Year: 1879

before the U. $. Supreme Court upon
application from the Governor OF Nir-
ginia for a writ of nlalldGRaus to compel
Judge Riyes, OF the U. ). Circuit Court,
for the Western District OF that State, TO
return to the State authorities two
criminals whom he has taken out OF
their custody for retrial, in his own
court The facts in the case are well
known. The subject matter OF the con-
troversy raised is an abstract one OF
jurisdiction. The complaint is that
Judge Rives has invaded the sovereign
rights of the State. The question
presented is, which has the juris-
dietion TO try these prisoners, the
State or the United States. Attorney
General Field and Judge Rob-
ertson on behalf of the State argue that
there are cases in which the Common
wealth of Virginia is a party in its char
acter as a sovereign State, and that an
inferior federal court created by an act
of Congress can never, under any cir
cumstances, be clothed with the power
to dea with State or decide any ques.
ton OF controversy with her respecting
or arising out OF her sovereignty. lfshe
is amenable to any judicial tribunal un-
der the Constitution, that tribu-
nal is the United States Court.
They argue furthermore that
even the latter has no control over the
State or its courts, except when Fed
eral question is brought before it by a
writ of error from the State court OF last
resort. The State courts, and not
the United States Courts, are the exclu-
sive tribunals for the trial OF offences
committed within the State and against
its laws. The counsel for the petitioner
further maintain that section GIL OF the
Revised Statute, upon which Judge
Rives based his action, does not confer
the jurisdiction claimed. The right to
have juries of particular race or color,
in whole or in part, Is not one OF the
rights which the statute in question
secured. It merely extended TO the
colored race the rights already existing
and enjoyed by white citizens and pro-
vided that these rights should not be
denied 10 the colored citizens. Finally
the counsel for petitioner declare that
the State of Virginia has not denied to
any race or color the equal protection
of her laws; that the action of Judge
Rives should be declared null and void
and that the writ of mdldaHHtS prayed
is the only appropriate and complete
remedy, as there seems To be no right
of appeal or writ OF error TO this court


AttOrney-General Devens and w.
WiIloughby opposing the petition ior
mdnddBlllS urged first, that the Supreme
Court has no jurisdiction IN
the present case; that the common
wealth of Virginia refused to make itself
a party to the proceedings in the Cir
cut Court; that this petition cannot
therefore be considered as anything in
the nature of an appellate proceeding
therefrOm, and a State cannot substl-
tute an original suit in the Supreme
Court in a controversy like this between
itself and its own citizens. They argue,
second, in defense OF Judge Rives, ac-
ton, under the act of March 8, 1873,
that every person has right to a trial
by Jury constituted without discrimina-
ton against his own race or color, and
that in the present case the right has
been denied. White men may have
Jury Of their own race and color; ne
groes cannot. White men cannot
be subjected to any prejudice
against them on account of their
race or color. Negroes may be.
1t was Just this discrimination
which the Fourteenth Amendment was
designed to prevent. They argue, third,
that although the duty OF extending to
all persons in a State the equal pro-
lection of its laws was originally assumed
by the States, and still remains there,
yet If any State does deny or permit
denial of this right OF equality, aud il
such denial is based upon the grounds
of color or race, then the power OF the
United States NAV enforce this guaran-
tee of equality to the extent that it is
denied. The fact that State
is one of the parties in such
a case is immaterial. All cases invOlv-
ing Federal question may be brought
under the supervision of Federal ju-
dicial power, even though a State be
a party. This point is argued by cOun-
sci in opposition to the petition OF the
authorities. They disclaim the right of
general Federal supervision over the
criminal law OF state. but maintain
its cOnstitutiOnality when Federal
question is involved and when equal
protection OF the laws is denied by
State 10 any class of its citizens.


The argument will be concluded to-
morrow by Judge Robertson on behalf
of the State of Virginia.