court to assume, as the basis of any answer to the question, that, according to the undisputed testimony, the Government proved the alleged violation of law. In such a case there are no facts for the jury to consider. Whether, under the undisputed testimony, the plaintiff was entitled to judgment was manifestly only a question of law, in respect of which it was the duty of the jury to follow the direction of the court. Even in technical criminal cases it is the duty of the jury to accept the law as declared by the court. Sparf and Hansen v. United States, 156 U. S. 51, 101, and cases there cited. If in a civil action to recover a penalty the defendant is entitled, the evidence being undisputed, to have a peremptory instruction in his behalf, it is difficult to perceive why the Government is not entitled to a peremptory instruction in its favor, where the undisputed testimony left no facts for the jury to consider, but established, beyond all question and as matter of law, its right to judgment for the prescribed penalty. In Four Packages v. United States, 97 U. S. 404, 412, which was a proceeding for the forfeiture of goods because of their having been taken from the steamer bringing them into the country, without a permit from the collector, the jury was directed to find a verdict for the Government. 1 Stat. 665; Gen. Reg. (1857 145. That ruling being assigned for error, this court said:"Taken as a whole, the evidence fully proved that the packages were unladen and delivered without the permit required by the act of Congress; and inasmuch as there was no opposing testimony, the direction of the court to the jury to return a verdict for the plaintiffs was entirely correct"-citing Improvement Company v. Munson, 14 Wall. 442; Ryder v. Wombwell, Law Rep. 4 Ex. 39; Law Rep., 2 P. C. 235. In United States v. Thompson, 41 Fed. Rep. 28, which was an action to recover a penalty of $1,000 under the contract labor law, the court directed a verdict, saying: "There certainly is no question here for the jury, as there is no conflict of testimony. I shall therefore direct a verdict for the Government for the full amount, $1,000." See also Hines v. Darling, 99 Michigan, 47.

The objection made in behalf of the defendant, that an affirmative answer to the question certified could be used so as to destroy the constitutional right of trial by jury, is without merit and need not be discussed. The defendant was, of course, entitled to have a jury summoned in this case, but that right was subject to the condition, fundamental in the conduct of civil actions, that the court may withdraw a case from the jury and direct a verdict, according to the law if the evidence is uncontradicted and raises only a question of law.

Restricting our decision to civil cases, in which the testimony is undisputed, and without qualifying former decisions requiring the court to send a case to the jury, under proper instructions as to the law, where the evidence is conflicting on any essential point, we answer the question here certified in the affirmative. Let this answer be certified to the court below.

MR. JUSTICE BREWER dissents.

UNITED STATES v. MASON.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.

No. 642. Argued March 5, 1909.-Decided April 5, 1909.

On an appeal taken in a criminal case by the United States under the act of March 2, 1907, c. 2564, 34 Stat. 1246, from the ruling of the Circuit Court sustaining a special plea in bar, this court is limited in its review to that ruling and cannot consider other grounds of demurrer to the indictment. United States v. Keitel, 211 U. S. 370, 398. Section 5509, Rev. Stat., does not embrace any felony or misdemeanor against a State of which, prior to the trial in Federal court of the Federal offense the defendants had been lawfully acquitted by a state tourt having full jurisdiction.

Argument for Plaintiff in Error.

213 U.S.

As the Federal court accepts the judgment of a state court construing the meaning and scope of a state enactment, whether civil or criminal, it should also accept the judgment of a state court based on the verdict of acquittal of a crime against the State.

THE facts, which involve the construction of §§ 5508 and 5509, Rev. Stat., are stated in the opinion.

Mr. Assistant Attorney General Fowler, for plaintiff in error: The facts presented in the special plea do not bring the case within the second jeopardy provision of the Fifth Amendment. This provision applies only to proceedings in United States courts. The first ten Amendments operate on the National Government alone. Baron v. Baltimore, 7.Pet. 242, 246; Livingston v. Moore, 7 Pet. 468, 551; Fox v. Ohio, 5 Họw. 410, 434; Smith v. Maryland, 18 How. 71, 76; Withers v. Buckley, 20 How. 84, 91; Pervear v. The Commonwealth, 5 Wall. 475, 479; Twitchell v. The Commonweaith, 7 Wall. 321, 325; The Justices v. Murray, 9 Wall. 274, 278; Edwards v. Elliott, 21 Wall. 532, 557; Walker v. Sauvinet, 92 U. S. 90, 92; United States v. Cruikshank, 92 U. S. 542, 552; Pearson v. Yewdall, 95 U. S. 294, 296; Davidson v. New Orleans, 96 U. S. 97, 101; Kelly v. Pittsburg, 104 U. S. 78, 79; Presser v. Illinois, 116 U. S. 252, 265; Spies v. Illinois, 123 U. S. 131, 166; Brown v. New Jersey, 175 U. S. 162, 174; Barrington v. Missouri, 205 U. S. 486; Hunter v. Pittsburg, 207 U. S. 176.

