Austin v. Mississippi Appendix Brief for Appellants
Public Court Documents
January 1, 1965
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Brief Collection, LDF Court Filings. Austin v. Mississippi Appendix Brief for Appellants, 1965. 92f3e472-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f4061d54-b700-4c4d-aec1-cc6405a2a23c/austin-v-mississippi-appendix-brief-for-appellants. Accessed October 24, 2025.
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Initefc Butts (Ermrt n! Appeals
F ob t h e F if t h C ir c u it
No. 22172
C h r is t in e A u s t in , et al.,
-v.—
Appellants,
S t a t e o f M is s is s ip p i ,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
APPENDIX BRIEF FOR APPELLANTS
C a r sie H a l l1151/2 N. Farish Street
Jackson, Mississippi 39201
J a c k G r e e n b e r g
M e l v y n Z arr
10 Columbus Circle
New York, New York 10019
A n t h o n y Gt. A m ster d a m
3400 Chestnut Street
Philadelphia, Pennsylvania 19104
Attorneys for Appellants
TABLE OF CONTENTS
PAGE
I. T h e B a c k g r o u n d o f 28 U. S. C. §1443 .........._....... 1
A. Legislative Background ................................. . 1
B. Judicial Background .......................................... 39
II. T h e C o n s t r u c t io n o f 28 U. S. C. §1443 ............... 52
A. “Law Providing for Equal Rights” ............ 53
B. Subsection 1443(1): A “Right” Which a Per
son Is “Denied or Cannot Enforce” ............... 68
C. Subsection 1443(2): An Act “Under Color of
Authority Derived Prom” a “Law Providing
for Equal Rights” ............. .................................. 83
D. The Rationale of Federal Civil Rights Re
moval Jurisdiction .......................................... 91
T a b le o f C ases
Alabama v. Allen, S. D. Ala., C. A. No. 3385-64, April
16, 1965 .......................... 79
Alabama v. Boynton, S. D. Ala., C. A. No. 3560-65, April
16, 1965 ............................ 79
Anderson v. Elliott, 101 Fed. 609 (4th Cir. 1900), dism’d
22 S. Ct. 930 (1902) ...................................................... 6
Arceneaux v. Louisiana, 376 U. S. 336 (1964) .............. 93
Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark.
1963).................... ...... ..... ...............................................58, 83
Arnold v. North Carolina, 376 U. S. 773 (1964).............. 41
11
PAGE
Baggett v. Bullitt, 377 U. S. 360 (1964)..........................81, 92
B arr v. City of Columbia, 378 U. S. 146 (1964) ...... ........ 93
Bigelow v. Forrest, 76 U. S. (9 Wall.) 339 (1869) ....... 64
Birsch v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929) ....... 7
Blyew v. United States, 80 U. S. (13 Wall.) 581 (1871) 30
Board of Educ. v. City-Wide Comm, for the Integration
of Schools, 2d Cir., No. 29501, Feb. 18, 1965 ............... 83
Boynton v. Clark, U. S. D. C. (S. D. Ala.), No. 3559-65,
Jan. 23, 1965 ............................. ...................... ......... ...... . 71
Brazier v. Cherry, 293 F. 2d 401 (5th Cir.), cert, denied,
368 U. S. 921 (1961) ................................. .................... 36
Brown v. Cain, 56 F. Supp. 56 (E. D. Pa. 1944) ............. 6, 7
Brown v. City of Meridian, No. 21730 (5th Cir.) ........... 74
Bush v. Kentucky, 107 U. S. 110 (1883) ........................ 45, 47
California v. Lamson, 12 F. Supp. 813 (N. D. Cal. 1935),
petition for leave to appeal denied, 80 F. 2d 388 (Wil
bur, Circuit Judge, 1935) .............................................. 51
Castle v. Lewis, 254 Fed. 917 (8th Cir. 1918)................... 7
City of Birmingham v. Croskey, 217 F. Supp. 947 (N. D.
Ala. 1963) ......................................................................... 51
City of Clarksdale v. Gertge, 237 F. Supp. 213 (N. D.
Ala. 1964) .......................................................................51, 83
Cohens v. Virginia, 19 U. S. (6 Wheat.) 264 (1821) ....... 4
Dilworth v. Riner, 5th Cir., No. 22008, March 18, 196568, 69, 78
Dombrowski v. Pfister,----- U. S. —— , 33 U. S. L. Wk.
4321, April 26,1965 ............................................74, 80, 81, 94
Douglas v. City of Jeannette, 319 U. S. 157 (1943) ....55,63
Dresner v. City of Tallahassee, 375 U. S. 136 (1963) .... 93
PAGE
iii
Edwards v. South Carolina, 372 U. S. 229 (1963) .........
Egan v. City of Aurora, 365 IT. S. 514 (1961) ...............
England v. Louisiana State Board of Medical Examin
ers, 375 U. S. 411 (1964)..................................................
Eubanks v. Louisiana, 356 IT. S. 584 (1958) ...................
Ex parte Bridges, 4 Fed. Cas. 98 (No. 1862) (C. C. N. D.
Ga. 1875) ........ ............................................ ....................
Ex parte McCardle, 73 U. S. (6 Wall.) 318 (1868) .......6,
Ex parte McCready, 15 Fed. Cas. 1345 (No. 8732) (C. C.
E. D. Va. 1874)............... ...............................................
Ex parte Royall, 117 U. S. 241 (1886)..............................
Ex parte Tilden, 218 Fed. 920 (D. Ida. 1914)...................
Ex parte United States ex rel. Anderson, 67 F. Supp.
374 (S. D. Fla. 1946) .....................................................
Ex parte Warner, 21 F. 2d 542 (N. D. Okla. 1927) ...... .
Farm er v. S ta te ,----- M iss.------ , 161 So. 2d 159 (1964),
rev’d ,----- U. S . ------ , April 26, 1965 ..........................
Fay v. Noia, 372 U. S. 391 (1963)......................................
Feiner v. New York, 340 IT. S. 315 (1951) ......................
Fields v. South Carolina, 375 U. S. 44 (1963) ...............
Freedman v. Maryland, 380 U. S. 51 (1965) ...................
Gibson v. Mississippi, 162 IT. S. 565 (1896) .......45,47, 63,
Hague v. C. I. 0., 307 U. S. 496 (1939) .......................... 55,
Henry v. Mississippi, 379 U. S. 443 (1965) ..................
Henry v. Rock Hill, 376 U. S. 776 (1964) ......................
Hernandez v. Texas, 347 U. S. 475 (1954) ......................
Hill v. Pennsylvania, 183 F. Supp. 126 (W. D. Pa.
I960) ............... .............. .................................................51,
92
55
91
41
61
19
61
61
7
7
6
92
20
92
92
92
75
67
93
92
41
55
IV
PAGE
Hornsby v. Allen, 326 F. 2d 605 (5th Cir. 1964), rehear
ing denied, 330 F. 2d 55 (5th Cir. 1964) ...................... 66
Hull v. Jackson County Circuit Court, 138 F. 2d 820
(6th Cir. 1943) ................................................................. 51
In re Fair, 100 Fed. 149 (C. C. I). Neb. 1900)......... ......... 6
In re Kaminetsky, 234 F. Supp. 991 (E. D. N. Y. 1964) 51
In re Matthews, 122 Fed. 248 (E. D. Ky. 1902) ............... 7
In re Miller, 42 Fed. 307 (E. D. S. C. 1890) ................... 7
In re Neagle, 135 U. S. 1 (1890) .................................. 6, 8, 20
Kelley v. Page, 335 F. 2d 114 (5th Cir. 1964)................... 69
Kentucky v. Powers, 201 U. S. 1 (1906) .................. 26, 48,49
Knight v. State, ——- M iss.----- , 161 So. 2d 521 (1964) 92
Lefton v. Hattiesburg, 333 F. 2d 280 (5th Cir. 1964) ....36, 92
Lewis v. Bennett, 337 F. 2d 579 (4th Cir. 1964) ............... '93
Lima v. Lawler, 63 F. Supp. 446 (E. L), Va. 1945) ........... 6, 7
Louisiana v. Murphy, 173 F. Supp. 782 (W. D. La. 1959) 51
McCoy v. Louisiana State Bd. of Edue., 332 F. 2d 915
(5th Cir. 1964) ............................... .................... .......... . 93
McFarland v. American Sugar Ref. Co., 241 U. S. 79
(1916) ............................. ............. ..................................... 66
McGowan v. Maryland, 366 H. S. 420 (1961)................... 66
McNeese v. Board of Educ., 373 IT. S. 668 (1963) ......... 33, 92
Marsh v. Alabama, 326 TJ. S. 501 (1946) .......................... 79
Maryland v. Kurek, 233 F. Supp. 431 (D. Md. 1964) ....51, 55
Metropolitan Cas. Ins. Co. v. Stevens, 312 U. S. 563
(1941) .......................................................... ...... ............. 43
Monroe v. Pape, 365 U. S. 167 (1961) ...............33, 55, 64, 92
Murray v. Louisiana, 163 U. S. 101 (1896) ...................... 45
V
PAGE
Neal v. Delaware, 103 U. S. 370 (1881) .......42, 43, 46, 47, 75
New Jersey v. Weinberger, 38 F. 2d 298 (D. N. J. 1930) 51
New York v. Galamison,----- F. 2 d -------, 2d Cir., Nos.
29166-75, Jan. 26, 1965, cert. den. ----- U. S. ----- ,
April 26, 1965 .................................. 53, 54, 55, 56, 57, 58, 60,
61, 62, 63, 66, 83, 87
New York Times Co. v. Sullivan, 376 U. S. 254 (1964) .... 79
Norris v. Alabama, 294 U. S. 587 (1935).......................... 41
North Carolina v. Alston, 227 F. Supp. 887 (M. D. N. C.
1964)............................................. ..................................... 51
North Carolina v. Jackson, 135 F. Supp. 682 (M. D.
N. C. 1955) ..................................................................... 52, 73
People v. McLeod, 25 Wend. 482 (Sup. Ct. N. Y. 1841) 7
Prince v. Massachusetts, 321 U. S. 158 (1944) ............... 79
Pritchard v. Smith, 289 F. 2d 153 (8th Cir. 1961)........... 36
Rachel v. Georgia,----- F. 2 d ------ , 5th Cir., No. 21354,
March 5, 1965 ..........................................54, 55, 58, 68, 74, 81
Rand v. Arkansas, 191 F. Supp. 20 (W. D. Ark. 1961) .... 51
Reece v. Georgia, 350 U. S. 85 (1955) ..... ......................... 41
Reed v. Madden, 87 F. 2d 846 (8th Cir. 1937) ............... 6
Saia v. New York, 334 U. S. 558 (1948) .... ...................... 79
Scott v. Sandford, 60 U. S. (19 How.) 393 (1857)........... 21
Smith v. Mississippi, 162 U. S. 592 (1896) ................ ..... 45
Snypp v. Ohio, 70 F. 2d 535 (6th Cir. 1934) .................. 52
Steele v. Superior Court, 164 F. 2d 781 (9th Cir.), cert.
den., 333 U. S. 861 (1948)..............................................55, 63
Strauder v. West Virginia, 100 U. S. 303 (1880)
39, 43, 64, 67, 73, 74
Swain v. Alabama,----- U. S .------ , 33 IT. S. Law Week
4231 (decided March 8, 1965) 41
VI
PAGE
Tennessee v. Davis, 100 U. S. 257 (1880) ...................... 6
Texas v. Dorris, 165 F. Supp. 738 (S. D. Tex. 1958) .... 51
Thomas v. S tate ,----- M iss.------ , 160 So. 2d 657 (1964) 92
Townsend v. Sain, 372 U. S. 293 (1963) .... ....... ............ . 91
United States v. Clark, S. D. Ala., C. A. No. 3438-64,
April 16, 1965 .................... ............................................ 72, 79
United States ex rel. Drury v. Lewis, 200 U. S. 1 (1906) 7
United States ex rel. Flynn v. Fuellhart, 106 Fed. 911
(C. C. W. D. Pa. 1901) ..... ............................................ 6
United States v. Lipsett, 156 Fed. 65 (W. D. Mich. 1907) 6
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961) .... 68
Van Newkirk v. District Attorney, 213 F. Supp. 61
(E. D. N. Y. 1963) ...................... ........... ......................... 51
Virginia v. Rives, 100 U. S. 313 (1880) .......... .....26,39,40,
42, 43, 76
West Virginia v. Laing, 133 Fed. 887 (4th Cir. 1904) .... 6
Williams v. Mississippi, 170 U. S. 213 (1898) ............... 46
Williams v. Wallace, U. S. D. C., M. D. Ala., No. 2181-N,
March 17, 1965 ............................................................. . 71
W right v. Georgia, 373 U. S. 284 (1963) .......................... 93
V l l
PAGE
C o n s t it u t io n a l and S ta t u t o r y P r o v isio n s
U. S. Const., Amend. I ............................................55, 74, 79
U. S. Const., Amend. X III .............................................. 57
U. S. Const., Amend. XIV .................... 32, 33, 55, 57, 58, 61,
64, 67, 74, 79
IT. S. Const., Amend. XV ................................................ 57
18 U. S.
28 U. S.
28 IT. S.
28 U. S.
28 IT. S.
28 U. S.
28 U. S.
28 U. S.
28 U. S.
28 IT. S.
28 IT. S.
28 IT. S.
28 U. S.
28 U. S.
28 U. S.
28 IT. S.
42 U. S.
42 IT. S.
42 IT. S.
42 U. S.
42 IT. S.
42 U. S.
C. §242 ......................... ......................... 22,54
C. §74 (1940) ............. ........................ 30, 36
C. §1331 (1958) ........... .......................... 34
C. §1343(3) (1958) ..... .......................... 33
C. §1441 (1958) ........... ............ .......................... 2, 34
C. §1442(a)(1) (1958) .......................... 6, 85
C. §1443 (1958) .......... ...1, 20,36, 52, 55, 56,
57, 58, 60, 62, 63
C. §1443(1) (1958) ...... .25, 26, 38, 39, 42, 43,47, 51,
52, 53, 68, 73, 78, 82, 86, 89
C. §1443(2) (1958) ...... ......23, 25, 39, 52, 53, 54, 64,
83, 84, 85, 86, 87, 88, 89, 90
C. §1444 (1958) ........... .......................... 2
C. §1446 (1958) ........... .......................... 43
C. §1446(c) (1958) ..... .......................... 39
C. §1447 (1958) ........... .......................... 43
C. §1447(d) ................. .......................... 38
C. §2241(c)(2) (1958) .......................... 6
C. §2251 (1958) ........... .......................... 18
C. §1971 (1958) ........... .................. 55, 68, 69
C. §1971(c) .................. .......................... 69
C. §1981 (1958) ........... .................. 30, 90, 91
C. §1983 (1958) .......30 , 33, 53, 54, 55, 58, 66, 67, 68
C. §1985 (1958) ........... .......................... 56
C. §1988 (1958) ........... .......................... 36
VIII
PAGE
42 u. S. C. A. §1971 (1964) .......................... 53
42 U. S. C. §2000a-3(a) ... . 69
42 U. S. C. A. §2000a (1965 Supp.) .............. 53
42 U. S. C. §2000a-2c ....................................... 69
Rev. Stat. §563, twelfth (1875) ................................... 62
Rev. Stat. §629, sixteenth (1875) ................ 62
Rev. Stat. §641 (1875) ........................................ 30, 35, 36, 40,
43, 44, 53, 60, 84, 85, 91
Rev. Stat. §722 (1875) . 36
Rev. Stat. §1977 (1875) .. 30,67
Rev. Stat. §1979 (1875) ........................ 30,33,53,61,67
Rev. Stat. §1980 (1875) ........................................... 56
Judicial Code of 1911, ch. 231, §31, 36 Stat. 1096
30, 35, 43, 53, 84
Judicial Code of 1911, ch. 231, §297, 36 Stat. 1168 35
Act of September 24, 1789, ch. 20, 1 Stat. 73 ............ 3
Act of September 24, 1789, ch. 20, §11, 1 Stat. 78 ........ 3
Act of September 24, 1789, ch. 20, §12, 1 Stat. 79 ____ 4
Act of September 24, 1789, ch. 20, §14, 1 Stat. 81 ........ 4
Act of February 13, 1801, ch. 4, §11, 2 Stat. 89, 92,
repealed by Act of March 8, 1802, ch. 8, 2 Stat. 132 .. 3
Act of February 4, 1815, ch. 31, §8, 3 Stat. 198 ........ . 5
Act of March 3, 1815, ch. 93, §6, 3 Stat. 233 ......... 5
Act of March 3, 1817, ch. 109, §2, 3 Stat. 396 ....... 5
Act of March 2, 1833, ch. 57, §1, 4 Stat. 632 ............... 5
Act of March 2, 1833, ch. 57, §2, 4 Stat. 632 ............... 5
Act of March 2, 1833, ch. 57, §3, 4 Stat. 633 ............... 5
Act of March 2, 1833, ch. 57, §5, 4 Stat. 634 ...... 5
Act of March 2, 1833, ch. 57, §7, 4 Stat. 634 ........... 6
Act of August 29, 1842, ch. 257, 5 Stat. 539 ..... ......... . 7
Act of March 3, 1863, ch. 81, 12 Stat. 755 ............ ........ 8
Act of March 3, 1863, ch. 81, §5, 12 Stat. 755 ......... ....39, 57
IX
PAGE
Act of March 7, 1864, ch. 20, §9, 13 Stat. 17 ___ __ 9
Act of June 30, 1864, ch. 173, §50, 13 Stat. 241 ........... 9
Act of March 3, 1865, ch. 90, 13 Stat, 507 .............58, 59, 64
Act of March 3, 1865, ch. 90, §1, 13 Stat. 507 . 59
Act of March 3, 1865, ch. 90, §4, 13 Stat. 508 . 59
Act of April 9, 1866, ch. 31, §1, 14 Stat. 27 _______ 22, 30
Act of April 9, 1866, ch. 31, §2, 14 Stat. 27 ....... 22
Act of April 9, 1866, ch. 31, §3, 14 Stat. 27 .... 11,14, 20, 21,
22, 29, 36, 56, 57, 58, 64, 84, 91
Act of May 11, 1866, ch. 80, 14 Stat. 46 ...................... 13,14
Act of May 11, 1866, ch. 80, §3, 14 Stat. 46 .............. 40, 41
Act of July 13, 1866, ch. 184, 14 Stat. 9 8 .......... 9
Act of July 13, 1866, §67, 14 Stat. 171 . 9
Act of July 13, 1866, §68, 14 Stat. 172 ................... . 9
Act of July 16, 1866, ch. 200, 14 Stat. 173 ................. . 59
Act of July 16, 1866, ch. 200, §1, 14 Stat. 173............... 59
Act of July 16, 1866, ch. 200, §§6-7, 14 Stat. 174-175 .. 59
Act of July 16, 1866, ch. 200, §14, 14 Stat. 176 ....11, 29, 59
Act of February 5, 1867, ch. 27, 14 Stat. 385 ............... 13,14
Act of February 5, 1867, ch. 28, 14 Stat. 385 ............... 18, 61
Act of February 5, 1867, ch. 28, §1, 14 Stat. 386 ......... 18, 37
Act of May 31, 1870, ch. 114, 16 Stat. 140 .......32, 56, 59, 60
Act of May 31, 1870, ch. 114, §1, 16 Stat. 140 ........... 32
Act of May 31, 1870, ch. 114, §§2-7, 16 Stat. 140 _ 32
Act of May 31, 1870, ch. 114, §8, 16 Stat. 142 ............... 32
Act of May 31, 1870, §16, 16 Stat. 144 .... ....................30, 32
Act of May 31, 1870, ch. 114, §17, 16 Stat. 144 ........... 32
Act of May 31, 1870, ch. 114, §18, 16 Stat. 144 ........... 30, 32
Act of February 28, 1871, ch. 99, §16, 16 Stat. 438 ___ 34
Act of April 20, 1871, ch. 22, 17 Stat. 13 ....... ..32, 56, 64, 85
Act of April 20, 1871, ch. 22, §1, 17 Stat. 13 ....30, 33, 36, 53,
56, 57, 60, 61, 67
X
PAGE
Act of April 20, 1871, ch. 22, §2, 17 Stat. 13 ............... 56
Act of March 1, 1875, ch. 114, 18 Stat. 335 .................34, 61
Act of March 3, 1875, ch. 137, §§1-2, 18 Stat. 470 ....... 34
Act of March 3, 1887, ch. 373, §2, 24 Stat. 553, as
amended, Act of August 13, 1888, ch. 866, 25 Stat.
435 ................................................................................... . 48
Civil Rights Act of 1957, §131, 71 Stat. 637 ....... 53
Civil Rights Act of 1960, §601, 74 Stat. 90 ............ 53
Civil Rights Act of 1964, Title II, 78 Stat. 241 ....53, 54, 55,68, 79
Civil Rights Act of 1964, §101, 78 Stat. 241 ................. 53
Civil Rights Act of 1964, §901, 78 Stat. 241 ................. 38
Miss. Laws, 1st Extra. Sess. 1962, ch. 6 .................... . 93
Acts of Virginia, 1865-1866 (Act of Jan. 15, 1866) .... 28
O t h e r S o u r c es
9 Cong. Deb. (1833).............................................. ......... 7
Cong. Globe, 27th Cong., 2d Sess. (1942) .................. 8
Cong. Globe, 37th Cong., 3d Sess. (Jan. 27, 1863) .... 9
Cong. Globe, 39th Cong., 1st Sess. (1866) ....10,11,12,13,
15,16,17,18,19, 23, 24, 26,
27, 28, 29, 30, 31, 87, 94
110 Cong. Rec. (1964) ..................................................... 38 ̂77
H. R. Rep. No. 308, 80th Cong., 1st Sess. (1947) ............. 36
Reviser’s Note to 28 U. S. C. §1443 .......... ........... .......... 36
ALI Study of the Division of Jurisdiction Between
State and Federal Courts, Commentary, General
Diversity Jurisdiction (Tent. D raft No. 1, 1963) .... 3
X I
PAGE
Amsterdam, Criminal Prosecutions Affecting Federally
Guaranteed Civil Eights: Federal Removal and Ha
beas Corpus Jurisdiction to Abort State Court Trial,
113 U. Pa. L. Rev. 7931(1965) ............. ................ ........ . 19
3 Blackstone, Commentaries 129 (6th ed., Dublin 1775) 36, 37
2 Commager, Documents of American History 2-7 (6th
ed. 1958)............................................................................. 26
Dunning, Essays on the Civil W ar and Reconstruction
147 (1898) .................... ................ ..... ............................. 11
3 Elliot’s Debates 583 (1836) ............................................ 4
1 Farrand, The Records of the Federal Convention of
1787 (1911) ..................................... ................................. 2
The Federalist, No. 80 (Hamilton) (Warner, Philadel
phia ed. 1818) ................................................................... 2,4
1 Fleming, Documentary History of Reconstruction
273-312 (photo reprint 1960) .......................................... 26
Frankfurter & Landis, The Business of the Supreme
Court (1927) ................................................................ 36,63
Freed & Wald, Bail in the United S tates: 1964—A Re
port to the National Conference on Bail and Criminal
Justice (1964) .............. ...... .......... ..... ..... ..................... 92
Galphin, Judge Pye and the Hundred Sit-Ins, The New
Republic, May 30, 1964 ..................................... ............ 92
H art & Wechsler, The Federal Court and the Federal
System (1953) ......... ............. .................................. ..... 1, 2, 3
Lusky, Racial Discrimination and the Federal Law: A
Problem in Nullification, 63 Colum. L. Rev. 1163
(1963) ........ ......................................................... ............ 92
X I I
PAGE
McKay, The Preference for Freedom, 34 N. Y. U. L.
