The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1866-04-03

prohibition against the power Of any State
to discriminate, as do most of them, be-
twee. aliens and citizens, between artificial
persons, called corporations, and natural
IF it be granted that Congress can re-
peal all State laws discrimin ating between
whites anu Diacas ii the subjects cover OF, !,
by this blu, why, it may be asked, may not
Congress repeal in the same way all State
laws discriminating between the two races
on the subjects Of suffrage and office? Il
Congress can declare by law who shall hold
lands, who shall testify, who shall have
| capacity to make contract in q State.
then Congress can by law also declare who,
without regard to color or race, shall have
the right to SIT as juror, or as judge, to
hold any Office, and, finally, to vote, in
every State and Territory of the United
! States.
AS respects the Territories, they come
within the power Of Congress. for as to
| them the law-making power is the Federal
power; but as to the States, no similar pro-
vls' MS exist vesting in Congress the power
to make rules and regulations for them
The object Of the second section of the
bill is to afford discriminating protection
to colored persons in the full ENJOYMENT of
ali the rights secured to them BY the pre-
cedlng section. It declares ssthat any per
so9 VINO, under color Of any law, statute,
ordinance, regulation or custom, shall sub
Ject, or cause to be subjected, any inhabit-
ant OF any State or Territory to the depri-
vatlon OF any right secured or protected
by this Act, or to different punishment,
pans or penalties on account of such per-
son hav1ng at any time been held in q con-
dltlon OF slavery or involuntary servitude.
except as punishment for crime, whereof
the party shall have been duly convicted.
or by reason Of his color OF race, than is
prescribed for the punishment Of white
persons, shall be deemed guilty of mis-
oemeanor, and on conviction shall be
punished by fine not exceeding 81 1000, or
Imprisonment not exceeding one year, or
both, IN the discretion Of the court" This
sectlon seems to be designed to apply to
some existing or future law of State or
Territory which may conflict with the pro-
VISIONS OF the bill now under considera-
ton: 1t provides for counteracting such
forbidden legislation by imposing fine and
imprisonment upon the legislators who
may pass such conflicting laws, or upon
the officers or agents who shall put. or at
tempt to put, them into execution. 1t
means an official offence, not 8 common
CRIME committed against law upon the
persons or property of the black race
Such an Act may deprive the black man of
his property, but not Of the right to hold
property. 1t means a deprivation of the
right itself, either by the State judiciary
or the State Legislature. 1t is, therefore,
assumed that, under this section, members
OF 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
sherlfts who should, as ministerials officers,
execute processes, sanctioned by State
laws and issued by State judges, in execu-
ton OF their Judgments, could be brought
before other tribunals, and there subjected
to fine and imprisonment for the perform
ance OF the duties which such State laws
might impose.
The legislation thus proposed invades
| the judicial power Of the State. It saws to
every state, court or Judge: if you decide
| that this Act is unconstitutional-ify YOU
refuse, under the prohibition of a State
law, to allow negro to testify-if you
hold that over such subject-matter the
State law is paramount, and "under color
| Of Stae law refuse the exercise of the
right to the negro, your error ofjudgment,
however conscientious, shall subject YOU to
nne and imprisonment. I do not appre-
hend that the conflicting legislation which
the Dill seems to contemplate is so likely to
occur as to render it necessary at this time
TO adopt measure Of such doubtful con-
| stitutionality.
In the next place, this provision of the
bl! seems to be unnecessary, as adequate
Judicial remedies could be adopted to Sc
! cure the desired end without invading the
immunities OF legislators, always impor-
public liberty. without assailing the inde-
| Pendence OF the judiciary, always essen
tia! to the preservation of individual rights:
and without lmpairing the efficiency of
ministerial officers, always necessary for
the maintenance of public peace and
order. The remedy proposed by this sec-
ton seems to be, in this respect, not only
anomalous, but unconstitutional; for the
Constitution guarantees nothing with GER
| talnty II 1t does not insure to the several
States the tight Of making and executing
laws in regard to all matters arising within
their Jurisdiction, subject only to the
restriction that in cases OF conflict with
the Constitution and constitutional laws of
the United States the latter should be held
to be the supreme law Of the land.
The third section gives the District
Courts OF the United States exclusive s'cog-
niZance Of all crimes and offences COM
mitted against the provisions Of this Act"
and concurrent jurisdiction with the Cir
cult 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
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 deprivation Of the rights Sc
cured by the first section was in contem-
plation.@ 1t is q denial or deprivation of
such rights ''in the courts or judicial tribu-
nails of the State" It 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 functions as a.
Judge, not acting ministerially, but judi