Cleveland daily leader. [volume] ([Cleveland, Ohio]) 1865-1873, 1866-03-28

any of the rights secured to them by the
first section. The language Of this section
confirms the construction which I have
given to the I'd section, for It makes clear
what kind ofdenial or deprivation of rights
secured by the lst section was in contem-
plation. Il is a denial, or deprivation
Of such rights in the courts or judicial
tribunals of the State. 1t stands,' there
fore, clear of donbt that the offense and the
penalties provided in the I'd section arc in
tended for the State judge, who IN the clear
exercise OF his function as q judge, not act
ing even ministerially, but judicially, shall
decide contrary to this Federal law, in 9TH
or words, when State judge. acting upon
question involving a conflict between a
State law and Federal law, and bound ae-
eording to his own Judgment and response
bility to give an impartial decision, between
the two comes to the conclusion that the
State law is valid and the Federal law is in.
valid, he must not follow the dictates
Of his own judgement at the peril of fine
and Imprisonment. The legislative depart-
ment of the Government of the United
States thus takes from the judicial depart
ment of the States the sacred and exclusive
duty of a judicial decision and converts the
State judge into mere ministerial officer.
bound to decide according to the wilRof
Congress. 1t is clear that in case which deny
to persons whose rights are secured by the
first section of the bill any one of those
rights and cases affecting them will, by the
provisions of the third section, come under
the executive cognizance of the Federal
! tribunals. 1t follows that in any
suit that denies to colored
person any one of all those rights, that such
person should commit crime against fhe
laws Of State, murder or any other crime,
all protection and punishment through the
courts of the State are taken away and he
ean only be tried and punished in the fed
eral courts. How is the criminal TO be tried
if the ofense is provided for and puaished
| by the federal law. That law and not the
State law is to govern. 1t is only whsn the
offsnse does not happen ts be
within the purview of the federal law
that the Federal courts are to try and pun
ish him under any other law, then resort is
to be had to the common law as modified
and changed by State legislation, so far as
same is not inconsistent with the constitu-
ton and laws Of the United States, so that
| over this vast domain criminal iurispru-
denee provided by each State for the pro-
| lection of its own citizens, and for the pun
ishment Of all persons who violated its
criminal laws, Federal law, wherever IL
can be made to apply, displaees State law
The question here naturally arises, from
what source Congress derives the power 10
transfer to Federal tribunals certain classes
Of cases embraced in this section. The
Constitution expressly declares that "the
Judicial power of the United StStes shall
extend TO all cases in law and equity aris-
ing under this Constitution, the laws of the
United States aAd treaties made, or which
shall be made under their authority; TO all
cases affecting ambassadors or other public
minister and consuls; to all cases of
a. mi 1ral nd Ia
ton; to controversies to which the
United States shall be party;
to controversies between two or more
States, between g State and citizens Of an
other State, between citizens of different
States, between citizens of the same State;
claims of land under grants of different
States and between State or the citizens
thereof and foreign States, citizens or sub
jeets. Here the judicial power of the
United States is expressly set forth and de-
fined, and the act of September 24th. 1888,
establishing the judicial courts of the
United States, in eOnferring upon the federal
courts jurisdiction over cases originating
in State tribunals is careful to eonfine
them to the classes enumerated in the
above cited clauses of the Constitution.
This section Of the bill undoubtedly com
pretended the cases and authorizes the
exercise of powers that are not by the
Constitution within the Jurisdiction of the
courts OF the United States, and to transfer
them to those courts would be an exercise
of authority well calculated to excite dis.
trust and alarm on the part of all the States
for the bill applies alike to all of them, as
well as those that have been engaged in the
rebellion.
It may be assumed that this authority is
incident to the power granted to Congress
by the Constitution as recently amended, to
enforce by appropriate legislation the arti-
e,e declaring tbs. neither slavery nor invol-
untary servitude, except as a punishment
for crime whereof the party shall have been
duly convicted, shall exist within the United
States or any place subject to their jurisdic
ton. II cannot, however be Justly claimed
that with view to the enforcement of this |
article of the Constitution there is at pres
ent any necessity to exercise all the powers |
which this bill confers. Slavery has been
abolished, and at present nowhere exists |
within the jurisdiction Of the United States;
nor has there been, nor is it likely there
viii be, any attempts to revive it by the
people-Of the States. However if any such
attempt shall be made, it will then become
the duty of the general Government to ex-
ercise any and all incidental powers neees-
sary and proper to maintain invielate this
governmental law of the freedmen.
The 4th section of this 6ill provides that |
officers and agents Of the Freedmen's Bureau |
shall be empowered to make arrests and
also other officers may be specially commits
stoned for that purpose by the President of
the United States 1t also authorizes the |
Circuit Courts of the United States and Su-
perior Courts of the Territories to appoint, |
without limitation, commissioners, whe are |
to be charged with the performance of quasi |
Judicial duties.
The 5th section empowers commissioners |
to be selected by the court to appoint in /
writing one or more persons from time to /
time to execute warrants and other processes
desirable by the bill. These numerous Of |
feials and agents are made TO constitute a |
court of police in addition TO the military, |
and are authorized to summon posse coni- |
tatus, and even to call to their aid such por-
tions Of the land and naval forces Of the
United States, or Of the militia, as
may be Necessary to the performance of |
the duty with which they are ehafTed. |
This extraordinary power is TO be conferred
upon agents irresponsible to the GouSrp- /
ment and to the peoplel and to whose lsm-
Der the discretion OF the commission rs is 1
the only limit, and in whose hands such /
authority might be made terrible engine
Of wrong, oppression and fraud. The gem
eral statutes regulating the land and naval
forces of the United States, the militia and
the execution Of the laws are believed TO
be adequate for any emergency which can
occur in time Of peace, and if it should
prove otherwise, Congress can at any time
amend those laws in such a manner as,
while subyering to the public welfare, not
to ieopardize the Interests and liberties of
the people.
The 7th section provides that fee Of ten
dollars shall be paid to each Commissioner
in every case brought before him, and fee |
Of five dollars to his deputy or deputies for
each person be or they may arrest and take
before such Commissioner, with such other
fees as may be deened reasonable by ouch
in general for perforrRing
such other duties as may be. sre-
quired of them in the premises. All these
fees are to be paid out of the Treasury of
the United States, whether there is aeon
viction or not, but in case Of conviction
they are recoverable from the defendant.
1t seems to me that under the influence Of
such temptations, bad men might convert
any law, however benefcient, into an in
strument OF persecution and frand.
By the 9Th section Of the bill the United
States courts which sit only in one place,
must migrate with the Marshal and
District Attorney, and necessarily with the
clerk, although he is not mentioned, to any
part of the district upon the order of the
President, and there hold court for the
purpose Of the more speedy arrest and trial
1f persons charged with violation of this
act, and there the Judge and officers of the
court must remain, upon the order Of the
President for the time therein designated.