Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-04-06
Memphis Appeal, April 4.


Memphis Appeal, April 4.
In the United States Court vesterda
Judge Ballard delivered quite a length
verbal opinion upon the question argue
the previous day, and reported in tn
appeal, which was an application Of AttOr
ney-General Heiskell in behalf of. the Stat
Of Tennessee, thai the Gibson count
prisoners be released from the CUSTODY o
the Federal court, Because they were in
dicted under the State law and held to bail
The application was refused upon tn,
ground that these persons could not be con
sidered in the actual custody Of the Stat,
when arrested under the process Of tht
United States. 10 was clearly stated thai
II they were in jail in actual custody Of The
sheriff Of the county, Federal authority
would not reach them so as to produce
| them for trial in this court; but as they
were only to appear in the State court this
did not constitute such a custody as
would prevent their arrest on Federal pr0-
cess. The opposite ground was taken by
way Of argument by Attorney General
Heiskell, who argued the question
quite fOTcibly. Judge Emmons requested
that no report be made of this opinion. as
neither he nor Judge Ballard had il ID
writing. Judge Ballard, in delivering
the opinion, said that not till then did be
know such duty would be assigned 10
him. Judge EmmOns said he fully con-
Cured in what had been said BY Judge
Ballard. The question Of severance Of
trial will be decided tomorrow. The case
was brought up last Friday, on a motion
for a severance Of trial, when the Attorney
General for the State Of Tennessee made
the application as above stated As the
case is Of much importance to the public.
we herewith present the opinion Of Judge
Ballard, sustaining the demurrer, in the
case OF these prisoners, at a previous term
Of the court.
The following is the opinion Of Judge
Ballard to the demurrer to the indictment
against the Gibson county prisoners and
on the felony question presented, delivered
at the November term, 1874;
United States vs.. J. P. Hale ct al
The ground upon which Isustain the de-
murrer 70 the first, second, third and fourth
counts Of the indictments is that aneither
the right TO life nor the right not to be de-
prived thereof, without due process Of
law" is right granted or secured by the
Constitution or laws Of the United States.
The fifth amendment Of the Constitution
OF the United States does guarantee that a
person shall not be deprived Of his life by
the United States without due process of
law, and the fourteenth amendment does
declare that he shall not be deprived of il
by State without like process; but neither
the one nor the other amendment, nor anv
clause Of the Constitution attempts 10
guarantee any person against deprivation
Of life BY private persons. The only guar
antee We have agaiuS. such deprivation
Except in places subject TO the exclusive
jurisdiction Of the United States) is TO be
found in the laws Of the several States.
The allegation in the several counts that
The accused ''cOnspired to deprive certain
persons Of African descent Of their lives
ION account Of their race does not make |
the counts any better. !. is no more an |
Otiense against the United States 10 de- |
Drive one Of "Atrican descent Of his /
life, con account Of his race than it is to |
deprive a Caucasian Of his, on account of |
Ibis race" and it is no more an Oflanse |
against the United States TO deprive one of |
MS life on account Of his race than It is !
from the motive Of hatred, revenge. or
Jther motive which ordinarily prOvokes |
q AAAAls AAAAAAA sAAb mn anu o44lA LDLl4l1
lad, because they DO no. show that the /
'ersOns against whom the defendants are j
alleged to have committed crime with in |
ent to prevent them from removing GER
ain causes then depending against them |
n the state Court to the Circuit Court Of |
he United States, had in fact any right to |
emOye their causes TO the Circuit Court of
he United States. They therefore do not
how that it was possible the crime could |
lave been committed for the motive a. 1
eyed. do not doubt that It is competent
or Congress 20 make it Z crime for persons |
o cOnspire to prevent, by threats, assaults,
II other means, any citizen from removing |
" attempting to remove a cause depending /
n a State court to the Circuit Court of the
United States, and perhaps such cOnspi-
acy is a crime within the meaning Of the
tatUte on which the present ind ctment is
Ounded. But when it is alleged, Is it is
leTe, that the party had the right TO re-
move, and that the conspiracy was to
,revent the exercise Of this right, l think |
t should be further shown by allegation !
What were the facts and circumstances !
Which entitled the party to the removal.
do not decide or intimate that the act, or
hat the section Of the act CT Congress on
which the Indictment is founded is uncOn-
titutiOnal. On the contrary, 1 think the
tatUte, and especially the particular sec |
ION now in question, entirely valid. This |
actiOn, in general terms, makes il a crime
)r two or more persons to cOnspire 10 hin
er or prevent one from exercising any |
ght secured to him by the constitution or |
Tvs of the United States. l think it can
o. be doubted that Congress has the power
} pass such a statute. repeat, l do not !
old the Indictment bad because the statute
invalid, but because it does not, in my
piniOn, describe a crime within the mean I
e Of the statute. l do not propose to en-
rec these views BY any argument besides
lat which their bare presentation dis
Oses. l have made tho statement lest my
1iniOn might be misunderstood.
"a lawyer writing to the 1PpeQl upon
le apparent discrepancy between the ,
resent holding Of Judges Ballard and
mmOnS and the ruling Of Judge Ballard
! November last, maintains there is no
al discrepancy. de says:l
The charge laid agaias. Ihe accused in '
Ovember Ws5 % conspiracy to deprive Y
stain citizens Of African descent Of their c
gifts under the Constitution and laws Of ,
e United States, tO-Wit: TIE tight 10 =
eiT lives on account Of their race. The ! :
,uTt held that this charge did not describe
crime against any law Of the United
ateS founded upon the Constitution, be-
use the right of a citizen to his life is
thin and dependent upon the guardian
lip and protection Of the State, whether J
, be a Caucasian or an African. The b
lblic may think i. strange, after this de-
siOR, tnat these persons are vet held for 1
Ial By the Federal court, on another liz a
ctment growing ont Of the same act; but q
ere is no Inconsistency in this pro- 4
ediug, and It is desirable that the people | =
lO are in harmony with both their =
Vernmants, Safe and FEDERAL. should ] 1
ldeTstaLd how this can be. We apDre- | .
nd that there is not tho slightest doubt | Il
at tao opinion Of Judge Ballard is cor P
Il. It was sustained by numerous anal s.
les, and by all the theories Of the S.a.o , n
d Federal relations, as .hsy have been | "
derstOOd since Inc formation Of the Gov Il
lmcnI, and by adjudiCated cases. But | p,
e present case is different in this narliau- ! :
: that BY the Fourteenth AmendfaeDs to / :
2 Constitution, which is supposed to Go y
2 act Of the people, although No are free u
say We doubt the popular action in Ii
Optiag that amendment, it was provided, a
an inhibitOTy declaration. that no State 1
Ould deny to the citizen the equal pro- 81
.tion Of che laws. The present indict-
mt IS framed under an act Of Congress r
itch makes it a crime for any two OR
,ra r1arsOns To COusuira - ,,--,-.,,a =.