28
United States v. Hall, 26 Fed. Cas. 79_________________ 13
United States v. Holte, 236 U.S. 140___________________ 10
United States v. Hvass, 355 U.S. 570___________________ 2, 9
United States v. Knickerbocker Fur Coat Co., 66 F. 2d

388___________________________________________________  33
United States v. Lynch, 94 F. Supp. 1011, affirmed,

189 F. 2d 476, certiorari denied, 342 U.S. 831____ 32, 35



Ill

Cases— Continued Page
United. States v. Mall, 26 Fed. Cas. 1147______________  13
United States v. Melekh, 193 F. Supp. 586____________  34
United Slates v. Mosley, 238 U.S. 383_____ 14, 15, 17, 21, 28
United States v. Palermo, 172 F. Supp. 183__________  33
United States v. Rabinowich, 238 U.S. 78______________  10
United States v. Russo, 284 F. 2d 539________   33
United States v. Saylor, 322 U.S. 385__________________ 17, 21
United States v. Selph, 82 F. Supp. 56_________________ 33
United States v. Snyder, 14 Fed. 554__________________ 33, 34
United States v. Trierweiler, 52 F. Supp. 4____________  10
United States v. Waddell, 112 U.S. 76_____________  16, 21, 22
United States v. J. R. Watlcins Co., 127 F. Supp. 97. _ 33
United States v. Wheeler, 254 U.S. 281_________________ 14
United States v. Williams, 341 U.S. 70________________  12,

13, 14, 15, 18, 22, 23
United States v. Wise, 370 U.S. 405___________________  2
United States v. Woodson, 371 U.S. 12_________________ 2
Valle v. Stengel, 176 Fed. 2d 697______________________  31
Vane v. United States, 254 Fed. 32____________________  33
Ex parte Virginia, 100 U.S. 339_________________ *_____  25
Williams v. United States, 341 U.S. 97______________ 7, 8, 29
Williams v. United States, 179 F. 2d 644, affirmed, 341

U.S. 70_______________________________________________  5, 21
Williams v. United States, 179 F. 2d 656, affirmed, 341

U.S. 97_________ ______________________________________ 32
Wilson v. United States, 230 F. 2d 521________________  34
Ex parte Yarbrough, 110 U.S. 651_____________________  16, 21

Constitution and statutes:
United States Constitution:

Thirteenth Amendment___________________________  24
Fourteenth Amendment______________ 5, 7, 8, 9, 10, 13,

14, 16, 17, 19, 20, 21, 23, 24, 25, 27, 28, 30, 31
Fifteenth Amendment________________________  14, 27, 28

Rev. Stat. 2289___________________________ __________________  21
Revised Statutes, § 5508______________________________  23
Criminal Code of 1909, § 20, 35 Stat. 1092___________  16

Civil Rights Act of 1866, 14 Stat. 27___________  18, 20, 22, 24, 27
Enforcement Act of 1870, 16 Stat. 140 et seq.:

Section 2_________  15
Section 3 ________________________________________________  15
Sections 1 -4_____________________________________________ 20



IV

Enforcement Act of 1870— Continued Page
Section 6________ ___________________________  13 ,1 5 ,2 0 ,2 3 ,26
Section 7______   20
Section 16_________ _______________________________ ; ____18, 20
Section 17_________________________ _____________  16, 18, 20, 25

14 Stat. 74___________________________________________________ 23
16 Stat. 96_____ * ___________________________________________ 23
United States Code:

18 U.S.C. 2_____________________________________________  3, 9
18U.S.C. 2(a)_______________________________    33
18 U.S.C. 201__________  34
18 U.S.C. 241 — , _____________________________ 2, 4, 5, 7, 8, 9,

10, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26
18 U.S.C. 242_______________ 3, 5, 6, 7, 8, 9, 10, 11, 14, 16, 17,

18, 19, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 35
18 U.S.C. 371_________________________________    5
18 U.S.C. 3731_______     2
28 U.S.C. 1343(3)______________________________________  31
42 U.S.C. 1983_________________________________________  31

Miscellaneous:
Cong. Globe, 41st Cong., 2d Sess., pp.:

2942________________________________________________ 20
3479 _____________________________________________  20
3480 __ ____________________ 1_____________________ 20
3611 _____ j ____________________ _____________ _ 26, 27, 28
3612 _______________________________________________ 20,28
3613 ______________________  __________________  26,27 ,28
3679________________________________________________ 20
3688________________________________________________ 20
3690________________________________________________ 20

Federal Rules of Criminal Procedure, Rule 7(d)______  8
Federal Rules of Criminal Procedure, Rule 20_______ 4
James, The Framing of the Fourteenth Amendment

(1956), p. 1 4 3 ._______________________________________
S. Rep. No. 102, 82d Cong., 1st Sess., p. 7___________

22
34



Jn Hit §$n$m\xt d{imrt of Hit Hinted
O ctober  T e r m , 1965

Nos. 59, 60
U n it e d  S tates  of A m e r ic a , a p p e l l a n t

v.
C e c il  R a y  P r ic e , e t  a l ,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI, EASTERN DIVISION

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinions o f the district court (R. 4-7, 18-25) 
are not yet reported.

j u r i s d i c t i o n

The judgments of the district court dismissing one 
indictment in its entirety as to all appellees (R. 8) 
and three counts of a second indictment as to fourteen 
of the appellees (R. 26-28) were entered on March 2, 
1965. Notices of appeal to this Court were tiled on 
the same day (R. 9-10, 28-29). On April 26,1965, the 
Court entered an order postponing further considera­
tion of the question of jurisdiction and consolidating 
these appeals (R. 30). The jurisdiction o f this Court 
to review the decision o f the district court on direct

a)



2

appeal is conferred by 18 U.S.C. 3731. United States 
v. Braverman, 373 U.S. 405; United States v. Hvass, 
355 U.S. 570.1

QUESTIONS PBESENTED

1. Whether the right, secured by the Fourteenth 
Amendment, not to be deprived o f life or liberty with­
out due process of law by persons acting under color 
of State law is a “ right or privilege secured * * * by the 
Constitution”  within the meaning of Section 241 o f 
the Criminal Code.

2. Whether private individuals who act in associa­
tion with public officials to carry out a scheme to de­
prive persons o f rights protected by the Fourteenth 
Amendment are within the reach of Section 242 o f the 
Criminal Code.

STATUTES IN VOLVED

18 U.S.C. 241 provides:
I f  two or more persons conspire to injure, 

oppress, threaten, or intimidate any citizen in 
the free exercise or enjoyment of any right 
or privilege secured to him by the Constitution 
or laws of the United States, or because of his 
having so exercised the same; or 

I f  two or more persons go in disguise on the 
highway, or on the premises of another, with 
intent to prevent or hinder his free exercise

1 The j urisdiction of this Court to entertain the direct appeal 
in No. 60 is not affected by the fact that Counts 2, 3 and 1 
were dismissed only as to some of the defendants. See, e.g., 
United States v. Wise, 370 U .S. 405; United States v. Wood- 
son, 371 U .S. 12. The objections to jurisdiction interposed in 
response to the government’s jurisdictional statement— all with­
out substance— are discussed in note 4, mfra, pp. 8-9.



3

or enjoyment of any right or privilege so se­
cured—

They shall be fined not more than $5,000 or 
imprisoned not more than ten years, or both.

18 U.S.C. 242 provides:
Whoever, under color of any law, statute, 

ordinance, regulation, or custom, willfully sub­
jects any inhabitant of any State, Territory, 
or District to the deprivation o f any rights, 
privileges, or immunities secured or protected 
by the Constitution or laws of the United 
States, or to different punishments, pains, or 
penalties, on account of such inhabitant being 
an alien, or by reason of his color, or race, than 
are prescribed for the punishment o f citizens, 
shall be fined not more than $1,000 or im­
prisoned not more than one year, or both.

18 U.S.C. 2 provides:
(a) Whoever commits an offense against the 

United States or aids, abets, counsels, com­
mands, induces or procures its commission, is 
punishable as a principal.

(b) Whoever willfully causes an act to be 
done which if  directly performed by him or 
another would be an offense against the United 
States, is punishable as a principal.

STATEM EN T

On January 15, 1965, the United States grand jury 
for the Southern District of Mississippi returned two 
indictments (R. 1-2, 11-16), each charging the same



4

eighteen persons 2 with offenses against the civil rights 
of Michael Henry Schwerner, James Earl Chaney and 
Andrew Goodman, who were killed during the sum -' 
mer of 1964 in the vicinity of Philadelphia, Missis­
sippi. Three of the defendants (Rainey, Price and 
W illis) were alleged to be State law enforcement o f­
ficers then “ acting by virtue of [their] official positions 
and under color of the laws of the State of Missis­
sippi” . There is no claim that the remaining defend­
ants held public office.

1. The indictment in No. 59 (R. 1-2) involves a 
single count charging all the defendants with a crim­
inal conspiracy in violation of 18 U.S.C. 241. It 
alleges that, between stated dates in 1964, the eighteen 
named persons (R. 2 )—

* * * conspired together, with each other and 
with other persons to the Grand Jury unknown, 
to injure, oppress, threaten and intimidate 
Michael Henry Schwerner, James Earl Chaney 
and Andrew Goodman, each a citizen of the 
United States, in the free exercise and enjoy­
ment of the right and privilege secured to them 
by the Fourteenth Amendment to the Consti­
tution of the United States not to be deprived 
of life or liberty without due process o f law by 
persons acting under color of the laws of 
Mississippi.

2 James E. Jordan, one of the defendants charged in the two 
indictments, was not before the district court and is not affected 
by the rulings below or the present appeals. His case was 
transferred to the United States District Court for the Middle 
District of Georgia under Rule 20, F.R. Cr. P.



The indictment further alleges the means by which 
the defendants planned to achieve the objects of their 
conspiracy.

