When a bill of exceptions does not contain the evidence, it is
impossible for this Court to know the ground on which the trial
court proceeded in overruling a motion on the evidence to compel
the district attorney to elect, and an exception in that regard
will not be considered.
In December, 1894, when the proceedings took place which are
questioned in this case, there were not two Judicial Districts in
the State of South Carolina, to the territorial limits of each of
which the jurisdiction of the Circuit Court of the United States
The legislation on this subject from the commencement of the
Barrett was indicted, with others, as stated in the caption of
the transcript of the record,
"at a Circuit Court of the United States for the Fourth Circuit
in and for the District of South Carolina, begun and holden at
Columbia, in the district aforesaid, on the fourth Monday in
November, 1894, before the Honorable Wm. H. Brawley, United States
Judge for the District of South Carolina, holding said circuit
court according to the form of the act of Congress in such cases
made and provided,"
for conspiracy to commit an offense against the United States,
under sections 5440 and 5480 of the Revised Statutes, and, having
been duly tried, was found guilty, and sentenced to imprisonment
To review this judgment, this writ of error was prosecuted.
The indictment commenced as follows:
"United States of America"
"To-wit: In the Circuit Court"
"District of South Carolina"
"At a stated term of the Circuit Court of the United States for
the District of South Carolina, begun and holden at Columbia,
within and for the district aforesaid, on the fourth Monday of
November, in the year of our Lord 1894, the jurors of the United
States of America within and for the district aforesaid upon
Page 169 U. S. 219
oaths respectively do present that Charles P. Barrett [and
others, naming them], together with divers other evil-disposed
persons to the jurors aforesaid unknown, late of the district
aforesaid, on the 1st day of July, in the year of our Lord 1892 at
Spartanburg, in the State of South Carolina aforesaid, in the
district aforesaid, and within the jurisdiction of this Court,
being persons of evil minds and dispositions, wickedly devising and
intending to commit the offense against the United States
hereinafter set forth, fraudulently, maliciously, and unlawfully
did combine, conspire, confederate, and agree together between and
among themselves to commit against the United States this
Certain exceptions were taken to the action of the court in
refusing to sustain a challenge to the array of both grand and
petit jurors on the ground that they were drawn from both the
Eastern and Western Districts of South Carolina, when the alleged
offense was charged in the indictment to have been committed in the
County of Spartanburg, in the Western District of said state; to
the order of the court overruling defendant's demurrer to the
indictment on the ground that the offense was charged to have been
committed in the County of Spartanburg, in the State of South
Carolina, the same being in the Western District of said state,
although the indictment was found in the City of Columbia, in the
County of Richland, in the Eastern District thereof; to the refusal
of the court to sustain defendant's plea to the jurisdiction on the
ground that, although the alleged offense was charged to have been
committed in the County of Spartanburg, the same being in the
Western District of South Carolina, the trial was sought to be had
in the City of Columbia, in the County of Richland, in the Eastern
District of said state; to the denial by the court of defendant's
motion that the district attorney be required to elect on which one
of several conspiracies disclosed by the evidence to have been
committed, if any, he would ask for a conviction, and to the
refusal of the court to arrest judgment because the grand jurors
who found the indictment and the petit jurors who found the verdict
were drawn from the Western
Page 169 U. S. 220
and Eastern Districts of South Carolina, although the offense
was alleged to have been committed in the County of Spartanburg, in
the Western District; because the indictment was found in the
County of Richland, in the Eastern District at a time not
authorized by law for the sitting of the United States court for
the Western District, and because the trial was had in the County
of Richland, in the Eastern District, for an offense committed in
the Western District.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the court.
As to the action of the court overruling defendant's motion on
the evidence to compel the district attorney to elect, the bill of
exceptions does not contain the evidence, and it is impossible for
this Court to know the ground on which the circuit court proceeded.
The exception in that regard need not therefore be considered.
In respect of the other exceptions, they all present the same
objection in different forms -- namely, that the State of South
Carolina was divided into two Judicial Districts, and that an
indictment could not be lawfully found in the circuit court of the
United States held in the Eastern District, or a trial be therein
had, for a criminal offense committed in the Western District.
The Constitution provides that the trial of crimes shall be had
in the state
"where the crime shall have been committed, but when not
committed within any state, the trial shall be at such place or
places as the Congress may by law have directed,"
Art. III, § 2, cl. 3, and by Amendment VI that
"in all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed,
Page 169 U. S. 221
which district shall have been previously ascertained by
This indictment was found December 3, the trial had December 6
to 11, and the defendant sentenced December 12, 1894, in the
circuit court in session at Columbia. Were there at that time two
judicial districts in South Carolina, within the intent and meaning
of the Constitution and the acts of Congress in that behalf?
