The Ku-klux Force Bill

In passing tbc statute popularly known a the Ku-Klux bil , CongMM lias ! icssiilly entered upon a new field of leislation, in that it lias assunicd the flirt time to takc engnizanee of and próvido lor the puniabment of acts of violenco to the persona and property of private citizens. The bill is artfully drawn, and its intent is veiled in language pdrposely vague and verbose ; but still its design is plain. It means that persons guilty of homicide, robbery, arson, mayhein, ass mits, and the lflte, may be brought within the jurisdiction of United States OOttrts, and be punisbed by United States authorities; it means this or nothing. We are familiar with its historieal origin, with the avowod purpose of its authora, and with their diligent care to concoU and yet to oooompuah their end by the tricks of languuge. In the liglit of these facto, it is our design to examine into the validity of this statuto. Befare proceeding to discnsi the central idea of the whole legislarían, and the essentiul features in which thw idou has leen expressed, we munt dispose of certain other portions which are ratiiez auxiliary than nerensary. Xhe iirst sectiou is piactically of no itnportance. It is logioally tlits statement of a truism. It substantially enactg that whoever violutes the Constitution shall bc amenable to ceitaÍD penalties; lmt it does notdescend to partieulars and describe the acts aud defaults which shall constitute such violation. If the statute eonsisted only of this section, it would be equally harmless and valupless. The pecond soction contains two iliiierent jjrovisions relatinj; to different subject-matters, and depemlinp; ripon different ])rinciples, although th!y are frr.unmatieally united in one sentenee. Tiie tirst declares that eert dn enuraerated acts of resistence and hostility to the authority of the United States, to its lawg, and to its means and measures of administration, shall be eriTues, and that the offenders shall be liablo to indictment, trial, and pnniahment in the national eourts. Thi.s clan.se is, bevond all question, valid and proper. It is tobe ranged in the game olass with the statute which makes it an offense to obstruct the transportution of the mail. It bas never been doubtod that) so far as Congrega may legisláis, it may ent'orce its laws and protect the om'eers of the Government in their administration liy penal enaetments. Although the statute under consideration is entitled " An act to cacry into effect and to enforee the Fourteenth Aui8iidinent of the Constitution," the third seotion must be partially, and the fourth section whoily, referred to other portions of that iustrumont. We here collect all the constitutional provisions to whieh they cao by possibility relate, and vhich can by possibility be considered as their foundation. " Congrcss shall have power to provide for calling forth the iiiüitia to execute the laws of the Union, Buppresa msurrections, and repel invasions" (Art. 1., sec. 8, 15). "The Tiiited States shall protect eaeh of [the States] against invasión, and, on applicution of tho legislature eannot be eonvened, against domcstic violonoe" (Art. IV., sec. 4). " Tho privilege; of tho writ of habeas oorpus shall not be suspended, unless when in cases of rebollion or invasión the public safoty may require it" Art. L, sec. 9, 2). The third section undei review enablcs the President, under circumstances therein describcd, in cases of " insurroction, domestic violónos, unlawful combinations, or conspirados in a State," which aro to bc dirocted against the authority of that State, to suppress the same by tbc military, or othorwise, as ho may deom proper. For all this there is no support in tho clause above quoted froiu tbc eigfath section of Article I. That clause provides in tcrms for enforcing laws of the Cnitcd States by the militia, this statute provides for the enforcement of State laws by the military undcr tho direction of the President ; the insurrections spoken of in that clftuse are, from tiic context and from tho expresa provisión foumi in Article IV., xlinly to be thoso against the United States, while Üiis statute purports to arm tho President vith power, on his oifn motion, to suppress insurreetions against a State. But thero is a dimculty of far greator magnitude - a tiolation of the fundamentni iaw fav plainor and more dangerous. This third section ennbles the President to supprcss not oly " insurrections," but "doinestic violenco, uñlawful coinbinations, and conspiracies," by means of the military. These latter torms were not inserted without design. They describe somothing less than insurrections ; they descend in magnitude and criminality until they end in conspiracies, which may perhaps be attended by no overt act, no outbrtak of violence. While, therrimv. the Constitution only permita a calling out of the militia to supprcss insurrections, which are, in fact, incipient wars. Congress has gone to the length of empowering the President to use the military in time of peace in putting down mere domestic violcnce and in breaking up conspiracies. It is plain that this section ot