The district court dismissed the indictment in its 
entirety, as to all defendants, on the ground that it 
did not state an offense against the United States 
(R. 8). Invoking an alternative ground of the ruling 
in Williams v. United States, 179 F. 2d 644 (C.A. 5), 
affirmed, in paid on other grounds, 341 U.S. 70, the 
court held that Section 241 of the Criminal Code 
vindicates only “ federally created rights” , and does 
not embrace the Fourteenth Amendment right set 
forth in the indictment (R. 4-7).

2. The indictment in No. 60 (R. 11-16) is in four 
counts, each of which names all eighteen defendants. 
Count 1—which was sustained as to all defendants and 
is not in issue here— charges a violation of 18 U.S.C. 
371 by conspiring to commit offenses defined in 18 
U.S.C. 242. The present appeal is directed to the 
partial dismissal of Counts 2, 3 and 4, which charge 
substantive violations of Section 242.

The three substantive counts are identical, except 
that each involves a different victim. Thus, Count 2 
(R. 13-14) charges that the several defendants—

* * * while acting under color of the laws 
of the State of Mississippi, did wilfully assault, 
shoot and kill Michael Henry Schwerner, an 
inhabitant of the State of Mississippi, then and 
there in the custody o f Cecil Ray Price, for 
the purpose and with the intent of punishing 
Michael Henry Schwerner summarily and with­
out due process of law and for the purpose and

786-542— 65------- 2



6

with the intent of punishing Michael Henry 
Schwerner for conduct not so punishable under 
the laws of Mississippi, and did thereby wil­
fully deprive Michael Henry Schwerner of 
rights, privileges, and immunities secured and 
protected by the Constitution and the laws of 
the United States, namely, the right not to be 
deprived of his life and liberty without due 
process of law, the right and privilege to be 
secure in his person while in the custody of 
the State o f Mississippi and its agents and 
officers, the right and privilege to be immune 
from summary punishment without due process 
of law, and the right to be tried by due process 
of law for an alleged offense and, if found 
guilty, to be punished in accordance with the 
laws of the State of Mississippi.

The district court granted motions to dismiss Counts 
2, 3 and 4 as to all the private defendants (while 
denying similar motions with respect to the three 
defendants who are law enforcement officers) (R. 
26-28). The court read Section 242 as reaching only 
the acts o f public officers while acting officially. In 
the court’s view, no offense was stated against the 
private defendants because it was “not charged as 
an ultimate fact that [any of them] did anything 
as an official”  or that the “ individual defendants 
were officers in fact, or defacto in anything allegedly 
done by them hinder color of law’ ”  (R. 19-20).



7

ARGU M EN T

INTRODUCTION AND SUMMARY

These cases rest on a charge that the eighteen de­
fendants—three of them State officials acting under 
color of their offices—jointly conceived and executed 
a plan against three citizens of the United States 
and inhabitants of Mississippi, then in State custody, 
that they be released, intercepted, assaulted and 
murdered. It is alleged that these acts violated 
rights guaranteed to the victims by the Due Process 
Clause of the Fourteenth Amendment and the de­
fendants were accordingly indicted for entering into 
a conspiracy punishable under Section 241 of the 
Criminal Code (No. 59), and, in a second indictment 
(No. 60), for conspiring to violate Section 242 (Count 
1) and for committing the substantive crime there 
defined as to each victim (Counts 2, 3 and 4).

On this appeal, there can be no question that a 
violation of the Fourteenth Amendment—at least by 
the three official defendants—has been adequately 
charged. Nor is it debatable that the Due Process 
rights described in the indictments have been suffi­
ciently “made definite by decision or other rule o f 
law”  to support a criminal prosecution against those 
charged with “ willfully”  invading them. See Screws 
v. United States, 325 U.S. 91, 103; 'Williams v. United 
States, 341 U.S. 97, 101-102. So much is unchal­



8

lenged.3 Indeed, those matters are foreclosed by the 
decision below sustaining the conspiracy count of 
the indictment under Section 242 and, with respect 
to the three State officers, the substantive charges of 
violating the same statute. Finally, there is no ques­
tion as to the technical sufficiency of either indict­
ment. The rulings below point out no pleading defect 
o f that kind; they were squarely based on a construc­
tion of the statutes involved4 and, in the circum-

3 The indictment alleges more than ordinary murder for 
personal reasons by a group of individuals, some of whom 
happened to be holding State office. Not only is it alleged 
that the State law enforcement officers were acting under color 
of their office (It. 1, 11), but the charge is that they used 
their official powers to release State prisoners and turn them 
over to a lynch mob, which one of the officers shielded by his 
presence, with a vieAV that they be summarily punished with­
out benefit of trial (see It. 2, 12, 14, 14-15, 15-16). Thus, 
the case is plainly within the rule announced in Screws and 
the third Williams decision. That the death of the victims 
was the ultimate consummation of the conspiracy does not 
put in doubt the applicability of Section 242 is settled by 
Screws. The same question with respect to Section 241 (as­
suming it protects Fourteenth Amendment rights) is settled 
by Logan v. United States, 144 U.S. 268.

4 There is accordingly no doubt about the jurisdiction of this 
Court to entertain the government’s appeal. To be sure, the 
court below noted that the indictment in No. 59 alleged that 
the three State officers charged were “each acting at all times 
under ‘color of laws’ ” , whereas “ [t]lie statute mentions nothing 
about ‘color of law’ in the description lof the crime embraced” (R. 
4). But the suggestion that the court was pointing to a plead­
ing defect and dismissed the indictment partly on that ground 
is frivolous. A t worst, the allegation is surplusage which 
would support a motion to strike. F.R. Cr. P., Rule 7 (d ). 
In any event, it is plain the court at as quarreling, not Avith



9

stances, no other issue is open on this direct appeal. 
See United States v. Borden Co., 308 U.S. 188, 193; 
United States v. Hvass, 355 U.S. 570, 574. Only two 
questions remain:

1. The first is whether Section 241 reaches the in­
vasion of rights guaranteed by the Due Process 
Clause o f the Fourteenth Amendment, I f  so, dis­
missal o f the indictment in No. 59 must be reversed. 
No interpretation of the Constitution is required to 
sustain that charge. Three of the accused are State 
officials, alleged to have acted under color of their 
offices. They, of course, have the capacity directly 
to violate the Fourteenth Amendment. The others

the wording of the indictment, but its theory— that Section 
241 reaches Fourteenth Amendment rights.

Nor does the trial court’s comment that the substantive 
counts of the indictment in No. 60 do not charge that the 
private defendants were “officers in fact, or de facto in any­
thing allegedly done by them ‘under color of law’ ” (R. 20) 
amount to a holding that the indictment was technically de­
ficient in this respect. W e are not questioning the court’s 
reading of the indictment; our appeal is from the ruling that 
persons without official status are never amenable to Section 
242, no matter how involved they may be in the crime of 
State officers. The answer to that question depends upon a 
construction of the substantive statute (read in the light of 
the Fourteenth Amendment) or of the aider or abettor statute 
(18 U.S.C. 2).

Finally, there is no merit to the suggestion that the direct 
appeal in No. 60 is defeated by the failure to plead the “aider 
and abettor” statute, 18 U.S.C. 2, which is now relied upon 
to sustain the substantive charges against the private defend­
ants. It is well settled that an aider and abettor, made a prin­
cipal by 18 U.S.C. 2, may be indicted as a principal. Jin 
Fuey M oy  v. United States, 254 U.S. 189; Nye <& Nissen v. 
United States, 168 F. 2d 846 (O.A. 9), affirmed, 336 U.S. 613.



10

are charged as co-conspirators who joined in a scheme 
to deprive the victims of their right “ not to be sum­
marily punished without due process of law by per­
sons acting under color of the laws of the State of 
Mississippi” (R. 12). In No. 59, it does not matter 
whether or not they are themselves viewed as having 
acted “ under color of law,”  for the only charge here 
is one of conspiracy and it is settled that a “ person 
may be guilty of conspiring although incapable of 
committing the objective offense.”  United States v. 
Rabinowich, 238 U.S. 78, 86; Gebardi v. United States, 
287 U.S. 112, 121; United States v. Holte, 236 U.S. 
140, 145. See, also, United States v. Trierweiler, 52 
F. Supp. 4 (E.D. 111.). Indeed, the court below so 
ruled with respect to the conspiracy count under Sec­
tion 242 in No. 60, and the same principle obviously 
applies to Section 241 if  it also reaches invasion of 
Fourteenth Amendment rights.

To repeat, the only question in No. 59 is one of 
statutory construction: Whether rights guaranteed by 
the Due Process Clause of the Fourteenth Amendment 
(and made specific by decisions o f this Court) are 
“ right[s] or privilege [s] secured * * * by the Con­
stitution”  within the meaning of Section 241.. We 
answer that question in the affirmative on the basis 
o f the language of the statute, its context, and its legis­
lative history. Because the text itself, in its historical 
setting, so naturally lends itself to that reading, the 
principal burden of our argument on this point is a 
rebuttal of the several considerations recently sum­
moned against such a construction.



11

2. The other issue arises only in No. 60—with re­
spect to the dismissal of the substantive charges laid 
under Section 242 against the defendants without o f­
ficial status. Counts 2, 3 and 4 of the indictment 
allege that fifteen private persons, together with three 
State officials, committed the offense defined in Sec­
tion 242. Although they were all formally described 
as “ acting under color of the laws of the State o f 
Mississippi”  (R. 13-14, 14, 15), the court below cor­
rectly noted that “  [t.jhe indictment states that three 
of the defendants were acting as officers in all that 
they did, but then does not state or indicate that any 
of the other individual defendants were officers in fact, 
or de facto in anything allegedly done by them ‘under 
color o f law’ ”  (R. 20). The question is whether such 
private persons can be prosecuted under Section 242 
when they act in association with State officials.

