The Enforcement Acts Declared Unconstitutional by Messrs. Johnson and Stanbery--The Government Counsel Evading the Issue.The last case of the Ku Klux trials that was attempted to be brought before the Supreme Court for final disposition, is entitled the United States vs. Avery et al, and came to the Supreme Court upon a certificate of division from the Circuit Court for District of South Carolina. The defendants in this case were indicted for conspiracy under the Acts of May 87, 1870, known as the Enforcement Or Ku Klux Act. The particular act charged was the murder of one Jim Williams, while attempting to prevent colored citizens voting, and to hinder and prevent their exercise of the right to keep and bear arms.
Motion having been made to quash the indictment, the court were divided in opinion on the question whether it had jurisdiction of the crime of murder charged, and whether the right to keep and bear arms is a right granted and secured by the Constitution of the United States so as to support the charge in the indictment, and render the offence cognizable by the court.
The Government submits that the questions having arisen upon a motion to quash, this court cannot take cognizance of them, the motion being preliminary in its character, and determinable by the court below us a matter of pure discretion.
It is then contended that the Act was intended merely to visit with increased punishment offenders against the laws of the United States, who, in the act of violating those laws, shall also commit offences against the laws of the States, and this it has power to do; and it necessarily follows that the courts of the United States have jurisdiction to inquire into this additional fact. Nor is it any answer to say that in so doing they take jurisdiction of an offence against State laws, and of which Congress cannot give them jurisdiction. The court merely admits evidence of a fact, as matter of aggravation of another offence. The criminal laws of several of the States are cited to show that in those States where any person is convicted of a criminal offence, who has before been punished by the United States or other States for a like offence, such person is sentenced to an additional penalty; and it is said that the difference between taking into account the conviction of a first offence, with a view to fix the punishment of a subsequent one, as in those eases, and taking into account the commission of an offeuoe with a view to fix the punishment of another offence contemporaneously committed, considered merely as facts constituting matter of aggravation, as in this case, is only a difference in time, and is wholly immaterial. In neither case is the punishment, in contemplation of law, applied to the offence, which is regarded as an aggravating circumstance merely.
In respect of the right to bear arms, it is said that the United States, by reason of the power given to Congress to provide for organizing, arming and disciplining the militia, has a direct interest in seeing that the right which the Constitution itself declares to be essential to a well-ordered militia is not infringed by unlawful authority, and, in the absence of State legislation, to punish violations of the right, and it is but a reasonable construction of the Act to construe it as applying to this Act as well as to any other.
For the defence, it is urged, after controverting the theory of the Government, that the fifteenth amendment to the Constitution contains no grant of power over the right of suffrage, but is in the nature of a restriction or abridgement of such power in one respect only and that is in the power to discriminate on account of race, color or previous condition of servitude. It is to enforce that section and prevent such discrimination, that by the second section Congress is authorized to enact appropriate laws. And this article contemplates only legislative action, and does not expressly apply to individuals. Before the Act in question can take effect, then it must appear that the State has authorized the discrimination prohibited by the amendment, and that such discrimination is attempted to be carried out by an individual. If the State has not violated the article, and has passed no law to authorize such discrimination, the unauthorized act of an individual, or combination of individuals, makes no case for Federal cognizance. An individual cannot deny or abridge the right to vote in the sense of this amendment. It is a right that can only be given or denied or abridged by law. South Carolina has not violated the amendment; she has passed no Act to discriminate on account of race, color or previous condition of servitude, and admits citizens of all color, race and conditions, who have the qualifications of voters, to the full enjoyment of the right of suffrage. But if it be held that it would be appropriate legislation to enforce this amendment against individuals, where the State had passed no Act, then it is contended that the conspiracies charged are not within the jurisdiction of the court, because they are offenses not within the purview of the amendment, nor appropriate legislation to enforce the amendment, and are, therefore, void. It is, then, submitted as too clear for argument, that within the legitimate sphere of the rights reserved to the States is included the right of exclusive legislation in the matter of suffrage; the very existence of the States depends upon it, and they have never surrendered the jurisdiction.
It is declared that not a single offense defined in the Act in question comes within the provisions of the amendment. When the States, by the amendment surrendered the right to discriminate the matter of suffrage on the ground of color, race, &c., , and authorized Congress to enforce that amendment, they surrendered no other right touching the suffrage, and gave Congress no further power over the subject, and hence the Enforcement Act is not appropriate legislation.
The constitutional provision in respect to the right of the people to bear arms contains no grant of power to the Federal Government over the right to keep and bear arms. On the contrary, the established constitution is, that it only recognizes a pre-existing right in the people of the States, and is merely a restriction on the Federal Government against any interference with that right, and consequently a subject matter exclusively within the cognizance of the States.
As to jurisdiction, it is contended that the jurisdiction attempted to be given by the Act over another "felony," committed in the attempt to do the acts prohibited, and in this case murder, belongs exclusively to the Courts of South Carolina, and that consequently so much of the Act is unconstitutional and void, as an exercise of a legislative power not in pursuance of the Constitution.[The Daily Phoenix, Columbia, S.C., Saturday Morning, March 23, 1872. Vol. VIII--No. 2. Pg. 3]