Eev. 112 (1959) ............................................................... 80
McPherson, Political History of the United States
During the Period of Reconstruction 29-44 (1871) ....26, 28
Mishkin, The Federal “Question” in the District Courts,
53 Colum. L. Rev. 157 (1953) ...... .............. ............... 34
1 Morison & Commager, Growth of the American Re
public (4th ed. 1950) ..................................................... 4, 5
1 Warren, The Supreme Court in United States History
(rev. ed. 1932) ........................ ........................................ 4
Wechsler, Federal Jurisdiction and the Revision of the
Judicial Code, 13 Law & Contemp. Prob. 216 (1948) 96
I n t h e
Ittt&ft BU iU b Qkmrt iif Appeals
F or t h e F i f t h C ir c u it
No. 22172
C h r is t in e A u s t in , et al.,
-v.
Appellants,
S ta te of M is s is s ip p i ,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
I.
The Background of 28 U. S. C. §1443.
A. Legislative B ackground
Increasingly since the inception of the Government, fed
eral removal jurisdiction has been expanded by Congress1
to protect national interests in cases “in which the State
tribunals cannot be supposed to be impartial and un-
1 See H art & W echsleb , T h e F ederal Courts and th e F ederal
System 1147-1150 (1953). Before 1887, the requisites for removal
jurisdiction were stated independently of those for original federal
jurisdiction; since 1887, the statutory scheme has been to author
ize removal generally of cases over which the lower federal courts
have original jurisdiction and, additionally, to allow removal in
special classes of cases particularly affecting the national interest:
suits or prosecutions against federal officers, military personnel,
persons unable to enforce their equal civil rights in the state courts,
2
biassed [sic] ,” 2 for history has increasingly taught the
wisdom of Hamilton’s insight: “The most discerning can
not foresee how far the prevalency of a local spirit may be
found to disqualify the local tribunals for the jurisdiction
of national causes . . . ” 3 In the Constitutional Convention
Madison pointed out the need for such protection just be
fore he successfully moved the Committee of the Whole to
authorize the national legislature to create inferior federal
courts :4
Mr. [Madison] observed that unless inferior tr i
bunals were dispersed throughout the Republic with
final jurisdiction in many cases, appeals would be multi
plied to a most oppressive degree; that besides, an
appeal would not in many cases be a remedy. What
was to be done after improper Verdicts in State tr i
bunals obtained under the biased directions of a depen
dent Judge, or the local prejudices of an undirected
jury! To remand the cause for a new trial would an
swer no purpose. To order a new trial at the supreme
bar would oblige the parties to bring up their wit
nesses, tho’ ever so distant from the seat of the Court.
An effective Judiciary establishment commensurate to
persons acting under color of authority derived from federal law
providing for equal rights or refusing to act inconsistently with
such law, the United States (in foreclosure actions), etc. 28 IT. S. C.
§§1441-1444 (1958) ; see H art & W echsler , supra, at 1019-1020.
2 T h e F ederalist, N o. 80 (Hamilton) (Warner, Philadelphia ed.
1818), at 429.3 Id., No. 81, at 439.
4 1 F arrand, T h e R ecords of t h e F ederal Convention of 1787,
at 125 (1911). Mr. Wilson and Mr. Madison moved the matter
pursuant to a suggestion of Mr. Dickinson.
3
the legislative authority, was essential. A Government
without a proper Executive & Judiciary would be the
mere trunk of a body without arms or legs to act or
move.5
The early Congresses made very sparing use of the power
which was thus given them by the Constitution; during
nearly three quarters of a century following the Judiciary
Act of 1789,6 they acted largely on the principle “that pri
vate litigants must look to the state tribunals in the first
instance for vindication of federal claims, subject to limited
review by the United States Supreme Court.” 7 The fed
eral trial courts were employed only for the limited federal
specialties; no general federal question jurisdiction was
created .8 Original civil diversity jurisdiction was given9
—responding then, as today, to “the possible shortcomings
of State justice,” particularly the localization of trial in
parochial communities where “justice is likely to be im
peded by the provincialism of the local judge and jury, the
tendency to favor one of their own against an outsider, and
the machinations of the local ‘court house gang’ ” 10—and
5 Id. at 124.
6 Act of Sept. 24,1789, ch. 20, 1 Stat. 73.
7 H art & W echsler , T h e F ederal Courts and th e F ederal
S ystem 727 (1953).
8 Except by the federalist Act of Feb. 13, 1801, ch. 4, §11, 2
Stat. 89, 92, quickly repealed by the Act of March 8, 1802, eh. 8,
2 Stat. 132.
9 Act of Sept. 24,1789, ch. 20, §11,1 Stat. 78.
10 ALI Study op th e D ivision op J urisdiction B etw een S tate
and F ederal Courts, Commentary, General Diversity Jurisdic
tion, at 41 (Tent. Draft No. 1, 1963).
4
civil removal jurisdiction was given in three sorts of cases11
where it was particularly feared that local prejudice might
impair national concerns. In criminal cases, however, the
federal trial courts were entirely excluded from incursion
into state proceedings;12 section 14 of the Judiciary Act
expressly excepted state prisoners from the federal habeas
corpus authority .13
Experience seen showed, however, the potential of the
state criminal process for destruction of vital national con
cerns. Congress responded with limited grants of federal
trial court jurisdiction, in removal and habeas corpus. In
1815, confronted by New England’s resistance to the W ar
of 1812,14 Congress in a customs act allowed removal of suits
or criminal prosecutions
11 The Act of Sept. 24, 1789, ch. 20, §12, 1 Stat. 79, authorized
removal in the following classes of cases where more than $500
was in dispute: suits by a citizen of the forum state against an
outstater; suits between citizens of the same state in which the
title to land was disputed and the removing party set up an
outstate land grant against his opponent’s land grant from the
forum state; suits against an alien. The first two classes were
specifically described by Hamilton as situations “in w’hich the state
tribunals cannot be supposed to be impartial,” The Federalist
No. 80, at 432 (Warner ed. 1818). Madison speaking of state
courts in the Virginia convention, amply covered the third: “We
well know, sir, that foreigners cannot get justice done them in
these courts. . . . ” 3 Elliot’s Debates 583 (1836).
12 The jealousy of the States as regards their criminal process
is indicated by the furor aroused by Supreme Court assumption
of jurisdiction to review federal questions in state criminal cases
as late as 1821. Cohens v. Virginia, 19 U. S, (6 Wheat.) 264
(1821); see 1 W arren , T h e Su prem e Court in U nited S tates
H istory 547-59 (rev. ed. 1932).
13 Except where it was necessary to bring them into court to
testify. Act of Sept. 24, 1789, ch. 20, §14, 1 Stat. 81.
14 See 1 Morison & Commager, Growth of the American Republic
426-29 (4th ed. 1950).
5
against any collector, naval officer, surveyor, inspector,
or any other officer, civil or military, or any other per
son aiding or assisting, agreeable to the provisions of
this act, or under colour thereof, for any thing done,
or omitted to be done, as an officer of the customs, or
for any thing done by virtue of this act or under colour
thereof.15
In 1833, confronted by South Carolina’s opposition to the
tariff,16 Congress enacted the famed Force Act, giving the
President extensive power to use the military forces of the
United States to protect federal customs officers and sup
press resistance to the customs laws;17 extending the civil
jurisdiction of the federal courts to all cases arising under
the revenue laws;18 authorizing removal of any suit or
prosecution
against any officer of the United States, or other per
son, for or on account of any act done under the rev
enue laws of the United States, or under colour there
of, or for or on account of any right, authority, or title,
set up or claimed by such officer, or other person under
any such law of the United S tates ;19
15 Act of Feb. 4, 1815, ch. 31, §8, 3 Stat. 198; Act of March 3,
1815, ch. 93, §6, 3 Stat. 233. Both enactments were temporary
legislation. Their removal provisions were extended four years
by Act of March 3, 1817, ch. 109, §2, 3 Stat. 396.
16 See 1 Morison & Commager, op. cit., supra, note 14, 475-85.
17 Act of March 2,1833, eh. 57, §§1, 5, 4 Stat. 632, 634.
18 Act of March 2,1833, ch. 57, §2, 4 Stat. 632.
19 Act of March 2, 1833, ch. 57, §3, 4 Stat. 633. Section 2 of the
act envisioned that under certain circumstances private individ
uals, as well as federal officers, might take or hold property pur
suant to the revenue laws.
6
and adding to the federal habeas corpus jurisdiction
power to grant writs of habeas corpus in all eases of
a prisoner or prisoners, in jail or confinement, where
he or they shall be committed or confined on, or by any
authority or law, for any act done, or omitted to be
done, in pursuance of a law of the United States, or
any order, process, or decree, of any judge or court
thereof.20
The act’s evident purpose was to exclude state court juris
diction in cases affecting the tariff,21 and to give the federal
20 Act of March 2,1833, eh. 57, §7, 4 Stat. 634.
21 This purpose is apparent as respects the removal jurisdiction,
which was sustained in Tennessee v. Davis, 100 U. S. 257 (1880),
against constitutional complaints that “it is an invasion of the
sovereignty of a State to withdraw from its courts into the courts
of the general government the trial of prosecutions for alleged
offenses against the criminal laws of a State.” Id. at 266. The
revenue officer removal provisions were continued in successive
judiciary acts until 1948, when they were extended to encompass
all federal officers and persons acting under them. 28 U. S. C.
§1442(a)(l) (1958). As for the habeas corpus grant, continued
in substance in present 28 U. S. C. §2241 (c)(2) (1958), this has
always been construed as directing the federal courts to entertain
petitions for the writ in advance of state trial in cases where
federal officers are prosecuted, see the authorities collected in the
briefs and opinion in In re Neagle, 135 U. S. 1 (1890) ; e.g., Reed
v. Madden, 87 F. 2d 846 (8th Cir. 1937) ; In re Fair, 100 Fed. 149
(C. C. D. Neb. 1900); United States ex rel. Flynn v. Fuellhart,
106 Fed. 911 (C. C. W. D. Pa. 1901) ; United States v. Lipsett,
156 Fed. 65 (W. D. Mich. 1907); Ex parte Warner, 21 F. 2d 542
(N. D. Okla. 1927) ; Brown v. Cain, 56 F. Supp. 56 (B. D. Pa.
1944); Lima v. Lawler, 63 F. Supp. 446 (B. D. Va. 1945), or
where private citizens acting under federal officers are prosecuted,
Anderson v. Elliott, 101 Fed. 609 (4th Cir. 1900), dism’d 22 S. Ct.
930 (1902); West Virginia v. Laing, 133 Fed. 887 (4th Cir. 1904).
Discharge of federal officers has sometimes been denied after evi
dentiary hearing where the evidence did not preponderantly show
that the officer was acting within the scope of his federal authority.
7
courts plenary power to enforce the tariff against concerted
state resistance, including state judicial resistance: it was
“apparent that the constitution of the courts in South Caro
lina makes its necessary to give the revenue officers the
right to sue in the federal courts.” 22
The federal habeas corpus jurisdiction was extended
again in 1842 to authorize release of foreign nationals and
domiciliaries held under state law or process on account of
any act claimed to have been done under color of foreign
authority depending on the law of nations.23 This extension
was occasioned by the McLeod case,24 in which the New
York courts nearly provoked an international incident by
refusing to relinquish jurisdiction over a British subject
held for murder who claimed that the acts with which he
was charged were done under British authority. McLeod
was acquitted at his trial, but the need for an expeditious
federal remedy to short-cut the state court process in such
United States ex rel. Drury v. Lewis, 200 U. S. (1906) ; Birsch
v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929) ; Castle v. Lewis, 254
Fed. 917 (8th Cir. 1918); Ex parte Tilden, 218 Fed. 920 (D. Ida.
1914)._ The evidentiary standard is discussed in Brown v. Cain
and Lima v. Lawler, supra. These cases do not reflect hesitation
to use the federal writ to abort state trial in any case in which
the interests of the federal government are affected; they indicate
only that, in each ease, the federal interest was not sufficiently
shown on the facts. See In re Matthews, 122 Fed. 248 (E. D. Ky.
1902), and particularly In re Miller, 42 Fed. 307 (E. D. S. C.
1890); cf. Ex parte United States ex rel. Anderson, 67 F. Supp.
374 (S. D. Fla. 1946), decided on same grounds without a hearing.
-2 9 Cong. Deb. 260 (Jan. 29, 1833). The speaker is Senator
Wilkins, who reported the bill, id. at 150 (Jan. 21, 1833), and
managed it in the Senate, id. at 246 (Jan. 28, 1833). See also,
id. at 329-32 (Feb. 2, 1833) (remarks of Senator Frelinghuysen).
23 Act of August 29,1842, ch. 257, 5 Stat. 539.
24 See People v. McLeod, 25 W'end. 482 (Sup. Ct, N. Y. 1841).
8
eases was strongly felt: “If satisfied of the existence in
fact and validity in law of the [plea in] bar, the federal
jurisdiction will have the power of administering prompt
relief.” 25 Again, as in 1815 and 1833, the scope of federal
intrusion was narrow.
But the Civil W ar and its aftermath changed the con
gressional temper sharply. During and after the War, Con
gress multiplied the uses of the federal courts and, in par
ticular, their uses to anticipate the state criminal process.
By the Habeas Corpus Suspension Act of 186326 it immu
nized from state civil and criminal liability persons making
searches, seizures, arrests and imprisonments under presi
dential orders during the existence of the rebellion; to in
sure this protection, it provided in section 5 of the act for
removal of all suits and criminal prosecutions
against any officer, civil or military, or against any
other person, for any arrest or imprisonment made, or
other trespasses or wrongs done or committed, or any
act omitted to be done, at any time during the present
rebellion, by virtue or under color of any authority de
rived from or exercised by or under the President of
the United States, or any act of Congress.27
The debates preceding passage of the act reflected congres
sional concern that federal officers could not receive a fair
25 Senator Berrien, at Cong. Globe, 27th Cong., 2d Sess. 444
(4/26/42). Mr. Berrien, chairman of the Senate Judiciary Com
mittee, reported and managed the bill which became the act. Id.
at 443. See the discussion of the act in In re Neagle, 135 U. S. 1,
71-72, 74 (1890).
26 Act of March 3, 1863, ch. 81,12 Stat. 755.
2712 Stat. 756.
9
trial in hostile state courts, and that the appellate super
vision of the Supreme Court of the United States would
be inadequate to rectify the decisions of lower state tr i
bunals having the power to find the facts.28
In 1864 and 1866,29 Congress also extended the customs-
officer removal provisions of the 1833 Force Act to cover
civil and criminal cases involving internal revenue collec
tion. In their final 1866 form, these provisions authorized
federal removal of suits and prosecutions “against any
officer of the United States appointed under or acting by
authority of [the revenue laws] . . . or against any person
acting under or by authority of any such officer on account
of any act done under color of his office,” or against persons
claiming title from such officers, where the cause concerned
the property and affected the validity of the revenue laws.
During the first months of the Thirty-Ninth Congress,
Union military commanders in the defeated South trans-
28 Cong. Globe, 37th Cong., 3d Sess. 534-38 (Jan. 27, 1863).
29 Act of March 7, 1864, ch. 20, §9, 13 Stat. 17; Act of June 30,
1864, eh. 173, §50, 13 Stat. 241; Act of July 13, 1866, ch. 184, 14
Stat. 98. By the 1866 act Congress (a) generally amended the
revenue provisions of the act of June 30, 1864; (b) in §67, 14
Stat. 171, authorized removal of any civil or criminal action’
against any officer of the United States appointed under or
acting by authority of [the Act of June 30, 1864, and amend
ments thereto] . . . or against any person acting under or
by authority of any such officer on account of any act done
under color of his office, or against any person holding prop
erty _ or estate by title derived from any such officer, con
cerning such property or estate, and affecting the validity
of [the revenue laws] . . . ;
and (e) in §68, 14 Stat. 172, repealed the removal provisions
(§50) of the Act of June 30, 1864, and provided for the remand
to the state courts of all pending removed cases which were not
removable under the new 1866 removal provisions.
10
ferred from the state courts to national military tribunals
civil and criminal jurisdiction over eases involving Union
soldiers, loyalists and Negroes.30 Recognizing the wisdom
of this transfer, and intensely aware of the hostility and
anti-Union prejudice of the Southern state courts,31 whose
process was being used to harass the unionists and freed-
men,32 that Congress took four important steps to curb
the state courts.
30 See General Sickles’ order, set out at Cong. Globe, 39th Cong.,
1st Sess. 1834 (April 7, 1866), providing that military courts
“shall have, as against any and all civil courts, exclusive juris
diction in all eases where freedmen and other persons of color
are directly or indirectly concerned, until such persons shall be
admitted to the State courts as parties and witnesses with the same
rights and remedies accorded to all other persons,” unless the
Negroes concerned filed a written stipulation submitting the pro
ceeding to the state court. Cf. id. at 320 (Jan. 19, 1866) (General
Grant’s order).
31 E-Q-> id. at 1526 (March 20, 1866) (remarks of Representative
McKee, of Kentucky), 1527 (remarks of Representatives Garfield
and Smith, of Kentucky), 1529 (remarks of Representative Cook,
who reported the bill and was its floor manager, see note 117
supra), 2054, 2063 (April 20, 1866) (remarks of Senator Clark).
Clark pointed out that hostile state legislatures could not be looked
to for redress of the discriminations practiced by hostile state
judges. Id. at 2054. The only relief for the Union men was access
to the federal courts: “There is where they are most likely to
have their rights protected. There is where local prejudices are
frowned down.” Id. at 1526 (March 20, 1866) (remarks of Rep
resentative McKee, of Kentucky); see id. at 1528 (remarks of
Representative Smith, of Kentucky), 1529-30 (remarks of Rep
resentative Cook); cf. id. at 1387 (March 14, 1866) (remarks of
Representative Cook). See also the debates on the amendatory
freedmen’s bureau bills: id. at 320 (Jan. 19, 1866) (remarks of
Senator Trumbull), 339 (Jan. 22, 1866) (remarks of Senator
Cresswell), 744 (Feb. 8, 1866) (remarks of Senator Sherman),
941 (Feb. 20, 1866) (remarks of Senator Trumbull), 657 (Peb. 5,
1866) (remarks of Representative Eliot), 2774-77 (May 23, 1866)
(remarks of Representative Eliot).
32 See text and notes at notes 40-46, infra.
11
First, by the Amendatory Freedmen’s Bureau Act,33 it
approved and expressly authorized the supersession of
state courts by Union military tribunals throughout the
South until the rebellious States were restored to order and
their representatives readmitted to Congress.34 In this, the
33 Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. Concerning
supersession of state civil and criminal jurisdiction by military
tribunals under the act, see D u n n in g , E ssays on t h e Civil W ar
and Keconstruction 147, 156-63 (1898).
34 Section 14 of the Amendatory Freedmen’s Bureau Act, note 33
supra, provided that in every State where “the ordinary course of
judicial proceedings has been interrupted by the rebellion,” or
where the State’s “constitutional relations to the government have
been practically discontinued by the rebellion,” certain enumerated
rights—an enumeration substantially identical to that of §1 of the
Civil Eights Act—should be secured to all citizens without respect
to race or color. Where the course of judicial proceedings had
been interrupted, the President through the Freedmen’s Bureau
was to “extend military protection and have military jurisdiction
over all cases and questions concerning the free enjoyment of such
immunities and rights,” this jurisdiction to cease in every State
when the state and federal courts therein were no longer disturbed
in the peaceable course of justice, and after the State was re
stored to its constitutional relations and its representatives seated
in Congress. The jurisdiction appears of slightly different scope
than that given by the first amendatory freedmen’s bureau bill,
S. 60 of the Thirty-ninth Congress, a companion bill to the civil
rights bill, infra, which failed of passage over President
Johnson’s veto. The predecessor bill authorized military jurisdic
tion over all cases affecting the Negroes, but only when in a State
the ordinary course of judicial proceedings had been interrupted
by the rebellion and the same enumerated rights were diserimina-
torily denied to Negroes; this jurisdiction to cease “whenever the
discrimination on account of which it is conferred ceases,” and
in any event so soon as the state and federal courts were no longer
disturbed and the State’s constitutional relations were restored.
In debate on the first bill, Senator Trumbull, who introduced,
reported and managed it, Cong. Globe, 39th Cong., 1st Sess. 129
(Jan. 5, 1866), 184 (Jan. 11, 1866), 209 (Jan. 12, 1866), resisted
attacks on the jurisdiction by repeated insistence that the bill
operated only where the civil courts were overthrown. Id. at 320-22
(Jan. 19, 1866), 347 (Jan. 22, 1866), 937-38 (Feb. 20, 1866). In
12
Thirty-Ninth Congress—like the military commanders be
fore it—intended that nationally responsible courts should
sit at the trial level, so that the unionists and f r e e d m en
might be protected not only against explicitly discrimina
tory Southern state statutes, but also against Southern
state judicial maladministration of statute law apparently
fair on its face.35
this he manifested no deference to the state courts, for the principal
attack was upon the institution of military tribunals, as distin
guished from federal civil tribunals, see, e.g., the President’s veto
messages set out id. at 915-17 (Feb. 19, 1866), 3849-50 (July 16,
1866), and it was to this attack that Trumbull replied. See id. at
322 (Jan. 19, 1866), 937-38 (Feb. 20, 1866). He explained that
the civil rights bill applied, and could be enforced, only in parts
of the country where the civil courts were functioning; that the
amendatory freedmen’s bureau bill applied only where they were
not. Id. at 3412 (June 26, 1866) (debate on the second bill). See
also id. at 2773 (May 23, 1866) (remarks of Representative Eliot,
who reported and managed the second bill, id. at 2743 (May 22,
1866), 2772 ̂ (May 23, 1866)). And in a speech concerned with
both the civil rights and first amendatory freedmen’s bureau bills,
Trumbull appears to view them as having substantially similar
scope. Id. at 322-23 (Jan. 19, 1866).