The circuit court of each judicial district sits within and for
that district, and its jurisdiction, as a general rule, is bounded
by its local limits. Toland v.
12 Pet. 300, 37 U. S. 328
Ex Parte Devoe Manufacturing Company, Petitioner,
108 U. S. 401
the same time, courts may be required to be held at different
places in a judicial district, and prosecutions for offenses
committed in certain counties may be required to be tried, and
writs and recognizances to be returned at each place; but this does
not affect the power of the grand jury sitting at either place to
present indictments for offenses committed anywhere within the
district. Logan v. United States, 144 U.
. As to where trials shall be had in a judicial
district depends entirely on the legislation upon the subject.
Rosecrans v. United States, 165 U.
; Post v. United States, 161 U.
By the Judiciary Act of September 24, 1789, the then United
States were divided into thirteen districts, of which New
Hampshire, Connecticut, New York, New Jersey, Pennsylvania,
Delaware, Maryland, Georgia, and South Carolina each constituted
one district, called by the name of the state, as, for instance,
"South Carolina District;" while a part of the State of
Massachusetts was erected into a district called "Maine District,"
and a part of the State of Virginia into a district called
"Kentucky District;" the remaining part of the State of
Massachusetts being made a district called "Massachusetts
District," and the State of Virginia, except so much thereof as was
thereby made the District of Kentucky, a district called "Virginia
District." 1 Stat. 73.
The plan was to make each of the states a judicial district, and
to direct the appointment of a judge, a clerk, to be appointed
Page 169 U. S. 222
by him, a district attorney, and a marshal, for each district.
But that part of Massachusetts now constituting the State of Maine
and that part of the State of Virginia now forming the State of
Kentucky were erected into independent districts under the names of
"Maine District" and "Kentucky District," and the district court
established in each was invested with the powers of a circuit
By the fourth section, these districts, "except those of Maine
and Kentucky," were divided into three circuits, called the
"Eastern," the "Middle," and the "Southern" circuits, and it was
provided that circuit courts should be held "in each district of
said circuits" by two of the justices of the supreme court and "the
district judge of such districts."
North Carolina having ratified the Constitution November 21,
1789, Congress, by the Act of June 4, 1790, 1 Stat. 126, c. 17,
gave effect to the Judiciary Act of 1789 in that state, erecting it
into a district to be called "North Carolina District,"
establishing a district court with one judge, and annexing the
district to the Southern circuit. Rhode Island having ratified the
Constitution May 29, 1790, a similar act to give effect to the
Judiciary Act was passed June 23, 1790, 1 Stat. 128, c. 21, by
which Rhode Island was annexed to the Eastern circuit.
From the first, then, district courts have been, in exceptional
instances, vested with circuit court jurisdiction.
On February 21, 1823, an act was passed entitled "An act to
divide the State of South Carolina into two judicial districts," as
"That the State of South Carolina be, and the same is hereby
divided into two districts, in manner following, that is to say:
the districts of Lancaster, Chester, York, Union, Spartanburg,
Greeville, Pendleton, Abbeville, Edgefield, Newberry, Laurens, and
Fairfield, shall compose one district, to be called the Western
District, and the residue of the state shall form one other
district to be called the Eastern District. And the terms of the
said district court, for the Eastern District, shall be held at
Charleston at such times as they are now directed by law to be
holden. And for the trial of all such criminal and civil causes, as
are by law
Page 169 U. S. 223
cognizable in the district courts of the United States which may
hereafter arise or be prosecuted, or sued, within the said Western
District, there shall be one annual session of the said district
court holden at Laurens courthouse, to begin on the second Monday
in May in each year; to be holden by the district judge of the
United States of the State of South Carolina, and he is hereby
authorized and directed to hold such other special sessions as may
be necessary for the dispatch of the causes in the said court at
such time or times as he may deem expedient, and may adjourn such
special sessions to any other time previous to a stated
3 Stat. 726.
By an Act approved May 25, 1824, c. 145, entitled "An act to
alter the times of holding the circuit and district courts of the
United States for the District of South Carolina," 4 Stat. 34, it
was provided that the circuit court "for the district of South
Carolina" should annually be held "at Charleston on the second
Tuesday of April, and at Columbia on the third Tuesday of
November," etc., and that
"the times of holding the district court of the United States at
Laurens courthouse, South Carolina, shall be so altered that the
said court shall hereafter convene on the Tuesday next ensuing,
after the adjournment of the circuit court of the United States at
On March 3, 1825, this act was amended by providing that "the
Circuit Court for the District of South Carolina at Columbia, South
Carolina, shall commence on the fourth Tuesday of November,
annually." 4 Stat. 124, c. 78.
