Evansville daily journal. (Evansville, Ind.) 1863-1866, 1866-03-30

sons, shall be deemed guilty Of a inside
meanor, and, on conviction, shall be
pumished by a-6ne- mot exceeding one
thoasand dollars, pr imprisonment not
exceeding one year, or both, In the disc
cretion Of he Court"
This section seems TO be designed to
apply to some existing or future law of
q State or Territory which may conflict
with the provisions of the bill now I'M
der consideration 1t provides FIR eoun-
teracting such forbi iden legislation BY
imposing fine and imprisonment upon
ths legislator who may pass sach con-
flicting laws, or upon the officers and
agents who shall put OR attempt to put
them into execution. 1t means an OIL
cial offense, not a common crime COM
mitted upon the person or property of
the black race Such an act may de-
priYe The black man of his property, but
not on his right to hold property It
means q deprivation of the right itself,
either by the State Judiciary or the State
Legislature. 1t is, therefore, assumed
that under this section members of a
State Legislature, who should vote for
laws conflicting with the provisions Of
the bill, that Judges of the State Courts
who should render Judgments in antag-
onism with its terms, and that Marshals
and Sheri6s, who should, as ministerial
officers, execute process ses sanctioned
By State laws, issued By State
Judges, In. execution Of their indg-
ments, could be brought before ether
tribunals, and there subiect cd to fine and
imprisonment, for the performance of
the duties which such State laws may
impose. The legislation thus proposed,
invades the judicial power OF the State.
1t says to every State court or Judge, if
you decide that this act ia unconstitu-
tional; il youG refuse, under the pro-
hibition of State law, to allow negro
TO testify; If you, under color Of State
law, refuse the exercise of this right to
the negro, your error of Judgment, how
ever conscientious, shall subject you to
a fine and imprisonment. do not ap-
prehend that conflicting legislation,
which the bill seems to contemplate, 10
so likely to- occur as TO render it neces-
sary, at this time, to adopt measure of
such doubtful Hnconstutionality
In the next place this provision of the
bill seems to be unnecessary, as ade-
quate judicial remedies could be adopted
to secure the desired end without in
vadin the immunities of Legislators, al
ways important to be preserved in the
interest of public liberty. Without as.
sailing the Independence of the judicial
ry, always essential to the preservation
of iudividuai rights; without impairIng
the efficiency of industrial affairs, al
ways necessary for the maintenance of
peace and order. The remedy proposed
By this section seems to be In this re-
spect not only anomalous, but unconsti-
tutional, for the Constitution guarantees
nothing with certainty, il it does not in
sure the several States the right of
making laws in regard to all matters
arising within their jurisdiction, subject
only to the Constitution in the cases of
conflict with the Constitution and CON
stitutional laws of the United States, the
latter to be held as the supreme law of
the land a
The third section gises the District
Courts of the United States exclusive
cogniEanee OF all crimes and offenses
committed against the provisions OF this
act, and concurrent Jurisdiction with all
Circuit Courts Of the United States, Of
all civil and criminal cases 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
frat section. The construction which /
have given to the second section makes
clear what kind Of denial or deprivation
of rights secured by the first section
was in contemplation. IL 10 denial or
privation OF such rights in the courts or
judicial tribunals of the State, Itstands,
therefore, clear of doubt, that the ofense
and the penalties provided i'm the second
section are intended for the State Judge,
who, in the clear exercise OF his func-
tions as a Judge, not acting ministerial
ly, but judicially, shall decide, contrary
to this formal law. In other words,
when State Judge, acting upon aques-
ton involving conflict between State
law and Federal law, and bound, &C.
cording to bis own judgement and re-
sPansibility, to give an impartial decis.
ion between the two, comes to the
conclusion that the State law is val
id, and the Federal law is invalid, he
must not follow the dictates of his
Gown judgment, at the peril of fine and
imprisonment The legislative dapart-
ment of the Government OF the United
States thus takes from the judicial de-
partment of the State the sacred and
exclusive duty of judicial decision,
and converts the State Judge into a
mere ministerial officer, bound to decide
according to the will of Congress. 1t 10
clear that in States which deny to per>
sons whose rights are secured by the
6rst section of the bill, any one Of those
rights, ell criminal and civil cases az
fecting them will, by the provisions Of
the third section, coming under the ex-
ecutive cognizance of the Federal tri-
bunals. 1t follows that If any State
which denies to colored person any
one, or all of those rights, that person
should commit crime against the laws.
of O State, murder or any other crime,..a
protection and punishment through the
Courts of the State are taken away,
and he can only Re tried and punished
in the Federal court How Is the crim-
inal to be tried2 If the offense is pro-
vided for and punished by Federallaw that
law, and not the State law is to govern.
II 10 only when She offense does not
happen to be within the purview of Fed.
eral law, that the Federal courts are TO try
and punish him. That resort is to be
had 10 the common law, as modified and
changed by the State legislation, 30 far
as the same ID not consistent with the
Constitution and laws of the United
States. So that over this vast dom ain
of criminal Jurisprudence, provided by
each State for the protection of its own
citizens, and for the punishment of all
her sons who violated its criminal law,
Federal law. wherever it can be made to
apply, displaces State law. The ques-
ton here naturally arises, from what
source does Congress derive the power
to transfer TO Federal tribunals, certain
classes of cases embraced in this Sec
tion2 The Constitution expressly de-
clares that the judicial power Of the
United States shall extend to all cases in