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Vol. II.)

CHARGE OF EMMONS, J.

(No. 5.

and of little importance to the great mass of the colored race in their present condition. The right to pass from state to state and to the national capital ; to protection upon the high seas and in foreign countries, and a few others, were stated as illustrations. The great body of our civil and political rights, that of acquiring and enjoying property, real and personal, to exercise trades, attend schools and churches, to be protected against personal violence, and enjoy the freedom of opinion, were declared to rest entirely under state protection, and were not included in this amendment.

In reference to the first proposition that the power of Congress was not called into action under this clause until the state, through its political power had violated its provisions by passing, or attempting to enforce some law, obtained the unanimous consent of every member of the court. We do not understand that this is anywhere questioned. This legislation, therefore, when no such exigency has occurred, is without authority, and it is our duty for this reason to advise you not to find an indictment for a violation of its provisions.

The second proposition, affirmed by a majority of the court, just as conclusively establishes the invalidity of this law. The character of the wrong done -- that of excluding a citizen from a hotel and a theatre - is not such as Congress has any right to punish. They, say the supreme court, are violations of such rights as attach to citizens of a state, and do not belong to those which he enjoys as a citizen of the United States. It is this latter limited class of rights only which the fourteenth amendment protects. Within this judgment, therefore, there is no power of federal

. legislation to provide penalties for the violation of any privilege save the few which are enjoyed peculiarly under the federal Constitution. The right to go from state to state, to visit the capital, and other national privileges, Congress may protect. All others, among which are the rights claimed to have been infringed in the present instance, are beyond its control. For this additional reason, the law which attempts to protect them is void for the want of power in the body which passed it.

The Slaughter-house Cases were well calculated to have elicited a different judgment, if the court had not felt constrained upon principle to decide it as it did. A state law had substantially interfered with the trade and calling of a large class of citizens. Every butcher and dealer in meats over a widespread territory were compelled to pay an onerous tribute to a single corporation. But their right to carry on a trade, to acquire and dispose of property, was held not to come within the protection of the fourteenth amendment. There was no middle ground for the court; they must hold either that it completely revolutionized the whole theory of our government, and transferred to federal control all those rights hitherto alone protected by state laws, or hold, upon the other hand, that it referred only to the few privileges secured by the national Constitution. That court in the same volume applied the same principle where a woman in Illinois was rejected as an applicant for admission to the bar. It again decided that such right was not one of the immunities protected by the amendment. In 18th Wallace a state law having deprived a citizen of the right to sell what he owned and possessed, it held that the selling of property was a privilege and immunity protected by state laws and constitutions only, and was not protected by this clause.

Vol. II.)

CHARGE OF Emmons, J.

(No. 5.

With the fact that this interpretation was equivalent to expunging it from the amendments altogether, we have nothing to do. It is true unquestionably that any violation of any privilege or immunity protected by the federal Constitution, by the state, could be punished and redressed by Congressional law before the adoption of this amendment. As now judicially read by the court of last resort, it leaves the organic law in this regard precisely where it was before. It is one of those constructions often resorted to, to prevent consequences serious and revolutionary, which courts believe were not contemplated by legislatures who pass laws, and by the people who adopt constitutions.

We do not deem it indelicate to express our sympathy with that large and respectable class of our fellow-citizens, including beyond question a majority of the more conservative Christian gentlemen of the South, who regret that there exists nowhere, in either government, state or national, the power of punishing those mean and cowardly murders which are so frequently disgracing our civilization before the world. Although we have carried the doctrine of local government in township and county organizations to a great extreme, we find in all its ordinary administrations most beneficial effects. To its universal application, however, most statesmen now agree there should be some exceptions. In no country but our own is the discreditable fact true that where murder, cruel and shocking outrages, are perpetrated by a dominant party in a narrow region of country, there is no power of punishment, save through the impracticable instrumentality of those who have either committed or sympathized with the crime. When conspiracies and combinations against the property, well-being, and life of classes or persons in the small civil divisions of our country include large portions of the constabulary, the magistracy, and the jurors grand and traverse, the inevitable consequence must be that the offences they commit, or with which they sympathize, will be perpetrated with impunity. Unless our statesmen, state or national, create some jurisdiction of wider scope and which will authorize indictments and trial beyond the narrow limits, a majority of whose citizens abet the crime to be punished, the nation must still submit to the disgrace of yearly additions of mean and courage-wanting murders of the innocent and the helpless, without the slightest infliction of any legal penalty upon the offenders. It has been our painful duty in repeated instances to charge juries that the federal court had no cognizance of offences where crimes so cruel and shocking have been proved that court, jury, and audience could scarce refrain from tears of sympathy, and where the elegantly dressed, socially well connected, and shameless murderers had, in the communities where they had shed innocent blood, not only confessed, but boasted of their crimes, and who had either not been indicted at all, or when tried, had been acquitted by juries, their coadjutors in crime, amid the acclamations of their co-conspirators. In a very recent case it was proved that a young man of wealth, education, and most estimable moral character, was shot to death at midday in his own house by a band of ruffians, for no other reason than that he had acted as the chairman of a committee to wait upon

