From: teamworker email
Thanks for listing the year of U.S. v Rhodes. (Bouvier's Encyclopedia of the Law did not include it.) Isn't it interesting that the year was not mentioned but it was listed "ahead" of Dred Scott v. Sanford (as if to nullify the prior understanding of Dred Scott ?).
I just finished looking at Tim's site on the history of law dictionary's when I found this post from you. According to his list the 8th Ed. was in 1858 and the 9th in 1859. He points out that for a few years running there was only 1 or 2 years between editions. Were there that many changes in the law after his death in 1851 that 6 new editions were needed between then and 1859? Prior to his death, he brought out a new edition only every four years possibly to allow for "usages." Are you saying that even the 1859 edition (the 9th edition) is suspect of covert manipulation?
Your review of Rhodes is greatly appreciated.
From: "Randy L. Geiszler"
...It is the last edition of Bouvier's that is not confounded or confused (with respect to original intent) ... since you mentioned it lets take a look at the Rhodes case. Rhodes was sued out, under the first Civil Rights Act of April 9, 1866 (14 Stat. 27), made pursuant to the 13th amendment, and not made pursuant to the Preamble or the original Constitution with its Bill of Rights, and, it was the latter that was in question in Dred Scott (i.e. Art. 4 Sec. 2 and the Preamble), Rhodes notwithstanding.
"SWAYNE, Circuit Justice. This is a prosecution under the act of congress of the 9th of April, 1866 [14 Stat. 27], entitled 'An act to protect all persons in the United States in their civil rights and to furnish the means for their vindication.'" United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 785.
"10. The act of April 9, 1866 (14 Stat. 27) known as the 'civil rights' bill, is constitutional in all its provisions. It is an appropriate method of exercising the power conferred on congress by the thirteenth amendment." United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 785.
"The act of congress confers citizenship." United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 788.
Rhodes gives the statutory rights (privileges) of persons of African decent a direct relationship to, and dependency upon, the rights of white persons, and speaks of statutory rights given under the act, rather than natural rights which require no legislative act for existence or enforcement.
"The objection argued against this count is, that it does not aver that "white citizens" enjoy the right which it is alleged is denied to Nancy Talbot. This fact is vital in the case. Without it our jurisdiction cannot be maintained." United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 786.
"Every right given is to be the same 'as is enjoyed by white citizens'" United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 788.
Jurisdiction of the Rhodes court was based on the 13th amendment and the aforesaid civil rights act, not on Article III of the Constitution, making the Rhodes judgment a legislative act rather than a judicial one. The Judicial power was never really reached in Rhodes.
"The third section (civil rights act -my note) declares: 'That the district court of the United States within their respective districts, shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the state where they may be, any of the rights secured to them by the first section of this act . . . . " United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 786.
"It will be observed that jurisdiction is given to this court 'of all causes, civil and criminal', affecting persons who are denied or cannot enforce in the local state courts 'any of the rights secured by the first section of this act.'" United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 786.
After these statements the Rhodes court proceeds to distinguish the difference between "cases" as used in article III and causes as used in the civil rights act.
While it might be true that Dred Scott has no binding relation on Rhodes it would be for the following reasons. The 13th amendment, being considered or presumed valid by the Rhodes court, is intercessory between Dred Scott and Rhodes. The 13th amendments' constitutionality was not challenged by the defendant in Rhodes. The Rhodes court was only directing itself to the following issues:
"The defendants having been found guilty by a jury, the case is now before us upon a motion in arrest of judgment. "Three grounds are relied upon in support of the motion. It is insisted: I. That the indictment is fatally defective. II. That the case which it makes, or was intended to make, is not within the act of congress upon which it is founded. III. That the act itself is unconstitutional and void." United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 785.
It is reemphasized that the constitutionality of the Civil Rights Act was challenged without challenging the amendment upon which it was based, and was held constitutional only in light of the 13th amendment.
Rhodes lays one additional ground of exception to the rule of citizenship which actually supports the Dred Scott decision (on the subject of the Declaration of Independence). The exception laid is as follows:
". . . . and slaves, in legal contemplation, are property, and not persons. 2 Kent. Comm. 1; Calvin's Case, 7 Coke, 1; 1 Bl Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583" United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 789.
Much of Rhodes supports Dred Scott and discloses the destruction of state sovereignty and natural rights.
For instance, at page 788 of Rhodes:
"The first eleven amendments of the constitution were intended to limit the powers of the government which it (the constitution - my note) created, and to protect the people of the states."
