Year: 1866

bGCIIUM mBt4DeIs
of the 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 marshals and
sherls, who should, as ministerial officers, execute
processes, 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 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 under the prohibition of State law to
allow negro to testify, if you hold that over such
subect-matter the State law is paramount and "un-
der color of State law refuse the exercise of the
right to the negro your error OF judgment however
conscientious, shall subject sou to fine and mprison
mentl do not apprehend that the conflicting legia-
lation, which tho bill seems TO contemplate is so
likely to to render 1t necessary this time to
adopt measure of such doubtful constitutionality


In the next place. this provision of the bill seems
could be adopted to secure the desired end without
invading the immunitles of legislators always i'm
portant to be preserved in the interest of public lib
erty without assaiing the independence Of the judi
cary always essential to the preservation of indi
vidual nights and without impairing lhe efficiency
OF ministerial officers always necessary for the main
tenance OF public peace and order. The remedy pro-
posed by TINS section seems to be- in this respect
only anomalous but unconstitutional; for the Consti
tuition guarantees nothing with certainty if it does
not insure to the several States the right of making
and executing laws in regard to all matters arising
within their Jurisdiction subject only to the restric
tion that IN cases of conflict with the Constitution
and constitutional laws of the United States the lat





The third section gives the District Courts of the
United States exc lusiye cOgnizance of all crimes
and offences committed the provisions of this
act.'' and concurrent jurisdiction with the Circuit
Courts of the United States of all civil and criminal
cases affecting persons who denied or cannon en-
force in the courts judicial tribunals OF the State
locality where they may be any of the rights Sc
cured to them by the first section The construction
which have given to the SECOND section is strength
ened by this third section, for it makes clear what
kind of denial or deprivation of the rights secured
by the first section was in contemplation. It is de-
upDriVatlOn
judicial tribunals of the State"


1t stands, therefore, clear Of doubt that the offence
and the penalties provided in the second section are
intended for the State Judge, who in the clear
else Of his functions Judge, not acting minis
terally but judiciay shall decide contrary TO this
Federal law. In other words. when State Judge
acting upon question involving conflict between
State law and Federal law, and bound, according
to his own judgment and responsibility. to give an
impartial decision between the two, comes to the
conclusion that the State law is valid and the Fed
eral law is invalid he not follow the dictates of
his own Judgment at the peril of fine and imprison-
ment. The Legislative Department of the Govern
ment Of the United States thus takes from the Judi.