Year: 1866

PeioousJ shaii Do ueeuneu guilty OF mis-
demeanor, and on conviction, shall be pun
ished by fine not exceeding one thousand
dollars, or imprisonment not exceeding one
year. or both, in the discretion Of the
Court" This section seems to be designed
to apply to some existing or future law of a
State or Territory, which may conflict with
the provisions of the bill now under con-
sderation. 1t provides for counteractinp
such forbidden Legislation, by imposing fine
and Imprisonment upon the legislators who
may pass such conflicting laws, or upon
the ofacers or agents who shall put or at


tempt to put them into execution. 1t
means an official offence, not a 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 pro-
perty. 1t means deprivation Of the right
itself, either by the State Judiciary or the
State Legislature. 1t is, therefore, assum
ed that, under this action, members of
State Legislature, 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 sheriffs who
should as ministerial officers execute pro
cesses sanctioned by State laws and issued
by State Judges in execution of their iudg
ments, could be brought before other tri-
bunals aud there subjected to fine and i'm
prisonment, Tor the performance Of the du
ties 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 re-
fuse under the prohibition of State Law,
to allow 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 70 the
negro; your error of judgment, however
conscientious, shall subject you to fine and
Imprisonment. | do not apprehend that the
conflicting legislation which the bill seems
to contemplate is 80 likely to occur, as to
render it necessary at this time to adopt
measure OF such doubtful constitutionaIity.
In the next place, this provision of the bill
seems to be unnecessary, as adequate ju-
dicial remedies could be adopted to secure
the desired end without ravadirg the im-
munities of legislators, always important to
be preserved in the interest of public lib
erty, notwithstanding the independence OF
the Judiciary; always essential to the pre-
servation OF individual rights, and without
impairing 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 no only enomalous but unconstitu-
uonal, tor the Constitution guarantees
nothing with certainty if it does not en-
sure to the several States the right of max
ing index ruling laws in regard to all mat
ters arising 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
as the supreme law Of the land.


The third section gives the District
Courts OF the United States exclusive cog
nizance otall crimes and offences committed
against the provisions of this act, and cou.
current jurisdiction with the Circuit Courts
OF the United States, of all civil and crimi
nal cases affecting persons who are denied.
or cannot enforce in the courts, or judicial
tribunals OF the State or locality where
they 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 third section, for it
makes clear what kind Of denial, or depri
vation OF rights secured by the frs, section,
was in contemplation. 1t is n 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 in the second
section are intended for the State Judge,
who in the clear exercise of his fun .tions
as judge, not acting ministerialy but iu
dIcially, shall decide contrary to this Fed
eral law. In other words, when State
Judge, acting upon question involving a
Conflict between State law and Federal
law, and bound, according to his own judg-
ment and responsibility, to give an impar-
tial 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 judgment, at
the peril of fine and imprisonment. The
legislative department of the Government
OF the United States thus takes from the
Judicial department of the States the sa.
cred and exclusive duty of judicial decis


ION, and converts the State Judge into a
mere ministerial officer, bound to decide


IL