The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1872-03-22
THE ARGUMENTs PRO AND CON.

named questions.
THE ARGUMENTS Pro and CON.
The enforcement Acts Declared Uncon-
stituttonal by Messrs. johnson and
Stanbery-The Government Counsel
Evadfng the Issue.
The test case Of the Ku-Klux trials that was
attempted to be brought before the Supreme
Court for final disposition, is entitled the
Upited States vs.. Avery ct al and came to
the sHpreme Court upon certificate Of diVis-
ion from the Circuit Court for district ofSouth
Carolina. The defendants In this case were
81, 1870, known as the enforcement or Ku-
Klux act The particular act charged was the
murder of one Jim Williams, while attempting
to prevent colored citizens voting, and to him
der and prevent their exercise OF the right TO
keep and bear arms.
Motion having been made to quash the IN
dictment, the court, were divided In opinion
on the questions whether 1t had jurisdiction OF
thecrime of murder charged; ;and whether the
right to keep and bear arms ls q right granted
and secured by the Constitution OF the United
States 80 as to support the charge In the In
dicsHent, and render the offence cognizable
by the court: ----
The government submits that, the questions
having arisen upon molion to quash, this
court cannot take cognizance OF them, the
motion being preliminary IN It's character, and
determinable by the court below as matter of
pure discretion.
1t is then contended: that the act was In
tended merely to visit with Increased punish
menr offenders against the laws Of the United
States, who, In the act of violating those
laws, shall also commit offences against the
laws of the States, aud this It has power to 90;
and it necessarily follows that the courts OF
the United States have Jurisdiction to inquire
into this additional fact. Nor is 1t any
answer to say that In 80 doing they take
Jurisdiction or an offence against State laws,
and Of which Congress cannot give them )u-
rlsd ction. The court merely admits evidence
Of a fact, as matter Of aggraVauon OF anotner
offence The criminal laws OF several OF the
States are cited to show that In those States
where any person Is convicted OF criminal Of
fence. who has before beeR punished by the
United States or other States for like offence,
such person Is sentenced to an additional pen
alty; and 1t Is said that the difference between
taking into account the conviction OF nrst
q asubseduent one, as In those cases, and taking
into account the commission of an offence
with view to fix the punishment of another
offence contemporaneously committed, con.
eidered merely as facts constituting matter OIL
aggravation, as IN this case, ts only differ
neither case is the punishment. In contempla-
ton of law, applied to the offence. which is
regarded as an aggraVating circumstance
merely.
Ia respect of the right to bear arms It is said
thkf the United States, by reason of the power
given to Congress to provide for organizing,
aiming and oi, ciplinl1g the militia, has
the constitution itself declares to be essential
to q well-ordered militia Is not infringed by
unlawful authority, and, in the absence OF
State legislation, to punish violations OF the
right, and IL ls but reasonable CONSTRUCTION
of the act to construe 1t as applying to this act
as well as TO any other.
THE DEFENCE.
For the defence 1t is urged, after controvert-
Ing the theory of the government, that the
fifteenth amendment to the constitution con-
tains no grant of power over the right OF sls-
frage, but is In the nature Of a restriction 6r
abridgement of such power In one respect
only, and that ls In the power to discriminate
on account OF race, color, or previous ccndl-
tion of servltude. It is to enforce that section
and prevent such discrimination that by the
second section Congress is authorized to enact
mates only legislative action, and does not e1-
pressly apply to individuals. Before the act
In question can take effect, then 1t must ap-
near that the State has authorized the dis
crmlnation prohibited by the amendment,
and that such discrimination Is attempted to
be carried out BY an individual. If the State
has not violated the article, and has passed 40
unauthorized act of an Individual, or a COM
bination of individuals, make no case for
Federal cognizance. An individual cannot
deny or abridge the right to vote in the
sense of this amendment. 1t is right that
can only be given or denied or abridged by
law South Carolina has not violated the
amendment; she has passed 40 act to discrim-
condition OF servltnde, and admits citizens OF
all color, races and conditions, who have the
ouaiications of voters, to the full enjoyment
Of the right OF suffrage. But If 1t be held that
1t would be appropriate legislation to enforce
this amendment against individuals, where
the State had passed no act, then it is con:
tended that the colspiracles charged are not
within the Jurisdiction Of the court, because
they ore offences not within the purView OF
the amendment, nor appropriate legislation 10
enforce the amendment. and are, therefore,
void It Is then submitted as too clear for argu-
ment that within the legitimate sphere OF the
rights reserved 10 the States Is included the
suffrage; the very existence OF the States de-
pends upon 1t, and they have never surrend-
ed the Jurisdiction.
It is declared that not single offence de-
fined in the act In question comes within the
provisions OF the amendment. When the
States, BY the amendment, surrendered the
right to discriminate in the matter of suffrage
on the ground of color, race, &c, and author
ked Congress to enforce that amendment,
they surrendered no other right touching the
suffrage, and gave Congress no further power
over the subject, and hence the enforcement
act Is not appropriate legislation.
The constitutional provision In respect to the
right of the people to bear arms contains no
grant of power TO the Federal Government
over the right to keep and bear arms. On the
contrary, the established eonstitu!iorls, that
it only recognizes pre.e1isting right 10 the
people of the States, and Is merely restric-
tIon on the Federal Government against any
interference with that right, ana consequently
a subject-matter exclusively within the cogni-
zanee of the States. ., 49,
sAs to jurisdiction, 1t is contended that the