the statute finds uo warrant in the clause quoted from the first articlo of the Constitution, although it is probable that the ingenious author of tho bill artfuliy chose his language, so as to make it appear, by the use of the word " insurrections," that there ws a solid basis of validity for his proposed enactinent. Nor can this section be rested upon the fourth article of the Constitution, although that article does not require that an ir.surrection should be in progress, but makes it the duty of the United States Goternment, under certain circumstances, to protect a State against mere domestic violencft. This duty, however, can only arise upon the happening of one or the other of two cu ■itiii;:cncics: either the State Lejjialature must upply for aid, or the 8tate Governor, when the Ligisliiture cannot be coiirenecl, must apply lor aid. This parenthetical and. conditiotial olause nicans somuthing ; it is tho key to the wholo. position ; it describe the sole occasion ow which the national govemment may interfere with tlio function of maintaiuirig io;aestic quiet which noTnially belongs to the Btates. We lemark, in "jK'ssing, that it ia only by giving t'all and ftffirmative foroo to another and similar parenthelioal and conditional clause that Congreaa aoquires tho right to Buspend the writ of habca3 corpus undor anv ciicuiiislancos. Congrei utterly ignorcd this necessary limite, tion, has treated the constitutional provisión p.s thouglj it flid not exist, aud as though the article rcad " tho United States hall protect each ot' the States agaibst domestic violenoe." There could be uo plainer departure from the fundamental principies of the organio laW, no olearei viola tion of its express prohilntorj' elauses. The fourth seotion of tho statute is cvi dently based upoil the olause of the Oon stitution relating to the suspension of th ■writ of habeas corpusi As thero is no preteilse of an invasión Congress ha undertaken to define a rebellion. II' In Ilion is a word well known to all writor tipon public law ; it has a ell-ii.ice tnin Ion and precisa incaning, and describos positive fact and not a fcheory or supposi tion. Cóngrew, however, bas nowdöclar cd that several different cireümstances ar conditions, not united but each sepuriitely, shall constituto a rebellion - namely (1), when any of tho " insurrcctions, domestie violeuce, coTfiMï!ftions, or conspiracies" alroady montioned shall bo so powérful as to bu ablo to set at defiancc the auth irities of the State or of the United .States, or (2) whenevor the authorities of' ÜM State shall boin complicity-with, or shall donnive ;it, tho pnrpoees of such coiubinatitms, and the public safety in suoh State shall thereby becomo impracticable. In each of these alternativos, tho combination, violenco, or conspiracy shall be dceinod a AftteUion against the United States, aiïd the President may suspend the privilege of the writ of habeas corpus. The Coustitution uses tho word rebellion ïzi the sense recognized by all jurists. Congress c'annot oh uige this mcaning, because it cannot chango a tact ; it eannot mako that a rebellieo which is not a rebellion. Eebellion is war - war no lonsjer incipient, lmt aotual ; it is a condition in which all civil odministration is suspended or overthrown, and naticm most, tbr the timo and in the district infeoted, employ it military arm alone to overeóme thè, iusurgent enemies of the government. It should be remembered that Congress oannot inaugurate a civil war. That state ,f hostilities must be oommenoed by the rebels, and must have developed iteelf into a war bofore the peculiar power conferred by the Constitution beconie operativo. But this statuto contemplates no lucn state of active hostilities. It makes, imong otbei alternatiTes, domestio vioienoe, unlawful combinations, or conipiraoies, with the purposes of which the State üuthorities are in complieity 01 Ht which fchey slüUl connive, a rebellion igainst the United States. No war is leècribed here, nor even any resistancc to the national authority as such, bocause the combinations, violence, and conspiracies spoken of are to be in opposition to State laws alone. It needs no further malyais of thia section to show that it cannot be sustained by the constitutionul provisión which declares uuder what cirumstances the writ of habeas corpus may be suspended. Congress cannot, by any mere array of words, make that exist which does not exist in faot. Ithasbee A that these several pr.visions were copied l'rom an oarlv itatute, pussed in 1793, authorizing the President to cali out the militia in certain cases, and that the Supreme Court lias decided, in a caso arising under it, th:it tli" l'vosidont possesses an unlimited knd final disoretion over the "rrhole matter }f employing the military foree. Nothïn; could be more untrue. The statute of 1705 was carefuUy drawn, soasto comfly with the very letter of the Consti.u;ion. It simply deoiared that " heaever ;he United States slrtll bo invaded it shall be lawf ui tor tho President to c.il out the militia," &o. ; ;;lso, in case of an msu-rreetion in any State against tho ovomment thereof, it shall be lawful for ;ho President, on application of the Legislatura of such State, or of the executive when the Legislatura cannot bo convened, to cal] out the militia," &c. ; also " whenever the laws of the United States shall 30 opposed, or the execution thereof obe suppressed by the ordiriary course" óf udicial proceedings, it shall be lawful for the President to oall out the. militia," &c. All this was plain, accurate, and in exiict conformity with the organic law. The case referred to was Martin r.