The home journal. (Winchester, Tenn.) 1858-188?, 1866-04-07

either by the State judiciary or the
State Legislature. 1t is therefore as,
sumed that under this section members
ofState Legislature who should vote for
laws conflicting with the provisions OF
the bill, that the Judges Of the State
Courts who should render judgments
in antagonism with its terms and that
the marshals and shcriils who sho uld
as ministerial officers execute the pro.
cesses sanctioned by the State laws is
sued by State judges in the execution
Of their judgments, could be brought
before tribunals, and there subjected to
fine and Imprisonment for the perform.
ancc of the duties which such State
laws may impose.
The legislation thus proposed in
vades the Judicial power of the States.
1t says to every State court or Judge,
if you decide that this act is uu.
constitutional--if You refuse, under the
prohibition of q State law, to allow
negro to testify--if you hold that upon
such q subject matter the State law IS
paramount, and under color Of the
same refuse the exercise Of the right to
the ncrro-your error ofjudgment,
however consciencous shall subject you
to fine and Imprisonment.
do not apprehend that the con.
hictine legislation. which the bill seems
to contemplate, is likely to occur, so
as to render it necessary, ut this time,
to adopt Il measure Of such doubtful
IconstitutionaIity,
In the next place, this provision Of
the bill seems to be unnecessary, as ade-
quatc judicial remedies could be adopt.
el to secure the desired end, without
invading the immunitics Of Legislators,
to he preserved in the interest Of pub
lie liberty, without assailing the inde'
pcndencc Of the Judiciary, always es.
scntial to the preservation of individ.
ual rights, and without impairing the
efficiency of ministerial office, always
necessary for the maintenance ofpub.
lie peace and order. The remedy pro.
posed by this section seems to be, in
this respect, not only anomalous, but
unconstitutional, for the Constitution
guarantees nothing with certainty if it
does not insure the several States the
right of making individual laws in re-
gard to all matters arising within their
,risdiction, subject only to reconstruc-
ton in case of conflict with the Consti-
tution and constitutional laws OF the
United Statcs-the latter to be held the
supreme law Of Il c land.
The third section gives the District
Courts Of the United States exclusive
cognizanco Of all crimes and ollenses
committed against the provisions OF
this act, and concurrent jurisdiction
with the Circuit Courts Of the United
States, Of ali civil and criminal cases
affecting persons who ere demed, or
can not 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, Of the
construction which ] have given to the
second section, for it makes clear what
kind Of denial or deprivation of the
rights secured by the first section was
in contemplation.
1t is denial or privation OF such
rights in the Courts or judicial trlbu-
nails of the State. 1t stands, therefore,
clear of doubt that the oltense and the
pensltics provided in the second Sec
ton are intended for the State Judge,
who. in the clear cxcrc Sc OF his iunc-
ton as Il Judge. not acting ministerial
", but iudicialiy, shall decide contrary
to this Federal law. in other words,
WHOM q State Judge, acting upon n
question involving a conflict between
a State law and Federal law, and bound
according to his own Judgment and
responsibility TO give an impartial de
cisipn between the two, comes to the
conclusion that the State law is valid
and the Federal law is invaIld, he must
not follow the dictates Of his own judg-
mcnt at the peril Of fine and imprlson.
ment The legislative department Of
the Government Of the United States
thus takes from Gc judicial department
ofthc States sLr sacred and exclusive
duty Of q judicial decision, and converts
/ the State Judge into 4 mere ministerial
officer, bound to decide according to the
viii Of Congress.
! It 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 affecting them will, by the pro-
visions of the third section. come
under the cognizance OF the Federal
tribunals. 1t follows that if any State
which denies to colored person any
one of these rights, that person should
commit crime against the laws of the
State, murder 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 if the oticnsc is
provided for and punished by Federal
law. That law and not State law is to
govern. 1t is only when the offense
: does not happen to be within the pro-
visions 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 lcgisla-
ton, so far rs the same is not incon-
/ sistant with the Constitution and laws
of the United States. So that over
this vast domain Of criminal jurispru-
dence provided by each State for the
protection OF. its own citizens and for
the punishment of her sons who violate
her criminal laws. Federal law, wher-
ever it can be made to apply. displaees
State law. The question here natural.
ly arises, from what sources Congress
derives the power ito transfer to Fed.
! eral tribunals certain classes of cases