# Blyew v. United States

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## Dissenting Opinion

    P. Bradley
United States Supreme Court
80 U.S. 581
Blyew v. United States
ERROR to the Circuit Court for the District of Kentucky; the case being this:
By the Revised Statutes of Kentucky, published A.D. 1860, it is enacted:
Under the act of 9th April, 1866 (14 Stat. at Large, 27), sometimes called 'The Civil Rights Bill,' which gives jurisdiction to the Circuit Court of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts of the State or locality where they may be, any of the rights given by the act (among which is the right to give evidence, and to have full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens), a criminal prosecution is not to be considered as 'affecting' mere witnesses in the case, nor any person not in existence. United States v. Ortega (6 Wheaton, 467), affirmed.
'That a salve, negro, or Indian, shall be a competent witness in the case of the commonwealth for or against a salave, negro, or Indian, or in a civil case to which only negroes or Indians are parties, but in no other case.'
This enactment being in force in Kentucky, the thirteenth amendment to the Constitution was proclaimed as having been duly ratified, and a part of it, December 18th, 1865, is in these words:
'SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
'SECTION 2. Congress shall have power to enforce this article by appropriate legislation.'
In this state of things, Congress on the 9th April, 1866, passed an act entitled 'An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication.' The first section of that act declared all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, to be citizens of the United States, and it enacted that:
'Such citizens, of every race and color, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.'
The second section enacted:
'That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right, secured or protected by this act, or to different punishment, pains, or penalties, on account of such person having at any time been held in a condition of slavery, or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, or by reason of his color, or race, than is prescribed for the punishment of which persons, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished,' &c.
Then followed the third section, which contains this enactment:
'That the District Courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also concurrently with the Circuit Courts of the United States, of all causes, civil and criminal, affecting persons who are denied, or cannot enforce in the courts or judicial tribunals of the State, or locality, where they may be, any of the rights secured to them by the first section of the act.'
The section then provided for removal into the Federal courts of any suit or prosecution, civil or criminal, which had been, or might hereafter be, commenced against any such person for any cause whatever.
The sixth section rendered liable to fine and imprisonment any person who should obstruct an officer or other person in execution of process under the act, or should aid a person arrested to escape, or conceal a person for whose arrest a warrant had been issued.
In this state of things, two persons, Blyew and Kennard, were indicted October 7th, 1868, in the Circuit Court for the District of Kentucky, for the murder, on the 29th of August preceding, within that district, of a colored woman named Lucy Armstrong. The indictment contained three counts, all of them charging the murder in the usual form of indictments for that offence, and with sufficient certainty. But, in order to show jurisdiction in the Circuit Court of the United States, an averment was made in the first court that the said Lucy Armstrong was a citizen of the United States, having been born therein, and not subject to any foreign power; that she was of the African race, and was above the age of seventy-five years; that Blyew and Kennard (the persons indicted) were white persons, each of them at the time of the alleged killing and murder above the age of eighteen years; that the said killing and murder, done and committed, as averred, were seen and witnessed by one Richard Foster, and one Laura Foster, citizens of the United States, having been born therein and not subject to any foreign power, both of the African race; and that the said Lucy Armstrong, Richard Foster, and Laura Foster were then and there denied the right to testify against the said Blyew and Kennard, or either of them, concerning the said killing and murder, in the courts and judicial tribunals of the State of Kentucky, solely on account of their race and color. The second and third counts contained substantially the same averments.
To this indictment the defendants pleaded specially that before it was found they had been in custody of the authorities of the State, and, after examination, had been held to answer for the killing of Lucy Armstrong, which was the same offence as that charged in the Circuit Court; but on demurrer the plea was overruled, and the case went to trial upon the issues found by a replication to the plea of not guilty. During the progress of the trial the court sealed several exceptions to the admission of evidence offered by the United States, and a verdict of guilty having been returned, a motion was made in arrest of judgment, which the court also overruled. The ground alleged for this motion was, that 'the facts stated in the indictment did not constitute a public offence within the jurisdiction of the court.'
There were thus three questions presented by the record:
First. Whether the Circuit Court had jurisdiction of the offence charged in the indictment?
Second. Whether the court erred in sustaining the de murrer to the defendants' special plea?
Third. Whether the evidence to which the defendants objected should have been received?
Of course, if the first question was resolved in the negative, any resolution of the remaining ones became unnecessary.
The case was brought here on error under the tenth section of the already mentioned act of Congress, which provides 'that, upon all questions of law arising in any cause under the provisions of this act, a final appeal may be taken to the Supreme Court of the United States.'
