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with, or to supervise, any of the other rights of citizenship, which adhere under the terms “rights, privileges, and immunities of citizens of States."
These propositions of law are believed to be unanswerable. They are fundamental. By applying them to the existing legislation growing out of the new amendments, it will be seen which part thereof is within the powers of the United States, and which part of such legislation is void.
The chapter of the Revised Statutes of the United States, entitled “Civil Rights," must be first tested by these principles of the constitution.
The first two sections declare and define the rights of persons in the United States to have the full and equal benefit of all laws for the protection of person or property in any State or territory.
The next two sections give a right of action to the party injured, by any person who attempts to deprive such party of the equal protection of the laws, and declare it to be a crime to attempt to deprive, or to deprive, any such person of such equal protection; and the remaining provisions set forth the process by which these rights are to be secured and these wrongs punished by process in the federal courts.
All the rights attempted thus to be protected have been declared by the supreme court of the United States, in the Slaughter House cases and in Cruikshank's case, to be subject alone to the control and regulation of the States. Therefore this attempt by congress to interfere in relation to them is unconstitutional and void, and so much of the civil rights chapter as comes within this limitation ought to be repealed.
So likewise section 611 of the Revised Statutes provides that when any civil suit or criminal prosecution is commenced in any State court against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such writ or prosecution is pending, his rights to the equal protection of the laws, such suit or prosecution may be removed to the next circuit court of the United States, on application of the party, stating the facts, verified by oath, filed in the State court.
In other words, any cause, civil or criminal, pending in a State court, may be removed from them to a federal court, on the simple oath of the defendant, that he is denied justice in the State court, or in the State court in that part of the State . where the trail is pending
This statute places the entire administration of justice by the State courts at the mercy of the parties, and subjects every contention that may be brought before a State court to the supervision of the federal court. The mere exparte statement of a party, deprives the State of the regulation of her own affairs, supersedes her control over her internal police, and remits to the federal court “every cause, civil or criminal, that is commenced in any State court, for any cause whatsoever."
In the language of Mr. Justice Miller, “this would constitute this court a perpetual censor upon all legislation of the States on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights.” When the consequences of such a construction of the constitution “are so far reaching and pervading, so great a departure from the structure and spirit of our institutionf; when the effect is to fetter and degrade the State governments by subjecting them to the control of congress, * * * when, in fact, it radically changes the whole theory of the relations of the State and federal government to
each other, and of both these governments to the people,” then it is clear that no such construction can be supported.
This right of removal is also therefore unconstitutional, and the statute granting it ought to be repealed. Therefore the action of the Hon. Alexander Rives in removing the parties, Lee Reynolds and Burwell Reynolds, from the custody of the authorities of Patrick county, and in proposing to try them in the circuit court of the United States for the western district of Virginia, for crimes charged to have been committed against the laws of this commonwealth is without warrant in the constitution of the United States, is contrary to the plain intent and meaning of that instrument, and is a grave usurpation of power.
But even if the statute under color of which Judge Rives is professing to act were valid, the case to which he has applied it is not within the statute.
The parties claiming the intervention and protection of the federal court hare claimed it on the allegation thut they were denied the equal protection of the laws by the circuit court for Patrick county, in this, that they, being negroes, were entitled to have a jury to try them composed in part of persons of their own race. But the organization of a jury of one race is no denial to the other race of the equal protection of the laws. The same sort of jury tries all cases without regard to the race of the parties to it, and the same laws operate with equal and exact justice on all men alike.
It is beyond dispute that the people have the right to organize their own State goveruments in their own way. They may distribute power as they deem best. They may say who shall administer the government, who shall vote, who shall testify, who may be judges, jurors, sheriffs, lawyers. They may arrange the whole machinery of judicial, executive and legislative power as they will. They may declare that women shall share the power and the burdens of the State, or they may limit it to men who have property and education. And they may do all these things by constitutions or by statutes whose general provisions applying to all cases must operate equally on all persons.