-. Mott (12 Wheaton's K., 19). The President, during the war of 1812, having oalled out certain portions of the militia, a person subject to the cali refused to appear. Being tried by a court-martial and fined he brought an action against the officer who collected the fine, alleging that thóre was no necessity for tho Prcsident's action. The Supreme Court decided that, under the statute, the President alono could detennine whether a cali of the militia was neeessary, and that lus disoretion over this particular subject was absolute and final. The statutu did not assume to define an invasión nor an insurrection, nor did it confer upon the President any such funetion ; much less did it authorize him to decido that to be a rebellion which is no robellion. The court went to no such absurd length. It simply and propcrly held that when the United States shall be invaded, the President alone, by virtue of this particular legislation, must judge whother the use of the militia is neeessary. How different frora all this is the statuto under review. Our President, is not now called upon, during the existence of facts patent to all uien and which cannot bc controverted, to determine simply whether the employment of the military and the suspension of the writ of habeas corpus are expedient ; he is to pronotince pon the nature and efficts of the domesïc violence, combinations, or cocspiracies, nd to decide whether the State authoriies are unable or have failed to protect ie people, and whether they are in com)licity with or connive ut the unlawful jurposes ; he is to passjudgmentupon the iets and dofaults of State governors, udges, sheriffs, and juries, and find them o be aiders and abettors of violenco, diected not against the authority of the Jnited States, but against their own local aws ; by his fiat he is to raise this domesic violence to the dignity of an insurrecion or a rebellion against the nation ; he s to make that a war which is no war, and to follow up his decisión by the exreme mcasures only designed for the uppression of actual hostilities. He is, n fact, to be a dictator. Never in the jolitical history of the country has so dieet a blow been aimed, under color of egal authority, at the supremacy of the íonstitution, or a precedent been -st;ilished so dangerous to freo institutions. ITS CIVIL FEATURES. We aro now preparad to examine tlie central idea of the whole lefpslation, and he easentíftl features in which that idea has been expressed, to which the portions already described, however important and süirtlhiíí, ''re auxiliary rnlhcr than necessary. ïhis central idoa deyelops itself into a plan by which the United Statea oourta may t-xerciso full criminal and civil juvisdiction over any and all acts of violenoe to the persona and proper ty of private citizens by which, in short, Congvcss and the national tribunals may assumeand wield i complete pólice p_owei throughout the Stai.es. Tliis is evident trom all tho remaining clauscs of the statute. They aÜ provide, onder many artfulinvolutionsoïlangiage, that conspirocies and ootnbinatione for the pur]).;se of depriving persons of their rights and rriviles;c!S or of tlic cqual protection of the laws, stiall be crimes against the l'nitcd States, punishablo by its tribunals; and that, when any violence or injury is dono to person or property in the furthorajic.fi of such a conspiracy, the offehder may be sueil for datnagea in tho Unitod States oourt. ïh tliiid seotion, in terms, enacts that in all cases of such conspiracies or combinations, if the Btat4 outhorities shall be unablo, or shall refuse, to protect tho peoplo in their rights, " such facts shall bo deenied a denial by such State of the equal protection of the laws," and the I'rosidont muy thereupon employ the military, and tho offonders nrrust.ed shall bo delivered to the civil iiuthorities of the United States, to bo dealt ■with acoording to law. All this can only ïnéan that the i rirrtin;ry cntnds rf vioboïïrt) committcd Ihroughont tbo States, and the ordinary trespasses "to person or property, are justiciable in the national tribunal. The extremo caro with whicli the word conspiracy is overywhere used! does not change this resúlt. A conspiracy is in no way esseritially different from au offeuce done by ono, or by many, without concert. A conspiracy to if consummated, is only iuurder ; it simply involves more than one guilty porson, and, after the union in criminal pnrtioses has been established, rnakea eadk participant responsible for tlic oTflrt ucts óf the others. There is no legal magie in the word donspiracy, no power to confer