35 Particularly significant is an order of General Terry in Vir
ginia, March 12, 1866, set out at Conu. Globe, 39th Cong., 1st
Sess. 1834 (April 7, 1866). The Virginia legislature on February
28, 1866, had passed a statute providing that all laws respecting
crimes, punishments, and criminal proceedings should apply equally
to Negroes and whites, and that Negroes should be competent wit
nesses in all cases in which Negroes were involved. General Terry’s
order thereupon restored to the civil courts the jurisdiction there
tofore exercised by the military tribunals in all criminal matters
affecting the freedmen, but provided an elaborate system of pro
tection to assure that the Virginia laws would be fairly admin
istered as they were written. Under part I II of the order, assistant
superintendents of the Freedmen’s Bureau were required to attend
in person all criminal trials or preliminary hearings in which
Negroes were parties or witnesses. Under part IV, the duties of
the assistants were spelled ou t: they were not to interfere with
the court, or act as attorneys, although they might make friendly-
suggestions to the Negroes concerned. “They will, however, make
13
Second, the same Congress substantially amended the
removal procedures under the Habeas Corpus Suspension
Act of 1863, supra, in order to prevent their obstruction by
the state courts. The Act of May 11, 1866, chapter 80,36
facilitated removal practice ;37 the Act of February 5, 1867,
immediate report of any instance of oppression or injustice against
a colored party, whether prosecutor or defendant, and also in
case the evidence of colored persons should be improperly rejected
or neglected.” Under part V, the assistants were to examine and
report if in any instance a prosecutor, magistrate, or grand jury
had refused justice to a colored person by improperly neglecting
a complaint or refusing to receive a sworn information, so that
by reason of partiality a trial or prosecution was avoided. Part VI
required the assistants to make monthly detailed reports con
cerning the effect of the order on the interests of Negroes, “whether
they have been treated with impartiality and fairness, and the
law' respecting their testimony carried out in good faith or other
wise.” General Grant’s order of January 12, 1866, had directed
the commanders to protect Negroes from prosecution in the rebel
States “charged with offenses for which white persons are not
prosecuted or punished in the same manner and degree.” Id. at 320
(Jan. 19, 1866). Senator Trumbull, questioned concerning Grant’s
order, said that he did “indorse the order and every word in it.”
Ibid.
3614 Stat. 46.
37 Section 1 of the Act of May 11, 1866, declared that any act or
omission under authorized military order came within the purview'
of the sections of the act of 1863 which made acts or omissions un
der presidential order immune from civil and criminal liability and
allowed removal to the federal courts by defendants charged in
state courts in respect of such acts. 14 Stat. 46. The section was
responsive to state court decisions requiring that a defendant pro
duce an order from the President himself in order to come within
the 1863 act. Cong. Globe, 39th Cong., 1st Sess. 1387 (March 14,
1866) (remarks of Representative Cook, who reported the bill, id.
at 1368 (March 13, 1866), and was its floor manager, id. at 1387
(March 14, 1866)). Section 2 of the 1866 act specified the means
by which the military order relied on might be proved. Section 3
extended the time for removal up to the point of empaneling a jury
in the state court, and eliminated the 1863 requirement of a removal
bond. Section 4 directed that upon the filing of a proper removal
14
chapter 27,38 authorized the issuance of writs of habeas
corpus cum causa by the federal courts to bring before
them any imprisoned defendants whose cases had been re
moved.39 The debates on the first of these remedial enact
ments are particularly revealing: they demonstrate be
yond peradventure Congress’ distrust of, and unwilling
ness to leave the vindication of federal interests to, the
state judiciary. “Now, it so happens, as the rebellion is
petitioiy all state proceedings should cease, and that any state court
proceedings after removal should be void and all parties, judges,
officers, or other persons prosecuting such proceedings should be
liable for damages and double costs to the removing party. 14 Stat.
46. Section 5 directed the clerk of the state court to furnish copies
of the state record to a party seeking to remove, and permitted that
party to docket the removed case in the federal court without at
taching the state record in case of refusal or neglect by the state
court clerk. 14 Stat. 46-47. These latter provisions were intended
to_alter procedural requirements upon which the state courts had
seized to obstruct removal. E.g., Cong. Globe, 39th Cong., 1st Sess.
1387-88 (March 14, 1866) (remarks of Representative Cook), 2054
(remarks of Senator Clark, who reported the bill, id. at 1753
(April 4, 1866), and was its floor manager, id. at 1880 (April 11,
1866)).
3814 Stat. 385.
39 The act was reported by the Judiciary Committee in each
house. Cong. Globe, 39th Cong., 1st Sess. 4096 (July 24, 1866)
(House), 4116 (Senate). Its purpose was to take from state cus
tody defendants whose cases had been removed into the federal
courts, id. at 4096 (July 25, 1866) (remarks of Representative Wil
son, who reported the bill and was its floor manager, ibid.) • Cong.
Globe, 39th Cong.; 2d Sess. 729 (Jan. 25, 1867) (remarks of Sena
tor Trumbull, chairman of the Judiciary Committee, who reported
the bill, Cong. Globe, 39th Cong., 1st Sess. 4116 (July 24, 1866),
and was it floor manager, Cong. Globe, 39th Cong., 2d Sess. 729
(Jan. 25, 1867)), and thereby to permit the federal court to de
termine the validity of the defendant’s detention under arrest, ibid.
(remarks of Senator Johnson).
The civil rights removal provisions of the Act of April 9, 1866,
eh. 31, §3, 14 Stat. 27, infra, adopted the procedures of the 1863 re
moval sections “and all acts amendatory thereof.”
15
passing away, as the rebel soldiers and officers are return
ing to their homes, that I may say thousands of suits are
springing up all through the land, especially where the
rebellion prevailed, against the loyal men of the country
who endeavored to put the rebellion down.” 40 “ [S]uits are
springing up from one end to the other; and these rebel
courts are ready to decide against your Union men and
acquit the rebel soldier.” 41 A great many vexatious suits
have been brought, and they are still pending, and instances
have been known—they exist now—where Federal officers
have been pushed very hard and put to great hardships
and expense, and sometimes convicted of crime, for doing
things which were right in the line of duty, and which they
were ordered to do and which they could not refuse to
do.” 42 In Kentucky, “they are harassing, annoying, and
40 Cong. Globe, 39th Cong., 1st Sess. 2021 (April 18, 1866) (re
marks of Senator Clark). Senator Clark reported and managed the
bill which became the act. Note 37 supra.
The oppressive volume of state litigation against Union men was
frequently noted in debate. E.g., Cong. Globe, 39th Cong., 1st Sess.
1880 (April 11, 1866) (remarks of Senator Clark), 1983 (April 17,
1866) (remarks of Senator Trumbull, Chairman of the Judiciary
Committee) : It was said that there were over 3000 cases pending
in Kentucky alone. Id. at 1526, 1529 (March 20, 1866) (remarks of
Representative McKee, of Kentucky), 1983 (April 17, 1866) (re
marks of Senator Clark), 2021 (April 18, 1866) (remarks of Sena
tor Clark), 2054 (April 20, 1866) (remarks of Senator Wilson).
41 Id. at 2021 (April 18, 1866) (remarks of Senator Clark).
42Id. at 1880 (April 11, 1866) (remarks of Senator Clark).
Recognition that the cost of defending suits and prosecution might
itself be ruinous to defendant Union men found strong expression
in the comments of Senators Edmunds, id. at 2063, 2064 (April 20,
1866), and Howe, id. at 2064, in debate of an amendment offered
by Edmunds providing that the Secretary of War should defend
all actions within the scope of the bill at government expense, and
should indemnify the individual defendant for damages, costs, fines
and expenses. The amendment was opposed on the ground that it
16
even driving out of the State the men who stood true to
the flag by suits under the legislation and judiciary rulings
would overburden the Government’s financial resources, encourage
litigation, encourage collusive actions, result in larger jury verdicts
in damage actions, and that defendants could be adequately pro
tected by private indemnifying bills. Both Edmunds’ amendment
and one by Howe providing for government defense of removed
actions, were defeated. Id. at 2064-66. Apart from questions of
expense, the injury to state-court defendants resulting from delay
in the vindication of their federal rights was pointed up by the
debate between Senators Doolittle and Hendricks, who opposed the
provision making state judges civilly liable for proceeding after
removal of a cause to the federal court, and Senators Stewart and
Clark, who supported it. Senator Doolittle said that it should not
be presumed state judges would flout the federal removal statute.
Senator Stewart asked, in effect, what relief there was for an in-
dieted defendant if the state court did flout removal, pointing out
that a state judge could force an indictment to trial even without
the cooperation of the state prosecutor.
M r . H endricks. The Senator as a lawyer knows that this
will be the effect of i t : if the application takes away the juris
diction of the State courts then the remedy, of course, if the
plaintiff persists in the case, is in the appellate courts, and
finally, on an appeal, in the Supreme Court of the United
States, inasmuch as the validity of this law, an act of Congress,
would be in question.
M r . S tew art. But suppose the judge goes on and convicts
the man and sends him to the penitentiary, he must lie there
until the case can be heard in the Supreme Court, three or four
years hence.
Mr . D oolittle. H ow can he send him to the penitentiary?
No officer is allowed to do it. Will the judge put him there
himself ?
M r . S tew art. The judge can order the officer to put him
there.
Mr . D oolittle. What if he does if the officer cannot put
him there? If every officer to execute a decree of the court
is made responsible, how can the judge do it ?
M r . S tew art. The judge has jurisdiction over the officer,
and he can order him to do it, and if he does not do it the
judge can call upon the power of the State if he has juris
diction.
Mr . Clark . I desire to make but one suggestion in answer
to the Senator from Wisconsin, and that is one of fact. He
17
of Kentucky. There no protection is guaranteed to a Fed
eral soldier.” 43 “ [I]n another county of that State the
grand jury indicted every Union judge, sheriff, and clerk
of the election of August, 1865. In addition to that every
loyal man who had been in the Army and had, under the
order of his superior officer, taken a horse, was indicted.” 44
Discrimination against the Union men “is the rule in Ken
tucky, except in one solitary district, and the Legislature
at its last session inaugurated means of removing that
judge, simply because he dared to carry out this act of the
Federal Congress [the 1863 removal statute] .” 45 “There
must be some way of remedying this crying evil, and these
men who have been engaged in the defense of the country
cannot be permitted to be persecuted in this sort of way.
Their life becomes hardly worth having, if, after having
driven the rebels out of their country and subdued them,
says if it were necessary that these judges should be proceeded
against he would not object. I hold in my hand a communica
tion from a member of the other House from Kentucky, in
which he says that all the judicial districts of Kentucky, with
the exception of one, are in the hands of sympathizing judges.
They entirely disregard the act to which this is an amendment.
They refuse to allow the transfer, and proceed against these
men as if nothing had taken place. Here is not the assumption
that these judges will not do th is; here is the fact that they do
not do it, and it is necessary that these men should be pro
tected.
Id. at 2063 (April 20, 1866). Senators Stewart and Clark prevailed
in the vote on an amendment seeking to strike the provision making
the state judges liable. Ibid.
43 Id. at 1526 (March 20, 1866) (remarks of Representative
McKee, of Kentucky).
44Id. at 1527 (remarks of Representative Smith, of Kentucky).
See id. at 1526 (remarks of Representative McKee, of Kentucky).
45 Id. at 1526; see id. at 2063 (April 20, 1866) (remarks of Sena
tor Clark).
18
those rebels are to be permitted to return and harass them
from morning until night and from night till morning, and
make their life a curse for that very defense which they
have given your country.” 46
Third, the Thirty-Ninth Congress extended the federal
habeas corpus jurisdiction to “all cases where any person
may be restrained of his or her liberty in violation of the
constitution, or of any treaty or law of the United
States . . . , ” 47 made elaborate provision for summary
hearing and summary disposition by the federal judges,
and provided that:
pending such proceedings or appeal, and until final
judgment be rendered therein, and after final judgment
of discharge in the same, any proceeding against such
person so alleged to be restrained of his or her liberty
in any State court, or by or under the authority of any
State, for any matter or thing so heard and deter
mined, or in process of being heard and determined,
under and by virtue of such writ of habeas corpus,
shall be deemed null and void.48
46 Id. at 2054.
47 Act of February 5, 1867, ch. 28, 14 Stat. 385.
48 Act of February 5, 1867, ch. 28, §1, 14 Stat. 386. The successor
to this provision is present 28 U. S. C. §2251 (1958), which au
thorizes^ any federal justice or judge before whom a habeas corpus
proceeding is pending, to “stay any proceeding against the person
detained in any State court or by or under the authority of any
State for any matter involved in the habeas corpus proceeding,”
before judgment, pending appeal, or after final judgment of dis
charge in the habeas case. State proceedings after granting of a
stay are declared void, but if no stay is granted state proceedings
are “as valid as if no habeas corpus proceedings or appeal were
pending.”
19
This statute was designed “to enlarge the privilege of the
writ of hobeas [sic] corpus, and make the jurisdiction of
the courts and judges of the United States coextensive with
all the powers that can be conferred upon them ,” 49 to give
any person “held under a State law in violation of the
Constitution and laws of the United States . . . recourse to
United States courts to show that he was illegally impris
oned in violation of the Constitution or laws of the United
States.” 50 I t was “legislation . . . of the most comprehen
sive character [bringing] . . . within the habeas corpus
jurisdiction of every court and of every judge every pos
sible case of privation of liberty contrary to the National
Constitution, treaties, or laws. I t is impossible to widen
this jurisdiction .” 51 Recent exhaustive study of the his
tory of the 1867 habeas corpus statute confirms that its
purpose was to give a summary and imperious federal
judicial procedure for the pretrial abortion of state crimi
nal proceedings,62 and fully supports the Supreme Court’s
observation that “Congress seems to have had no thought
. . . that a state prisoner should abide state court deter-
49 Cong. Globe, 39th Cong., 1st Sess. 4151 (July 25, 1866) (re
marks of Representative Lawrence, who reported the bill and was
its manager in the House).
60 Id. at 4229 (July 27, 1866) (remarks of Senator Trumbull,
Chairman of the Judiciary Committee, who reported the bill and
was its manager in the Senate, id. at 4228).
61 Ex parte McCardle, 73 U. S. (6 Wall.) 318, 325-26 (1868).
52 Amsterdam, Criminal Prosecutions Affecting Federally Guar
anteed Civil Rights: Federal Removal and Habeas Corpus Jurisdic
tion to Abort State Court Trial, 113 U. Pa. L. R ev . 793 (1965).
This article is concerned with the federal civil rights removal juris
diction as well as with federal habeas corpus power to anticipate
state criminal trials. The historical materials and some of the argu
ments in this brief are supported by the article.
20
urination of his constitutional defense—the necessary pred
icate of direct review by [the Supreme Court] . . . —before
resorting to federal habeas corpus. Bather, a remedy al
most in the nature of removal from the state to the federal
courts of state prisoners’ constitutional contentions seems
to have been envisaged.” Fay v. Noia, 372 U. S. 391, 416
(1963). See also, In re Neagle, 135 U. S. 1 (1890).
Fourth, and most significant, on April 9, 1866, Congress
enacted the first major civil rights act.53 Its third section,
the ancestor of the present 28 U. S. C. §1443 (1958), on
which appellants rely to sustain removal, provided:
Sec. 3. And he it further enacted, That the district
courts of the United States, within their respective
districts, shall have, exclusively of the courts of the
several States, cognizance of all crimes and offences
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 per
sons 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 this act; and if any suit or prosecution,
civil or criminal, has been or shall be commenced in
any State court, against any officer, civil or military,
or other person, for any arrest or imprisonment, tres
passes, or wrongs done or committed by virtue or under
color of authority derived from this act or the act estab
lishing a Bureau for the relief of Freedman and Refu
gees, and all acts amendatory thereof, or for refusing
53 Act of April 9, 1866, eh. 31,14 Stat. 27.
21
to do any act upon the ground that it would he incon
sistent with this act, such defendant shall have the
right to remove such cause for trial to the proper
district or circuit court in the manner prescribed by
the “Act relating to habeas corpus and regulating
judicial proceedings in certain cases,” approved March
three, eighteen hundred and sixty-three, and all acts
amendatory thereof. The jurisdiction in civil and
criminal matters hereby conferred on the district and
circuit courts of the United States shall be exercised
and enforced in conformity with the laws of the United
States, so far as such laws are suitable to carry the
same into effect; but in all cases where such laws are
not adapted to the object, or are deficient in the pro
visions necessary to furnish suitable remedies and
punish offences against law, the common law, as modi
fied and changed by the constitution and statutes of
the State wherein the court having jurisdiction of the
cause, civil or criminal, is held, so far as the same is
not inconsistent with the Constitution and laws of the
United States, shall be extended to and govern said
courts in the trial and disposition of such cause, and,
if of a criminal nature, in the infliction of punishment
on the party found guilty.54
The purpose of this 1866 act—“An Act to protect all
Persons in the United States in their Civil Eights and to
furnish the Means of their Vindication”—was to upset
the Bred Scott decision55 by declaring the Negroes citizens,
54 Act of April 9, 1866, eh. 31, §3, 14 Stat. 27.
55 Scott v. Sandford, 60 U. S. (19 How.) 393 (1857).
22
to establish as an incident of that citizenship “the same
right” to contract, hold property, etc., and “to full and
equal benefit of all laws and proceedings for the security
of person and property” as enjoyed by whites (section l ) ,56
to deter by criminal penalties the deprivation of that
“right” (section 2),67 and to give the Negroes access to
federal courts for protection of the right (section 3).58 The
structure of section 3 was: (1) to create original federal
jurisdiction in the case of persons who were denied or could
not enforce their §1 rights in the state courts; (2) to create
removal jurisdiction in cases where any “such person” was
sued or prosecuted in a state court; and (3) to create addi
tional removal jurisdiction over suits or prosecutions
56 Act of April 9,1866, ch. 31, §1,14 Stat. 27, provided:
That all persons born in the United States and not subject to
any foreign power, excluding Indians not taxed, are hereby
declared to be citizens of the United States; and such citizens,
of every race and color, without regard to any previous condi
tion of slavery or involuntary servitude, except as a punish
ment for crime whereof the party shall have been duly con
victed, shall have the same right, in every State and Territory
in the United States, to make and enforce contracts, to sue, be
parties, and give evidence, to inherit, purchase, lease, sell,
hold and convey real and personal property, and to 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, and penalties, and to none
other, any law, statute, ordinance, regulation, or custom, to the
contrary notwithstanding.
57 Act of April 9, 1866, ch. 31, §2, 14 Stat. 27, made it criminal
for any person, acting under color of law, to subject another to
deprivation of any right secured or protected by the act (see §1,
note 56, supra), or to different punishments, pains, or penalties by
reason of race, color, or previous servitude. The section is the fore
bearer of present 18 U. S. C. §242 (1958).
58 Act of April 9, 1866, ch. 31, §3, 14 Stat. 27.
23
against persons on account of alleged wrongs committed
under color of the 1866 act or the Freedmen’s Bureau Acts.
Little appears in the legislative history, however, that is
helpful in precise construction of any of these jurisdic
tional grants.59 Since the basic substantive right given by
section 1 of the act was a right of equal treatment under
state laws and proceedings, it was an obvious shorthand
description of the scope of section 3 to say that it covered
“the cases of persons who are discriminated against by
State laws or customs,” 60 persons “whose equal civil rights
are denied . . . in the State courts,” 61—and these were the
expressions used by Senator Trumbull, who more than any
other one man was the guiding force behind the Civil Rights
59 Except for the words which now appear as the last clause of
28 U. S. C. §1443(2) (1958), allowing removal of actions or prose
cutions “for refusing to do any act on the ground that it would be
inconsistent with [federal] . . . law [providing for equal civil
rights].”
The language “or for refusing to do any act on the ground that
it would be inconsistent with this act” was added to the Senate bill
by a House amendment. Cong. Globe, 39th Cong., 1st Sess., 1366
(March 13, 1 8 6 6 ) ; see id., at 1413 (March 15, 1866). Compare id.
at 211 (Jan. 12, 1866) (original Senate bill). The purpose of the
amendment was stated by Representative Wilson, House Judiciary
Committee chairman and floor manager of the bill, in reporting it
from his committee, as follows :
Mr. Wilson, of Iowa.
I will state that this amendment is intended to enable State
officers, who shall refuse to enforce State laws discriminating
in reference to these rights on account of race or color, to re
move their cases to the United States courts when prosecuted
for refusing to enforce those laws . . .
Id. at 1367 (March 13, 1866). There was no other pertinent discus
sion of the provision.
90 Id. at 475 (Jan. 29, 1866) (remarks of Senator Trumbull).
61 Ibid.
24
Act,62 and who gave the only systematic exposition of its
judiciary provisions found in the debates.63 In the con-
62 Senator Trumbull, who was Chairman of the Judiciary Com
mittee, introduced the bill (S. 61), and had it referred to his com
mittee. Id. at 129 (Jan. 5, 1866). He reported the bill from com
mittee, id. at 184 (Jan. 11, 1866), and managed it on the Senate
floor, see id. at 474 (Jan. 29, 1866). Throughout the debates he
played a leading role, fully commensurate with his moral and
political ascendancy over the Thirty-Ninth Congress.
63 See Senator Trumbull’s key speech urging the bill’s passage
over veto, Cong. Globe, 39th Cong., 1st Sess. 1759 (April 4, 1866) :
The President objects to the third section of the bill . . .
[H]e insists [that it] gives jurisdiction to all cases affecting
persons discriminated against, as provided in the first and
second sections of the b ill; and by a strained construction the
President seeks to divest State courts, not only of jurisdiction
of the particular case where a party is discriminated against,
but of all cases affecting him or which might affect him. This
is not the meaning of the section. I have already shown, in
commenting on the second section of the bill, that no person
is liable to its penalties except the one who does an act which
is made penal; that is, deprives another of some right that he
is entitled to, or subjects him to some punishment that he
ought not to bear.
So in reference to this third section, the jurisdiction is given
to the Federal courts of a case affecting the person that is dis
criminated against. Now, he is not necessarily discriminated
against, because there may be a custom in the community dis
criminating against him, nor because a legislature may have
passed a statute discriminating against him ; that statute is
of no validity if it comes in conflict with a statute of the
United States; and it is not to be presumed that any judge of
a State court would hold that a statute of a State discrimi
nating against a person on account of color was valid when
there was a statute of the United States with which it was in
direct conflict, and the case would not therefore rise in which
a party was discriminated against until it was tested, and
then if the discrimination was held valid he would have a right
to remove it to a Federal court—or, if undertaking to enforce
his right in a State court he was denied that right, then he
could go into the Federal court; but it by no means follows
that every person would have a right in the first instance to
go to the Federal court because there was on the statute-book
25
text of Congress’ concern with the substantive question of
denials of equality, this language plainly does not mean
that the removal jurisdiction depended upon a showing of
actual denial or discrimination by the state courts: the
very text of the statute reaches prosecutions both against
persons “who are denied” and those who “cannot enforce”
their rights in the state tribunals. In any event, it is plain
that Trumbull was summarizing only part of the jurisdic
tion granted by section 3: the jurisdiction under the clauses
affecting persons “who are denied or cannot enforce” their
federal claims (now 28 U. S. C. §1443(1) (1958)).64 The
jurisdiction over persons acting “by virtue or under color
of authority” of the 1866 Act or the Freedman’s Bureau
Acts (now 28 U. S. C. §1443(2) (1958)), remains unillumi
nated.
However, one point does emerge clearly from the debates
and from the original statutory language. Contrary to the
of the State a law discriminating against him, presumption
being that the judge of the court when he came to act upon the
case, would, in obedience to the paramount law of the United
States, hold the State statute to be invalid.
_ If it be necessary in order to protect the freedmen in his
rights (hat he should have authority to go into the Federal
courts in all cases where a custom prevails in a State, or where
there is a statute-law of the State discriminating against him,
I think we have the authority to confer that jurisdiction under
the second clause of the constitutional amendment, which au
thorizes Congress to enforce by appropriate legislation the
article declaring that “neither slavery nor involuntary servi
tude, except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United States
or in any place subject to their jurisdiction.” That clause au
thorizes us to do whatever is necessary to protect the freed-
man m his liberty. The faith of the nation is bound to do th a t;
and if it cannot be done without, would have authority to al
low him to come to the Federal courts in all eases.
