The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1866-03-30

count Of such person hsving ct any time
been held in condition of slavery, or in
, voluntary servitude Except as punishment
Of crime whereof the party shall have been
duly cOnvicted), or by reason of color OF
race, than Is prescribed for the punishment
of white persons; shall be deemed guilty oI
q misdemeanor, and on conviction shall be
punished by fine not exceeding $1,000, OF
imprisonment not exceeding one year, OF
both, IN the discretion of the courts.
This section seems TO be designed to apply
to some existing OF future law Of State or
, Territory, which may conflict with the pro-
visions OF the bill now under consideration.
1t provides for countereeting such forbidden
legislation by imposing fines and inprisOn-
ment upon the legislator who may pass
such conflicting laws, or upon the officers or
the agents who shall put or attempt TO put
them into execution. 1. means an official
ohense, not common crime committed
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 de-
privation of the right itself, either by the
State judiciary or the State legislature.
1t is therefore assumed that Under this Sec
ton members of State Legislature l0ho
should Uote for lGlos conflicting l0ith the pro-
visions Of this bill; that Judges of the State
Courts l0hO should render Judgments iH an
tagoEiSm 9s1A ats terms, and that AGrShGLs
and Sheri1s loko should as ministerial Of
fcers, erec lte the processes sanctioned By the
State laos, and iSSited By the State Judges,
IN the erectti0n Of their Judgments, could be
brought before other Tribunals and be there
subjected 10 fine and Imprisonment for the
Performance Of the duties ,ohieA such State
tas0s may impose.
The legislation thus proposed invhdes the
judicial power of the States. 1t says to
every State court or Judge, off you decide
that this act is unconstitutional; if you re-
fuse, under the prohibition of a State law
to allow a negro 10 testify if you hold that
upon such a subject matter the State laV is
paramount, and under color Of State law
refuse the exercise of the right to the negro,
your error Of judgment, however cOnscien-
tious, should subject you TO fine and imPri-
Bonment."
I do not apprehend that the conflicting
Legislation, which the bill seems to cOntem-
plate, is likely to occur, 80 as to render it
necessary, at this time, to adopt a measure
of such doubtful constitutionslity.
In the next place, this provision Of the
bill seems to be unnecessary, as adequate
judicial remedies could be adopted TO Sc
cure the desired end without invading the
immunites of legislators always important
| TO be preserved in the interest of public hb-
! MlNuDub ubbdiAlLk NAC lAuG pGAuGANC VI
the judiciary, always essential to the pre-
servatlon of individual rights and without
impsiring the efficiency of ministerial Off
GERS always necessary for the maintenance
of public peace and order.
The remedy proposed by this section
seems to be in this respect not only anOma-
lous but unconstitutional, for the Constitu-
tiOn guarantees nothing with certainty if
| it does not insure the several States the
right of making index ruling laws in re-
| gard to all matters arising within their
| Jurisdiction, subject only to the recoastruc-
tion in the cases of conflict with the Con-
stitution and Constitutional laws of the
United States, the latter 10 be held as the
supreme law of the land.
The third section gives the District Courts
| of the United States exclusive cognizance
of all crimes and otfenses committed against
the 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 enforce IN the Courts or judicial tri-
bunals of the State or locality where they
may be, any of the rights secured TO them
| by the first section of the constitution which
| / have given to the second section, for it
makes clear what kind Of denial or depri-
vation of rights secured by the first section
| was in contemplation.
| It is denial or privation Of such rights
in the courts or judicial tribunals of the
State. 1t stands, therefore, clear Of doubt,
that the offense and the penalties provided
in the second section, are intended for the
| State Judge, who, in the clear exercise Of
his functions as Judge, not acting minis
| terially but Judlclally, shall decide con-
/ trary to this Federal law.
In other words, when State Judge, act
ing upon a question involving q conflict be-
| tween Stste law and a federal law, and
bound according 10 his own judgment and
responsibility to give an impartial decision
| between the two, comes to The conclusion
that the STATE law is valid and federal law
| invalid, he must not follow the dictates of
his own judgment at the peril Of fine and
| imprisonment.
This legislative department of the United
States thus takes from the judicial depart
ment of the States the sacred and exclu-
sVe duty of judicial decision, and con-
Yerts the State judge into mere minis.e-
rial officer, bound to decide according to
the viii Of Congress.
It is clear that in the States which deny
TO persons the rights which are setired 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 tnird
| section, come under the Executive cngni-
zance of the Federal tribunals.
1t follows that if any State which denies
| TO q cOlOred person any one of all these
| rights, that person should commit crime
against the laws of the State--nurder or
| any other crime-all protection and pun
ishment through the courts of the State ars
taken away and he can only be tried in the
| Federal Court. How is the criminal to be
tried if the oiienso is provided for, and pun
ished by Federal law, that law, and not
State law, is to govern it, is only when the
otfense does not happen 10 be within the
| purview Of Federal law, that the Federal
courts are to try and punish him under any
| other law. Then resort is TO be had to the
common law ss modified and changed by
| State legislation, so far as the same is not
| inconsistent with the laws of the United
| States.
So that over this vast domain Of criminal
| jurisprudence, provided by each State for
| the protection Of its own citizens and for
the punishment Of al her sons who violate
its criminal laws. Federal law, wherever
it can be made to apply, disPlaces State
law.
The question here eventually arises, from
| what sources 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 States
hnh4l eAbtnu 10 dlA CaSeht III law anu equity
| arising under this Constitution, the laws Of
the United States, and treaties made and
which shall be made under their authority;
10 all cases affecting ambassadors or other
| public ministers and consuls; to all cases of
| admiralty aud mAratine Jurisdiction; to con-
| troversies TO vhich the United States shall
| be a party; to controversies between two or
| more States, between State and citizens Of
another State, between citizens Of diff
| fsrent States, between citizens Of the same
| State, claims lands under grants Of different
/ States, and between a State or the citizens
thereof, and foreign States, citizens or sub
iects here, the Judiciary power Of the Uni
ted States is expressly set forth and defined,
end the set Of September "a, 1889, estab-
fishing the Judiciary Courts Of the United
States in comforting upon the Federal
Courts jurisdiction over cases originating in
State tribunals is careful 10 confne them IN
the classes enumerated in the above rccited
clsuse of the Constitution. This section Of
the bill undoubtedly comprshended cases,
and authorizes tRs exercise OF powers that
are 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 cal
cula.ed 10 excite aistTust and alarm on the
port Of all the States, for the bill applies
alike 70 all Of than, ss well 10 those that
have as to those that have not been enea-
ged in rebellion.
Itmay be assumed that this authority is
incident to the power granted to Congress
bv the Constitution SIS recently amended TO
enforce hy appropriate legislation the arti-
Gle declaring that neither slavery nor in
voluntary servitude, 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
II can not. however, be Justly claimed
that with a view to the enforcement cf this
article Of the Constitution, there IS st pres
ent any necessity for the exercise Of sl the
mowers which this bill couiers. Slavery
has basu abolished, and at present nowhere
exists within the Jurisdiction Of the lRited
States nor has there been, nor is It likely
there will be any attempts tn revive il By
the people Of the.ststes.