The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-03-28


scribed for the punishment OF white persons, shall be
deemed guilty Of a miedemeanor and on conviction
shail be punished by fine not exceeding one thou
sand dollars. imprisonment not exceeding one
year, or both, in the discretion OF the court ms
istlng or uture law OF q State or Territory which
NAV conflict with the provisions Of the bill now
S ucS orbdSen by ' %pong
fine and imprisonment upon the Legislators who
may pass such conflicting laws, upon the
officers or agents who shall put or attempt
10 put them into execution II means an ofheal
ofense, not a common crime committed against
law mon the person or property of the black race.
Such an actmay deprive the back man OF ms pro.
perty, but not of the right TO hold property. IL
means deprivation of this hight itself, either by
the State judiciary the state Legislature. IL is,
therefore, assumed that, under this section, mem
bers OF State Legislatures who should vote Tor laws
conflicting with the provisions of this bill, that
judges of the state courts who should render judg-
sbas and sheIiiis who should as ministerial officers,
execute processes sanctioned by State laws and
issued by State judges IN execution OF their judg;
ments could be brought before other tribuna s, and
there subjected to hne and imprisonment Tor the
performance OF the duties which such State laws
might impose. The legislation thus proposed in
vades the judicial power of the State. IL says to
every State court or Judge, f Joudecide that this
act Is uneonsttutional if you refuse under the pro-
bIbItjon OF State TO allow negro to testify If you
hold that, over such subject matter the State law
paramount, and under color OF State law refuse
the of the right to the negro your OF
Judgment however conscientious, shall subject you
to fine and imprisonment do not apprehend
TO contemplate, Is likely to as to render lt
necessary at this time to adopt measure of such
doubtful constitutionaity.
In the next place, this provision OF the bill seems
to be unnecessary, adequate judicial remedies
could be adopted to the Desired end without
involving theimmunities OF legislatures. always im-
portant to be preserved in the interests of public
liberty; without assalling the independence OF the
judiciary, always essential to the preservation OF
individual rights and without impairng the effi-
cheney 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 unconstitutional,
for the Constitution guarantees nothing with GER
tainy it does not ensure 10 the several States the
right ofmakng and executing laws IN regard to all
matters arising within their jurisdicGion subject only
to restriction in cases that conflict with the COnsti
tutlon and constitutional laws Of the United Stats
the latter should be he'd to be- the supreme law of
the land.
The third section gives the ID strict Courts of the
United States exclusive "cognizance all crimes
and oeDses committed against provisions of this
act" and concurrent jurisdiction with the Circuit
Courts of the United States of ali civil and criminal
cases affecting persons who are denied or cannot
force IN the courts judicial tribunals of the State
or oca iy, wherever they may be- any of the rights
secured to them bY the fIst sec ion; and the con-
stfuctlon winch have given to the second section IS
strengthened by this third section tor il makes clear
what klnd OF GENIAL or deprivation OF the rights Sc.
cured by the first section in contemplation. 1t
is denial or deprivation OF such rights "1n the
courts or judicial tribunals OF the State" 1t stands
therefore, clear OF doubt that the Ofense and the
penalties provided in the second section intended
for the state judge who in the clear exercise of his
functions Judge, not acting miniaterially but
judiclaly shall decide contrary TO this Federal law
In other words when state judpe acting upon
question invoyIng a conflict between a State law
and Federal law, and bound, according to his own
juoPment and responsibility, to give an impartial
decision tetween 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 own
iudgme mt at the peril OF fine and imprisonment. The
legls alive department OF the Government of the
United States thus takes from the judicial depart.
ment OF the States the sacred and exclusive duty of
judicial decision, and converts the State Judge into
ministerial officer, bound TO decide according
10 the Will of Congress.
1t is clear that in the States which deny to per-
sons whose rights are secured by the first section
of the bill any one OF the rights, all criminal and
civil affecting them will, by the provision of
2ance of the Federal tribunals. 1t follows that if
in any state which denies to a colored person any
one OF those rights, that person should commit q
crime against the laws of the State, murder arson,
rape, any other crime, all protection or punish.
ment through the courts OF the State is taken
away, and he only be tired and punished in
the Federal courts How is the criminal to be tried
If the ofense is to be provided for and punished
by Federal law! That law, and not the State law is
il is only when the offanse does not happen to be
derai 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
legislation SO far as the same is not inconsistent
with the Constitution and laws of the United States
80 mat over t5is vast domain OF criminal nm jlrds,
of its own citizens and for the punishment of all
persons who violate IT'S criminal laws, Federal
The question here naturally arises from what
source Congress derives the power to transfer to
Federal tribunals certain classes of cases embraced
IN this secttonH The Constitution expressly de-
cares that the judicial power of the United States
shall extend to ali caees in law and equity arising
under this Constitution, the laws of the United
STATES and treaties mace or which shall be made
under their authority; to all cases affecting ambas-
sadors, other public ministers and consuls; TO all
cases of admiralty and maritime jurisdiction; to
controversies to which the United States shall be
a lartY; to controversies between two or more
States; between State and citizens of another
State; between citizens of different States; between
citizens OF the same State claiming land under
grants of different States, and between State, or
the citizens thereof and foreign States citizens
subjects.
Here the judicial power of the United States is ex-
pTessly set forth and Defined and the act of Septem
tember a. 1769 establishing the judicial courts of the
United States, in conferIng upon the Federal courts
jurisdiction over originating in State tribunals
is careful 10 conne them to the classes enumerated
in the above-reced clause of the Constitution This
section Of the bill undoubtedly comprehends cases
and authorizes the exercise of powers that not
by the Constitution, within the jurisdiction of the
courts Of the United States. TO transfer them to
those courts would be an exercise of authority well
calculated to excite dsTust and alarm the part OF
all the Statesfor the bill applies alike to all of them
wei to those that have to those that have not
been engaged in rebel lOn 1t may be assumed that
this authority incident to the power granted TO
CONGRESS by the Constitution as recently amended
TO enforce by appropriate legislation the article de.
carng that neither slavery nor involuntary serYi
tude except as punishment for crime, whereof the
party shall have been duly convicted shall exist
within the United States, or any place subject to
their jurisdiction.
view to the enforcement OF this article of the Con-
stltuhOn, there is at present any necessity tor the
exercise OF 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 1t likely there will be-
any attempt to renew Il by the people OF the States