§ 5508 Rev.Stat. is a constitutional and valid law. Ex Parte
Yarbrough, 110 U. S. 651
The exercise by a citizen of the United States of the right to
make a homestead entry upon unoccupied public lands which is
conferred by § 2289 Rev.Stat. is the exercise of a right secured by
the Constitution and laws of the United States within the meaning
of § 5508 Rev.Stat.
An information which charges in substance that a citizen of the
United States, made, on a given day at a land office of the United
States a homestead entry on a quarter section of land subject to
entry at that place, and that afterwards, while residing on that
land for the purpose of perfecting his right to the same under
specified laws of the United States on that subject, the defendants
conspired to injure and oppress him and to intimidate and threaten
him in the free exercise and enjoyment of that right and because of
his having exercised it and to prevent his compliance with those
laws, and in the second count that, in pursuance of the conspiracy,
they did upon said homestead tract, with force and arms, fire off
loaded guns and pistols in his cabin, and did then and there drive
him from his home on said homestead entry, and in the third count
that the defendants went in disguise on the premises when occupied
by him, with intent to prevent and hinder the free exercise of and
enjoyment by him of the right and privilege to make said homestead
entry on lands of the United States secured to him by the
Constitution and laws of the United States, and the right to
cultivate and improve said lands and mature his title as provided
by the statute, states the facts with precision so as to bring the
case within § 5508 Rev.Stat.
The certificate of division contained two questions which this
Court decided, and a third whether the demurrer below was well
taken. No ground of demurrer was assigned which raised any question
except the two decided, but the record disclosed a grave
constitutional question which was not argued or suggested by
that the case should be remanded with
answers to the two questions and for further proceedings.
Information charging a conspiracy to violate a law of the United
States. The proceedings, and the facts which make the case, are
fully stated in the opinion of the Court.
Page 112 U. S. 77
MR. JUSTICE MILLER delivered the opinion of the Court.
This case arises on a criminal information filed by the District
Attorney of the United States for the Eastern District of Arkansas
in the circuit court for that district. The defendants demurred to
the information and, on consideration of the demurrer, the judges
of that court were divided in opinion on three questions, which
they have certified to this Court as follows:
"1. Whether § 5508 of the Revised Statutes is a constitutional
and valid law."
"2. Whether the information in said cause charged and offense
under said § 5508 of the Revised Statutes of the United States or
against any statute of the United States."
"3. Whether the demurrer to said information was well taken and
should be sustained."
The first and second counts of the information undertake to set
out a conspiracy of the defendants, under § 5508, to deprive or
hinder Burrell Lindsey, a citizen of the United States, of the
right to establish his claim to certain lands of the United States
under the homestead acts, namely, §§ 2289, 2290, and 2291 of the
And the third count, without charging a conspiracy, states that
defendants went upon the land of the United States occupied by said
Lindsey as a homestead with intent to prevent and hinder him from
residing upon and improving said land and maturing the title to
himself to said homestead entry, a right secured to him by the
sections of the Revised Statutes aforesaid. The first question
certified to us, as to the constitutional validity of § 5508 of the
Revised Statutes, was answered in the affirmative by the unanimous
opinion of this Court in Yarbrough's Case, 110 U.
. It is not deemed necessary or appropriate to add
to what was there so recently said on that subject. The first
question must therefore be answered affirmatively.
