Historical Newspapers of South Carolina

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ggaes ^ ^ ^ sss ssssssssssssss s ? I | a. .. T - : 1 . -- 1 1 1 - '! " ' ' ' o VOLUME XXXVII. CAMDEN, S. C., SEPTEMBER 19,1878. NUMBER 10. 5! THE CAMDEN JOURNAI Published Every Thursda At CAMDEN, 8. C., st G. G. ALEXANDER SUBSCRIPTION RATES. (In Advance.) One Tear 92 9< Six Monlhit 1 2< DR. I. H. ALEXANDER Dental Surgeon, COLU BIA, S. 0. Office over W. D. Love'e atore. The doctor is now on ft professional visj to Ofrtnden, and will remain here for a fev weeks. Nov20tf DR. T. BERWICK LEGARE, DENTIST, GRADUATE OF THE BALTIMORE COLLEGI OF DENTAL SURGERY. n?""nr TkVITiTTl WfVTTSF UrriV/L ? t/^uauu uv??_. Entrance on Broad Streetj Wm. D TRANTHAM, ATTORNEY AT LAW, BROAD STEET, Camden, S. O. J. D. DUNLAP, TRIAL JUSTICE, BROAD STREET, ' CAMDEN, SO. CA. fcfk. Business entrusted to his care Will receive prompt attention june7tf. * J. T. HAY, ATTORNEY AT LAW AND Trial Justice Office orer store oTMessrs. Baum Bros. Special attention given to the collection of claims. J. W. DEPASS, ATTORNEY AT LAW AND Trial Justice. Snilntsi of all kinds promptly transacted. WTL. DEPASS, ATTORNEY AT LAW, CAMDEN, S. C. Will practice In all the State and Fe leral Courts. j?? T. H. CLARKE, ATTORNEY AT LAW, CAMDEN, S. C. Office?That formerly occupied by Capt. J. M. Datls. Janwtf J. D. KENNEDY. P. H. NELSON KENNEDY & NELSON, ATTORNEYS AT LAW, CAMDEN, S. C. Office formely occupied by Judge J. B. Kershaw. novtSm PHOTOGRAPHS ! Mr. W. S. Alexander being in Camden on a short visit, will open his Gallery for the accommodation of his many friends and former patrons. He is prepared to take as fine Photographs as can be made in the State. * * -1-- in Copying and enlarging aisu UVUV best style. He has on band a splendid assortment of Picture Frames, Chromos, etc., for sale at the lowest cash prices. Give him a call. FREDERICK J. HAYT Architect and Builder, CAMDEN, S. C., Will furnish plans and estimates for all kinds of buildings. Contracts taken at moderate figures, and promptly and carefully attended to. Orders left at ths CauDE* ocrnal office will receive immediate attention. Marchltf JIERONE1 ?& SEED, Auctioneers. CAMDEN, S. C. Orders solicited and satisfaction guaranteed. fehl2tf JOHN C, WOLST, PLAIN, ORNAMENTAL, AND SIGN PAINTER, Paper Hanger $ Glazier, CAMDEN, S. C. sept23.12m Riddle's Hotel, LANCASTER C. H., S. C. Having purchased the Hotel formerly occuplei by Mr. Jones Crockett, situated on Main street, am prepared to receive transient and permanen boarders. Good accommodations at reasonable ratei Stables and Lots free to drovers. janlSlf J. M. RIDDLE. Be Sore to Stop at the Latham House CAMDEX, 8. . (TEAhsriKT Boabd, $2.00 pee dat.) ?g^Ample accommodations. Tables sup plied with the best the Markets afford. Ere ry attention paid to the comfort of Cuestt \ tar Persons stopping at the Lathai ^ House will be conveyed to and from th ' " * -??- ??* Paasenirer9. withoi { aepolire?Ui wubi6v. a?. V heavy baggage, will be conveyed to an ? from any part of the town, not above D? i K&lb street, at 25 cents. \ (?' Connected with the house is a fin \ olais Bar, which ia located separately froi the house, and orderly kept. , {? Conveyances supplied to guests o I liberal terms, either for city or country us , jan8-ly S. B. LATHAM, Proprietor. { 411 Kinds Of Canned Goods, of best quality, ac warranted full weight, for salo by . febl2tf KIRKLEY & 3 ITH The Novelty ^'TuiDinvr OTOARS Call and s (J "them at KIRK LEY & SMITH'S Cigars and Tobacco. Always on hand, a select stock of Cigai Smoking and Chewing Tobacco, Pipes, C garettes. Cigarette Papers. Ac., for sale 1 ;?bis-tf S1RKLEY & SMITH. A Slight Misunderstanding. ! A lady living in Dumbarton, Whose heart was full of kindness, 1 And when my tale is told you'll see j Her eyes were full of blindness, t ' Her servant came to her one morn, r And asked to "have the day, ma'am," To pay a visit to her home, Which was "Sve miles away, ma'am." 1 The lady took a moment's thought, Then cheerfully consented, C Because she always loved to have Her Bervant live contented. ! And oo the servant homeward went, i The mistress to the kitchen, i And planned a little joke which she Thought "perfectly bewitching." ! She bustled 'round with footsteps light To get her husband's dinner, i And never dreamed bow soon she'd find | That husband was a sinner. She heard his steps upon the walk And hid behind the table. From whence she sprang upon her spouse As still as she was able. She thought that he surprised would be To get such fond caresses From one enrobed in apron