W e present two answers to the ruling. First, we 
argue that the close association alleged between the 
private defendants and the State officials charged with 
them makes all of them amenable to the statute as per­
sons acting “ under color o f law,” albeit those without 
official status do not become de facto officers. A l­
ternatively, we urge that the private defendants, even 
i f  incapable of violating the statute on their own in 
the circumstances of this case, are properly indicted as 
aiders and abettors of persons with capacity to com­
mit the offense.



12

I

SECTION 241 OF THE CRIMINAL CODE PROTECTS RIGHTS 
SECURED BY THE DUE PROCESS CLAUSE OF THE FOUR­
TEENTH AMENDMENT

The question whether Section 241 punishes con­
spiracies directed against Fourteenth Amendment 
rights was fully canvassed in this Court less than 
fifteen years ago in United States v. Williams, 341 
U.S. 70, and the two major opinions in that case fully 
explored the arguments on each side of the issue. 
Against that background one hesitates to rehearse the 
considerations involved once again. I f  we do so 
briefly it is only because, on that occasion, the Court 
divided evenly and did not resolve the question—four 
Justices, in an opinion by Mr. Justice Frankfurter, ex­
pressing their view that Fourteenth Amendment 
rights were not within the scope of Section 241 (341 
U.S. at 71-82), four other Justices, in an opinion by 
Mr. Justice Douglas, reaching the opposite conclusion 
{id. at 87-96), and Mr. Justice Black voting to affirm 
dismissal o f the charge on independent grounds {id. 
at 85-86). Inevitably, our discussion will track much 
of the opinion of Mr. Justice Douglas in that case and 
will attempt to answer the objections raised by the 
opinion of Mr. Justice Frankfurter.

Section 241, among other things, punishes “ per­
sons” who conspire to interfere with the exercise or 
enjoyment by a “ citizen”  of “ any right or privilege 
secured to him by the Constitution or laws of the 
United States.”  On its face, the provision is certainly 
broad enough to reach conspiracies directed against



13

Fourteenth Amendment rights, and its enactment less 
than two years after the ratification o f that Amend­
ment— as Section 6 of the Enforcement Act o f 1870 
(16 Stat. 140, 141)—would naturally support that in­
ference. There is a heavy burden, it seems to us, on 
those who would encumber the straightforward text 
with a restrictive gloss to the effect that Section 241 
does not protect all federal constitutional rights, in­
cluding he rights then recently declared by the post­
w ar Amendments.

The situation might be different if  the narrow read­
ing given Section 241 by the court below derived from 
a venerable tradition initiated by judges who were 
immediately familiar with the enactment of the pro­
vision. But that is not the case. Indeed, until Wil­
liams, there seems to have been no doubt expressed 
on the point. As Mr. Justice Douglas there noted 
(341 U.S. at 92-93), the early lower federal courts 
had taken it for granted that Section 241 covered 
Fourteenth Amendment rights. See United States 
v. Hall, 26 Fed. Cas. 79 (S.D. A la ) ; United States v. 
Mall, 26 Fed. Cas. 1147 (S.D. A la .) ; Ex parte Riggins, 
134 Fed. 404 (iST.D. Ala.). And this Court had implied 
as much. There were first a series o f cases involving 
prosecutions of private individuals under Section 241 
for alleged violations of Fourteenth Amendment rights 
which were decided on constitutional grounds—pre­
sumably on the premise that the statute reached viola­
tions of the Amendment and that it was necessary to 
determine the scope of the constitutional provision.

7S6-542— 6: 3



14

See, e.g., United States v. Cruikshank, 92 U.S. 542; 
Hodges v. United States, 203 U.S. 1; United States v. 
Wheeler, 254 U.S. 281. Then came the decision in 
Guinn v. ZJm'ied S'feA.s, 238 U.S. 347, where, in a case 
involving a congressional election, the Court upheld a 
prosecution under Section 241 which seems to have 
rested wholly on an alleged violation of the Fifteenth 
Amendment—which is no more within the scope of the 
statute than the Fourteenth Amendment if  the restric­
tive view espoused in IFilliam is correct. On the same 
day, in United States v. Mosley, 238 U.S. 383, 387-388, 
the Court, speaking through Mr. Justice Holmes, char­
acterized the “ sweeping general words” of Section 241 
as dealing “ with Federal rights and with all Federal 
rights,”  “ in the lump.” The “ broad language of the 
statute”  was again noticed in United States v. Classic, 
313 U.S. 299, and (albeit no Fourteenth Amendment 
rights were involved), the Court seems to have as­
sumed that Section 241 (then § 19), like Section 242 
(then § 20), protects all constitutional rights. And, as 
late as Screws v. United States, 325 U.S. 91— where 
the Court explicitly ruled that Section 242 protects 
rights guaranteed by the Due Process Clause of the 
Fourteenth Amendment—no one took issue with Mr. 
Justice Rutledge’s statement that there are “ no differ­
ences in the basic rights guarded” by Sections 241 and 
242. Id. at 119. As Mr. Justice Douglas has fully 
shown (341 U.S. at 93-94), that decision also set at 
rest the objection that Section 241 must necessarily 
fail as unduly vague if  construed to encompass Four­
teenth Amendment rights.



15

Obviously the suggested limited scope of Section 
241 does not appear on the surface—else three genera­
tions of judges would not have overlooked it until 
1950. Accordingly, we must look on the words more 
critically and carefully assess them in their context. 
And, lest the true meaning lie buried still deeper, we 
must attempt to elucidate the sparse legislative his­
tory of the provision.

A . T H E  TEXT AND CONTEXT OF SECTION 241

The most convenient method for the initial inquiry 
is to parse Section 241, phrase by phrase, focusing on 
the restrictive implications attributed to each (by four 
o f the Justices) in Williams.

1. “Persons.”  It has been suggested that char­
acterization of the offenders under Section 241 as 
mere “persons”  implies private individuals, acting 
on their own, rather than State officials or persons 
acting “ under color o f law,” and that the provision 
therefore does not encompass Fourteenth Amendment 
rights which only those wielding State power can 
invade. See 341 U.S. at 76-78. The term “ persons”  
was designedly used, it is said, to reach the members 
of the Ku Klux Klan, the acknowledged object o f 
Senator Pool who wrote the provision in question. 
See United States v. Mosley, 238 U.S. 383, 387. The 
significance of that usage is further illumined— so 
goes the argument—when one notices that other pro­
visions of the 1870 Act (where our provision origi­
nated as Section 6) carefully delineated the scope of 
coverage. Thus, Sections 2 and 3 of that Act were 
directed to “ persons or officers”  (16 Stat. 140) and



16

Section 17, now 18 U.S.C. 242, reached only 
“ person[s] [acting] under color of * * * law”  (16 
Stat. 144).3 The suggestion apparently is that there 
is a purposeful symmetry, dividing the measure into 
three neat categories o f provisions— those which cover 
only governmental action, those which reach only 
private acts, and, finally, those which encompass 
both—and that all o f this is confused, with resulting 
overlapping, if  the modern Section 241 is not con­
fined to rights which are secured by the federal 
Constitution or laws against private invasion.

Perhaps the short answer is that the entire argu­
ment is constructed upon the false premise that 
Congress can never reach invasion o f Fourteenth 
Amendment rights by private persons. As we elab­
orate in United States v. Guest, No. 65, this Term, 
this was certainly not the assumption of those who 
wrote Section 241, nor do we think it a correct state­
ment o f constitutional law. But we do not rest there. 
Even accepting the proposition that all legislation 
under the Fourteenth Amendment must speak directly 
to the State or those acting under its authority, the 
argument derived from the use of the unqualified 
word “ persons”  in Section 241 does not hold up.

First, it is well settled that Section 241 reaches 
both private and public action— offenses of mere indi­
viduals acting on their own ( e.g., Ex parte Yarbrough, 
110 U.S. 651; United States v. Waddell, 112 U.S. 76; 
Logan v. United States, 144 U.S. 263; In re Quarles, 5

5 In the codification of Section 17 as Section 20 of the 
Criminal Code of 1909 (35 Stat. 1092), “person” became 
“whoever” and that change has been retained.



17

158 U.S. 532; Motes v. United States, 178 U.S. 458), 
and acts o f State officials acting “ under color of law.”  
E.g., Guinn v. United States, 238 U.S. 347; United 
States v. Mosley, 238 U.S. 383; United States v. 
Classic, 313 U.S. 299; United States v. Saylor, 322 
U.S. 385. That is an end of the distinction between 
the provisions o f the 1870 Act which are directed 
solely against non-governmental action and those 
which encompass both officials and other Avrongdoers. 
Section 241 has precisely the same scope as if  it Avere 
explicitly addressed to “persons or officers.”

Once that flaw is uncovered, the Avhole complicated 
edifice built upon the choice of the word “ persons”  
falls of its own weight. I f  State officials are within 
the statutoiy coverage, Ave can no longer rely on Sen­
ator P oo l’s preoccupation with the Klan as implying 
an intention to restrict the provision to private con­
spiracies. Nor does fear o f overlapping among the 
several provisions of the Enforcement Act of 1870 
deter us, for, whether or not § 241 protects Fourteenth 
Amendment rights, overlapping is now inevitable Avith 
respect to the invasion of civil rights by State offi­
cials. See, e.g., United States y. Classic, supra. W e 
need merely answer with Mr. Justice Holmes, speak­
ing for the Court in United States v. Mosley, supra, 
238 U.S. at 387: “ Any overlapping that there may 
have been might well have escaped attention, or if 
noticed have been approved.”