Does the information charge any offense under that section? The
section reads thus:
"If two or more persons conspire to injure or oppress,
Page 112 U. S. 78
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 if 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 or enjoyment of any right or privilege so
secured, they shall be fined not more than five thousand dollars
and imprisoned not more than ten years, and shall moreover be
thereafter ineligible to any office, or place of honor, profit, or
trust created by the Constitution or laws of the United
The substance of the first two counts of the information is that
Burrell Lindsey, a citizen of the United States, made on the 30th
day of December, 1882, at the United States land office at Little
Rock, a homestead entry on a quarter section of land subject to
entry at that place; that afterwards, to-wit, on the 10th day of
January, 1883, while residing on and cultivating said land for the
purpose of perfecting his right to the same, under the laws of the
United States on that subject, namely, §§ 2289, 2290, and 2291 of
the Revised statutes, the defendant conspired to injure and oppress
him, and to intimidate and threaten him in the free exercise and
enjoyment of that right and because of his having exercised it and
to prevent his compliance with those laws, and in the second count
that, in pursuance of this conspiracy, they did, upon said
homestead tract, with force and arms, fire off loaded guns and
pistols in the cabin of said Lindsey, and did then and there drive
him from his home on said homestead entry.
The third count charges that the defendants went in disguise on
said premises while occupied by said Lindsey with intent to prevent
and hinder the free exercise of and enjoyment by him of the right
and privilege to make said homestead entry on lands of the United
States secured to him by the Constitution and laws of the United
States, and the right to cultivate and improve said land and to
mature his title as provided by the statute already referred
It seems clear enough that the allegation of a conspiracy to
prevent Lindsey from exercising the right to make effectual
Page 112 U. S. 79
his homestead entry, and the acts done in pursuance of that
conspiracy, and the going in disguise to his house for the same
purpose, are stated with reasonable precision so as to bring the
case within § 5508, if the right which he was exercising was one
within the meaning of that section and within the constitutional
power of Congress to protect by this legislation. In reference to
this latter qualification, the statute itself is careful to limit
its operation to an obstruction or oppression in "the free exercise
of a right or privilege secured by the Constitution or laws of the
United States or because of his having exercised such rights."
The protection of this section extends to no other right, to no
right or privilege dependent on a law or laws of the state. Its
object is to guarantee safety and protection to persons in the
exercise of rights dependent on the laws of the United States,
including, of course, the Constitution and treaties as well as
statutes, and it does not, in this section at least, design to
protect any other rights.
The right assailed, obstructed, and its exercise prevented or
intended to be prevented, as set out in this petition, is very
clearly a right wholly dependent upon the act of Congress
concerning the settlement and sale of the public lands of the
United States. No such right exists or can exist outside of an act
of Congress. The Constitution of the United States, by Article IV,
Section 3, in express terms vests in Congress "the power to dispose
of and make all needful rules and regulations respecting the
territory or other property of the United States." One of its
regulations -- the one under consideration -- authorizes a class of
persons, of whom Lindsey is one, to settle upon its land, and, on
payment of an inconsiderable sum of money and the written
declaration of intent to make it a homestead, he is authorized to
reside there. By building a house and making other improvements on
it and residing there for five years consecutively, which, under
the statute and under that alone, he has a right to do, and paying
the fees to the officer necessary to its issue, he acquires a
patent or title in fee to the land.
But his title is dependent on continued residence of himself
Page 112 U. S. 80
or family. By the original entry, he acquires the inchoate but
well defined right to the land and its possession, which can only
be perfected by continued residence, possession, and cultivation
for five years. His right to continue this residence for five years
for that purpose is dependent upon the act of Congress. His right
to the patent after this is done rests exclusively on the same
The right here guaranteed is not the mere right of protection
against personal violence. This, if the result of an ordinary
quarrel or malice, would be cognizable under the laws of the state
and by its courts. But it is something different from that. It is
the right to remain on the land in order to perform the
requirements of the act of Congress, and, according to its rules,
perfect his incipient title.
Whenever the acts complained of are of a character to prevent
this, or throw obstruction in the way of exercising this right, and
for the purpose and with intent to prevent it, or to injure or
oppress a person because he has exercised it, then, because it is a
right asserted under the law of the United States and granted by
that law, those acts come within the purview of the statute and of
the constitutional power of Congress to make such statute. In the
language of the court in Ex Parte Yarbrough:
"The power arises out of the circumstance that the function in
which the party is engaged, or the right which he is about to
exercise, is dependent on the laws of the United States. In both of
these cases it is the duty of that government to see that he may
exercise this right freely and to protect him from violence while
so doing, or on account of so doing."
