Judge Woods Jury Charge
THE GRANT PARISH PRISONERS
Trial in the United States Circuit Court
JUDGE WOODS’ CHARGE–WAITING FOR THE VERDICT.
Most Pertinent Quotations:
“The right of peaceable assembly is one of the rights secured by the constitution and laws of The United States. If citizens come together for a lawful and peaceable purpose, their assembling is within the meaning of the constitution. The fact that they assemble with arms, provided these arms are to be used not for aggression, but for their protection, does not make the assemblage any the less a peaceable one.”
“The right to bear arms is also a right secured by the constitution and laws of the United States. Every citizen of the United States has the right to bear arms, provided it is done for a lawful purpose and in a lawful manner. A man who carries his arms openly, and for his own protection, of for any other lawful purpose, has as clear a right to do so as to carry his own watch or wear his own hat.”
[United States v. Cruikshank, 25 F. Cas. 707 (1 Woods, 308) (C.C.D. La. 1874) (No. 14,897), aff’d, 92 U.S. 542 (1876).]
The seventeenth day’s proceeding in the trial of W.J. Cruikshank and others, charged with conspiracy and murder in Grant parish last April, opened in the United States Circuit Court yesterday by Judge Woods delivering his charge to the jury. We publish that document entire, accepting it as a page in the history of Louisiana.
J.R. Beckwith, United States attorney, for the prosecution.
R.H. Marr, W.R. Whitaker, E.J. Ellis, [?] Ryan, and Bryan, for the defense.
The United States vs. William J. Cruikshank and others.–Judge Woods charged the jury as follows:
The indictment in this case is presented jointly against ninety-eight persons. Only nine of them have been arrested and brought to the bar of the court, and are now on trial. These are William Cruikshank, John P. Hadnot, William B. Irwin, Denis Lemoine, Oscar Givens, Thomas Hickman, Alfred Lewis, Clement Penn and Prudhomme Lemoine.
The indictment is base upon the alleged violation by the prisoners at the bar and the other persons indicted of the sixth section of the act of Congress approved May 31, 1870, entitled “An act to enforce the right of citizens of the United States to vote in the several States of this Union, and for other purposes” (16 Stat., 144.)
The section reads as follows: “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, or because of his having exercised the same, such person shall be held guilty of felony, and on conviction thereof shall be fined or imprisoned, or both, at the discretion of the court,” etc.
The next section of the same act declares: 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, on conviction of the violation of said sections shall be punished for the same with such punishments as are attached to the said felonies, crimes and misdemeanors by the laws of the State in which the offense may be committed.”
This statute is the law of the land, and it is your duty and mine in a proper case to enforce. Its purpose is the protection of all citizens of the United States of every class and condition, in the exercise and enjoyment of their lawful and constitutional rights. Its operation is equal. Its prohibitions are directed to all persons; its penalties fall upon all offenders against its provisions of every race, condition and party. No man who takes care not to invade the constitutional or lawful rights of another can be touched by it, and it protects alike the rights of all. It applies to all parts of our country, and its provisions extend to every State and Territory in the Union.
It is a Just and wholesome act. designed to promote peace and public order, to protect every citizen, whether lofty or lowly, rich or poor, learned or ignorant, in the free exercise and enjoyment of all the privileges and immunities which are granted or secured to him by the constitution and laws of his country. All classes of citizens, whether white or black, without regard to race or previous condition, are interested in its enforcement.
The offense charged is not a political offense, as that term is generally and properly understood. This is simply a prosecution against the accused for an alleged invasion of the lawful and constitutional rights of others and you are to pass upon it, and try it just as you would an accusation of any other felony.