strings And party covered dresses. Alas ! imagine her dismay? ! Imagine her great distress? To have him kiss her lips and ask, Sweet Mtry, where's your mistress ?" THE STATE YS. HUGH P KANE AND OTHERS?INDICTMENT, MURDER. ! Opinion of Judge Kershaw, on motion to transfer the case for trial In the C ircuit Court of the United statesI State of South Carolina?County of Anderson?In the General Sessions. The State vs. Hugh P. Kane, William Durham, Robert P. Scruggs and G. W. Moose?Indictment for murder. The above stated case having been transferred upon the motion of the prisoners from Pickens to Anderson county for trial, they applied for and obtained a writ of habeas corpus cum. causa, from the clerk of the Circuit Court of the United States for South Carolina, directing the marshal of that Court to | take the bodies of the prisoners into hia custody and bring them before that 1 I ? A I ! VOUrt wiiu iue cause ui iut*ir ueiruuuu, and directing the clerk of this Court for the County of Anderson, to furnish a 1 certified transcript of the record of this 1 Ooun against toe said prisoners 1 j Prisoners' couusel have thereupon 1 | produced a plea to the jurisdiction of 1 : this Court and now move that the same be allowed, under the provisions of Section 643 of the Revised Statutes of the 1 United States, and for ao order that all farther proceedings be stayed, and that the sheriff of Greenville, who has refused to surrender the prisoners to thp custody of the marshal, be ordered b? this Court to forthwith surrender them in accord- j ance with the terms of said writ of j habeas corpus from the Circuit Court. The fact9 upon which this application is based ure to be derived from the recitals of the writ, (that beiDg the only 1 paper produced by the prisoner's counsel.) and from the files of the case as of record in tbe Court. The writ reciting , that the prisoners, Unif< d States marshals and deputy collectors of Internal Revenue, who were in the discharge of tbeir duty in the district of South Carlina are now held in the common jail of Greenville couDty, together witn G. W. Moose, to answer before the Court of General Sessions for Andersou county, in the State of South Garolina, charged with feloniously killing one Amos Ladd, of the county of Pickens, and State of South Carolina, proceed thuv'and where as it is alleged that the killing of the said ' Amos Ladd by the said Hugh P Kane. William Durham, Robert P Scruggs and G. W. Moose, was done by them while in the discharge of their duty, acting as a posse aiding and assisting the said G. W. Moose, deputy United j I States marshal and deputy collector of | Internal Revenue, under orders and by authority of him, the said G. W. Moose, deputy marshal and deputy collector as J aforesaid, who had a warrant issued by t a United States commissioner of the dis, trict aforesaid, for the arrest of a party charted with violations of the Internal _ Revenue laws, and in search of illicit ! whiskey, and that all acts done by I them were it? self-defence, the said . J Amos Ladd having assaulted and rej sisted the said deputy marshal and 1 ? l,;a while in aepuiy tuiictiAJi ?uu > ....... the discharge of their duty as such deputy United States marshal and depu ,* ty collector of Internal Revenue." &c. }. Filed with the record in the State n Courts are affidavits of the prisoners, e I stating the acts done by them, and the ? 1 attendant circumstances, specifically and in detail, prepared and used in the State | Court upon their application for bail it1 there. To these reference will hereafter m be bad. j I am to determine whether the prise oners have entitled themselves to an or* dcr here, staying the proceedings in - j this Court, and directing the sheriff of Greenville county to surrender me pris1(j oners to the custody of the United States marshal for South Carolina. If ?he prisoners are so entitled, it will bo the ? duty of this Court to grant the order If they are not so entitled, it is equally ee the duty of the Court to refuso the order. ~ The right is claimed by the prisoners ! to remove the cause, by virtue of the ?, | precisions of Section 643 of the Kevised ^Statutes of the United States, under which the writ of Juiheas corpus issued | from the Clerk of the Circuit Court 9! the United States for the district of South Carolina. The production of the writ is sufficient to authorise the presumption that all the conditions of a formal sort, required by the net as preliminary to its issuance, hare been complied with, in the absence of any I controversy upon that point, and the application will be determined upon its merits. If the act cited is applicable to thif case, and if Congress had the power to legislate to that effect, the motion must prevail; otherwise it must be denied. ? TKip niifiofinn in m?dp nnder the In * n?"