Blyew v. United States
80 U.S. 581

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U.S. Supreme Court

Blyew v. United States, 80 U.S. 13 Wall. 581 581 (1871)

Blyew v. United States

80 U.S. (13 Wall.) 581

Syllabus

Under the act of 9th April, 1866, 14 Stat. at Large 27, sometimes called "The Civil Rights Bill," which gives jurisdiction to the circuit court of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts of the state or locality where they may be, any of the rights given by the act (among which is the right to give evidence, and to have full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens), a criminal prosecution is not to be considered as "affecting" mere witnesses in the case, nor any person not in existence. United States v. Ortega, 11 Wheat. 467, affirmed.

By the Revised Statutes of Kentucky, published A.D. 1860, [Footnote 1] it is enacted:

"That a slave, negro, or Indian shall be a competent witness in the case of the commonwealth for or against a slave, negro, or Indian or in a civil case to which only negroes or Indians are parties, but in no other case."

This enactment being in force in Kentucky, the Thirteenth Amendment to the Constitution was proclaimed as having been duly ratified, and a part of it, December 18, 1865, [Footnote 2] is in these words:

"SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction."

"SECTION 2. Congress shall have power to enforce this article by appropriate legislation."

In this state of things, Congress on the 9th April, 1866, passed an act entitled "An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication." [Footnote 3] The first section of that act declared all

Page 80 U. S. 582

persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, to be citizens of the United States, and it enacted that:

"Such citizens, of every race and color, shall have the same right in every state and territory in the United States to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding."

The second section enacted:

"That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject or cause to be subjected any inhabitant of any state or territory to the deprivation of any right, secured or protected by this act or to different punishment, pains, or penalties on account of such person's having at any time been held in a condition of slavery or involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of which persons, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished,"

&c.

Then followed the third section, which contains this enactment:

"That the district courts of the United States within their respective districts shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses committed against the provisions of this act, and also concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the state or locality where they may be any of the rights secured to them by the first section of the act."

The section then provided for removal into the federal courts of any suit or prosecution, civil or criminal, which

Page 80 U. S. 583

had been, or might hereafter be, commenced against any such person for any cause whatever.

The sixth section rendered liable to fine and imprisonment any person who should obstruct an officer or other person in execution of process under the act or should aid a person arrested to escape or conceal a person for whose arrest a warrant had been issued.

In this state of things, two persons, Blyew and Kennard, were indicted October 7, 1868, in the Circuit Court for the District of Kentucky for the murder, on the 29th of August preceding, within that district, of a colored woman named Lucy Armstrong. [Footnote 4] The indictment contained three counts, all of them charging the murder in the usual form of indictments for that offense, and with sufficient certainty. But in order to show jurisdiction in the circuit court of the United States, an averment was made in the first court that the said Lucy Armstrong was a citizen of the United States, having been born therein and not subject to any foreign power; that she was of the African race, and was above the age of seventy-five years; that Blyew and Kennard (the persons indicted) were white persons, each of them at the time of the alleged killing and murder above the age of eighteen years; that the said killing and murder, done and committed, as averred, were seen and witnessed by one Richard Foster and one Laura Foster citizens of the United States, having been born therein and not subject to any foreign power, both of the African race; and that the said Lucy Armstrong, Richard Foster and Laura Foster were then and there denied the right to testify against the said Blyew and Kennard, or either of them, concerning the said killing and murder in the courts and judicial tribunals of the State of Kentucky solely on account of their race and color. The second and third counts contained substantially the same averments.

To this indictment the defendants pleaded specially that before it was found, they had been in custody of the authorities

Page 80 U. S. 584

of the state, and, after examination, had been held to answer for the killing of Lucy Armstrong, which was the same offense as that charged in the circuit court; but on demurrer the plea was overruled, and the case went to trial upon the issues found by a replication to the plea of not guilty. During the progress of the trial, the court sealed several exceptions to the admission of evidence offered by the United States, and a verdict of guilty having been returned, a motion was made in arrest of judgment, which the court also overruled. The ground alleged for this motion was, that "the facts stated in the indictment did not constitute a public offense within the jurisdiction of the court."

There were thus three questions presented by the record:

First. Whether the circuit court had jurisdiction of the offense charged in the indictment?

Second. Whether the court erred in sustaining the demurrer to the defendants' special plea?

Third. Whether the evidence to which the defendants objected should have been received?

Of course, if the first question was resolved in the negative, any resolution of the remaining ones became unnecessary.

The case was brought here on error under the tenth section of the already mentioned act of Congress, which provides

"That upon all questions of law arising in any cause under the provisions of this act, a final appeal may be taken to the Supreme Court of the United States."

The murder for which the defendants were convicted, and as they now sought to show illegally, had been one of peculiar atrocity. A number of witnesses testified that on a summer evening of 1868 (August 29), towards eleven o'clock, at the cabin of a colored man named Jack Foster there were found the dead bodies of the said Jack, of Sallie Foster his wife, and of Lucy Armstrong, for the murder of whom Blyew and Kennard stood convicted; this person, a blind woman, over ninety years old, and the mother of Mrs.

Page 80 U. S. 585

Foster; all persons of color; their bodies yet warm. Lucy Armstrong was wounded in the head; her head cut open as with a broad-axe. Jack Foster and Sallie, his wife, were cut in several places, almost to pieces. Richard Foster a son of Jack, who was in his seventeenth year, was found about two hundred yards from the house of his father, at the house of a Mr. Nichols, whither he had crawled from the house of his father, mortally wounded by an instrument corresponding to one used in the killing of Lucy Armstrong, Jack and Sallie Foster. He died two days afterwards from the effects of his wounds aforesaid, having made a dying declaration tending to fix the crime on Blyew and Kennard. Two young children, girls, one aged ten years and the other thirteen (this last, the Laura Foster above mentioned), asleep in a trundle-bed, escaped, and the latter was a witness on the trial.

Evidence was produced on the part of the United States that a short time previous to the murder, Kennard was heard to declare, in presence of Blyew,

"that he [Kennard] thought there would soon be another war about the niggers; that when it did come, he intended to go to killing niggers, and he was not sure that he would not begin his work of killing them before the war should actually commence."

Such a case, and the withdrawal of it from the state courts, naturally excited great interest throughout the State of Kentucky, and by a joint resolution of the general assembly of that state, passed at its adjourned session in 1869, the governor of the state was directed to cause the commonwealth above mentioned to be represented in this Court. Being brought here, the case was very fully and interestingly argued, the point to which counsel here addressed themselves chiefly being the one already stated as the first one presented by the record, the point of the jurisdiction of the circuit court.

Page 80 U. S. 590

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