Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1866-04-04

prescribed for the punishment of white per
sons, he shall be deemed guilty of a misde-
meanor, and on conviction shall be punished
by a fine not exceeding one thousand dol
lars, or imprisonment not exceeding seven
teen years, both in discretion of the court
This section seems to be designed 20 apply to
some existing or future law of a State which
may conflict with the provisions of the bill
now under consideration. 1t provides for
counteracting such forbidden legislation. bv
imposing fine and Imprisonment upon the
legislator who may pass such conflicting
laws, or upon the officers or agents who shall
put or attempt to put them into execution
1t means an official offence, not a common
crime committed against law, upon the per
son or property of the black race. Such an
act may deprive the black man of his proper
ty but not of his right to hold property
1t means a deprivation of the right itself by
the State Judiciary or the State legislature
1t is therefore assumed that under this Sec
ton members of State Legislatures who
should vote for laws conflicting with the pro-
visions of the bill, that Judges of the State
Courts who should render Judgments in an
tagonism with its terms, and that Marshals
and SheriffS who should as ministerial Off
GERS, execute process sanctioned by State
laws and issued by State Judges in the exc
cution 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 in
vades the judicial power of the States. 1t
says to every State, Court or Judge, if Won
decide that this act is unconstitutional, if
you refuse, under the prohibition of a State,
to allow a negro to 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 to the negro,
your judgement, however conscientious, shall
subject you to fine and imprisonment.
L do not apprehend that the conflicting
legislation which the bill seems to contem-
plate is so likely to occur as to render it ne
cessary at this time to adopt a measure of
such doubtful constitutionaiIty. 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 legisla-
tors, always important to be preserved IN
the interest of public liberty without assail-
ing the independence of the judiciary, al
ways essential to the preservation of individ-
ual rights and without impairing the eff
cheney of ministerial officers, always neces-
sary for the maintenance of public peace
and order.
The remedy proposed by this section seems
to be in this respect not only anomalous but
unconstitutional, for the Constitution guar
antees nothing with certainty if it does not
ensure to the several States the right of ma
king avs in regard to all matters arising
within their jurisdiction, subject only to the
Constitution ; in case of conflict with the Con
s~titution and Constitutional laws of the Uni
ted States, the latter to be held as the SUI
preme law of the land.
The third section gives the District Courts
of the United States exclusive cognizance of
all crimes n offences committed against
the provisions of this act, and concurrent
Jurisdiction with the Circuit Courts of the
United States of all civil and criminal cases,
affecting persons who are denied, or cannot
enforce in courts or judicial tribunals of the
State or locality where they may be, any of
the rights secured to them by the first section.
The construction which l have given to the
second section makes clear what kind of a
denial or deprivation of rights secured by the
first section was in contemplation it is a de-
NAL, or deprivation of such rights in the
courts or judicial tribunals of the State
1t stands therefore clear of doubt that the of
tense and penalties provided in the second
section, are intended for the State Judge,
who, in the clear exercise of his functions as
a Judge, not acting ministerially but iudici.
ally, shall decide contrary to this Federal law
in other words, when a State Judge, acting
upon a question involving a conflict between
a State law and this Federal law, and bound
according to his own judgment and response
bility, to give an impartial decision between
the two, comes to the conclusion that the
State law is valid and the federal law is in
valid-he must not follow the dictates of his
own judgment at the peril of fine and i'm
prisonment.
The legislative department of the Govern.
ment thus takes from the judicial depart
ment of the States the sacred and exclusive
duty of a judicial decision, and converts the
State Judge into a mere ministerial officer,
bound to decide according to the will of Con-
gress. 1t is clear that in States which deny
to persons whose rights are secured by the
first section of the bill, any one of those
rights, all civil cases affecting them, will, by
the provisions of the third section, come un-
der the exclusive cognizance of the Federal
tribunals. 1t follows that if in any State
that denies 10 a colored person any one of all
those rights, that person should commit a
crime against the laws of the State-murder
or any other erime-all protection and pun
| ishment 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 offence is
provided for and punished by the Federal
law, that law and not the State law Is to
govern. 1t is only when the 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,
- ,,.ITPal onl 1l,s-oI L. E.o4o IL. 49,.
so far as the same is not inconsistent with
the Constitution and laws of the United
States so that over this vast domain in
which criminal jurisprudence is provided by
each State for the protection of its own citi-
zens, and for the punishment OF all persons
who violate its criminal law, Federal law,
wherever it can be made to apply, displaces
State law. The question here naturally ari-
ses from what source Congress derives the
power to transfer TO the Federal tribunals
certain classes of cases embraced in this sec
ton. Tn Constitution expressly declares
that the judicial power of the United States
shall extend to all cases in law and equity
arising under this Constitution, the laws of
the United States and treaties made or that
shall be made under their authority 10 all
cases affecting ambassadors OF other public
ministers and consuls to all cases of admi-
rally and maritime jurisdiction TO cOntrO
versies to which the United States shall be Il
party; to controversies between two or more
States between a State and citizens OF an
other State; between citizens of different
States; when citizens of the same State
claim land under grants of different States
and between a State or the citizens thereof
and foreign States, citizens or subjecctp.-
Here the Judicial power of the United States
is set forth and defined, and the act of Sep
tember Gath, 1888, establishing the judicial
courts of the United States in comforting up
on the federal courts jurisdiction over cases
originating in the State tribunals, is careful
to confne them to the classes enumerated in
the above recited clause of the Constitution.
This section Of the bill undoubtedly compre-
hends cases and authorizes the exercise of
powers that are not by the Constitution with
in the Jurisdiction of the Courts of the Uni
ted States. To transfer them to those Courts
would be an exercise OF authority we'll cal
culated to excite distrust and alarm on the
part of all the States, for the bill applies
alike to all of them, as we'll as to those that
! lar-o not haan an-o-,1 - rahof1iop