64 See note 63, supra.
26
construction which the Supreme Court was later to put on
the “denial” clause (present §1443(1)) in a series of cases
between Virginia v. Rives, 100 U. S. 313 (1880), and Ken
tucky v. Powers, 201 U. S. 1 (1906), see pp. 40-50, infra,
Congress did not intend that removal be allowed only where
state statutory law, federally unconstitutional on its face,
denied a criminal defendant’s federally protected rights.
Certainly it is true that Southern resistance to the Thir
teenth Amendment first took the form of Black Codes—
statutory regulations directed expressly against the freed-
man.65 It is also true that a major purpose of the act of
1866 was to counteract the Black Codes,66 and although the
Rives-Powers doctrine was never put on this ground by
the Court, congressional concern over the Codes might be
thought to support the doctrine. I t does not, for several
reasons.
First, the Black Codes were viewed by the 1866 Congress
as overwhelming evidence that the Southern States, unless
restrained by the federal government, would discriminate
against the Negro and deprive him of his rights; in this
light they were discussed as proof of the need for federal
65 For typical Black Code provisions, see 2 Commager, D ocu
m ents of A merican H istory 2-7 (6th ed. 1958); 1 F lem in g ,
D ocumentary H istory of R econstruction 273-312 (photo reprint
1960); M cP h erson , P olitical H istory of ti-ie United S tates
D uring t h e P eriod of R econstruction 29-44 (1871).
68 The Codes were often referred to in debate. In the Senate •
Cong. Globe, 39th Cong., 1st Sess. 474 (Jan. 29, 1866) (Trum
b u ll); 602 (Feb. 2, 1866) (Lane), 603 (Wilson), 605 (Trumbull),
1759 (April 4, 1866) (Trumbull) ; in the House: id. 1118 (March
1, 1866) (Wilson), 1123-24 (Cook), 1151 (March 2, 1866)
(Thayer), 1160 (Windom), 1267 (March 8, 1866) (Raymond).
See also, id. at 340 (Jan. 22, 1866) (remarks of Senator Wilson on
the amendatory freedmen’s bureau bill).
27
action, but not as its exclusive target.67 Plainly, Congress
anticipated massive Southern resistance to the Thirteenth
Amendment, resistance not alone by legislation but by
every means at southern state command.
It was easy to foresee, and of course we foresaw,
that in case this scheme of emancipation was carried
out in the rebel States it would encounter the most
vehement resistance on the part of the old slaveholders.
It was easy to look fa r enough into the future to per
ceive that it would be a very unwelcome measure to
them, and that they would resort to every means in
their power to prevent what they called the loss of
their property under this amendment. We could fore
see easily enough that they would use, if they should
be permitted to do so by the General Government, all
the powers of the State governments in restraining
and circumscribing the rights and privileges which are
plainly given by it to the emancipated negro.68
67 See the portions of the debates cited in note 66 supra, espe
cially Cong. Globe, 39th Cong., 1st Sess. 603, 605, 1118, 1160.
See also id. at 744-45 (Feb. 8, 1866) (remarks of Senator Sherman
on the amendatory freedmen’s bureau bill). And see id. at 1124,
1125 (March 1, 1866) (remarks of Representative Cook):
Can any member here say that there is any probability, or
any possibility, that these States will secure him in those
rights ? They have already spoken through their Legislatures;
we know what they will do; these acts, which have been set
aside by the military commanders, are the expressions of
their will.
# # # * #
. . ._ Every act of legislation, every expression of opinion
on their part proves that these people would be again enslaved
if they were not protected by the military arm of the Federal
Government; without that they would be slaves to-day.
68 Id. at 503 (Jan. 30, 1866) (remarks of Senator Howard).
Second, the Black Codes which concerned Congress were
not all discriminatory and hence unconstitutional69 on their
face. Much mention was made in the debates of the South
ern vagrancy laws70 and particularly of the vagrancy law
of Virginia,71 for example, which was a color-blind statute72
whose evil lay in its systematically discriminatory applica
tion to the Negroes.73
Third, there is affirmative evidence that Congress was
aware of and intended to redress nonstatutory denials of
federal constitutional rights. Senator Trumbull told the
Senate in his principal speech urging passage of the bill
over President Johnson’s veto :
In some communities in the South a custom prevails
by which different punishment is inflicted upon the
blacks from that meted out to whites for the same
offense. Does [section 2 of the 1866 act] . . . propose
to punish the community where the custom prevails?
69 The legislators who enacted the 1866 act regarded discrimina
tory legislation as unconstitutional by force of the thirteenth
amendment.
70 See, e.g., Cong . Globe, 39th Cong., 1st Sess. 1123-24 (March 1,
1866) (remarks of Representative Cook), 1151 (March 2, 1866)
(remarks of Representative Thayer).
11 Id. at 1160 (March 2, 1866) (remarks of Representative Win-
dom), 1759 (March 4, 1866) (remarks of Senator Trumbull).
72 See Acts of Virginia, 1865-1866, at 91 (1866) (Act of Jan 15
1866).
73 Senator Wilson told the Senate that General Terry, as com
mander in Virginia, “seeing that the vagrant laws of ‘that State
were used to make slaves of men whom we have made free,”
had prohibited the enforcement of the law against Negroes. Cong.
Globe, 1st Sess., 603 (Feb. 2, 1866). Terry’s order is found in
McPherson, op. cit. supra, note 65 at 41-42.
Or is it to punish the person who, under color of the
custom, deprives the party of his right! I t is a mani
fest perversion of the meaning of the section to assert
anything else.74
Congress knew, as we have heretofore seen, that the Union
military commanders, recognizing the susceptibility to un
fair and discriminatory application of Southern laws ap
parently fair on their faces, had taken steps to protect the
freedmen against such maladministration by the provision
of military tribunals to supersede the civil courts in freed
men’s cases.75 Congress adopted this policy itself in the
Amendatory Freedmen’s Bureau Act (companion legisla
tion to the Civil Rights Act of 1866),76 and it is implausible
to suppose that the permanent civil rights legislation was
intended to give the freedmen less substantial protection.
Section 3 of the Civil Rights Act provided that removal
might be had by persons “who are denied or cannot enforce
in the courts or judicial tribunals of the State or locality
where they may he any of the rights secured to them by the
first section of this act.” (Emphasis added.) This reference
to locality strongly suggests that something less than statu
tory obstruction to the enforcement of federal rights in the
74 Cong. Globe, 39th Cong., 1st Sess. 1758 (April 4, 1866). See
also id. at 623 (Feb. 3, 1866) (remarks of Representative Kelley
on the amendatory freedmen’s bureau bill).
75 See text and notes at notes 33-35, supra.
76 The Amendatory Freedmen’s Bureau Act was H. R. 613 of the
Thirty-Ninth Congress. A predecessor bill, S. 60, was introduced
by Senator Trumbull and reported by the Senator from the Judi
ciary Committee contemporaneously with S. 61, which became the
Civil Rights Act of 1866. Cong. Globe, 39th Cong., 1st Sess. 129
(Jan. 5, 1866), 184 (Jan. 11, 1866).
30
State courts was thought sufficient to support removal.77
The rights enumerated in section 1, included “full and equal
benefit of all laws and proceedings for the security of per
son and property, as is enjoyed by white citizens . . . , any
law, statute, ordinance, regulation, or custom, to the con
trary notwithstanding.” (Emphasis added.)78 “Proceed
ings” was certainly intended to add something to “laws,”
and the inclusion of reference to “custom” was not inad
vertent. Senator Trumbull several times told the Senate
that it was intended to allow removal “in all cases where
a custom prevails in a State, or where there is a statute-law
of the State discriminating against [the freedmen] . . . . ” 79
77 The “locality” provision was rephrased in R ev. S tat. §641
(1875), p. 35 infra, which turned removal on the inability to
enforce federal rights “in the judicial tribunals of the State, or
in the part of the_ State where such suit or prosecution is pending
. . . ” This wording was carried forward in §31 of the Judicial
Code of 1911, and appears in 28 U. S. C. §74 (1940). In the 1948
revision it was “omitted as unnecessary,” Reviser’s Note, p. 36
infra, presumably on the theory that one who may remove from “a
State Court” may thereby remove from the court of any locality
of a State. The omission tokens no substantive change in the
statute.
78 Section 1 of the 1866 act was re-enacted, with its “notwithstand
ing” clause, by §§16 and 18 of the Enforcement Act of 1870, Act
of May 31, 1870, 16 Stat. 144. It appears in R ev . S tat . §1977
(now 42 U. S. C. §1981 (1958)), without the “notwithstanding”
clause. A similar clause was omitted by the revisers in carrying
forward §1 of the Act of April 20, 1871, 17 Stat. 13, as R ev . S tat.
§1979 (now 42 U. S. C. §1983 (1958)). In neither case does any
intention appear to effect a substantive change. The “notwithstand
ing” clauses, although indicative of legislative purpose in respect
of some applications of the statute—as here—never were effective
provisions, since the supremacy clause of the Constitution made
them unnecessary.
79 Cong. Globe, 39th Cong., 1st Sess. 1759 (April 4, 1866) ; id.
at 475 (Jan. 29, 1866) ; cf. id. at 1758 (April 4, 1866). See also
Blyew v. United States, 80 U. S. (13 Wall.) 581, 593 (1871).
31
The Senator expressly said that it was not the existence of
a statute, any more than of a custom discriminating against
the freedman, that constituted such a failure of state proc
ess as would authorize removal; but in each case, custom or
statute, it was the probability that the state court would
fail adequately to enforce federal guarantees.80 Senator
Lane of Indiana similarly said that the evil to be remedied
was not unconstitutional state legislation, but the probabil
ity that the state courts would not enforce the constitu
tional rights of the freedmen.81
One of the distinguished Senators from Kentucky [Mr.
Guthrie] says that all these slave laws have fallen with
the emancipation of the slave. That, I doubt not, is
true, and by a court honestly constituted of able and
upright lawyers, that exposition of the constitutional
amendment would obtain.
But why do we legislate upon this subject now?
Simply because we fear and have reason to fear that
the emancipated slaves would not have their rights in
the courts of the slave States. The State courts al
ready have jurisdiction of every single question that
we propose to give to the courts of the United States.
Why then the necessity of passing the law? Simply
because we fear the execution of these laws if left to
the State courts. That is the necessity for this pro
vision.
80 See note 63, supra.
81 Cong. Globe, 39 Cong., 1st Sess. 602-03 (Feb. 2, 1866). See
also id. at 1265 (March 8, 1866) (remarks of Representative
Broomall).
32
In 1870 and 1871, Congress enacted the second and third
Civil Eights Acts.82 The 1870 statute was primarily F if
teenth Amendment legislation; it declared the right of all
otherwise qualified citizens to vote without racial discrimi
nation,83 penalized interference with the franchise,84 and
created federal civil and criminal jurisdiction in all cases
arising under the act.85 In its sixteenth and seventeenth
sections, designed to reestablish on Fourteenth Amend
ment footing the pre-Fourteenth Amendment Civil Eights
Act of 1866, it reenacted with some extensions the first and
second sections of that Act ;86 and in its eighteenth section,
it reenacted by reference the whole of the 1866 act, “Sec
tions sixteen and seventeen hereof [to] . . . be enforced
according to the provisions of said act.” 87
The 1871 statute went further, putting the remedial pro
visions of the 1866 act to broad new uses. This “Act to
enforce the Provisions of the Fourteenth Amendment . . . ”
was designed to establish general federal civil rights juris
diction superseding state judicial processes without respect
to exhaustion of state remedies, “because, by reason of
prejudice, passion, neglect, intolerance or otherwise, state
laws might not be enforced and the claims of citizens to
the enjoyment of rights, privileges, and immunities guar-
82 Act of May 31, 1870, ch. 114, 16 Stat. 140; Act of April 20,
1871, ch. 22,17 Stat. 13.
83 Act of May 31,1870, ch. 114, §1,16 Stat. 140.
84 Act of May 31, 1870, ch. 114, §§2-7, 16 Stat. 140.
85 Act of May 31, 1870, ch. 114, §8,16 Stat. 142.
86 Act of May 31,1870, ch. 114, §§16-17,16 Stat. 144.
87 Act of May 31,1870, ch. 114, §18, 16 Stat. 144.
anteed by the Fourteenth Amendment might be denied by
the state agencies.” 88 Its first section provided:
That any person who, under color of any law, statute,
ordinance, regulation, custom., or usage of any State,
shall subject, or cause to be subjected, any person
within the jurisdiction of the United States to the
deprivation of any rights, privileges, or immunities
secured by the Constitution of the United States, shall,
any such law, statute, ordinance, regulation, custom, or
usage of the State to the contrary notwithstanding, be
liable to the party injured in any action at law, suit
in equity, or other proper proceeding for redress; such
proceeding to be prosecuted in the several district or
circuit courts of the United States, with and subject
to the same rights of appeal, review upon error, and
other remedies provided in like cases in such courts,
under the provisions of the act of the ninth of April,
eighteen hundred and sixty-six, entitled “An Act to
protect all persons in the United States in their civil
rights, and to furnish the means of their vindication” ;
and the other remedial laws of the United States which
are in their nature applicable in such cases.89
Also, in 1871, Congress amended the Second Civil Eights
Act of 1870, adding detailed administrative provisions for
88Monroe v. Pape, 365 U. S. 167, 180 (1961). The purpose of the
1871 act to provide a federal forum for the vindication of federal
civil rights notwithstanding failure to exhaust, state remedies was
reaffirmed in McNeese v. Board of Educ., 373 IT. S. 668 (1963)
(alternative ground).
89 Act of April 20, 1871, eh. 22, §1, 17 Stat. 13. These provisions
are carried forward in part in present 28 U. S. C. §1343(3) (1958);
Rev. Stat. §1979 (1875), 42 U. S. C. §1983 (1958).
34
the enforcement of voting rights. Here again it authorized
removal of suits or prosecutions against officers or persons
acting under the amendatory statute.90
Four years later the last major Civil Eights Act of the
Nineteenth Century was enacted, affirming the equal right
of Negroes to public accommodation. Like its predecessors,
the statute contained jurisdictional provisions making the
federal trial courts the agencies of its enforcement.91 In
the same year the Judiciary Act created general federal
question jurisdiction in original and removed civil actions,92
thereby for the first time permanently establishing a fed
eral trial forum for every litigant engaged in a significant
civil controversy based on a claim arising under the federal
constitution and laws.93 Save for petty controversies, fed
eral trial jurisdiction was now made coextensive with the
concern for effective enforcement of national law; on the
widest front, Congress gave expression to the assumption
of Hamilton and Madison that federal judges “are more
likely to give full scope to any given Supreme Court deci
sion and particularly ones unpopular locally, than are their
state counterparts.” 94
The Revised Statutes of 1875, then, carried forward ex
tensive new grants of federal trial jurisdiction created dur
ing the preceding dozen years, among them the civil rights
90 Act of Feb. 28, 1871, ch. 99, §16,16 Stat. 438.
91 Act of March 1,1875, ch. 114, 18 Stat. 335.
92 Act of March 3,1875, ch. 137, §§1-2, 18 Stat. 470.
93 See 28 U. S. C. §§1331, 1441 (1958).
94 Mishkin, The Federal “Question” in the District Courts 53
Coltjm. L. R ev . 157, 158 (1953).
35
removal statutes, codified with some change of language in
section 641:
Sec. 641. When any civil suit or criminal prosecu
tion is commenced in any State court, for any cause
whatsoever, against any person who is denied or can
not enforce in the judicial tribunals of the State where
such suit or prosecution is pending, any right secured
to him by any law providing for the equal civil rights
of citizens of the United States, or of all persons with
in the jurisdiction of the United States, or against any
officer, civil or military, or other person, for any arrest
or imprisonment or other trespasses or wrongs, made
or committed by virtue of or under color of authority
derived from any law providing for equal rights as
aforesaid, or for refusing to do any act on the ground
that it would be inconsistent with such law, such suit
or prosecution may, upon the petition of such defen
dant, 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 where it is pend
ing. Upon the filing of such petition all further pro
ceedings in the State courts shall cease, and shall not
be resumed except as hereinafter provided.
In 1911, in the course of abolishing the old Circuit Courts,
Congress technically repealed Rev. Stat. §641 (Judicial
Code of 1911, ch. 231, §297, 36 Stat. 1168), but carried its
provisions forward without change (except that removal
jurisdiction was given the district courts in lieu of the cir
cuit courts) as §31 of the Judicial Code (Judicial Code of
1911, ch. 231, §31, 36 Stat. 1096). Section 31 verbatim be-
36
came 28 U. S. C. §74 (1940), and in 1948, with changes in
phraseology, it assumed its present form as 28 U. S. C.
§1443 (1958). The reviser’s note to §1443 indicates that no
substantive changes were intended. H. E. Eep. No. 308, 80th
Cong., 1st Sess. A134 (1947).
There is no blinking the message of this history. As a
result of the Eeconstruetion legislation, representing a
radical change of Congressional attitude toward the States
and particularly the state court, the federal trial courts as
sumed the role in which the most foresighted members of
the Constitutional Convention had cast them—as the neces
sary, the indispensable instruments for the enforcement of
federal rights.95 The Thirteenth, Fourteenth, and Fifteenth
Amendments had now written into the Constitution broad
new national guarantees of liberty and equality, committing
the federal government to protect the individual against
the States. The four major civil rights acts had undertaken
to establish the new liberties and each of the acts made the
federal trial courts the front line of federal protection.
Power had been given those courts in civil actions to en
join or redress every deprivation by the States of “rights,
privileges, or immunities secured by the Constitution,”
using every remedial device known to federal law.96 Habeas
corpus, “the most celebrated writ in the English law,” 97
95 Frankfurter & Landis, The Business of the Supreme Court 64-
65 (1927).
96 Section 1 of the Ku Klux Elan Act of 1871. See also the broad
authorization of Rev. Stat. §722 (1875), 42 U. S. C. §1988 (1958),
deriving from §3 of the first Civil Rights Act; Lefton v. Hatties
burg, 333 F. 2d 280 (5th Cir. 1964) ; Brazier v. Cherry, 293 F. 2d
401 (5th Cir.), cert, denied, 368 IJ. S. 921 (1961); Pritchard v.
Smith, 289 F. 2d 153 (8th Cir. 1961).
97 3 B uackstone, Commentaries 129 (6th ed., Dublin 1775).
37
“the great and efficacious writ in all manner of illegal con
finement,” 98 was given the federal judges “in all cases
where any person may be restrained of his or her liberty
in violation of the constitution, or of any treaty or law.” 99
No longer reluctant to disrupt state criminal prosecutions
which had proved potent instruments of harassment, Con
gress had enacted criminal removal statutes in 1863 and
1866 covering cases arising out of the Civil War, in 1864
and 1866 covering cases arising out of enforcement of the
wartime revenue acts, in 1866 covering cases of all persons
prosecuted for acts under color of authority of civil rights
law and all persons who could not enforce their newly given
civil rights in the state courts, in 1871 covering voting en
forcement cases. Plainly, it seemed that the Reconstruction
Congresses had accomplished their principal nationalizing
purpose: the effective protection of freedoms won in battle
and secured against state action by the post-war constitu
tional amendments and statutes, through the extension of
the sheltering arm of a plenary federal trial court jurisdic
tion.
Yet what the Reconstruction Congresses had painstak
ingly achieved was beclouded by a series of decisions
of the post-Reconstruction Supreme Court of the United
States. Those decisions are far narrower than has fre
quently been supposed—all, as will be shown in the next
section of this brief, speak to a single, very limited issue—
but the opportunity which the Court’s opinions gave to the
federal district courts to disembarrass themselves of un
wanted business was widely seized upon; the district courts
98 Id. at 154.
99 Act of February 5, 1867, eh. 28, §1, 14 Stat. 385.
38
extended the Supreme Court’s removal decisions unwar-
rantedly; the result was virtual judicial repeal of what is
now 28 U. S. C. §1443(1) (1958). And, because remand
orders were thought to be nonappealable between 1887 and
1964, the lower courts’ construction of the removal statute
stood and froze.
In the Civil Rights Act of 1964, congressional reaction to
that construction was expressed. With the palpable purpose
of undoing the district courts’ decisions which had made a
worthless nullity of the civil rights removal statute,100 Con
gress made civil rights remand orders appealable.101 The
freeze was broken, and the invocation of that new appel
late jurisdiction brings the present cases to this Court.
100 See, e.g., 110 Cong. R ec . 6551 (March 30, 1964) (remarks of
Senator Humphrey), 6344 (remarks of Senator Kuehel). And see
particularly id. at 6739-6740 (April 6, 1964) (remarks of Senator
D odd):
An examination of the legislative history of the act of 1866,
which first authorized such removals, of the language of that
act and its successors, and of the apparent congressional pur
pose clearly suggests that these old interpretations are erro
neous . . .
Accordingly the removal statute, intended by Congress to
be . . . one of the great bulwarks of equality, is of little or
no value today . . . If an appeal is allowed from orders to
remand, the appellate courts will be able to consider what the
removal statute means and what Congress intended when it
enacted the statute.
In recent months and years a number of cases have arisen
which could properly have been removed from State to Fed
eral court if the original intention of Congress had been
permitted to govern.
101 28 U. S. C. §1447(d), as amended by §901, Civil Rights Act
of 1964, 78 Stat. 241, 266.
39
B. Judicial B ackground
The body of Supreme Court decisions dealing with civil
rights removal will now be considered. All are concerned
with the predecessor of present 28 II. S. C. §1443(1) (1958).
The provision that is now §1443(2) has never been before
the Court.
The predecessor of §1443(1)102 was first construed by the
Supreme Court in 1880, in Strauder v. West Virginia, 100
U. S. 303 (1880). There, the Court sustained removal on
the petition of a Negro indicted for murder in a West Vir
ginia court which alleged that by reason of an 1873 West
Virginia statute restricting eligibility for jury service to
white males, Negroes were excluded from grand and petit
juries in the courts of that State. Strauder was adjudged a
person who is “denied” or who “cannot enforce” his federal
equal civil rights. Since his removal petition was filed (as
it had to be) before state trial103 and was sufficient, if ever,
102 The provision was then Eev. Stat. §641 (1875). In the con
cept presently material—the concept of a person “denied or [who]
cannot enforce rights in the state courts—the statute has remained
unchanged from 1866 to the present.
103 Rev. Stat. §641 (1875) required that a petition for removal
be filed “at any time before the trial or final hearing of the cause.”
Present 28 U. S. C. §1446(c) (1958) requires filing “at any time
before trial.” This pretrial character of the removal procedure,
which played a significant part in the construction given the civil
rights removal statute in and following Virginia v. Rives, 100 U. S.
313 (1880), appears not to have been an incident of the procedure
authorized by the original 1866 act. That act contained no inde
pendent procedural provisions, but adopted by reference the
removal procedures of the Habeas Corpus Suspension Act of March
3, 1863, ch. 81, §5, 12 Stat. 755, 756. The 1863 act had authorized
removal either before trial, 12 Stat. 756, or after judgment, 12
Stat. 757; from the 1866 language, loth these forms of removal
were meant to be carried over to civil rights cases. See Senator
Trumbull’s speech set out in note 63 supra. The Act of May 11,
40
at that time, the Court clearly held that the potential ap
plicability of an unconstitutional state statute to his case
gave Strauder grounds for removal without inquiry into
possibility that the state courts might sustain his constitu
tional claim and void the unconstitutional state legislation,
as the supremacy clause obliged them to do. The state
statute directed the state judges to an unconstitutional
conclusion, and the Supreme Court found the conditions of
removability satisfied.
