Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1866-04-06

any law. statute, ordinance, regulation. OF
custom, shall subject or cause to be subject
ed any inhabitant of any State CT Territory
to- the deprivation of any right sccured or
protected by this act or to different punis n
ment, pains or penalties, on account " suce
person having at any time been held IN "a
condition of Slavery or involuntary scrvi-
tude, except as punishment of crimes.
whereof the party shall have been duly con
vicsed, acr@by- reason OF his color OF race,
than is prescribed for the punishment of
white persons. shall be deemed guilty OF a
misdemeaher. and on conviction shail De
punished by fine not exceeding $1,000, or
imprisonment not exceeding one year. or
both. i'm the discretion of the court.
This section seems to be designed to ap-
ply to some existing or future law OF
state or Territory which may conflict with
the provisions OF the bill now under consid-
Grafton. 1t provides for counteracting such
for sislsicn Legislation Ivy imposing tine and
imprisonment upon tho legislators. who
may pass such ,nflicting laws, or upon the
officers or agents, who shall pnt or attempt
to put them into execution. 1t means an
official offence, not a common crime corn
mitted again t the law upon the person or
property of the black race. Such All act
may deprive the black man of his property
but not of his right to hold property. Ii
means deprivation ofthe right itself either
by the State Judiciary or the STATE Leglsla-
ture. 1t is, therefore, assumed that under
this section members ola State legislature
who should vote for laws conflicting with
the provisions of the BILL that Judges ofthe
State courts who should render judgments
in ailtagonisln with its terms. andthat mar
shals and sheriffs who should execute pro-
cesses sanctioned by State laws and issued
by State Judges in execution of their judg-
ments. could be brought before other tribu-
nals and then subjected to fine and impris-
ofnent for the performance of the duties
which such State laws might impose. The
legislation thus produced invades the judi
cial power of the State. 1t says to every
State court or judge: Ifyon decide that
this act is unconstitutional, if you refuse
under the prohibation of a State law to al
low q negro to testify. if you hold that over
such a subject matter the said law is para
mount. aud under color of Il State law re-
ftse the exercise of the right to the negro,
your error ofjudgment, however, consgien-
tious, shall subject you to fine andi npris-
onment. do not apprehen1 that the con-
flicting legislation, which the bill seems to
contemplate. is 50 likely to occur aS to rem
der it necessary at this time to adopt meas
IRE of such douhtfnl constitlttionaity. In
the next place this provision of the bill
seems to be unnecessary. as adequate judi
cial remedies could he adopted to secure
the desired end without invading the immrl-
mites of Legislators. always important to be
preserved in the interest of pu5ic liberty,
without assailhig the independence of the
judiciary, always essential to the preserva-
ton of individual rights, and without inn
pairing the efficiency of otfi ,crS, always
nece ssary tor the maintenance of public
peace aud orler.
The remedy proposed by this section
seems to be in this respect not only anoma-
lOus, but unconstitutional. for the ConStitu-
ton guarantees nothing with certainty. II
it does not insure to the several States the
right of making index ruin laws in r. gard
to all matters arising within their jHri-,ic-
ton. subject only to the restriction in ease
ofSconflict with thc Cons itutinn and eonsti-
tutfonal laws of the United States. the lat
ter to be held as the sapt2ne law of the
land.
The third section gives the District Courts
of the United States exclusive cogiiizance
of all crimes and Offences committed against
the provisions ofthis acf. and concurrent
jurisdiction with the Circuit Courts of the
United States of all civil and criminal cases,
affecting persons who ass.d riied or cannot
enforce in the courts or ~ ,i.ial tribunals
of the State or locality waere there 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 deprivation of rights. secured
by the first section, was III contemplation.
1t is a denial or deprivation of slIch rights
in the coi;rs< or judicial tribunals OF the
State. II stands therefore clear of dDubi
that the offence and the penalties provided
in the second section are Intended fer the
State judge. who in the clear exercise u
his function as a Judge. not acting Mnlste-
rally but iudicially, shah decide contrary
to this Federal law. In other words, whei.
a State judge. acting upon question in
volving a conflict between a State law and
a Federal law, and bound according TO his
own Judgment and responsibility to give an
important decision between the two. come
to the conclusion that the safe law is val
id ana the Federal law is Invalid, he mist
not follow the dictates Of hi> own judgment
at the peril OF fine and Imprisonment.
The legislative department Of the govern
ment OF The United States thus takes from
the Judicial department Ofthe States the
sacred and exclusive dlty of judicial deci-
sion, and converts the State Judge into Il
mere ministerial officer. bound to decide
according to the will of Congress. Il i
clear that in States. which deny to persons
whose rights are secured by the first sec
ton of the bill, any one of these lights. all
criminal and civil cases affecting them. will
by the provisions of the third section. come
under the Executive co enhance ofthe Fed
eral tribunals.
1t follows that if in any State which de-
MES to colored person any one of all these
rights. that person should commit crime
against the laws of a State. murder. arsosE'
rape. or anv other crime. all protection and
punishment through the courts of the (atc
are taken away. aud he can Only be tried
and punished in the Federal colrtS. UDwl
is the criminal TO be tried if the offence j.
provided for and punished by Federal law:
That law. and not the State law. is to gov
ern. tits only when the offeusc does ipt
happen TO be within the puryiew ofthe Fed
eral law that the Federal courts are to Try
and punish him uaier,aay other law. The
resort Is to be had to the common law is
modified by the State Legislature, so far as
the same is not inconsistent with the Con-
stitltion of the United States. So that over
the vast domain of criminal Jurisprudence
provided by each State for the profession OF
its OWL citize.is and for the puaish.neIt OF
all persons who violate its criminal law
Federal law, wherever it can be made to
apply. displaces State Law.
The question here naturally arises, from
what source Congress derives the power to
transfer To she Federal tribunals certain
classes Of cases embraced in this section.-
The Constitution expressly declares that
the judicial power of the United States
shall extend 10 all eases in law and equity
arising under this Constitution, the laws OF
- r.. MI FPt4 lIfa or