The fact that this case is pending in a Federal court does not make the provision applicable, as the pleas do not set up a former jeopardy within the meaning of the Constitution. The legislative and judicial acts of the state governments are entirely distinct from similar acts of the National Government, and this Amendment does not apply to any proceeding in a state court. Barron v. Baltimore, 7 Pet. 242, 246. See also Fox v. Ohio, 5 How. 410, 434; United States v. Barnhart, 22 Fed. Rep. 285, 290; 12 Cyc. Law and Pro. 259.

The same act may constitute an offense against both the national and state governments and the trial of one offense is

213 U.S.

Argument for Defendants in Error.

not a bar to the trial of the other. Fox v. Ohio, 5 How. 410, 434, Moore v. People of Illinois, 14 How. 13, 19; United States v. Cruikshank, 92 U. S. 542, 550; Coleman v. Tennessee, 97 U. S. 509, 518; Ex parte Siebold, 100 U. S. 371, 390; Cross v. North Carolina, 132 U. S. 131, 139; Pettibone v. United States, 148 U.S. 197, 209; Crossley v. California, 168 U. S. 640, 641; Grafton v. United States, 206 U. S. 333, 353; Sexton v. California, 189 U. S. 319.

The offense with which defendants are charged does not arise out of the same acts as, and is entirely different in its nature from, the offense for which they were tried in the state

court.

Defendants are not in this case indicted for the murder of Walker, but for a conspiracy to injure and intimidate and oppress Walker and others in the exercise of certain privileges secured to them by the Constitution and laws of the United States. The gravamen of the offense here charged is the conspiracy. Rev. Stat., § 5509, does not create a separate offense, but it only prescribes the punishment that may be inflicted in case it be determined by the jury that the aggravated conditions mentioned therein existed. As to the relationship between $5508 and § 5509 and the object of the latter section, see Davis v. United States, 107 Fed. Rep. 755. See also Rakes v. United States, 212 U. S. 55; Motes v. United States, 178 U. S. 462.

Mr. John M. Waldron, with whom Mr. Reese McCloskey and Mr. N. W. Dixon were on the brief, for defendants in error: The spirit, if not the letter, of the second jeopardy clause of the Fifth Amendment inhibits a retrial in the Federal court of the murder charge contained in the indictment. Constitutional provisions for the protection of person and property should be liberally construed. Boyd v. United States, 116 U. S. 635; Ex parte Lange, 18 Wall. 163, 205.

For cases holding, on a similar state of facts, that the right of retrial herein does not exist, see Houston v. Moore, 5 Wheat. 1; United States v. Pirates, 5 Wheat. 184, 197. See also 1 Kent's

Commentaries, 188; 1 Bishop's Crim. Law (6th Ed.), §§ 985, 984, 1060; 1 Wharton's Crim. Law, § 293; In re Stubbs, 133 Fed. Rep. 1012.

There are several decisions of the state supreme courts which refuse to recognize a concurrent jurisdiction. The bare possibility of a second prosecution for the same alleged criminal act is abhorrent to the principles of the common law, as well as the genius and spirit of American jurisprudence, and dual jurisdiction of state and Federal government to create offenses against each out of one act should be denied. See Commonwealth v. Ketner, 92 Pa. St. 372, 377; Com. v. Fuller, 8 Metcalf, 313 (Mass.); Harlan v. People, 1 Douglas' Reports (Mich.),

212.

These constitutional provisions here relied on are, in effect, but declaratory of the maxims and principles of the common law, and the humane principles represented thereby should be applied and enforced by the Federal courts, even though the Federal Constitution was silent upon the subject. Ex parte Lange, 18 Wall. 163-205; see also State v. Cooper, 1 Green (N. J.), 375; 1 Chitty's Crim. Law, §§ 452–462.

MR. JUSTICE HARLAN delivered the opinion of the court.

This is a criminal prosecution under §§ 5508 and 5509 of the Revised Statutes. The substantial provisions of each of those sections were reproduced from the act of May 31st, 1870, c. 114, passed for the purpose of enforcing the right of citizens to vote in the several States, and for other purposes.

Those sections are as follows: "§ 5508. If two or more persons conspire to injure, oppress, 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