But, in Virginia v. Rives, 100 U. S. 313 (1880), decided
the same day, removal was denied. In Rives a federal trial
court assumed removal jurisdiction on a petition alleging
that petitioners were Negroes charged with murder of a
white man; that there was strong race prejudice against
them in the community; that the grand jury which indicted
them and the jurors summoned to try them were all white;
that the prosecutor and judge had refused petitioners’ re
quest that one-third of the trial jury be composed of
Negroes; that, notwithstanding the state laws required
jury service of males without discrimination of race,
Negroes had never been allowed to serve as jurors in the
county in any case in which their race was interested.
The State of Virginia sought a writ of mandamus in the
Supreme Court to compel the lower federal court to remand
the case, and the Supreme Court issued the writ. Its opin
ion, read narrowly, found that petitioners’ allegations “fall
1866, ch. 80, §3, 14 Stat. 46 amended the 1863 procedures to
authorize pretrial removal at any time before empaneling of a jury
in the state court. Thus, although the Act of May 11, 1866, ex
plicitly provided that it did not affect postjudgment removal,
Rev. Stat. §641 failed to carry that form of removal forward in
civil rights cases.
41
short of showing that any civil right was denied, or that
there had been any discrimination against the defendants
because of their color or race. The facts may have been
as stated, and yet the jury which indicted them, and the
panel summoned to try them, may have been impartially
selected.” 104 There was wanting, as a matter of pleading
(in those early days before the Court’s experience in the
trial of jury discrimination claims bred the “prima facie”
showing doctrine),105 an allegation of purposeful or inten
tional discrimination, and the Court said that this might
have been supplied by averment that a statute of the State
barred Negroes from jury service. “When a statute of the
State denies his right, or interposes a bar to his enforcing
it, in the judicial tribunals, the presumption is fair that
they will be controlled by it in their decisions; and in such
a case a defendant may affirm on oath what is necessary
for a removal.” 106 Thus, by reason of the requirement of
a factual showing under the removal statute that a defen
dant could not enforce his federal rights in the state court,107
104 100 U. S. at 322.
105 See, e.g., Norris v. Alabama, 294 U. S. 587 (1935) ; Hernandez
v. Texas, 347 U. S. 475 (1954); Reece v. Georgia, 350 U. S. 85
(1955) ; Eubanks v. Louisiana, 356 U. S. 584 (1958) ; Arnold v.
North Carolina, 376 U. S. 773 (1964); but, cf. Swain v. Alabama,
----- U. S .------ , 33 U. S. Law Week 4231 (decided March 8, 1965).
106 100 U. S. at 321.
107 But in the absence of constitutional or legislative impedi
ments he cannot swear before his case comes to trial that his
enjoyment of all his civil rights is denied to him. When he
has only an apprehension that such rights will be withheld
from him when his case comes to trial he cannot affirm that
they are actually denied, or that he cannot enforce them. Yet
such an affirmation is essential to his right to remove his case.
Id. at 320. Elsewhere the Court treated the problem as one of
showing that a defendant’s rights are denied “in the judicial
tribunals of the State,” id. at 321 (emphasis in original), within
the meaning of the statute, merely another manner of stating the
same concern.
42
the Court said that the inability to enforce federal rights of
which the removal statute speaks “is primarily, if not exclu
sively, a denial of such rights, or an inability to enforce
them, resulting from the Constitution or laws of the State,
rather than a denial first made manifest at the trial of the
case.” 108
So construed, Rives held no more than that the removal
petitioners’ allegations were insufficient to state a claim of
unconstitutional jury discrimination under the standards
then prevailing, and its comments on the existence or non
existence of discriminatory legislation were merely specu
lation on sorts of allegations which would be sufficient. But
the case could also be read rather loosely as saying that
unless a state constitution or statute on its face denied a
defendant’s federal constitutional rights, his case was not
removable under present subsection 1443(1).109
Without adequate consideration of the point, the Court
in Neal v. Delaware110 took this latter view of Rives. Like
Rives, the Neal case involved a Negro defendant indicted
for a capital offense. His removal petition alleged that
Negroes were systematically excluded from grand and petit
juries in the state courts, and that this exclusion was by
reason of an 1831 constitutional provision of the State of
Delaware, disqualifying Negroes as electors, hence as
jurors. The Delaware court in which, pursuant to the re
moval practice then in force, Neal filed his removal peti-
108 Id. at 319.
109 The Court also said: “In other words, the statute has refer
ence to a legislative denial or an inability resulting from it.” Id
at 319-320.
110103 U. S. 370 (1881).
43
tion111 took the view that the 1831 provision had been ren
dered void by the supervention of the Fourteenth and
Fifteenth Amendments, so that, if there was any jury dis
crimination in Delaware—which, in any event, the Dela
ware court found that Neal had failed to prove—such dis
crimination was unauthorized by state constitution or
statute. On writ of error to the Delaware court, the Su
preme Court disagreed that Neal had failed to show sys
tematic exclusion of Negroes from the grand jury, and it
reversed Neal’s conviction for error in overruling his mo
tion to quash the indictment and jury panels. But the Su
preme Court agreed with the court below that this discrimi
nation was unauthorized by statute and, in extended dictum,
sustained denial of the removal petition. As the Court read
Strauder and Rives, those cases held
that the constitutional amendment was broader than
the provisions of sect. 641 [present subsection 1443(1)]
. . . ; that since that section only authorized a re-
iii p r ior 1948, removal procedure differed under the various
federal removal statutes. In a civil rights case, the petition for
removal was filed in the state court in which the case originated.
See Eev. Stat. §641 (1875), continued by Judicial Code of 1911,
§31, 36 Stat. 1096. If the state court declined to allow the removal,
exception to that ruling could be preserved for examination by
the Supreme Court of the United States on review of the final state
court judgment, as in Neal. Alternatively, petition could be made
to the federal trial court to which removal had been sought and
disallowed by the state court, and that court might effect the
removal by issuance of process which terminated the state pro
ceeding, as in Rives. See the description of similar procedures in
Metropolitan Cas. Ins. Co. v. Stevens, 312 U. S. 563 (1941).
The 1948 Code revision made removal practice uniform; under
the imiform procedure, the petition for removal is filed in the
first instance in the federal district court to which removal is
sought, and this filing (with appropriate service on the state court
and opposing party) effects removal, ousting the state court of
jurisdiction unless and until the federal court remands. 28 U. S. C.
§§1446-47 (1958).
44
inoval before trial, it did not embrace a case in which
a right is denied by judicial action during the trial, or
in the sentence, or in the mode of executing the sen
tence; that for denials, arising from judicial action,
after the trial commenced, the remedy lay in the re
visory power of the higher courts of the State, and,
ultimately, in the power of review which this court may
exercise over their judgments, whenever rights, privi
leges, or immunities, secured by the Constitution or
laws of the United States, are withheld or violated;
and that the denial or inability to enforce in the judicial
tribunals of the States, rights secured by any law pro
viding for the equal civil rights of citizens of the United
States, to which sect. 641 refers, is, primarily, if not
exclusively, a denial of such rights, or an inability to
enforce them, resulting from the Constitution or laws
of the State, rather than a denial first made manifest
at the trial of the case. We held that Congress had not
authorized a removal where jury commissioners or
other subordinate officers had, without authority de
rived from the Constitution and laws of the State,
excluded colored citizens from juries because of their
race. 103 U. S. at 386-87.
“The essential question, therefore,” said the Court, was
whether Negroes were excluded from Delaware juries “by
reason of the Constitution and laws of Delaware” ;112 and,
finding that “the alleged discrimination in the State of
Delaware, against citizens of the African race, in the mat
ter of service on juries, does not result from her Constitu
tion and laws,” 113 the Court ruled removal unauthorized.
112 Id. at 387.
113 Id. at 389.
45
This ruling was repeated in a series of substantially iden
tical cases at the end of the nineteenth century. In each
case the defendant was a Negro charged with murder in a
state court who based his removal petition upon allegations
of systematic exclusion of Negroes from the grand and
petit juries. In Gibson v. Mississippi, 162 U. S. 565 (1896);
Smith v. Mississippi, 162 U. S. 592 (1896); and Murray v.
Louisiana, 163 U. S. 101 (1896), it was alleged that this
exclusion was practiced by local officials without authority
of statute or state constitution. Smith and Murray moved
to quash the indictment, petitioned the state court for re
moval, and challenged the venire or panel of trial jurors,
all on the same equal protection grounds. Gibson did not
move to quash the indictment but did petition for removal
and challenged the petit jury. In all three cases the Su
preme Court affirmed the convictions, sustaining denial of
the removal petitions on the ground that no state statute or
constitution denied the defendants their equal civil rights,
and sustaining denial of the respective motions to quash or
challenges to the petit jury on the ground that no sufficient
case of discrimination was established. The Gibspn and
Murray opinions repeated substantially the passage from
Neal quoted in the text, and Smith relied on Gibson.
In Bush v. KentucJcy, 107 U. S. 110 (1883), the exclusion
of Negro jurors was allegedly practiced under an 1873 Ken
tucky statute making only whites competent to serve as
grand and petit jurors. Motions to quash the indictment,
petitions for removal, and a challenge to the panel of petit
jurors (the last being formally inadequate to raise a federal
claim) were made and overruled. The Supreme Court found
that prior to Bush’s indictment and trial the Kentucky
Court of Appeals had declared the 1873 statute unconstitu-
46
tional and void; this put Bush in a posture identical to
Neal’s in Delaware, and the Court sustained denial of the
removal petition on authority of Neal. As in Neal, the Court
found the claim of grand jury discrimination supported
on the record and reversed the conviction for error in deny
ing the motion to quash.
In Williams v. Mississippi, 170 U. S. 213 (1898), defen
dant claimed not merely that administrative officials had
systematically excluded Negroes from juries, but also that
the provisions of the Mississippi constitution and statute
prescribing the procedures for qualifying electors and
jurors (only electors being competent jurors) were
but a scheme on the part of the framers of that con
stitution to abridge the suffrage of the colored elec
tors in the State of Mississippi on account of the previ
ous condition of servitude by granting a discretion
to the said officers as mentioned in the several sections
of the constitution of the State and the statute of the
State adopted under the said constitution, the use of
said [sic: which] discretion can be and has been used
in the said . . . County to the end complained of. Id.
at 214.
I t was alleged that the constitution was drawn by a con
stitutional convention of 133 white and one Negro members,
which refused to submit the new constitution to popular
vote for adoption, because of the heavy preponderance of
Negro voters qualified under prior law; and that the legis
lature acted immediately under the new constitution, with
a purpose to discriminate against Negroes in the franchise,
by passing a statute which gave local election managers
wide discretion in judging the qualifications of persons reg-
47
istering to vote. Motions to quash the indictment and for
removal were made and denied. Williams was convicted;
the Mississippi Supreme Court and the Supreme Court of
the United States affirmed. Sustaining denial of the motion
for removal, the Court began by quoting from Gibson the
standard paragraph from Neal. I t noted that no claim was
made that the Mississippi constitution or statute was dis
criminatory on its face; and it concluded that the well-
pleaded factual averments of the defendant’s motions failed
to present “sufficient allegation of an evil and discrimi
nating administration” of the State’s laws. 170 U. S. at
222. On these grounds, the motion to quash, as well as
that for removal, was held correctly denied.
Obviously, as a technical matter, none of these cases held
or could hold anything on the question of construction of
the removal statute. Each case came to the Supreme Court
from state court judgments of conviction (see note 111
supra); in each, the same jury-exclusion claim which was
the basis for a removal petition was, on an identical rec
ord, the basis for a motion to quash or other attack on the
grand or petit jury; where (as in all eases save Bush) the
Supreme Court affirmed, it necessarily rejected the jury-
exclusion claim on substantive grounds and therefore made
it unnecessary to decide whether a valid claim of this sort
would sustain removal; and where (as in Bush) the Su
preme Court reversed on grounds that the substantive claim
supported a motion to quash, rejection of the removal claim
was equally unnecessary to decision. Technical considera
tions apart, however, by 1898 the Court supposed it had long
ago settled that removal under present §1443(1) was allow
able only on a claim of facial unconstitutionality of a state
or constitutional provision.
48
In Kentucky v. Powers, 201 U. S. 1 (1906), the Court
made its last attempt114 at construction of the removal sec
tion. Following three trials for murder in a Kentucky
court, each resulting in conviction reversed on appeal by
the Kentucky Court of Appeals, Powers, prior to his fourth
trial, filed his petition alleged (1) that the killing with
which he was charged had occurred during the course of a
factional dispute, accompanied by widespread political ex
citement and animosity, involving contested elections for
all of the major state offices; (2) that Powers had been the
Republican candidate for secretary of state; one Taylor
the Republican candidate for governor; and Goebel, the
man with whose murder Powers was charged, the Demo
cratic candidate for governor; (3) that Goebel’s killing
aroused intense hostility toward Powers on the part of
Goebel Democrats and inflamed them against him; and
that this hostility continued throughout his three trials and
still existed; (4) that in each of Powers’ three trials the
sheriff and deputies charged with jury selection, all being
Goebel Democrats, connived with the trial judge to violate
the regular state procedures for selecting juries, and instead
systematically excluded Republicans and Independents from
the jury panels and selected Goebel Democrats for the pur
pose of assuring Powers’ conviction; (5) that the judge at
114 Between 1887 and 1964 it was generally supposed that orders
of a lower federal court remanding to a state court proceedings
sought to be removed from it were not reviewable by the federal
appellate courts. See Act of March 3, 1887, ch. 373, §2, 24 Stat.
553, as amended, Act of Aug. 13, 1888, ch. 866, 25 Stat. 435.
Preservation of a removal point through state appeals following
adverse final judgment, was generally bootless, for the reason that
it added nothing to other federal claims so preserved. When the
lower courts began to deny civil rights removal generally on the
authority of Powers and its immediate predecessors, there was
therefore no occasion for Supreme Court consideration of the issues
decided below.
49
each trial denied Powers’ requests that the jury be selected
equally from both political parties (approximating the
roughly equal popular vote each had polled at the last elec
tion), or that the jury be selected without reference to
party, and overruled Powers’ objections to jurors selected
by systematic exclusion of Republicans and Independents;
(6) that on each appeal, by force of a Kentucky statute
which made certain trial court rulings unreviewable, the
Kentucky Court of Appeals had held it had no power to
upset the trial judge’s rulings on the jurors—which deci
sions were the law of the case and as binding on the Ken
tucky courts as statu tes; (7) that at each trial, Powers had
pleaded in bar a pardon issued to him by Governor Tay
lor, who at the time of its issuance was the duly elected
and acting governor of the State; that the trial judge had
refused to admit the pardon as a defense (this being the
first time in Kentucky jurisprudence that a Kentucky court
refused to give effect to an executive pardon); and on each
appeal the court of appeals had sustained this ruling—
which decisions also were the law of the case and binding
on the Kentucky courts; (8) that Powers was confined in
jail without bail awaiting a fourth trial and for all the fore
going reasons was unable to obtain a fair trial in the Ken
tucky courts.115 The lower federal court assumed jurisdic
tion on removal, concluding
that the prior action of the Scott Circuit Court deny
ing the defendant the equal protection of the laws is
115 Although this fact is not mentioned in the Supreme Court’s
opinion, it appears that each of the previous reversals of Powers’
convictions by the Court of Appeals of Kentucky had been by 4-3
vote of that court; that, following the third reversal one judge
who had on each occasion voted to reverse retired from the bench,
and was succeeded by the judge, who had presided at each of
Powers’ first two trials. See Kentucky v. Powers, 139 Fed. 452,
458-59 (C. C. B. D. Ky. 1905), rev’d, 201 U. S. 1 (1906).
50
a real hindrance and obstacle to his asserting his right
thereto in a future trial therein—just as real as an un
constitutional statute would be—and that the defendant
is denied the equal protection of the laws in said court,
within the meaning of said section, and entitled to a
removal on account thereof.116
On the State’s appeal and petition for mandamus, the Su
preme Court held that this was error, that removal was
improper, and it ordered the case remanded to the state
court. The Court noted that, notwithstanding the state
court of appeals would not entertain Powers’ claim of error
in denial of his federal rights, review of those claims could
be had by writ of error issued from the Supreme Court to
the state trial court after conviction. And as the Court
read its earlier cases, those cases
expressly held that there was no right of removal un
der section 641, where the alleged discrimination
against the accused, in respect of his equal rights, was
due to the illegal or corrupt acts of administrative
officers, unauthorized by the constitution or laws of the
State, as interpreted by its highest court. For wrongs
of that character the remedy, it was held, is in the state
court, and ultimately in the power of this court, upon
writ of error, to protect any right secured or granted
J to an accused by the Constitution or laws of the United
States, and which has been denied to him in the highest
court of the State in which the decision, in respect of
that right, could be had.117
116139 Fed. at 487.
117 201 U. S. at 31.
51
Since Powers, the lower federal courts have consistently
held that unless a state constitutional or statutory provision
unconstitutional on its face is alleged to deprive a defen
dant of his federal rights, removal under present section
1443(1) is unauthorized.118
118 Hull v. Jackson County Circuit Court, 138 F. 2d 820 (6th
Cir. 1943) (alternative ground) (prejudiced judge in state post
conviction proceeding, semble) ; Maryland v. Kurek, 233 F. Supp.
431 (D. Md. 1964) (denial of speedy trial) ; North Carolina v.
Alston, 227 F. Supp. 887 (M. D. N. C. 1964) (trespass charges
unconstitutional under equal protection clause as applied to sit-ins;
state supreme court has previously rejected this claim) ; City of
Clarksdale v. Gertge, 237 F. Supp. 213 (N. D. Miss. 1964) (prose
cution of civil rights worker for taking photographs in city hall
without mayor’s permission is designed to harass voter registration;
hostile and racially discriminatory state courts; Negro exclusion
from juries and from electorate electing state judges) ; In re
Kaminetsky, 234 F. Supp. 991 (E. D. N. Y. 1964) (state contempt
proceeding will compel self-incriminating testimony); Arkansas
v. Howard, 218 F. Supp. 626 (E. D. Ark. 1963) (hostile and
racially prejudiced prosecutor and community; discriminatory
prosecution; Negro jury exclusion; offense charged for conduct
protected by federal court order); City of Birmingham v. Croskey,
217 F. Supp. 947 (N. D. Ala. 1963) (state policy of racial dis
crimination ; Negro exclusion from juries and electorate electing
state judges; jury hostility; charges void for vagueness and
unconstitutional as applied apparently on first amendment and
equal protection grounds) ; Van Newkirk v. District Attorney, 213
F. Supp. 61 (E. D. N. Y. 1963) (trial delay and pretrial hospital
commitment without hearing); Petition of Hagewood, 200 F. Supp.
140 (E. D. Mich. 1961) (prejudiced jury and trial judge; dis
criminatory enforcement of recidivist statute; various procedural
errors) ; Band v. Arkansas, 191 F. Supp. 20 (W. D. Ark. 1961)
(prejudiced jury) • Hill v. Pennsylvania, 183 F. Supp. 126 (W. D. -
Pa, 1960) (alternative ground) (denial of speedy trial) ; Louisiana
v. Murphy, 173 F. Supp. 782 (W. D. La. 1959) (charge under
licensing statute discriminatorilv administered); Texas v. Dorris,
165 F. Supp. 738 (S. D. Tex. 1958) (prosecutor, judge, and jury
controlled by complainant); California v. Lamson, 12 F. Supp. 813
(N. I). Cal.), petition for leave to appeal denied, 80 F. 2d 388
(Wilbur, Circuit Judge, 1935) (prejudiced ju ry ) ; New Jersey v.
Weinberger, 38 F. 2d 298 (D. N. J. 1930) (prejudiced trial judge).
Even claims that the statute under which the defendant was
charged was facially unconstitutional were held insufficient to
52
II.
The Construction of 28 U. S. C. §1443.
28 U. S. C. §1443 (1958) provides:
§1443. Civil Rights Cases.
Any of the following civil actions or criminal prose
cutions, commenced in a State court may be removed
by the defendant to the district court of the United
States for the district and division embracing the place
wherein it is pending:
(1) Against any person who is denied or cannot
enforce in the courts of such State a right under any
law providing for the equal civil rights of citizens
of the United States, or of all persons within the
jurisdiction thereof;
(2) For any act under color of authority derived
from any law providing for equal rights, or for re
fusing to do any act on the ground that it would be
inconsistent with such law.
This brief will first consider a problem of construction
common to §1443(1) and §1443(2), then problems of con
struction peculiar to the respective subsections, and finally
several larger considerations of policy important to the con
struction of the statute.
support removal in Snypp v. Ohio, 70 F. 2d 535 (6th Cir. 1934)
(alternative ground) (Blue Sky law), and North Carolina v.
Jackson, 135 F. Supp. 682 (M. D. N. C. 1955) (statute requiring
racial segregation on buses), on the ground that it was not shown
that the state courts would not fairly entertain the federal claim.
53
A. “Law P rovid in g fo r Equal R igh ts”
I t is clear that the phrase “any law providing for equal
rights” in 28 U. S. C. §1443(2) means the same thing as the
language of §1443(1): “any law providing for the equal
civil rights of citizens of the United States, or of all persons
within the jurisdiction thereof.” 119
Appellants contend that the following statutes, upon one
or more of which they rely, are laws providing for equal
civil rights: (1) Title I I of the Civil Eights Act of 1964,
78 Stat. 241, 241-46, 42 U. S. C. A. §2000a (1964);
(2) the Civil Rights Act of 1957, §131, 71 Stat. 637, as
amended, Civil Eights Act of 1960, §601, 74 Stat. 90, as
amended, Civil Rights Act of 1964, §101, 78 Stat. 241, 42
U. S. C. A. §1971 (1964); (3) section 1 of the Third Civil
Eights Act, the Ku Klux Act of April 20, 1871, ch. 22, §1,
17 Stat. 13, p. 33, supra, now codified in R ev. S tat.
§1979 (1875), 42 U. S. C. §1983 (1958).
119 Aŝ we shall shortly show, the concept of a law providing for
equal civil rights originated in the codification of the removal
statutes by §641 of the Revised Statutes of 1875. In that section,
which is set out at p. 35, supra, the removal provision extended to
any person who could not enforce in the state courts “any right
secured to him by any law providing for the equal civil rights of
citizens of the United States, or of all persons within the juris
diction of the United States,” and to officers or persons charged
with wrongs done under color of authority “derived from any law
providing for equal rights as aforesaid.” These two removal
authorizations (now respectively subsections (1) and (2) of §1443)
appeared in the 1911 Judicial Code, §31, 36 Stat. 1096, exactly as
they had appeared in the Revised Statutes, with the “color of
authority” passage referring explicitly back to the “aforesaid” laws
described in the “cannot enforce” passage. Omission of “as afore
said” in the 1948 revision effected no substantive change, for as
indicated by the reviser’s note, supra, the 1948 revision intended
only “changes . . . in phraseology.” Accord: New York v. Galami-
son, 2nd Cir., Nos. 29166-75, Jan. 26, 1965,----- P. 2 d -------, ___ ,
cert. den.----- U. S .------ , April 26, 1965, at slip opinion p. 981.
