Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1866-04-03

" shall have the right 70 SIT AZ ~ Jutoi "a -
Judge to hold any Office, and hhaliy
vote in every State ana Ierrltorg oi IN
limited States. As respects the IerritC
ries. tbev come within the power Of Cor
,yress for as 10 them the law-makin
- power is the Federal power; but as :
The states, no similar provision eXisb
m vesting in Congress the power TO max
ed rules and regulations for them.
THE object Of the second section Of tn
% hin. IS 10 afford discriminating pro
lection % c0lored persons in the full en-
ioyment Of all the rights secured TO then
bv the precedingsectiOn. ltdeclares tina
" any person who, under color OF any law
: statute, ordinance, regulation OF custom
% shall subject, OF cause to be subjected, an.
Y inhabitant Of any State or Territory, e
a the deprivation Of any right secured OF
protected by this act, or TO different
< punishment, pains, or penalties on ac'
8 count Of such person having al any tlnt
been held in a condition OF slavery oi
E involuntary servitlde, except as a pun
7 ishment for crime, whereof the party
shall have been duly convicted, OF by
reason ofhis color or race, than IS pre-
scribed for the punishment of white per
{ sons. shall be deemed guilty OF misde-
meanor and on CONVECTION shaH be
punished by fine not exceeding SloJ
, or imprisonment not exceeding one year,
or both. at the discretion Of the court -
This section seems TO be designed 70
appIv 20 some existing or future law Of a
State or Territory which may conflict
with The provisions Of the bill now under
consideration. Itprovides for eounteract-
ing such forbidden legislation by imp0s-
Ing fine and imprisonment upon the leg
islators who may pass such conflicting
1 laws, or upon the officers or agents who
/ shall put or attempt % put them into exc
! cution. Ii means an official Oflense, not a
/ common crime committed against law
I upon the persons or property of
| the black race. such an act may
/ deprive the black man Of his
/ property, but not Of his right to hold
property. 1t means a deprivation Of the
l right ITSELF either by the State Judiciary
or the State Legislature. tits therefore as
/ sumed that under this section, members
of State Legislatures who should vote
! for laws conflicting with the provisions
Of the bill, that judges of the State courts
who should render judgments in antago-
nism with its terms, and that marshals
and sheriffs who should, as ministerial
officers, execute processes sanctioned by
State laws, and issued by state judges in
execution OF their judgments, could
be brought before other tribunals and
there subjected to fine and Imprisonment
for the performance of the duties which
such State laws might impose.
The legislation thus proposed invades
the judicial power Of the State. 1t says
to every State court or judge, if You de-
eide that this act is unconstitutional, if
Won refuse under the prohibition of State
law to allow negro 10 testify, if you
hold that over such a subject matter the
State law Is paramount. and 'under color
of a State law, refuse the exercise Of the
right 10 the negro, your error Judgment,
however conscientious shall subject yOu to
fine and imprisonment. / do not appre-
hend that the conflicting legislation
which the bill seems TO contemplate is so
likely TO occur As to render il necessary /
at this time to adopt q measure Of sIch |
doubtful constitutiOuality. a
In the next place, this prETision Of the |
bill seems 10 be unnecessary, as sadequate |
judicial remedies could be adopted 10 Sc I
cure The desired end without invading ]
the immunities Of Legislators, always inn /
pOTtant to be preserved IN the Interests Of
public liberty; without assailing the in /
dependence ofthe Judiciary, always essen /
tial 90 the preservation Of individual /
Tights; and without impairing the etli- /
cheney Of ministerial officers, always nee /
essary for the maintenance ofpublic peace /
and order. The remedy proposed by this 4
section seems to be, in this respect, not 4
only anomalous, but unconstitutional, for
the Constitution guarantees nothing with 1
certainty if i does not insure 70 the sew
eral States the right Of making and exc
cutting Laws IN regard to all matters sris-
ing within their jurisdiction, subject only
TO the restriction that in eases Of conflict
with the Constitution and constitutional
laws Of the United States, the latter
should De held to be the supreme law Of
,he land.
