Delaware tribune. [volume] (Wilmington, Del.) 1867-1877, 1867-12-19

beth cannot be obeyed, and hence, the Judg,
in the exercise of his best judgment, arrive
conscientiously at the conclusion, that Cor
gress has assumed to itself the exercise {
power not warranted by the Constitution
and that, therefore, the Act Of Congress, S
far as it attempts, directly or indirectly, t
regulate proceedings in the State Courts, |
invalid. Was il ever before supposed b.
any lawyer, that Judge, who, in the dis
charge of his judicial functions, and il
obedience to the express prohibition of
Statute of his own State, should refuse Il
allow certain class of persons to testify il
a case pending before him, could be hel,
criminally responsible for such refusal
Congress is not omnipotent. On the con
trary, its powers are limited, and its legisla
ton must be confined within the fair scope
of the powers granted by the Constitution
From the time of Edward the Third, unit
recently, it has always been considered set
tied law, that no Judge could be held an.
swerable, civilly or criminally, for an error
OF judgment, in doing, or refusing to do,
any official act, in the exercise of judicial
power. For an abuse of power he may be
impeached-ilothing. else. Certain it is,
that prior to the adoption of the Constitu-
tional Amendment, no one dreamed that
Congress possessed any such power.
| But 1t is said that the second section OF
the Amendment confers the power upon
Congress to compel State Courts to admit
| negro testimony,in all cases, in which, under
like circumstances, white testimony is ad-
missible. Well, let us see whether this is
fair and reasonable construction of the
amendment. Now, the second section con
ters no power on Congress, which Congress
would not have had without it. The first
section makes the negro race free. 1t does
nothing more. They are free by the supreme
law-the Constitution. The testimony of
no witness is necessary TO establish that fact.
Under no circumstances can they he reduced
to the old condition of slavery, SO long as
the Constitution stands. And hence, their
freedom is assured to them, unless they for
felt it by the commission of crime. So
that, there can be no legal involuntary SER
yitude, but such as results from the iudg-
ment of court of competent jurisdiction,
and in regard to that judgment and its re-
suits, the record alone can speak. But this
kind of seryitude is recognized as legal and
proper, and the testimony of witnesses can
not discharge the party when once duly
convicted
But how arc we to arrive ut the true in
depreciation of q constitutional provision?
In the first place, we must consider the end
proposed to be accomplished by it ; and in
SohsibCiluS THIS, NC lDust give ~ lHt WOIuS
used just such operation and force and no
more, as is consistent with their legitimate
meaning, as applied to the subject matter
about which they treat. Now it is perfectly
manifest that the end proposed, was the
abolition and extirpation of slavery, within
the States and Territories of the United
States. And it seems to me, TO be equally
clear, that the second section was intended
to confer upon Congress power, by appro-
pirate legislation, to vest in the Federal
courts. just such jurisdiction and authority
as might be found necessary or proper for
carrying into effect the end proposed by the
first section of the amendment. For it must
be borne In mind that there is nothing in
the amendment that can be construed to
refer to State Courts. And we must also re-
member that Federal laws must be enforced
by, or through the instrumentality of, the
Federal Judiciary.
Whatever legislation, therefore, may be
necessary or proper, to extinguish slavery
or involuntary servitude, or to prevent re-
straint of, or interference with, personal
liberty, is clearly within the power of Con-
gress. And Congress may very properly
regulate the mode of proceeding. COM
potency of witnesses, the nature and char
acter of evidence to be admitted, and all
other matters touching the tIal of cases, or
thS vi .luSltCt Ill Iut fEuGTul
Courts, or before judicial officers of the
United States. And for any illegal inter
ference with, or restraint of personal liberty,
Congress has power to provide an appropr-
ate and speedy remedy, to be administered
by the Federal judiciary
Every one knows, who is at all familier
with the subject, that the appellate juris-
diction of the United States, as at present
exercised, is very comprehensive indeed -
1t extends TO all cases arising under the Con
and the laws of tie United States
or where the validity, or construction OF
the Constitution, or a law OF the United
States, is drawn in question. And u case
may be said to have arisen, under the Con-
stitution, or law of the United States,
whenever IFS correct decision depends upon
the true construction OF either. And as
Congress, is imperatively required TO vest
the whole Judicial power of the United
States, in Supreme Court, and such infer
ior Courts, as it shall ordain and establish,
it has power to provide for the exercise OF
the appellate jurisdiction, i'll such form as
may be deemed proper-the manner or
mode OF removal being mere form and not
substance. 1t may be by writ of law, ap-
peal, or removal on petition, or in such
other form us Congress may see fit to pre-
scribe. But whether, under the appellate
pDNSit NohSiCSs MAUI any pIONiSIOll, OI
can make any provision, for the removal of
case like this, are questions which we are
not called upon to decide.
The Constitution, and the laws of the
United States, which shall be made in pur-
suance thereof, are the supreme law of the
land, and as such, are binding ON all the
Judges of every State, anything in the Con-
stitution or laws Of any State, to the con-
trary notwithstanding. But the law to be
binding, must be made IN pursuance of the
Constitution; that is to say, it must be a
Constitutional law. An Unconstitutional
law, is mere nuility
The question presented here, is naked
question of power. The Statute law of this
State excludes negroes from being witnesses,
except under certain circumstances. The
Civil Rights Bill of Congress, in effect, de-
clares that they shall have right to give
evidence, in all eases in which a white per-
son is competent to testify; and it is CON
tended that the Act of Congress operates as
r6peat of the Statute law of this State
which excludes them, and is binding on this
Court. | do not think so. think Congress
has exceeded its power. am therefore of
opinion, that in so far as the Civil Rights
Bill assumes TO compel, regulate, or control
the admission of evidence in the Courts of
this State, il is imperative, unconstitutional,
and void.
National Union Republican Com
veution.