jurisdiction, and no strength is added to the statute by its use. If valid now, it would have beeU eqüsDy valid had its penalties boen applied in tomas to acts of violoncö dono by single fterrtfifö Tho main argunií nt which has beon employed in support of the mensure is tho following : The supremo govemment in evóry nation must be assumed to have full authority to protect its owri cttiios in. heir lives, persons, and property, for that is the final object of all good govemment. The United States is no exception to this rule. Eve'i if the Conxtitution contain no expross grant of' power, such power must be impiiod in the very existence of the nátion and ifs government, and caü only be wiekted by the national Legislat are. would be a eontradiction in terms to that wliile tho United States muy legally use all measures to proteot its citizens abroad, it is powerless to afford thent any protoetion at home. It is now conceded that th: very idea of anation involves the power to use and the necessity of using all meiins for selï-pr.servation, and for tho ■ame reason, and to the same degree, does it involve the jowor and necessity of using all meaaa for the protoetion of citizens. Th(i statuto is based upon and is fully supportod by these political truths. We have thus fairly given tho argument, and have certainly not dirainished its foroe by out statement. The premiso upon whioh it rests we fully concede. It is an axioin of political jurisprudence, that the goverament whioh exercises sovereignty in a nation must liave authority to proteot the citizens at home and abroad, and the United States is no exception to this rale. But the difficulty in the argument - a dilnculty wliieh eannot be obviiited, and which destroys its entire forco -is that, by the Constitution of our own country, no single govemment is clothed with the complete functions of legislation or of adniinistration ; none exerciseg the complete sovereignty which the peoplo alone as an organic whole possess, and which they alone can delégate. The exereise of a laige part of this sovereignty and, so f'ar as ïiatiomil purposes are concerned, the most important part, has been exclusively eommitted to national governm int. The exeroiseof another largo part which peculiarly relates to all domestic matters, the rights of person and property, bas boen in lihe maniier exclusively (■(.iimitted to the governnients of the separate States. . Witten their respective spheres, these two classes of governments are as independent as though they reprosented different nations. The Supreme Court has repeatedly affirmed this doctrine in tho most solemn and effective miuiner, and only within the past few weo.ks bus reiteratod it with an emphasis whioh oan not be mistaken, and applied it to abridgo the national attribute of taxation. It makes no difference with the truth or the appHcation of this principie what tlieory we adopt as to the origin of the Constitution and of the natiori ; whethur we consider the nation as a union between omginally independent States, and the orgunic l;iw ;is an assemblage of powers delegated by them ; or whetherwo oonaidertke people as from the firstasoyereign unit, and the natiotuü and the Stati ijovernments as cqually their handiwork, the same practica] resnlt must follow. Beoanse the United States government is the solo representative of the country to tlie whole world, the function of' protecting the citizen whilo abroad was exclusively confided to it. On the other idY'lAvHÍVyi'jwot'-xuvfiffintr Ümt -i + Jrity, property, and order, by legislatioñ, and of enforciiiii these laws in the conrts, was ex( lusiv, It coniided to the governïuent of each State within its own territory. For that territory, and for its inhabitants, it was made the solo depositary of the people's sovoreignty so far as respects the private rightsoi' lite, person, and property. This is confessedly the theory upon whieh the Constitution is constructcd, and from this theory the Supreme Court has never departcd, and the CoDgress had nevez dsparted until now. It is not claimed that without the fourteenth amendïnent thero oxists any clauso of the Constitntion whieh, either directly or impliedly, authorizes tho legislation under review, and we now see that the argument which linds the authority in the very notion of a Bupveme governmont is a fallaey, becaúfo in regard to this very matter of internal protection the national govemment is uot supreme. We are brought, thorefore( to tho fourteenth amendment, and, in order to discover its legitimate efl'ectsj must first ascertain its design and the evils it was iötended to remove. Prior to its adoption, classes of citizens within a State might be exposed to injusicc and oppression from the local legislation. The hcnsive bilí of rights contained in tho first oight amciulnicnts applied to the action of Congress alone, and did not control that of the States. If opprossive and discriminating statutes were passed by the State Lrgislatures and upheld by the Bta'c courte, the injured partios were remediies8, becuuse the Suprenie Court of the United States could only expound theS'3 laws ondel the