By an Act of May 4, 1826, c. 37, the sessions of the circuit
court "for the District of South Carolina" were again changed, 4
Stat. 160, and again February 24, 1829, 4 Stat. 335.
By the Act of March 1, 1845, 5 Stat. 730, c. 39, it was
provided, referring to the circuit court,
"that the spring term of said court shall be held in and for the
district of South Carolina at Charleston, on the Wednesday
preceding the fourth Monday of March."
By an Act approved August 16, 1856, entitled "An
Page 169 U. S. 224
act to alter the time for holding the district court in South
Carolina, and for other purposes," 11 Stat. 43, it was provided
that so much of the Act of May 25, 1824, as provided
"for holding the district court of the United States at Laurens
courthouse, South Carolina, on the Tuesday next ensuing after the
adjournment of the circuit court of the United States at Columbia,
be and the same is hereby repealed, and that in place thereof the
said court shall be held at Greenville courthouse, South Carolina,
on the first Monday in August in each year."
And it was further provided that the jurors for said court,
grand as well as petit, should be drawn "from the inhabitants of
Greenville District, South Carolina," except that the jurors for
the first term of the court should be drawn at "the term of the
district court to be holden in the City of Charleston;" and,
"the said district court for Greenville, in addition to the
ordinary jurisdiction and powers of a district court of the United
States, shall have jurisdiction of all causes (except appeals and
writs of error) which now are or may be hereafter made cognizable
in a circuit court of the United States, and shall proceed in the
same manner as a circuit court."
The Act of July 15, 1862, 12 Stat. 576, c. 178, provided that
"the districts of South Carolina, Georgia, Alabama, Mississippi,
and Florida, shall constitute the Fifth Circuit," and repealed the
act or acts which vested circuit court powers in the district
courts for the Districts of Texas, Florida, Wisconsin, Minnesota,
Iowa, and Kansas; while by the Act of March 3, 1863, 12 Stat. 793,
c. 100, the Districts of California and Oregon were constituted the
Tenth Circuit, and so much of any act or acts as vested in the
district courts for California and Oregon the power and
jurisdiction of circuit courts was repealed.
By the Act of July 23, 1866, 14 Stat. 209, c. 210, it was
provided that "the Districts of Maryland, West Virginia, Virginia,
North Carolina and South Carolina shall constitute the Fourth
The Act of April 10, 1869, 16 Stat. 44, c. 22, authorized the
appointment of a circuit judge "for each of the nine existing
judicial circuits;" but that act, by the Act of July 1, 1870,
Page 169 U. S. 225
was not to be construed "to require a circuit court to be held
in any judicial district in which a circuit court was not required
to be held by previously existing law," 16 Stat. 179.
In the Ku Klux cases, tried in the circuit court at Columbia in
the fall of 1871 before Circuit Judge Bond and district judge
Bryan, Mr. Reverdy Johnson objected to the issue of a venire to
summon additional grand and petit jurors "from the body of the
district" embracing the whole state, though he admitted that "it is
true that the circuit court has jurisdiction, as a court, over the
entire District of South Carolina." The court ruled that so far as
the circuit court was concerned, there was but one district in
South Carolina. South Carolina Ku Klux Trials, pp. 8-10.
The Revised Statutes were adopted June 22, 1874 (the second
edition being published in 1878), and contain the following
"SEC. 530. The United States shall be divided into judicial
districts as follows:"
"SEC. 531. The States of California, Connecticut, Delaware,
Indiana, Iowa, Kansas, Kentucky, Minnesota, Nebraska, Nevada, New
Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, Oregon,
Rhode Island, Vermont, and West Virginia each constitute one
"SEC. 546. The State of South Carolina is divided into two
districts, which shall be called the Eastern and Western Districts
of the district of South Carolina. The Western District includes
the Counties of Lancaster, Chester, York, Union, Spartanburg,
Greenville, Pendleton, Abbeville, Edgefield, Newberry, Laurens, and
Fairfield, as they existed February 21, 1823. The Eastern District
includes the residue of said state."
"SEC. 551. A district judge shall be appointed for each district
except in the cases hereinafter provided. Every such judge shall
reside in the district for which he is appointed. . . ."