The murder for which the defendants were convicted, and as they now sought to show illegally, had been one of peculiar atrocity. A number of witnesses testified that on a summer evening of 1868 (August 29th), towards eleven o'clock, at the cabin of a colored man named Jack Foster, there were found the dead bodies of the said Jack, of Sallie Foster, his wife, and of Lucy Armstrong, for the murder of whom Blyew and Kennard stood convicted; this person, a blind woman, over ninety years old, and the mother of Mrs. Foster; all persons of color; their bodies yet warm. Lucy Armstrong was wounded in the head; her head cut open as with a broad-axe. Jack Foster and Sallie, his wife, were cut in several places, almost to pieces. Richard Foster, a son of Jack, who was in his seventeenth year, was found about two hundred yards from the house of his father, at the house of a Mr. Nichols, whither he had crawled from the house of his father, mortally wounded by an instrument corresponding to one used in the killing of Lucy Armstrong, Jack and Sallie Foster. He died two days afterwards from the effects of his wounds aforesaid, having made a dying declaration tending to fix the crime on Blyew and Kennard. Two young children, girls, one aged ten years and the other thirteen (this last, the Laura Foster above mentioned), asleep in a trundle-bed, escaped, and the latter was a witness on the trial.
Evidence was produced on the part of the United States, that a short time previous to the murder, Kennard was heard to declare, in presence of Blyew, 'that he (Kennard) thought there would soon be another war about the niggers; that when it did come he intended to go to killing niggers, and he was not sure that he would not begin his work of killing them before the war should actually commence.'
Such a case, and the withdrawal of it from the State courts, naturally excited great interest throughout the State of Kentucky, and by a joint resolution of the General Assembly of that State, passed at its adjourned session in 1869, the governor of the State was directed to cause the commonwealth above mentioned to be represented in this court. Being brought here the case was very fully and interestingly argued; the point to which counsel here addressed themselves chiefly being the one already stated as the first one presented by the record, the point of the jurisdiction of the Circuit Court.
Messrs. J. S. Black and I. Caldwell, for the State of Kentucky, after remarking that this murder was committed on the soil of Kentucky and within her limits; that it was an insult to her dignity and an outrage on the peace of a community which, by the organic law of the land, was placed under her sole protection; that her law was offended by it, and that none but she had a right to enter into judgment with the perpetrators of it; that no other state, sovereignty, prince, or potentate of earth had made or could make any law which would punish that offence at that place; that the United States had never pretended that a murder within the limits of a State was an offence against them, and that it was no more an offence against the United States than it was against the republic of France or the empire of Germany, contended that the Circuit Court had no jurisdiction, because—
1st. Whether the act of Congress did or did not embrace this case, it was a sheer, flat breach of the Constitution; that the amount, quantity, and extent of the judicial power of the United States was defined by and limited by the 2d section of Article III of the Constitution, which says:
'1. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.'
Thus far the power went and no farther. By no construction not even the loosest-could it be extended to the punishment of offences against the State. Yet this act gave exclusive jurisdiction to the Federal courts and a total denial of all right on the part of the State to interfere in any case that affects a negro; which a case no doubt does where a negro is a party. Such a condition of things could not be tolerated by any State, even if it extended to great cases. But the act extended the jurisdiction of the Federal courts exclusively of that of the State to all cases affecting negroes; i. e., to all cases where negroes are parties. It extended it to the smallest and lowest case, to assaults and batteries, to small thefts, to the slightest breaches of police regulations; and, if a negro robbed a hen-roost, the suffering party was now obliged either to let him go unpunished or to take him for justice to wherever the Federal court sat, often hundreds of miles off. The consequence was that nine-tenths of the lower class of crimes committed by negroes went now unpunished in Kentucky. The act of Congress had, in cases where it did apply, dislocated all the machinery of the State courts and rendered them powerless to perform their duty.
But the learned counsel contended,
2d. That there was no jurisdiction because, whether the enactment was constitutional and valid, or unconstitutional and void, this case was not within it. This case did not affect negroes. It was a proceeding by the State against white men. The United States v. Ortega, which arose on the above-quoted clause of the Constitution which gives the Federal courts jurisdiction in 'cases affecting ambassadors,' decided that a criminal case affects nobody but the party accused and the public.