? ? ternal Revenue laws, passed in pursuance of the power delegated by the Constitution of the United States (art. 1, sec. 8, clause, 1,) which delares that 'the Congress shall have the power to lay and collect taxes, duties, imports, excises," &cM and also in pursuance of that other clause, which applies to all the delegated powers under the constitution, that Congress inay ''make all law9 which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof." (Art. 1, sec. 8, clause 17.) If then Congress has exercised the power of legislation to the extent olaimed by the prisoners, and such legislation "was necessary and proper" for carrying into execution the 4 * ? & nAMAMimant iKo IBXIUK puwers ui inn ^vkiuukui, constitutionality of the act cannot be questioned. It will not be doubted that, in order to execute the taxing power, and to collect the revenues of the United States, Congress had the right to pass all laws necessary and proper to protect the officers of the government while in the discharge of that duty, as otherwise, the ghint of the power would havo been wholly nugatory and the operations of the government must have ceased. Accordingly such laws have been enacted from time to time, and one of them is rhnf. now in miMfion The mode adoDted in that act, is to transfer the cases within its provisions, from the State Courts to the United States Courts ''for trial." The cases subject to be trans* ferred under this section are indicated in the act thus : "When any civil suit or criminal prosecution is commenced in any court of a State, against an officer appoiuted under, or acting by authority of any revenue law of the United States, * * * or against any person acting under, or by aotberi* ly of any such officer, on account oLao^ gut Uvw 'urrfpr onlnr rvf -or ot any such law or on account of any right, title or authority claimed by auch officer or other persoo under any sucb Uw, tbe said suit or prosecution may, at any time before the trial or final hear ing thereof, be removed for trial, into the Circuit Court next to be holden in the district where the same is pending," &c. It will be perceived that in order to authorize a transfer of the person concerned, must possess a certain official relation to the government, ami the act, on account of which he is called in question, must have been under certain specified circumstances. Here it ha? not been denied that thp prisoners are persons, who, at the time of the act complaiucd of, held the relation to the government required to authorize the transfer; they were an officer of tbe revenue department ana his assistants. Was the act done under such circumstances as to give the right of removal ? Was it done "uuder color" of their office or any revenue law ? Or are they cailed in question "on account of any right, title or authority" claimed by them under any revenue law 7 The net done was nothing less than the Bhootmg to death of a citizen of the State, a youth, standing when first fired into, in the door of bis mother's house with whom he resided, and finally and fatally shot down in the yard of the homestead by another of the prisoners, as he fied wounded from the first. The term "under color" is a technical expression, obtained from tne common law. An act is said to be done UDder color of title when porformed by one holding an instrument which seemingly rests in him the thing in respect of which the ;.ct in question is performed. It may uot be a good title?it may not be sufficient to justify the act, but it must have "color"?it must appear to be a good title. Id the language ol the learned Judge in Turpia vs. Brannon, (3 McC. 267.) it is the "semblance of title." So iu pleading, color signifies a probable plea, but which is in fact false, and "color of office is when an act is evilly done by the countenance of an office," 1 Jacobs Law Diet. 501. If the office exercised by the prisoners, or any warrant, such a3 set up by them, could appear to authorize the uct done, then the act might be said to have been done uDder color of the office or authority The warrant under which they claimed to have acte-, is said to have been for ' the arrest of a party charged with a violatiou of the Internal Revenue laws." This offense is nothing more than s misdemeanor. A warrant to arrest foi a misdemeanor can, under no circum stances, authorize the killing of the party charged; and hence it is nnt sue! an