Time out of mind women have paid taxes, and yet in time out of mind no court ever before hell that women were entitled to be tried by mixed juries of men and women. Infants have always been citizens; male infants after eighteen years of age are liable to almost every duty of citizenship, and can be required to support and defend the government with purse and person, but no judyc ever before imagined that infants thereby acquired the right to be tried before juries of infants and adults. Yet, women and infants always have been entitled to the guarantees of the great charter, and to have justice, freely without sale, fully without denial, and speedily without delay.
It is therefore clear beyond a doubt that the laws of Virginia, in not providing for mixed juries in causes civil and criminal, when parties are of different races, do not deny to any person the equal protection of the law, in the language of the fourteenth amendment. And your committee here take occasion to emphasize the remark that never since these three amendments have been declared to be parts of the constitution, has any person within the jurisdiction of this commonwealth complained that she had deprived him of life, liberty, or property, without due process of law, or denied him the equal protection of the laws, and invoked the interference of the federal courts, until the case now under consideration. Her own laws, her own courts, and her own officers, have always hitherto been found to be ample protection for the rights of all without regard to race or color. Since the insertion of the three war amendments in the constitution, the protection of the United States has been invoked by persons who claimed to have been deprived of rights by the action of the States of Minnesota, Wisconsin, Iowa, Illinois, Missouri, Kentucky, and Louisiana, and the supreme court of the United States has passed upon legislation by these States so complained of as oppressive.
Mr. Justice Miller, in 1877, deciding the case of Davidson vs. New Orleans, 96, U, S. 101, says: That while the clause prohibiting States from depriving citizens of life, liberty, and property, withont due process of law, "has been a part of the constitution as a restraint upon the power of the States only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law,"
Now, while the dockets of the supreme court is thus crowded with cases not yet heard, the court having actually decided causes involving the action of seven States; not one single case has ever before arisen in Virginia in which any person claimed the protection of the federal courts against her injustice.
And your committee further takes occasion to point out the fact that during the last thirteen years, since the emancipation of the slaves, amid all the confusion that has existed elsewhere, growing out of antagonism of race, color, and class, peace and order and good feeling have prevailed within her borders. In some of her unhappy sister States race has been arrayed against race to the great injury of the public weal and the detriment of those involved in such a contest. In other commonwealths class has been arrayed against class, and society itself strained in the struggle between anarchy and order. Life, labor, property, have been lost and destroyed thereby ; but during all this time the whole people of Virginia have reposed in full security and perfect confidence in the justice and strength of her institutions.
Under these circumstances the constant interference of the federal government with the affairs and domestic concerns of Virginia is not only without warrant or justification in the constitution, but is without excuse or pretence of necessity arising from any dereliction of duty on the part of her people.
By means of the power of removal of causes from the State courts to the federal courts, the whole administration of justice by the States is supervised by the federal judiciary. No case has ever before occurred in Virginia in which a prosecution for crime against the laws of the State has been removed to a federal court, and no case has ever arisen anywhere, so far as your committee have been able to discover, in which any federal court has undertaken to enforce State laws for the punishment of crime. It is therefore considered proper to invite the attention of all the States and all their people to this usurpation of authority, in order that the appropriate remedy may be applied in the proper constitutional manner. The power of removal of causes from State courts was first given by the judiciary act of 1789, by which the judicial power of the United States was vested in courts, to the extent therein set forth.
This act has stood the test of trial and criticism for ninety years, and has never been modified in essential particulars.
On the 7th of April, 1789, the day after the first congress organized, the Senate appointed a committee to bring in a bill for organizing the judiciary of the United States, of which Oliver Ellsworth was chairman), with Patterson, Maclay, Strong. Lee, Bassett, Few and Wingate.
On June 12th, Mr. R. II. Lee, of Virginia, from the committee, reported the bill in substance as it was passed.
It is the contemporaneous coustruction of the constitution by the men who framed the constitution, or who participated in the conventions of the States which ratilied it. It may be considered as next to the constitution itself. The supreme court, through Chief-Justice Marshall, himself a member of the Virginia convention which ratified the constitution, declared in Cohens vs. Virginia, 6 Wheaton, that this law is “a contemporaneous exposition of the constitution, certainly of not less authority than the Federalist itself."
