The case of Burwell Reynolds was continued until the next term of the circuit court of Patrick, and Lee Reynolds was sentenced according to law upon the verdict of the jury rendered in his case. Burwell and Lee Reynolds were remanded to the jail of Patrick county, the former to await his trial at the next term of the court, and the latter his removal to the penitentiary under the judgment of the court. On motion of counsel, who desired to apply for a writ of error, the execu tion of the judgment of the court was suspended for sixty days to afford an opportunity to apply for an appeal, but under this suspending order no application has been made for an appeal.

On the 15th day of November, in the circuit court of the United States for the western district of Virginia, then being held by Judge Rives, in the town of Danville, a petition was filed on behalf of Burwell Reynolds and Lee Reynolds, praying for the removal of their cases from the circuit court of Patrick county to the circuit court of the United States for the western district of Virginia for trial. The circuit court of the United States, or the judge thereof, “being of opinion that said petitioners had 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, directed said cases, upon the petition aforesaid, to be docketed in the said court for trial,” and authorized the clerk of said court to issue forthwith a writ of habeas corpus cum causa to the marshal of said district, commanding him to take the bodies of the said petitioners into his custody, to be dealt with according to law and the orders of the said United States court. And the clerk of said court was ordered to direct, in vacation, to the said mashal, a writ of venire facias for twenty-five jurors, qualified as such by the laws of this State, without distinction of race or color, to attend on the first day of the next term for the trial of said cases at the bar of said court. A copy of the order of the said United States court is herewith filed and asked to be taken as a part of this statement.

The marshal of the United States, for the western district of Virginia, or his deputy, armed with the habeas corpus above mentioned, accompanied with armed men, went to the county of Patrick and to the jail of said county, in the absence of the judge who had presided in the circuit court at the trials aforesaid, and in the absence of the high sheriff of the county, and demanded the bodies of Burwell and Lee Reynolds. With the display of the said writ and of his armed force, the marshal obtained the possession and custody of the Reynoldses and conveyed them from the said county, and from the custody of the State. I am informed that Lee Reynolds, the convict, and Burwell Reynolds, the accused, are now in the jail of Pittsylvania county, held by virtue of the warrant of the said United States court, or judge.

It will be readily conceded that unless there is some law authorizing and facts justifying the action of Judge Rives, a great wrong has been committed by him, under color of his office, upon the dignity of the State of Virginia and upon the jurisdiction of her courts. A more serious and flagrant invasion of State rights cannot be conceived. It is proper, therefore, that we should enquire if there is any law either authorizing or justifying such an assumption of jurisdiction and power. The Reynoldses were indicted for the murder of A. C. Shelton, in the county of Patrick, one of the counties of the State of Virginia.

Murder is a common-law offence, and being committed within the territorial limits of the State could only be tried under the State law, by the State courts. The United States Courts have no common-law criminal jurisdiction. This point has been decided over and over again by the United States courts, and even Judge Rives, I understand, does not claim jurisdiction for his court, unless that jurisdiction is conferred by act of Congress. He seems to have based his action upon the 641st section of chapter 7 of the statutes of the United States. (See Revised Statutes, second edition, page 115.) This section provides that "when any civil suit 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 or prosecution is pending, any right secured to him by any law providing for equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment, or other trespass or wrong, made or committed by virtue of or under color of authority derived from any law providing for equal right as aforesaid, or for refusing to do any act on the ground that it will be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant filed in said State court, at any time before the trial or final hearing of the cause, stating the facts, and verified by oath, be removed for trial into the next circuit court to be held in the district wherein it is pending," &c.

