Delaware State journal and statesman., 1866-03-30

asked, may not Congress repeal In the same wal
all those laws discriminating between tho tw,
races Uu the subject OF -uliruge AMI office. !
Congress eau declare by law who shall holi
lands, who shall testify, who shall have capacity
to make a contract in State, then Congress,
can by law also declare who, without regard tl
race or color, shall have the right to sit as d
juror OF as judge, to hold any Office, aud 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 is the Federal power
but as to the States, no similar provision exists,
vestng in Congress the power to make rules
and regulations for them.
TIE object OF the second section Of the bill il
to afford discrmnative protection to colored
persons In the full enjoyment Of all the rights
secured 10 them By the preceding section it
declares that any person who, under color OF
any law, statute, ordnance, regulation or GUS
tom, shall subject, or cause to be subjected, auy
| inhahitant Of any STATE or Territory to the de-
| privation of auy right secured or protected by
this act or to different punishment, pains or
penalties, on account OF such person having Mt
any time been held in a condition Of slavery, or
involuntary seryitudo, except as u punishment
for crime whereof the party Shall have been duly
convicted or by reason of his color or race than
is prescribed for the punishment Of wuitU per-
sons, shall be deemed guilty OF a misdemrauor,
and on conviction shall be punished by fno not
exceeding one thousand dollars, OF imprisonmpnl
not exceeding one year, or both, 10 the dlscre-
ton of the court" This section seems u be dc
signed to apply to some ex sting or fnure law
OF State or Territory, which may conflict with
the provisions OF the bill now under CONSIDER
alton. II provides for cOunicrac'lng such for
bldden legislation by lmposng fine aud I'M
prsonment upon the Legislators who mny pass
such conflicting laws, Or upon the oAiGers or
agents who shall put or attempt 10 put hem into
execution. Ii means an tilicnd ciitnce, not II
common crime committed against law upon tho
person or property Of the black race. Such an
act may deprive the black man OF his properly,
but not Of the right to hold property 1t means
q deprivation Of this 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 this
bill, that judges Of the State courts who should
render Judgments 10 aulagonism VITA its TERMS
aud that mRrshalB and shcrlGs who should as
ministerial officers, execute processes sanctioned
by State laws aud issued by State judges IN tx
oeution Of heir judgmlnts, coud bc brought
before other tribunals, md there subjected to
fine and imprisonment for the performance "
the duties which such Siae laws might impose
The Legislation thus proposed iuyades tie judi
cial power Of the State. 1t says to every State
court or judge, d" II yen decide that this act is
unconstitutional; II you refuse, under the pro-
hibilion of State, TO allow negro to tcstify
it you hod that, over such a subject matter, the
State law is paramount, md under color of n
State law refuse the exercise 0T the right 10 the
negro, your error OF judgment, however consci-
entlous, shall SUBJECT you to fine aud imprison
ment." do not opprehend that the cOLtl cung
Legislation, which the bin seems to contemplate.
is likely to occur as to render it necessary ut
this time to adopt IL measure Of such doubtful
constiutionality.
In the next place, this provision Of the bill
seems to be unnecessary, as adequate judicial
remedies could he adopted to secure the desired
end without involving tho immunites of egis-
latures, always important to he preserved in tho
interest of public liberty without assailing the
independence of the judiciary, always ess ntinl
to the preservation Of individual right nud
without mparing the efficiency Of mihistetinl
officers, always necessary for the maintenance
OF public peace md order The remedy pro-
posed by this section seems to bo in this respect
not only anomalous, but u constitutional, for the
Constitution guarantees nothing with certainly
it It does not ensure to the several States the
right Of making und executing laws in regard 10
ject only to restriction 10 cases that conflict with
the Constitution aud constitutional laws OF the
United States-tho latter should be held to be
the supreme law of the und
The third section gives the District Courts Of
the United States exclusive " cognzauccs Of all
crimes aud offences committed against the pro-
visions OF this act" and concurrent jurisdiction
with the Circuit Courts of the United States Of
all civil aud criminal cases affecting persons who
are denied or cannot enforce in the courts or
Judicial tribunals Of the State or locality,
wherever they my he, any of the rishto Sc
cured to them by tine first section; and the coll
slrsction which have giyen to the second sec
tiou is strengthened by this t-rd section, fur it
makes clear what kind of denial or deprivation
Of the rights secured by the first section was IN
contemplation. II is a denial or deprivation of
such rights Z" in the oOults OF judicial tribunals
Of the State" Il siands, ther fore, clear Of
doubt that the offence and The penalties provid-
ed in the second section nre INTENDED for the
State judge who, in tue clear exercise of his
functions as judge, not acting miuisterially
but judciniy, shall decide contrary to this
Federal law.
In other words, when State Judge, acting
upon q question involving u conf CT between n
State law und Federal law, aud bJuui accord
ing 10 his own judgment und lespunslbllty, tu
give au impartial decision between the two,
comes " the conclusion TINT thr Smte law is
valid ani the Federal law IS invnild, he must
not follow the dictates OF his own judgment al
the peril vi fine and Imprisonment. Tue lrgis-
latlVe department Of the Guycrnment Of tue
Uuncd States thus tuk,s from the judcial de-
partmtnt of the States the sacred aud exclusive
duty Of jude al decision, aud converts the state
Judge into mere ministerial uiIcer bound 10
decide according to the will Of Congress.
1t is clear that in the States which deny tc
persons whose rights are secured by the first
section Of the bill any one Of these rights, all
criminal and civil ca.es affecting them will, by
the provision Of the thlrd SECTION, come under
the Exclusive oognizanco of the Federal tribunals
1t follows that if in any State which denies to
coored person any one of those rights, that per-
son should commit Il crime against the laws o
the State, murder, arson, rape, or any otnei
crime. all protection or punishment through the
courts OF the Stnte are taken away, aud be car
only be tried and punished in the Federal courts
How is the criminal to be tried it the offence il
provided for and punished by Federal Law. Iha
law, and not the State law ls TO govern,
1t is only when the offence does NOT happen ts
be within the purvlew of Federal law thut th,
Federal courts are TO try aud punish him. Un
der any other law, then resort is to be had Il
the common law as modified aud changed by
State legislation, so far Ms the same is not incon
sisIent with the Constitution aud laws Of thi
Uuited States. So that over this vast domain 0
criminal Jurisprudence, provided by each Stat,
for the protection of its own citizens, and fol
the punishment Of all persons who violate it,
criminal laws, Federal law, wherever it can b,
made to apply, displaces State law.
The question here naturally ariscs, from wha
source Congress derives the power 10 transfer /,
Federal tribunals certain classes of cases EN-
brnced in this section The Constitution ex
pressly declares that the Judicial power Of tn,
United States shall extend TO all cases in Law
and equity arising under this Constitution, tn,
laws OF the United States, aud treaties made oi
| which shall be made under their authority. n