You will therefore dismiss entirely from your minds the idea, if such an idea has found lodgment there, that the prosecution is in the interest of any political party or faction. It is in the interest of the whole people, it is in the interest of peace, public security, and of public older. It is true that the persons who seem to have suffered from the alleged violation in this instance of law have belonged to the colored race. But it may sometime become my duty and the duty of some of you to try, under the provisions of this act, men of African descent for invading the rights of white citizens. It is your duty and mine to administer the law without regard to persons, and to do equal justice to all classes of citizens. Come, then, to the consideration of this case with minds free from prejudice and determined to render a just and true verdict, according to the law and the evidence.
Throughout your investigations there are two humane maxims of the criminal law that you should bear in mind. These are: first, that the prisoners at the bar are presumed in law to be innocent until their guilt is shown; and second, that no man should be convicted of a criminal offense until his guilt is established beyond reasonable doubt. The first rule puts the burden of proof upon the government; the accused is not called upon to offer evidence to exculpate himself until the government has made out, by proof, a prima facie case against him. Until that is done, he is to be considered an innocent man. The second rule means that the guilt of the accused must be made so clear that a reasonable man would not hesitate to act upon the proof of guilt; that the evidence should be so strong as to be inconsistent with the innocence of the accused; so strong that it can be explained on no reasonable hypothesis but that of guilt, of the accused.
The prisoners at the bar are brought to trial upon an indictment containing thirty-two counts.
The first count charges that the ninety-eight persons therein named, including the nine prisoners at the bar, on the thirteenth of April, 1873, at Grant parish, in the district of Louisiana, unlawfully and feloniously did band together with the unlawful and felonious intent and purpose one Levi Nelson and one Alexander Tillman, said Nelson and Tillman being citizens of the United States and of African descent, unlawfully and feloniously to injure, oppress threaten and intimidate, with the unlawful and felonious intent thereby the said Nelson and Tillman respectively to hinder and prevent in the free exercise and enjoyment of the right to peaceably assemble together with each other and other citizens of the United States for a peaceable and lawful purpose, the same being a right granted and secured to the said Nelson and Tillman, in common with all other good citizens of the United States, by the constitution and laws of the United States.
The next seven counts all charge a like banding together, and only differ from the first count and from each other in the ultimate intent with which the banding together is alleged to have been done.
The second count charges a banding together of the indicted parties with the intent to injure, oppress, threaten and intimidate Nelson and Tillman with the purpose to hinder and prevent them in the free exercise and enjoyment of their constitutional right to bear arms for a lawful purpose.
The third count charges a banding together with the intent to injure, oppress, etc., Nelson and Tillman with the purpose to deprive them respectively of their lives and liberty of person without due process of law.
The frarth count charges an intent to injure, oppress, etc., with the purpose to prevent and hinder Nelson and Tillman in the free exercise and enjoyment of the right to the full and equal benefit of all laws and proceedings enacted by the United States and the State of Louisiana for the security of their persons and property at that time enjoyed within the State of Louisiana by white citizens of the State.
The fifth count charges the intent to injure, oppress, etc , with the purpose to prevent and hinder Nelson and Tillman, on account of their African descent, in the enjoyment of their constitutional and lawful rights, privileges, immunities and protection, granted and secured to them as citizens of the United States and State of Louisiana.
The sixth count charges the intent to injure, oppress, etc. with the purpose to prevent and hinder Nelson and Tillman in the free exercise of their respective right to vote at any election to be thereafter by law held in the State of Louisiana or in the parish of Grant, said Nelson and Tillman being lawful voters.
The seventh count Charges the intent to injure and oppress, etc., with the purpose to put Nelson and Tillman, severally, in great fear of bodily harm, because they, having a lawful and constitutional right so to do, had voted at an election held on the fourth day of November, 1872, and at divers other elections before that time held by the people of the State of Louisiana.
The eighth count charges an intent to injure and oppress, etc . Nelson and Tillman with the purpose to hinder and prevent them in the enjoyment of every, each, all and singular, the several rights and privileges granted and secured to them by the constitution and laws of the United States of America.
The next eight counts of the indictment, numbered from nine to sixteen inclusive, are respectively identical with the first eight counts, with this single difference: Instead of charging that the indicted persons banded together, it is charged that they did combine, conspire and confederate together with the several intents and purposes laid respectively in the first eight counts.
