The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1872-03-23

The test case OF the Ku Kldx trials
that. was attempted to be brought before
the Supreme Court forsHAal disposition,
is entitled the. United Htates us. Avery
OF AZ and came to tho Supreme Court
upon certificate Of division from the
Circuit Court fotS District OF South
CAROLINA. The defendants in this case
were indicted fof, conspiracy under the
Acts OF May 81, 1870, known as the En-.
foroement Or kn Kiux ACT. The parti-
oular act charged was the murder Of one
Jim Williams, while attempting to pre-
vent 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 indictment, the court were divided
in opinion on the question whether it
had Jurisdiction Of the crime of murder
charged. and whether the right to keep
and bear arms is right granted and Sc
cured by the Constitution OF the United
States so as to support the charge in the
indictment, and render the offence cog
nizable by the court.
The Government submits that the
questions having arisen upon motion
to quash, this court cannot take cogni-
zauce Of them, the motion being pre-
liminary in its character, and determin-
able by tho court below as o matter of
pure discretion.
1t is then contended that the Act was
intended merely to visit with increased
punishment Offenders against the laws
OF the United States, who, in tho act of
violating those laws. shall also commit
offences against the laws OF the States,
and this it has power to do; and it ne.
cessarily follows that the courts of the
United States have jurisdiction to in
quire into this additional fact. Nor is
it any answer to say that in 30 doing
they take Jurisdiction of an offence
ngainst State laws, aud of which Con-
gtess cannot give them jurisdiction. The
court merely admits evidence of fact,
as matter of aggravation of another Of
fence. The criminal laws of several of
the States ore cited to show that in
those States whore any person is con-
victed OF criminal offence, who has
before been punished by the United
States or other States for like offence,
such person is sentenced to an additional
penalty; and it is said that the difference
between taking into account the convic-
ton of first offence, with q view to fix
the punishment Of subsequent one, as
in those cases, and taking into account
the commission OF an offence with view
to fix the punishment of another offence
contemporaneonsly committed, consid-
cred merely as facts constituting matter
OF aggravntion, as In this Case, is only a
difference in time, and is wholly imma-
terial. In neither case is the punish
ment. in contemplation of law, applied
to the offence, which is regarded as an
aggravating circumstance merely.
In respect of the right to bear arms,
it is said that the United States, by 1ea-
son of the power given to Congress to
provide for organizing, arming and dis
ciplining the militia, has direct inter-
est in seeing that the right which the
Constitution itself declares to be essen
tial to well-ordered militia is not in
fringed by unlawful authority, and. in
the absence Of State legislation, to pun
ish violations of the right, and it is but
q reasonable construction of the Act to
construe it as applying to this Act AZ
well as to any other.
For the defence. it is urged, after con-
troverting the theory Of the Govern
ment. that the fifteenth amendment to
the Constitution contnins no grant of
power over the right of suffrage, but is
In the nature Of u restriction or abridge-
ment of such power in ono respect only,
and that is in the power to discriminate
on account Of race, color or previous
condition of servitude. It is to enforce
that section and prevent such discrimi-
nation, that by the sccond section Con-
gress is authorized to enuct appropriate
laws. And this article contemplates
only legislative action, aud does not ex-
pressly apply to individuals. Before the
Act in question can tuko effect, then it
must appear that the State has autho-
rized the discrimination prohibited by
the amendment, and that such discrimi-
nation is attempted to be carried out by
an individual. If the State has not VIC.
lated tho article, and has passed no law
TO authorize such Discrimination, the
unauthorized net of M individual, or
combination Of individuals, makes no
case 70, Federal cognizance. An indi-
vidual cannot deny or abrilgo the right
to vote in tho sense of this amendment.
1t is right that can only be given or
denied or abridged by law. South Caro-.
lima has not violated the amendments; she
has passed no Act to discriminate on ac-
count Of race. color or previous concii-
ton OF scryitudc and admits citiZnns of