Year: 1866




common crime committed against the
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
deprivation of the right itself. either by
the State Judiciary or the State Legisla-
ture. 1t is therefore assumed that under
this section members of State
Legislature who should vote for laws con.
flicting with the provisions of the bill
that Judges of State Courts who should
render judgments in antagonism with the
terms; and that marshals and sheriffs
who should execute processes sanctioned
by State laws and issued by State Jud-
ges, in execution of acknowledgements, could
be brought before other tribunals and there
subjected to fine and imprisonment for
the performance of the duties which such
State laws might impose. The legislation
thus proposed invades the judicial power
of the State. 1t says to every State,
Court or Judge-If you decide that this
act is unconstitutional; if you refuse un-
der the prohibition of a State law to al.
low negro to testify; if you hold that
over such subject matter the said law is
paramount; under color of State law
refuse the exercise Of the right to the ne.
gro, your error Of judgment, however con,
scientious, shall subject you to a fine and
Imprisonment


do not apprehend that the conflicting
legislation, which the bill seems to con.
template, is SO likely to occur as to render
it necessary at this time to adopt meas
ure of such doubtful constitutionalitv
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 immunities of the legislator-always
important to be preserved in the interest of
public liberty-without assaiiing the in
dependence Of the judiciary-always es-
sontial to the preservation of individual
rights-and without impairing the ef6ci-
ency of officers always necessary for the
maintenance of the public peace and order.


The remedy proposed by this section
seems 30 be in this respect not only anom-
aIous, but unconstitutional, for the Con-
stitution guarantees nothing with certain
ty if it does not ensure to the several
States the right of making index ruling
laws in regard to all matters arising with
in their jurisdiction, subject only to the
restriction in cases of conflict with the
Constitution and constitutional laws Of
the United States, the latter to be held as
the supreme law of the land.


The third section gives the District
Courts of the United States exclusive cog
uizance of all crimes and offenses commit
ted against the pro, isions of this act, and
concurrent jurisdiction 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
or judicial tribunals of the State or 10.
cality, where there may be any of the
rights secured to them by the first section.


The construction, which | have given
to the second section is strengthened by
this Sd section, for it makes clear what
kind of denial or deprivation of such
rights in the courts or judicial tribunals
of the state. 1t stands, therefore clear
of doubt that the offence and the penalties
provided by the second section and in.
tended for the Judge, who in the clear
exercise of his functions as Judge, not
acting miuisterially but judicially, shall
decide contrary to this Federal law lu
other words, when State Judge, acting
upon a question involving a conflict be-
tween a State law, and bound according
to his own Judgment and responsibility
to give an important decision between
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 judgement at the peril Of fine
and Imprisonment.


The Legislative Department of the gov
ernment of the United States thus takes
from the Judicial Department of the States
the sacred and exclusive duty of Judicial
decision, and converts the State judge
into mere ministerial officer. bound tt
decide according to the will Of Congress
It is clear that in States which deny tt
persons whose rights are secured by th'
first and civil cases affecting them will
by the provisions of the third section
come under the cognizance Of tn
Federal tribunals.


II follows that if any State which de
MES to a colored person any one of al
these rights, that person should S6mmit
crime against the laws Of state-mur
der arson, rape or any other crime--al
protection and punishment through th
Courts of the State are taken away, ant
be can only be tried and punished in tn
Federal Courts. How is the criminal Il
be tried if the offence is provided for ant
punished by Federal law That law anc
not the state law is to govern. 1t i
1 Al T. l. - L A