642 



PUBLIC DOCUMENTS. 



agairut the laws of the State, murder, arson, rape, 

 or any other crime, all protection and punishment 

 through the courts of the State are taken away, and 

 he cau only be tried and punished in the Federal 

 courts. How is the criminal to be tried ? If the 

 offence is provided for and punished by Federal law, 

 that law, and not the State law, is to govern. 



It is only when the offence does not happen to be 

 within the purview of the Federal law, that the Fed- 

 eral courts are to try and punish him under any 

 other law. Then resort is to be had to "the com- 

 mon law, as modified and changed " by State legisla- 

 tion, " so far as the same is not inconsistent 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 persons who 

 violate its criminal laws, Federal law, wherever it 

 can be made to apply, displaces State law. 



The question here naturally arises, from what 

 source Congress derives the power to transfer to 

 Federal tribunals certain classes of cases embraced 

 in this section ? The Constitution expressly declares 

 that the judicial power of the United States "shall 

 extend to all cases in law and equity arising under 

 this Constitution, the laws of the United States, and 

 treaties made, or which shall be made, under their 

 authority ; to all cases affecting ambassadors, other 

 public ministers, and consuls ; to all cases of ad- 

 miralty and maritime jurisdiction ; to controversies 

 to which the United States shall be a party; to con- 

 troversies between two or more States, between a 

 State and citizens of another State, between citizens 

 of different States, between citizens of the same State 

 claiming land under grants of different States, and 

 between a State, or the citizens thereof, and foreign 

 States, citizens, or subjects." 



Here the judicial power of the United States is ex- 

 pressly set forth and defined ; and the act of Sep- 

 tember 24, 1789, establishing the judicial courts of 

 the United States, in conferring upon the Federal 

 courts jurisdiction over cases originating in State 

 tribunals, is careful to confine them to the classes 

 enumerated in the above-recited clause of the Con- 

 stitution. This section of the bill undoubtedly com- 

 prehends cases and authorizes the exercise of powers 

 that are not, by the Constitution, within the juris- 

 diction of the courts of the United States. To trans- 

 fer them to those courts would be an exercise of au- 

 thority well calculated to excite distrust and alarm 

 on the part of all the States ; for the bill applies alike 

 to all of them as well to those that have as to those 

 that have not been engaged in rebellion. 



It may be assumed that this authority is incident 

 to the power granted to Congress by the Constitu- 

 tion, as recently amended, to enforce, by appropriate 

 legislation, the article declaring that "neither sla- 

 very nor involuntary servitude, except as a punish- 

 ment for crime, whereof the party shall have been 

 duly convicted, shall exist within the United States, 

 or any place subject to their jurisdiction." It can- 

 not, however, be justly claimed that, with a view to 

 the enforcement of this article of the Constitution, 

 there is at present any necessity for the exercise of 

 all the powers which this bill confers. 



Slavery has been abolished, and at present no- 

 where exists within the jurisdiction of the United 

 States ; nor has there been, nor is it likely there will 

 be any attempt to revive it, by the people of the 

 States. If, however, any such attempt shall be 

 made, it will then become the duty of the General 

 Government to exercise any and all incidental powers 

 necessary and proper to maintain inviolate this great 

 constitutional law_ of freedom. 



The fourth section of the bill provides that officers 

 and agents of the Freedmen's Bureau shall be em- 

 powered to make arrests, and also that other officers 

 may be specially commissioned for that purpose by 

 the President of the United States. It also author- 

 izes circuit courts of the United States and the su- 



perior courts of the Territories to appoint, without 

 limitation, commissioners, who are to be charged 

 with the performance of quasi judicial duties. The 

 fifth section empowers the commissioners sp to be 

 selected by the courts to appoint in writing, under 

 their hands, one or more suitable persons, from time 

 to time, to execute warrants arid other processes de- 

 scribed by the bill. These numerous official agents 

 are made to constitute a sort of police, in addition to 

 the military, and are authorized to summon & posse 

 comitatm, and even to call to their aid such portion 

 of the land and naval forces of the United States, or 

 of the militia, " as may be necessary to the perform- 

 ance of the duty with which they are charged." 



This extraordinary power is to be conferred upon 

 agents irresponsible to the Government and to the 

 people, to whose number the discretion of the com- 

 missioners is the only limit, and in whose hands 

 such authority might be made a terrible engine of 

 wrong, oppression, and fraud. The general statutes 

 regulating the land and naval forces of the United 

 States, the militia, and the execution of the laws, 

 are believed to be adequate for every emergency 

 which can occur in time of peace. If it should prove 

 otherwise, Congress can at any time amend those 

 laws in such manner as, while subserving the public 

 welfare, not to jeopard the rights, interests, and lib- 

 erties of the people. 



The seventh section provides that a fee of ten dol- 

 lars shall be paid to each commissioner in every case 

 brought before him, and a fee of five dollars to hia 

 deputy, or deputies, "for each person he or they 

 may arrest and take before any such commissioner," 

 " with such other fees as may be deemed reasonable 

 by such commissioner," "in general for performing 

 such other duties as may be required in the prem- 

 ises." All these fees are to be "paid out of the 

 Treasury of the United States," whether there is a 

 conviction or not; but in case of conviction they are 

 to be recoverable from the defendant. It seems to 

 me that under the influence of such temptations bad 

 men might convert any law, however beneficent, into 

 an instrument of persecution and fraud. 



By the eighth section of the bill, the United States 

 courts, which sit only in one place for white citizens, 

 must migrate, with the marshal and district attor- 

 ney (and necessarily with the clerk, although he is 

 not mentioned), to any part of the district, upon the 

 order of the President, and there hold a court "for 

 the purpose of the more speedy arrest and trial of 

 persons charged with a violation of this act ; " and 

 there the judge and the officers of the court must 

 remain, upon the order of the President, " for the 

 time therein designated." 



The ninth section authorizes the President, or such 

 person as he may empower for that purpose, "to 

 employ such part of the land and naval forces of the 

 United States, or of the militia, as shall be necessary 

 to prevent the violation and enforce the due execu- 

 tion of this act." This language seems to imply a 

 permanent military force, that is to be always at 

 hand, and whose only business is to be the enforce- 

 ment of this measure over the vast region where it 

 is intended to operate. 



I do not propose to consider the policy of this bilL 

 To me the details of the bill seem fraught with evil. 

 The white race and the black race of the South have 

 hitherto lived together under the relation of master 

 and slave capital owning labor. Now, suddenly, 

 that relation is changed, and as to the ownership, 

 capital and labor are divorced. They stand now 

 each master of itself. In this new relation, one 

 being necessary to the other, there will be a new 

 adjustment, which both are deeply interested in 

 making harmonious. Each has equal power in set- 

 tling the terms, and jf left to the laws that regulate 

 capital and labor, it is confidently believed that they- 

 will satisfactorily work out the problem. Capital, it 

 is true, has more intelligence ; but labor is never so 

 ignorant as not to understand its own interests, not 



