The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-12-04

men Il ds, ,a ii tilis fight, the petitioner
aa. held nj Violation OF tie CONSTITUTIONS i |
theeU United States, md bad Aile therefore Or
dered his discharge from citsfo the aesl-
sion. boweYef. erroneol dfild have ttpeen
Bot he did nots order MIN 70
be discharged he ordered thgtsA ne 6e-retraeG
for the offence NTH tchich he stood charged
SHs coURT. He ordered that he should Dc
tried In che Girc,hh Court @oE the United
States mot for the violation Of any law Of
the United Sfates,, but TOE tue violation OF n
law OF the State of Virginia! y In other,
words, he makes the Circuit Court OF the
United Stafes the tribunal & to punish viola.
tions OF the laws OF Virginia! BAD not
this proceeding been actually and solemniy
J. shenld have thought thatfI
would lay myself open to .ridicules TO nn-
dertake seriousiy to show that there's
no warrant 10 the Constitution for It. Since,
however. it has been done, it is proper that
The whole subject should be seriously dis
c,issed. Itis true that the act OF Congress
under which Judge RiSes is proceeding
provides FOR just this thing. But Judge
Riyes sits to disregard any act of ;Congress
which tile Constitution of the United States
does not authorize, and he is as much to be
censured for, proceeding under anysuch act
OF Congress as he Is for attempting to pro-
coed without a color, oil; law. s..
Judicial power was not conferred upon me
United States as machinery by when the
States were 10 enforce their own criminal
laws. In forming the Constitution the
States reserved, to themselves the right TO
preserve the peace. within their own Dor
ders. through the instrumentality OF their
own courts In Moore Us, The People OF!
itlinois. IA How, Is, the Court say, at page
IS: "Tbe power to make municipal reou-
ations for the restraint and punishment OF
crime, for. the preservation of,the health
and morals OF her citizens and OF the pub
lie peace,. has never been surrendered by
tue States or restrained by the Constitution
OF the United States" ;,,a.. ~ ~ |
The courts oil, the United States were pro-
vided First, to enforce the laws OF the
United States-that is. the acts of Congress;
and second, to see to it that no person was
deprived by State, authority OF any OF his
rights guaranteed to him by the Consttu-
ton OF the United States. [See the subject
discussed by Alexander Hamilton In the
eightieth No. of the FederGLiSt] ~. +, =.
Their power, therefore, is. that of prevent
ing the States from enforcing any OF! their
laws which the Constitution Of The United
States prohibits them from passing; but 1t
is not their province to enforce for the
States such OF their laws as the Constitution
of the United States authorizes them to pass.
The enforcing OF these is left by the Consti-
tuition tG the States themselves. ...
This distinction is so obvious and familiar
that it looks almost like pedantry TO quote
authorities for it,, \ In the case OF Inc stare
OF Ohio Us. Bliss, reported In Grants
Cases. 427, the Court,says (pass7ng upon the
very statute under which Judge Riyes pro-
ceeded as it passed Cong ress in its first form,
it having! been first passed in 1868 as means
OF protecting Federal officers during the
war against the consequences or eXtraordl-
nary and unconstitutionalaets1 Snow, what
is the legal status OF the claim made by this
petitioner to remove his case into. the Cir
cult Court Of the United States? 1t is, in
nv opinion, nothing more nor less than an
attempt TO transierthe criminal jurisdiction
OF the State courts into that OF the Federal
tribunals. II such is the scope and effect Of
this act OF March 3, 1868, or if such would
he the result OF its application TO facts III the
case at bar, then have no hesitation in pro-
nouncing it unconstitutional. Might not
Congress as clearly repeal or abolish State
law creating an offence not forbidden by The
Federal Constitution as to dictate to sucn
State the mode or place OF. trial OF such Of
fence? Mould they not have the same power
to measure and fix the punishment OF crime
under = St;rte law, OF to enact a
code Of evidence or practice for its
prosecution, as. to- erect the t0rHm
for its trial2 1t is clear to my. mind that
The sovereign Legislative power Of State
has just as .erctuSice Jurisdiction over the
-tOraHl as they have.th exclusive constitu-
tional. power to declare what shall be the
crime itselt;i and il the Congress Of the
UNITED States have no constitutional power
to modify, abolish, OF repeal the law OF a
State creating tho crime, 1T is logical de-
duction, in my opinion. fromwhich there Is
no escape, that they are utterly rowcrless
in changing: the. forum Of trial of such
crimes" Thc case Of Fox Us. The State Of
Ohio: 8 How, 40. reaflirrned i'll us. Us.
Marrigold, 8 How, $50. is expressly in point,
and the case Of United States Us. Cruik-
shank. % u. S. r. $40, is based upon the
same idea. See the vigorous discussion Of
the subject by the Chief Justice at page
$50. -.......- ~. y ..'@
: Murder, pure and simple, is not a crine
under any act OF the Congress OF the United
States. It is. not 4 violation OF the soye-
reignty OF the United States. 1t is an Of
fence under the common law, and from the
very foundation of the Government it
has been settled that the courts Of
the United States have no jurisdic-
ton Of common-law offences; that their
criminal jurisdiction is confined to. such
offences as amount to the violation Of an act
OF Congress. This was settled by the Su-
preme Court, in the year 1872, in the case of
United States Us. Hudson & Goodwin,
Cranch, 80. That case was prosecution in
the United States Circuit Court for libel
on the Presidentand Congress OF the United
States. Libel was an offence under the
common law, but no offence under any act of
Congress-. The Supreme Court held that
the prosecution could not be maintained
for the reason that the courts Of the United
States had no Jurisdiction Of any crimes save
crimes under an act OF Congress. The case
was reafirmed in United States Us. Coolidge,
l Wheat, 415. See also opinion OF Marshall,
&. j., to same effect in Elk parte Bollman and
fSWartwout, 4 .Cranch, at page 80; and U.
). Us. Lancaster, Mclean, 1873. See also
Paschal's Annotated Const., ed, note, 212.
= Whether Congress has 'power to make
crimes ut common law crimes against the
United States, except as incident to some of
its delegated powers, is a question. 1t
would be very difficult to point TO any pro-
vision in the Constitution comforting such
q power upon it. - ~. =. ID, -
. The Constitution provides that Congress
shall have power ito. provide for the pun
ishment OF counterfeiting The securities
and current coin of the United States" In
the case Of Fox Us. The State OF ONO, D
How, $40, which was prosecution or an
Individual for passing debased coin, in an