The Potter journal. [volume] (Coudersport, Pa.) 1857-1872, 1866-04-17
TERMS $3.50 PER ANNUM.

dietary or the state legislature. IT 10
ther, fo'e assumed that under this section
members of state legislature who should
vote for laws conflicting with the provis.
ions of the bill, that judges of the state
courts who should render judgments 10
autagonism with its terms, and that mar
shals and sherifs who should, as min
isterial officers, execute processes sane
toned by state laws and issued by state
judges in execution of their judgments,
could be brought before other tribunals
and there subjected to fine and imprison-
ment for the performance Of the duties
which such state laws might impose. The
legislation thus proposed iuvades the ju-
dIciaI power of the state. 1t says to every
state court or judge: If you decide that
that this act is unconstitutional; if you
refuse, under the prohibition of state
law, to allow negro to testify; If you
hold that over such subjeCt-matter the
said law is paramount 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 fiue and Imprisonment | do not ap-
prehend that the conflicting legislation
which the bill seems 70 contemplate is so
likely to occur as to render it necessary
at this time to adopt measure of such
doubtful constitutionality. In the next
place, this provision of the bill seems to
be unnecessary, as adequate judicial rem
edies could be adopted to secure the de-
sired end without invading the immunites
of Legislators, always important to be pre-
served in the interest of public liberty
without assaiIing the independence of the
Judiciary, always essential to the preser-
vation of individual rights, and without
impairing the efficiency of ministerial
officers, always necessary for the mainte-
nance of public peace and order. The
remedy proposed by this section seems to
be Ia this respect not only anomalous but
unconstitutional, for the Constitution
guarantees nothing with certainty if it
right of making laws in regard to all mat
ters arising within their jurisdiction, sub
ject only to the restrictions in case of con-
dict. with the constitutional laws of the
United States-the latter to be held as
the supreme law of the land.
The third section gives the District
Courts of the United States exclusive
cognizance Of all crimes and offences com-
mitted against the provisions of this act
and concurrent jurisdiction with the
Circuit Courts Of the United States, of
civil and criminal cases, affecting persons
who are denied, or cannot enforce in the
court 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 have given to the
second section is strengthened by this third
section, for it makes clear what kind Of denial
or privatiion Of rights secured by the first
section was in contemplation. 1t is a denial
or deprivation of such rights in the courts or
judicial tribunals of the State. 1t stands
therefore, clear of doubt that the offence and
the penalties provided in the second section
are intended for the state judge, who, in the
clear exercise Of his functions as judge not
acting ministerially but judicially, shall de-
eide contrary to this federal law. In other
words, when state judge, acting, upon
question involving conflict between State
law and federal law, and bound according so
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
rot follow the dictates of his own judg-
ment at the peril of fac and Imprisonment,
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 dicison
and converts the state judge into mere min-
isteriaI officer, bound to decide according to
the will Of Congress 1t is clear that in states
which denyto persons whose rights are secured
by the first section Of the bill. any one of those
rights all criminal and civil cases affecting
them will, by the provisions of the third Sec
ton, come under the executive cognlzance OF
the federal tribunals. 1t follows that if any
state which denies to colored person any
one of all those rights, that persons should
commit crime against the laws of state
murder arson, rape, or any other crime-an
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 if the offence
is provided for aud punished by federal law ?
That law, and not the state law, is to govern,
It is only when the offence does not happen TO
be within the Furview 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, as modified and
changed by state legislation, so far rs the
same is not inconsistent with the Constitution
and laws of the United States. So that over
this vast domain of criminal Jurisprudence,
provided by each state for the protection of
its own citizens and for the punishment of all
persons who violate its criminal laws, federal
law, wherever it can be made to apply ,displaces
state law. The question erenaturaly arises
from what source Congress derives the power
to transfer to federal tribunals certain classes
of cases embraced in this section. The Con-
stituton expressly declares that the jGdisiass
power of the United States ''shall extend m all
cases in law and equity arising u4deE TINS