Hughes's opinion.

where the learned justice distinguishes between those provisions of the National Constitution which guarantee fundamental rights, the duty of protecting which properly belongs to the States, and those provisions which either create rights or enjoin affirmative legislation upon Congress for their protection.

I cannot but express a cordial and full concurrence in the following remarks of Mr. Justice Bradley on that subject. He says:

"With regard to those acknowledged rights and privileges of the citizen which form a part of his political inheritance derived from the mother country, and which were challenged and vindicated by centuries of stubborn resistance to arbitrary power, they belong to him as his birthright, and it is the duty of the particular State of which he is a citizen to protect and enforce them, and to do nought to deprive him of their full enjoyment.

"When any of these rights and privileges are secured by the Constitution of the United States only by a declaration that the State or the United States shall not violate or abridge them, it is at once understood that they are not created or conferred by the Constitution, but that the Constitution only guarantees that they shall not be impaired by the State, or the United States, as the case may be.

"The fulfilment by the United States of this guaranty is the only duty with which that government is charged.

"The affirmative enforcement of the rights and privileges themselves, unless something more is expressed, does not devolve upon it, but belongs to the State government as a part of its residuary sovereignty."

If this distinction be correct, then, as the right of voting is not conferred by the National Constitution, nor even guaranteed by that instrument, except in a qualified and negative way by the Fifteenth Amendment, it is not one of those rights over which, when proposed to be exercised in a State election, Congress or the National courts have jurisdiction.

Thus are we brought by legitimate argument, founded upon the decision in the Slaughter-house Cases, and the very able one in the Cruikshank Case, to a conclusion against the validity of the eight indictments pending against the judges of election of Petersburg.

But there is a much more direct method of reaching the same conclusion, which avoids a resort to the power of construction, and which renders useless the distinction drawn by the National

Hughes's opinion.

courts in the cases alluded to between the rights belonging to a person respectively in his two characters of citizen of the State and citizen of the United States, and between the rights created or conferred, and those merely guaranteed by the National Constitution. It is this:

Admit for argument's sake, that the Fourteenth Amendment, in its first paragraph, was intended to prohibit the abridgment of any privilege of the citizen by the State, or by its citizens, on any account whatever: yet the second paragraph of the same amendment, which leaves to the States the power always held by them to prescribe the qualifications for suffrage at their pleasure in National and State elections, expressly excepts the right of voting from those general privileges; and the most that can be insisted upon is that the Fourteenth Amendment protects the citizen of the United States in all privileges except the right of voting, and leaves this right to be regulated ad libitum by the States. It was this latter fact which created the necessity for the Fifteenth Amendment, and that amendment would mean nothing, and would have been wholly unnecessary if before its adoption the States had not had uncontrolled power over the right of suffrage. Its sole object was to limit the unrestrained power of the State over this right which had been conceded by the Fourteenth Amendment; but it undertook to limit the power only in one respect. It declared in substance that notwithstanding the States possessed uncontrolled power over this right they should be restricted in exercising their power at least this far, to wit: They should not deny or abridge the right of the citizen to vote "on account of race, color, or previous condition of servitude."

I am, therefore, of opinion that any law of Congress is unconstitutional which makes the preventing of a voter from voting in a State election penal on any other account than of race, color, or previous condition of servitude; and that any indictment charging such an offence, though founded upon such a law or section of a law of Congress, is invalid to give jurisdiction of such an offence to this court. I think, consequently, that the demurrers of the defendants to the eight indictments against the

Hughes's opinion.

Petersburg judges of election are good, and that the indictments should be quashed.

II. The three indictments pending against certain registrars of election in Petersburg differ in two respects as to the questions which I have been considering, from those pending against the judges of election.

1. They allege that the persons who were prevented from registering were of African descent, but omit to charge that they were prevented from registering "on account of race, color, or previous condition of servitude." These are not indictments, therefore, founded upon the Fifteenth Amendment or any act of Congress passed for enforcing it. We are not at liberty to infer from the mere circumstances that a man was of any particular race, and prevented from exercising a right, that he was so prevented on account of his race. That fact must be charged before it can be proved, and the failure to charge it is, I think, fatal to these indictments, so far as the Fifteenth Amendment and the statutes enforcing it are concerned.