act as can be said to have been dom under color of the office or authority conferred by it. it did not contain th< semblance of authority for the act done and therefore it was not an act per formed under color of office. Nor i there any law of the United States fo the collection of the revenue which au thorites, or appears to authorite sue! an act; and therefore, upon like ren ; soninp, it is manifest that it cannot b ; claimed to have been done under colu ' of any such law, or on account of aoy right, title or authority claimed by such officer, or other person, under any such law. There being no such law as authorized the act, no inch authority could be under the law. It follows, therefore, that the law set up does not embrace this case, under its provisions. It is argued, however, that the officers, having a warrant authorising an arrest and being resisted by the deceased in the execution of that power, had a right to slay the resisting party. This is a misapprehension of the law. The circumstances, as set forth in the affidavit of the prisoners upon the application for baii, do not make such a case of resistance as would justify the killing. Nothing short of necessity would justify or excuse taking life, whether done by an officer or an individual?the only j.*zr u ? .1 l. : (jiuercijce ueinp uin uu-vuiccr, uiufciug an arreat, may kill in selWefence without retreating, while a private individual may not "In all caaea^hethcr civil or criminal, where persona, having authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, they may repel force with force, and need not give back; and if the party making the resistance is unavoidably killed, this homicide is justifiable." (1 Russell on Crimes 546.) The prisoners' statements Bhow, that after having lain for some time in ambush, around the promises, they determim.it tn nmlr* ''phnrcru" nnnn tVio house, and accordingly some of them did so, both io front and rear,* with guns in their hundi;"that deceased, seeing the approach of Kane, before any explanation of the purpose and authori* ty with which they came, snapped his gun at him, when Kane 'fired on tho deceased and wounded him; that the deceased ran through the hduse and into the yard by another door, and there was shot down, still running. Upon this statement the aot would not be jus* tifiahle, in any view of the case. The same learned authority just cited declares that "when the party does not resist, but merely flies to avoid arrest, the conduct of the officer should be cautiously regulated by the nature of the proceeding. For in civil cases, and also in the case of a breach of tbe peace, or any other misdemeanor short of felony, if the officer sbonld pursue a defendant flying, in order to avoid an arrest, and ahonld kill him in the parsuit, it will be murder or manslaughter, according to the peculiar circumstances ever, it were granted that tbe killing was in fact as alleged by the prisoners, done io necessary self defence, that is a common law defence, and does not exist by virtue of the process claimed to be in the hands of the offioers, or the authority of the Statute law wherewith they were clothed. If their official character entered into the case as an ingredient of such defence, it was only so by virtue of the common law, and not because of any statute or process. The killing would not have been justiable because of the presence of the warrant or authority, but by reason of the conduct of the deceased. It was an act done, not in execution of the wurrant, but. in the defence ot the person of the individual. The act therefore cannot be Baid to have been done under color of the office or authority or laws invoked. These principles are fully sustained by the learned Chief Justice of the TTnltAf] Q? n .% I n nnoa r\P MaITSa TTQ l/U&lCVt Ml HIVO All VI1C VOi)6 Vt i<AVJlk(V m. Rains, 10 Wall., 22. In that case the marshal had seized the goods of the plaintiff under au execution against the goods of one Oadv. An action Of trespass was brought in the State Court nguinst the Marshal, and judgment rendered thereon in favor of the plain'iff. The Marshal sought to transler the case to the Circuit Court by writ of error, under an act of Congress of April 9th, 1866, and and an act o< March 3d. 1863, authorizing such transfer before or after judgment, when the act complained of was committed ''during the rebellion, by authority derived from any act of Oon ?? tl. nu:-? grcos* A lie VI11C1 U notice III uvmct ing the judgment of the Court, says : "The case made by the pleadiog9 was clearly within the jurisdiction of the State Court, where suit