The Portland daily press., 1866-03-28

common crime committed against the Law
upon the person or property of the black race
Such ali act may deprive the black man of hi
property but not of his right to hold property
1t means deprivation OF the right itself eithel
by the State Judiciary or the State Legislature
1t is therefore assumed that under this sec
ton members of State Legislature who
should vote for laws conflicting with the pro
visions OF the bill, that Judges of the State
courts who should render judgment in antag
onism with its terms, and that Marshals and
SheriHs who should execute processes sane
toned State laws and issued by the State
Judges sn execution of their judgments, could
be brought before other tribunals, and then
subjected to fine and imprisonment for, the
performance of the duties which such State
laws might propose
The legislation thus proposed invades the
judicial power of the State 1t says to every
State Court OF Judge, If you decide that the
act is unconstitutional, if you refuse under the
prohibition of State law to allow negro to
testify, il you hold that over such subject,
the said law is paramount under color of a
State law refuse the exercise of the right to
the negro. Your error of judgment, however
conscientious, shall subject you to fine and
imprisonment. -. ia Gu
do not apprehend that the conflicting leg
islation which lthe bill seems to contemplate
is SO likely to occur as to render it necessary
at this time, to adopt measure of such doubt
ul constitutionality. In the next place, this
provision OF the bill seems to be unnecessary,
as adequate judicial remedies could be adopted
TO secure the desired end without invading the
immunities of legislators, always important to
be preserved in the interest Of public liberty
without assailing the independence of the jG-
dietary; always essential to the preservation of
individual rights without impairing the eff
biency of officers; always NECESSARY for the
maintenance of the public peace and order
| The remedy proposed by this section seems to
be in this respect not only anomalous but un-
constitutional, for the Constitution guarantees
nothing with certainty if it does not ensure to
the civil States the right of making index rul-
ing laws in regard to all matters arising within
the jurisdiction, subject only to the restriction
in cases in conflict with the Constitution and
constitutional laws of the United States, the
latter to be held as the supreme law of the
| land.
The third section gives the district courts of
the United States exclusive cognizance OF all
crimes and offences committed against the pro-
visions OF this act, and concurrent Jurisdiction
| with the Circuit Courts of the United States
OF all civil and criminal cases effectine persons
who are denied or cennot enforce in the courts
or judicial tribunals of the State or locality
where there may be any of the rights secured
to them by the first section. lisa
The construction which Lave given to the
second section IS strengthened by the third
section, for it makes clear what kind of denial
or deprivation OF rights secured by the first
section was in contemplation. 1t is denial
| or deprivation of such rights in the courts or
judicial tribunals of the State. 1t stands there
fore clear Of doubt that the offence and the
penatie provided the second section is in
tended for the State judge, who in the clear
| exercise OF his functions as Judge, not act
ing ministerially but judicialiy, shall decide
contrary to this federal law.
In other words, when State Judge acting
upon question involving conflict between
State law and Federal law, and bound ac-
cordng to his own judgment aid responsible
ty, to give an important decision between the
two, comes to the conclusion that the State
law is validI and the Federal law inyal-
id. He must not follow the dictates OF his
own Judgment at the peril of fine and impris-
onment. The legislative department of the
| Government of the United States thus takes
from the judicial department OF the States 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 is clear that in
states which deny to persons whose rights are
srcured by the first section OF the bill any one
| OF those rights, all criminal and civil cases af
iecting them, will by the provisions of the
third section come under the executive cogni-
zance Of the Federal tribunals. 1t follows that
if any State which denies to it colored per.
son any one Of all these rights that person
| should commit crime against the laws of a
State-murder, arson, rape or any Other
crime-all protection and punishment through
the courts of the State are taken away, and be
can only be tried and punished in the Federal
courts. How is the criminal to be tried il the
offence is provided for and furnished by Fed
eral law? That law and not the State law is
to govern. at ,ab.2
1t only when offence does not happen to
be within the purview of the federal law that
the federal courts are to try and punish him
under any other law. Then resort is to be
had to the common law as modified by the
State legislatures, SO far as the same is not in
consistent with the Constitution and laws o.
the United States. So that over the vast do
main of criminal jurisprudence provided by
each State for the protection of its own citi
zens, and for the punishment of all persons
who violate its criminal laws, Federal law
wherever it can be made to apply, displace.
State law.
The question here naturally arises, from
what source Congress derives the power tt
transfer to the Federal tribunals certain classes
of cases embraced in this section. The Con
stitution expressly declares that the judibia
all cases in law and equity arising under this
Constitution; the laws of the United States
and treaties made, or which shall be made m
der their authority; to all cases effecting Am
bassadors and other public Ministers and Con
suls; to all cases of admiralty and maratime
jurisdiction; to controversies to which the
United States shall be a party; to controver
sizes between two OF more States; between
State or citizens of another State; between
| pfiZpnc of 6iffnranf Sfafac hafxu
OF the same State claiming land under grant
OF different State, or the citizens thereof
and foreign States citizens or subjects. &C.,
Here the judicial power of the United
States is expressly set forth and defined. ant
: the act of Sept "a, 1859, establishing the Ju
dicial Courts of the United States in CONFER
ing upon the Federal Courts jurisdiction owe
cases originating in State tribunals is careful
to confine them to classes enumerated in tn
above recited clause of the Constitution. Thi
section Of the bill undoubtedly comprehend
cases and authorizes the exercises of power
that are not by the Constitution within tn
courts of the United States. 10 transfe
them to these courts would be an exercise @
: authority well calculated to exercise distrus
and alarm on tho part of all the States, TO
the bill applies alike to all of them, as well a
TO those that have not been engaged in rebel
lion. ..-..l r. $500. - =.
o. IL ludy NC coouiaCA lndt ILLS dubIOIlCJ Is III
cident to the power granted to Congress b
the Constitution, as recently amended, to en-
force by appropriate legislation the article dc
claring that neither slavery or involuntar
servitude, except as punishment of Grim
whereof the party shall have been duly con
victed, shall exist within the United States, O
any place subject to their jurisdiction. l
cannot, however, be justly claimed, that wit
view to the enforcement of this article of til
Constitution, there is at present any necessit
for the exercise of all the powers which thi
bill confers. Slavery has been abolished, an
at present nowhere exists within the jurisdic
ton of the United States Nor has ther
been, nor is it likely there will be any attemI
to reverse it by the people of any State. ga,
From Washington. f-.-... D.
.ff.. If=. WASHINGTON, March ~.
The testimony taken by the Reconstructio
!, Committee in regard to Virginia and the tw
/, / To fad in fho