Year: 1866

nance, regulation, or custom, shall subjec


or cause to be subjected any inhabitant O


any State or territory to the deprivation O


any right secured OF protected by this act, O


to different punishment, pains, or penalties


ON account of such person having at an


time been held in a condition of slavery OF


involuntary servitude, except as punish


ment of crime whereof the party shall hav,


been duly convicted, or by reason of color o.


race, than is prescribed for the punishment


of white person, shall be deemed guilty O


a misdemeanor and on conviction, shall bt


punished 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 State q


territory which may conflict with the provi-
| sions of the bill now under consideration


1t provides for counteracting such forbidden


legislation by imposing fine and imprison-


ment upon the legislator who may pass such


conflicting laws, or upon the officer or agents


who shall put or attempt to put them into
| execution. 1t means an official ofiense, 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
property. 1t means deprivation of the
| right itself, either by the State judiciary or


the State Legislature. 1t is therefore as


sumed that under this section members of a
State Legislature who should vote for laws


conflicting with, the provisions of the bill, that
the Judges of the State Courts who should
render judgments in antagonism with its
terms and that the marshaIs andsherifs who


should as ministerial officers execute the
| processes sanctioned by the State laws is


sued by State judges in the execution OF
their judgments, could be brought before
tribunals, and there subjected to fine and i'm


prisonment for the performance of the du-


ties which such State laws may impose
The legislation thus proposed invades the
judicial power of the States. 1t says to
every State court or Judge, if you decide
that this act is not unconstitutional you
refuse, under the prohibition of State law,
to allow negro to testify-if you hold that
upon such subject matter the State law is
paramount, and under color of the same re-
fuse the exercise of the right to the negro
your error of judgment, however conseien-
tious, shall subject you to fine and imprison-
ment.


do not apprehend that the conflicting
legislation, which the bill seems to contem-
plate, is likely to occur, so as to render it
necessary, at this time, to adopt measure of
such doubtful constitutionality.


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 invading the i'm
munities of Legislators, always to be preserv-
ed in the interest of public liberty. With
out assailing the independence of the judi
ciary, always essential to the preservation of
individual rights and without impairingt the
efficiency of ministerial Office, always neces-
sary for the maintenance of public peaceand
order. The remedy proposed by this section
seems to be, in this respect, not only anom-
alous but unconstitutional, for the Consti-
tuition guarantees nothing with certainty if
it does not insure the several States the right
of making individual laws in regard to all
matters arising within their jurisdiction, sub
ject only to reconstruction in case of conflict
with the Constitution and constitutional laws
of the United States-the latter to be held
the supreme law of the land.


The third section gives the District Courts
of the United States exclusive cognizance of
all crimes and ofienses. committed against
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 are denied or can not
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, of the construction which l have
given to the second section, for it makes
clear what kind of denial or deprivation of
the rights secured by the first section was in
contemplation.


1t 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 func-
tions as a Judge, not acting ministerially,
but judicially, shall decide contrary to this
Fedora law. In other words, when State
Judge, acting upon a question involving a
conflict between State law and Federal
law, and bound according to his own judg-
ment and responsibility to give an impartial
decision between the two, comes to the con-
clusion 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 depart
ment of the States the sacred and exclusive
duty of a judicial decision, and converts the
State Judge into mere ministerial officer,
bound to decide according to the will of Con-
gress.


1t is clear that, in States which deny to
persons, whose rights are secured 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 third section,
come under the exclusive cognizance of the
Federal tribunals 1t follows that if any
State which denies to colored person
any one Of these rights, if that person
should commit a crime against the laws
of the State, murder or any other crime,
all protection and punishment through
the courts of the State are taken away,
and he can only be tried and punished
in the Federal courts. How is the criminal
to be tried if the offense is provided for and
punished by Federal law? That law and not
State law is to govern. 1t is only when
the ofense does not happen to be within
the purview of the Federal law that the
Federal courts are to try and punish him un-
der any other law. Then resort is to be had to
the common law as modified and changed by
State legislation, so far as the same is not
inconsistans with the Constitution and 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 all her sons
who violate her criminal laws, Federal law,
wherever it can be made to apply, displaces
State law. The question here naturally
arises, from what sources Congress derives
the power to transfer to Federal tribunals
certain classes of cases embraced in this sec
ton. The Constitution expressly declares
that the Judicial power of the United States
shall extend to all cases in law and equity
arising under the Constitution, the laws Of
the United States, and treaties made, and
which shall be made under their authority;
to all cases affecting ambassadors or other
public ministers and consuls to all cases of
admiralty and maritime jurisdiction to
controversies to which the United States
shall be a party to controversies between
two or more States, between a State and cit
liens of another State, between citizens Of
different States, between citizens Of the same
State, claiming land under the grant Of the
different States, and between State or the
citizens thereof, and foreign States, citizens
or subjects. The Judiciary power of the
United States is expressly set forth and
defined, and the act ofSeptember 24th, 1889,
establishing the judicial courts Of the United
States, in comforting upon the Federal courts