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

force in the judicial tribunals Of the State or in
the part of the State where such suit is prosecut-
eh, any right secured to him by any law proyid-
ing for the equal rights OF all citizens or Of all
persons within the jurisdiction OF the United
may upop the petition Of such deendent ed in
the said State court at any time before the trial
or final hearing Of said cause. stating the facts
and verified by affidavit, be removed for trial into
the next Circuit Court to be held in the district
where it is pending. Upon the Hing OF said Pc
ttion. all further in the state courts
shall cease, and shall .Eot be resumed except as
hereafter provided. But all bail and other Sc.
curity given in such suit or prosecution shall
continue in like force and effect as If the same
had proceeded to final Judgment and execution in
the State court 1t shall be the duty OF the clerk
Ssa re coual 10 rnisn sach oia Pc
| against him, and of all pleadings, dispositions:
| testimony and other proceedings in the case. II
such copies are filed by said petitioner in the Cir
cuitCourt the first day fits session the cause
shall proceed therein. in the same manner as il
and.H the said clerk refuses or negects to furnish
such copies, the petitioner may thereupon docket
hsii then have Jurisdiction therein. and may
| upon proof OF such refusal or neglect Of said
| clerk, and upon reasonable notice to the plain
titfon or complaint In the cause, and IN case OF
his default may order noIf-suit and dismiss the
case at the cost OF the plaintiff and such dismiss
al shall be bar to any further suit touching the
matter In controversy. But II without such re-
fusal or neglect Of said clerk to furnish such cop
les, and proof thereof the petitioner for removal
falls to file copies in the Circuit Court as herein
provided tiflcate under the seal Of the Cir
cult Court stating such failure. shall be given.
and upon the production thereof in said State
court, the cause shall proceed therein as II no
petition for a removal had been filed.
sary for the removal OF any suit or prosecution
as provided in the preceding Section have been
and che e ior
sued by said State court it shall be the duty Of
the clerk of said Circuit Court to issue writ OF
virtue Of such writ to take the body of the de-
PENDANT in his custody, to be dealt with In said
Circuit Court according to law. and the orders of
said Court or in vacation OF any Judge thereof
and the Marshal shall file with or deliver 10 the
clerk OF said State court duplicate copy OF said
writ.
The only warrant for these enactments is
to be found, If at all, in Article XIV of the
late amendments to the Constitution. Ii
they do not come within the designation by
Section of this article of Legislation ap
propriate to the enforcement of the provis-
Ions OF this. article,'' then they are reprobat.
ed as void under the decisions Of the Su-
preme Court In the case OF e. S. VS.. Reese,
al. 90 U. s. kep'ts, p. 2l4, and U. s. VS..
Cruckshank Id. p. 542. Let us, therefore,
explore the language and scope OF the first
section Of this article. 1t is as follows ssAny
persons, born or naturalized within the
United States and subject to the jurisdiction
thereof, are citizens of the United States and
shall make and enforce any law which shall
abridge the privileges OF immuuities OF clti-
Gems OF the United States, nor shall any
State deprive any person OF life. liberty or
property without due process OF law, nor de-
ny to any person within its jurisdiction the
equal protection of the law 1t Is conceded
that this inhibition applies exclusively to the
State. Butthat term presents a complex idea.