To be sure, there subsists a difference between the 
coverage of Section 241, Avhich encompasses both 
private and official offenders, and Section 242, \Adiich 
reaches only persons acting “ under color of any law,



18

statute, ordinance, regulation, or custom.”  These 
opening words of Section 242 were deemed appro­
priate (or necessary) when the provision (originally 
Section 17 of the Enforcement Act of 1870) protected 
only a limited category of Fourteenth Amendment 
equal protection rights.6 But, of course, it does not

6 As already noted, Section 242 derives from Section 17 of 
the Enforcement Act of 1870 (16 Stat. 144). In relevant part, 
that provision punished deprivations of “any right secured or 
protected” by Section 16 of the Act, which, in turn (tracking 
the language of the Civil Rights x\ct of 1866), guaranteed 
“all persons within the jurisdiction of the United States * * * 
the same right in every State and Territory in the United 
States 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 person and property as is en­
joyed by white citizens.”

The subsequent history of the provision is traced by Mr. 
Justice Rutledge in his concurring opinion in Screws v. United 
States, 325 U .S. 91, 120:

“A t first §20 [now §242] secured only rights enumerated in 
the Civil Rights Act. The first ten years brought it, through 
broadening changes, to substantially its present form. Only 
the word ‘willfully’ has been added since then, a change of 
no materiality, for the statute implied it beforehand. 35 Stat. 
1092. The most important change of the first decade replaced 
the specific enumeration of the Civil Rights Act with the pres­
ent broad language covering ‘the deprivation of any rights, 
privileges, or immunities, secured or protected by the Constitu­
tion and laws of the United States.’ R.S. 5510. This in­
clusive designation brought §20 into conformity with §19’s 
[now § 241] original coverage of ‘any right or privilege se­
cured to him by the Constitution or laws of the United States.’ 
Since then, under these generic designations, the two have been 
literally identical in the scope of the rights they secure. The 
slight difference in wording cannot be one of substance.”

For the full text of each of the successive versions of Sec­
tion 242— as well as Section 241— see the table appended to the 
opinion of Mr. Justice Frankfurter in United States v. W il­
liams, 341 U .S. at 83.



19

follow that the absence of a similar restriction in a 
provision that protects rights secured against all cat­
egories of offenders forecloses protection of Four­
teenth Amendment rights. The statute need not 
enumerate those with capacity to violate the Amend­
ment: the Constitution itself does that. Indeed, since 
the substantive coverage of Section 242 was broad­
ened to include all federal constitutional and statu­
tory rights (see Screws v. United States, 325 U.S. 91, 
120 (concurring opinion of Mr. Justice Rutledge)), 
the restriction of the provision to offenders wielding 
State power has become somewhat anomalous. In­
sofar as Section 242 now punishes* invasion of rights 
also secured against private action (see United States 
v. Classic, 313 U.S. 299), there is plainly no consti­
tutional necessity for the restriction and the conse­
quence is that individual offenses against such rights 
are not federal crimes if no part of a conspiracy. 
There is certainly no warrant for imputing to the 
drafters of Section 241 the forced dilemma of cover­
ing Fourteenth Amendment rights, i f  at all, only by 
restricting their entire provision to State officers.

The upshot is that there is a certain overlapping 
between the predecessor of Section 241 and the other 
provisions of the Enforcement Act of 1870—the area 
of overlapping having increased since the expansion 
of Section 242. But, as already noted, that is not a 
sound argument against our reading of Section 241. 
The fact is that the Act of 1870 is not a symmetrical 
construction. It is a composite, hastily welded out 
o f disparate pieces, attributable to a variety of spon­



2 0

sors, each with his particular concern.7 As we shall 
see, Senator Pool, the author of our provision, had 
perhaps the broadest view and meant to cover all 
rights against all interference, including those rights 
recently declared by the Fourteenth Amendment, 
which he thought Congress might safeguard against 
both official and unofficial invasion.

2. “ Citizen.”  Section 241 punishes only offenses 
against citizens of the United States. See Baldtvin 
v. Franks, 120 U.S. 678. Hence, it is argued that the 
provision is concerned alone with rights appertaining 
to national citizenship, not including the Fourteenth 
Amendment rights to due process and equal protec-

7 Thus, Sections 1-4 of the Act— which are concerned solely 
with the right to vote— derive from the parent bill reported 
by the Senate Judiciary Committee as a substitute for other 
voting measures before the Senate. Cong. Globe, 41st Cong., 
2d Sess., pp. 2942, 3479-3480. Sections 16 and 17— which re­
enacted provisions of the Civil Eights Act of 1866 and ul­
timately became Section 242 of the Criminal Code— are trace­
able to an amendment submitted by Senator Stewart of Nevada. 
Id., p. 3480. And Section 6— now our Section 241— , together 
with Section 7, was proposed by Senator Pool. Id., pp. 3612, 
3679. There were many other amendments, besides. See id., 
p. 3688 (comment of Senator Trumbull). Just before the bill 
was finally passed {id., p. 3688), one Senator characterized 
it as “a conglomeration of incongruities and contradictions” 
and claimed no one knew its true content in light of the num­
ber of amendments hastily adopted {ibid., Senator Thurman). 
Another member accurately stated: “The bill as it now stands 
is the child of many fathers. It is a piece of patchwork 
throughout.” Ibid. (Senator Casserly). See, also, the opin­
ion of Mr. Justice Frankfurter in United States v. Williams, 
supra, at pp. 74-75, and n. 2.



21

tion which are not derived from citizenship or re­
stricted to citizens. And, again, a contrast is made 
with Section 242 which, like the Fourteenth Amend­
ment itself, expressly protects every “ inhabitant”  o f 
the land, citizen or not.

Significantly, this argument has never gained a 
foothold in this Court. Although the court of ap­
peals, in Williams, had stressed the fact that Section 
241 protects only the rights of citizens (see 179 F. 2d 
at 647), nothing was made of the point by Mr. Justice 
Frankfurter when the case came here. That is doubt­
less because the argument immediately runs into an 
insuperable barrier when we notice that, of all the 
rights held to be protected by Section 241, none is 
peculiar to citizens. It is so with respect to the right 
to vote in congressional elections (Ex parte Yar­
brough, supra; Guinn v. United States, supra; United 
States v. Mosley, supra; United States v. Classic, 
supra; United States v. Saylor, supra), which is not 
derived from citizenship or necessarily restricted to 
citizens. Minor v. Happersett, 21 Wall. 162; Pope v. 
Williams, 193 U.S. 621, 632-633. And the same is true 
of the right to peaceful enjoyment o f federal home­
steads (United States v. Waddell, supra) which were 
open to aliens who had merely declared their intention 
to become citizens (Rev. Stat. 2289), of the right to be 
secure against unauthorized violence when in federal 
custody (Logan v. United States, supra), and of 
the right to inform on violations of the Federal tax

786-542—65- 4



22

laws (In re Quarles, supra; Motes v. United States, 
supra) .8

W e can speculate why Section 241 was written to 
protect citizens alone. Perhaps there was a conscious 
purpose to avoid encompassing Indians who were not 
generally viewed as naturalized by the Fourteenth 
Amendment. See Elk v. Wilkins, 112 U.S. 94; James, 
The Framing of the Fourteenth Amendment (1956), 
p. 143. But, without doubt, the primary focus was on 
the Negro in the reconstructed States, recently eman­
cipated and now granted citizenship; for that pur­
pose, it was enough to protect all citizens. Section 
242, on the other hand, was explicitly written to pro­
tect aliens as well as Negro citizens, as the text makes 
clear. Moreover, in using the word “ inhabitant”  it 
was merely tracking the language of the Civil Rights 
Act of 1866 (14 Stat. 27) which assured the recently 
emancipated slaves, not yet citizens, some of the same

8 Mr. Justice Frankfurter’s opinion for four members of the 
Court in Williams can be read as characterizing the right to 
vote in federal elections and the rights vindicated in Logan, 
Quarles and Motes as rights of national citizenship (see 341 U.S. 
at 77, 79-80). While that description would not be wholly ac­
curate, the point is not important in light of the explicit rec­
ognition that the right involved in United States v. Waddell, 
supra, “did not pertain to United States citizenship” (id. at 
80), and the conclusion of the opinion that the category of 
rights protected by Section 241 are those “arising from the sub­
stantive powers of the Federal Government” (id. at 73, 77, 78, 
79, 82)— rather than only those appertaining to national citi­
zenship. In United States v. Guest, No. 65, this Term, we note 
our difficulty with the proposition that the Fourteenth Amend­
ment (and presumably also the Fifteenth) did not— by its 
Fifth Section— enlarge the “substantive powers” of the national 
government. See Brief for the United States, pp. 18-46.



23

rights as were “ enjoyed by white citizens” . See note 
6, supra, p. 18. In sum, the substantive coverage of 
these provisions does not depend on the class o f per­
sons protected: just as Section 242 originally secured 
a narrow group of rights for everyone, Section 241 
protects only a limited class (citizens) but with re­
spect to all federal rights.

3. u[R]ight or privilege [granted or] secured * * * 
by the Constitution or laws of the United States.”  As 
originally enacted (as Section 6 of the Act o f 1870), 
Section 241 was directed at the invasion of “ any right 
or privilege granted or secured”  to citizens by the fed­
eral Constitution or statutes. The word “ granted” 
was dropped four years later when the federal statutes 
were revised. See Rev. Stat. § 5508. Presumably, this 
was done on the ground that the word “ granted”— at 
best a mere alternative descriptive separated by a dis­
junctive—was surplusage, for the “ revision” of 1874 
was not meant to alter substance. See 14 Stat. 74; 16 
Stat. 96. Nevertheless, apparently focusing on that 
word, and contrasting the present language o f Sec­
tion 242 (“ rights, privileges, or immunities secured or 
protected by the Constitution or laws of the United 
States” ), it has been argued that the “ narrow phase”  
of Section 241 does not cover Fourteenth Amendment 
rights. See 341 U.S. at 78.

