The New era. [volume] (Martinsburg, W. Va.) 1865-1871, 1866-04-05

to some existing or future law OF State
or Territory which may conflict with the
provisions of the bill now under con-
sideration. 1t provides for counteracting
such forbidden legislation by imposing
fine and imprisonment upon the Iegis-
lators who may pass such conflicting
laws, or put upon the officers or agents
who shall put, or attempt to put, them
into execution. 1t means an official
offence, not a common crime committed
against law upon the persons or property
of the black race. Such an aut nay do
prive the black man of his property, but
not of the right to hold property. It
means a deprivation of the right itself,
either by the State Judiciary or the State
Legislature. 1t is therefore assumed
that under this section members of the
State Legislature who should vote for
the bill; that Judges of the State courts
who should render judgments in an
tagonism with it's terms and that mar
shals and sheriffs, who should, as minis
teriai officers, execute processes, sane
toned by State laws and issued by State
judges, in execution of their judgments,
could be brought before other tri qunals
and there subjected to fine and imprison-
ment for the performance of the duties
which such State laws might impose.
The legislation thus proposed invades
the judicial power of the State. 1t says
to every State court or judge, if you
decide that this act is unconstitutional,
if you refuse, under the prohibition Of a
State law, to allow negro to testify,
if you hold that over such a subj -ct-
matter the State law is paramount, and
"under color" of a State law refuse the
exercise Of the right to the negro, your
error of judgment, however consci-
entious, shall subject you to fine and
imprisonment. I do not apprehend that
the conflicting legislation, which the
bill seems to contemplate, is SO likely to
occur as to render it necessary at this
time to adopt a measure of such doubtful
constitutionality.
In the next place, this provision of the
bill seems to be unnecessary, as adequate
judicial remedies could be adopted to
secure thedesired end, 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 to the preservation of indi-
| vidual rights, and without impairing
the efficiency of ministerial officers,
always necessary for the maintenance of
public peace and order. The remedy
proposed by this section seems to be, in
this respect, not only anomalous but UNI
constitutional; for the Constitution guar
antees nothing with certainty, if it does
not insure to the several States the right
of making and executing laws in regard
to all matters within their jurisdiction,
subject only to the restriction that in
cases of conflict with the Constitution
and constitutional laws of the United
States, the latter should be held to be
the supreme law Of the land. ~
The third section gives the District
Courts of the United States exclusive
"cognizance of all crimes and offences
committed against the provisions of this
act" and concurrent jurisdiction with
the Circuit Courts of the United States
Of all civil and criminal cases affecting
persons who are denied or cannot 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
have given to the second section is
Strengthened by this third section, for
it makes clear what kind of denial or
deprivation of the rights secured by the
first section was in contemplation. Tt is
a denial or deprivation of such rights
Gin the courts or judicial tribunals OF
the States" 1t stands, therefore, clear
of doubt that the offence and the pen
alties provided in the second section are
intended for the State Judge, who, in
the clear exercise of his functions as q
Judge, not acting Enthusiastically, but ju-
dicially, shall decide contrary to this
Federal law. In other words, when a
State Judge, acting upon a question in
volving conflict between State law
and a Federal law, and bound, according
to 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 not follow the
dictates of his judgment at the peril OF
fine and imprisonment. The Legislative
Department of the Government Of the
United States thus takes from the ju-
dicial department of the States the sacred
and exclusive duty of judicial decision,
and converts the State Judge into mere
ministerial officer bound to decide &C
cording to the will of Congress.
It is clear that in States which deny t.
persons whose rights are secured by tn.
first section of the bill any one of those
rights all criminal and civil cases affect