The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1871-04-27
For The Clarion.
The Threatened Conspiracy
Against the Lives and
Liberties of the
DeAnIR.

/ couhsei, OF OoAIl, 20 demand the nature anG
cause OF the accusation. to be confronted
by the witnesses against him,
TO speedy and public trial by an i'm partia
! jury OF the county where the offtuse wa,
| committed. Sec. Z, Art. l.
z The Legislature shall provide by Law
| TOT the Indictment and trial of persons
charged with the commission of felony. In
any county other than that in which tht
! offence was committed, whenever owing Il
| prejudice, or any other cause. an impartial
| grand or petit jury cannot be empannelIed
/ IN the county in which the offence was
/ committed.--Sec- 4. Art. II.
| 5: Inc powers of government of the State
/ OF mississippi shall be divided into three
dlstlnct departments, and each of them con-
| nded 70 a separate body OF magistracy, to-
/ VII: Those which are Legislative TO one
| those which are Judicial 10 another: and
| those which are Executive to anoth err
/ Sec. l, Art. 3.
4. No persons or collection OF persons be-
| ing OF one of these departments, shall exer-
else any power properly belonging TO either
of the others except in the instances herein
AFTER expressly directed or permitted
Sec. 2, Art. 3.
It's not denied that the Legislature may,
in the exercise of the powers granted in the
provision marked No. 2, provide for the
change of venue in criminal cases at the
| instance ofthe State and against the wishes
of the accused, aud thus deprive him of the
great right secured him in the Bill Of Rights
of being tried by jury of the vicinage.
But in doing so the Legislature cannot in
woke the agencies provided for in what is
called the Ku klux Tor Penal Transports
tion) Bill. Primd facIe person charged
with crime can be indicted and tried only
in the county where the alleged offense was
committed. He can be deprived of this
right only on the contingency mentioned in
extract No. 2, above quoted, viz: when
owing to prejudice or ahy other cause an
impartial Grand and petit jury cannot be eas-
pdneHed in the county. Before he can be de
prived of the right of trial by jury OF tie
vicinage, it must be GscertGtaed and estG6-
Hshed that an impartial jury cannot be
empaneled there.
Is the determination of the question a
judicial or executive function? and has the
accused no right to be heard by himself or
counsel when the question Is tried? The
answer to the question is plain and does not
admit of doubt. The power to change the
venue in criminal cases, at the instance of
the prisoner. for the reason that an i'm partial
Jury cannot be impanneled has been long
vested in the Circuit Courts of the State.
That power was vested in them when the
present Constitution was adopted. Their
right to exercise it has never been ques-
toned and has been recognized by the Hg
Court in numberless instances. This power
to determine upon the practicabiity of
impanneling an impartial jury and of
granting a change of venue, is either judicial
or executive. 1t either, in the language of
the Constitution, properly belongs" to one
or the other. 1t cannot properly belong to
both, for the Constitution says ''the powers
of Government shall be divided into three
departments and 'each conftded to a sepe-
rate body of m2gistracy" and that mo
person being of one department shall ex-
ercse power properly belonging to the
other" If the power be executive, then
the Legislative, Judiciary and Executive
Departments, as well as the whole bar of
the state. have seriously erred for more than
a half century, in suffering it to be judicial,
and every man who has either suffered
Imprisonment or death under the old law
us it now stands, comforting the power on
the Circuit Courts, was Kidnapped or muir
dered contrary TO law. If it be judicial, as
it most clearly is, then the ku klUx Bill is
unconstitutional, and if passed into the form
of law will be no law, and whatsoever,
whether Governor, Sheriff, or District At
torney or Judge, shall arrest or detain or
punish any person under it, VIII be a tres
passer, kidnapper or murderer, just the
same as il he were not a public officer, but
a private citizen, doing those things without
authority of law.
II,,fx y,cti fgpt
makes distribution of powers in general
terms-as Executive, Judicial, Chancery, or
Common Law-without defining especially
what is embraced in each, that reference
must be had TO the prevailing system in
force in the State at the time of the adop-
ton OF the Constitution, and when by that
system power was lodged in particular
court or department, and was thus designa-
ted as executive, judicial, chancery or COM
mon law, that this designation and classifi-
cation remains, and is adopted by the new
Constitution. See Servis V. Beatty, 80 Miss.
II. 81.
This conclusively shows this power to be
judicial and not executive, as the power
was so classed when the present Constitu-
tion was adopted.
But the nature of the power makes it I'M
questionably judicial. \ question in the
trial of a cause is to be determined, 1t is to
be settled by evidence; the evidence adduc-
ed is to be weighed and considered, and
conclusion reached as to the existence or
of an alleged fact, and upon
that finding an order or judgment is rem
dered. Can these functions be performed
in reference to the trial of citizen for
his life, or liberty, or with respect to his
property, except in court with full oppor-
tunity of defence given?
IT this power was vested in the Governor,
with reference to a civil cause, its unconsti-
tutionality would be at once perceived
Yet the Governor has no more power in a
criminal cause than a civil suit, except
alone the power of reprieve and of pardon.
His power to execute the law is as great
and his duty as imperative in the one class
of cases as the other. And his whole power
and duty in this respect is simply executive,
i e. to assist the courts and ministerial Off
GERS in the execution of powers or the en-
forcement of judgments when force is in
terposed to prevent it.
The bill is but a conspiracy against the
lives, liberty and property Of the people.
and without warrant in the Constitution
And do not think / go too far when as
ser, that if passed into the form of law,
notonly those who attempt to execute it,
cut hose acho unconstitutionally aided in its
enactment, will be not only civilly, but GRIM
inally responsible for all the consequences
arising from its enforcement. A member
of the Legislature, when he acts outside OF
the Constitution-his warrant of attorney
leses his official character, and the protec-
ton il Affords him IL IL fhan q fresnaSSer.