"The thirteenth amendment is the last one made. It trenches directly upon the power of the states and of the people of the states. (Violation of the 9th and 10th amendments - my note.) It is the first and only instance of a change of this character in the organic law. (Violation of Article V, expansion of power and change of sovereignty, not having been ratified by conventions of the people as was the original constitution - my note.) It destroyed the most important relation between capital and labor in the states where slavery existed. (Violation of 4th, 5th, 9th and 10th amendments by interference with state sovereignty and individual rights of property - my note.) It affected deeply the fortunes of a large portion of their people. It struck out of existence millions of property. (ex post facto law, bill of attainder, law violating obligations of contracts, in violation of the 9th amendment and Article I sections 9 and 10 - my note.) The measure was the consequence of a strife of opinions, and a conflict of interests, real and imaginary, as old as the constitution itself." (And being as old as the constitution itself violated the constitution when not passed by conventions of the people of the states -my note.)
So the above quote is not misconstrued, all statements in parentheses are observations contained in research done by Mr. Wangrud, Mr. Arlt and myself.
On page 789 of Rhodes in reference to a slave becoming a limited citizen upon release from bondage:
". . . . he becomes thenceforward a citizen, but under such disabilities as the laws of the several states may deem it expedient to prescribe to persons of color."
On page 790 of Rhodes concerning my reference to the destruction of state sovereignty and the application of the first Ten Amendments:
"Here, until the thirteenth was adopted, the power belonged entirely to the states, and they exercised it without question from any quarter, as absolutely as if they were not members of the Union. "The First ten amendments to the constitution which are in nature of a bill of rights, apply only to the national government. They were not intended to restrict the power of the states. Barrows v. Mayor, etc., 7 Pet. [32 U.S.] 247; Withers v. Buckley, 20 How. [61 U.S.] 84; Murphy v People, 2 Cow. 818."
On page 790 of Rhodes also supports the assertion that naturalization cannot involve the incorporation of another race into the sovereign body under the original Constitution of the United States of America. Rhodes construction of the meaning of the following statement, notwithstanding):
"The power (naturalization - my note.) is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen is not naturalization, and cannot be brought within the exercise of that power. There is a universal agreement of opinion upon this subject. Scott v. Sandford, 19 How. [60 U.S.] 578; 2 Story Const. 44."
It is clear that without the thirteenth amendment congress had no lawful authority to naturalize outside the white race, the states having complete power to reject such an exercise, even according to authorities cited in Rhodes.
At page 794 of Rhodes the impropriety of white persons filing suit under 42 USC sections. 1981-1985, and 18 USC sections. 240-245 (the modern codification of the first and second civil rights acts) is also made clear:
"The whites needed no relief or protection, and they are practically unaffected by the amendment."
Furthermore, what Dred Scott said about Article 4 section 2 of the Constitution for the United States of America was not before the Rhodes court and was completely avoided on these very grounds. In reference to Article 4 section 2 the Rhodes court said:
"This provision does not bear particularly upon the question before us, and need not be further considered." United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 791.
Clearly Rhodes was not directly dealing with the same constitutional question that Dred Scott had previously delt with. Also agreeing that Article 4 section 2 doesn't apply to persons of color as noted in Dred Scott.
The judicial power was never reached by the Rhodes case due to the 2nd section of the 13th amendment and defendant's failure to pit the 13th amendment directly against the original constitution.
"The second section of the amendment was added out of abundant caution. It authorizes congress to select, from time to time, the means that might be deemed appropriate to the end. It employs a phrase which had been enlightened by well-considered judicial application. Any exercise of legislative power within its limits involves a legislative, and not a judicial question. It is only when the authority given has been clearly exceeded, that the judicial power can be invoked. Its office, then is to repress and annul the excess; beyond that it is powerless. United States v. Rhodes, 1 Abb. U.S. 28 Fed. Case No. 16151 (1866), @ 793.
The above quotation also serves to illustrate that the court in Rhodes was merely the puppet of the legislative power (Art. I Const. U.S.) and not a court exercising a judicial power (Art. III Const. U.S.) as was exercised in Dred Scott.
Certainly, all that was actually before the court in Rhodes was the construction of the 13th amendment (which only depended upon the intent of its passage, rather than the organic law), and the construction of the civil rights act, under which the action was brought. As to citizenship under the original constitutions Rhodes is unauthoritative. Although I have quoted extensively from the Rhodes decision I hope everyone on the list reads the Rhodes decision and decides for themselves.