2. These three indictments each charge in substance that the defendant "did refuse and knowingly omit to give to all citizens of the United States in his ward the same and equal opportunity, without distinction of race, color, or previous condition of servitude, to register, etc.; but to the contrary thereof, refused and knowingly omitted to give A., B., C., D., and E. the opportunity to register which he gave to others, the said A., B., C, D., and E.. being qualified, etc., and citizens of the United States of "African race and descent." By not charging that the refusal was on account of the race, etc., of the injured persons, these indictments, for the reasons I have stated, do not come under the Fifteenth Amendment. If they are valid at all, to give jurisdiction to this court it must be under the Fourteenth Amendment and the 4th section of the Act of May, 1870. But, for reasons already abundantly stated, registration is a right conferred by the State. Each of the three indictments under immediate consideration expressly recites that the right is conferred by the laws of Virginia, and that the duties of the registrar were duties imposed by State laws. Nor do they charge that in consequence of the failure of the injured persons named to be admitted to registra

Syllabus.

tion they lost their right to vote either at a State election or an election held for officers of the United States. The denial merely of registration is an offence against the State, if it be on any other account than of race, color, etc., If the indictments had charged that the denial had been on account of race, etc., the offence would have been cognizable here; or if, after charging the denial, the indictments had gone on to charge that in consequence thereof the citizen of the United States was prevented from voting at an election held for a member of Congress, or electors of a President of the United States, I am inclined to think that the offence would have been cognizable here. But a charge merely that a citizen of the United States was denied registration, without other allegation to make it appear that some right was abridged which belonged to the man as a citizen of the United States, is not sufficient to give cognizance of the offence to this court.

I, am, therefore, of opinion that the demurrers to these indictments against the Petersburg registrars ought to be sustained, and that the latter ought to be quashed.

The judges being divided in opinion, the case was certified to the Supreme Court of the United States.

United States Circuit Court, Eastern District of Virginia, at Alexandria, July Term, 1874.

UNITED STATES v. E. R. TAYLOR.

Section 279 of the Revised Postal Laws of 1872 (v. 17, p. 298, ch. 335, section 114 of the acts of Congress for that year; now section 5467 of the Revised Statutes of the United States) created two distinct offences, to wit, first, the embezzling, etc., of a letter carried in the United States mail, and second, the stealing of its contents; and, therefore, an indictment charging merely the embezzlement is sufficient to sustain a verdict of guilty, on motion in arrest of judgment, and to warrant judgment and

sentence.

Arrest of judgment.

This was an indictment against the defendant, as a postal-car clerk, engaged in the postal service of the United States, on the mail route from Washington City to Lynchburg, Virginia, on the Orange, Alexandria, and Manassas Railroad, for embezzling a letter intrusted to him which was intended to be conveyed by mail and to be delivered at the town of Charlottesville, the letter having been addressed to John T. & Henry McColly at the University of Virginia, and having contained fourteen coupons, each for $35, aggregating to $490 in value; the letter having been deposited at the post-office at Huntsville, Alabama, and having never been delivered at Charlottesville, Virginia.

The United States Attorney, L. L. Lewis, for the prosecution.

L. H. Chandler, Alfred Morton, and B. W. Hoxsey, for the defence.

The jury brought in a verdict of guilty, and most of them accompanied the verdict with a paper recommending the prisoner to the clemency of the court.

The counsel of the prisoner, through Mr. Alfred Morton, moved for an arrest of judgment, on the following grounds:

Section 279 of the act of Congress, "to revise, consolidate, and amend the statutes relating to the Post-office Department," approved June 8th, 1872, is so worded as to seem to make one offence of the several acts, which it describes, and, in its latter clause, to employ a different phraseology from that which was used in section 21 of the statute of March 3d, 1825, of which it is a revisal. The section as it now stands declares that any person employed in the postal service, who shall secrete, embezzle, or destroy any letter coming into his possession, which was intended to be conveyed by the mail, containing any agreement for the payment of money; any such person who shall steal or take such contents out of any letter coming into his possession in the regular course of his official duties, provided the letter shall not have been delivered to the person to whom addressed, every such person shall, on conviction thereof, for every such offence, be imprisoned at hard labor not less than one nor more