Ex parte Reynolds

20 F. Cas. 586, 3 Hughes 559

• Court: U.S. Circuit Court for the District of Western Virginia
• Decided: November 15, 1878
• Status: Published

Opinion

RIVES, District Judge.

I am aware that this application presents questions of novelty, gravity, and delicacj. The law on which it is founded is not familiar to the bar generally, and far less so to the public at large. Hence any action under it is liable to be misunderstood and misrepresented; and thus to give rise to undue excitement, disquiet, and popular disturbance. This particular enactment has not been authoritatively construed; though some light is thrown upon it by decisions of the supreme court upon kindred parts of the same general legislation for the enforcement of civil rights under the late amendments of the constitution. Anything like a conflict of jurisdiction between the state and federal courts ought to be avoided whenever it is possible; and it is to be presumed that each respective set of tribunals will be animated by an equal and common desire to obviate all such interference. Both judicatories are alike subjected by article C of the constitution of the United States to that constitution and the laws of congress made in pursuance thereof, and it is expressly added that “the judges in every state shall be bound thereby, anything in the constitution or laws of the state to the contrary notwithstanding.” Even where unavoidable, such conflict is aot to disturb the harmony and interrupt the peaceful action of the two governments; to shock the just sensibility and excite unduly the apprehensions of the public. In the consideration, therefore, of this ease, I felt I would best consult my own peace and the popular repose if I could find the means thereby of reconciling my duty with a denial of this petition. But, of course, paramount to such considerations was my wish and determination alike to execute the laws.of congress in behalf even of the humblest, so as to insure the equal protection of all citizens as guaranteed by the 14th amendment of the constitution. It is not necessary to state such facts of this application as are necessary to the presentation and clear understanding of the question I am to decide. The immediate and last petition here is for a habeas corpus; upon examining the record upon which it is predicated, it will be seen that the parties presented their petitions to the state court before a trial of their cases for the removal of them to this court. Before doing so, however, their counsel asked of the state judge to so reeon-struct the jury as to place some of their race and color, qualified according to the laws of the state, upon the venire, on the ground that they could not expect an impartial trial by a jury wholly alien to them in race and color. They were denied this right, and in consequence thereof, and upon the allegation cf this denial of the equal protection of the laws, they then submitted to the state court their petition for removal, and now, on the first day of this term, filed the same in this court, asking the cause to be docketed here.

Taking the whole case together, I regard it as a petition for removal which necessarily leads to the remedy by habeas corpus, which they invoked by the more recent petition submitted to me in vacation, the hearing of which I adjourned to this term. After trial and sentence of one of the petitioners, on the mere statement thereof, it would seem the period had passed for removal. In the case of The Justices v. Murry, 9 Wall. [76 U. S.] 274, it was properly held that the fifth section of the act of congress of March 3, 1863 [12 Stat. 756], allowing a removal by writ of error and other process to the circuit court within six months after rendition of judgment, was unconstitutional because contrary to the seventh amendment of the constitution of the United States, declaring that no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law. This decision was rendered in December, 1S69. The act passed April 9, 1S66 [14 Stat. 27], entitled' “An act to protect all persons in the United States in their civil rights, and furnish the means of their protection,” provided for removals of causes to federal courts in compliance with this act thus subsequently pronounced unconstitutional in this particular. Hence, as the law now stands, the petition must be filed in the state court before the trial or final hearing. This was done in this case, but the court overruled the petition and proceeded to the trial, notwithstanding the explicit declaration in section 641, that “upon the filing of such petition all further proceedings in the state courts shall cease and shall not be resumed except as hereinafter provided.” What effect if any shall be given to a trial thus had may be best determined by the language and reason of the law. I therefore quote the two sections, 641, 642, omitting therefrom only the terms embracing the case of officers, civil or military, or other persons, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of and under color of authority derived from any law providing for equal rights as aforesaid. By this omission the application of the lav.7 to the case at bar will be more clearly and compactly seen. For future comments it is proper to give the two sections, with this disembarrassment of other matter, at length and verbatim.

Section 041. Rev. St. U. S. (Ed. 1S78) p. 115: “When any civil or criminal prosecution is commenced in any state court for any cause whatever, against any person, who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit is prosecuted, any right secured to him by any law providing for the equal rights of all citizens or of all persons within the jurisdiction of the United States; * * * such suit or prosecution may, upon the petition of such defendant, filed in the said state court at any time before the trial * ,• final hearing of said cause., suiting the facts and verified by affidavit, be removed for trial into the next circuit court to be held in the district -where it is pending. Upon the filing of said petition, all further proceedings in the state courts shall cease, and shall not be resumed except as hereafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the state court. It shall be the duty of the clerk of the state court to furnish such defendant petitioning for a removal copies of said process against him, and of all pleadings, depositions, testimony and other proceedings in the case. If such copies are filed by said petitioner in the circuit court on the first day of its session the cause shall proceed therein in the same manner as if it had been brought there by original process, and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the same in the circuit court, and the said court shall then have jurisdiction therein, and may upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause, and in case of his default may order a nonsuit and dismiss the case at the cost of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if without such refusal or neglect of said clerk to furnish such copies, and proof thereof, the petitioner for removal fails to file copies in the circuit court, • as herein provided, a certificate under the seal of the circuit court, stating such failure, shall be given, and upon the production thereof in said state court the cause shall proceed therein as if no petition for a removal had been filed.”