This language is as applicable to the present case as it is to
that. It would, indeed be strange if the United States, under the
constitutional provisions we have cited, being the owner of
unsettled lands larger in area than the most powerful kingdoms of
Europe and having the power "to dispose of and make all needful
rules and regulations respecting this territory," cannot make a law
which protects a party in the performance of his existing contract
for the purchase of such land, without which
Page 112 U. S. 81
the contract fails and the rights, both of the United States and
the purchaser, are defeated. This view requires the second question
also to be answered affirmatively.
With regard to the third question, we have some difficulty in
deciding what precise point of law the judges of the circuit court
differed upon and what they referred to us for decision.
Did they mean to ask is there any reason whatever why this
information shall be held bad? Or did they mean to inquire whether
it was bad for either of the two other matters we have discussed?
Or did they refer it to the court to decide whether it was bad for
any of the reasons found in the demurrer to it filed in the
It has been repeatedly held in this Court that the object of the
statute authorizing such certificates is to present some one or
more well defined, clear-cut questions of law which arise in the
progress of the case in the circuit court, and on which the
opinions of the judges holding it are opposed. The first two
questions suggest in each of them such a point very clearly. The
third does not. It leaves us to wander over the whole field of
conjecture for any possible objection to the information, without
pointing to any distinct proposition of law on which the judges
divided. Wolf v. Usher,
3 Pet. 269; Sadler v.
7 How. 646; Wilson v.
8 How. 258; Daniels v.
3 Wall. 250; Havemeyer
v. Iowa County,
3 Wall. 294; Ward v.
2 Black 430.
If we look beyond the certificate of the judges to the demurrer
itself, we find no ground of demurrer assigned which raises any
other question than the two we have discussed. The demurrer is in
the following language:
"David Waddell et als.
"Come the defendants, by their attorney, and demur to the
information herein filed against them, and for cause thereof
"1st. The matters and things alleged therein do not
Page 112 U. S. 82
any offense against the laws or sovereignty of the United
"2d. Said information does not allege any offense of which this
Court has jurisdiction."
"3d. Because said section 5508, so far as it may attempt to
impose penalties and inflict punishment for the lawlessness and
violence set forth in said information, is in violation of the
Constitution of the United States and void."
"4th. And because said information is in other respects
informal, is insufficient and defective."
"Wherefore, said defendants pray judgment of said information,
and that the same may be quashed, etc."
"JOSEPH W. MARTIN, Atty. for Def'ts
Nor has the counsel for the United States or for the defendants
suggested in their briefs or otherwise any other question or
proposition of law besides the two we have already decided.
The pertinency of these remarks will be seen when we observe
that § 5508, after defining the punishment of those convicted under
it, by fine and imprisonment, adds:
"And [they] shall, moreover, be thereafter ineligible to any
office or place of honor, profit, or trust created by the
Constitution or laws of the United States."
When we bring this language, which is not the sentence of the
court, but an indelible disgrace affixed to the party convicted by
the declaration of the law itself, into direct connection with the
language of the fifth article of amendment of the Constitution,
namely, that "no person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or indictment of
a grand jury," there does arise a very serious question whether
this crime is not made an infamous one by the language of the
statute, and cannot therefore be prosecuted by information.
The question is a very important one. It has not been argued
before us or even suggested by counsel. We see no reason to believe
that it was in the minds of the judges, nor any evidence that they
would have been opposed in opinion on it if it had been suggested
Page 112 U. S. 83
Under these circumstances, we think it the true course to remit
the case to the circuit court with the answers to the two other
question, that the question whether the case can be prosecuted by
information may be there raised in an appropriate manner, and for
such action as to counsel and the court may appear best.
The first and second question are answered affirmatively, and
Remanded to the Circuit Court for further