The spirit of democracy. [volume] (Woodsfield, Ohio) 1844-1994, 1866-04-10
WooDsFIELD. MONROE COUNTY, OHIO, APRIL TO-, 1866.

euC JuuiCidi Pom0i VI 6ho OVdto' It ID Jo
to every State Court or judge, if you de-
eide that this act is unconstitutional, if
you refuse, under the prohibition of a
State law, to allow a negro to testify, if
you hold that even in such subject mat
ter the said law is paramount under color
of State law, or refuse the exercise of
the right to the negro, your error Of
Judgment, however conscious, shall sub
ject you to fine and Imprisonment.
do not apprehend that the conflicting
legislation which the bill seems to con-
templates SO likely to occuras to render
it necessary at this time to- adopt a meas.
i ]urerof such,doubtful eonstitutiouality.-
In the next place this provision of the
bill seems to be unnecessary, as adequate
judicial remedies could be adopted to Sc
cure the desired end without invading
the immunities of Legislators always i'm
portant to be preserved in the interest OF
lpublic liberty, without assailing the indie
pence of the judiciary, always: essential
to the preservation of individual rights
and without impairing the efficiency of
ministerial officers always necessary for
the maintenance of public peace and or
der. s Isl 4 81
The remedy proposed by this section
seems to be in this respect not only anon
alous but unconstitutional, for the Con-
stitution guarantees nothing with certain.
Ety if it does not insure the several States
the right of making index ruling laws in
regard to all matters arising within their
jurisdiction, subject only to the restric-
ton in the cases of conflict with the Con-
stitution and Constitutional laws of the
United States, the latter to be held as the
supreme law of the land. d. l a-,.-.t...
The third section gives the District
Courts of the United States exclusive
cognizance Of all crimes and offenses com
mitted against the provisions of this act,
and concurrent jurisdiction of the Uni
ted States, of all civil and criminal cases
affecting persons who are denied, or can
not enforce in the Courts or judicial tri-
bunals of the State or locality where they
may be, any of the rights secured to them
by the first section of the construction
which | have given to the second section,
| for it makes clear what kind Of denial or
deprivation of rights secured by the first
section was in contemplation
1t is denial or privation of such
rights in the courts or judicial tribunals
of the State. 1t stands, therefore, clear
of doubt, that the ofense and the penal
ties provided in the second section, are
Intended for the State Judge, whu, an the
clear exercise oe his functions as aJudge,
not acting ministerially but judicially,
shall decide contrary 10 this Federal law
In other words, when State Judge,
acting upon a question involving con-
fict between a State law and federal
law, and bound according to his own
Judgment and responsibility to give an
impartial decision between the two, co omes
to the conclusion that the State law is
valid and the federal law invalid, he must
not follow the dictates Of. his own judg-
at the, peril of fine and Imprisonment.
The legislative department of the Uni
ted States thus takes from the judicial
department of the States the sacred and
exclusive duty of judicial decision, and
converts the State Judge into mere
ministerial officer, bound to decide accor-
ding to the will Of Congress. sss
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 affect
ingtthem will, By the provisions Of the
third section, come under the executive
eognizance of the, Federal tribunals. 1t
follows that if any, State which denies
to colored person any one of all these
rights. and that person should commit a
crime against the. laws of State-mur
der 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 by the Federal court.
How is the criminal to be tried, if the
ofense is provided for and punished by
Federal law? that law and not State law,
is to govern. 1t is only when the de-
Tense does not happen to be within the
provisions of Federal law that the Fed
eral courts are to try and punish him
under any other law. then resort is to be
had to the common law as modified. aud
changed by State legislation, so far as
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 citi-
zens and for the punishment of all her
sons whoNiolateli its criminal laws. Fed
eral law, wherever it can be made to
apply, displaces States law. The ques-
tion naturally arises, from what source
ECongress derives the power to transfer to
Federal tribunals certain classes Of ceases
embraced in this section. -
/ The Constitution expressly declares
that the Judicial power of the United
States shall extend to all cases. in Law
aud equity arising under this Copstitu
tion, the laws of the United States, and
treaties made and which shall be made
under their authority; to All cases affect
ling ambassadors or other public minis
tiers and eonsuls; to all eases of admiralty
and maratiue jurisdiction to scontroyer-
Isles to which the United States shall be
20 party, to controversies between two Of
more States, between State and citizens
of another State, between citizens of diff
ferent States, between citizens of the same
State, claims lands under grants of diff.
Eerent States, and between State or the
citizens thereof, and foreign States. oiti
zens or subjects here. the Judiciary power