The eight counts, numbered from seventeen to twenty-four inclusive, are identical with the first eight counts respectively, except that to each of these counts is added the averment that the indicted persons, while so feloniously banded together, and in the act of committing the felony, in these counts charged did commit the crime of willful and malicious murder upon the person of said Alexander Tillman,
The last eight counts are identical with the eight first named, except that they charge a combining and conspiring together instead of a banding together. And to each of these last eight counts is also added a charge of willful and malicious murder upon the person of said Alexander Tillman,
The reading of the law of Congress and of the indictment based upon it shows you that the gist of the offenses charged is the intent with which the criminal acts are alleged to have been done.
There can be no conviction under this indictment unless three things are shown:
1. There must be a banding or conspiring together of two or more of the accused persons named in the indictment.
2. This banding or conspiring must be with the intent to injure, oppress, threaten or intimidate Levi Nelson or Alexander Tillman.
3. This intention to injure, oppress, threaten or intimidate must be thereby to carry out one of the purposes and intents specified in the several counts of the indictment; as, for instance, as stated in the first count, the purpose to hinder and prevent Nelson and Tillman in the right peacably to assemble, or as stated in the third count, the purpose to deprive Nelson and Tillman of their lives and liberty of person without due process of law.
Unless these three points are established by the evidence, no matter how criminal the conduct of the defendants may have been, they are not guilty under this indictment. Unless the intent is proved as laid down, this court has no jurisdiction of the case, for it is the unlawful intent with which the acts charged are done that gives the court jurisdiction. The accused may be tried on another indictment, in some other court, but they can not be convicted under this indictment in this court without proof of the alleged intent.
In passing upon any controverted case it saves labor and trouble and tends to clearness and precision of judgment to ascertain what points are not disputed and what are in issue. In the case on trial there are many facts not in controversy. I proceed to state some of them, in the presence and hearing of counsel on both sides, and if I state as a conceded fact any matter that is disputed, they can correct me.
About the twenty-fifth of March, 1873, one Shaw claimed to be sheriff, and one Register judge, of the parish of Grant. Before that time Columbus C. Nash and Alphonse Cazabat, both of whom are accused by the indictment in this case, had claimed to be, the former sheriff, and the latter judge of the same parish, holding, as it seems, commissions signed by Governor H.C. Warmoth, and they had exercised the duties of their respective offices. In the month of March, 1873, application had been made to Governor William P. Kellogg, by the friends of Nash and Cazabat, for their appointment to the offices of sheriff and parish judge respectively, which appointment Governor Kellogg refused to make, and instead commissioned Shaw and Register.
On or about the twenty-fifth of March, Register, the judge, Shaw, the sheriff, and other parish officers commissioned by Governor Kellogg made an entry into the courthouse of the parish, which they found locked, by way of the window. They thus obtained and held possession of the courthouse. On the night of Monday, the thirty-first of March, Register, Shaw and others sympathizing with them, hearing rumors of an armed invasion of the town for the purpose of retaking the courthouse, counseled together, and Shaw, as sheriff, deputized from fifteen to eighteen men, mostly colored, to assist, as his posse, in keeping possession of the courthouse, and to preserve the peace. These persons so deputised were served with written appointments signed by Shaw as sheriff. On the next day, Tuesday, April 1, a company of mounted white men, headed by James W. Hadnot, since deceased, and numbering from nine to fifteen, a part, if not all of them, armed with guns, came into the town of Colfax, and on the same day one or two other small armed squads also came into town. On this day the collision occurred between the men deputized by Shaw and the men who same with Hadnot and others.
On Wednesday, the second of April, a small body of white men, mounted and armed, approached Colfax and were met a short distance from the town by a body of armed men, most of them colored. Shots were exchanged between these two bodies of men. No one was hurt, and the white men rode off.