was brought; and the parties being all citizens of the same State, was not within the original jurisdiction of any national oourt. Nor was case one which could at any stage be removed into the Circuit Court of the United States, under the act of March 3, 1863, or April 9, 1866. It is very plaiu that the first of these acts does not apply. It was not a suit or prosecution described by the act. No act of Congress has b.'en cited, from which authority can be derived to the Marshal to seize the goods of"one person i for the satisfaction of the debts of another." Similarly, no revenue law or other ' authority can bo produced that would i authorize the act done by these prison' ers, and it was not therefore "a suit or i prosecution described by the act" here : invoked. But there are other sufficient reasons 5 why it must be held that the prisoners i are not entitled to the removal claimed. ! If it can be shewn that the construe1 tion contended for the act would involve e the imputation upon Congress of having ; exercised powers not conferred by the - Constitution of the United States, such s construction would be erroneous, if any r other could be placed upon the act. If - correct, then the act would be unconb stitutional. null and void. tiTk? n AnafUnttAn A f TTnitod k J lie VUllCKIbUi IUU VI ? e States is an instrument containing the r grant of specific powers, and the gov< ernment of the Union cannot claim any powers but what are contained in the .,rnnt, and given, either expressly, or by necessary implication."?1 Kent's Com., 313. "Any act of Congress * * * which is repugn nant to the Constitution of the United States, is necessarily void*"?lb , 314. The Constitution of the United States (Art. 3, sec. 2,) dehnes and limits the judicial power conferred by it in this I language ; "The iudicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the Umted States, and the treaties made or which shall be made under their authority; to all cases affecting ambassadors, othor : public ministers and consuls; to all cases of admiralty and maritime jurisdiction; 1 to controversies to which the United Statee shall be a party; to controversies between two or more States; between a State and citizens of another Stat-1; between citizens of the same State 1 claiming lands under grants of different States; and between a State, or the citizons thereof, and foreign States, citi- 1 zens or subjects." It is clear that the United States 1 Courts have no jurisdiction of the matter involved in this controversy by 1 reason of the character of the parties. ] It is a case between the State of South < Carolina and citizons thereof, of which, j as such, there is no grant of jurisdic- I tinn. Tfc must arise, then, if at all. under 1 the clause affecting the subject matter | of the ca?e, to wit: that which declares ! that tho judicial power shall extend to ] all cases in law and equity arising under the constitution and laws of the United States. "A case in the sense of tho constitution," says Mr. Justice Story, "is a suit &t law or equity, and arises when some subject touching the constitution, laws or treaties of the United States is submitted to the Oourts by a party who asserts his rights in the form provided by law."?Com. on Con., 3d Vol., p. 507. Says Oh Kent, upon the case of U. S. vs. Worrall, 2 Dallas, 384 : "A case arising under a law, must mean a case depending on the exposition of a law, in respect to something which the law t . n* A, proniDits or enjoins, ana 11 it were sum- i cient iD order to vest & jurisdiction to t try a crime, or sustain an action, that a i Federal officer was concerned snd affect- ] ed by the aot, a source of jurisdiction < would he opened which would destroy < all barriers between the judical authori- 1 ties of the-States and the general gov* ] ^wauuit."?1 Comm.. 332. I counsel, that the term "all cases in law < and equity" employed in the constitu* I tion, do not import, in legal parlance, a ' criminal jurisdiction. But, it has been i uniformly held, that it included all < offenses against the laws and constitu* i tion of the United States, and that the I Federal Courts had such jurisdiction in I all cases of that character, where Oongres9 has expressly conferred the juris- I diction and provided the punishment, i Congress hah nowhere exercised any i such power by conferring jurisdiction ! on any Court of the United States, of the crime of homicide committed within the limits of the State, where by reason of the cession of territory and juriadic- j tion. the United States had exclusive i authority. But, it is claimed, that under this