54
(1) Title I I of the Civil Eights Act of 1964, protecting
the right of all persons to the services of places of public
accommodation without racial discrimination, was held a
law providing for equal civil rights in Rachel v. Georgia,
----- F. 2d ——, 5th Cir., No. 21354, March 5, 1965. Even
under the most restrictive possible construction of the re
moval statute, as reaching only laws “couched in terms of
equality, such as the historic and the recent civil rights
statutes,” New York v. Galamison, 2d Cir., Nos. 29166-75,
Jan. 26, 1965, ----- F. 2 d -------, cert. den. ------ U. S. ___
April 26, 1965, slip opinion p. 995,120 the soundness of the
Rachel decision cannot be questioned.
120 Galamison was the first decision by a federal appellate court
construing subsection 1443(2). The case presented an attempt to
remove prosecutions under a miscellany of state charges (disorderly
conduct, simple assault, nuisance, unlawful assembly, loitering at
a school building, inducing truancy, etc.) growing out of car and
subway stall-ins, city hall sit-ins and schoolyard leafleting to pro
test racial discrimination. The court was asked to hold that peti
tioners’ prosecutions for protests against discrimination came
within the removal statute on the theories (a) that free speech con-
duct was per se conduct under color of authority of a law provid
ing for equal rights (namely, the due process clause of the Four
teenth Amendment or 42 U. S. C. §1983 or 18 U. S. C. §242,
creating civil and criminal liability respectively for deprivation of
due process rights) ; or (b) more narrowly, that at least the exer-
cise of free speech to protest racial discrimination came under
color of authority of such a law (namely, the equal protection
clause of the Fourteenth Amendment or statutes implementing it).
Judges Friendly and Kaufman, over Judge Marshall’s dissent, re
jected the second theory on the ground that such laws did not give
color or authority to protest discrimination and rejected the first
theory on the same ground, as respects due process guarantees, and
also on the alternative and unnecessary ground that Ҥ1443(2)
applies only to rights that are granted in terms of equality and not
to the whole gamut of constitutional rights.” Slip opinion, p. 992.
The alternative ground, involving the meaning of “any law pro
viding for equal rights,” thus reached out to affect §1443(1) as
well.
00
(2) Title 42 U. S. C. §1971, protecting the right to vote
without racial discrimination is equally plainly a law pro
viding for equal civil rights. The statute is expressly
couched in terms of equality” and hence indistinguishable
from Title I I of the Civil Eights Act of 1964. Rachel com
pels its inclusion among the referents of 28 U. S. C. §1443
(1958).
(3) Title 42 U. S. C. §1983 protects all Fourteenth
Amendment civil rights,121 among them the F irst Amend
ment s freedom of expression.122 Yet the Galamison opin
ion, in an alternative ground and over the dissent of Judge
Marshall, decides that 42 U. S. C. §1983 is not a law provid
ing for equal civil rights. This is simply wrong.123 Even
on its own reasoning that §1443 reaches only statutes
couched in terms of equality, such as the historic . . .
121 Monroe v. Pape, 365 U. S. 167 (1961). By a “civil right” is
meant a “right or immunity . . . of personal liberty, not dependent
for its existence upon the infringement of property rights.” Hague
v. CIO, 307 U. S. 496, 518, 531 (1939) (plurality opinion of Mr.
Justice Stone on the point).
122 Egan v. City of Aurora, 365 U. S. 514 (1961); Douglas v.
C'ity of Jeannette, 319 U. S. 157, 161-62 (1943) (relief denied on
other grounds); Hague v. CIO, 307 U. S. 496, 518, 527 (1939)
(Stone,/.).
3 Several courts have said that the language “a right under any
law providing for the equal civil rights of citizens of the United
States, or of all persons within the jurisdiction thereof,” means
nothing more than equal protection of the laws, and that removal
is unauthorized unless the petitioner can show that a constitutional
right of equality is withheld in the state courts. Steele v. Superior
Court 164 F. 2d 781 (9th Cir.) (alternative ground), cert, denied,
333 U. S. 861 (1948) ; Hill v. Pennsylvania, 183 F. Supp. 126
(W. D. Pa. 1960); Maryland v. Kurek, 233 F. Supp. 431 (d ! Md.
1964). This seems implausible, for the twenty-five word phrase
surely goes to unreasonable lengths to say “equal protection of the
laws.” Since these cases offer no supporting reasoning, they
deserve no further concern.
56
civil rights statutes,” Galamison improperly excludes §1983.
That section derives from section 1 of the Ku Klux Act of
1871, an “historic . . . civil rights act” if any such exists,
and whose second section, R e v. S t at. §1980 (1875), 42
U. S. C. §1985 (1958) is “couched in terms of equality.”
Judge Friendly, in his prevailing opinion in Galamison,
concludes that the revisers of 1875, who introduced into
the removal statute the language “law providing for .
equal civil rights,” intended thereby to allude to section 2
of the Ku Klux Act, but not to section 1 of the same act.
To conclude otherwise was, for him, “a flight of fancy.”
Slip opinion, p. 988. Judge Marshall did not find it fanci
ful to conclude that when the 1875 revisers cross-referenced
the removal provisions to the first two civil rights acts (of
1866 and 1870) and to a portion of the third (of 1871), they
cross-referenced to the rest of the third as well. Appellants
find persuasive Judge Marshall’s position, slip opinion, p.
1015, that—in light of the general language used in the
revision—42 U. S. C. §1983 is not to be read out of the
reference in §1443 without some affirmative demonstration
that the revisers of 1875 intended to exclude section 1 of
the Civil Rights Act of 1871 from the reference. This posi
tion is the stronger because section 1 itself expressly pro
vided that the proceedings which it authorized for vindica
tion of civil rights were to be prosecuted
with and subject to the same rights of appeal, review
upon error, and other remedies provided in like cases
in such courts, under the provisions of the act of the
ninth of April, eighteen hundred and sixty-six, entitled
“An act to protect all persons in the United States in
their civil rights, and to furnish the means of their
vindication” ; and the other remedial laws of the United
57
States which are in their nature applicable in such
cases.124
The statutory referent here is to the Civil Eights Act of
1866; the sweeping language “other remedies provided in
like cases in [the federal] . . . courts, under the provisions
of the [1866 A ct]” is broad enough to include the 1866
Act’s critical removal provisions; and the still more sweep
ing reference to “the other remedial laws of the United
States which are in their nature applicable in such cases”
is effective to invoke the removal provisions of the 1863
Habeas Corpus Suspension Act, upon which those of 1866
were also based. At least, the revisers of 1875 might rea
sonably have so concluded.
But the vice of the Galamison opinion goes deeper. The
court simply fails to consider a far more likely construction
of §1443 than one which refers to laws “couched in terms
of equality.” As a matter of language, the phrase “any law
providing for the equal civil rights of citizens of the United
States, or of all persons within the jurisdiction thereof”
might mean by “law” only federal statutory law, or both
federal statutory and constitutional law. In either case it
might refer (i) to certain specific statutes (and/or con
stitutional provisions), such as the Civil Eights Acts of
1866, 1870, and 1871 (and the Thirteenth, Fourteenth, and
Fifteenth Amendments); or (ii) generically to statutes
(and/or constitutional provisions) explicitly guaranteeing
equality of rights; or (iii) generically to statutes (and/or
constitutional provisions) whose purpose was to protect
the Negro and assure him in his civil rights, whether or
not the statute (or constitutional provision) spoke explic-
124 rpjjg seetion is set out at p. 33, supra.
58
itly in terms of equality; or (iv) generieally to statutes
(and/or constitutional provisions) protecting civil rights
universally (ergo, “equally” to all). The petitioners in
Galamison appear to have stood on constructions (i) and
(iv), including within each the due process clause of the
Fourteenth Amendment and 42 U. S. C. §1983. Construc
tion (i) has been rejected by this Court in Rachel v. Georgia,
supra, as it was by all the judges in Galamison—and needs
not be further considered. The majority of the Galamison
court rejects construction (iv) as well, on the ground that
that construction renders the word “equal” tautological.
This seems a plausible but hardly compelling reading, con
cerning which more will be said shortly. The court then
settles on construction (ii), preferring it to construction
(iii), which the court does not explicitly consider. No rea
son for preference appears.
Historically, the language referring the scope of §1443 to
laws providing for equal civil rights is the product of the
Revised Statutes of 1875. Section 3 of the Civil Rights Act
of 1866 had created original and removal jurisdiction in
cases affecting or against persons who were denied or could
not enforce “any of the rights secured to them by the first
section of this act,” and additional removal jurisdiction in
suits or prosecutions for trespasses or wwongs under color
of authority derived from the 1866 act or the Freedmen’s
Bureau Act of 1865, “and all acts amendatory thereof.”
The first section of the 1866 act declared the Negroes
citizens and gave all citizens the same rights as whites
in specified regards; the Freedmen’s Bureau Act of 1865125
created for the duration of the war a bureau to supervise
125 Act of March 3, 1865, ch. 90, 13 Stat. 507.
59
abandoned lands and control “all subjects relating to
refugees and freedmen from rebel states,” 126 the bureau be
ing empowered, inter alia, to convey abandoned or con
fiscated lands to the refugees and freedmen ;127 the Amenda
tory Freedmen’s Bureau Act of 1866,128 inter alia, continued
the 1865 Act for two years;129 confirmed certain sales of
land and directed others by federal tax commissioners to the
freedmen;130 and provided that, until the restoration of
the ordinary course of judicial proceedings and resumption
of constitutional relations with the central government
(including the seating of representatives in Congress) in
any State in which these had been disrupted by the war, the
identical rights enumerated in section 1 of the Civil Rights
Act of 1866 should be secured to all citizens without respect
to race or color, and the President through the Bureau
should “extend military protection and have military juris
diction over all cases and questions concerning the free
enjoyment of such immunities and rights.” 131 The second
civil rights act of 1870 extended to “all persons” the guar
antee of equality in most of those enumerated rights secured
to “citizens” by the Civil Rights Act of 1866 and the
Amendatory Freedmen’s Bureau Act; to protect the new
126 Act of March 3,1865, ch. 90, §1,13 Stat. 507.
127 Act of March 3, 1865, ch. 90, §4,13 Stat. 508.
128 Act of July 16, 1866, ch. 200, 14 Stat. 173. The act was H. R,
613 of the Thirty-ninth Congress. A predecessor bill, S. 60, was
introduced by Senator Trumbull and reported by the Senator from
the Judiciary Committee contemporaneously with S. 61, which
became the Civil Rights Act of 1866. Cong. Globe, 39th Cong., 1st
Sess. 129 (Jan. 5, 1866), 184 (Jan. 11, 1866).
129 Act of July 16, 1866, ch. 200, §1,14 Stat. 173.
130 Act of July 16, 1866, eh. 200, §§6-7,14 Stat. 174-75.
131 Aet of July 16, 1866, ch. 200, §14,14 Stat. 176.
60
guarantee, the 1870 act adopted by reference the proce
dural provisions (including removal) of the 1866 act. Sec
tion 1 of the third civil rights act of 1871, as has been men
tioned above, cross-referenced to the 1866 Civil Rights Act,
“and the other remedial laws of the United States which are
in their nature applicable in such cases.” Codifying the
civil rights removal jurisdiction, §641 of the Revised S ta t
utes of 1875 allowed removal by any defendant who was
denied or could not enforce “any right secured to him by
any law providing for the equal civil rights of citizens of
the United States, or of all persons within the jurisdiction
of the United States,” and also by any defendant sued or
prosecuted for trespasses or wrongs under color of au
thority derived from such law.
The Qalamison majority purports to find in this history
additional cause for preferring its construction (ii) to con
struction (iv). First, the court says, in accordance with the
usual canons of construction, that substantial effect in alter
ing prior law should not be given to a codification, and
especially because Congress “was so intent on avoiding-
substantive alterations that it designated a lawyer for the
purpose of eradicating any such changes made by the
codifying commission.” 132 This, of course, proves entirely
too much: under the Qalamison court’s own construction
(ii), referring section 1443 to “all laws stated in egalitarian
terms,” 133 Congress’ lawyer did a strikingly poor job;
for the construction very substantially adds to the pre-
1875 civil rights removal jurisdiction, as the same Congress
which was shortly to enact the egalitarian Civil Rights Act
132 s.o. at 988.
133 Ibid.
61
of 1875 could not have failed to see. The lawyer did a still
worse job with other civil rights provisions of the revision.
The Revised Statutes in unequivocal terms broadened civil
remedies for civil rights violations.134 It broadly rewrote
the criminal statute punishing rights violations under color
of state law, extending its coverage beyond deprivations of
egalitarian rights under the Civil Rights Acts of 1866 and
1870 to reach deprivations of “any rights, privileges, or
immunities, secured or protected by the Constitution and
laws.” Moreover, Galamison’s reasoning that construction
(iv) would attribute to the revision a “drastic . . . alteration
in judicial jurisdiction” 135 leaves out of account that the
habeas corpus act of 1867136 had given the federal trial
courts jurisdiction coextensive with the federal Constitu
tion and laws to abort state criminal trials, and that they
were using their jurisdiction in precisely that fashion prior
to the date of the revision.137 Second, Galamison argues, the
“Reconstruction Congress knew how to speak more
broadly” 138 when it wished to protect all Fourteenth
Amendment rights: witness the first section of the Civil
Rights Act of 1871. Perhaps, but the Reconstruction Con-
134 Compare §1 of the Third Civil Rights Act of 1871, protecting
deprivation of rights secured by the “Constitution,” with Rev.
Stat. §1979 (1875), protecting deprivation of rights secured by
the “Constitution and laws.”
136 s.o. at 988.
136 Act of February 5, 1867, ch. 28,14 Stat. 385.
137Fa; parte McCready, 15 Fed. Cas. 1345 (No. 8732) (C. C.
B. D. Va. 1874) ; Ex parte Bridges, 4 Fed. Cas. 98 (No. 1862)
(C. C. N. D. Ga. 1875). The doctrine requiring exhaustion of state
remedies originated more than a dozen years later, in Ex parte
Boyall, 117 U. S. 241 (1886).
138 Slip opinion, p. 989.
62
gress also knew how to speak more specifically of equality
when that was all it meant to protect: witness the second
section of the same act. These arguments establish the
proposition that the removal statute, present Section 1443,
is far from lucid, a proposition no one disputes. Galami-
son’s best comparative argument against construction (iv)
is that one of the Revised Statutes' judiciary provisions,
section 629, sixteenth,139 does seem to distinguish rights se
cured by the Constitution, on the one hand, from rights
“secured by any law providing for equal rights,” on the
other. Though this is again not compelling,140 it is a point
of some weight, and together with the inclusion of the word
“equal” in section 1443, might rationally lead to rejection of
construction (iv).141
139 R ev . S tat. §629, sixteenth (1875), gives the federal circuit
courts jurisdiction of all suits authorized by law to be brought to
redress the deprivation, under color of state law, “of any right,
privilege, or immunity, secured by the Constitution of the United
States, or of any right secured by any law providing for equal
rights of citizens of the United States, or of all persons within the
jurisdiction of the United States.”
140 R ev . S tat. §629, sixteenth (1875), quoted in note 139, supra,
governed the jurisdiction of the circuit courts. The parallel juris
dictional provision for the district courts, R ev . S tat . §563, twelfth
(1875), covered suits authorized by law to be brought to redress
the deprivation, under color of state law, “of any right, privilege,
or immunity secured by the Constitution of the United States, or
of any right secured by any law of the United States to persons
within the jurisdiction thereof.” Applying the same logic to this
section that Galamison applies to §629, sixteenth, one concludes
that Congress must have distinguished rights secured by the Con
stitution for whose redress suits were authorized by law, and rights
secured by law. This seems improbable; rather it is best to recog
nize what is obvious to any reader of the post-War Civil Rights
Acts: that they were obscurely and sloppily drafted, and obscurely
and sloppily codified, and that close intersection comparison pro
vides at best slight illumination.
141 Galamison purports to rely on authority as well as reason in
rejecting construction (iv). Its authorities are unpersuasive. In
63
I t does not follow that the court’s construction (ii), re
ferring section 1443 to laws stated in egalitarian terms, is
correct. There remains construction (iii), not considered in
the Galamison opinion, extending the section to laws whose
purpose is egalitarian. The historical arguments which the
court advances to support preference of construction (ii)
over construction (iv) provide no basis for choice between
constructions (ii) and (iii). Construction (ii) is narrower;
the court’s general penchant for giving as slight effect as
possible to the revision does favor its adoption. For the
reasons set out in the preceding paragraph, however, that
penchant is a fundamentally unreliable basis for interpret
ing the statute. And there is in history some affirmative
cause to prefer construction (iii).
Gibson v. Mississippi, 162 U. S. 565 (1896), a jury-exelusion equal
protection clause contention was embellished by the argument that
the jury selection statute under which the discrimination was prac
ticed was also applied ex post facto in Gibson’s case, since Gibson’s
charged offense predated the statute. The Court properly treated
this ex post facto claim as extravagant on the merits, and addi
tionally said that it did not come within the protection of the
removal section, apparently for the same reason that Gibson’s jury-
exelusion claim itself did not—that is, because neither attacked
the face of the statute. 162 U. S. at 585-86. There is no support
here for the view taken by Judge Friendly to the effect that Gibson
excludes ex post facto claims, as a class, from the scope of §1443(1).
Moreover, it is highly dubious that in 1896 the Gibson court
thought of an ex post facto claim as depending on the Fourteenth
Amendment. Steele v. Superior Court, 164 F. 2d 781 (9th Cir.),
cert, denied, 333 U. S. 861 (1948), is disposed of by note 123, supra.
The argument from Douglas v. City of Jeannette, 319 U. S. 157
(1943), supposes that the Supreme Court had the civil rights
removal statute in mind when it decided that injunction ease—a
rather far-fetched assumption. Nothing in the case was calculated
to call attention to that statute, which had been a dead letter
for better than thirty years prior to 1943. Its inconspicuousness
is indicated by the slight notice given it in, for example, the
exhaustive F rankfurter & L andis, T h e B usiness of th e Suprem e
Court 62 n. 22 (1927).
64
Under construction (ii), the revision took out of the re
moval jurisdiction certain sorts of cases previously within
it, those under the Freedmen’s Bureau Act. That act had
authorized the conveyance of abandoned lands to the freed-
men and, assuming the correctness of the construction put
on subsection 1443(2), infra, state prosecutions arising out
of their self-help efforts to defend such property against
its pre-War title-holders would have been removable under
the 1866 removal section.142 The Freedmen’s Bureau Act
had expired, of course, and most of the land had been re
stored to its pre-W ar owners prior to the date of the re
vision. But the act demonstrates that Congress had seen
the utility of legislation which was not explicitly egalitarian
to protect the Negro following the War, and that Congress
had employed removal jurisdiction in connection with such
legislation. The Civil Rights Act of 1871 was an instance
of protective legislation of this kind;143 the due process
clause of the Fourteenth Amendment was another.144 Prac-
142 Self-help, that is, resulting in personal injury to an attempted
dispossessor. See Bigelow v. Forrest, 76 U. S. (9 Wall.) 339 (1869).
143 The opinions in Monroe v. Pape, 365 U. S. 167 (1961), canvass
the legislative background of the statute.
144 The amendment “ordains that no State shall make or enforce
any laws which shall abridge the privileges, or immunities of citizens
of the United States (evidently referring to the newly made citi
zens I t ordains that no State shall deprive any person of
life, liberty, or property, without due process of law, or deny to
any person within its jurisdiction the equal protection of the laws.
What is this but declaring that the law in the States shall be the
same for the black as for the white; that all persons, whether colored
or white, shall stand equal before the laws of the States, and, in
regard to the colored race, for whose protection the amendment
was ̂ primarily designed, that no discrimination shall be made
against them by law because of their color?” Strauder v. West
Virginia, 100 U. S. 303, 307 (1880).
65
tieally, the civil rights guaranteed by the clause and the
statute all amount in essence to a guarantee of equality.145
I t is difficult to imagine that the revisers of 1875 did not
take account of the ordinary and necessary flexibility of
legislative means, and in their concern for statutes protect
ing “equal civil rights” did not understand that there had
been and doubtless would continue to be statutes of
egalitarian purpose which nevertheless did not proceed to
their purpose simply by providing that A’s treatment
should be equal with B’s. Thus, more tenable is that con
struction of section 1443 which refers removability to laws
of egalitarian purpose, not merely those of egalitarian
terms.
A part from questions of statutory history, the Galamison
court fears the “effects . . . on federal-state relations” 14,5
of construing section 1443 to reach other federal guarantees
than those of equality. In view of the nineteenth and twen
tieth century developments of the due process clause to
protect a far wider range of interests than those equal
civil liberties with which its framers were fundamentally
concerned, the court’s reluctance to allow removal across
146 Realistically, such federal guarantees of civil liberty as free
speech, free resort to the ballot, free access to the streets are all
guarantees of equal protection of the laws. The mayor and the
chief of police of Canton, Mississippi or Chicago, Illinois would
never be arrested if they picketed or marched to a courthouse. Of
course, the mayor and the police chief would never picket or march,
for the forces which would assure that if the mayor and police
chief picketed the courthouse they would not be arrested are the
same forces which would assure that the mayor and police chief
would never be the sort of men who would want to picket the
courthouse, and that whatever the mayor and police chief wanted
done in the courthouse would be communicated to the courthouse
in other and more effective ways than picketing.
146 Slip opinion, p. 992.
66
the breadth of due process claims is understandable. But
restriction to claims of equality is not the appropriate limit
ing principle. In the first place, that restriction is less
effective than the Galamison majority appears to believe.
The equal protection clause of the Fourteenth Amendment
—which the Galamison opinion expressly allows is a law
providing for equal civil rights147—has its history of ex
pansion, too. I t has not infrequently been invoked against
economic regulatory legislation,148 and several of the fright
ening examples which Galamison displays of cases not to
be removed without destruction of federalism—Sunday law
prosecutions, prosecutions for practicing a profession with
out a license149—present as colorable equal protection as
due process claims.150 Second, the due process guarantees
of individual liberty, although not expressly egalitarian,
have substantial egalitarian effect and among them are
147 Id. at 982.
148 See McFarland v. American Sugar Ref. Co., 241 U. S. 79
(1916).
149 S. 0. at 992-93.
150 The Supreme Court’s treatment of the equal protection claims
in McGowan v. Maryland, 366 U. S. 420 (1961), and companion
Sunday law cases, demonstrates that commodity discrimination
may in some circumstances support a colorable equal protection
claim. And to allow removal of Sunday law prosecutions on the
equal protection ground would, of course, carry considerably
broader implications for the removability of prosecutions under
state regulatory legislation generally than would allowance of
removal in the Sunday cases on religious freedom grounds. As for
prosecutions under state professional licensing statutes, Galamison
cites Hornsby v. Allen, 326 F. 2d 605 (5th Cir. 1964), rehearing
denied 330 F. 2d 55 _(5th Cir. 1964). See S. 0. at 993. Hornsby
holds arbitrary denial of a liquor license unconstitutional on
alternative due process and equal protection grounds; the equal
protection claim is more clearly grounded, certainly, than is civil
rights jurisdiction under 42 U. S. C. §1983 (1958). See text
accompanying note 154, infra.