The judiciary act limited the right of removal from State courts to only three cases, governed by one plain principle. The courts of the United States were intended to atford to strangers tribunals free from local bias and thoroughly impartial. Therefore the judiciary act provides that when an alien or citizens of another State is sued in any State court, or when a cause involved title to land arising under a grant from another State, then such alien, or stranger, or claimant, might remove his trial from the State court in which he was a foreigner, to the federal court, in which he stood on equal terms with his antagonist. This was the beginning, and the limit of the right of removal. The right depended upon facts which were susceptible of proof, or which might be denied. The object of the law was to secure an impartial tribunal, and the men who framed the constitution never dreamed that the jurisdiction of the State courts could ever be ousted by any assertion of a matter of law about which there could be discussion and difference, and of which there could be no decision until after the jurisdiction was ousted.
The right of removal under the constitution rests on facts, which must be ascertained before the case can be removed. The right of removal created by recent acts of congress rests upon questions of law, which of necessity cannot be examined into until after the cause is removed. The one case makes the State court the primary judge whether the right exists, the other makes the federal court the primary judge to examine and ascertain whether the State court shall be allowed to go on.
The right of removal was next extended by the act of 1833, to officers of the United States who might be held to answer in State courts for their acts done as officers of the United States. Here, also, the right of removal rested on a fact to be ascertained by the State courts before the right was allowed. The same right was subsequently extended to military officers of the United States. But it was not until 1866, that any attempt was made to grant the right of removal on account of any claim of right or matter of law.
And that act provided that when any person was denied in any State courts the equal protection of the laws in any cause, civil or criminal, he should have the right to remove the same. This made every possible case, for every cause whatsoever, removable on affidavit of the defendant.
Subsequent acts of congress have further extended the right of removal to all corporations organized under the laws of the United States, and it only needs a
change in the statute to give the same right to corporations, some of whose stockholders do not reside within the State in whose courts suits are brought.
The importance of this suggestion may be appreciated when the steady movement is observed on the part of all corporations of every kind to avail themselves of the protection of the federal judiciary, whether for purposes of liquidation or protection in their rights. And when it is remembered that the proportion of capital and business controlled and managed by corporations is constantly increasing, it will be seen how far this right of removal by them from State to federal courts will absolutely withdraw a very large share of the property and business of the country from the control of the States.
The right of removal from State courts ought to be remitted to the principles of the judiciary act, and removals ought only to be permitted when the facts bring them clearly within the purview of the constitution. It is declared "that the supreme court of the United States shall have appellate jurisdiction in all cases," except those specified in which it has original; and it is more in consonance with the intent and spirit of the constitution, that the judicial power of the United States should only be applied to cases arising in State courts, as part of this appellate jurisdiction. When the State has exercised her full power of administering justice, then the judiciary act secures to any party denied any right claimed under the constitution and laws of the United States, an appeal to the supreme court of the United States. And it seems that this is the only way in which the revision and supervision of the federal judiciary can be applied to the proceedings of the State courts consistently with the anatomy of the States and and their rights to regulate their own domestic affairs, except within the limitations suggested.
Another grave evil that is brought to view by the action of Judge Rives in these cases, is the state of the law which permits an inferior federal judge to set aside the State constitution, to veto State laws, and to disregard State governments, absolutely without control or responsibility, save the extreme remedy of impeachment provided in the constitution. The right of appeal to the supreme court of the United States from the decisions of a federal court is limited to cases involving five thousand dollars or upwards, but the right of appeal from the decisions of a State court arises in every case where such court denies the party any right claimed under the constitution, laws or treaties of the United States.
A federal judge may enjoin a State legislature from assembling; he may set at defiance the judgment of the supreme court of a State, or he may assume to try parties charged with crime against the laws of a State, and may take them from the officers of the State, for that purpose. In all these cases there is no appeal, and if any legal reinedy exists, it is uncertain and untried.
And federal courts may deny to parties rights guaranteed to them by the States, or reserved to the people when the constitution was formed, and there is no appeal unless the amount claimed amounts to five thousand dollars. But if the most inferior court of a State denies any right claimed under the constitution, and the State law provides no appeal to a higher State court, then the judiciary act gives an appeal to the supreme court of the United States.