Section 643 of the Revised Statutes of the United States, providing for the transfer of all cases in which officers of the revenue department are called in question, for an act done under color of office, or the authority of the revenue laws, the jurisdiction is conferred by implication. This would be true, if the United States courts were courts of general common law jurisdiction, but, as has already been said, they have no powers, evon within the constitutional grant, except such as arc conferred upon them by statute, defining the crime and prescribing a punishment. Now, the act done by these prisoners gave rise to an indictment for murder in the State Courts. It is contended that the act of Congress cited authorizes the transfer to the Circuit Court of the United States "tor trial." rne circuit Gourt could not, under the constitution, entertain jurisdiction of the case when transferred, unless it was a case arising under the constitution of the United States, as has been already shown; and this case is not one so arising:. Referring to the definition quoted from Chancellor Kent, it is not a case depending on the exposition of the-constitution or laws cf the United States, in respect to something which the law prohibits or enjoius. It is a case of homicide, arising within the limits of the State, and to bo determined wholly upon the principle of the common law, and cannot depend upon the exposition of any law of the United States, constitution or statute. It is not therefore a case included in the judicial powers conferred by the Constitution, and hence the United State? Uourt3 couia not entertain jurisdiction. It canuot be justified by Art. 1 Sec. 8, Clause 17 of the constitution, which confers upon Congress the power '-to make all laws which shall be necessary to carry into execution the foregoing powers," because that cannot operate to extend a jurisdiction defioed and limited by the constitution, since the limitations contained in that instrument roust qualify all the powers granted. Nor can any 1? ? ?/! tn h? npcABoarv to carrv into Iltw UC OlXl\* ^ ^ t:zecutiou any of the powers granted, which tranRcends aoy limit placed by ' the constitution upon any of those powers. Nor has Congress attempted, in the 1 act in question, to legislate beyond its i constitutional powers. After providing > how the cases described shall bo trans* ferred to the Circuit Court, the act proceeds, ' the cause shall thereupon be entered oo the docket of the Circuit Court, and shall proceed as a cause originally commenced in court." Nothing can be more manifest than that no cause was contemplated to be removed, under the act, except such as might have been originally commenced in that court- Says {Judge Conkling, in his learned treatise, p. 169: "Indeed it is perfectly obvious that no Buit can be removed to the national courta, which ought not, by the constitution or the United States, hayo been originally commenced in one of those courts * * * it may, therefore, be safely assumed that all the decisions affecting the originol jurisdiction of the circuit courts, in the classes of cases which may bo removed, are equally applicable to tbem as subjects of removal. If it be conceded that Congress had the right to confer jurisdiction upon the circuit courts "to try" a caso of murder committed by an officer of the Revenue, while executing process, or discharging his dutj as such, there is no act of Congress that does confer such jurisdiction. In the case of the United States vs. Hudson & Goodwin, (7 Oranch, 32) a majority of the Su? nramo PahfViaf fV)A PirfMlifc ^lUUjg vvui U UWV1UVU KIIUW vuv sourts could not exercise a common law jurisdiction. Ch. Kent, summarising that decision, says : "Of all che courts which the United States, under their general powers, might constitute, the Supreme Court was the only one that possessed jurisdiction derived immediitely from the constitution. All other jourts created by the general Government possessed no jurisdiction but what vas given them by the power that erea;ed them, and could be vested with none jut what the power ceded to the general Government would authorize them .0 confer. * * When a court wan ireated, and its operations confined to iertain specific objects, it could not as lume a more eitendcd jurisdiction. (Jer ain implied powers must necessarily esult to the courts of justice from the uture of their institution, but jurisliction of crimes against the State was iot one of them. To fine for contempt, o imprison for contumacy, to enforce :he observance of order, are powers lecessary to the exercise of all other powers, and