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
MR. JUSTICE STRONG delivered the opinion of the Court.
Addressing ourselves to the first of the questions presented by
the record -- the question of jurisdiction -- it may be remarked
that clearly the circuit court had no jurisdiction of the crime of
murder committed within the District of Kentucky, unless it was
conferred by the third section of the Act of Congress of April 9,
1866.
It must be admitted that the crimes and offenses of which the
district courts are, by this section, given exclusive jurisdiction
are only those which are against the provisions of the act or those
enumerated in the second and sixth sections, and that the "causes,
civil and criminal," over which jurisdiction is, by the second
clause of the section, conferred upon the District and circuit
courts of the United States concurrently are other than those of
which exclusive jurisdiction is given to the district courts. They
are described
Page 80 U. S. 591
as causes
"affecting persons who are denied, or cannot enforce in the
courts of 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."
Was, then, the prosecution or indictment against these
defendants a cause affecting any such person or persons? If it was,
then by the provisions of the act, it was within the jurisdiction
of the court, and if it was not, that court had no
jurisdiction.
It was, the record shows, an indictment for the murder of Lucy
Armstrong, a citizen of the United States of the African race, and
it contained an averment that other citizens of the United States
of the same race witnessed the alleged murder. It contained also an
averment that those other persons -- namely Richard Foster and
Laura Foster as well as the deceased Lucy Armstrong -- were, on
account of their race and color, denied the right to testify
against the defendants or either of them of and concerning the
killing and murder in the courts and judicial tribunals of the
state of Kentucky.
We are thus brought to the question whether a criminal
prosecution for a public offense is a cause "affecting," within the
meaning of the act of Congress, persons who may be called to
testify therein. Obviously the only parties to such a cause are the
government and the persons indicted. They alone can be reached by
any judgment that may be pronounced. No judgment can either enlarge
or diminish the personal, relative, or property rights of any
others than those who are parties. It is true there are some cases
which may affect the rights of property of persons who are not
parties to the record. Such cases, however, are all of a civil
nature, and none of them even touches rights of person. But an
indictment prosecuted by the government against an alleged criminal
is a cause in which none but the parties can have any concern
except what is common to all the members of the community. Those
who may possibly be witnesses, either for the prosecution or for
the defense, are no more affected by it than is every other person,
for anyone
Page 80 U. S. 592
may be called as a witness. It will not be thought that Congress
intended to give to the district and circuit courts jurisdiction
over all causes both civil and criminal. They have expressly
confined it to causes affecting certain persons. And yet if all
those who may be called as witnesses in a case and who may be
alleged to be important witnesses were intended to be described in
the class of persons affected by it, and if the jurisdiction of the
federal courts can be invoke by the assertion that there are
persons who may be witnesses but who, because of their race or
color, are incompetent to testify in the courts of the state, there
is no cause either civil or criminal of which those courts may not
at the option of either party take jurisdiction. The statute of
Kentucky which was in existence when this indictment was found, and
which denied the right of Richard Foster and Laura Foster to
testify in the courts of the state enacted as follows:
"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."
It will be observed that this statute prohibits the testimony of
colored persons either for or against a white person in any civil
or criminal cause to which he may be a party. If, therefore, they
are persons affected by the cause, whenever they might be witnesses
were they competent to testify, it follows that in any suit between
white citizens, jurisdiction might be taken by the federal courts
whenever it was alleged that a citizen of the African race was or
might be an important witness. And such an allegation might always
be made. So in all criminal prosecutions against white persons, a
similar allegation would call into existence the like jurisdiction.
We cannot think that such was the purpose of Congress in the
statute of April 9, 1866. It would seem rather to have been to
afford protection to persons of the colored race by giving to the
federal courts jurisdiction of cases, the decision of which might
injuriously affect them either in their personal, relative, or
property rights, whenever they are denied in the state courts any
of the rights
Page 80 U. S. 593
mentioned and assured to them in the first section of the
act.
Nor can it be said that such a construction allows little or no
effect to the enactment. On the contrary, it concedes to it a
far-reaching purpose. That purpose was to guard all the declared
rights of colored persons, in all civil actions to which they may
be parties in interest, by giving to the district and circuit
courts of the United States jurisdiction of such actions whenever
in the state courts any right enjoyed by white citizens is denied
them. And in criminal prosecutions against them it extends a like
protection. We cannot be expected to be ignorant of the condition
of things which existed when the statute was enacted or of the
evils which it was intended to remedy. It is well known that in
many of the states laws existed which subjected colored men
convicted of criminal offenses to punishments different from and
often severer than those which were inflicted upon white persons
convicted of similar offenses. The modes of trial were also
different, and the right of trial by jury was sometimes denied
them. It is also well known that in many quarters, prejudices
existed against the colored race, which naturally affected the
administration of justice in the state courts and operated harshly
when one of the race was a party accused. These were evils
doubtless which the act of Congress had in view, and which it
intended to remove. And so far as it reaches, it extends to both
races the same rights, and the same means of vindicating them.
