The daily gazette., 1880-05-21

~ hJs AsAhA othhA AOA bAAC WCbUClh olB~
trict of Virginia, and the Common
wealth of Virginia applied to the
Supreme Court for d rule to show
cause why a mandamus should not be
issued to command Hon. Alex. Rives,
judge of the district court, to cause
the U. S. Marshal to deliver the
bodies of Lee and Burwell REYNOLDS
to the custody of the jailer of Patrick
County, to be dealt with according
10 the laws of the Commonwealth.
In this case the Supreme Court de-
cided in favor of awarding the writ
of mandamus, on the ground that the
laws and constitution of Virginia do
not exclude colored men from serv-
ing on juries, and that no special
attempt to exclude them from The
grand and petit juries in this case
had been proven.
3. Taylor Strauder, plaintiff In er-
ror, VS.. the State of West Virginia. In
this case the plaintiff, a colored man,
indicted for murder in the Circuit
Court of Ohio county, West Virginia,
was convicted and sentenced. He Pc
titioned for removal of the cause in
to U. s. Circuit Court, assigning as
ground for the removal, 'that by vir-
tue of the laws of West Virginia, no
colored man was eligible to be a men,
Der of the grand jury or to serve on a
petit jury in the State;" whereby he
did not believe he could have full and
equal benefit of fair trial. These
grounds were made sufficient before
the Supreme Court, and the petition
granted.
On these decisions Mr.. Higgins bas-
ed his arguments, and earnestly en-
deavored to make them applicable to
the case under consideration, with suf-
| ficent force to warrant the motion for
a removal of the case to the U. 5. Cir
cult Court, or if this was denied, for
motions to quash the indictment, OF
quash the jury panels, on the ground
| of the absence of colored men there
from. The groundwork of this argu-
ment was that the constitutions and
laws of the State were amended by the
recent amendments to the Constitu-
| ton of the United States, and must OF
necessity conform thereto. In this
case the question was do the constltu-
ton and laws of this State so operate
as to include only white men on the
juriesP
The point on w hich Mr.. Higgins
most strongly based his argument was
from the decision of the Supreme
Court in the Reynolds case of West
Virginia, the languag ge of the Court
being as follows
1t Is evident, therefore, that the denial
or inability to enforce in the Judicial
tribunals of a State, rights secured to a
defendant by any law providing for the
equal civil rights of all persons citizens
OF the United S ates, of which section 641
speaks, is primarily, II not exclusively,
lenial of such rights, pr an inability TO
enforce them resulting from the con-
stItution or laws OF the State, rather than
| a denial first made manifest at the trial
of the case. In other words, the statute
| has refe, encc to legislative denial or an
inability resulting from it. Many such
| cases of denial might have been appre-
bended and some exis ed. Colored men
might have been, as they had beeu, u,denled
a trial by jury. They might have been
excluded by law from any jury summon
ed to try persons of their race,or the law
| might have denied to them the testimony
! of colored men in their favor, or process
for summonlng Witnesses. Numerous
other illustrations might be given. In all
| such cases q defendant can affirm, Oh
oath, before trial, that he is denied the
| equal protection of tie laws or equality
| of civil rights. But in the absence OF con
stitutional or legisl lative impediments
he cannot swear before his case comes to
| trial that his enjoyment Of all his civil
| riyhts is denied TO him. When he has
,nly an apprehension that such rights
| will be withheld from him when his case
shall come to Trial, he cannot affirm that
thew are actually denied or that be can
not enforce them. Yet such an affi firma-
tion' Is essential to his right to remove
his case. By the express requirement OF
the statute his petition must set fortl
he facts upon which he bases his Claim
TO have his case removed, and not merely
his belief that he cannot enforce bis
rights at a subsequent stage Of the pro-
ceedings. The statute was not, therefore
intended as a corrective OF errors OF
wroses committed by judicial tribunals
in the administration of the law at tht
trial.
speaking directly to the case under
I consideration, Mr.. Higgins said 4: L
| this order is granted, the prosecution
i'm the U s. Court will proceed exact
ly as in tLis court, excepting that the
| Federal Court will exercise the Juris'
/ dictions of this court. The Attorney
General will go into the Court, and II
the indictment should prove fatal he
would correct it.
Judge Houston The Attorney uell'
eral could not 60 into the U. ). Court
Mr. Higpius-Yes; the Attorney
General can take the indictment and
90 before the Grand Jury; the case
would be tried by the petit jury, and
the Attorney General would prosecute
under the State laws.
The Chief Justice-lf the umtee
States abolished all capital PUNISH
ment for crimes, and provided punish
ment for life, cou ID the Court, in thu
: case, sentence this man to be hungP
Mr.. Higgins-Yes, sir.
, The Chief Justice-Then it woul'
be q usurpation of the rights OF HI
| State. 1t would apply to all case
| where colored men were accused
crime. Then what becomes OF on
| whipping-post ? -.
. Mr.. Higgins-It would still stand i
all it's vigor.
= The Chief Justice-Then we ha
better abdicate entirely and give ou