incident to the courts, with* >at the authority of a statute. But to exercise criminal jurisdiction in common aw cases was not within their implied lowers, and it was necessary for Conrreps to make the act a crime, to affix ;ourt whlctnB^iffd (Comm. 334.) He adds (lb. 339); "The principle assumed by the courts, in the cases of Worrall vs. Hudson & Goodwin, is considered to be a safe and B.inAlnla " Thia 10 II fill nil ht 6(11V 3UUIIU pi iUVipiW) A U*w ?w *>?? ? J the law, and consequently no case has been showa where Googress failed, when it attempted to confer jurisdiction of a criminal offence, 'to make the act a crime, to affix a punishment to tt, and to declare the court which shall have jurisdiction." The statute law of the United States, uow of force, is to be found in the Revised Statutes, and the acts of Congress, passed since the first day of December. 1873. (Revised Statute, Sections 5596, 5601.) The jurisdiction of the Circuit Court in criminal matter* is declared in Sec. 629 clause 20, which is in these words: "Exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where it is or ma; be otherwise provided by law. and concurrent jurisdiction with the District Courts, of crimes and offences cognizable therein." It is broad enough to cover all offences cognizable under the constitution and laws of the United States, except as therein provided, and I it is conceded that the case of murder within the limits of a State is not one of the exceptions. Title 70 of the Re* vised Statutes embraces in its provisions the crimes and ofences "cognizable under the authority of the United States," so far as Congress has exercised the power to declare and punish such offences, except in the case of Statutes papsed since December 1, 1873. and nowhere do we find that Congress has provided for the crime of murder committed by one of its officers, in executing process within the limits nnd under the jurisdiction of the State. The absence ofsuch legislation, even in a clear case of constitutional power to exercise it, would be fatal to the jurisdiction claimed by the Circuit Court to try the case, and it cannot be supposed that the act was intended to provide for the transfer "for trial" of a cause which the court could not try for the want of jurisdiction. Against this reasoning numerous cases are cited which are supposed to be in conflict therewith. An examination of these eases has failed to shake my convictions of the soundness of the opinions expressed. The case of Oohens vs. Virginia, which seemed to be one of those chiefly relied on by the counsel for the prisoners, was one unquestionably arising under an act of Congress passed in pursuance of the constitutional power of legmlnflnn Affot. flirt T)iaf?-irtf nf PnlninKlo lotavtvu wtlyi VUV //IDbilVH V& VviuiMWiM] vested in Congress, There was a direct conflict between a law of Congress and a statute of the State of Virginia involved in the case. The case was one, therefore, of which the Suprenx Court of the United States had ap nellate iurisdietinn. bv reason 0 I T -J the character of the came; being i case touching the validity of an ac of Congress, and decided by th< State court against its validity. Noo 1 of the principle! involved in tnat oae I ? nrrnnmf[if\Tn r> ? mtio AUY trvnai^ur rv.iiE.i9. Time. 1 in. ^ col. J col. 1 col. 1 week,$l 00 $5 00 S9 00 $16 00 2 " 1 76 7 60 12 26 20 00 8 " 2 60 9 00 16 26 24 00 4 " 3 00 10 50 18 00 27 60 6 " 8 60 .11 76 20 50 81 00 6 " 4 00 12 60 22 76 34 00 7 " 4 60 18 26 24 76 87 00 8 " 6 00 14 00 26 00 40 00 8 mos 6 60 17 00 32 00 60 00 4 " 7 60 19 00 39 60 59 00 6 " 8 60 24 00 48 00 84 00 9 " 9 60 80 00 69 00 105 00 12" 10 25 36 00 68 00 120 00 OT Transient advertisement* must be accompanied with the cash to tnsore Insertion. are denied here. Nor does this decisiou conflict with any decision of the Supreme Court of the United States cited by the learned counsel. The cases cited which do conflict are those of the Circuit Court in United States ex rel. Roberts vs. Jailor of Fayette County, (2 Abb., 265,) and the decision of the Supreme Court of North Carolina in the case of Jesse F. Horkins (77 N. C., 531.) Neither of these decisions are of authority here, and have only such force as their reasoning may entitle them to.. In the former case the learned Judge Iay3 down principles of law to whioh a ready assent may be granted, but the vice of the decision is that it assumes that the pica of selfNdefence set up by an omeer who kills one whom he seeks to arrest under process, Is the samo thing as pleading justification under the process, expressly disclaiming, at