the governor of his state to solicit his action for the protection of the negroes of his county who were being driven from their homes, their houses burned, and themselves murdered by the lawless conspirators by whom he was

Vol. IE.]

CHARGE OF EMMONS, J.

(No. 5.

killed. The mock trial by which these infamous offenders were triumphantly acquitted was a still greater stain upon our civilization than the monstrous crime it affected to try. It is believed by many of our best citizens that there should be here, as in every other government on earth, some power to bring such wicked men to justice outside of, and uncontrolled by the wills and hands, which have united in their atrocities. As it does not now exist, and as no attempt at alteration is made by the state powers, it is natural that all those whose hearts are not of flint, and hope to be blessed and prosper as they do unto others as they would that others should do unto them, should strive to the uttermost to find the source of protection in the federal Constitution. In the present condition of public opinion the remedy should, perhaps, be sought through the political action of the state only. I have but small sympathy with the right of the negro to see the immodest and vulgar display in the ballet-dance, which in modern times so universally disgrace the best theatrical presentations. I would have selected some more precious and beneficent privilege for protection, if the power had existed. We turn from this almost grotesque exercise of national authority, and express our regret only that it cannot be exerted to protect from pillage and murder the humble homes of those peaceful toilers, who quietly and inoffensively labor to support their wives and little ones, and who do not officiously and distastefully thrust themselves in the face of those lighter and less reflective portions of society so frequently found among theatrical audiences. We believe the actual history of this unhappy question demonstrates that where no legal force or constraint is used, the lady and gentleman of solid position and real cultivation are least annoyed by his presence when he is really worthy and cultivated. That when left unstimulated by foreign and wicked influences, his own good sense, guided by public opinion, keeps him in his proper position as uniformly as all other classes of society.

A recent judgment of one of the learned justices of the supreme court, after enjoying the benefits of the elaborate arguments, and participating in the dissenting opinions in the Slaughter-house Cases, still affirms that violence upon the negro, simply because he is such, finding its sole animus in his race and color, may be made penal by Congressional enactment. This utterance suggests what otherwise we should have deemed impossible, that the supreme court may still find in the thirteenth amendment which abolishes slavery, or, the first clause in the fourteenth, which creates citizenship, so much incidental power to protect what they create, as will sustain a national law punishing the crime, where life, liberty, and property are violently taken, solely on account of the race and color of the party injured. Our sympathies are in that direction. Could we see a plausible path, leading to such ground, after what that court has said, we would gladly stand upon it. But so demonstrative appears to us the arguments, in view of the judgments of the supreme court already rendered, that a crime perpetrated by one citizen of Tennessee upon another,

, when it consists in the violation of some right which is enjoyed solely as the citizen of the state, and depends in no degree upon the national Constitution, that we feel at liberty to give no different advice.

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An averment that the defendant, in consideration that the plaintiff, to whom a third per

son was indebted, would forbear to collect his debt, promised to pay it, is to be taken as referring to forbearance to collect of the original debtor ; it therefore describes a collateral undertaking, upon which no action can be sustained without proof of a

written note or memorandum of the agreement. It is as much a violation of the statute of frauds to prove by parol testimony an essential

part as the whole of an agreement, of which the statute requires a note or memoran

dum in writing The rule of law which authorizes the maintenance of an action upon a verbal promise to

pay the debt of another, made upon a new and independent consideration, moving beiween the plaintiff and the defendant, for the purpose of copferring a benefit not upon the original debtor, but upon the promisor,.considered, and held inapplicable to

the existing facts. A promise to pay the workmen in a shop, made as a part of the consideration for the

purchase of the stock in the shop from the original debtor, which does not name the workmen, or mention the sum due to each, or the gross sum due to all of them, though not invalid because the consideration moves wholly from the original debtor, if subsequently assented to by the workmen, is insufficient to entitle them to recover the respective sums due them.