In view of these considerations, we are of opinion that the case
now before us is not within the provisions of the Act of April 9,
1866, and that the circuit court had not jurisdiction of the crime
of murder committed in the district of Kentucky merely because two
persons who witnessed the murder were citizens of the African race,
and for that reason incompetent by the law of Kentucky to testify
in the courts of that state. They are not persons affected by the
cause.
We need hardly add that the jurisdiction of the circuit court is
not sustained by the fact averred in the indictment that Lucy
Armstrong, the person murdered, was a citizen of
Page 80 U. S. 594
the African race, and for that reason denied the right to
testify in the Kentucky courts. In no sense can she be said to be
affected by the cause. Manifestly the act refers to persons in
existence. She was the victim of the frightful outrage which gave
rise to the cause, but she is beyond being affected by the cause
itself.
The conclusions to which we have come are sustained, we think,
fully by the judgment of this Court in
United States v.
Ortega, [
Footnote 5] in
which the opinion was delivered by Mr. Justice Washington. It was
the case of an indictment in the circuit court for offering
violence to the person of the Spanish minister, contrary to the law
of nations and the act of Congress. The second section of the third
article of the Constitution ordains that the judicial power of the
United States shall extend to all cases affecting ambassadors,
other public ministers and consuls, and that in all cases affecting
ambassadors, other public ministers and consuls, the Supreme Court
shall have original jurisdiction. The defendant was convicted, and
on motion in arrest of judgment, the question was presented to this
Court (and it was the only one decided) whether it was a case
affecting an ambassador or other public minister. The court
unanimously ruled that it was not. The violence out of which the
indictment grew was committed upon a public minister, and he was a
competent and material witness. But he was ruled to be not a person
affected by the case, because it was a public prosecution
instituted and conducted by and in the name of the United States,
and for the purpose of vindicating the laws of nations and that of
the United States in the person of a public minister offended by an
assault committed on him by a private individual. It is, said the
Court, a case then which affects the United States and the
individual whom they seek to punish, but one in which the minister
himself, although he was the person injured by the assault, has no
concern, either in the event of the prosecution or in the costs
attending it. What was meant by the phrase "a case affecting,"
Page 80 U. S. 595
was thus early defined, and we are bound to presume that
Congress, when they used the same word "affecting" in the act of
1866, intended to have it bear its defined meaning. This is
according to a well known rule of construction.
An attempt has, however, been made to discriminate between the
words "case affecting," as found in the constitutional provision,
and the words "cause affecting," contained in the act of Congress.
We are unable to perceive any substantial ground for a distinction.
The words "case" and "cause" are constantly used as synonyms in
statutes and judicial decisions, each meaning a proceeding in
court, a suit, or action. Surely no court can have jurisdiction of
either a case or a cause until it is presented in the form of an
action. We regard, therefore,
United States v. Ortega as
an authority directly in point to the effect that witnesses in a
criminal prosecution are not persons affected by the cause. It
necessarily results from this that jurisdiction of the offense for
which these defendants were indicted was not conferred upon the
circuit court by the act of Congress.
It is unnecessary, therefore, to consider the other questions
presented by the record.
Judgment reversed.
THE CHIEF JUSTICE was not present at the argument, and took no
part in the judgment.
[
Footnote 1]
Section 1, chapter 107, vol. 2, p. 470.
[
Footnote 2]
13 Stat. at Large 774.
[
Footnote 3]
14
id. 27.
[
Footnote 4]
The murder and indictment were, it seems, after the ratification
of the Fourteenth Amendment, which was proclaimed July 20, 1868, 15
Stat. at Large 708.
[
Footnote 5]
24 U. S. 11 Wheat.
467.
MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE SWAYNE,
dissenting.
I dissent from the opinion of the Court in this case for the
following reasons:
The civil rights bill (passed April 9, 1866, and under which the
indictment in this case was found and prosecuted) was primarily
intended to carry out, in all its length and breadth, and to all
its legitimate consequences, the then recent constitutional
amendment abolishing slavery in the United States and to place
persons of African descent on an equality of rights and privileges
with other citizens of the United States. To do this effectually,
it was not only necessary
Page 80 U. S. 596
to declare this equality and impose penalties for its violation,
but, as far as practicable, to counteract those unjust and
discriminating laws of some of the states by which persons of
African descent were subjected to punishments of peculiar harshness
and ignominy and deprived of rights and privileges enjoyed by white
citizens.
