Delaware gazette. [volume] (Delaware, Ohio) 1855-1886, 1866-03-30

public liberty without assailing the in
dependence of the judiciary. always es-
sential to the preservation of individual
rights; without impalriug the efficiency
of industrial affairs, always necessary for
the maintenance of peace and order.
The remedy proposed by this section
seems to be IN this respect not only
anomalous, but unconstitutional, for the
Constitution guarantees nothing with GER
tainty, # It does not insure the several
States the right of making laws IN regard
TO all matters arising within their iurls-
dictiOn, subject only to the Constitution in
the eases of conflict with the Constitu-
tiOn aud constitutional laws of the United
States, the latter to be held as the su-
preme law of the land
s The third section gives the District
Courts of the United States exclusive
IcogRizance Of all crimes and offensas com
mitted against the provisions Of this act,
and concurrent jurisdiction with all Cir
cult Courts of the United States, of all
civil and criminal eases affecting persons
who are denied, or cannot enforce II the
courts or judicial tribunals of the State
or locality where they may be, any of the
+ rights secured to them by the first sec
ton. The construction which 1 have
given to the second section makes clear
what kind of denial or deprivation OF
rights secured by the first section, was IN
contemplation TITS a denial or priva-
ton of such rights in the courts or judi
cial tribunals of the State. 1t stands
therefore clear of doubt that the offeuse
and the penalties provided in the second
section are intended for the State j Judge,
who In the clear exercise of his func-
tiOns as a Judge, not acting mIuisterlally
but iudieially, shall decide, contrary to
this formal Law. In other words when a
State Judge acting upon question IN
vOlving conflict between State law and
a Federal law, and bound according to
!, his own Judgment and responsi bility, to
/, give an impartial decision between the
two, comes to the conclusion that the
State law is valid, aud the Federal iaw IS
P invalid, ne must not follow the dictates
of his own judgment at the peril Of fine
Eand Imprisonment. The legislative de-
, partment of the Government of the Uni
ted States thus takes from the Judicial
department of the States the sacred and
exclusive duty ola judicial decision, aud
F converts the State Judge into minister
: the will of Congress. It IS clear that IN
States which deny to persons whose rights
are secured by the first section OF the bill
Fany one of those rights all criminal and
civil cases affecting them will by the pro-
visions of the third section, come under
the executive c0gniZance Of the Federal
tribunals. It follows that if any State
which denies to a colored person any one
or all Of those rights, that person should
commit crime against the laws Of a
State, murder or any other crime, all pro
lection and punishment through the
Courts of the State are taken away, and
he can only be tried and punished by "A
Federal Court 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. 1t
Is only when the Offense does not happen
to be-in the purvieu of Federal law, that
the Federal courts are to try and punish
him. Then resort Is to be had to the
common law, as modified and changed by
the State legislation, so far as the same Is
not inconsistent with the Constitution and
laws of the United States. So that over
this vast domain of criminal jUrlsprU-
denee, 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 1t
can be made to apply, displaces State law.
The question here naturally arises, from
what source does Congress derive the
power to transfer to Federal tribunals,
! certain classes of eases EN- mbraced IN this
/ section? The Constitution expressly de-
clares that the judicial power of the Uni
I ted States shall extend to all cases in law
and equity arising under this Constitution
/ the laws of the United States, and treaties
made, and which shall be made under
their authority to all cases affecting
/ ambassadors, or other public Ministers.
/ or COnsuls; to all cases of admiralty and
maritime jurisdiction; to controversies to
which the United States shall be party
/ to controversies between two or more
States between a State and citizens Of
another State between citizens of differ
ent States between citizens Of the same
State claims of land under grants ofdif
4 ferent States, and between State, or the
citizens thereof, and foreign States, eiti-
zens or subjects There the judiciary
power of the United States is expressly
set forth and defined, and the act of Sep
tember 9th, 1879, establishing the judi
cial courts of the United States, in con-
ferripg upon the Federal Courts iurisdic-
tion over cases originating in the State
tribunals, Is careful to confine them to
the classes enumerated In the above re- /
cited clause of the Constitution This
section of the bill undoubtedly compre-
hended cases, and authorizes the exercise
Of powers that are not. by the Constitu,
ton, within the jurisdiction Of the Cour is
Of the United States To transfer the M
to those Courts would be an exercise of
authority well calculated to excite dis /
trust and alarm on the part of all the 1
States, for the bill applies alike to all Of
them, as we'll as those who have. as to .
those that have not been engaged in re-
bellion.
It may be assumed that this authority /
Is incident to the power granted Congress
by the Constitution, as recently amended,
to enforce by appropriate legislation the
article declaring that neither slavery nor
Involuntary servitude, except as punish
ment for crime, whereof the party shall
have been duly convicted, shall exist
within the United States or any place
subject to their jurisdiction 1t cannot
however, be justly claimed that, with a
view to the enforcement Of this article of
the Constitution, there is at present any
necessity for the exercise of all the powers
which this bill confers Slavery has been
abolished, and at present nowhere exists
within the jurisdiction of the United :
States, nor has there been, nor is itlikely /
there viii be, any attempts to revive it by !
.he people of the States. However, IL )
my such attempt shall be made, it will .
become the duty of the General Govern
nent to exercise any and all incidental
powers necessary and proper to maintain .
nviolate this law. |
The fourth section Of this bill provides q
hat officers and agents of the Freedmen's
Bureau shall be empowered to make ar
ests, and that other officers may be spe- s
tally commissioned fer that purpose BY Il
he President of the United States. It tC
lso authorizes the Circuit Courts of the W
United States, and the Superior Courts of ir
errltOFies. to appoint, without limitation
commissioners, who are to be charged
18th the performance of quasi judicial N
uf5ar N