Let us suppose, for the sake of the argument, and only for that purpose, that the words "criminal prosecution," as used in the statute, meant and were intended to embrace any and all criminal prosecutions for common-law, as well as statutory offences. What then would have been necessary to divest the State court of its jurisdiction, and invest the United States court with its jurisdiction? Most clearly the accused must have been denied or could not enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, some right secured to them by the law providing for equal civil rights to citizens of Virginia, and as such citizens of the United States. What civil right had they in connection with the trial of the indictment against them which was denied them, or which they could not enforce in the circuit court of Patrick? It is alleged in the petition to the United States court that they were denied a negro jury, in whole or in part, for their trial, and that they could not enforce their right to have for their trial a jury of negroes, in whole or in part. Is a jury of negroes one of the civil rights which the citizen can claim under the act of Congress for the trial of cases affecting his person or his property? If so, has not every citizen, irrespective of race or color, the right, at all times and upon all occasions, to claim, as a civil right, a jury of negroes? If the negro, who is charged with murder, can, as a civil right, demand a negro jury for his trial, why cannot a white man, charged with murder, have the same civil right? If the laws of Congress have conferred this right upon any citizen, it has upon all citizens. Let us now see if there is any such right conferred upon any citizen of any color, race, or condition.

The law conferring civil rights will be found in chapter 24, page 347, Revised Statutes, second edition, section 1,977, as follows: "All persons within the jurisdiction of the United States shall have the same right in every State and territory

to make and enforce contracts, to sue, be parties, give evidence, and be entitled 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, penalties, taxes, licenses and exactions of every kind, and to no other."

Section 1,978: "All citizens of the United States shall have the same right in every State and territory as is enjoyed by white citizens thereof, to inherit, purchase, lease, sell, hold, and convey real and personal property.”

The rights of the white citizen constitute the standard erected by Congress for the ascertainment of the rights of all other citizens. In the trial of the Reynoldses was there any right denied to them which would have been accorded to the white citizen charged with the same or a similar offence, or which a white citizen, so charged, could have enforced in the State tribunals, which the Reynoldses were not permitted to enforce? If there was, it is nowhere alleged or proved in the case. The empannelling of juries for the trial of crimes in the State courts is not prescribed by act of Congress for any class of citizens-white, black, or mixed. The law of Congress no more prescribes as a civil right a negro jury, than it does a negro judge. In Virginia, under State law, the white man and the negro are alike liable to jury service-neither can claim as a right such service. Persons of neither color nor race are liable to jury service in the State courts by virtue of United States laws.

Then, as the right to a negro jury, in whole or in part, is not a civil right under the act of Congress, the refusal of the circuit judge of Patrick to quash the venire facias and award a new one, with instructions for negroes to be summoned, was not denying to the Reynoldses any right to which they were entitled. But it may be insisted by Judge Rives, that as the Reynoldses were entitled to a trial by jury, and that this meant a trial by a jury of their peers, that a jury of white men were not a jury of their peers, and that, therefore, they were entitled to a negro jury. It is sufficient to say in reply to such a suggestion, that neither the constitution nor the laws of the United States provide for a trial by jury of peers. The right to such a jury came to us from the principles of the common law and the bill of rights of Virginia, and these confer no jurisdiction on Judge Rives or his court. But can it be contended that uuder the civil rights bill and the views which Judge Rives takes of it, that the negro is not the peer of the white citizen before the law, or vice versa.

If a negro has the right, when charged with crime in the State courts, to demand, under the act of Congress, a negro jury, then, if a Chinaman, in the city of Richmond, should be charged with a crime, he would have the right to demand for his trial a jury of Chinamen, in whole, or in part, and as there are not Chinamen enough here to form a venire, the accused could not be tried at all. It will, perhaps, be said that these illustrations are extreme; that may be true, but they are perfectly appropriate and the conclusion logical. Judge Rives, in his order directing a venire facias for the trial of the Reynoldses in his court, directs that the veniremen shall be qualified as such by the laws of this State, without distinction of race or color. The venire facias, under which the jury was summoned in the circuit court of Patrick, made no distinction on account of race or color. If the Reynoldes

were entitled to a jury of negroes, why did not Judge Rives put in his order that only negroes were to be summoned? If the negro jury is one of the civil rights conferred by Congress, then the serving of a single white person will vitiate the verdict. If a negro jury is a civil right, then Judge Rives has failed to discharge his duty in not ordering it, in terms, to be summoned. If it is not a civil right, then he has transcended the limits of his own jurisdiction and invaded that of the State

court.