67
some, principally freedom of expression, in which the need
for a removal jurisdiction is particularly strong, as we
shall see. The desired limiting principle, rather, is best
supplied by construing “law providing for . . . equal civil
rights” as referring to statutory law alone, not statutory
and constitutional law. The Supreme Court in Strauder
seems to take this view,151 and the use of the term “law”
with the clear meaning of “statute” in several cognate
judiciary provisions of the Revised Statutes tends at least
slightly to support it.152 Prior to the revision, removal
jurisdiction had been used exclusively to implement specific
congressional programs, and there was no evident reason
for the revisers to go beyond this use. Section 1 the Civil
Rights Act of 1871, present 42 U. S. C. §1983, gives statu
tory protection to the constitutional guarantees of civil
rights153 which were the Reconstruction Congress’ concern;
appellants’ construction of the removal statute thus reaches
only so much of the due process and equal protection
clauses as 42 U. S. C. §1983 implements: namely, rights
“of personal liberty not dependent for [their] . . . existence
upon the infringement of property rights.” 154
151 The court in Strauder was not content to rest on the equal
protection clause of the Fourteenth Amendment, but placed re
movability on denial of a right under R ev . S tat. §1977 (1875), the
successor to §1 of the Civil Rights Act of 1866.
152 See R ev . S tat. §§1979, 5510 (1875).
163 See notes 121, 122 supra-.
154 Hague v. CIO, 307 U. S. 496, 518, 531 (1939).
68
B. Subsection 1 4 4 3 ( 1 ) : A “R igh t” W hich a P erson Is
“D enied o r Cannot E nforce”
Subsection 1443(1) poses two principal problems of con
struction. First, what federal rights, privileges or immuni
ties are protected by the statute: that is, what kind of
“right” must a removal petitioner show he is denied or
cannot enforce in the state courts in order to sustain re
moval? Second, what must the removal petitioner show,
before state trial, to demonstrate that he is “denied or
cannot enforce” his protected rights in the state courts?
1. Appellants claim one or more of the following rights
under statutes providing for equal civil rights: (a) a right
of access to public accommodations, under Title I I of the
Civil Rights Act of 1964, supra; (b) a “right” peacefully
to attempt to register to vote, under 42 U. S. C. §1971,
supra; (c) a right peacefully to exercise first amendment
freedom of expression to protest racial discrimination, un
der 42 U. S. C. §1983, supra, free from state interference.
(a) Appellants’ rights to nondiscriminatory public ac
commodations, and to freedom from harassment by prose
cutions for seeking service in such accommodations, is
settled by Rachel v. Georgia, supra, and Dilworth v. Riner,
5th Cir. No. 22008, March 18, 1965.
(b) The right to be free from prosecution for peacefully
attempting to register to vote or for peacefully encouraging
those attempting to register a vote was recognized in
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961).
In that case, this Court held that John Hardy, a Negro
voter registration worker in Mississippi, had the right
to be free from state prosecution for peacefully attempting
to encourage Negro citizens to attempt to register to vote.
69
Wood is solidly supported by a comparison of 42 U. S. C.
§1971(b) with §203(c) of the Civil Rights Act of 1964, 42
TJ. S. C. §2000a-2(c), and 42 U. S. C. §1971 (c) with §204(a),
42 U. S. C. §2000a-3(a), as the 1964 Act’s provisions were
interpreted by Dilworth v. Riner, supra, to accord a right
against prosecution “for peacefully claiming the right to
equal public accommodation” (slip opinion, p. 12).
(c) Numerous cases have also recognized the right to be
free from state prosecution for peacefully exercising F irst
Amendment rights of free speech, assembly and petition.
In Kelley v. Page, 335 F. 2d 114, 118-19 (5th Cir. 1964),
this Court spelled out some of the rights of Negro demon
strators. In a suit brought by demonstrators against city
officials, seeking to enjoin them from unlawful interferences
with their demonstrations, this Court, in reversing a judg
ment of the district court denying injunctive relief, dis
cussed the demonstrators’ rights in the following term s:
First, as to the rights of plaintiffs, those espousing
civil rights through the Movement, it has long been
settled, indeed from the beginning, that a citizen or
group of citizens may assemble and petition for redress
of their grievances. F irst Amendment, U. S. Const. . . .
Edwards v. South Carolina, 1963, 372 U. S. 229. . . . A
march to the City Hall in an orderly fashion, and a
prayer session within the confines of what plaintiffs
seek would appear, without more, to be implicit in this
right.
. . . And these rights to picket and to march and to
assemble are not to be abridged by arrest or other in
terference so long as asserted within the limits of not
unreasonably interfering with the right of others to use
70
the sidewalks and streets, to have access to store en
trances, and where conducted in such manner as not to
deprive the public of police and fire protection.
. . . In short, those engaged in the Albany Movement
have definite well defined constitutional rights. They
must be accorded where claimed, but in a manner that
will accommodate rights of other citizens to the end
that the rights of all may be preserved.
On remand the district judge enjoined the city officials
from, inter alia:
[Djenying to Negro citizens the right to peacefully
protest against state enforced racial segregation in the
City of Albany, Georgia by peacefully walking two
abreast upon the public sidewalks of the City of Albany,
observing all traffic signals, walking close to the build
ing line or close to the curb so as not to interfere with
or obstruct other pedestrian traffic on the sidewalk and
peacefully assembling in front of the City Hall and
peacefully speaking out against said segregation for a
reasonable period of time when traffic to and from
places of business or employment is not at its peak,
and in such circumstances as will not unduly disrupt
the public peace and conducted in such manner as not
to deprive the public of adequate police and fire pro
tection.
[P roh ib iting or preventing the activities described
[above] . . . by arrests, threats of arrest, harassment
or intimidation.
Other United States District Courts have also issued in
junctions against interferences by state or city officials with
71
peaceful protest demonstrations, especially demonstrations
in support of the right to vote. In Boynton v. Clark, United
States District Court, S. D. Ala., No. 3559-65, January 23,
1965, United States District Judge Thomas guaranteed the
rights of demonstrators in support of voting rights in the
following term s:
Those interested in encouraging others to register to
vote have the right peaceably to assemble outside the
court house, but shall not do so in such a way as to in
terfere with lawful business expected to be transacted
in the court house. Such persons also have a right to
peaceably assemble without molestation, and will be
permitted to do so; but violence, either by those so as
sembled or officers entitled to surveillance over such as
semblages, or on the part of outsiders, will not be
tolerated at such assemblage.
Not only are such assemblages entitled to occur, but
those so assembled are entitled to have lawful protec
tion in such assemblage.
This order in no wise is intended to interfere with
the legal enforcement of the laws of the State of Ala
bama, Dallas County, or the City of Selma. But under
the guise of enforcement there shall be no intimidation,
harassment or the like, of the citizens of Dallas County
legitimately attempting to register to vote, nor of those
legally attempting to aid others in registering to vote
or encouraging them to register to vote.
Also, in Williams v. Wallace, United States District
Court, M. D. Ala., No. 2181-N, March 17,1965 United States
District Judge Johnson issued an injunction against state
officials, forbidding them from interfering with the rights
of marchers peacefully protesting against denials of voting
rights.
72
(d) In United States v. Clark, S. D. Ala., C. A. No. 3438-
64, April 16, 1965, a three-judge federal district court re
cently acted to protect all three federal rights, viz., the
right to the nondiscriminatory enjoyment of public ac
commodations, the right to peacefully attempt to register
to vote or to encourage others to do so, and the right of free
speech, assembly and petition. The court broadly enjoined
state officers from :
(1) Arresting, detaining under unreasonable bail, prose
cuting, punishing, or threatening to arrest, detain,
prosecute or punish discriminatorily and without just
cause, any person exercising or seeking to exercise
his right to vote or to register to vote, or to use pub
lic accommodations free from racial discrimination;
(2) Arresting, detaining under unreasonable bail, prose
cuting, punishing, or threatening to arrest, detain,
prosecute or punish discriminatorily and without just
cause, any person or persons to prevent or having
the effect of preventing persons from organizing,
meeting or assembling to discuss or advocate the
exercise of their constitutional righ ts;
(3) Using unreasonable force, or threatening without
just cause to use unreasonable force, or any usual or
unusual punishment in the performance of law en
forcement functions against persons exercising or
seeking to exercise their constitutional righ ts;
(4) Failing to provide ordinary police protection to per
sons attempting peaceably to exercise their constitu
tional righ ts;
(5) Intimidating, threatening, or coercing any person by
any means whatever for the purpose of or having
the effect of preventing, interfering with, or dis-
73
couraging Negroes from voting or registering to
vote, or from using public accommodations.
2. Appellants submit that they are denied and are unable
to enforce the several rights described above when they are
interfered with in the exercise of these rights by official ac
tion in the form of state prosecution.
Appellants begin with the holding in Strauder that when
ever a state statute on its face (that is, in every possible
application to a statutorily defined class) deprives a class
of person of federal rights protected by subsection 1443(1),
those persons may remove their prosecutions without mak
ing any showing beyond the face of the statute itself that
the state courts are likely to sustain the statute against the
federal claim. Negroes prosecuted under a statute requir
ing segregated seating on buses and penalizing seating in
violation of the segregation pattern could therefore on this
ground alone remove the prosecution under §1443(1); for,
although it is true that the Strauder statute deprived Ne
groes of equal protection in a matter of trial procedure,
while the bus segregation statute deprives them of equal
protection in the out-of-court conduct which is the subject
matter of the prosecutions sought to be removed, this ap
pears a distinction without a difference. Conviction in
either case would deny the defendants their federally guar
anteed rig h t; in both cases it is the facially unconstitutional
statute which dictates to the state courts the illegal convic
tion.155 Under the same theory, since subsection 1443(1)
protects due process as well as equal protection guarantees
of civil liberty, see P art 11(A) supra, prosecutions under
state statutes or local ordinances that on their faces violate
155 But see North Carolina v. Jackson, 135 F. Supp. 682 (D. N. C.
1955) (disallowing removal in a bus-segregation statute ease like
the one hypothesized in text).
74
the F irst and Fourteenth Amendment guarantees of free ex
pression are eo ipso removable.156 Recently the Supreme
Court enjoined prosecutions under state statutes void for
vagueness, saying: “ [T]he reasons for the vagueness doc
trine in the area of expression demand no less than free
dom from prosecution prior to a construction adequate to
save the statute.” Dombrowslci v. P fister,----- U. S . -------,
33 U. S. L. W. 4321, 4324, decided April 26,1965.
Moreover, under the Stra-ader test of removability—viz.
whether state statutory law directs the federally unconstitu
tional result complained of, so that that result is produced
by statute and not simply by state judicial action uncon
strained by the State’s legislation—it should make no dif
ference whether the state statute complained of is uncon
stitutional on its face (i.e., in all applications to a described
class) or unconstitutional as applied (i.e., insofar as it
condemns particular defendants’ federally protected con
duct) : in both cases, equally, it is the statute which compels
the state courts to the constitutionally impermissible result
and thus brings it about that the defendant “cannot enforce
in the courts of [the] . . . State” his federally protected
rights. As appellants read Rachel v. Georgia, supra, that
case flatly decided the point. Removal was there allowed
without a showing either of the existence of a facially un
constitutional state statute or of any other obstruction to
enforcement of the removal petitioners’ federal claims in
the state courts. I t was sufficient that a federal law provid
ing for equal civil rights precluded application of the state
statute under which the charges were laid to the conduct
charged.
166 In a number of unreported decisions, district courts have
remanded such cases, e.g., several of the cases presently consoli
dated in the pending appeal in Brown v. City of Meridian, No.
21730, 5th Cir., but these decisions cannot stand if Strauder is still
the law.
Appellants see no bar to this result in the Hives-Powers
line of eases, discussed in P art 1(B), supra. Appellants
have satisfied the requirements of Rives-Powers by assert
ing that the state statutes under which they are charged are
unconstitutional as applied to them. That, appellants sub
mit, is sufficient. True, the Rives-Powers cases appear to re
quire a facially unconstitutional state statute to support re
moval. But each of the cases involved only a claimed denial
of a federal right by an unconstitutional trial procedure:
specifically, systematic exclusion in the selection of jurors.
In none of the cases did the defendant claim that the sub
stantive criminal statute on which the prosecution was bot
tomed was invalid, either on its face or as applied, by reason
of federal limitations on the kind of conduct which a State
may punish. This latter sort of claim asserts that, under
the Constitution, no matter what procedures may he forth
coming at trial, the State cannot constitutionally apply the
statute relied on to the conduct with which the defendant is
charged. Neal v. Delaware and subsequent cases explain the
Rives-Powers line as holding that “ since [the removal] . . .
section only authorized a removal before trial, it did not
embrace a case in which a right is denied by judicial action
during the trial . . . ” 157 But a defendant who attacks the
underlying criminal statute as unconstitutional does not
predicate his attack on “judicial action during the trial.”
He says that if he is convicted at all under the statute his
conviction will be federally illegal. Nothing about his con
tention is contingent upon the nature of “judicial action,
after the trial commenced . . . ” 158
151 Neal v. Delaware, 103 U. S. 370, 386 (1881); see, e.g., Gibson
v. Mississippi, 162 U. S. 565, 581 (1896).
158 Neal v. Delaware, supra, note 157, at 387. Of course, the
state court may hold that the statute does not apply, or may hold
When a statute of the State denies his right, or inter
poses a bar to his enforcing it, in the judicial tribunals,
the presumption is fair that they will be controlled by
it in their decisions; and in such a ease a defendant may
affirm on oath what is necessary for a removal. Such
a case is clearly within the provisions of [present sub
section 1443(1)].159
The claim that a federal guarantee of civil rights im
munizes the defendant’s conduct against state criminal
charges can colorably be made in a far smaller number of
cases than that in which a guarantee regulating the state’s
criminal procedure can colorably be invoked. Accepting
arguendo the judgment made in Powers and its predeces
sors that these latter, federal trial-procedure claims would
be too numerous to take wholesale into the federal courts
without preliminary inquiry concerning both the proba
bility of their arising and the probability of their being
improperly rejected in the state courts—and too numerous
to justify the disruptions and delays incident to factual
inquiry concerning these probabilities in connection with
all such claims—that judgment does not compel a like one
with respect to claims of immunity against the state crimi
nal charge. Instances where claims of immunity have
enough paper substance to call for factual hearing will
it unconstitutional and enforce the defendant’s claims. But it is
always possible that a state court may do these things, and if the
possibility precludes removal, the removal statute is read entirely
off the books. This would require repudiation of Strauder and
rejection of the assumption on which the Hives-Powers line of
cases was decided: that if an unconstitutional state statute were
found, removal would be proper.
iso Virginia v. Bives, 100 U. S. 313, 321 (1880).
77
likely be infrequent: free speech and religious freedom
cases, cases involving the few nonfrivolous claims of “sub
stantive” equal protection and the “substantive” due proc
ess rights of individual liberty. Hearings on these claims
to determine whether the facts on which the criminal
charge is based do colorably support the claim would not
disrupt the bulk of state criminal litigation. And if these
claims are colorable in fact, the relative importance and
vulnerability of the rights involved justify allowance of
removal without the further inquiry (which would be no
less politically impracticable in these cases than in trial-
procedure cases) concerning the probability of improper
state court rejection.160
The federal substantive guarantees, unlike trial-procedure
rights, are principally aimed at prohibiting the States from
repression of certain kinds of conduct. Their design is im
mediately to allow, to liberate from state inhibition and
deterrence, the conduct which they protect; they are not
meant merely to restrict the forms through which state
procedure may move to judgment. Federal trial-protection
rights are ordinarily sufficiently protected if they are ulti
mately recognized in the criminal process, if convictions
got without observing them are finally disallowed. But
the very maintenance, the mere pendency, of criminal pro
ceedings directed at substantively protected conduct has
160 See remarks of Senator Dodd, 110 Cong. Ree. 6739 (April 6,
1964) :
Needless to say, by far the most serioiis denials of equal
rights occur not as a result of statutes which deny equal rights
upon their face, but as a result of unconstitutional and in
vidiously discriminating administration of such statutes.
78
repressive force anterior to and independent of final judg
ment; and the risk that prosecutions may succeed deters
the substantively protected activities which the Constitu
tion has resolved shall not be deterred.
For these reasons, peculiar to substantive claims of
immunity, it will not do to conceive the federal constitu
tional right—for example, freedom to conduct a protest
demonstration—merely as a right to a favorable judgment
at the conclusion of a state prosecution for demonstrating.
The right is the right of freedom to demonstrate, nothing
less: an immunity against, not an indemnification for, re
pressive state process. As to that right, the right on the
streets, where it counts, it may fairly be said that the
pendency alone of the state court prosecution for pro
tected conduct denies the demonstrator his right, and makes
him unable to enforce that right, within the meaning of
1443(1).
That prosecution constitutes a denial of constitutional
rights was recognized by this Court in Dilworth v. Riner,
this Court, No. 22008, decided March 18, 1965, slip opinion
at 9:
The right to public accommodations on a non-
discriminatory basis is a federal right the claim to
which, Congress has said, shall not be the subject mat
ter of punishment. There is nothing in this express
interdiction which could be construed as meaning that
appellants may be punished by prosecution in a state
trial court so long as they may later vindicate their
right not to be punished in a state appellate court or
in the United States Supreme Court. They may sim-
79
ply not be punished and prosecution is punishment.
(Emphasis added.)161
As the Court said in United States v. Clark, S. D. Ala.,
C. A. No. 3438-64, April 16, 1965:
[T]his Court is not blind to the effect of baseless
arrests, unjustified prosecutions, unwarranted and il
legal injunctions, and any other acts or conduct—official
or otherwise, but particularly official—upon individuals
so subjected who are legally seeking to exercise their
rights. The inevitable effect of such acts and conduct
is to severely discourage, intimidate, threaten and co
erce those citizens who are seeking or might otherwise
seek to exercise the rights involved. This is precisely
the type of conduct proscribed by Title I I and Section
1971(b).
Whether the right denied by prosecution is the right to
vote free of racial discrimination or the right to equal en
joyment of public accommodations or the right to peace
fully protest does not alter the validity of the principle.
Where First-Fourteenth Amendment freedoms of ex
pression are in issue, the Supreme Court has traditionally
accorded those freedoms a constitutionally “preferred posi
tion.” 162
161 As discussed, above, at p. 74, prosecutions of persons exercising
rights under Title II of the Civil Rights Act of 1964 were held to
constitute denials of those rights in Rachel, followed in Alabama v.
Boynton, S. D. Ala., C. A. No. 3560-65, April 16, 1965; and Ala
bama v. Allen, S. D. Ala., C. A. No. 3385-64, April 16, 1965.
162 Marsh v. Alabama, 326 U. S. 501, 509 (1946) ; Saia v. New
York, 334 U. S. 558, 562 (1948) ; Prince v. Massachusetts, 321 U. S.
158, 164 (1944) (dictum); see New York Times Co. v. Sullivan,
80
Recently, the Supreme Court declared in Dombrowski v.
Pfister,----- IT. S . -------, 33 U. S. L. W. 4321, 4323, decided
April 26, 1965:
A criminal prosecution under a statute regulating ex
pression usually involves imponderables and contin
gencies that themselves may inhibit the full exercise of
F irst Amendment freedoms. See e.g., Smith v. Califor
nia, 361 U. S. 147. When the statutes also have an
overbroad sweep, as is here alleged, the hazard of loss
or substantial impairment of those precious rights may
be critical. For in such cases, the statutes lend them
selves too readily to denial of those rights. The as
sumption that defense of a criminal prosecution will
generally assure ample vindication of constitutional
rights is unfounded in such cases. See Baggett v. Bul
litt [377 U. S.], at 379. For “ [t]he threat of sanctions
may deter . . . almost as potently as the actual applica
tion of sanctions . . . ” NAACP v. Button, 371 U. S.
415, 433 . . . The chilling effect upon the exercise of
F irst Amendment rights may derive from the fact of
the prosecution, unaffected by the prospects of its
success or failure.
Touching these freedoms particularly, the Court has been
concerned with the danger of biased fact-findings by the
state courts,163 a danger which not only threatens to destroy
the federal protections of those criminal defendants who
actually go to trial, but also—through the knowledge that
effective freedom of expression is committed largely to the
unreviewable power of state magistrates and judges—tends
376 IT. S. 254, 269-70 (1964). For a demonstration of the con
sensus of the Justices in this preference, notwithstanding disputes
about terminology, see McKay, The Preference for Freedom, 34
N. Y. U. L. Rev. 112 (1959).
163 See NAACP v. Button, 371 U. S. 415, 432-33 (1963) ; Lewis,
The Sit-In Cases: Great Expectations, [1963] Supreme Court Rev.
101, 110; Note, 109 U. Pa. L. Rev. 67 (1960).
81
broadly to deter its exercise in the service of locally un
popular causes.
Moreover, the Court has seen the need for early, quickly
effective federal judicial remedies in F irst Amendment
cases,164 lest state repression even during brief periods
render speech valueless as an instrument of democratic
political action.165 These principles solidly support a con
struction of the removal statute to hold that a defendant
is denied or cannot enforce his First-Fourteenth Amend
ment freedoms whenever he is prosecuted in a state court
for conduct colorably protected by civil rights laws.
Finally, notions of comity are irrelevant to removability.
This Court put the matter squarely in Rachel v. Georgia,
supra:
Congress, while carving out rights and immunities
in the area of civil rights, has provided a jurisdic
tional basis for efficiently and appropriately protect
ing those rights and immunities in a federal forum.
The provision of this protective forum is not limited
by the States’ obligation, under the Supremacy Clause,
164 See Baggett v. Bullitt, 377 U. S. 360, 378-79 (1964), rejecting
an abstention contention in a federal suit for declaration of the
first-fourteenth amendment unconstitutionality of a state loyalty
oath statute. The Court said that abstention would work to delay
“ultimate adjudication on the merits for an undue length of time,
. . . a result quite costly where the vagueness of a state statute
may inhibit the exercise of First Amendment freedoms.” Ibid.
165 In Dombrowski v. Pfister, supra, 33 U. S. L. W. at 4324, the
Supreme Court said:
In Freedman v. Maryland, 380 U. S. 51, we struck down a mo
tion picture censorship statute solely because the regulatory
scheme did not sufficiently assure exhibitors a prompt judicial
resolution of First Amendment claims. The interest in im
mediate resolution of such claims is surely no less where crimi
nal prosecutions are threatened under statutes allegedly over
broad and seriously inhibiting the exercise of protected
freedoms.
82
to protect federally guaranteed civil rights as zealously
as would a federal court. That there is such an obli
gation on State tribunals is true, and vital, but it is
irrelevant here. Theoretically, there is no need for any
federal jurisdiction at all—except that of the Supreme
Court—because State courts are required to protect
federally created rights. Nevertheless, the power of
Congress to provide a federal forum also to protect
such rights is undoubted. Such power was exercised
in enacting §1443(1).106
In short, appellants view the requirement of facial un
constitutionality of the Bives-Powers line as limited to
cases in which a federal procedural right, as distinguished
from a federal substantive right, is relied upon for re
moval. This requirement of an unconstitutional state stat
ute, as has been shown, is wholly unsupported by the
language or the legislative history of present §1443(1);
to the contrary, congressional language and history are
strongly against it. The requirement arose under the com
pulsion of an administrative difficulty unique to claims of
unconstitutional state trial procedures: the difficulty of
determining before trial, at the time removal was sought,
that the unconstitutional procedure would in fact occur
and go unredressed in the state process. In the cases fol
lowing Rives, the Supreme Court seized upon the existence
of a facially unconstitutional state statute as a handy
hallmark of assurance that the defendant’s state trial would
violate his rights. In so doing, it avoided two possible
alternative approaches, both grossly unsatisfactory. I t re
fused to say that the mere possible occurrence of federally
unconstitutional procedures in an impending state trial suf-
Slip opinion, p. 14.