The proposition is difficult to grasp. Insofar as 
any contrast between the language of Section 241 
and Section 242 is appropriate, the argument seems 
reversed. Indeed, if  one or the other o f the two 
provisions must be restricted to rights o f national 
citizenship, an echo of the “ privileges or immunities”



24

clause o f the Fourteenth Amendment is more obvious 
in Section 242 ( “ rights, privileges, or immunities” ) 
than in Section 241 ( “ right or privilege” ). And the 
absence of the word “ granted”  in Section 242 and its 
presence in the predecessor of Section 241 suggests, 
if  anything, that the former provision deals only with 
pre-existing rights inherent in national citizenship, 
not conferred by the Fourteenth Amendment, but 
merely re-affirmed by it and .guaranteed (somewhat 
redundantly) against contrary State laws, whereas the 
latter section (§241) protects the new constitutional 
rights declared for the first time by the Due Process 
and Equal Protection Clauses of the Amendment.

But the comparison, in any event, is wholly mis­
leading, for the two texts put in opposition are not 
o f the same date. The phrase “ secured or protected”  
in Section 242 is directly derived from the Civil 
Rights Act of 1866 (see note 6, supra, p. 18) written 
some years before Section 241. That the rights in­
volved are not described as “ granted”  may well be 
due to the fact that there, as well as in the 1870 
text, the direct reference was to a previous section 
o f the same statute—not the Constitution—which was 
viewed as merely implementing rights already con­
ferred by the Thirteenth or Fourteenth Amendment. 
The rest o f the quoted language of Section 242 was 
substituted in 1874 for a longer and very different 
phrase o f apparently narrower content in the original 
provision of 1870. See note 6, supra, p. 18. And 
at the same time that new text came into the law 
the word “ granted”  was deleted from Section 241.



25

Plainly nothing can be learned by now comparing 
the language of two provisions which have wholly 
different verbal histories.

Comparisons aside, there is nothing in the char­
acterization of the rights protected by Section 241 
which excludes the rights to due process and equal 
protection conferred by the Fourteenth Amendment. 
To be sure, the Due Process and Equal Protection 
Clauses did not grant absolute rights, good against 
the world: the Amendment only deals with the rela­
tionship between the inhabitant and the State. But 
even if they run only against the State, these are 
nevertheless properly termed “ rights,”  “ granted,”  or 
at least “ secured”  by the Constitution. As this Court 
said in the Civil Rights Cases, 109 U.S. 1, 11, “ Posi­
tive rights and privileges are undoubtedly secured 
by the Fourteenth Amendment.”  See, also, Strauder 
v. West Virginia, 100 U.S. 303, 307-308; Ex parte 
Virginia, 100 U.S. 339, 345. That this was the usage 
of the time is illustrated by Section 17 of the 1870 
Act (the predecessor of § 242) which referred to the 
equal protection guarantees enumerated in the pre­
vious section as “ right[s] secured or protected”  by 
that provision. Note 6, supra, p. 18.

B. THE LEGISLATIVE HISTORY OF SECTION 2 4 1

W e have seen that the most painstaking analysis 
of the text of Section 241, viewed alone and in the 
context of the statute where it originated, merely 
confirms what the language, on its face, indicates: 
that the provision broadly punishes conspiracies in­
terfering with all federal rights, including those de­
clared by the Fourteenth Amendment. It only re-



26

mains to notice that the immediate legislative history 
of Section 241 fully supports that conclusion.

W e begin with the seemingly decisive fact that Sen­
ator Pool, introducing Section 241 in its original 
form, explicitly referred to “ rights which are con­
ferred upon the citizen by the fourteenth amendment”  
as among those covered by his provision. Cong. 
Globe, 41st Cong., 2d Sess. 3611; id., at 3613 (App., 
infra, pp. 43, 48).9 There is no explaining away that 
statement. In context, it is clear that the sponsor of 
the provision had in mind the rights conferred by 
the Due Process and Equal Protection Clauses and 
not, as has been suggested (341 U.S. at 76-77, n. 4), 
the pre-existing rights of national citizenship avail­
able for the first time to those whom the Amendment 
made citizens and now expressly guaranteed against 
State invasion by the new Privileges and Immunities 
Clause. The indications are numerous.

First, Senator Pool expressly invoked the language 
of the due process and equal protection guarantees 
of the Amendment. He showed his particular con­
cern with the Equal Protection Clause by stressing 
the use of the word “ deny”  in that provision “ in 
contradistinction”  to the mere prohibition against a 
State “ making or enforcing latvs”  abridging the priv­
ileges and immunities of national citizenship in the 
first clause— arguing that here the State’s obligation 
was affirmative and that, in the event o f default, con-

8 W e have reproduced as an appendix (infra, pp. 37-50) the 
whole ox Senator Pools speech introducing the amendment 
which became Section 6 of the Enforcement Act of 1870, and, 
ultimately, Section 241 of the Criminal Code. It is the only 
pertinent text of legislative history.



27

gressional power was therefore greater. Id., at 3611 
(App., infra, pp. 40-41). In light of later decisions, 
beginning with the Slaughter-House Cases, 16 Wall. 
36, the Senator was o f course correct in neglecting the 
rights “ conferred”  by the Privileges and Immunities 
Clause: whatever they are, they pre-existed the Four­
teenth Amendment and could be secured against State 
invasion without benefit of the new Amendment.

Again, in the same passage, Senator Pool makes 
repeated reference to the Civil Rights Act of 1866 
and indicates that those rights, among others, are 
those which his measure will protect. Ibid. As we 
know, those are basically equal protection rights, now 
vindicated (along with rights derived from the Due 
Process Clause of the Fourteenth Amendment and 
others) by Section 242.

Finally, the sponsor’s purpose to protect the right 
secured by the Fifteenth Amendment against the ac­
tion of hostile conspiracies is unmistakable. Ibid. 
(App., infra, pp. 40-43). Yet, that right is no more 
a right “ appertaining to national citizenship”  or one 
derived “ from the substantive powers of the federal 
government” than are those secured by the Due 
Process and Equal Protection Clauses of the Four­
teenth Amendment. Having strayed so far from the 
narrow category of rights it is said he was concerned 
with, it seems highly imlikely that the sponsor should 
have stopped short of including all Fourteenth 
Amendment rights—which he mentions in one breath 
with the right secured by the Fifteenth Amendment. 
Id., at 3611, 3613 (App., infra, pp. 40, 43, 48).

To be sure, Senator Pool believed the rights pro­
tected by his bill could be secured against private in-



28

terference as well as State denial. Id. at 3611-3613 
(App., infra, pp. 38-49). But that does not tend to 
indicate that he meant to exclude rights derived from 
those constitutional provisions which are explicitly- 
directed to States alone. As we have noted, he meant 
to cover the right guaranteed by the Fifteenth Amend­
ment which presents the identical problem. See 
James v. Bowman, 190 U.S. 127. Plainly, he thought 
that Congress might legislate to protect Fourteenth 
and Fifteenth Amendment rights against the action of 
private conspiracies whenever the State had failed ot 
effectively secure those rights. W e advance a like 
contention in United States v. Guest, No. 65, this 
Term. Whether he was right or wrong, however, does 
not matter here. The provision enacted is carefully 
limited to “ rights secured by the Constitution” ; its 
scope is measured by the constitutional provision in­
volved. As Mr. Justice Holmes noted in United 
States v. Mosley, supra, 238 U.S. at 387, here “ Con­
gress put forth all its powers” ; it meant to afford 
all possible protection but it was careful not to over­
step the constitutional line, wherever it might later be 
drawn.

II
SECTION 242 OF THE CRIMINAL CODE REACHES PRIVATE 

INDIVIDUALS WHO ACT IN ASSOCIATION WITH STATE 
OFFICERS TO CARRY OUT A SCHEME TO INVADE RIGHTS 
SECURED BY THE PROVISION.

As we have already noted, the two indictments be­
fore the Court clearly charge violations of specific 
rights guaranteed by the Fourteenth Amendment. It 
is settled that such conduct “ under color of law,”  if



29

done willfully as here alleged, contravenes Section 242 
of the Criminal Code. Screws v. United States, 325 
U.S. 91; Williams v. United States, 341 U.S. 97. Ac­
cordingly, the court below sustained the indictment in 
No. 60 with respect to the defendants who hold State 
office and were alleged to be acting officially (albeit 
illegally). But—while upholding as to all the charge 
of conspiring to violate Section 242—the court dis­
missed the substantive charges against the private de­
fendants on the ground that they lacked capacity to 
commit the offense defined by Section 242. W e think 
the ruling erroneous, first, because, in the circum­
stances alleged, the private defendants, although not 
State officials, were acting “ under color of law”  with­
in the meaning of the statute; and, second, because, ! 
regardless of their capacity to themselves commit the 
offense, they are amenable to Section 242 as aiders 
and abettors of the State officials charged.

A. The trial judge correctly observed that the in­
dictment in No. 60 does not claim that fourteen of 
the defendants were public officials of the State of 
Mississippi, de jure or de facto. On the other hand, 
the substantive counts (R. 13-16) explicitly charge 
that each of the defendants, including those who held 
no official position, were “ acting under color of the 
laws of the State of Mississippi,”  and the indictment, 
as a whole, alleges that all of them were joint con­
spirators, the private defendants acting in close as­
sociation with those who were law enforcement officers, 
one of whom was present at all times and presumably 
lent the protective umbrella of his office to all that



30

was done. Thus, it is apparent that the court below 
held that private persons are never amenable to the 
sanctions of Section 242, no matter what the circum­
stances. Otherwise, the allegation of action “ under 
color of law” , in the language of the statute, should 
have required upholding the charge. In effect, the 
ruling is that none but State officers can act “ under 
color of law” within the meaning of Section 242. The 
proposition, we submit, is untenable.