Section 642, p. 110: “When all the acts necessary for the removal of any suit or prosecution as provided in the preceding section have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said state court, it shall be the duty of the clerk of said circuit court to issue a writ of habeas corpus cum causa, and of the marshal by virtue of such writ to take the body of the defendant in his custody, to be dealt with in said circuit court according to law, and the orders of said court, or in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said state court a duplicate copy of said writ.”

The ouly warrant for these enactments is to be found, if at all, in article 14 of the late amendments to the constitution. If they do not come within the designation by section 5 of this article of “legislation appropriate to the enforcement of the provisions of this article,” then they are reprobated as void under the decisions of the supreme court in the cases of U. S. v. Reese, 92 U. S. 214, and U. S. v. Cruikshank, Id. 542. Let us, therefore, explore ilie language and scope of the first section of this article. It is as follows: “Any persons, bom or naturalized within the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make and enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.”

It is conceded that this inhibition applies exclusively to the state. But that term presents a complex idea. A state is a sort of trinity; it exists, acts, and speaks in three capacities: legislative, executive, and judicial. What is forbidden to it in one capacity is forbidden to it in each and all. It may not infringe this article by legislation, but it may equally do so by its courts or its executive authorities. Hence, it seems to me, it is in strict pursuance of this article to base the intervention of the federal courts on the inability to enforce in the judicial tribunals of the state or in some part thereof the equal civil rights secured by this article. The mischief is the same whether the deprivation proceeds from the law, the courts, or the executive. It is equally attributable to the state. The laws of the state may be all conformable to the requirements of this article. but its infraction may rest with the courts or executive authorities of the counties. The amendment, to be potential and attain its end, should be enforced, as these enactments purport, by providing a remedy for the dereliction, in whatever quarter it may appear. Hence, to find a casus for the application of this law of federad intervention under the theory of this article, we are not restricted to the action of the legislature alone; it clearly contemplates the failure of executive or judicial remedies for the enforcement of these equal civil rights. But it is objected that this article is silent as to the right or mode of trial of colored persons accused of state offences. A constitutional provision is necessarily general and never descends to detail. It merely ordains e'quality of rights and protection to all. In the time of slavery, these persons were not entitled to trial by jury; they were tried by a court of five justices. Will it be pretended that that mode of trial could now be reconciled to this amendment because silent on this point? It is sufficient to answer that it guarantees to them the equal protection of the laws, which obviously includes the same mode of trial and the same measure of punishment. In the same mere technical spirit it is said there is nothing in this article giving colored persons, or indicating for their trial, mixed juries. But inasmuch as a major proposition in logic includes the minor premise, this equal protection can only be had in criminal trials through juries composed of the same persons, and constituted in the ■same mode as well for negroes as for whites. If a mixed jury is allowable by the state law in all cases, for a stronger reason is it right and permissible for a trial of a negro. In the latter case a white panel cannot be imputed to chance; it must be taken as the result of design in derogation of his right to a fair jury for his trial. The state law is not in fault here. Under it all voters are competent jurors, the selection devolving on the county judge; so that no discrimination is made by it on account of color or race. I have endeavored to follow as closely as practicable this state law in the selection of my juries at this bar. What would be thought or said of me if I, against remonstrance, im-panelled negroes exclusively to try white men for offences; and yet the same anomaly and injustice exists in trying negroes by juries of white men alone. The state law, as well as this amendment, guarantees to this lately enfranchised class the same sort of juries for their tidal as should reasonably follow from the deliberate omission in the law of any discrimination on account of color or race. The demand, therefore, to reconstruct the venire under the direction of the presiding judge, so as to allow some representation of the prisoner’s race upon it was, as it seems to me, in conformity with the law of the state, and a just concession to the spirit of this amendment. I see nothing in the state law to forbid it. On the contrary, ample discretion to that end is reposed with the judge by Code Ya. c. 15S, p. 1062, -§§ 16, 17. The question recurs: Was not its denial under the circumstances a denial to the prisoner of the equal protection of the laws? It is greatly to be deplored that no uniform practice obtains in this regard throughout the commonwealth though the law is the same everywhere. I am informed that the judge of this county invariably gives the accused, when colored, the benefit of a mixed jury: and that it is believed that no harm has ever resulted from it, or any failure of punitive justice. The same, I am told, is the practice in other counties of the commonwealth; and, I trust, one of the effects of the agitation of this question will be to extend it If this should become general or be required by law, all pretence for federal interference would be removed; and the law and practice would conform in leading to the just enforcement of equal civil rights to all colors and races. If negroes were to be tried by former slaveholders, once allied to them by interest, affection, and sympathy, the danger might not be great; but if these people axe to depend for their lives, liberty, and property on the white men who never knew or felt these ties, I regret to say they are without the guarantees enjoyed by others from the jury trial secured by article 6 of the amendments to the constitution.