These proceedings alarmed the colored people, and many came to Colfax for refuge and with them a number of women and children. Many, perhaps a majority of the men who collected in the town, came armed.
On Saturday, April 5. a band of armed white men, fifteen in number, as claimed to be shown by the prosecution, and three in number, as indicated by an item of evidence introduced by the defense, approached the house of one Jesse McKinney, a colored man, three miles from Collax, on the Darrow, and found him engaged in making a fence around his lot. One of the band of white men fired upon him, shot him through the head and killed him. His wife, assisted by another woman, got his body into a wagon and carried it to the house of her stepfather, and there left it and took refuge at the Mirebeau plantation. No evidence in the case explains the motive which led to this deed.
This homicide increased the alarm of the colored people who flocked into Colfax. Reports were circulated through the parish of threats made by the colored people against the whites. Most of the white families in or near Colfax, and many in more distant parts of the parish, removed from their homes and sought places of safety.
On Monday, April 7, the parish court was opened and adjourned by Register as judge and Shaw as sheriff. After this the alarm seemed somewhat to subside, and many of the colored people left Colfax and returned to their homes.
An armed body of colored men, however, still held possession of Colfax and the court-house, and obstructed ingress to the town and courthouse, and the whites maintained some sort of an armed organization outside.
On Saturday, the twelfth of April, the colored men at Colfax threw up a small earthwork in front of and in the vicinity of the courthouse. Ac this time and on the next morning the number of colored men in the town is variously estimated at from 100 to 300, more than half of whom were armed with guns. On the morning of Easter Sunday. April 13, a body of mounted and armed white men, variously estimated at from 150 to 700, approached Colfax from above. When in the vicinity they asked for a conference with the colored people, which was granted and took place–Columbus C. Nash speaking for the white men, and Levin Allen, a colored man, for his side. Nash demanded that the colored men should give up their arms and yield possession of the courthouse. This demand was not acceded to by the colored men, and thirty minutes were given them to remove their women and children. The colored men took refuge behind their earthwork near the courthouse, and at about ten, eleven or twelve o’clock, as variously stated by the witnesses, the firing began. The white men had a small piece of artillery mounted on wheels, which, with their small arms, was used against the colored men, who responded with their shotguns and Enfield rifles; of the latter they had about a dozen. A change in the position of their gun made by the white men gave them an enfilading fire on the blacks, which demoralized them, and their line broke. A portion of them, leaving their arms, fled down the Red river in the direction of a strip of woods, at Cuny’s Point, and were followed by mounted and armed whites, by whom many of them were overtaken and shot to death. The others, sixty or seventy in number, took refuge in the courthouse. This was surrounded by the white men and the small gun was brought to bear upon it, one of its shots going in one of the windows and out of the other. A rambling fire of small arms was kept up by the whites upon the windows of the court-house, which was occasionally responded to by the blacks inside, without damage, however, t either party. The whites, after keeping up for a short time an unavailing fire upon the courthouse, by approaching it upon a side which had no openings for windows or doors, set fire to the building by a torch applied to the roof. The roof was soon in flames, and the occupants of the building became alarmed. One held out the leaf of a book and the other tore off his shirt sleeve and hung it upon a stick as a sigh of capitulation, and shouted that they surrendered. They were ordered to drop their arms. At this point there is a matter of dispute between the prosecution and defense. James P. Hadnot and one Harris, on the part of the whites, approached the courthouse and, as claimed by the defense, had a white flag upon a pole. As they came near the door they fell, both mortally wounded. The defense insists that while bearing the white flag they were shot from the courthouse. The prosecution and its witnesses say that when Hadnot was approaching, the blacks, having thrown down their arms, started to come out from the burning courthouse and were met by a volley of shots from the whites, which, besides killing many of the colored men, struck down Hadnot and Harris. However, this may be, a number of unarmed blacks who came out from the courthouse were shot dead, and others were wounded. Among the killed was Alexander Tillman, one of the colored men named in the indictment. Most of those who were not killed were taken prisoners. Fifteen or sixteen of the blacks had lifted the boards and taken refuge under the floor of the courthouse. They were all captured. About thirty-seven men were taken prisoners. The number is not definitely fixed. They were kept under guard until dark. They were then led out two by two and shot. Most of the the men were shot to death. A few were wounded, not mortally, and by pretending to be dead, were afterward during the night able to make their escape. Among them was the Levi Nelson named in the indictment.
