The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1878-12-26

/
NoLDs. NOVEMBER TERM, 1873. OF U. $.
CIRCUIT COURT, AT DANvILLE.
I am aware that this application presents
questions Of novelty, gravity and delicacy.-
The law on which it is founded Is not ia
millar to the bar generally, and far less so to
the public at large. Hence, any action un-
der it Is liable to be misunderstood and mis-
represented /; and thus to give rise to undue
excitement, disquiet and popular dstur-
bance. This particular enactment has not
been authoratiyely construed though some
light is thrown upon it by decisions Of the
Supreme Court upon kindred parts OF the
same general legislation for the enforcement
of Civil Rights under the late amendments
Of the Constitution. Anything like con-
flict Of jurisdiction between the State and
Federal courts ought to be avoided whenev-
or it ia possible; and it is to be presumed
that each respective set OF tribunals Will be
animated by an equal and common desire to
obyiate all such interference. Both judica-
tories are alike subjected by Article vi OF
the Constitution OF the U. s. to that consti-
tuition and the laws OF Congress made in
pursuance thereof, and it is expressly added
that ''thc Judges in every State shall be
bound thereby, anything in the constitution
or laws OF the State to the contrary notWlth-
Standing
Even where unavoidable, such conflict is
ant to disturb the harmony and interrupt
the peaceful action OF the two governments !;
to shock the Just sensibilitity and excite
unduly the apprehensions OF the public. IN
the consideration, therefore, OF this case,
felt l would best consult my own peace and
the popular reposc il could find the means
thereby OF reconciling my duty with denial
| Of this petition. But, of course, paramount
to such considerations was my wish and de-
| termination alike to execute the laws OF Con-
eress In behalf even OF the humblest, SO as to
| ensure the equal protection OF all citizens as
guaranteed by the XVIII Amendment OF the
| Constitution.
| II is not necessary TO state such facts OF
| this application as are necessary to the pre-
| scntation and clear understanding OF the
question | am to decide. The immediate
and last petition here is Tor a ha6cds corpus;
upon examining the record upon which 1t
is predicated, it will be seen that the parties
presented their petitions to the State Court
before trial OF their cases for the removal
/ OF them to this court. Before doing so, how
i ever, their counsel asked OF the State Judge
to SO reconstruct the jury as to place some
Of their race and color, qualified according
to the laws of the State. upon the yenirc, OF
the ground that they could not expect ar
impartial trial By jury wholly alien to then
in race and color. They were denied this
right, and In consequence thereof. and upor
the allegation Of this denial OF the equal pro
lection Of the laws, they then submitted t.
the State court their petition for removal
and now, on the first day OF this term, filet
the same In this court asking the cause 10 d
docketed here.
Taking the whole case together, l regaft
it as a petition for removal which nccessaril.
, leads to the remedy by habeas corpus, whic
they invoked by the more recent petition
submitted to me In vacation. tho hearing Q
which adjourned to this term. After tria
and sentence of one Of the petitioners, o.
3 the mere statement thereof, it would seer
che period had passed for removal. In tn
case of the Justices VS.. Murry, Wall 274,
was properly held that that the 9th Sectio
+: OF the Act of Congress of March 3. 1868, 81
lowing removal by writ of error and othe
s process to tie Circuit Court within 81
n months after rendition of judgment, was an
i constitutional because contrary 20 the Wilt
n Amendment of the Constitution OF the U $
t declaring that no fact tried by a jury sha
e be otherwise re-examined In any court OF til
d United States than according to the rules
8 the common law. This decision was rendere
d in December, 1859. The act passed App
Is 9th. 1866, entitled an 'sAct to protect all pc
t sons In the United States in their civil righ
= and furnish the means OF their protection,
= provided for removal to Federal courts
IS compliance with this act thus subsequent
a pronounced unconstitutional in this partict
lr lar.
Hence, as the law now stands, the pei
IS ton must be filed in the State court befo
d the trial of final hearing. This was done
E, this case but the court overruled the pc
r. ton and proceeded to the trial, notwitl
re standing the explicit declaration in Sec. 81
is that ssmpon the. filing Of such petition all ta
Sc Their proceedings IN The State courts sh'
ID cease and shall not be resun,ed except as hei
l. inofter prorided.'; What effect ii any sh
e. be given to a trial thus had may be best {
OF terinined by the language and reason Of /
~ law. / therefore quote the two Section
~ 64l-9, emitting therefrom only the teri
" embracing the case Of officers, civil Or M
IS. tary, or other person, for any arrest or i
ut prisonment or other trespasses or wron
he made or committed by virtue OF and une
or color OF authority derived from any law pl
at viding for equal rights as aforesaid. By .
lse omission the application OF the law to
ed case at bar, will be moro clearly and co (.
pactly seen. For future comments, u
proper to give the two sections. with
to disemb arrassment OF other matter. at lei's
yes and verbatim:
for SEC. GAL, Rev'd Stats IT, s.. 50. isle. p !
when any civil criminal prosecusios IN ~ ~ Y,
Mencsd in any State court 1or Any VSas7 "t"'e