The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-10-06
dor in the courts and Judicial tribunals Of the State of

Ger " the COURTS ana judicial tribunals OF the state OF
We are thus brought to the question whether
criminal prosecution for public offence q 'af-
fectngH within tho meaning OF the act OF Congress,
persons who may he called 10 testify therein,
obviously the only parties 10 such cause are the
govern ment and the persons indicted They
alone can be reached by any Judgment
that may be pronounced. No judgment can either en-
large or diminish the personal relative or property
rights OF any others than those who parties Ii Is
true there some cases which affect the rights OF
property Of persons who not parties to the record
Such cases however, are all OF civil nature, and
none of them touch rights OF persons But
indictment prosecuted by the government against
alleged criminal in which none but the parties
have any concern except what Is common 70 all the
members OF the community Those who may possibly
be witnesses either for the prosecution or Tor the DO
fence are no affected by II than is every
other person, for any one may be called AZ a witness
II will not be thought that Congress intended 70 give
to the district and circuit courts jurisdiction over all
causes both civil and criminal They have expressly
confined IL to causes affecting certain persons And
vet if all those who may be called witnesses in
case and who may be alleged important witnesses,
intended TO be described IN the class Of persons
affected by It, and If the jurisdiction " the federal
courts he invoked by the assertion that there arc
persons who may be witnesses, but VINO, because q
their race or color incompetent to testify ~ the
courts OF the state there IS no cause eener CIV
or criminal Of which those courts may NOT
at the option OF either party take jurisdiction
The statute OF Kentucky which was in existence
when this indictment found, and which
denied the right of Richard Foster and Laura Foster TO
testify in the courts OF the State enacted as ioows-
THAT a slave negro or Indian Shall be competent
witness OF the Commonwealth for against "A slave,
negro Indian or in civil case to which only negroes
slaves parties, but in no other case IL wiz oe
observed that this statute prohibits tho testimony OF
coiored persons either for or against white person N
any civil criminal cause TO which he may be party
IT. therefore, they persons affected by the cause
whenever they might be witnesses we're they compe-
testify follows that in any suit between white
citizens, Jurisdiction might be taken by the federal
courts whenever IL was alleged that a
citizen OF the African race was or might
be an important witness. And such an
allegation might always be made. So IN all criminal
white similar allegation
would call into existence the like Jurisdiction We can
think that such the purpose of Congress in the
statute OF April o 1866 IL would rather TO have
been afford protection to persons Of the cosored race
by giving the federal courts jurisdiction OF cases the
decision of which might injuriousy affect them either
in their personal relative or property rights whenever
they denied in the State courts any OF the rights
mentioned and assured to them in the first section Of
the act
Nor can it be said that such construction allows
little effect to the enactment On the contrary
comedies ii far reaching purpose The purpose was
TO guard all the declared rights OF colored per-
in all civil actions to which they may
be parties in interest by giving to the district and
circuit courts OF the United jurisdiction of such
whenever in the State courts any right enjoyed
by white citizens Is denied them. And IN criminal
prosecutions against them 1t extends like protection
We cannot be expected to be ignorant of the condition
of things which existed when the statute was enacted,
or Of the evils which was intended to remedy IL Is
well known that in many OF the states laws existed
which subjected colored men convicted OF criminal
offences to punshments different from, and often Sc
than those which were inflicted upon white per-
convicted of similar offences The modes OF trial
also different and the right of trial by jury was
sometimes denied them 1t is also well known that in
many quarters preudces existed against the coored
race, which naturally Affected the administration OF
justice in the State courts and operated harshy when
of that the party accused. These were
evils doubtless which the act Of Congress had IN view
and which 1t intended to remove and SO lar as II
reaches extends to both the same rights and the
same means Of indicating them.
In view OF these considerations we are OF opinion that
the case now before us is not within the PROVISIONS OF
the act of April O. 1865 and that the Circuit Court mad
Jurisdiction of the crime of murder committed IN
the district Of Kentucky merely because two persons
who witnessed the murder we're citizens OF the African
race and for that reason incompetent by the law OF
Kentucky to testify in the of that State They
are not persons affected by the cause
We need hardly add that the jurisdiction OF the Circuit
Court not sustained by the fact averrci IN the ndic
ment that Lucy Armstrong the person murdered, was
citizen OF the African and for that reason denied
the right 10 testify in the Kentucky courts. In no
she be said to be affected by the cause Mani
testify the act refers TO persons IN existence she was
the victim OF the irightiul outrage winch
gave rise to the cause but she IS beyond
being affected by the itself The conclusions TO
which have come sustained, we think by the
Judgment this Court in United states 0rtega IL
Wheat, ACT, IN which the opinion was delivered by Mr.
case the Court concludes thus
An attempt has however, been made to discriminate
between the words lease affecting" as found IN the
constitutional provision and the words cause affecting
contained IN the act OF Congress We are unable TO per-
ceive any substantial ground for q distinction. The
words case" and cause" are constantly used as
synonyms IN statutes and judicial decisions, each
meaning a proceeding in court suit or ac
ton. Surely no court can have jurisdiction or
either a until II Is presented Ia
the form Of action We regard, therefore, the
United States Ortega as an authority directly IN
point to the effect that witnesses criminal prosecu
ton not affected by the II necessarily re-
from this that jurisdiction OF the offence for which
these defendants indicted not conferred upon
the Circuit Court by the OF Congress IL Is unneces
sary therefore, consider the other questions pre-
sened by the record The judgment Of the Circuit Court
is reversed,
The Chief Justice was not present at the argument
and he has taken no part in the decision.