This general scope and object of the act will often furnish us a
clue to its just construction. It may be remarked, however, that
the terms of the act are broad enough to embrace other persons as
well as those of African descent, but that is a point not now in
question in this case.
The first section declares that all persons born in the United
States, not subject to a foreign power and not including untaxed
Indians, are citizens of the United States, and that such citizens,
of every race and color, without regard to previous condition of
slavery, 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 the 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 or custom to the contrary notwithstanding.
This is the fundamental section of the act. All that follows is
intended to secure and vindicate, to the objects of it, the rights
herein declared and to establish the requisite machinery for that
end.
This section is in direct conflict with those state laws which
forbade a free colored person to remove to or pass through the
state, from having firearms, from exercising the functions of a
minister of the gospel, and from keeping a house of entertainment;
laws which prohibited all colored persons from being taught to read
and write, from holding or conveying property, and from being
witnesses in any case where a white person was concerned; and laws
which subjected them to cruel and ignominious punishments not
imposed upon white persons, such as to be sold as vagrants, to
Page 80 U. S. 597
be tied to the whipping-post &c. All these and all other
discriminations were intended to be abolished and done away
with.
The second section makes it a misdemeanor, punishable by fine or
imprisonment, for any person, under color of any law or custom, to
deprive any inhabitant of a state or territory of any right secured
by the act or to subject him to different punishment or penalties
on account of his having been a slave, or by reason of his color or
race, than is prescribed for the punishment of white persons.
The third section proceeds to confer upon the district courts of
the United States, exclusive of the state courts, jurisdiction to
try these offenses, and then follows the clause under which the
indictment in the present case was found, declaring that the said
district courts shall also have cognizance, 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,"
with right of removal of causes from state courts &c. It is
evident that the provisions of the second section making it a
criminal offense to deprive a person of his rights or to subject
him to a discriminating punishment would fail to reach a great
number of cases which the broad and liberal provisions of the first
section were intended to cover and protect. The clause in question
is intended to reach these cases, or at least a large class of
them. It provides a remedy where the state refuses to give one;
where the mischief consists in inaction or refusal to act, or
refusal to give requisite relief; whereas the second section
provides for actual, positive invasion of rights. Thus, if the
state should refuse to allow a freedman to sue in its courts,
thereby denying him judicial relief, or should fail to provide laws
for the punishment of white persons guilty of criminal acts against
his person or property, thereby denying him judicial redress, there
can be no doubt that the case would come within the scope of the
clause under consideration. Suppose that, in any state,
Page 80 U. S. 598
assault and battery, mayhem -- nay, murder itself -- could be
perpetrated upon a colored man with impunity, no law being provided
for punishing the offender, would not that be a case of denial of
rights to the colored population of that state? Would not the
clause of the civil rights bill now under consideration give
jurisdiction to the United States courts in such a case? Yet if an
indictment should be found in one of those courts against the
offender, the technical parties to the record would only be the
United States as plaintiff and the criminal as defendant.
Nevertheless could it be said, with any truth or justice, that this
would not be a cause affecting persons denied the rights secured to
them by the first section of the law?
The case before us is just as clearly within the scope of the
law as such a case would be. I do not put it upon the ground that
the witnesses of the murder, or some of them, are colored persons,
disqualified by the laws of Kentucky to testify, but on the ground
that the cause is one affecting the person murdered as well as the
whole class of persons to which she belonged. Had the case been
simple assault and battery, the injured party would have been
deprived of a right, enjoyed by every white citizen, of entering a
complaint before a magistrate, or the grand jury, and of appearing
as a witness on the trial of the offender. I say "right" for it is
a right, an inestimable right, that of invoking the penalties of
the law upon those who criminally or feloniously attack our persons
or our property. Civil society has deprived us of the natural right
of avenging ourselves, but it has preserved to us all the more
jealously the right of bringing the offender to justice. By the
common law of England, the injured party was the actual prosecutor
of criminal offenses, although the proceeding was in the King's
name; but in felonies, which involved a forfeiture to the Crown of
the criminal's property, it was also the duty of the Crown officers
to superintend the prosecution. And although in this country it is
almost the universal practice to appoint public and official
prosecutors in criminal cases, yet it is the right of the injured
party, and a duty he owes to society, to
Page 80 U. S. 599
furnish what aid he can in bringing the offender to justice, and
an important part of that right and duty consists in giving
evidence against him.