The third section gives the district
courts of the United States exclusive
" "coguizance Of all crimes and oflenses
committed against the provisions Of this
act,n and concurrent jurisdiction with
the circuit courts Of the United states of
all civil and criminal cases ''affeCung
persons who are denied orcannOt enforce
in the courts OF judicial tribunals Of the
State or locality where they may be, any
of the rights sBgurPd 10 them by the first
section" The construction which / have
given 10 the second section is strength
ened by this third section, for it makes
clear what kind Of denial or deprivation
OF tie rights secured hy the fast section
was in contemplation. IL is denial OF
deprivation Of such rights Gin the courts
.
stanGs, therefore. clear of doubt that the
oifeuse and the penalties pros Fiaed in The
second section are intended for The state
Judge. who, in the clear exercise Of his
functions as a Judge, not acting ministe-
riaTiv, but iudicially, shall decide, con- ]
trary 10 this Federal law. In other
wsT.!s when a State judge, acting upon
a question involving 6ouuict G6tHaea a
state law and a Federal law, and bound, I
according To his own judgment and {
responsibility, q give an impartial decis-
ion between the two, goI.ies 10 Tie con-
rlusion that the State law i valid ana
The Federal law is invalid, he must not
follow -he dictates Of his own Judgment
AT the peril Of iine and Imprisonment s
The legislative department Of the Gov ,
eminent 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 90 decide according 10 the viii of
Congress.
II is clear that in States which deny to
persons whose rights are secured | ,
Jy the first section Of the bill, any
lne Of those rights, all criminal and {
.ivil cases affecting them will by the /
lroVis:o.s Of the third section come .
Inder lhe exclusive cognizance Of ;
he Federal tribunals. IL follows, 1
hat il any State which denies TO
/ colOred person any one of ali those
rights, that person should commit ]
,rime against the laws Of the State ]
murder, arson, rape OF any other crime
III protpetion and punishment through
he courts of the BtatB are taken Sway,
md ne can only be tried ana J
punished In the Federal courts.
How Is the criminal to be tried2 II the ,
,fense is provided for and punished by
he Federal law, that law and not the !
state law is 70 govern.
Ii is only when the oflense does not ;
lappen TO be within the purview Of I
Federal law, that the Federal courts I
IRE % try and punish him under any ,
ither law. Then resort Is 10 be had TO " the !
common law as modified and changed y ;
,v State legislation, 90 faras thesame is {
lot inconsistent with the Constitution | {
nd laws Of the United States" So that
,ver this vast domain Of criminal Jurls- !
prudence. provided by each state for the ]
of is oWn citizens and for the y
of all persons who violate l
Is criminal laws, Federal law, where
.ver il can be made to apply, {
lisplaees state Law.
4 ne NANelAbA AANAb AlfA4AAAAA4AN eAAA7NF'f
rom what source Congress derives the
,ower 10 transfer to Federal tribunals
certain eiasses Of cases embraced in this
ecti0n The Constitution expressly de- [
.iares thai the JUDICIAL power Of the /
United States - shall extend 10 al cases
n law aud equity arising under this Con- /
titution, the laws Of the United States !
md treaties made, or which shall be I
aatil. under their authority; TO all cases s
.ffecting am mbasadoTs, other public minis
ers and c0nslls; to all cases Of admiralty I Z
nd maratime jurisdiction; 20 eontro-
-ersies 10 which the United States shall ,
y a Uartv' tC controversies between two /
r more States; between state and ciu- {
ems OF another Statei between citizens {
f different States; between citizens OF Z
he same State claiming land under {
r.nts II s.fereRt States. and between a 7
tate, or cItizens theredI, ana ioreign 4
,tates. citizens, or subjects" {
Here the judicial power Of the United S
states is expressly set forth and defined; \
nd the act Of =optea.Eer - lsoa, esiaD-
ishing the Judicial courts OF the United {
states. in es,,f41rinO uDon the Federal ] q
..''rts Jurisdiction over cases originating J
u rlais tfiLgpl.s, Is careful to connne I
hem 70 the Classiss epuuleHsted ~ tne /
.bove recited clause Of the Con- ,
This section Of the biz
oomprehends eases and