guidance of the construction put upon them by the local tribunals. This was a great evil, and there was danger lest it rnight becoine greater. To remody it, the fourteenth amendment was adopted. This was the sole design of that most just and beneficial change - achange which brought harmony and unity to onr entire governmental systern. The amendment says, in a few plain words, which admit of no nice and tcchnical consti iction, "Ko State shall mako or eiimrco any law which shall abridge the privileges and inimunities of citizens of the Unitod States, norshall any State depri vo any person of life, liberty, ör property without dueproccssoflaw, nor deny to any person within its jurisiiction the equal proto.ction of the laws." The State is here directly addressed and limited, and not its private citizens npritsconstituteil authoriti. s. IIow can State viólate these prohibitionsV Certainly in no other way than by an orgauic act, and the Legislutuic, bi'ing the supremo power in ftBtftte is its sole orgauic rojueseutative. In other words, the only n y possible tbr a Stie to viólate this amendment, the only way powible fot the amendmeat to beViolated by nny one, is by the passage of a law in conflict with its mandatos. The sole effect of the amendment upon such a law is to it utlerïy nuil and void. This particular provisión of the orgnnic lawneeds no legislation to enforce it; it enforces itself ; its effects are feit direetly and at once; it is exactly similar in this respect to tUi olauses which forbid the States i'rom passing bilis of attainder, or e.rpostfaclo lawp, or laws impairing the obliga"tion of contracts. The only department of the government which it can over cali into action is the judiciary. AVe must now compare this resmt with the stiitute which Congress has seen ñt to pass. This statute is not directid against an y State laws, and is not based upon the assumption that they are iiuproper, unjust, orvoid. On the contrary, it concedes 'their correctness and validity, and aim3 all its penalties against private citizens who break them. It has to do with acts of private violence, and declares them to bc not only a denial to the partios injured of the cquul protection of the laws, but a denial made by te vei-j' State whose authority is outragi d. In one portion it is cxprossly said that if the constituted authorities of a State- that is, the governor, iudo-es, sheriffs, &c- shall fail or be unablo to protect the people, such faot shall ■fee deemed a denial by such State of thé rqüal protection of the laws. The othe pWrHon rtquir no uoh fficial (icfnult. b t -'ii'i't no such deflniöon, and are aimed - al (i rongs done bj individunis. Itisn monstvous perversión of loga] lánguage and legal thought to maintám, aa this siatute doos, that any violenoe oï wrong done by private eitizons, eitbor singly orin numbors, either witii of without concert, oan constituto thd ionial of tlio oqu;il protaction of the lawa oontemnlated by tli' fourteenth - ',v,-r done to person orproperty ii so i'ii' as in jury ie eoiaïnitted, a deaial to theportj i otion which i ■ laws lil'.il. If thorefore, the positioii assnmud m this gtatate be correct, trssa and the national oourta may, with i'ouitl propriety, draw to themselvei furiadiction overall crimos, and bi tin' solo guardians of order, the depositaties of the pólice anthority. Ny, thoy 1:1 ;y, acoording t wcll-söttlcd rulosoí constitutional oonstruoüoo, oust (!ie State govommente and State tribuíais of all jurisdiction ovei tho subject matter, and thus establish a oentralued administra tion. In fact, sucli is the logiooland nrcossary tendsney and rcsult of the statute. It is no li Btonatronsto impute feo a State in its organic chiucaetor tho defoults minóapaoities uf aaj oi Lte exocmiive otjndicial officen, and i oaaot the Él that guch dfíiiults slüill be a positive dl nial by the State of oqual protectioa Constitutional authority and jurisdicticm oan not thnsbo denied by a Lying quibbli The foregoiug oareful analysis was nee etsary to demónstrate in a olear manne the invalidity of all the rmpottant and piactioal provisions ot' this ncw moasure. 'To som up the resul ts: Tu statut molaU the k tter of tht ( 'oruttitutwn by èU ■ laring that to be a rebellioii agmnxt tht Unittd 8i ichieh nothing more tkan violtM to indi eiduaU, mul '.y itrntiltti.il iht ir ril r' hnbeux corpus tobe ttuptndtd in tim of peace ; by mthorizing the '■■ tideni to emplm the uilitunj fnrft .1 ; ,-, repreienting op mtion to State litirs without ' ttionfrom State au thoritie ; extending the prohOñtiont of tlie tiiii-!iiti'!i amendmsnt to mm of privatt wrong; cm- by dothing tin' national court with jurisdietvm mar ordinary erimes and wilh tlusfunrtion of ordütary pólice reprisskut. It viólate the ent re pwü of the C'onxtitution by conj'crrinrj upa,, Président in time of jicate n uiililunj discretion which belongs to him only as Oonmand r-in'Ohiefm time of actual nar; and by destroying the neparate - nlthongh subordínate - indêpi ná of the Staten icit'hin tht ir amropria whick wasfirmly sttabtuheu ii thé Oonstittt tion as anessentid! fen'tiri of our institutions.