State is sort OF trinity; 1t exists. acts and
speaks in three apacities-legislative exec
utive and judicial. What is forbidden to it
in ore capacity is forbidden to it in each and
all. It may not infringe Ibis article by leg
islation, but it may equally do so by its
courts or its executive authoratives. Hence,
IL seems to me it is in strict pursuance of this
article. to base the intervention of the. Fede-
raj courts on the inability to enforce in the
judicial tribunals OF the State or in some
part thereof the equal civil rights secured by
this article. The mischief is the same wheth-
er the deprivation proceeds from the law, the
courts or the executive. 1t Is equally
attributable to the State the laws of
the State may be all comfortable to the re-
quirements of this article; but its infraction
may rest with the courts or executive au-
thorities of the counties. The amendment,
to be potential and attain It's end, should be
enforced as these enactnlen;s purpOrt, by
whatever quarter it may appear. Hence to
find casus for the application OF this law
Of Federal intervention under the theory OF
this article, we are not restricted to the &C
ton of the Legislature alone; it clearly
contemplates the failure OF executive or jul
dicial remedies for the enforcement OF these
equal civil rights. But it is objected that
this article is silent as to the right or mode
of trial of colored persons accused OF State
| offences. A.constitutiOns' provision is nee
essarily general and never descends to de-
tail. It merely ordains equality of rights
and protection to all. In the time of slavery,
these persons were not entitled to trial by
| Jury they were tried by Z court OF five jus
| tees. will it be pretended that that mode
| of trial could now be recOnciled to this
amendment because silent on this point? 1t
| is sufficient to answer that it guarantees to
them the equal protection OF the laws. which
obviously includes the same mode OF trial
and the same measure OF punishment In
the same mere technical spirit, it is said
there is nothing in this article giving colored
persons, or indicating for their trial, m'Ied
| Jury. But inasmuch as III jor proposition
| in logic includes the mi 'er premise, this
| equal protection can only be ai in criminal
trials through juries composed OF the same
persons, and constituted in the same mode
as we'll for negroes as for whites. II a mixed
jury is allowable by the State law in all
cases for stronger reason is it right and
permissible for a trial Of q negro? In the
latter case white panel cannot be Imputed
to chance; it must be taken as the result OIL
design in derogation OF his right to fail
Jury for his trial. The State law is not il
fault here. Under it all voters are compe
tent jurors, the selection deyolving on the
county Judge; so that no discrimination il
made by it on account Of color or race.
have endeavored to follow as closely as prac
ticable this State law in the selection OF my
juries at this bar. What would be though
J or said of me if l, against reconnaissance
empanneled negroes exclusively to try whit
men for offences; and yet the same anoma
ly and Injustice exists in trying negroes b.
!, iuries of white men alone. The State law
. as well as this amendment, guarantees t.
, / this lately enfranchised class the same scr
! of juries for their trial as should REASONABLE.
! follow from the deliberate omission In TIN
, law of any Discrimination on account Q
8 color or race. The demand, therefore, t
J. reconstruct the venre under the direction Q
the presiding Judge, SO as to allow soue reI
D resentation OF the prisoners race upon
was, as it seems to me, in conformity wit
] the law of the State and a just concession
9 to the spirit Of this amendment. see moth
/ Ing liz lLlc 6gattO law W ASACto ASs ~ "a
1 contrary, ample discretion to that end is he
Y posed with the Judge by the Code OF Vii
h ginia, chap. los, l6, II, p. 1902. The que'
\ ton recurs, was not its denial under I'll
i circumstances, denial to the prisoner oftil
j equal protection OF the laws? 1t is great
II to be deplored that no uniform practice Il
n tains in this regard throughout the Common
e wealth though the law is the same ever.
It where am informed that the judge of tn
n county invariably gives the accused, who
: colored, the benefit Of mixed jury ar
r that it is believed that no harm has ever r
X suited from it, or any failure of Punitive ju
= tice. The same, am told, is the practi
h In other counties OF the Commonwealth
:, and, trust, one Of the effects Of the agit
II tion of this question, will be 10 extend it.
le II this should become general or be requir
Of BY law, all pretence for Federal interfersn
c would be removed; and the law and pra
il tice would conform in leading to tie j.
r enforcement OF equal civil rights to all &C
ts ors and races. If negroes were to. be tri
= by former Shareholders, once allied to the
In by interest, affection and sy npathy, Il
~ danger might not be great; b It II these pc
4 Pile are to depend for their lies, liberty az
property on the white men who never kne
IL or felt these ties, regret to say they a
re without the guarantees enjoyed py ONE