The Bedford gazette. [volume] (Bedford, Pa.) 1805-current, 1866-04-06

his color or his race, than is prescrsbed
for the punishment Of white persons.
shall be deemed guiltyof misdemean-
or and on conviction shall be punished
by fine not exceeding one thousand dol
lars, or imprisonment not exceeding
one year, or both, in the discretion Of
the court" This section seems to be
designated to appIyto some existing or
future law of a State or Territory,
which may conflict with the provis-
ions of the biz now under considera-
ton. 1t provides for counteracting
such forbidden legislation by imposing
a fineand Imprisonment upon the leg
islators who may pass such conflicting
laws, or upon the officers or agents who
shall put or attempt to put them into
execution. 1t meanSan official ofiense,
not common crime committed against
law upon the person or property of the
black race. Such an act may deprive
the black man of his property, but not
of the right to hold property. 1t
means a deprivation of this right IL
self, either by the State judiciary or
the State Legislature. 1t is, therefore,
assumed that, under this section, mem
bers Of State Legislatures who should
vote for laws conflicting with the pro-
visions of this bill, that judges Of the
State courts who should render judge
ments in antagonism with its terms,
and that marshals and sherifIs who
should, as ministerial officers, execute
processes sanctioned by State laws and
issued by State judges in execution Of
their judgements, could be brought be-
fore other tribunals, and there subject
ed to fine and Imprisonment for the
performance of the duties which such
State laws might impose. The legisla
ton thus proposed invades the judicial
power of the State. 1t says to every
State court or judge, "If you decide
that thisact unconstitutional; if you
refuse, under the prohibition of a 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 to the negro, your error Of
judgement, however conscientious,
shall subject you to fine and imprisOn-
ment." | do not apprehend that the
legislation, which the bill
seems to contemplate, is likely to oc-
cur as t0render it necessary at this time
to adopt a measure Of such doubtful
cOnstitutionality.
In the next place this provision Of
the bill seems to be unnecessary, as adj
equate judicial remedies could be adop-
ted tu 7rouro the desired eIId without
involving the immunities Of legisla-
lures, always important to be preserved
in the interest Of public liberty-with-
out assailing the independence of the
judiciary, always essential 10 the pres
ervation Of individual rights, and
without impairing the efficiency of
ministerial officers, always necessary
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 guarantees moth
ing with certainly if itdoes not ensure
20 the several States the right of ma
king and executing laws in regard to
all matters arising in their jurisdiction
subject only TO the restriction that in
cases of conflict with the Constitution
and constitutional laws Of the United
States, the latter should be held to be
the supreme law Of the lam.
The third section gives the District
Courts of the United States exclusive
''cognizance Of all crimes and Ofienses
committed against the provisions Of
this act" and concurrent Jurisdiction
with the Circuit Courts of the United
States Of all civiland criminal cases af-
fecting persons who are denied or can
not enforce in the courts or judicial tri-
bunals of theState or locality wherever
they may be. any Of the rights secured
to them by the first section; and the
construction which | have given to the
second section is strengthened by this
third section, for it makes clear What
kind Of denial or deprivation OF the
rights secured by the first section was
in contemplation. 1t is denial or de-
privati0n Of such rights ''in the courts
or judicial tribunals q the State" 1t
stands. therefore, clear of doubt that
the ohensa 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 iudicially, shall de-
eide contrary to this Federal law.
In other words, when a State judge,
acting upon a question involving a
conflict between a State law and a Fed
eral law, and bound, according TO his
own Judgment and responsibility, TO
give an impartial decision between the
two, comes to the conclusion that the
State law is valid and the Federal law
is invalid, he must not follow the die
tates of his own Judgment at the peril
of fine and imprisonment. The legis-
lative department of the Government