The dead bodies of the negroes killed in this affair were left unburied until Tuesday, April 15, when they were buried by a deputy marshal and an officer of the militia from New Orleans. These persons found fifty-nine dead bodies. They showed pistol shot wounds, the great majority in the head and most of them in the back of the head. In addition to the fifty-nine dead bodies found, some charred remains of dead bodies were discovered near the courthouse. Six dead bodies were found under a warehouse, all shot in the head, but one or two which were shot in the breast.
The only white men injured from the beginning of these troubles to their close were Hadnot and Harris. The courthouse and its contents were entirely consumed.
There is no evidence that any one in the crowd of whites bore any lawful warrant for the arrest of any of the blacks. There is no evidence that either Nash or Cazabat after the affair ever demanded their offices, to which they had set up claim, but Register continued to act as parish judge, and Shaw as sheriff.
These are facts in this case as I understand them to be admitted.
If these facts are conceded, or if you find them upon the evidence to be true, your range of inquiry will be much narrowed.
Now turn your attention to the points already stated necessary to be proven to establish this indictment.
First, the prosecution must show a banding or conspiring together of two or more. Of course unless two are shown to be guilty there can be no conviction; but if the proof shows that one of more of the prisoners on trial banded or conspired with one or more of the other parties included in the indictment, and not on trial, or with one or more of the others on trial, that would be sufficient proof of conspiracy.
To conspire is for two or more persons to agree together to do an unlawful act. The evidence in proof of a conspiracy will generally, from the nature of the case, be circumstantial. Though the common design is the essence of the charge, it is not necessary to prove that the defendants came together and actually agreed, in terms, to have that design and to pursue it by common means. If it be proved that the prisoners pursued, by their acts the same object, often by the same means, one performing one part and another another part of the same, so as to complete it, with a view to the attainment of the same object, you will be justified in tbe conclusion that they were engaged in a conspiracy to effect that object.
If the prisoners conspired together, with the intent laid in the indictment, that completes the offense charged in the first sixteen counts, even though the conspiracy was followed by no act to carry it into effect.
To band is defined to be “to associate, to unite.” Thus we read in the acts of the Apostles that “certain of the Jews banded together.” Their purpose was to kill Paul.
Now, if the gathering together of these armed white men was not accidental, but designed, and if they had in view a common purpose, or if having come together accidentally, they engaged by express argument or tacit understanding in a common enterprise, this would be such a banding together as is meant in the statute and in the indictment.
Every banding together includes and implies a conspiracy. I do not mean a conspiracy for an evil purpose, but a union of minds for some common end.
So that upon the conceded facts you can have little difficulty in passing upon the question of the banding and conspiring of certain white men upon the occasion named in the indictment.
The real controversy between the prosecution and defense is touching the purpose and intent of this banding and conspiring.
The prosecution says it was with the several intents laid in this indictment, or some of them. The defense says that it was for a lawful and laudable purpose, and not with the intents laid in the indictment, or any of them. Here, then, gentlemen, is the turning point in this case, and to this you should give the most careful scrutiny. For unless the prosecution has satisfied you that the purpose of the banding together was that laid in the several counts of this indictment, or some of them, there can be no conviction in this case, and you should return a general verdict of not guilty.
No different intent is laid in the last twenty-four counts of the indictment than is alleged in the first eight counts. Take, then, those first eight counts, and consider them carefully, with a view to ascertain whether the intent laid in these counts, or any of them is sustained by the proof. The intent laid in the first count is to injure, oppress, threaten and intimidate Levi Nelson and Alexander Tillman, with the purpose to hinder and prevent their free exercise of the right peaceably to assemble.
