United States v. Cruikshank, 92 U.S. 542 (1876)

The aftermath of the American Civil War was marked by the passage of a series of constitutional amendments and federal laws designed to establish and preserve the civil rights of African Americans. Most significantly, the Fourteenth Amendment, ratified in 1868, provided for equal protection of the law for all American citizens and prohibited the deprivation of a citizen’s ‘‘life, liberty, or property without due process of law.’’ Congress extended these protections in 1870 by passing the first Enforcement Act, which forbade two or more private citizens from depriving another citizen of his or her civil rights, making such conduct a felony under federal law.

These federal measures helped to stymie efforts to preserve the system of white supremacy that survived in the former Confederate states after the abolition of slavery. In reaction to these measures, white supremacists sought to preserve the southern racial caste system through state and local ‘‘Jim Crow’’ laws enforcing racial segregation and through the extralegal activities of paramilitary terror groups such as the Ku Klux Klan. Lynchings, or the enforcement of mob justice through public beatings and executions, became commonplace in many areas of the American South, in direct violation of the Enforcement Act.

Among the first persons charged with violating the Act was William J. Cruikshank, who along with approximately eighty co-conspirators was indicted for the lynching of two African-American men on April 13, 1873, for trying to vote in a local election. United States Attorney J. R. Beckwith had sought indictment of the co-conspirators on Federal charges, because the murder of an African American by a white person was not a crime under existing Louisiana law. The Federal Circuit Court for Louisiana convicted Cruikshank and the other defendants; after which the U.S. Supreme Court agreed to hear the case on appeal during the fall term of 1874. The prosecution, assisted by U.S. Attorney General Edwards Pierrepont and Solicitor General Samuel F. Phillips, argued that the Fourteenth Amendment provided a basis for the 1870 Enforcement Act by giving the federal government the authority to prosecute violators of citizens’ civil rights. The defense team, headed by David Dudley Field, countered that the Fourteenth Amendment only protected citizens against government violations of civil rights, not against the oppressive acts of private citizens. In October of 1875, the Court ruled unanimously that prosecution of the defendants under federal law was unconstitutional, because state law was primarily responsible for protecting citizens from each other.

As a result of the Court’s decision, victims of civil rights abuses were left to seek protection from state courts, which were often uninterested in safeguarding the civil rights of southern blacks. The decision led to a variety of civil rights abuses, including a proliferation of state and local segregation laws, poll taxes and literacy tests designed to deny the vote to African Americans, and a continuation of racial intimidation and violence. Not until the passage of the federal civil rights legislation of the 1960s would African Americans receive full protection of their civil rights under federal law.


References and Further Reading

  • Foner, Eric. ‘‘The New View of Reconstruction.’’ American Heritage 34 (October–November 1983): 6: 10–16.
  • Neely, Mark E. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991.
  • Nieman, Donald G. Promises to Keep: African Americans and the Constitutional Order, 1776 to the Present. New York: Oxford University Press, 1991.
  • Tomlins, Christopher, ed. The United States Supreme Court: The Pursuit of Justice. New York: Houghton Mifflin, 2005.

Cases and Statutes Cited

  • Fourteenth Amendment to U.S. Constitution, USCA Cons. Amend. 14s 1
  • Enforcement Act, Act of May 31, 1870, c. 6,16 Stat. 141

See also Civil Rights Act of 1964; Federalization of Criminal Law; Freedom of Association; Thirteenth Amendment

The Big Three – Articles IV, V, and VI of the Bill of Rights.


The Big Three – Memorize Articles IV, V, and VI of the Bill of Rights.

A) Memorize Article IV for police encounters

B) Memorize Article V to understand two distinct forms of process, Judicial (article III courts) and Administrative (article I, II and IV territorial and administrative tribunals).

C) Memorize Article VI to understand MMPPR – ‘mandatory minimum pleading practice requirements’ and the due process rights and protections you must be afforded at a probable cause hearing considered waived if not demanded at arraignment or initial appearance before pleading.

Article IV
“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants [for these] shall issue [by any court for any road side seizure] but upon probable cause supported by oath or affirmation particularly describing the place to be searched and the persons or things to be seized”

Officer – “License, insurance and registration please, I need to see them.”

Response – do you have a warrant for my personal papers and private documents, or is this a shake down?

NOTE: officers and agents of government, public and civil servants acting in a capacity representative of public office are required to display Identification on demand. Do you qualify for the requirement attributed to this class distinction?


