Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-03-29

punished by fine not exceeding one thousand
dollars or imprisonment not exceeding one
year, or both, in the discretion of the courts
This section seems to be designed to apply
to some existing or future law Of State or
territory which may conflict with the provi-
slons OF the bill now under consideration.
1t provides for eounteracting such forbidden
legislation by imposing fine and imprison-
ment upon the legislator who may pass such
conflicting laws, or upon the officer or agents
who shall put or attempt to put them into
execution. 1t means an official ofense, not
a common crime committed against law upon
the person or property Of the black race.
Such an act may deprive the black man of
his property, but not of his right to hold
property. 1t means a deprivation of the
right itself, either by the State Judiciary or
the State Legislature 1t is therefore as
sumed that under this section members of
State Legislature who should for laws con-
hicting 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 sherifis who
should as ministerial officers execute tbs
processes sanctioned by the State laws is
sued by State judges in the execution Of
their judgments, could be brought before
tribunals, and there subjects to fine and i'm
prisonment,for the performance of the du-
ties which though State laws may impose.
The legislation thus proposed invades the
judicial power of the States. 1t SAYS to
every State court or Judge, if you decide
that this act is not unconstitutional-if YOU
refuse, under the prohibition of State law,
to allow negro to testify-if you hold that
al Gtot l..
paramount, and under color of the same re-
fuse the exercise of the right to the negro
your error of Judgment, however conscious,
shall subject you to fine and imprisonment.
do not apprehend that the conflicting
legislation, which the bill seems to contem-
plate, is likely to occur, so as to render it
necessary, at this time, to adopt measure of
such doubtful constitutionality.
In the next place this is the duty of a iu-
dieial decision, and converts the State Judge
into a mere ministerial officer, bound to de-
eide according to the will Of Congress.
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 affecting them
will, by the provisions 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 ofiense 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 provisions of the Federal law that the
Federal courts are to try and punish him I'M
| der any otherlaw. Then resort is to be had to
the common law as 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 over this vast
domain of criminal Jurisprudence 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,
wherever it can be made to apply, displaces
State law. The question here naturally
arises, from what sources Congress derives
the power to transfer to Federal tribunals
certain classes of cases embraced in this sec
ton. The Constitution expressly declares
that the Judicial power of the United States
shall extend to all cases in law and equity
arising under the Constitution, the laws OF
the United States, and treaties made, and
which shall be made under their authority;
to all cases affecting ambassadors or other
| public ministers and consuls to all cases OF
admiralty and maritime jurisprudence to
controversies to which the United States
shall be a party; to controversies between
two or more States, between State and cit
liens Of another State, between citizens OF
different States, between citizens of the same
States, claims of land under the grant of the
different States, and between State or the
citizens thereof, and foreign States citizens
or subjects. Here the Judiciary power of the
United States is expressly set forth and
defined, and the act of September Oath, 1889
establishing judicial courts of the United
States, in comforting upon the Federal courts
jurisdiction over cases originating in State
tribunals is careful to confne them to the
classes enumerated in the above reciteG
clause Of the Constitution.
This section of the bill undoubtedly com
pretended the cases, and authorizes the ex.
ercise of powers that are not kg the Consti
tuition within the jurisdiction Of the court:
Of the Uuited States. To transfer them tt
those courts would be an exercise of athor
ity well calculated to excite distrust anC
alarm on the part of the States, for the bill
applies alike to all of them; as well t.
those that have as to those that have
not been engaged in rebellion. Il
may be assumed that this authority il
incident to the power granted to Congress
by the Constitution, as recently amend
ed, to enforce, by appropriate legislation
the article declaring that neither slavery no.
involuntary servitude, except as punishment
for crime, whereof the party shall have beer
Only convicted, shall exist within thu
the United States or any place subject t.
their jurisdiction. 1t cannot, however, b,
justly claimed that, with view to the en-
forcement Of this article of the Constitution
there is at present any necessity for the ex
ereise of all the powers which this bill con
fers. Slavery has been abolished, and al
present nowhere exists within the jurisdic
ton of the United States, nor has there been
nor is it likely that there will be, any at
tempts to revive it by the people of the
States
However, if any such attempts shall b.
made, it shall become the duty of the Gen
eral Government to exercise any and all in.
cidental powers necessary and proper tC
maintain inviolate this governmental law O
the freedmen.
The foregoing is all of the message We
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