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AssuMPSIT, by Charles E. Lang against John J. Henry, on the common counts, with a special count, alleging that, on September 25, 1869, one Charles A. Lang was indebted to the plaintiff in the sum of $200, and the defendant, in consideration that the plaintiff would forbear to collect the claim, promised to pay him that sum ; that the plaintiff did forbear, and the defendant thereupon becaine liable to pay.

It appeared that before August 21, 1869, Charles A. Lang, a son of the plaintiff, had been engaged in the manufacture of shoes at Boscawen ; that on that day the defendant, who was a commission merchant in Boston, purchased his entire stock, and took a bill of sale of it, as follows: “ Boston, Aug. 21, 1869. John J. Henry to C. A. Lang, Dr., for the following goods at Boscawen, N. H., partly finished and to be finished by said Lang, but at the expense of said Henry, and according to his directions. [Then follows a list of the goods.] Received payment, Charles A. Lang."

The plaintiff claimed to recover a balance due him for work done partly before and partly after said August 21. It appeared that after the sale the plaintiff continued to work in the shop in which his son was engaged in finishing the stock, but he received, from money furnished by the defendant, more than sufficient to pay for the labor performed by him after August 21.

Charles A. Lang testified that, at the time of the sale of the stock to Henry, the understanding was that Henry should pay the balances due the workmen. This the defendant denied, and there was no evidence of

Vol. II.)

LANG v. HENRY.

(No. 5.

66

any understanding or communication directly between the plaintiff and the defendant on the subject, except as contained in the bill of sale.

He further testified that, in September following the sale, the workmen in the shop became uneasy about their pay; that he went to Boston to see Henry about it, who gave him the following, which he authorized him to show to the workmen :

Boston, September 25, 1869. “ Chas. A. LANG :

Dear Sir, - In relation to your workmen's pay, have no fear; they shall be paid for all their labor on the shoes made and sent to Yours truly,

JOHN J. HENRY." It appeared that this was shown to the plaintiff within a day or two afterwards, and no suits were commenced, and about $1,200 worth of shoes, then finished and in the shop, were immediately, and, as the plaintiff claimed, in consequence of this letter, forwarded to the defendant.

There was no evidence that the plaintiff ever released his claim for labor prior to August 21 against Charles A. Lang, or agreed to take the defendant paymaster for it, or that the debt was in any way extinguished.

The gronnds upon which the plaintiff at the trial claimed to be entitled to recover are stated in the opinion of the court.

The defendant moved for à nonsuit, on the ground that there was no competent evidence on which he could be charged for the indebtedness of Charles A. Lang to the plaintiff, which accrued prior to August 21, 1869, under the statute of frauds, and that there was no evidence of a substitution or novation; and the court, being of the same opinion, ordered a nonsuit, and the plaintiff excepted.

Barnard, for the plaintiff, made an elaborate argument. The positions taken by him and the authorities he cited are considered in the opinion of the court.

Sanborn & Clark, for the defendant, besides cases referred to in the opinion, cited 1 Pars. on Cont. 188 et seq.

HIBBARD, J. I. It is not disputed that all the labor which can be said to have been performed by the plaintiff for the defendant has been paid for in full. But the plaintiff claims to recover for labor performed by him for Charles A. Lang, the plaintiff's son. The court having ordered a nonsuit, the question for our determination is, whether upon any evidence reported the jury would have been authorized to find a verdict for the plaintiff if the case had been submitted to them.

The plaintiff at the trial appears to have relied wholly upon his special count, and it is obvious that he is not entitled to recover on the common counts. The agreement stated in the special count is, that on September 25, 1869, Charles A. Lang was indebted to the plaintiff, and the defendant, in consideration that the plaintiff would forbear to collect his claim, promised to pay it ; that the plaintiff did forbear, and the defendant be

: came liable. A good cause of action is here set forth, but the promise as stated must be deemed to have been a promise to answer for the debt of another in consideration of forbearance to collect it of the debtor. It has been truly said, that the conflicting decisions of respectable courts, in relation to the application of the statute of frauds in particular cases, are

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