The right of peaceable assembly is one of the rights secured by the constitution and laws of The United States. If citizens come together for a lawful and peaceable purpose, their assembling is within the meaning of the constitution. The fact that they assemble with arms, provided these arms are to be used not for aggression, but for their protection, does not make the assemblage any the less a peaceable one.
If you find that the assemblage at Colfax on the thirteenth of April last, Levi Nelson and Alexander Tillman constituting a part thereof, was for a peaceful and lawful purpose, notwithstanding the members of the assembly were armed, if their arms were merely for protection, and the persons against whom the indictment is presented combined to injure, oppress, threaten or intimidate Nelson and Tillman with the purpose to prevent their peaceable assembling, or to break up a peaceable assembly of which they were members; or if the intent was so to intimidate Nelson and Tillman that they would fear to unite with this fellow-citizens in peaceable assemblies on future occasions, then you would be justified in the conclusion that the intent laid in this count is true.
If on the other hand the meeting of colored people at Colfax on the thirteenth of April was not a lawful and peaceable assembly, and if you should find that the banding together charged in the indictment was not for the purpose of so oppressing and intimidating Nelson Tillman as to present their freely joining in future peaceable assemblies, then y»u should find that the intent laid in this count is not proven, and no matter what you may decide as to other counts, your verdict should be not guilty in the ninth, seventeenth and twenty-fifth counts, all of which charge the same intent.
Next consider the intent of the banding and conspiring laid in the second count, which is alleged to be to intimidate, etc. Nelson and Tillman, with the purpose to prevent their exercise of the right to keep and bear arms for a lawful purpose.
The right to bear arms is also a right secured by the constitution and laws of the United States. Every citizen of the United States has the right to bear arms, provided it is done for a lawful purpose and in a lawful manner. A man who carries his arms openly, and for his own protection, of for any other lawful purpose, has as clear a right to do so as to carry his own watch or wear his own hat. If the meeting at Colfax on April 13, of which Nelson and Tillman formed a part, was assembled, and was bearing arms for its own protection, and the banding charged in the indictment was with the intent to intimidate Nelson and Tillman so as to prevent their bearing arms on that occasion, or if the purpose of the banding together was so to intimidate them as to prevent or hinder them from lawfully bearing arms in the future, then the intent charged in this count is made out. If this intent is not established to your satisfaction then your duty is to return a verdict of not guilty upon the second count, and also the tenth, eighteenth and twenty-sixth counts, which charge the same intent. . . .
. . . It has been hinted to you by counsel for defense that the offense charged in this count is not within the jurisdiction of this court to try. I say to you, gentlemen, that the offense described in this, as well as in the ether counts of the indictment, is within its jurisdiction. The court has the right and power to try every count in this indictment.
You will observe that this count does not charge an intent to deprive Nelson and Tillman of their lives and liberty of person merely, but to do so without due process of law.
The fifth amendment to the constitution of the United States declares that no person shall be held to answer for a capital or otherwise infamous crime unless upon presentment and indictment of a grand jury, nor be deprived of life, liberty or property without due process of law.
The fourteenth amendment to the constitution of the United States declares that all persons born and naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law.
The constitution of the State of Louisiana, article six, title one, declares that prosecutions shall be by indictment or information that the accused shall be entitled to a speedy public trial by an impartial jury of the parish in which the offense may have been committed, and have the right to be heard by himself or counsel.
Section sixteen of the act of Congress approved May 31, 1870, entitled an act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes (16 Stat., 141), declares: “That all persons within the jurisdiction of the United States shall have the same right in every State and Territory to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.”
These provisions of constitutional and statute law show that the right of due process of law where the life or liberty of a citizen of the United States and of the State of Louisiana are involved is secured by the constitution and laws of the United States. . . .