Certainly, nothing in the nature of the rights pro­
tected by Section 242 requires confining its reach to 
State officers in all circumstances. Indeed, it has long 
been settled that the conduct of private persons may 
be subject to the prohibitions of the Fourteenth 
Amendment i f  the State, through its officers, “ has so 
far insinuated itself into a position of interdepend­
ence * * * that it must be recognized as a joint par­
ticipant in the challenged activity.” Burton v. Wil­
mington Parking Authority, 365 U.S. 715, 725. There 
are many variations, E.g., Pennsylvania v. Board of 
Trusts, 353 U.S. 230; Peterson v. City of Greenville, 
373 U.S. 244; Lombard v. Louisiana, 373 U.S. 267; 
Griffin v. Maryland, 378 U.S. 130; Robinson v. Flor­
ida, 378 U.S. 153. But the basic situation is always 
the same: a private activity falls within the scope of 
the Fourteenth Amendment because— albeit without 
assuming full official status or altogether losing its 
private character— it becomes involved in a “ joint 
venture”  of soils with the State. That is our case.

I f  the scope of action “ under color of law” is co­
extensive with “ State action”  under the Fourteenth



31

Amendment— as is usually tacitly assumed 10—the de­
cisions just cited end the question. But there are, in 
any event, like rulings construing the phrase “ under 
color of law” in 18 U.S.C. 242 or its civil counterpart, 
42 U.S.C. 1983—where it has the same meaning. 
Monroe v. Pape, 365 U.S. 167, 185. Thus, in Baldwin 
v. Morgan, 251 F. 2d 780, 788 (C.A. 5), the court re­
jected a claim that private persons were not acting 
“ under color of any law” in these words:

State action is indeed required under the 
Fourteenth Amendment and 42 U.S.C.A. § 1983. 
But those who directly assist the admitted state 
agency in carrying out the unlawful action be­
come a part of and subject to the sanction of 
Section 1983. * * *

See, also, Smith v. Holiday Inns of America, 336 F. 
2d 630 (C.A. 6 ) ; Hampton v. City of Jacksonville, 304 
F. 2d 320 (C.A. 5) ; Simkins v. Moses H. Cone Me­
morial Hospital, 323 F. 2d 959 (C.A. 4 ) ; Valle v. 
Stengel, 176 F. 2d 697 (C.A. 3).

10 Thus, most of the modern cases construing the Fourteenth 
Amendment were filed under 28 U.S.C. 1343(3) which gives 
the district courts jurisdiction of civil cases to redress depriva­
tion of constitutional rights “under color of any State law, 
statute, ordinance, regulation, custom or usage,” and the in­
junction was sought and granted under 42 U.S.C. 1983 which 
provides for equitable relief from a deprivation of constitution­
al right “under color of any statute, ordinance, regulation, cus­
tom, or usage, of any State or Territory.” See, e.g.. Turner v. 
City of Mem,phis, 369 U.S. 350, 351; McNeese v. Board of Edu­
cation, 373 U.S. 668, 671; Reynolds v. Sims, 377 U.S. 533, 537. 
The assumption apparently indulged is that whatever violates 
the Amendment necessarily was done “under color of law.”



32

Closest in point, perhaps, is United States v. Lynch, 
94 F. Supp. 1011 (N.D. Ga.), affirmed, 189 F. 2d 476 
(C.A. 5), certiorari denied, 342 U.S. 831, a case strik­
ingly similar to ours. There, it was charged that a 
sheriff and his deputy arrested several persons and 
“ turn[ed] them over to a hooded group in disguise to 
be beaten.”  On these facts the court held:

While it is true that one must be acting under 
color of state law in order to violate Section 242, 
and that ordinarily a private citizen would not 
act under color of law, it is also true that the 
presence of state officers and their active par­
ticipation with other defendants who were not 
officers would furnish the “ color of law” re­
quired as to all the defendants. [94 F. Supp. 
at 1014. J11

W e conclude, as in Lynch, that when the private 
members of the mob knowingly linked hands with 
the officers to carry out a common plan to deprive 
Schwerner, Goodman and Chaney of their constitu­
tional rights they lost their claim to be treated as 
mere private citizens. Having united with State 
officials and invoked the protective umbrella of their 
presence, the private defendants were acting “ under 
color o f law”  and became amenable to the sanctions 
of Section 242.

11 See, also, Downie v. Powers. 193 F. 2d 760 (C.A. 10), where 
the court held that “ * * * a wilful or purposeful failure of the 
Chief of Police or other City officials to preserve order, keep the 
peace, and to make the Jehovah’s Witnesses secure in their 
right to peaceably assemble, would undoubtedly constitute ac­
quiescence in, and give color of law to, the actions of the mob.”  
193 F. 2d at 764. And see 'Williams v. United States, 179 F. 2d 
656 (C.A. 5 ), affirmed, 341 U.S. 97.



33

B. In addition, the substantive charges against the 
private defendants should have been sustained on the 
ground that they may have been aiders and abettors 
of the State officers jointly indicted. While that rela­
tionship is suggested by the language of indict­
ment, it is true that the private defendants are for­
mally charged as principals, as themselves acting 
“ under color of the laws of the State of Mississippi.”  
But, as already noted (note 4, supra, p. 9), indict­
ment as a principal is no bar to conviction as an 
aider or abettor (which, in turn, permits punishment 
as a principal).12

The governing principle that one without capacity 
to commit an offense may nevertheless be convicted 
if  he aided and abetted its commission is well settled. 
The rule is embodied in 18 U.S.C. 2(a) which provides 
that “  [wjhoever * * * aids, abets, counsels, com­
mands, induces, or procures [the] commission [o f an 
offense against the United States] is punishable as a 
principal.”  Whatever doubt there may have been that 
persons lacking capacity to commit the substantive 
offense were covered was removed in 1951 when the

12 See, in addition to the authorities cited at note 4, supra, 
p. 9, United States v. Russo, 284 F. 2d 539 (C .A. 2 ) ;  Swanne 
Soon Young Pang v. United Stales, 209 F. 2d 245 (C.A. 9) ; 
United States v. Knickerbocker Fur Coat Co., 66 F. 2d 388 
(C.A. 2 ) ;  Melting v. United States, 25 F. 2d 92 (C.A. 7 ) ;  
DiPreta v. United States, 270 Fed. 73 (C.A. 2 ) ;  Vane v. United 
States, 254 Fed. 32 (C.A. 9 ) ; United States v. Snyder, 14 Fed. 
554 (D. Minn.) ; United States v. Palermo, 172 F. Supp. 183 
(E.D. N .Y .) ; United States v. ■/. R. Watkins C o 127 F. Supp. 
97 (D. M inn .); United States v. Selph, 82 F. Supp. 56 (S.D. 
C a l.) ; United States v. Decker, 51 F. Supp. 20 (D. M d.).



34

aider and abettor statute was amended to read as it 
does now. The report accompanying that legislation 
(S. Rep. No. 1020, 82d Cong., 1st Sess., p. 7) ex­
plicitly states:

This section is intended to clarify and make 
certain the intent to punish aiders and abettors 
regardless of the fact that they may be in­
capable of committing the specific violation 
which they are charged to have aided and 
abetted. * * *

The judicial decisions are in accord. See Wilson 
v. United States, 230 F. 2d 521, (C.A. 4 ) ;  Koehler v. 
United States, 189 F. 2d 711, (C.A. 5 ) ; May v. 
United States, 175 F. 2d 994 (C.A. D .C .); Haggerty 
v. United States, 5 F. 2d 224 (C.A. 7 ) ; Barron v. 
United States, 5 F. 2d 799, (C.A. 1) ; United States v. 
Snyder, 14 Fed. 554 (D. M inn .); United States 
v. Melekh, 193 F. Supp. 586, (N.D. 111.); United 
States v. Bayer, 4 Dill. 407, 24 Fed. Cas. 1046 (D. 
Minn.). The Wilson and Snyder cases make it clear 
that the rule applies when the aider and abettor is 
incapable of committing the offense because he is not 
acting “ officially”  or does not hold the described 
public office. Thus, in Wilson, the statute (now 18 
U.S.C. 201) reached only the solicitation or accept­
ance of bribes by a government officer acting in his 
“ official capacity”  and the court sustained the con­
viction of one who claimed not to be so acting on 
the alternative ground that he was, in any event, 
punishable as an aider or abettor. And in Snyder, 
a co-defendant who was not himself a postmaster but 
had aided and abetted the postmaster was held ac­
countable under a statute that punished “ [a]ny post­



35

master who shall make a false return to the auditor 
for the purpose of fraudulently increasing his 
compensation. ’ ’

The same rule applies with respect to Section 242. 
Thus, in Koehler v. United States, supra, a State o f­
ficer and one Ackermann, who was a private indi­
vidual,13 were jointly indicted for violating Section 
242 and the court sustained Ackermann’s conviction 
for having “ aided, abetted and counseled Koehler in 
the commission of this otfense” , finding that the “ evi­
dence conclusively reveals that Ackermann and Koehler 
were acting in concert in perpetrating the offense”  
and that Ackermann was “ assisting”  Koehler. 189 
F. 2d at 712-714. Likewise, in United States v. 
Lynch, 94 F. Supp. 1011 (K.D. Ga.), affirmed, 189 F. 
2d 476 (C.A. 5), certiorari denied, 342 U.S. 831, some 
of the defendants were police officials and others were 
private citizens. In answer to the private defendants’ 
argument that they could not violate Section 242 “ be­
cause it related only to deprivations by a state,”  the 
district court ruled (94 F. Supp. at 1013):

True, Section 242 was enacted pursuant to the 
Fourteenth Amendment and relates to depriva­
tions by states (acting through state officials) 
and not to acts of private individuals. It does

13 Although the Koehler opinion itself does' not explicitly 
state that Ackermann was a private person, a subsequent opin­
ion of the same court describes the Koehler case as one “in 
which a private citizen assisted a constable in a brutal assault 
and unlawful imprisonment * * *” Baldtvin v. Morgan, 251 F. 
2d 780, 789 (C.A. 5). Thus the court below was in error 
when, in referring to the Koehler case, it stated that “Acker­
mann was not a mere private citizen * * *” (It. 21).