If I have succeeded in the establishment of the proposition, that under the civilrights bill, the Reynoldses were not entitled to demand a negro jury, the question arises how were they to be tried? Again conceding, for the sake of argument, and only for that, that their prosecution came within in the influence of the 641st section, above quoted, how were they to be tried? I answer they were to be tried as any white citizen of the State would have been tried, upon an indictment for murder in the county of Patrick. This is all that they could claim under the civil-rights bill, or under the law of the State. Now did they have such a trial? Was such a trial denied them, or either of them? The record shows that their trial was strictly in accordance with the law for the trial of all persons charged with such crimes. They do not object to any part of the proceedings except that relating to the jury. Upon looking to the statute of Virginia it will appear that the juries for the trials of the Reynoldses were obtained in strict conformity to said statutes. Sections 3 and 4 of chapter 17, of Criminal Proceedure, prescribes the mode for securing the venire. The 3d section is as follows:

"The writ of venire facias in the case of felony, other than where the punishment may be death, shall command the officer to whom it is directed, to summon sixteen persons of his county or corporation, to be taken from a list to be furnished him by the judge of his county or corporation, residing remote from the place where the offence is charged to have been committed, and qualified in other repects to serve as jurors, to attend the court wherein the accused is to be tried, on the first day of the next term thereof, or at such other time as the court or judge may direct. If more than two cases are to be tried at one term of the court, only two juries shall be summoned, unless the court may direct otherwise, and the juries so summoned may be used for the trial of all cases."

"Section 4. In a case where the punishment may be death, the writ of venire facias shall require the officer to summon twenty-four persons in the manner prescribed in the 3d section of this chapter; and in any case of felony, where a sufficient number of jurors for the trial of the case cannot be had from those summoned and in attendance, the court may direct another venire facias, and cause to be summoned from the by-standers, or from a list to be furnished by the court, so many persons as may be deemed necessary to complete the jury. If any person summoned under any writ of venire facias authorized by this chapter fail to attend, as required, without sufficient excuse, he shall be fined by the court not less than five nor more than twenty dollars."

When Judge Treadway opened his court the venire had been summoned according to law. No objection was made to the pannel except that they were not negroes. If the accused had reason to believe that the jurymen were not impartial,

or that they were influenced by local prejudice against them, an application for a venire from another county, or a change of venue, could have been asked, and if properly supported by affidavits would have secured the favorable action of the court. Nothing of this sort was done. Judge Treadway was not authorized to dismiss the venire summoned according to law, merely because the accused desired it. He had nothing to do with the preparation of the list of jurors from which the venire was summoned. He conformed strictly to every requirement of the law, and yet Judge Rives has, in an order entered upon the records of his court, declared that the accused had 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." This is a very grave charge to be made by any respectable authority against the integrity of the State court, or of the distinguished and experienced judge holding the court. Let us now consider the question as to whether the prosecution against the Reynoldses was such a prosecution as is contemplated by the aforesaid 641st section of the United States Revised Statutes. I think it was clearly not such. The prosecution therein contemplated evidently was one growing out of the civil rights-bill, connecting itself in some way with the newly acquired rights under that bill, or a prosecution arising under the State laws which did not apply to white persons, or conducted in a court different from that in which a prosecution of a white person for a similar offence would be conducted-of which laws or class of laws there are none upon the statute book of Virginia. To illustrate: Suppose the State law had provided that upon an indictment for murder against a negro the trial should not be by jury, but by a court of oyer and terminer. In such a condition of the State law, discriminating between the colors or races of citizens, the section of the United States statute would have applied. But where the offence is a common-law offence, triable and punishable by the State courts and under the State law applying in the mode of trial and in the quantum of punishment to all persons without distinction of race, color or previous condition, there can be no ground or excuse for the intervention of the United States courts. Upon this point I beg to refer your Excellency to the case of Texas vs. Gaines, 2d Wood's Report, p. 342.

In West Virginia, in Strader's case, it was held by the supreme court that a negro was not entitled to have his case removed into a circuit court of the United States, even though according to the laws of West Virginia negroes were not allowed to sit on juries at all. These two cases are referred to by Mr. Wm. Green in a communication addressed by him to the Dispatch on the 10th of Decemberpresent month. In the case of Blyew vs. United States, 13 Wallace, p. 590, Justice Strong (delivering the opinion of the court) says: "It must be admitted that the crimes and offences 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 section, conferred upon 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 as causes 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." This last case is cited to show that the right denied must be