If the act of Congress be constitutional, and if in such a case as the present negroes are affected by it-that is to say, when the persons prosecuted are white men and only the witnesses are negroes-any man that pleases may set out with a pre-expressed determination and commit any crime that he pleases against the State of Kentucky, and he will do it with impunity if he will only take a negro along with him when he does the deed; or, if he is not so happy as to have done it in the presence of one of that race, if he will hunt up a black man and make a confession in his presence afterwards. It matters not whether the testimony of the black witness be important or not so. The same fact may be testified to by twenty white men, but if there be one negro, that is sufficient (according to the theory of the court below) to oust the State jurisdiction and vest it exclusively in the Federal courts. If a fight take place between white men at a barbecue, or militia muster, or cross-roads meeting-though it concern nobody but white men-they cannot be indicted for the offence in any court of Kentucky if one single negro in the whole crowd saw the thing done; and if actually so indicted, white men, in order to be acquitted, need only prove themselves guilty and that their crime was committed in the presence of a negro! To such results does the view of the court below, that a case between the State and white men 'affects' negroes, if any negro is a witness, necessarily lead.
Mr. A. T. Akerman, Attorney-General, and Mr. B. H. Bristow, Solicitor-General, contra:
1. The thirteenth amendment to the Constitution worked a radical change in the condition of the United States. But it did not execute and was not meant to execute itself. Appropriate Congressional legislation was provided for. Most of the members of the Congress who passed the civil rights bill were members of the Congress which framed the thirteenth amendment. This fact adds to the probability of conformity to the purpose of the amendment, independently of which special argument presumptions are always in favor of the constitutionality of an act of Congress. Indeed, till the beginning of the rebellion, this court rarely decided one unconstitutional. The cases of Marbury v. Madison and perhaps Scott v. Sandford, are the only ones we recall. If the thirteenth amendment be liberally construed the act of Congress is legislation quite appropriate. The amendment as a remedial one must be so construed. The obvious intention was to remove an existing evil, which was recognized as the cause of the civil strife in which the country was engaged, and to confer freedom upon the slave as a reward for his military service in the preservation of the government. It is unreasonable to suppose that the framers of this amendment, with this end in view, should have been content to give to these slaves only that small portion of freedom which the so-called free blacks had theretofore enjoyed. In this age no man can be called free who is denied the right to make contracts, sue and be sued, and to give evidence in the courts. No man is really free who is not protected, by law, from injury. So long as he is denied the right to testify against those who violate his person or his property he has no protection, and is denied the power to defend his own freedom.
The condition of things in Kentucky under its law excluding the evidence of blacks where white persons have committed crime is disgraceful to a Christian community. A band of whites shall set upon and murder half a congregation of blacks, their minister included, and though a hundred blacks who saw the massacre survive, and can identify the murderers, conviction is impossible. The wisdom and appropriateness of the legislation of Congress, as shown by the act now in question, cannot be better illustrated than by the facts of this case. At night, in their own humble cabin, an unoffending and defenceless old colored man, his infirm mother more than ninety years of age, his wife, and son, are murdered in a most shocking manner by two brutal white men, actuated by no other motive than that of avowed hostility to the black race. The son lingers long enough to tell the facts of this horrible transaction, and a little sister, twelve or thirteen years of age, survives the cruel wounds inflicted upon her at the same time. The dying declarations of the one and the parol testimony of the other in court, taken in connection with circumstantial evidence produced at the trial, establish the guilt of the accused beyond all reasonable doubt. And yet under the law of the State the accused cannot be punished, because in Kentucky black men cannot give evidence of the crimes of white ones.
2. The case is embraced by the act. The murder did affect persons who were denied in the State courts rights which the act of Congress secured. It affected the murdered negro, the negro witnesses in the case, and the whole negro population of Kentucky. The United States v. Ortega does not apply. That case arose on a clause of the Constitution which gives the Federal court jurisdiction in all 'cases' of a particular sort. The act now under consideration employs the phrase 'causes, civil and criminal.' This is broader language, and, taken in connection with the title and subsequent sections of the act, must be understood in the sense of causes of civil action and causes of criminal prosecution. It cannot be said that in no case is any one affected by a cause who is not a party to the legal proceeding growing out of such cause. This was the view maintained on the Circuit, after great consideration, by Swayne, J., in United States v. Rhodes, which arose on this act of Congress, and where the same arguments were used against the jurisdiction as here.
[Some discussion, not material to be reported, was also had at the bar by the counsel on both sides, as to whether the case was properly brought here by writ of error; and also as to the respective jurisdictions of the District and Circuit Courts under the 2d and 3d sections of the act.]
Mr. Justice STRONG delivered the opinion of the court.

## Notes

* ↑ Section 1, chapter 107, vol. 2, p. 470.
* ↑ 13 Stat. at Large, 774.
* ↑ 14 Id. 27.
* ↑ The murder and indictment were, it seems, after the ratification of the fourteenth amendment, which was proclaimed July 20th, 1868. (15 Stat. at Large, 708.)
* ↑ 11 Wheaton, 467.
* ↑ 1 Cranch, 137
* ↑ 19 Howard, 393.
* ↑ 1 Abbott's United States, 29.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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