The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1866-03-29

punished by fine not exceeding $1,000. or
hoth th;.onlnent Z. ~, not exceeding one wear. or
'VIY Thin +, .s sne salscretion of the Court.
r. so-,e .1n o..;n,ems seems to be designed to apply
Territory which may conflict with the uo,;s H
ions OF the bill now under considsratiln If
PROVIDES iOr counteracting such forbidden leo-
isldtion by imposing fine and imnriSonronf7,
upon the legislators who may pass snch con-
hlcting laws, or upon the officers or AGENTS
who shall put or attempt to put them into ex-
ecution. 1t means an official offence. not n
common crime committed against the law
upon the person or property of the black race.
Such an act may deprive the black man ofhis
property but not of his right to hold property.
1t means deprivation OF the right itself either
by the State Judiciary or the State Legislature
1t is therefore assumed that under this sec
tion members of State Legislature who
should vote for laws conflicting with the pro-
yisions of the bill, that Judges of the State
courts who should render judgment in antag-
0nlsm with its terms, and that Marshals and
oneriifs who should execute processes sane
toned by State laws and issued by the State
Sudges on execution of their judgments, could
pe orought before other tribunals, and then
subjected 10 hne and Imprisonment for the
performance OF the duties which such State
laws might propose. IG
The legislation thus proposed invades the
yuuiciai power OF the State 1t says to every
State Court or Judge, if you decide thar the
act is unconstitutional, If you refuse under the
prohibition ofa State law to allow negro to
testify, II you hold that over such a subject,
the said law is paramount and under color of a
State law refuse the exercise of the right to
the negro, your error of judgment, however
conscientious, shall subject you to a fine and
Imprisonment. -liL
1 do not apprehend that the conflicting leg
islation which the bill seems to contemplate
Is SO likely to occur as to render it necessary
at TINS time, to adopt measure of such doubt
tul constitutionality. 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 legislators, always important to
be preserved in the interest Of public liberty,
without assailing the independence of the ju-
diclary, always essential to the preservation of
( INDIVIDUAL rights, without, fmpairing tho eff
cheney OF officers, always necessary for the
maintenance of the public peace and order
The remedy proposed by this section seems to
be In this respect not only anomalous but un-
constitutional, for the Constitution guarantees
nothing with certainty if it does not ensure to
the civil States the right of making and eniorc-
ing laws in regard to all matters arising within
the jurisdiction, subject only TO the restriction
in cases of conflict with the Constitution and
the latter are to be held as the supreme law of
the land.
le The third section gives the district courts of
the United States exclusive cognizance OF all
crimes and offences committed against the pro-
visions 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 the courts
or judicial tribunals of the State or Locality
where they may be any OF the rights secured
to them by the first section. 5sf5l.s.dt
The construction which Lave given to the
second section IS strengthened by the third
section, for it makes clear what kind of dental
or deprivation OF rights secured by the first
section was in contemplation. 1t is asdenial
or deprivation of such rights in the courts or
judicial tribunals of the State. 1t stands there
fore clear of doubt that the offence and the
penalties, provided the second section is in
tended for the State judge, who in the clear
exercise OF his functions as Judge, not act
ing mInisterially but judicially, shall 7''-'
In - 1fsls, .1ls When State judge acting
upon question involving conflict between
sas sw and an oaa FedddEg eddgment and T
ty, to give an impartial decision betWeen the
two, comes to the conclusion that the State
law is valid and the Federal law inval-
Id, he must not followgthe dictates OF his
own Judgment at the peril Of fine and impris-
onment. The legislative department of the
Government 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 to decide according
to the will of Congress. 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 criminal and civil cases af-
g. x.x.n A.
third section come under the executive cogni-
zance of the Federal tribunals. 1t follows that
If in any State which denies to a colored per-
son any one Of all these rights, that person
should commit a crime against the laws of
State-murder, arson, rape or any other
crime-all protection and punishment 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 il the
offence Is provided for and punished by Fed
eral law? That law and not the State law is
to govern. I4 ..5
1t is only when the offence does not happen
to be within the purview ofthe 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 by the
State legislatures, SO far as the same is not in
consistent with the Constitution and laws of
the United States. So thataover the vast do
main of criminal Jurisprudence provided by
each State for the protection Of its own citi-
zens, and for the punishment Of all persons
who violate its criminal laws, Federal law
wherever 1t can be made to apply, displaces
State law. +' '-A --'A.'i Ink
The question here naturally arises, from
what source Congress derives the power to
transfer to the Federal tribunals certain classes
of cases embraced in this section. The Con-
stitution expressly declares that the judicial
power of 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 which shall be made un-
der their authority; to all cases effecting Am
bassadors and other public Ministers and Con-
suls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the
United States shall be party; to conSrover-
sizes between two or more States; between
State and citizens OF another State between
citizens of different States; between citizens
of the same State claiming land under grants
of different states and between a state or the
citizens thereof, and foreign states, citizens
or subjects. -ls -' .N4
Here the judicial power of the United
States is expressly set forth and defined, and
the act of Sept. "a, 1880, establishing the Ju-
diciai Courts of the United States in conierr-
ing upon the Federal Courts Jurisdiction over
cases originating in State tribunals is careful
to contine them to classes enumerated In the
above recited clause of the Constitution. This
section OF the bill undoubtedly comprehends
cases and authorizes the exercises OF powers
that are not by the Constitution within the
courts of the United States. To transfer
them to these courts would be an exercise OF
authority well calculated to exercise distrust
and alarm on the part of all the States, for
the bill applies alike to all of them, as well as
to those that have been engaged in REBEL on.
1t may be assumed that this authoriIy Is IN
cident to the power granted to Congress by
the CONSTITUTION. as recently amended, to en-
force BY appropriate legislation the article de-
clar;ng that neither slavery or involuntary
serv;t9de, except as a punishment OF crime
whereof the party shall have been duly CON
victed shall exist within ahd,e the United States or
aa;,nnt Sm5 p however, be Justly claimed, that with
q view to the enforcement Of this article of the