The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1866-04-07


eral prohibition against the power Of any
state to discriminate, as do most of them,
| between aliens and citizens, between artifi>
| cial persons, called corporations, and natural
! persons, IL the right to hold real estate? If
1t be granted that Congress can repeal ali
state laws discriminating between whites and
black, OH the subjects coyered by this bill,
why, it may be asked, mat not Congress
repeal ia the same way, all state laws dis
eliminating between the two races on the
subject of suffrage and office ? Ii Congress
can declare BY law who shall hold lands, who
shall testify, who shall have capacity to make
contract in state, thea Congress can also
by law declare who, without regard to race
or color, shall nave the right to sit as a uror
or as a Judge, to hold any office, and finally
! to vote in any state or territory OF the Unitel
States. As respects the territories, they
come within ihs. power of Congress, for as to
| them the law-making power is the federal
I power; but as to the states, no provisions
| exists vesting in Chicago the power to make
rules and regulations for them
The object Of the second section of the bill
! is to afford discriminating protection TO CO.,
| ored persons in the full enjoyment of al tie
| rights secured to them by the preceding sec,
! tlon. 1t declares that any person who, under
color of any law, statute, ordinance, regula-
! tion, or custom, shall subject, or cause TO be
subjected any inhabitant Of any state or ter
ritory to tie deprivation of any right secured
| or protected BY this act, or TO different pun>
| ishment, pains, or penalties, on account Of
| such person having at any time been held in
| condition OF slavery or involuntary sergi-
| tude, except as a punishment for crime where
of the party shall have been duly convicted,
i Or hy reason of color or race, than Is pre-
! scribed for the punishment Of white persons.
| shall be deemed guilty Of mlsdemeanOr,
and on conviction shall be punished by q fine
| not exceeding one thousand dollars. or I'M
pr1sonmeut not exceeding one year or both,
| il the discretion of the court This section
seems to be designed to apply to some exist
| ing or future law OF state or territory which
may conflict with the provisions Of the bill
| now under consideration. 1t provides for
! counteractinc such forbidden legislation, by
imposing fine and Imprisonment upon the
! legislator who may pass such conflicting laws,
or upon the officers or agents who shall put
or attemp- 10 put them into execution. Il
means AN official offeuce-Aot n common
crirae, committed against law upon the per
| son or pr. perty of the black man Such an
act may deprive the black man Of his proper
u, but not Of his right to hold property. II
means a deprivation OF the right itself, either
by the state judiciary or the state legislature.
1t is, therefore, assumed that under thi.
section members Of a state legislature who
! should vote FOR laws conflicting X with the pro-
visions Of the bill, that Juiy4S Of the state
! courts who shOull render judgments IN
anita sgoaisn VITA its ter rs, aud that marshals
and sherifs who should, as ministerial oil
| GERS. execute process ses sanctioned by state
laws and issued By state judi, Is in execution
Of fthejr Judgments, could be brought before
other tribunals. and there subjected tp fine
and Imprisonment for the performance Of the
duties which such state law ni glt impose.
/ Tie legislation thus proposed iuTales the
/ iudicia! power Of the state. l. SAYS - every
/ State Court or judge. - If Won decide tlat
/ this act is unconstitutional if you refuse,
under the prohibition Of a stale law. TO allow
a negro to testify if you bold that over such
| q subject matter the state law Is paramoGst.
| aud under color Of a state law refuse the
exercise af the right to tie n4 gro. YOUR error
/ Of judgment, however cons Fieutious, shall
/ subject YOU to fine and imprisonment.'
/ do not apprcheud that the conflicting lc-is-
! latlon. which the bill seems 70 contemplate,
/ IS 50 likely 10 occur as - render ], n-s-ssarr.
/ al this time, to adopt = measure ai such
/ GGubtful coustitUtiOna.ifv.
/ In tue next place, this pro,.s.lu .. the bill
/ seems to be unnecessary. as ad.. nate Judi
/ cial remedies could be adopted T. secure the
I desired end, without invading the immuuirIes
| Of legislators. always important to lie pre-
! served in the interest Of public liberty
/ without assaiing the independence o! the
/ judiciary. always essential 70 tie preservation
/ of individual ri ghts and wilholt impar!"g
the efficiency Of ministerial officers, always
| necessary for the maintenance OF pubiic peace
| and order. The remedy proposed by tais
resi- ct is not only a o n"lo =, bat uucoastitn-
! tionaL The constitution guaf fantee8 G9thlng
| with certainty if it does not insure to the
! several states the right Of making laws IN
regard to all matters arising within their
! jurisdiction, subject only to their reconstGuc-
/ ton in cases of a conflict with the constitution
| and constitutional laws of the United States,
/ the latter t) be held i. The supreme Jaw Of
! the land.
/ The third section gives the District Courts
| of the United States exclusive cognizance of
/ all crimes aud offences committed against the
provisions of this act, and concurrent iuris
dictiOn with the Circuit Courts Of the United
! States Of all evil and criminal cases affect
/ ing persons who are denied or cannot enforce,
| IN the courts or judicial tribunals ofthe 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, for it makes clear what kind
of DENIAL or deprivation Of rights secured by
the first section was in contemplation. 1t is
denial or deprivation Of such rights III the
courts or judicial tribunals OF the State. Ii
stands, therefore, clear of doubt that the
offence and the penalties provided IN the
second section are intended for the Stat>
Judge, who, in the clear exercise Of his func
tions as Judge, not acting lninisterIaliy but
II inpiI,. N thiz t'pT ].
eral law. In other words, whel a State Judge
acting upon a question involving a conflict
between a State law and a Federal law, ant
bound according TO his own Judgment and
responsibility, to give impartial de
cisiou between the two comes to the cOnc'u
sion that the State law is valid and the Fed
eral law is invalid, he must not follow th'
dictates of his own judgment at the peril o
: fine and imprisonment The Legislative de
partment OF the Government Of the CniteC
States thus takes from the judicial depart
ment of the States the sacred and exclusive
) duty Of a judicial decision, an converts th'
State Judge into mere ministerial officer
] bound to decide according to the Will of Con
gress. 1t is clear that in States which den,
to persons whose rights are secured by tb,
= first section of the bill any on / Of those rights
all criminal and civil cases affecting then
f will by the provisions Of the third section
: come under the exclusive cognizance Of tn
: Federal tribunals. 1t follows that if, in an
State Mli:h denies to a colesed person an
} one Of those rights, that person should com
, nit crime against the laws of the State
: murder, or any other crime-all protection
and punishment through the Courts Of tn
State are taken away, and he can only b
tried and punished in the Federal Courts
: How is the criminal to be tried, if the oilenc
T is provided for and punished by Federal law
: That law, and not the State law, is to govern
1t is only when the offence DOES not happen t
La ,I,l, IL g l, a.,