36

not follow, however, that private individuals 
cannot be guilty as principals if they aid and 
abet state officers in such violations. Section 2, 
Title 18, United States Code Annotated.

CONCLUSION

For the foregoing reasons, the judgments of the 
district court dismissing the indictment in No. 59 in 
its entirety and parts of three counts of the indict­
ment in No. 60 should be reversed and the causes 
remanded for trial.

Respectfully submitted.
T hurgood Marshall,

Solicitor General. 
John Doar,

Assistant Attorney General. 
Louis F. Claiborne, 

Assistant to the Solicitor General. 
Gerald P. Choppin,
P eter S. Smith ,

Attorneys.
September 1965.



A P P E N D IX

Remarks of Senator Pool of North Carolina on 
sponsoring Sections 5, 6 and 7 of the Enforcement 
Act of 1870 (Cong. Globe, 41st Cong., 2d Sess., pp. 
3611-3613).

Mr. P ool. Mr. President, the question in­
volved in the proposition now before the Senate 
is one in which my section of the Union is par­
ticularly interested; although since the ratifica­
tion of the fifteenth amendment, which we are 
now about to enforce by appropriate legisla­
tion, other sections of the country have become 
more or less interested in the same question. 
It is entering upon a new phase of reconstruc­
tion; that is, to enforce by appropriate legis­
lation those great principles upon which the 
reconstruction policy of Congress was based.

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

Mr. President, the first thing that was done 
was the passage of the thirteenth amendment, 
by which slavery in the United States was 
abolished. By that four millions of people

( 3 7 )



38

were taken out from under the protecting hand 
of interested masters and turned loose to take 
care of themselves. They were turned loose 
and put upon their own resources in communi­
ties which were imbued with prejudices against 
them as a race, communities which for the most 
part had for years past—indeed from the very 
time when those who are now in existence were 
born—been taught and had instilled into them 
a prejudice against the equality which has been 
attempted to be established for the colored 
citizens of the United States.

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



39

We have heard on former occasions on the 
floor o f the Senate that there were organizations 
which committed outrages, which went through 
communities for the purposes, of intimidating 
and coersing classes of citizens in the exercise 
of their rights. W e have been told here that 
perhaps it might be well that retaliation should 
be resorted to on the part o f those who are 
oppressed. Sir, the time will come when re­
taliation will be resorted to unless the Govern- 
ment of the United States interposes to com­
mand and to maintain the peace; when there 
will be retaliation and civil war; when there 
will be bloodshed and tumult in various com­
munities and sections. It is not only neces­
sary for the freedmen, but it is important to 
the white people of the southern section, that 
by plain and stringent laws the United States 
should interpose and preserve the peace and 
quiet of the community.

The fifteenth amendment to the Constitution 
of the United States provides that the right of 
citizens of the United States to vote shall not 
be denied or abridged by the United States, or 
by any State on account of race, color, or 
previous condition o f servitude. It speaks of 
“ the right o f citizens to vote.”  It has been 
said that voting is a privilege; but this amend­
ment recognizes it as a right in the citizen; and 
this right is not to “ be denied or abridged by 
the United States, or by any State.” What 
are we to understand by that ? Can individuals 
abridge it with impunity? Is there no power 
in this Government to prevent individuals or 
associations of individuals from abridging or 
contravening that provision o f the Constitu­
tion? I f  that be so, legislation is unnecessary. 
I f  our legislation is to apply only to the States, 
it is perfectly clear that it is totally unneces­
sary, inasmuch as we cannot pass a criminal 
law as applicable to a State; nor can we in­
dict a State officer as an officer. It must ap­



40

ply to individuals. A  State might attempt to 
contravene that provision of the Constitution 
by passing some positive enactment by which 
it would be contravened, but the Supreme Court 
would hold such enactment to be unconstitu­
tional, and in that way the State would be re­
strained. But the word “ deny”  is used. There 
are various ways in which a State may prevent 
the full operation of this constitutional amend­
ment. It cannot—because the courts would 
prevent it—by positive legislation, but by acts 
of omission it may practically deny the right. 
The legislation of Congress must be to supply 
acts of omission on the part o f the States. I f  
a State shall not enforce its laws by which 
private individuals shall be prevented by force 
from contravening the rights of the citizen 
under the amendment, it is in my judgment the 
duty o f the United States Government to sup­
ply that omission, and by its own laws and 
by its own courts to go into the States for the 
purpose of giving the amendment vitality there.

The word “ deny”  is used not only in this 
fifteenth amendment, but I  perceive in the four­
teenth amendment it is also used. When the 
fourteenth amendment was passed there was in 
existence what is known as the civil rights bill, 
a part of which has been copied in the Senate 
bill now pending. The civil rights bill recog­
nized all persons born or naturalized in the 
United States as citizens, and provided that 
they should have certain rights which were 
enumerated. They are, “ to make and enforce 
contracts, to sue, be made parties, give evi­
dence, to inherit, purchase, lease, sell, hold and 
convey real and personal property,”  and to 
“ the full and equal benefit of all laws and pro­
ceedings for the security o f person and prop­
erty.”

The civil rights bill was to be enforced by 
making it criminal for any officer, under color 
o f any State law, “ to subject, or cause to be



41

subjected, any citizen to the deprivation of any 
o f the rights secured and protected”  by the act. 
I f  an officer of any State were indicted for 
subjecting a citizen to the deprivation of any 
of those rights he was not to be indicted as an 
officer; it was as an individual. And so, under 
the fourteenth amendment to the Constitution, 
“ no State shall make or enforce any law which 
shall abridge the privileges or immunities of 
citizens o f the United States; nor shall any 
State deprive any person of life, liberty, or 
property without due process of law, nor deny to 
any person within its jurisdiction the equal pro­
tection of the laws.”  There the word “ deny”  
is used again; it is used in contradistinc­
tion to the first clause, which says, “ No State 
shall make or enforce any law”  which shall do 
so and so. That would be a positive act which 
would contravene the right of a citizen; but to 
say that it shall not deny to any person the 
equal protection of the law it seems to me opens 
up a different branch of the subject. It shall 
not deny by acts of omission, by a failure to 
prevent its own citizens from depriving by 
force any of their fellow-citizens of these rights. 
It is only when a State omits to carry into effect 
the provisions of the civil rights act, and to 
secure the citizens in their rights, that the pro­
visions o f the fifth section of the fourteenth 
amendment would be called into operation, 
which is, “ that Congress shall enforce by ap­
propriate legislation the provisions of this 
article.”

There is no legislation that could reach a 
State to prevent its passing a law. It can only 
reach the individual citizens of the State in 
the enforcement of law. You have, therefore, 
in any appropriate legislation, to act on the cit­
izen, not on the State. I f  you pass an act by 
which you make it an indictable offense for 
an officer to execute any law of a State by



42

which he trespasses upon any of these rights 
of the citizen it operates upon him as a citizen, 
and not as an officer. W hy can you not just 
as well extend it to any other citizen of the 
country ?

It is, in my judgment, incumbent upon Con­
gress to pass the most stringent legislation on 
this subject. I  believe that we have a perfect 
right under the Constitution of the United 
States, not only under these three amendments, 
but under the general scope and features and 
spirit of the Constitution itself, to go into any 
of these States for the purpose of protecting 
and securing liberty. I  admit that when you 
go there for the purpose of restraining liberty, 
you can go only under delegated powers in ex­
press terms; but to go into the States for the 
purpose of securing and protecting the liberty 
of the citizen and the rights and immunities 
o f American citizenship is in accordance with 
the spirit and whole object of the formation 
o f the Union and the national Government.

There are, Mr. President, various ways in 
which the right secured by the fifteenth amend­
ment may be abridged by citizens in a State. 
I f  a State should undertake by positive enact­
ment, as I  have said, to abridge the right of 
suffrage, the courts of the country would pre­
vent it; and I  find that in section two of the 
bill which has been proposed as a substitute by 
the Judiciary Committee of the Senate pro­
vision is made for cases where officers charged 
with registration or officers charged with the 
assessment o f taxes and with making the proper 
entries in connection therewith, shall refuse the 
right to register or to pay taxes to a citizen. I  
believe the language of the Senate bill is suf­
ficiently large and comprehensive to embrace 
any other class of officers that might be charged 
with any act that was necessary to enable a 
citizen to perform any prerequisite to voting.



43

But, sir, individuals may prevent the exercise 
of the right of suffrage; individuals may pre­
vent the enjoyment of other rights which are 
conferred upon the citizen by the fourteenth 
amendment, as well as trespass upon the right 
conferred by the fifteenth. Not only citizens, 
but organizations of citizens, conspiracies, may 
be and are, as we are told, in some of the States 
formed for that purpose. I  see in the fourth 
section of the Senate bill a provision for cases 
where citizens by threats, intimidation, bribery, 
or otherwise prevent, delay, or hinder the exer­
cise of this right; but there is nothing here that 
strikes at organizations of individuals, at con­
spiracies for that purpose. I  believe that any 
bill will be defective which does not make it a 
highly penal offense for men to conspire to­
gether, to organize themselves into bodies, for 
the express purpose of contravening the right 
conferred by the fifteenth amendment.

But, sir, there is a great, important omission 
in this bill as well as in that of the House. It 
seems not to have struck those who drew either 
of the two bills that the prevention o f the exer­
cise of the right of suffrage was not the only or 
the main trouble that we have upon our hands. 
Suppose there shall be an organization of indi­
viduals, or, if  you please, a single individual, 
who shall take it upon himself to compel his 
fellow citizens to vote in a particular way. 
Suppose he threatens to discharge them from 
employment, to bring upon them the outrages 
which are being perpetrated by the Kuklux or­
ganizations, so as not to prevent their voting, 
but to compel them to vote in accordance with 
the dictates of the party who brings this co­
ercion upon them. It seems to me it is neces­
sary that we should legislate against that. 
That is a more threatening view of the subject 
than the mere preventing of registration or of 
entering men’s names upon the assessment 
books for taxation or of depositing the ballot in



44

the box. I  think the bill cannot be perfected to 
meet the emergencies of the occasion unless 
there be a section which meets that view of the 
case.

