Marshall County Republican. (Plymouth, Ind.) 1856-1878, 1866-04-05

color or race, than - prescribed tor the punish
ment Of white persons, shall lac deemed guilty o
misdemeanOr and on conviction shall be punish
ed by fine not preceding one thousand dollars
or imprisonment not exceeding one year, or both
at the discretion of the court. This section seem
TO be designed to apply to some existing futur'
law of State or Territory which may eonhic
with the provisions Of the till now under consid
GRAFTON Ii provides for countcrac,ing such forbid
den legislation, by imposing fine and imptison
ment upon the legislator who may pass such con
fictns laws, or upon tho officer or agents who
shall put or attempt to put them into execution
, Ii means an official Otfence-nOt common crime
committed against law upon the person prop
erty of the black man. Such an act may deprive
the black man OF his property, but not Of his righ
TO hold property. 1t meanss deprivation Of th,
right itself. either by the State judiciary or tn,
Stnte Legislature. 1t is. therefore, assumed tina
under this section members of State Legislature
who should vote for laws conflicting with the pro
visions of the bill, that Judges OF the State courts
who should render judgments in antagonsm with
its terms. and that marshals and sheriffi who
should. ministerial officers, execute processes
sanctioned by State laws and issued by State
judges in execution Of their Judgments could be
brough. before other tribunals, and there subject
TO fine and Imprisonment for the performances ol
the duties which such State laws might impose
The Legislation thus proposed invadcs the judicial
power OF the State. IL saws TO every State Court
or Judge: "if you decide that this act is uncon-
stutiontl; if YOU refuse, under the prohibition oil
State law, 10 allow negro to testify; il YOU
hold that over such a subject matter the State law
j. paramount. and under color of a State law re
fuse the exercise of the right TO the negro, your
error OF jud gment, however conscientious, shall
subject YOU to fine and impri. lnment" do not
apprehend that the conflicting legislation, which
the bill seems to contemplate. is sO likely to oc
cur as to render it necessary, at this time, to
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ality.
In the next place, this provision Of the bill
seems 20 be unnecessary, adequate judicial REM
edies could be adopted TO secure the desired cnd
without invading the immunities Of legislators,
always important to be preserved in the interest Of
public liberty; without assailing the independence
Of the judiciary always essential 10 the pres rya
tOn OF individual rights; and without impairing
the efficiency of ministerial officers. always neces
sary for the maintenance Of public peace and or
der. The remedy proposed by this section seems
tObe in this respect not only anomalous but
stitutional. The Constitution guarantees nothing
with certainty il it does not insure to the several
States the right of making laws in regard TO all
matters arising within their jurisdiction, subject
only to their recor rstructiOn In cases OF conflict
with the Constitution and constitutional laws of
the United States, the latter to be held the
preme law Of the land.
The third section gives the district courts of
the United States exclusive cognizince of all
crimes and offences committed against the provis-
ions OF this act. and concurrent jurisdiction with
the Citcuit cou of the United States Of all GRIM
insl cases affecting persons who are denied or can
not 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 tho Sec
ton. for il makes clear what kind of denial or
deprivation OF rights secured by the first section
was in contemplation. II is denial or deprivs-
ton of such rights in the courts or judicial tribu-
nails Of the State. 1t stands, therefore. clear of
doubt that the offence and penalties provided in
the second section are intended for the State
Judge, who, in the clear exercise of his functions
rs Judge, not acting minsteraly but judicialiy i,
shall decide contrary to this Federal law. In
other words, when State Judge. acting upon a
question involving conflict between State law
and Federal law and bound. according to his
own judgment and responsibility, 10 give an i'm
partial 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 rhe peril of fine and
Imprisonment. The legislative department of
the Government of the United States ihus takes
from the judicial department of the States the sa-
cred and exclusive duty of judicial descision.
and converts the State Judge into mere minis
teria officer, bound to decide according to the
will OF Congress. II IS clear that in States which
deny to persons whose rights are secured by the
first section of the bill. any OF those rights, all
criminal and civil cases affecting them will, by the
provisions Of the third section, come under the
exclusive cOgnizance of the Federal tribunals. IL
follows that if, in any State which denies to col
ored person any one Of those rights, that person
should commit crime against the laws of the
State-mursier any other crme-al protection
and punishment through the courts ofthe State are
taken awav, and he can only be tried and punish
ed in the Federal Courts, How is the criminal
to be tried. If the offence is provided for and pun
ished by Federal law? That law. and not the
State law, is to govern. Ii is only when the Of
fence does aot happen to be within the purview Of
Federal law that the Federal courts to try and
punish him under any other law. Then resort Is
to be had TO the ccmmon law, Nc modified and
changed by State legislation. SO far as The same
is not inconsistent with the Constitution and laws
of the United States; so that this vast do
main 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
mere naturally ARISES from what scOurce Congress
derives the power to transfer to Federal tribunals
certain classes of cases embraced in this section.
The Constitution expressly declares that the udi-
cial power of the United States shall extend to all
classes in law and equity arising under this Con-
les made or which shall be made under their au-
thoritv; TO all cases affecting ambassadors or 9th
er public ministers and conSus; to all cases OF ad-
mralty and maritime jurisdiction; to controver
sizes to which the United States shall be party;
to controversies between.two or more States; be-
tween a State and citizens of another State; be-
tween citizens of different States; between citizens
of the same State claiming land nnder grants OF
different States; and between State and cit-
zen thereof and foreign States, citizens or sub
jects. Here the judicial power of the United
States is expressly set forth and defined, and the
act OF Sept. 81. l7S9, establishing the judicial
courts of the United States, in comforting upon
the Federal CoHrs jurisdiction over cises Origina
ting i'm State tribunals Is careful to confne them
to the classes enumerated in the above recited
clauses of the Constitution. This section of the
bill undoubtedly comprehends and author
iZes the exercise Of powers that are not, by the
Constitution. within the jurisdiction Of the Courts
of the United States. To transfer them to those
courts would be an exercise Of authority well cal
calsted to excite dstrust and alarm on the part of
all the States. for the bill applies alike TO all of
them, as we'll as to those that have as 10 those
that have not been engaged in rebellion. 1t may
be assumed that the authority ID incident to the
power granted to Congress by the Constitution. as
recently amended, to tnf0rse by appropriate leg
slation, the article declaring that neither slavery
nor involuntary servtude, except as punis hment
for crime whereof the party shall have been duly
convicted, shall exist within the United States or
any place subject to their jurisdiction. II cannot,
however, be Justly claimed that with q view to the
enforcement of this article, of the Constitution,