In Whitman's Hand

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Title: Orville Hickman Browning to Andrew Johnson, 28 March 1868

Date: March 28, 1868

Whitman Archive ID: nar.00492

Source: National Archives and Records Administration. Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.

Contributors to digital file: Elizabeth Lorang, Kevin McMullen, John Schwaninger, and Nima Najafi Kianfar

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March 28, 1868.

The President.


Among the applications for pardon, which, in the usage of business have been referred by you, for examination in this office, is one in which the importance of the questions involved makes it proper to embody my views upon it in a formal Report.

It appears that at the recent February term of the Circuit of the United States for the District of Kentucky, William Bell, a minor, was convicted of murder in the killing of Tony Cundiff, in Daviess County, Kentucky, on the 13th October, 1866. It also appears that a motion for a new trial is pending, and that the 14th of April, proximo, is set for the hearing, there being, as yet, no judgment entered, and no sentence passed.

The prisoner is a white person and the deceased was a negro. It is shown by a certified abstract of the record that the prisoner demurred to the jurisdiction of the Court. The grounds of the demurrer are not given. But the court sustained the jurisdiction, as it otherwise appears, under provisions of the Civil Rights Act, of 6 April 1866. In this Act, no express provision is made for punishing the crime of murder, or any other felony—and it is therefore probable that the proviso therein for jurisdiction of the United States Courts, "of all causes civil and criminal" affecting persons who are denied, or cannot enforce in the State Courts, the rights secured by the Act, has been construed in favor of jurisdiction in this case, with power to inflict the death penalty, for a homicide committed against the laws of Kentucky.

It is evident that a novel and important juridicial doubt exists in the case, such as must have been contemplated by the Civil Rights Act itself, viz:

"Section 10: And be it, Etc. That upon all questions of law arising in any cause under the provisions of this Act, a final appeal may be taken to the Supreme Court of the United States." (14 Stat. 29.)

I would therefore recommend that no further action be had at present, and that as soon as you may be advised that a sentence of death, or other punishment, has passed upon the defendant, and that the proper steps are to be taken to procure a review of the matter in the Supreme Court of the United States, in conformity to the provisions of the Civil Rights Act, it would be expedient, and in my opinion just, that a respite should be granted to suspend execution until after a final decision by the Supreme National Court.

With these views, I return the papers herewith.

Very Respectfully

OH Browning,

Attorney General ad interim


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