Article V

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising [by ticket or citation] in the land or naval forces, or in the Militia, when in times of actual service… [ tickets and citations for infractions and violations of statutory commercial duties and obligations apply only to public officers and civil servants ]”

Only public officers, civil servants and governmental service providers are subject to tickets and citations for dereliction of an official duty or obligation of public office against the dignity of the state, as distinguished from a crime against the people or a person in violation of the law of nature against doing harm, injury or damage to the life, liberty and property of another.


Article VI

In all criminal prosecutions, the accused shall enjoy the right… to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Entering any plea admits jurisdiction and serves as a waiver of your right to a probable cause hearing, also referred to as an examination hearing, where you are entitled to everything here stated in article VI before being required to plead.

NOTE : Stating that you do not understand the NATURE of the proceedings is just cause in law for the Judge or Magistrate to order a Psychological evaluation or Psychiatric examination, unless your inability to understand is for good cause shown, such as the prosecutions notice being inadequate or service of process being incomplete or defective, failing to provide you with paper work that comports with MMPPR, such as would reasonably apprise you of BOTH the nature and cause for the accusations or charges against you.

Cause for the charges against you would include subject matter and personal jurisdiction, subject matter being sufficient alleged facts or evidence supporting the charge, personal jurisdiction being the capacity of the parties to sue and be sued.


Are you being prosecuted in an private individual or official public capacity, and do you qualify to be prosecuted in a official public capacity if lacking official title of public office?

Civilians are exempt and immune from dereliction of duty charges where the duty is legislated and proscribed by exclusively for public/civil servants.

Do you know which laws, common and civil, apply to which class of persons, natural and corperate?

“Two national [and state] governments exist; one to be maintained under the Constitution [for civilians], with all its restrictions; the other to be maintained by Congress [and the state legislatures] outside and Independently of that instrument [and the constitutions of the respective states, for civil servants] ” (Downes vs. Bidwell 182 US 244)

“It is clear that Congress, as a [or any state] legislative body, exercise[s] two specie of legislative power: the one, limited as to its objects [ effecting civilians]: the other, an absolute, exclusive power [to restrict the liberty rights, restrain and regulate the official activities and compell performance of civil servants]… The preliminary inquiry in the case now before the Court, is, by virtue of which of these authorities was the law in question passed?” (Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 265, 5 L.Ed. 257 (1821)). “… for with them [civilians] Congress does not assume to deal [has no delegated authority to legislate beyond the law of nature] and they are neither the subject nor the object of revenue laws ….”, as stated in the cases of Long v. Rasmussen, 281 F. 236 (1922), De Lima v. Bidwell, 182 U.S. 176, 179, and Gerth v.United States, 132 F. Supp. 894 (1955).

“As of the time of the writing of the Constitution, there were two great systems of law in the world —the Civil Law… and the Common Law. — the basic concept of these two systems was as opposite as the poles—in the Civil Law the source of all law is the personal ruler [superior officer]; In the Common Law. . . the source of all law is the people; they, as a whole, are sovereign. During the centuries, these two systems have had an almost deadly rivalry for the control of society, the Civil Law and its fundamental concepts being the instrument through which ambitious men of genius and selfishness have set up and maintained despotism; the Common Law, with its basic principles, being the instrument through which men of equal genius, but with the love of mankind burning in their souls, have established and preserved liberty and free institutions. . . The Civil Law was developed by Rome. . . The people under this system have those rights, powers, and privileges, and those only which the sovereign [or superior of officer]considers are for their good or for his advantage. He adds or takes away as suits his royal pleasure. All the residuum of power is in the Emperor. Under this system, the people look into the law to see what they may do. They may only do what the Emperor has declared they may do. . . Under our common law system, we look into the law to see what we may not do, for we may do everything we are not forbidden to do. This civil law concept explains why, over the centuries, it has been possible for the head of a state, operating under this concept, to establish with comparative ease a dictatorship. We must always remember that despotism and tyranny, with all their attendant tragedies to the people, as in Russia today, come to nations because one man, or a small group of men, seize and exercise by themselves the three great divisions of government—the legislative, the executive, and the judicial.. . When the [Civil Law] concept has been operative, [peoples] have suffered the resulting tragedies—[such as] loss of liberty, oppression, great poverty among the masses, insecurity, [and] wanton disregard of human life.” ¬ J. Reuben Clark, former US Under Secretary of State and Ambassador to Mexico.

“The Common Law is absolutely distinguishable from the Roman or Civil Law systems.”(People v. Ballard 155 NYS 2d 59).

“There are two systems of law at work in the world, the [common] law of the land, and the [ civil ] law of the sea.” ¬ Jordan Maxwell

By: Neil Rowe