"SEC. 552. There shall be appointed in each of the states of
Alabama, Georgia, Mississippi, South Carolina and Tennessee one
district judge, who shall be district judge for each of the
districts included in the state for which he is appointed, and
shall reside within some one of the said districts. . . . "
Page 169 U. S. 226
"SEC. 571. The District Courts for the Western District of
Arkansas, the Eastern District of Arkansas at Helena, the Northern
District of Mississippi, the Western District of South Carolina,
and the District of West Virginia shall have in addition to the
ordinary jurisdiction of district courts jurisdiction of all
causes, except appeals and writs of error, which are cognizable in
a circuit court, and shall proceed therein in the same manner as a
"SEC. 572. The regular terms of the district courts shall be
held at the times and places following: . . . In the Eastern
District of South Carolina at Charleston, on the first Monday in
January, May, July, and October. In the Western District at
Greenville, on the first Monday in August."
"SEC. 604. The judicial districts of the United States are
divided into nine circuits as follows: . . . Fourth. The Fourth
Circuit includes the Districts of Maryland, Virginia, West
Virginia, North Carolina, and South Carolina. . . ."
"SEC. 608. Circuit courts are established as follows: one for
the three districts of Alabama, one for the Eastern District of
Arkansas, one for the Southern District of Mississippi, and one for
each district in the states not herein named, and shall be called
the circuit courts for the districts for which they are
"SEC. 658. The regular terms of the circuit courts shall be held
in each year at the times and places following: . . . In the
District of South Carolina at Charleston on the first Monday in
April, and at Columbia on the fourth Monday in November."
"SEC. 767. There shall be appointed in each district, except in
the Middle district of Alabama and the Northern District of Georgia
and the Western District of South Carolina, a person learned in the
law to act as Attorney for the United States in such district. . .
. The district attorney of the Eastern District of South Carolina
shall perform the duties of District Attorney for the Western
District of said state."
Section 776 makes similar provision as to United States marshals
for said districts.
"SEC. 563. The district courts shall have jurisdiction as
Page 169 U. S. 227
"First. Of all crimes and offenses cognizable under the
authority of the United States committed within their respective
districts, . . . the punishment of which is not capital. . . ."
"SEC. 629. The circuit courts shall have original jurisdiction
as follows: . . . Exclusive cognizance of all crimes and offenses
cognizable under the authority of the United States except where it
is or may be otherwise provided by law, and concurrent jurisdiction
with the district courts of crimes and offenses cognizable
The Revised Statutes were compiled under an Act of June 27,
1866, c. 140, providing "for the revision and consolidation of the
statute laws of the United States," 14 Stat. 74, the appointment of
three commissioners being thereby authorized to accomplish the
work. These commissioners were directed to arrange the statutes and
parts of statutes
"under titles, chapters, and sections, or other suitable
divisions and subdivisions, with headnotes briefly expressive of
the matter contained in such divisions; also with side notes so
drawn as to point to the contents of the text and with references
to the original text from which each section is compiled."
By the Act of March 2, 1877, 19 Stat. 268, c. 82, the
preparation and publication of a new edition of the Revised
Statutes was provided for, the work to be done by a single
commissioner, who was required to add to the marginal references
made in the previous revision.
In United States v. Lacher, 134 U.
, 134 U. S. 626
"If there be any ambiguity in section 5467, inasmuch as it is a
section of the Revised Statutes, which are merely a compilation of
the statutes of the United States, revised, simplified, arranged,
and consolidated, resort may be had to the original statute from
which this section was taken to ascertain what, if any, change of
phraseology there is, and whether such change should be construed
as changing the law. United States v. Bowen, 100 U. S.
, 100 U. S. 513
States v. Hirsch, 100 U. S. 33
; Myer v. Car
Company, 102 U. S. 1
, 102 U. S.
. And it is said that this is especially so where the
act authorizing the revision directs marginal references,
Page 169 U. S. 228
as in the case here. 19 Stat. 268, c. 82, § 2; Endlich on Int.
Statutes, § 51."
Section 546 appears under "Title XIII. The Judiciary. Chapter
One. Judicial Districts," and the cross-reference in the margin is
to the act of "21 Feb. 1823, c. 11, § 1 v. 3, p. 726."
When, then, Congress enacted this section, it seems to have
construed the act of 1823 not as dividing the state into two
judicial districts, as indicated in the title of the act, but into
two districts in the sense of geographical divisions, which is in
harmony with the language used in the body of the act. At all
events, the phraseology of section 546 is only consistent with the
conclusion that the state constituted but one judicial district,
containing two divisions, which were "called the Eastern and
Western Districts of the district of South Carolina."
And it should be remembered that there was, during all this time
(and this has prevailed from thence hitherto), but one judge, one
attorney, and one marshal for the District of South Carolina.
