Horace Gray

“ Although the constitution contains no grant, general or specific, to congress of the power to provide for the punishment of crimes, except piracies and felonies on the high seas, offenses against the law of nations, treason, and counterfeiting the securities and current coin of the United States, no one doubts the power of congress to provide for the punishment of all crimes and offenses against the United States, whether committed within one of the states of the Union or within territory over which congress has plenary and exclusive jurisdiction. ”

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

“ As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had 'conscientious scruples in regard to the infliction of the death penalty for crime' were rightly permitted to be challenged by the government for cause. A juror who has conscientious scruples on any subject, which prevent him from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence, is not an impartial juror. ”

“ It may be doubted whether this is a satisfactory answer to the objection. An indictment for a capital offense usually includes an offense less than capital, and the defendant may be convicted of either. For instance, one indicted of murder may be convicted of manslaughter, or of an assault only. The statute does not make a defendant's right to a list of the witnesses to be called against him depend upon the degree of the crime of which upon trial he is ultimately convicted, but upon the degree of crime for which he is indicted. ”

“ Reese, above cited, that counts for conspiracy to prevent and hinder citizens of the African race in the free exercise and enjoyment of the right to vote at state elections, or to injure and oppress them for having voted at such elections, not alleging that this was on account of their race, or color, or previous condition of servitude, could not be maintained; the court saying: 'The right to vote in the states comes from the states; but the right of exemption from the prohibited discrimination comes from the United States. ”

“ The words of the existing statute are too plain to be misunderstood. The defendant, if indicted for treason, is to have delivered to him, three days before the trial, 'a copy of the indictment, and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment;' and, if indicted for any other capital offense, is to have 'such copy of the indictment and list of the jurors and witnesses' two days before the trial. ”

“ The court went too far in admitting testimony on the general question of conspiracy.
Doubtless, in all cases of conspiracy, the act of one conspirator in the prosecution all, and is evidence against all. U.S. v. all, and is evidence against all. ”

“ The first act of the state of Texas on the incompetency of witnesses by reason of conviction of crime appears to have been the statute of February 15, 1858, c. 151, by which all persons convicted of felony in Texas or elsewhere were made incompetent to testify in criminal actions, notwithstanding a pardon, unless their competency to testify had been specifically restored. Gec. Laws 7th Leg. Tex. 242; Oldham & W. Dig. 640. That provision was afterwards put in the shape in which it stands in the Code of 1879, above cited. ”

“ 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.' 1 Woods, 308, 314-316. ”

“ Congress has enacted that, 'when there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts ”

“ Individual invasion of individual rights is not the subject-matter of the amendment.' 'It does not invest congress with power to legislate upon subjects which are within the domain of state legislation ”

“ St. §§ 5392, 5393;) and has made specific provisions as to the competency of witnesses in criminal cases, by permitting a defendant in any criminal case to testify on the trial, at his own request; and by making the lawful husband or wife of the accused a competent witness in any prosecution for bigamy, polygamy, or unlawful cohabitation, (Act March 16, 1878, c. 37; 20 St. p. 30; Act March 3, 1887, c. 397; 24 St. p. 635.) ”