The Senator from Indiana [Mr. Morton] asks 
whether I  have drawn an amendment to that 
effect. I  have, but I  cannot offer it at this 
time, for the simple reason that there is an 
amendment to an amendment pending.

Mr. Morton. Let it be read for information.
Mr. P ool. It has been printed, and I  send it 

to the desk to be read for information.
The Chief Clerk read the amendment in­

tended to be proposed by Mr. Pool, as follows:
“ Insert after section four of the Senate bill 

the following sections:
“ Sec. 5. And be it further enacted, That it 

shall be unlawful for any person, with intent to 
hinder or influence the exercise of the right of 
suffrage as aforesaid, to coerce or intimidate, 
or attempt to coerce or intimidate any of the 
legally qualified voters in any State or Terri­
tory. Any person violating the provisions of 
this section shall be held guilty of a misde­
meanor, and on conviction thereof shall be fined 
or imprisoned, or both, in the discretion o f the 
court: the fine not to exceed $1,000, and the im­
prisonment not. to exceed one year.

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



45

years; and shall, moreover, be thereafter inel­
igible to and disabled from holding any office or 
place of honor, profit, or trust created by the 
Constitution or laws o f the United States.'

Sec. 7. And be it further enacted, That if  in 
the act of violating any provision in either of 
the two preceding sections, any other felony, 
crime, or misdemeanor shall be committed, the 
offender may be indicted or prosecuted for the 
same in the courts of the United States, as here­
inafter provided, for violations of this act, and 
on conviction thereof shall be punished for the 
same with such punishments as are attached to 
like felonies, crimes, and misdemeanors by the 
laws of the State in which the offense may be 
committed.

“ Strike out section twelve and substitute 
therefor the following:

“ And be it further enacted, That the Presi­
dent of the United States, or such person as he 
may empower for that purpose, may employ in 
any State such part of the land and naval 
forces o f the United States, or of the militia, as 
he may deem necessary to enforce the complete 
execution of this act; and with such forces may 
pursue, arrest, and hold for trial all persons 
charged with the violation of any of the provi­
sions of this act, and enforce the attendance of 
witnesses upon the examination or trial of such 
persons.”

* * * * *
Mr. P ool. The Senator from Indiana asked 

if  I  had an amendment prepared which met 
the view of the case I was presenting in regard 
to the compelling of citizens to vote in a partic­
ular way. The first section of the amendment 
which I  have offered uses this language:

‘ ‘ That it shall be unlawful for any person 
with intent to hinder or influence the exercise 
o f the right of suffrage as aforesaid, to coerce 
or intimidate or attempt to coerce or intimidate



46

any of the legally qualified voters in any State 
or Territory.”

But, Mr. President, there is another view 
which seems to have been lost sight o f entirely 
by those who have drawn both the House bill 
and the bill now pending before the Senate, 
and from which we apprehend very much dan­
ger. It is this: the oppression of citizens be­
cause of having voted in a particular way, or 
having voted at all. It may often happen, as 
it has happened up to this time already, that 
upon the close o f an election colored persons 
will be discharged from employment by their 
employers. They may be subjected to outrages 
o f various kinds because they have participated 
in an election, and cast their votes in a par­
ticular way. That is not done for the purpose 
o f punishment so much as for the purpose of 
deterring them from voting in any succeeding 
election, or from voting in a way that those 
who perpetrate these outrages do not desire 
them to do. I  find that branch of the subject 
is entirely left out o f  view in the bill.

There is another feature of my amendment 
which I  deem of some importance. It is this:

“ That if  in the act of violating any provi­
sion in either of the two preceding sections any 
other felony, crime, or misdemeanor shall be 
committed, the offender may be indicted or 
prosecuted for the same in the courts of the 
United States.”

I  think the most effective mode of preventing 
this intimidation and these attempts at coer­
cion. as well as the outrages which grow out 
of these attempts, would be found in making 
any offense committed in the effort to violate 
them indictable before the courts of the United 
States. As was said before, in the discussion 
of the Georgia question in the Senate, the juries 
in the communities where these outrages are 
committed are often composed of men who are 
engaged in them, or of their friends, or of those



47

who connive at them, or of persons who are 
intimidated by them, and in many instances 
they dare not bring in a true bill when there is 
an attempt to indict, or if  a true bill be found, 
they dare not go for conviction on the final 
trial. It is for that reason that I  believe it will 
be better, it will be the only effective remedy, to 
take such offenders before the courts of the 
United States, and there have them tried by a 
jury which is not imbued with the prejudices 
and interests of those who perpetrate the 
crimes.

These are the principal features of the 
amendment which I  have drawn in the effort 
to perfect this bill; and there is another one 
to which I will call the attention of the Senate. 
It is that in regard to calling out the military 
forces of the United States. I  find that in the 
civil rights bill, as in the bill which has been 
introduced by the Senate Judiciary Committee, 
the President is authorized, either by himself 
or by such person as he may empower for that 
purpose, to use the military forces of the United 
States to enforce the act. There in both in­
stances it stops. It has been objected to here 
that the expression, “ or such other person as 
he may empower for that purpose,”  should not 
be in the bill; that it may be subject to abuse. 
I  think it would have no good effect to keep 
that language in. The President may send his 
officers and he may empower whomsoever he 
pleases to take charge of his forces without 
any such provision.

But there is a use for these forces which seems 
not to have been averted to in either the civil 
rights bill or in the bill that is now pending 
before the Senate. It is the holding of these 
offenders for examination and trial after they 
are arrested. Their confederates, i f  they are 
put in the common prison of the State, will in 
nine cases out of ten release them. But more 
important still is it to use these forces to com-



48

pel the attendance of witnesses; for a subter­
fuge resorted to is to keep witnesses away 
from the trial. In many instances witnesses 
are more or less implicated in the commission 
of the offense. In other cases the witnesses 
are intimidated and cannot be obtained upon 
the trial. So in the amendment which I  have 
prepared I  have proposed that these forces may 
be used to enforce the attendance of witnesses 
both upon the examination and the trial. My 
purpose in introducing this was to perfect the 
Senate bill. I  think, as I  said yesterday, that 
that bill is liable to less objection than the 
House bill. I  think it is more efficacious in its 
provisions. I  think it is better that the Senate 
should direct its attention to perfecting that 
bill, in order that it may be made, when per­
fected, a substitute for the bill that came from 
the House.

That much being said upon the purpose of 
perfecting the bill and making it efficacious, I 
have very little more to say. I  did not intend 
when I  rose to say much upon the general 
power, which has been questioned here, to pass 
any law at all. I  think it is better to do 
nothing than to do that which will not have 
the proper effect. To do that which will not 
accomplish the purpose would be worse than 
doing nothing at all. That the United States 
Government has the right to go into the States 
and enforce the fourteenth and the fifteenth 
amendments is, in my judgment, perfectly clear, 
by appropriate legislation that shall bear upon 
individuals. I  cannot see that it would be pos­
sible for appropriate legislation to be restored 
to except as applicable to individuals who vio­
late or attempt to violate these provisions. 
Certainly we cannot legislate here against 
States. As I  said a few moments ago, it is 
upon individuals that we must press our legis­
lation. It matters not whether those individ­
uals be officers or whether they are acting upon



49

their own responsibility; whether they are act­
ing singly or in organizations. I f  there is to 
be appropriate legislation at all, it must be that 
which applies to individuals.

I believe that the United States has the 
right, and that it is an incumbent duty upon it, 
to go into the States to enforce the rights of 
the citizens against all who attempt to infringe 
upon those rights when they are recognized 
and secured by the Constitution of the country. 
I f  we do not possess that right the danger to 
the liberty of the citizen is great indeed in 
many parts of this Union. I  think this ques­
tion will come time and again as years pass by, 
perhaps before another year, in different forms 
before the Senate. It is well that we should 
deal with it now and deal with it squarely, and 
I  hope that the Senate will not hestitate in 
doing so.

Mr. President, the liberty of a citizen of the 
United States, the prerogatives, the rights, and 
the immunities of American citizenship, shoud 
not be and cannot be safely left to the mere 
caprice of States either in the passage of laws 
or in the withholding of that protection which 
any emergency may require. I f  a State by 
omission neglects to give to every citizen within 
its borders a free, fair, and full exercise and 
enjoyment o f his rights it is the duty of the 
United States Government to go into the State, 
and by its strong arm to see that he does have 
the full and free enjoyment o f those rights.

Upon that ground the Republican party must 
stand in carrying into effect the reconstruction 
policy, or the whole fabric of reconstruction, 
with all the principles connected with it, 
amounts to nothing at all; and in the end it 
will topple and fall unless it can be enforced 
by the appropriate legislation, the power to 
enact which has been provided in each one of 
the great charters o f liberty which that party 
has put forth in its amendments to the Con-



50

stitution. Unless the right to enforce it by 
appropriate legislation is enforced stringently 
and to the point, it is clear to my mind that 
there will be no efficacy whatever in what has 
been done up to this time to carry out and to 
establish that policy.

I  did not rise, sir, for the purpose o f arguing 
the question very much in detail. I  did not 
rise for the purpose o f making any appeals to 
the Senate; but more for the purpose of assert­
ing here and arguing for a moment the gen­
eral doctrine of the right o f the United States 
to intervene against individuals in the States 
who attempt to contravene the amendment to 
the Constitution which we are now endeavoring 
to enforce, and for the purpose of calling atten­
tion to the defects in the bill and offering a 
remedy for them.

U.S.  GOVERNMENT PRINTING 0F FI C E» I9 6 5



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