Evening star. [volume] (Washington, D.C.) 1854-1972, 1866-03-27


IN Congress the power sto make rules and
regulations" for them.
The object OF the second section Of the bill is to
afford discriminating protection to colored per.
sons in the full enjoy ment Of all the rights Sc
cured 10 them by the preceding section. 1t de-
clales shat any person who. under color Of
any law, statute, ordinance, regulation, or Gus
tom, shall subject, or cause TO be subjected, any
inhabitsnt of any State or Territory 70 the de-
privaeon OF any right secured or protected by
this act, or TO different punishment,
pains, or penalties on account Of such
person having at any time been held in q con-
diiion OF slavery or involuntary servitude.
except as punishment for crime whereof the
party shall have been duly con yicted, or by
reason OF his color or race. than is prescribed
for The punishment of white persons, shall be
deemed guilty of misdemeanor, and, on con-
vlcnon, shall be punished by fine not exceed
ing one thousand dollars, or imprisonment not
exceeding one year, or both, in the discretion
OF the court" This section seems TO be de-
signed TO apply to some existing OF future la W
OF State or Territory which NAV conflict
with the provisions of the bill now under con-
sideratlon: 1t provides for counteracdng
such forbidden legislation by imposing fac
and Imprisonment upon the legislators
who may pass such conflicting laws, or
upon the officers or agents who shall put,
or attempt TO put, them into execution IL
means an Official offrnse, not a common crime
| committed against law upon the persons or
property Of the black race. Such an act
may deprive the black man of his proper
~, but not OF the right TO hold property
1t means adeprvation OF the right Itself, either
by the State Judiciary or the State Legislature.
| 1t is therefore assumed that under this section
members of State Legislatures 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 marsbals and sheriffs, who
should. as ministerial officers, execute pro.
cesses, 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 imprisonment for
me performance OF the duties which such
State laws might impose.
The legislation thus proposed iuyadps the
judicial power Of the State. Ii saws to every
State court or judge, If You decide that this act
is unconstitutional, if you refuse, under the
prohibition OF = State law, to allow a negro to
testify, if you hold that over such 4 subject
matter the State law is paramount, and "under
COLOR Of State law refuse the exercise of the
right TO the negro, your error of judgment,
however conscientious, shall subject you to fine
and imprisonment! i do not apprehend that
the conflicting legislation, which the bill seems
TO cOnem plate, is so likely to occur TO render
1t necessary at this time to adopt measure of
such doubtful constitutionality.
In the next place, this provision of tn bill
seems to be unnecessary, as adequate judicial
remedies could he adopted to secure the ssired
END, without invading the immunities Of legis-
lators, always important to be preserved in the
interest OF public liberty, without assailIng the
Independent &c o. the judiciary, ALWAYS essential
TO tie preservation of individual rights, and
without impairing the efficiency OF ministerial
oHIcers. always necessary for the maintenance
OF pUDIlc peace ana Or0eT. Inc remedy
by this section seems 10 be, in this respect not
only anomalous but unconstitutional: for the
constitution guarantees nothing with certain
ty. If il does not insure TO the several States the
right of making and executing laws in regard
10 All matters arising within their larsdictio
subject only to the restriction that in cases OF
conflict with the Constitution and cons,itu-
ton3l laws OF the United States. the latter
should be held 10 be the supreme law Of the
land.
The third section gives the District Courts of
IA limit 70 IA
crimes and offences conn tilted against the
provisions az this act and concurrent iu-
risdiction 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 judicial tribunals of
the State or locality where they may be any
OF the rights secured TO them by the first Sec
non' The construction which have given
to the second section Is strengthened by
THIS third section, for IL makes clear what
KIND OF DENIAL or deprivation of the rights Sc.
cured by the first section was in contemplation
1t is denial or deprivation Of such rights ain
the Courts or judicial tribunals OF the State,
II STANDS therefore, clear Of doubt that the Of
renee and the penalties prov ided in the second
section are intended for the State Judge who
in the clear exercise OF bis functions as a Judge,
not acting ministerially. but judicialIy, shall
orciGp contrary 10 this Federal law
IN ether words, when n State Judge, acting
upon question inv diving a conflict bet ween
State law ana a Federal law, and bound,
according 20 MS own judgment and RESPONSE
biiIty, 20 give an impartial decision between
the two. comes 10 the conclusion that the
STATE Jaw il valid and the Federal law is in
valid lie must not follow the dictates of his
own Judgment 81 the peril of fine and i'm
prsonrnent The Legislative Department of
INC Government Of the United STATES thus
takes rom the Judicial department OF the
States the sacred and tx clusiye duty OF Judi.
cal docisIor, and converts the State Judge
into mere ministerial officer bound TO decide
according TO the Will OF Congress.
II IL clear tina. III states which deny 10 per.
sons 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 or LIE third section, come
under the exclusive cognizance OF the Fed
eral tribunals. IL follows that IT, in any State
winch denies to a colored person any one of all
nose rights, that person should commit
crime against the laws OF the State, murder,
arson, rape, or any other CRIME, all protection
and punishment through The laws ofthe State,
are taken away, ana ne can only be tried and
punished IN the Federal courts. How is the
criminal to be tried! Ii the offense Is provided
Tor and punished by Federal law, that la W, and
not the State law, Is To govern e..
IL is only when the offence does not happen
20 be within the pGrvicw OF Federal law that
me Federal courts are 10 try snd punish him
Under any other law. Then resort is TO be had
TO 'the common law. rs modified and changed"
by State Legislation. so far IA the same is not
inconsistent with Lie Constitution and laws of
the United States 30 that over this vast do
MAN OF criminal jurisprudence provided by
EACH State for The pTo'Fstiop of its own citi.
Zehs, and lor tbe rrEishrnent OF all persons
".
wherever IL can o. made 10 apply, displaces
State law. - - y
The que stioD here naturally arises, from
what sour Congress derives the power TO
transfer to Federal tribunals certain classes Of
cases embrace In this sectoni The Copstitu-
iioG expressly declares that the judicial mower
OF the United States ''shaii extend to ali cases
IN law and equity arising under this Constftu-
ton, the laws tho tTDHsd States, and treaties
n AIDE, or which shall be- made, under their au-
thority; to ali cases affecting ambass adors, 9TH
erpublic ministers and con subs TO all cases of
admiralty aad maritime jurisdictions; coutro-
VERSES TO which the United States shall ba a
party; to Controversies between two or more
states, between u State and citizens OF another
STATE, between citizens Of different States.
between citizens of the same. State claim
ing land under grants Of different States, and
between State, or the citizens thereof and
foreign States, citizens, or Subjects" . E.F8-,
Here the judicial power of the United States
is exp reesly set forth and. defined; and the act
OF September pa 1889, establishing tho judicial
courts OF the United States, in comforting upon
The Federal Courts jurisdiction over cases ori.
ginating in State tribunals, Is careful to condne
them 10 the classes enumerated in the above
recited clause of the Constitution. This Sec
tom OF the bill undoubtedly comprehends cases
and authorizes the. exercise of powers that are
nO', by the Constitution, within. the jurisdic.
tlOn OF the Courts of the Vnitod-