The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-03-28

to them, the Iaw-making power is the
| Federal power, and no similar proVls-
ion exists vestingin Congress the power
to make rules and regulations for this
object. The second section of the bill
is to afford discriminate protection to
colored persons in full enjoyment of
all the rights secured to them by the
preceding section. 1t declares that any
person who, under color of any law,
statute, ordinance or custom, shall sub
ject or cause to be subjected any inhab-
liant of any State or Territory, TO the
deprivation of right secured or to
punishment, pains or penalties on ac-
count of such person having at any
time been held in II condition of slavery
or involuntary servitude, except as II
punishment OF crime, whether the par
ty shall have been duly convicted or
by reason of color or race other than is
prescribed for the punishment of white
persons, shall be deemed guilty of a
miSdemeanOr, and, if convicted, shall
be punished by fine not exceeding one
thousand dollars, or imprisonment not
exceeding one wear, or both-in the dis
erection of the court. This section seems
designed to apply to some existing or
future law ola State or territory, which
may conflict with the provisions of the
bill now under consideration. 1t pro-
VideS for the COunteruction OF such for
hidden legislation by imposing fine and
may ipuss such conflicting laws, or
upon the officer or agents who shall put
or attempt TO put them into execution.
1t means an Official offense, not COM
mon crime committed against law upon
person 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 II deprivation
of the right itself, either by State, judic-
ial or State legislature. 1t is, therefore,
assumed that under this section, mem
bers of n State legislature who should
vote for laws conflicting with the pro-
visions of a bill, that Judges ofthe State
courts who should under judgments in
antagonism with its terms, and that
marshals and sheriffs who should as
ministerial SSofticers execute processes
sanctioned by State laws and issued by
State Judges in execution of their judS-
ments, could be brought before other
tribunals and there subjected to fine
and imprisonment for the perform
ance of duties (which such State laws
might impose. The legislation
thus proposed evades judicial power
of States. 1t says to every State, Court
or Judge, if you decide that this act is
unconstitutional, if you refuse, under
the prohibitionsof n State law, to allow
a negro TO testify, if you hold that even
such n subject matter, the said law is
paramount under color of State law,
refuse the exercise of the right to the
negro, your error of judgment, however
conscientious, shall subject you to fine
and imprisonment. do not apprehend
that conflicting legislation, which the
bill seems to contemplate, is so likely
to occur as to renderit necessary ut this
time TO adopt IL measure of such doubt
full constitutiunality. In the next place
this provision of the bill seems to be as
adequate Judicial remedied, and could
be adopted to secure the desired end
without invading the immunitieS of
legislators always important to be pre-
served in the interest of public liberty,
without nssailing the independence of
the judiciary, always essential to the
preservation of individual rights, and
without impniringth efficiency ofmin-
isterial officers, always necessary for
the maintenance of thepublic pence and
order. The remedy proposed by this
section seems to be in this respect not
only anomalous but constitutional;
for the constitution guarantees
nothing within certainty if il does not
insure to the several States the right of
making index ruling laws in regard to
all matters arising within their juris-
diction, subject only to the reconstruct
ton in cases of conflict with the Consti-
tuition and Constitutional laws of the
United States, the latter to be held as
the supreme law of the land. The Sd
section gives the district courts of the
United States the exclusive cOgniZance
of all crimes and offences committed
against the provisions of this act, and
concurrent Jurisdiction with the circuit
courts of the United States of America
in all criminal cases affecting persons
who are denied or cannot enforce in
courts or judicial tribunal of the State
or locality where they may be, any of
the rights secured to them by the first
section of the Constitution, which L
have given to the I'd section, for itmakes
clear what of denial or deprivation of
rights is secured by the LIST section, was
in contemplation. If it is n denial or
deprivation of such rights in the courts
or judicial tribunals of the State, it
stands, therefore, clear of doubt that
the offence and the penalties provided
in the 2nd section are intended for the
State Judge, who, in the clear exercise
of his functions as "A Judge not acting
ministerially, but judicially, shall de-
eide contrary to this federal law,
State Judge, acting upon
question involving u conflict between
u State law and federal law, and
bound according to his own Judgment,
to give an impartial decision be-
tween the two cases to the conclusion
that the State.law is valid, and the fed
eral law is invalid. He must not fol-
lON bllt AllGLAktS Vi at lllG
peril of fine and imprisonment. The
legislative department of the govern
ment of the United States thus takes
from the judicial department of
the States the sacred and exclusive duty
ofn judicial decision, and converts the
State Judge into Il mere ministerial
officer, bound to decide according to
in States which deny to persons whose
riphts are secured by the first section of
tie bill. any one of these rights, all
criminal and civil cases affecting them
will, by the provisions OF the third sec
ton under the executive cogniZance
of the federal tribunals. ItfoIlows that
If any State denies to colored person
any one of all these rights, that person
should commit n crime against
the laws of II State, murder or any
other crime, all protection and punish
meut through the courts of the State
are taken away, and he can only be
tried and punished in the Federal courts,
how is the criminal to be tried?
If the offense is provided for
and punished by Federal law, that law
and not the State law is to govern. II
is only when the otfense does not hap
pen to be within the purvtew OF 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 and changed by State
legislation, so far as the same is not in
consistent with the constitution and
laws of the United States; so that over
this vast domain of criminal jurispru
dence, provided by each State
for the protection of its own
citizens and for the punishment of all
persons who violate its criminal avs.
Federal law wherever it can be made
to apply displaces State law. The
question here naturally arises, from