83
ficed for removal: under this approach, obviously, all state
criminal cases would be removable. And it refused to try
as a m atter of fact in advance of the state trial the specu
lative, factually intractable, and politically embarrassing
questions whether—apart from a state’s written law—con
stitutional violations were likely to occur in a future trial
process and the state judges were likely to violate their
oaths under the Supremacy Clause by supporting the con
stitutional violations.
But, by their nature, federal substantive claims of civil
rights do not pose these difficulties.
C. Subsection 1 4 4 3 ( 2 ) : An A ct “ U nder Color of
A u th ority D erived F rom ” a “Law P rovid in g fo r
Equal R igh ts”
Subsection 1443(2) also poses two principal problems of
construction.107 First, who can act “under color of au
thority” ? Second, how is “color of authority” derived from
a law providing for equal rights?
1. Appellants submit that a person who acts under “color
of authority” need not act in an official or quasi-official
capacity;168 when an act is done “under color of authority,”
167 Present §1443(2) has never been before the Supreme Court.
Galamison and a sequel, Board of Educ. v. City-Wide Comm, for
the Integration of Schools, 2d Cir., No. 29501, Feb. 18, 1965, are
the only court of appeals decisions which have yet construed the
subsection. The only reported district court decisions appear to
be Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 1963), and
City of Clarksdale v. Certge, 237 F. Supp. 213.
168 The District Court for the Northern District of Mississippi
recently held that in order to bring himself within subsection
1443(2), a removal petitioner must show that “the act for which
the state prosecution is brought was done in at least a quasi-official
capacity derived from a law providing for equal rights.” Clarksdale
84
the actor acts “under color of authority.” In short, the
act—not the actor—is the key to removability under
§1443(2).
As a matter of language, subsection (2) might mean to
cover (i) only federal officers enforcing laws providing for
equal civil rights; or (ii) federal officers enforcing such
laws and also private persons authorized by the officers
to assist them in enforcement; or (iii) the preceding class
and also all persons exercising privileges or immunities
under such laws.169 Construction (i) is shortly disposed of:
the Civil Rights Act of 1866 allowed removal of suits and
prosecutions “against any officer, civil or military, or other
person, for any arrest or imprisonment, trespasses, or
wrongs done or committed by virtue or under color of au
thority derived from . . . ” the act or the Freedmen’s
Bureau legislation;170 this “officer . . . or other person”
formula survived successive codifications171 until 1948; all
words limiting the nature or character of the petitioner
were then dropped, the reviser’s note disclaiming substan
tive change.172
Three technical considerations support rejection also of
alternative construction (ii). First, the “color of authority”
v. Gertge, 337 F. Supp. 213 (N. D. Miss. 1964). The Galamison
opinion reserved the question. Slip opinion, pp. 976-980.
169 Private persons not authorized by federal officers to enforce
federal laws could not claim “color of authority derived from”
such laws in any other manner than by exercising privileges or
immunities given them by the laws.
170 The statute is set out in the text at pp. 20-21, supra.
171 See Rev. Stat. §641 (1875) ; Judicial Code of 1911, ch. 231,
§31, 36 Stat. 1096.
172 See p. 36, supra.
85
clause of the 1866 act applies to “persons” without ex
plicit limitation to persons acting under federal officers.
The same Congress which passed the act put such an ex
plicit limitation in the “authority” clause of the revenue-
officer removal statute of that year.173 Second, the “color
of authority” provision of 1866 was carried forward with
the “denial” provision in section 641 of the Revised S ta t
utes. Other removal provisions applying to federal officers
and persons acting under them—including the provisions
of the 1871 amendatory act to the Second Civil Eights Act
—were carried forward in section 643. This is some evi
dence of a relatively contemporary understanding that,
unlike the section 643 provisions, the “color of authority”
clause of the civil rights removal section applies to persons
who are neither federal officers nor acting under federal
officers. Finally, evidence of a similar congressional under
standing is seen in the continuation of the civil rights
“color of authority” section in subsection 1443(2) in 1948.
The 1948 revision of Title 28 of the United States Code
expanded the earlier revenue-officer removal statutes to
cover in section 1442(a) (1) all suits or prosecutions against
any federal “officer . . . or person acting under him, for
any act under color of such office.” If subsection 1443(2)
reaches only federal officers and persons acting under them,
it is wholly tautological in the 1948 Code.
In view of the ambiguities in language and history of
prior law, the desirability of giving subsection 1443(2)
some meaningful place in the context of present judiciary
legislation strongly supports construction (iii). But, more
important, construction (iii) is supported by the context
173 See p. 9, supra.
86
of the Civil Eights Act of 1866. That act granted extensive
private privileges and immunities, including some whose
exercise would foreseeably provoke state law charges of
trespasses and wrongs. Section 1, for example, gave all
citizens the equal right to acquire and hold real and per
sonal property and to full and equal benefit of all laws for
the security of person and property. In the exercise of
ordinary self-help measures to defend their property or
resist arrest under the discriminatory Black Codes, freed-
men asserting their equal rights under these sections would
likely commit acts for which they might be civilly or crimi
nally charged in the state courts. Appellants conclude that
the “color of authority” clause of the removal section, pres
ent subsection 1443(2), covers such cases in terms and that
by the clause Congress meant to authorize removal of the
cases without requiring the state defendant to demonstrate
in addition that he was denied or could not enforce his
equal civil rights in the state courts, within the meaning
of the “denial” clause which is now subsection 1443(1).
“Denial” was not demanded in subsection 1443(2) cases.
The “color of authority” clause isolates and separately
treats cases involving substantive federal claims. In such
cases, as appellants have shown above, there was and is
imperative need for an immediate and noncontingent fed
eral jurisdiction and for the confidence given by the assur
ance of such a jurisdiction, lest exercise of the federally
guaranteed substantive rights be deterred by fear that
those rights may later have to come to the test in an un
sympathetic state court. Like the freedoms of speech and
protest today, the privileges given the freedmen in 1866
to have an equal enjoyment of property and to move
about unconstrained by racially discriminatory regula-
87
tions174 would have been seriously impaired if the freedmen
had thought that they could be haled before the state courts
in the first instance on charges of exercising those free
doms. Exercise of the freedoms must have been with in
congressional contemplation an act “under color of au
thority” of the Civil Eights Act.
2. Appellants submit that any act which is protected
by a law providing for equal rights is an act done “under
color of authority derived from” such a law. Appellants
reject the construction advanced in Galamison that such
a law must “direct” the actor to act, since no civil rights
law does that—-even the laws held in Galamison to be laws
providing for equal rights. To so construe §1443(2) is to
render it a dead letter and impute to the enacting Con
gress an exercise in solemn futility.
Judge Friendly, writing for the majority in Galamison,
concluded that, in order for a “law providing for equal
rights” to provide “color of authority,” that law must
“direct” or “encourage” self-help. Judge Friendly said
at slip opinion pp. 981-82:
[A private person] must point to some law that di
rects or encourages him to act in a certain manner,
not merely to a generalized constitutional provision
174 The freedom of movement which the act of 1866 intended to
assure the freedmen against the “pass” system of the Southern
States is perhaps the closest 1866 analogue to the freedoms of
speech, assembly, and petition which the Court has increasingly
protected during the last thirty years. Senator Trumbull per
sistently recurred to the evils of the “pass” system, in debate on
the civil rights bill, Cong. Globe, 39th Cong., 1st Sess. 474 (Jan.
29, 1866), 1759 (April 4, 1866), and on the amendatory freedmen’s
bureau bill, id. at 941 (Peb. 20, 1866).
that will give him a defense or to an equally general
statute that may impose civil or criminal liability on
persons interfering with him.
Judge Friendly restated this test of “color of authority”
at slip opinion pp. 985-86:
[A statute] must do more than protect conduct by
giving remedies to the offended party . . . in order
for a statute to provide “color of authority” to per
form and act in the special context of §1443(2).
All that is “authorized” by the statute here under
discussion is the award of damages or of criminal
punishment.
And Judge Friendly summarized his test of “color of
authority” at slip opinion p. 995: A “beneficiary of such
a law should be able to do something” beyond having a
valid defense or having “civil or criminal liability imposed
on those interfering with him.”
Judge Kaufman, concurring, noted that he was in agree
ment with Judge Friendly’s test of “color of authority,”
and stated the test this way (slip opinion p. 999) :
[§1443(2)] is applicable where the persons seeking
removal are being prosecuted for doing something
which a specific federal law providing for equal rights
gave them the impetus and authority to do.
Judge Marshall, in dissent, disagreed with the majority’s
test of “color of authority” and stated his own test, as
follows (slip opinion p. 1005) :
Any individual acts under “color of authority” of a
law at least when his conduct is protected by that law,
89
when interferences with that activity are unlawful and
the subject of civil or criminal legal remedies.
Judge Marshall reasoned that the most familiar tech
nique for encouraging certain private activity was to pro
vide protection for that activity or to make interferences
with the activity unlawful.
To support its construction, the majority said that “color
of authority” in subsection 1443(2) must have a narrower
meaning than “a right under” in subsection 1443(1), “since
otherwise, in almost all cases covered by the first clause
. . . , the requirement of showing denial or inability to
enforce would be avoided by resort to the second.” 175 But
under any construction of “color of authority,” subsection
(2) has a narrower reach than subsection (1); the “act”
requirement of subsection (2) limits that subsection to
cases presenting substantive federal claims. The court’s
argument therefore has several weaknesses. First, its
phrase “almost all cases” makes the extraordinarily im
plausible assumption that the incidence of colorable sub
stantive due process and equal protection claims far
outstrips the incidence of colorable procedural claims. Sec
ond, subsection (2) appears to be designed precisely to
avoid “the requirement of showing denial or inability to
enforce” in the case of substantive claims, for good
and sufficient reason. Third, as Judge Marshall’s per
suasive dissent points out,176 the majority’s insistence on
a statutory directive wholly defeats its assumption that
subsection 1443(2) may reach private, unofficial action. No
175 S. 0. at 981.
176 S. 0. at 1006-07.
90
federal law providing for equal civil rights (however that
phrase be construed) directs anyone other than a federal
officer to do a protected act. Hence, the definition of “color
of authority” derived from equal civil rights law as law
which protects private individuals compels a conception of
“authority” as “authorization,” “license,” “protection”—
entirely natural meanings of the term. The majority also
says that, because in the cases “at which §1443(2) was
primarily aimed and to which it indubitably applies—acts
of officers or quasi-officers”—the removal petitioner would
have acted “on a specific statute or order telling him to
act,” a “private person claiming the benefit of §1443(2)
can stand no better; he must point to some law that directs
or encourages him to act in a certain manner . . . ” 177
Again Judge Marshall’s response is compelling: “The man
ner in which a private person acts under the authority of
a law need not be the same as that of an officer.” 178 The
law applies to each according to his nature; the assump
tion or conclusion that it applies to private individuals at
all precludes the holding that it applies only when a p ri
vate individual meets some condition which private indi
viduals never meet.
Judge Marshall’s difficulty with Judge Friendly’s rea
soning no doubt stems from his appreciation of the fact
that Judge Friendly’s test of “color of authority” largely
renders subsection (2) a dead letter. Judge Marshall rea
sons that if 42 U. S. C. §1981 cannot furnish “color of
authority” (which the majority holds), no law can. Judge
Friendly’s test ineluctably compels the conclusion that the
177 S. 0. at 981.
178 S. 0. at 1006.
91
Congress that passed the first civil rights removal pro
vision, Section 3 of the Civil Rights Act of 1866, 14 Stat.
27, and the Congress that approved Section 641 of the
revised statutes of 1875 intended to put a dead letter on
the books, since section 3 of the Civil Rights Act of 1866
expressly referenced Section 1, now found in 42 U. S. C.
§1981. Judge Marshall puts the point precisely and sim
ply when he says (slip opinion p. 1007):
I t would be fair to presume that the kind of authority
required [by the enacting Congresses) would be of
the type generally provided by the laws providing for
equal rights.
D. The Rationale of Federal Civil
Rights Removal Jurisdiction
Instructed by bitter experience that the state courts could
not and would not be the efficient organs for vindicating fed
erally guaranteed civil rights—that, to the contrary, they
could and would be instruments for the destruction by
harassment of the precious liberties secured by battle and
the post-Civil W ar amendments—the Reconstruction Con
gresses created the federal civil rights removal jurisdiction.
That jurisdiction responded, basically, to two critical con
cerns. First, the same Congresses which made a high na
tional commitment to protect individual freedom and
equality against the States knew that federal fact-finding
forums were absolutely indispensable to the effective en
forcement of those guarantees.179 Second, those Congresses
179 See Townsend v. Sain, 372 U. S. 293, 312 (1963) ; cf. England
v. Louisiana State Board of Medical Examiners, 375 U. S. 411
(1964).
92
understood that immediate, undelayed enforcement was im
perative if the guarantees were to survive.180 These con
cerns are equally compelling today. Federal guarantees of
civil rights, turning as they ordinarily do upon contested is
sues of fact, will be of only academic value to the citizen un
less the facts are found in a federal tribunal.181 And delays
of the sort customary to the heavy-handed state criminal
process—delays of years,182 coupled with the onerous bur
dens183 and the perilous vicissitudes184 of litigation in the
180 See Baggett v. Bullitt, 377 U. S. 360 (1964), Freedman v.
Maryland, 280 U. S. 51 (1965) ; cf. Monroe v. Pope, 365 U. S. 167
(1961) ; McNeese v. Board of Education, 373 U. S. 668 (1963).
181 See, e.g., Feiner v. New York, 340 U. S. 315 (1951).
182 Only in February and March 1964 did the Supreme Court
of Mississippi reach—and affirm—convictions in the harassment
prosecutions arising out of the May, 1961 Freedom rides. See
Thomas v. Sta te,----- Miss.------ , 160 So. 2d 657 (1964), rev’d ,-----
U. S. ----- -, April 26, 1965; Farmer v. S ta te ,----- Miss. -------, 161
So. 2d 159 (1964), and companion cases; Knight v. State,------Miss.
----- , 161 So. 2d 521 (1964). Compare Edwards v. South Carolina,
372 U. S. 229 (1963) (two years from arrest to Supreme Court
reversal of conviction) ; Fields v. South Carolina, 375 U. S. 44
(1963) (three and a half years from arrest to Supreme Court
reversal of conviction) ; Henry v. Rock Hill, 376 U. S. 776 (1964)
(more than four years from arrest to Supreme Court reversal of
conviction).
183 The studies of the reporters of Freed & Wald, Bail in the
United States: 1964—A Report to the National Conference on
Bail and Criminal Justice 53 (1964) led them to conclude that
high hail had been employed in civil rights cases “as punishment
or to deter continued demonstrations.” See, with respect to ex
orbitant amounts of bail demanded, Galphin, Judge Pye and the
Hundred Sit-Ins, The New Republic, May 30, 1964, 8, 9 ; Lusky,
Racial Discrimination and the Federal Law: A Problem in Nulli
fication, 63 Colum. L. Rev. 1163, 1180, 1185 (1963).
184 The procedural pitfall of the adequate and independent state
ground perpetually plagues the client of the overburdened (see
NAACP v. Button, 371 U. S. 415, 443 (1963) ; Lefton v. Hatties
burg, 333 F. 2d 280, 286 (5th Cir, 1964)) civil rights lawyer.
Resourceful, the Supreme Court has sometimes succeeded in ex-
93
state courts—threaten to annihilate the promised freedoms
and convert eternal liberties into eternal lawsuits. Mean
while, those persons who dare to exercise their rights are
fettered with the clogs of pending prosecutions—affecting
their mobility, their acceptance at educational or other in
stitutions,185 their eligibility for benefits such as unemploy
ment compensation,186 and, most important, their willing
ness to risk repeated exercises of their rights. So long as
the prosecution remains unsettled, state power is confidently
asserted, and only the hardiest of souls will venture to do
what the defendants have done and follow them into the
tricating the federal issue. E.g., Wright v. Georgia, 373 U. S. 284
(1963) ; Barr v. City of Columbia, -378 U. S. 146 (1964). Often,
inevitably, it has failed. E.g., Arceneaux v. Louisiana, 376 U. S.
336 (1964); Dresner v. City of Tallahassee, 375 U. S. 136 (1963)
(per curiam), 378 U. S. 539 (1964) (per curiam) ; cf. Henry v.
Mississippi, 379 U. S. 443 (1965).
185 Miss. Laws, 1st Extra. Sess. 1962, ch. 6, at 14 makes ineligible
for admission to any Mississippi institution of higher learning any
person who has pending against him any criminal charge of moral
turpitude, “whether or not the prosecution under such case may
have been continued or stayed by the court of original jurisdiction
or any other court,” and punishes by maximum penalty of $300
fine and one year in jail any attempt by such a person to enroll.
In other States, schools appear to have institutional rales of simi
lar tenor. For example, shortly after the matriculation of Sarah
Louise McCoy, a Negro woman, at white Northeast Louisiana State
College under a preliminary integration order of the Court of
Appeals for the Fifth Circuit, McCoy v. Louisiana State Bd. of
Educ., 332 F. 2d 915 (5th Cir. 1964), Miss McCoy was assaulted
by a gang of 15 or 20 white adults, beaten, and subsequently
charged with battery on the son of one of her white assailants.
Three days later she was informed by the dean of student services
that, without notice or hearing, she had been indefinitely suspended
from the college pending the outcome of proceedings against her,
purportedly pursuant to a regulation requiring automatic sus
pension of students who have been arrested and incarcerated.
186 See, e.g., Lewis v. Bennett, reported with Baines v. City of
Danville, 337 F. 2d 579 (4th Cir. 1964).
94
tangles of state criminal justice. A more effective system of
repression could hardly be designed. These considerations
doubtlessly led the Supreme Court to say in Dombrowski
v. Pfister, supra, 33 U. S. L. W. at 4324: “We believe that
those affected by the [overbroad] statute are entitled to be
free of the burdens of defending prosecutions, however
expeditious, aimed at hammering out the structure of the
statute piecemeal, with no likelihood of obviating similar
uncertainty for others . . . [T]he reasons for the vagueness
doctrine in the area of expression demand no less than
freedom from prosecution prior to a construction adequate
to save the statute.”
Repression is endemic to the popular, localized, politics-
dominated state criminal administration. Today, as in
Reconstruction times, those who control the state crimi
nal process are “harassing, annoying and even driving out
of the State” 1ST persons to whose safe conduct the national
faith is pledged. There are thousands of such harassment
prosecutions in the South today. There are fewer outside
the South, but not few. Today the defendants are Negroes.
Thirty years ago they were Jehovah’s Witnesses or labor
union organizers. Sixty, Orientals on the Coast. Before
that, the Unionists, the Cherokees, the Freedmen—history
has followed one such group with another. And if the past
is prelude, the probability is strong that the popular organs
of state prosecution will never effectively protect federal
civil liberties: that they will remain, rather, weapons of
harassment, not vindication, of persons who exercise the
unpopular rights which the Constitution gives.
Yet, the right to vote free of racial discrimination must
be not merely the right to have one’s state conviction for
187 Cong. Globe, 39th Cong., 1st Sess. 1526 (March 20, 1866)
(remarks of Representative McKee, of Kentucky).
95
attempting to exercise that right eventually overturned by
the Supreme Court of the United States on direct review or
by a federal court exercising post-conviction habeas corpus
jurisdiction. The right to peacefully protest must be not
merely the right to secure a favorable federal ruling some
years later. For these rights to be anything more than
paper rights they must be exercisable free of state inter
ference on the streets; and such interference must be
stopped as soon as it begins. That is the basic justification
of a federal anticipatory jurisdiction. State harassment
works, for the most part, not by final judgments of convic
tion but by mesne process. I t can be stopped only by a fed
eral anticipatory jurisdiction as broad as the evil itself.
Although federal trial procedure guarantees may be vindi
cated at the conclusion of state process, the power of repres
sion by mesne process allows no such accommodation in the
case of substantive guarantees. Here the respective inter
ests of the Nation and the States are best reconciled by
federal intervention at the outset of the prosecution.
Thus, where the federal contention is made that activity
underlying a state criminal charge is federally immune
from state inhibition, the need for interlocutory federal in
tervention is patent. If this sort of federal immunity is to
be made reasonably effective, the State must eventually
relinquish or be deprived of the power to begin criminal
proceedings which repress it. Arrest, charge, pretrial de
tention, or release on bond to compel appearance for hear
ing are effective methods of repression even where the
charge is dismissed or dropped at the first court appearance.
These repressive devices can be disarmed only if the state
prosecutor and the chief of police can be strongly and im
mediately impressed with their responsibility for the pro-
96
tection or at least the recognition of federal guarantees.
Ideally, the state justice of the peace or circuit judge might
impress them with this responsibility. But among state
judges he is the least likely and the least capable to do the
job, however prodded by his appellate superiors. The direct
power of the state appellate courts is limited in this re
gard, reaching the prosecutor only some considerable time
after he has secured his conviction, and the police chief not
at all. The likely willingness of the state appellate courts
to assume the function is also limited: their judgments on
particular federal issues and the general sensitivity to fed
eral rights which grows out of the sum of particular judg
ments—and out of impressions concerning the factual con
texts in which federal rights operate—are the creatures of
cold records shaped by the state trial courts. For these
reasons it is dubious wisdom to look to the state court sys
tem for efficient schooling of the prosecutor and police chief
in their federal responsibilities; the necessary lesson can
best be transmitted through the knowledge that both may
be required to appear in a federal district court, at the out
set of a prosecution, to justify the charges within federal
constitutional requirements. Federal anticipatory jurisdic
tion demands of the State’s attorney that he think in terms
of federal law from the inception of proceedings, not merely
when he is called upon to sustain an easy conviction on ap
peal ; and it demands of the police chief that he appear and
testify before a court whose very authority in the case
demonstrates the immediacy of federal law.
Civil litigants with a federal-question claim are given an
immediate federal forum without biding the operation of
state-court processes. Diversity litigants having a state-
law civil claim are given such a forum. And in civil
97
cases involving civil rights, “Congress has declared the his
toric judgment that within this precious area, often calling
for a trial by jury, there is to be no slightest risk of nullifi
cation by state process.” 188 The canvass of the pertinent
legislative material essayed in this brief leads to the con
clusion that Congress made the same judgment in criminal
cases; that here, too, it saw and acted on the probability that
state courts would not offer adequate protection for fed
erally guaranteed civil righ ts; that here, too, it authorized
and commanded federal trial courts to anticipate and super
sede state court trials for the complete and timely enforce
ment of interests “of the highest national concern.” 189
Appellants in these cases thus invoke the jurisdiction
which Congress has provided.
Respectfully submitted,
C a r sie H a ll
115% N. Farish Street
Jackson, Mississippi 39201
J a c k G r e e n b e r g
M e l v y n Z arr
10 Columbus Circle
New York, New York 10019
A n t h o n y G. A m ster d a m
3400 Chestnut Street
Philadelphia, Pennsylvania 19104
Attorneys for Appellants
188 Wechsler, Federal Jurisdiction and the Revision of the Judi
cial Code, 13 Law & Contemp. Prob. 216, 230 (1948).
189 Ibid.
°<C2^» 38