Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-04-04

prevent the exercise of this right, ]
: think it should be further shown by al
legation what were the facts and cir
cumstances which entitled the party TO
the removal. do not decide or init
mate that the set, or that the section OF
the act OF Congress on which the indict-
ment Is founded is unconstitutional. On
the contrary, think the statute, and
especially the particular section now in
question, entirely valid. This section,
in general terms, makes it crime for
two or more persons to con-
spire to hinder or prevent one
fF0n exercising any right secured
to him by the constitution or laws OF the
United States. I think it cannot be
doubted that congress has the power to
pass such q statute. repeat, do not
hold the indictment bad because the
statute is invalid, but because it does not,
! in my opinion, describe crime within
the meaning Of the statute. l do not
propose TO enforce these views by any
argument besides that which their bare
presentation discloses. l have made the
statement lest my opinion might be
misunderstood.
A Lawyers VIEW OF THE CASE.
Below we give the views OF member
Of the Memphis bar, but take occasion
to say that we do not agree with him a.
to the constitutionslity of the principles
involved, yet we do not attack the opin-
ion Of Judge Ballard, for the latter is n
question dependent upon legal techni-
calities which, however obligatory 1t
may be upon court to recognize, should
be subservient, in every instance, whether
OF q trifling misdemeauOr or q grave
felony lin the full sense OF the word), to
the rights OF the people and the preser-
walton Of those principles that underlie
the constitution of each State, as well
as that of the United States, between
which there should be no conflict.
Should such be the case, the benefit of
doubt should be accorded to the State.
We can well see how there may be q
concurrent jurisdiction of State and Fed
eral authority over the crime alleged to
have been committed, but pre-
priority OF indictment could be
applied in determining before what tri-
bunal the prisoners should be tried. AS
to the actual and constructive custody
ruled upon, that is purely ques-
ton of law, properly before the
courts. When murder is not bail
able in Tennessee, and where the
prisoner stands indicted for such by
a Federal court, it might be well to hold
the defendant to answer there, when 1t
is asked that he be released from such
custody, upon the ground that he is held
to appear before State court. Such
question can be easily answered, for the
fact of the prisoners being out on bail is
evidence that the crime for which they
stand indicted by the State is not SO
grave as that (of murder in the first de-
gree) by the Federal court. In this case
OF conspiracy the court has ruled as
above stated, but in the absence of its |
written opinion we are not prepared to
speak upon the matter Of which our cor
respondent treats.
EDITORS APPEAL-We present above |
the opinion of Judge Ballard, who held |
the district court at its November ses- |
sion, on the demurrer to the indictment |
against the Gibson county parties. This |
opinion was delivered off-hand on the |
occasion, and we are furnished with |
rough copy of the notes of the decision. |
The charge laid against the accused was
of conspiracy to deprive certain citizens |
of African descent of their rights under |
the constitution and laws Of the United |
States, to-wit: The right to their lives
on account of their race. The court |
held that this charge did not describe a |
crime against any law of the United |
States founded upon the constitution,
because. the right Of a citizen to his life
is within and dependent upon
the guardianship and protection
of the State, whether he be a
Caucasian or an African. The public |
may think it strange, after this decision,
that these persons are yet held for trial
by the Federal court, on another indict-
ment growing out OF the same act; but
there Is no inconsistency in this pro-
ceeding, aud it is desirable that the peo-
pie who are in harmony with both their |
governments, State and Federal, should |
understand how this can be. We appre-
hend that there is not the slightest doubt |
that the opinion of Judge Ballard is cor |
rect. 1t was sustained by numerous |
analogies, and by all the theories OF the |
State and Federal relations, as they have
been understood since the formation of
the government, and by adjudicated |
cases. But the present case is different |
in this particular, that by the fourteenth |
to the constitution, which |
is supposed to be the act Of the people,
we are free to say we
doubt the popular action in adopting |
that amendment, it was provided, as an |
inhibitory declaration, that no State |
should deny to the citizen the equal pro-
lection of the laws. The present indict-
ment is framed under an act of congress
which makes it crime for. any two or
more persons to cOnspire to prevent, i'm
pede or hinder the State authorities from
securing to every citizen the equal pro-
lection of the laws; and it is charged
expressly that these defendants entered
into such conspiracy. AS, therefore,
this indictment is framed under this
provision, the question: is,
first, is the act OF congress within the
amendment, and the court
now holds that it is, because they declare
that the prohibition of the State to deny
the equal protection Of the law reaches
to every department of the State,
and guarantees that every department
shall afford this protection. Therefore,
congress has the right to prescribe
that any conspiracy to prevent any de-
partment of the State from assuming
this right shall be crime against the
United States. AS for example, if two
or more persons were to combine to pre-
vent the legislature from passing a
law, or to prevent the governor from
signing law when passed, or to prevent
3 judge from enforcing law to MAIN
tain the equal rights of the citizens, all
such cOnspiracies would be violation
Of the Federal laws and constitution. 1t
is plain, therefore, that there is no in
between the present find
Ing of this court, and that opin-
ion of Judge Ballard; and it is a
matter OF Importance and congratula-
ton to our people that these vexed
questions are now to fall under the de-
cision of SO clear-headed and right
lawyers, who are thoroughly
independent and impartial judges, and
whose conservative sentiments COM
mend them to our people as the safe
custOdians Of all rights and liabilities
arising under the constitution and laws
Of the United States. LEN.
RIVER REPORTS