It is said that in the first draft of the commission to revise
the statutes, the commissioners recommended the adoption of a
section corresponding to section 546, in this language:
"The District of South Carolina is divided into two divisions,
which will be called the Eastern and Western divisions of the
District of South Carolina. The Western Division includes the
Counties of Lancaster, etc., as they existed February 21, 1823. The
Eastern Division includes the residue of said state."
And it is argued that, because section 546 was couched in its
present language, notwithstanding the recommendation, that it
therefore follows that Congress intended to divide the state into
two judicial districts. We cannot concur in that view. While the
use of the word "division" might have been more felicitous, yet we
think the meaning of the statute was sufficiently plain, and that
it would be inadmissible to recur to the draft of the commissioners
to create a doubt where none existed. Moreover, it would be a much
greater stretch of construction to say that, because Congress did
not see fit to use the word "division," therefore it should be held
Page 169 U. S. 229
words actually employed, "of the District of South Carolina,"
were inadvertently inserted, and should be rejected altogether.
It should be noted that by section 608, circuit courts were
established for each district in the states not therein named, the
states specified being Alabama, Arkansas, and Mississippi, and yet
that, by section 571, certain district courts, including that for
the Western District of South Carolina, retained circuit court
Nevertheless, it was held by Chief Justice Waite, sitting with
Judge Bond in the circuit court in 1877:
"As to the question of the jurisdiction of this Court throughout
the entire State of South Carolina, we decide, for the purposes of
this trial, in favor of the jurisdiction. This is in accordance
with the uniform practice of the court, without objection from any
quarter, for nearly half a century."
United States v. Butler,
1 Hughes 457, 463.
And in 1886, it was said by Simonton, J., holding the circuit
"All parts of the State of South Carolina are within the
jurisdiction of this court. Its process runs all through the state.
It does not know, in the sense which affects its jurisdiction,
either the Eastern or Western District."
Young v. Merchants' Ins. Co.,
29 F. 273, 275.
However, we are relieved from considering the effect upon the
jurisdiction of a circuit court having jurisdiction throughout a
state, constituting a single judicial district, of a part of the
district being subjected to the jurisdiction of the district court
clothed with circuit court powers, as the Act of February 6, 1889,
25 Stat. 655, c. 113, in terms
"established a Circuit Court of the United States in and for the
Western District of Arkansas, the Northern District of Mississippi,
and the Western District of South Carolina, respectively, as the
said districts are now constituted by law,"
and withdrew circuit court powers from said district courts.
By the Act of April 26, 1890, 26 Stat. 71, c. 165, it was
provided that there should be
"four regular terms of the Circuit Court of the United States
for the District of South Carolina in each year, as follows: in the
City of Greenville on the
Page 169 U. S. 230
first Monday of February and on the first Monday in August; in
the City of Charleston on the first Monday of April, and in the
City of Columbia on the fourth Monday of November,"
"the office of the clerk of said court shall be kept in the
Cities of Charleston and of Greenville, and the clerk shall reside
in one of the said cities, and shall have a deputy in the
And although the act then went on to prescribe terms "of the
district courts for the Eastern District of South Carolina," and
"of the district court in the Western District of South Carolina,"
we think the operation of the prior sections was not thereby
It may be added that in the Legislative, Executive, and Judicial
Appropriation Act of May 28, 1896, c. 252, §§ 7, 9, appropriations
were made for the salaries (among others) of the United States
District Attorney "for the Eastern and Western Districts of the
District of South Carolina" and of the United States Marshal "for
the Eastern and Western Districts of the District of South
Carolina." 29 Stat. 140.
From this review of the statutes, we are unable to arrive at any
other conclusion than that, in 1894, when these proceedings were
had, there were not two judicial districts in the State of South
Carolina to the territorial limits of each of which the
jurisdiction of the circuit court was confined, and that the
exceptions in this regard must be held not to have been well
It is also suggested in the brief for plaintiff in error that
error supervened in that the record does not affirmatively show the
issue of the venire for the grand and petit juries, nor that the
defendant was arraigned; nor that he was personally present when
the verdict was rendered and sentence pronounced.
But the record does show that the indictment was duly returned,
that motions to quash the indictment and the venire of grand and
petit juries were made and overruled, that the defendant pleaded
"not guilty" to said indictment, that the trial came on on that
issue, and a petit jury was duly impaneled and sworn, that trial
was had, and a verdict of guilty returned, and sentence thereon
entered, and that no exceptions
Page 169 U. S. 231
were saved to any of these proceedings other than the exceptions
The result is that the judgment must be