From this comparison of the law of congress with this amendment, I am constrained to conclude that the former strictly pursues the latter, is in conformity thereto, and .therefore constitutional. Had I come to a different conclusion I should have felt bound to disregard these enactments. True, I should have felt all the delicacy becoming an inferior judge in pronouncing a law of congress unconstitutional; but I should not have shrunk/from the responsibility of doing so if, on mature reflection, I should have come to that conclusion. It is a well-settled doctrine, eveu in courts of the last resort, that a law is not to be lightly pronounced unconstitutional; and never in a case of doubt. The reasonable presumption is In favor of its constitutionality. But it is because I believe the constitution and the law both require it of me, I grant the relief sought of me; surely not under the ridiculous idea that I have any jurisdiction over state crimes or any authority to prosecute them; but merely to secure for the petitioners here the equal protection of the laws of the state as guaranteed by the fourteenth amendment and the law in pursuance thereof. No one can be more sensible than I am of the anomaly of trying these cases at my bar; I have nothing to say of the wisdom, the expediency, or fitness of tins legislation; the least. I can say is that it gives an anomalous jurisdiction to this court, not easily understood or reconcilable with past practices, but it is sufficient for me to be convinced that I am thus directed by congress in legislation, which they have deemed appropriate to the enforcement of this fundamental part of its reconstruction policy. Nor do I see how any mind conceding the constitutionality of these enactments can arrive at any other conclusion than the absolute right of the parties under the terms of the law to this relief. It ought to be observed that the trial had in one of these cases was in plain defiance of the law which directed all further proceedings to c-case on the filing of the petition. That trial must, therefore, go for nothing in this case if I am to be governed by tbe plain terms of these enactments. The law left nothing to the discretion of the state judge, save the implied discretion to deny the petition; but such denial was to avail nothing; the case was thereby arrested, and the question remitted to this court at its first session thereafter. I presume as the county of Patrick is annexed by the ruling of this court to the court held at this place, this term may well be regarded as the first after the filing of these petitions. This is the next circuit court in the terms of the law held for this part of the district where parties reside, and whence witnesses are to be summoned.

NOTE. By order of the general assembly of Virginia, the attorney general of the state, James Gf. Field, filed a petition in the supreme court of the United States, praying for a writ of mandamus upon Judge Rives, directing him to remand these two prisoners to the sheriff of Patrick. [The writ was awarded. 100 U. S.

X have treated this exclusively as a question of removal, and not as application for a habeas corpus, as I have already premised. I take no note of the allegation of petitioners that they believe and declare they cannot get a fair trial in the state court; that is alien to the merits of their application, and has no rightful place here. Their relief and the removal they seek can alone be predicated of some obstruction to their impartial trial arising out of the action of the court, and the selection of a jury with reference, whether designed or not, to color and race. In case of federal officers, indicted in the state courts for state offences, I have under this law exercised the same jurisdiction without objection from any quarter.

If there shall be found on inquiry a want of uniformity, or even semblance of injustice in the practice of the judges or courts in the particular I have named, it is fair to presume it will be rectified in time to avoid this unseemly collision and anomalous interference with the trial of state offences. If there be anything unfair and repulsive to the instincts of justice, and in conflict with all our notions of jury trial in trying negroes exclusively by white men, wholly alien to them in interest and feeling, it admits of speedy redress by the state. I can conceive of no stronger motive on the grounds of humanity and practical statesmanship than that which now exists with the state, who enjoys the fruits of her restoration to the Union by virtue of her formal ratification of this amendment, to observe on her part in all the departments of her service, scrupulously, both in spirit and in deed, its requirements, and to guard and protect beyond all unfriendly cavil the civil rights of this humble class of its useful laborers. We must feel that when the state does its full duty under this amendment there can no longer be a possibility of the interference which offends her'dignity and arouses her indignation. Her own independent sense of justice will have righted the wrong, and all this conflict will cease for the future. But without resting on such speculations, but expressing them with entire deference to my state and its courts, I am constrained by my interpretation of the law and constitution to enter the following order:

At the circuit court for the Western district of Virginia, held at Danville, on the-13th day of November, 1878, Burwell and Lee Reynolds, by their counsel, submitted to the court a petition by them presented to the judge of the circuit court for the county of Patrick for the removal of the prosecutions against them into this court, which petition is a part of the record which said petitioners have procured of the clerk of said circuit court of Patrick, and now offer to file in’this court, praying that said prosecutions may be here docketed, and proceeded with here. The court being of opinion that said petitioners have been denied such a trial as is secured to them by the laws of this state by competent jurors, without distinction of race or color, doth direct said causes, upon the petition aforesaid, to be docketed in this court for trial; and the clerk is hereby authorized to issue forthwith a writ of habeas corpus cum causa to the marshal of this district to take the bodies of said defendants into his custody, to be dealt with according to law and the order of this court; and that the clerk of this court in the vacation thereof direct to the said marshal a writ of venire facias for twenty-five jurors, qualified as such by the laws of this state, without the distinction of race or color, to attend on the first day of next term for the trial of said cases at the bar of this court.