Cedar Falls gazette. [volume] (Cedar Falls, Iowa) 1860-1895, 1866-04-06

rations, or -naturalized persons, in the
right to hold real estate? and, II it be
! granted that Congress can repeal all
State laws discriminating between
whites and blacks, in the subjects GOV.
cred by this bill, why, it may be asked
may not Congress repeal, in the same
way, all State laws discriminating be-
tween the two races on the subject oil
suffrage and office? If Congress can de.
clare by law who shall hold lands, who
shall testify, who shall have capacity to
\ make contracts in a State, then Con.
gress can also by law declare who, with.
out regard to race or color, shall have
the right to sit as a juror, or as Judge
to hold any office, and finally to vote in
every State and Territory of the United
States. AS respects the territories, they
come within the power of Congress, for
as to them, the law-making power il
the Federal power; but as to the States
no similar provisions exist, vesting i'm
Congress the power to make rules and
regulations for them. ..-a.. Il
| The object of the second section of the
bill is to. afford discriminating protect.
ion to colored persons in the full enjoy
ment of all the rights secured to them
by the preceding section. 1t declares
that any person who under color of any
law, statute, ordinance, regulation, or
custom, shall subject, or cause to be
subjected, any inhabitant of any State
or Territory to the deprivation of any
right secured or protected by this act,
or to different punishment, pains or
penalties, on account of such persons
having at any time been held in condi-
tion of slavery, or involuntary servitude,
except as a punishment of crime, where
of the party shall have been duly con-
victed, or by reason of color, or race,
than is prescribed for the punishment
| of white persons, shall be deemed gull
/ ty OF a misdemeanor, and, Oh convic-
| ton, shall be punished by fine not
exceeding one thousand dollars, or i'm
| prisonment not exceeding one year. or
both, in the discretion of the court
This section seems to be designed to
apply to some existing or future law OF
state or Territory which may conflict
with the provisions of the bill now un-
der consideration. 1t provides for coun-
teraeting such forbidden legislation by
imposing a fine and Imprisonment
upon the legislator who may pass such
conflicting laws, or upon the officers OIL
agents who shall put, or attempt to put,
them into execution. 1t means an of
! fetal offense, nota common crime COM
mitted 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 the deprivation OF
the right itself, either by the State Ju-
dietary or the State Legislature. 1t is,
therefore, assumed that under this Sec
stion members of State Legislature,
who should vote for laws conflicting
with the provisions of the bill; that
Judges of the State Courts who should
render judgments in antagonism with
its terms ; and that marshals and sher-
| ifs, Who should, as uninterested officers,
execute processes sanctioned by State
laws, and issued by State Judges, in
execution Of their Judgments, could be
brought before other tribunals, and
there subjected to fine and imprison-
mantfor the performance of their du
ties which such State laws might
impose. ytlT.F TB eE1.F (
The legislation thus proposed invades
the judicial power of the State. 1t says
to every State Court or Judge: eff you
decide that this act is unconstitutional,
If you refuse, under the prohibition of a
State law, to allow u negro to testify
If you hold that over such subject mat.
ter the said law is paramount under
color of State law and refuse the ex-
"
error of judgment, however conscien-
tious, shall subject you to fine and
imprisonment. l do not apprehend
that conflicting legislation, which the
bill seems to contemplate, is 50 likely
to occur as to render il necessary at this
time to adopt measure of such doubt
full constitutionality. Inthe next place,
this provision of the bill seems to- be
unnecessary, as adequate judicial REM
edies could be adopted to secure the de-
sired effect, and without invading the
immunities of Legislators, always i'm
portant to be preserved in'the interests
of public liberty; without assailing the
independence of the Judiciary, always
essential to the preservation Of individ-
ual rights, and without impairing the
efficiency ofministerial officers, always
necessary for the maintenance of pub
lie peace and order. The remedy pro-
posed by this seems to be, in this respect
not only anomalous, but unconstitu-
tional for the Constitution guarantees
nothing with certainty if it does not
insure to the several States the right of
making their own laws i'll regard to all
matters arising within their jurisdiction,
subject only to reconstruction in cases
of conflict with the Constitution and
constitutional laws of the United States,
the latter to be held as the supreme law
of the land. ss a&&- "a #'F
The third section gives the District
Courts Of the United States exclusive
cognizance of all crimes and offenses
committed against the provisions of
this act, and concurrent jurisdiction
with the Circuit Courts of the United
States,1 of all civil and criminal cases
affecting persons who are denied or
cannot enforce in tile courts or Judicial
tribunals of the State or locality where
they may be, any of the rights secured
by them by the first section. The con-
structiOn which l have given to- the
second section makes it clear what kind
OF denial or deprivation of rights secur-
Ell BY the first section was in. contem-
plation. 1t is a denial or deprivation of
such rights lin the courts or judicial
tribunals of the State. 1t stands, there
fore, clear of doubt, that the offenses
and the penalties provided in the second
section, are intended for the State Judge,
who in the clear exercise of his unc-
tons asa Judge, not acting ministerially,
but judiciously, shall decide contrary to
this Federal law; in other words, when
a state Judge, acting upon question
involving q conflict between State law
and Federal law and bound according
to his own Judgment and responsible
ty 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
dictate of his own Judgment at the
peril of fine and imprisonment. The
legislative department of the Govern
ment of the United States thus takes
from the judicial department of the
States the sacred and exclusive duty of
a judicial decision, and converts the
State judge into a mere ministerial off,
Ger, bound to decide 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 ex-
ecutive cOgnizance of the Federal tribu-
mails. Tt follows that If law which
denies to colored, person any one of
all those rights, that persons should
commit q crime against the slaws of
or any other crfme--all
protection and punishment through the
a..