the same time, any right to assume jurisdiction of a plea of self-defence. Furthermore, that decision arose un? der the act of March 2.1833,(4 St. at L., 634, Sec. 7,) which declares that the Judges of the United States shall have power to grant writs of habeas corpus in all cases of a prisoner in jail or confinement, when committed or confined "on or by any authority or law, for any act done or omittted to be done, in pursuance of a law of the United States, or any order, process or decree of any Judge or Court thereof," &c. Under that act the Judge simply discharged the prisoner. He did not consider, nor was there any reason to oonstrue the act relied on in this case, involving those questions which arise unaer the provisions or toe act, tnat tho cases bo removed "for trial," and be docketed and stand as if "originally commenced therein." Nor does the learned Judge determine or discuss the constitutionality of the act under which be tried and determined a case of murder committed within the jurisdiction of a State, and against her sovereignty, without the interventoin of a jury. The Hoskinfl case is first considered by the learned Judge delivering the opinion of the Conrt, as a question of the "comity of nations." How snch a principle can be invoked to determine a question concerning the relations between the States and the General Government, does not readily appear, and snch an introduction does not prepare the mind for a favorable consideration of whot follows. The Court then pro ceeds to decide the constitutionality or the act involved in this case by reference to most of the cases cited'here, none statute. If the authorities cited to sua- " tain the case, and the reasoning upon them pursued here by counsel, do not meet the case, the decision in Hoskins' case fails to do to. The counsel representing the prisoners have, sinco the hearing, furnished me with other decisions of the Circuit Court of the United States, among them that of Jenkins in 2d Wallace, jr. 521, United States vs. Cleason, 1st Woolworth, c c, 128, and United States vs. O'Grady a case arising in Georgia, reported in the Central Law Journal, p. 465. The first case arose under the habeas corpus act of 1833, and does not decide any of the questions discussed here. The case of Gleason arose under the act of February 24, 1854, (13 U. S. Stat, at large 6.) for the enforcement of the enrolling acts, and I do not find there anything to assist me in deciding this case, except that it calls to my attention the fact that the act of 1864 declared that if any person should assault and kill an officer engaged in arresting any spy or deserter, the offender shall be guilty of murder, and upon conviclim "shall be Dunished with v,w" # tr # death/' and illustrates the proposition before made, that Congress, when it confers jurisdiction of a criminal offence, defines the offence fixes the punishment, and declares the court to try it. The case of O'Grady is upon tho act discussed here, and the points decided as gathered from the syllabus are: 1. That the case is not removable until the finding of an indictment. 2. That the right of challenge of the jurors is governed in such a case by tho laws of the United States. 3. That the guilt or innocence of the prisoner must be determined by the laws of the State. There is no question made of the ju* risdiction or of any other points than tho?e deeicided as above, and on none o -1 T f/\ A i flPft ir frAm 01 uiebtt UUi l iuviiuvu ww U.uv> ..v.? that court. I have endeavored in this discussion to adhere strictly to the points involved, but it. is proper that I should refer to a circumstance that ought to induce a very careful review of these acts removing for trial criminal cases commenced in the State court. They were passed in times of great politicrl excitement and during the most serious disturbances of the relations between the States and the government. Those of 1833 were recommended by General Jackson and adopted by Congress as a part of the celebrated "force bill," which was protrnlrnH hv the assertion of her sover ' eigoty by the State ot South Carolina, , known as'Nul'ificalion.' That of 1866 was adopted at a time when the fiercest i pasions notoriously colored the Iegisiai tion of,Congress, and constitutional * powers were stretched to the utmost 3 limit, if not transcended, to reduce - into subordination the conquered States f of tho South. It would be but natural i that we should find among the ucts t adopted at such periods and under suoh o influences, imperfect and unoonstitu eltiooal legislation. e1 [continued on fourth faqk.]