To deprive a whole class of the community of this right, to
refuse their evidence and their sworn complaints, is to brand them
with a badge of slavery; is to expose them to wanton insults and
fiendish assaults; is to leave their lives, their families, and
their property unprotected by law. It gives unrestricted license
and impunity to vindictive outlaws and felons to rush upon these
helpless people and kill and slay them at will, as was done in this
case. To say that actions or prosecutions intended for the redress
of such outrages are not "causes affecting the persons" who are the
victims of them is to take, it seems to me, a view of the law too
narrow, too technical, and too forgetful of the liberal objects it
had in view. If, in such a raid as I have supposed, a colored
person is merely wounded or maimed, but is still capable of making
complaint, and on appearing to do so, has the doors of justice shut
in his face on the ground that he is a colored person, and cannot
testify against a white citizen, it seems to me almost a
stultification of the law to say that the case is not within its
scope. Let us read it once more:
"The district courts shall, concurrently with the circuit
courts, have cognizance 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 this
act."
If the case above supposed is within the act (as it assuredly
must be), does it cease to be so when the violence offered is so
great as to deprive the victim of life? Such a construction would
be a premium on murder. If mere violence offered to a colored
person (who, by the law of Kentucky, was denied the privilege of
complaint) gives the United States court jurisdiction when such
violence is short of being fatal, that jurisdiction cannot cease
when death is the result. The reason for its existence is stronger
than before. If it would have been a cause affecting him when
living, it will
Page 80 U. S. 600
be a cause affecting him though dead. The object of prosecution
and punishment is to
prevent crime, a well as to vindicate
public justice. The fear of it, the anticipation of it, stands
between the assassin and his victim like a vindictive shade. It
arrests his arm, and loosens the dagger from his grasp. Should not
the colored man have the aegis of this protection to guard his
life, as well as to guard his limbs or his property? Should be not
enjoy it in equal degree with the white citizen? In a large and
just sense, can a prosecution for his murder affect him any less
than a prosecution for an assault upon him? He is interested in
both alike.
They are his protection against violence and
wrong. At all events, it cannot be denied that the entire
class of persons under disability is affected by prosecutions for
wrongs done to one of their number, in which they are not permitted
to testify in the state courts.
I am well aware of the case of Ortega, who was indicted in the
circuit court for offering violence to the person of the Spanish
minister. The defendant claimed that it was "a case affecting a
public minister," and under the Constitution cognizable only in the
Supreme Court. But the Court, taking the strict and technical view,
decided that, being a criminal case, in which the United States was
plaintiff and the offender was defendant, they only were the
parties whom the case
affected. Conceding that this
decision was good law for the purposes of that case, I do not feel
that I am bound by it in this. The effect of that decision was that
the Constitution, in giving the Supreme Court jurisdiction in cases
affecting ambassadors, other public ministers and consuls, only
intended to give these public persons the right
to sue and be
sued in the Supreme Court. In the case before us, I think
Congress meant a great deal more than this when it gave the United
States courts cognizance of all causes, civil and
criminal, affecting persons who are denied or cannot
enforce in the courts of the state any of the rights secured by the
first section of the act.
I have considered the case irrespective of the fact that the
witnesses of the transaction were all colored people who, at
Page 80 U. S. 601
the time this indictment was found, were denied the right to
testify against white persons in Kentucky. I have placed it on the
sole ground that prosecutions for crimes committed against colored
persons are causes which, in the sense of the civil rights bill,
most seriously affect them, and that in Kentucky they were denied
the privilege of being witnesses in these causes. I do not mean to
be understood as saying that every cause in which a colored person
may be called as a witness for that reason belongs to the
cognizance of the United States courts. In ordinary cases of a
civil character, the party calling such a person as a witness is
the person affected. Such party, be he black or white, may except
to the rejection of his witness, and bring the case to this Court
by writ of error from the state court of last resort under the 25th
section of the Judiciary Act. A defendant in a criminal prosecution
may do the same thing where a bill of exceptions is allowed in
criminal cases.
To conclude, I have no doubt of the power of Congress to pass
the law now under consideration. Slavery, when it existed, extended
its influence in every direction, depressing and disfranchising the
slave and his race in every possible way. Hence, in order to give
full effect to the national will in abolishing slavery, it was
necessary in some way to counteract these various disabilities and
the effects flowing from them. Merely striking off the fetters of
the slave, without removing the incidents and consequences of
slavery, would hardly have been a boon to the colored race. Hence
also, the amendment abolishing slavery was supplemented by a clause
giving Congress power to enforce it by appropriate legislation. No
law was necessary to abolish slavery; the amendment did that. The
power to enforce the amendment by appropriate legislation must be a
power to do away with the incidents and consequences of slavery and
to instate the freedmen in the full enjoyment of that civil liberty
and equality which the abolition of slavery meant.
In my opinion, the judgment of the circuit court should be
affirmed.
