Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1866-04-03

matter of real estates, of suits, and OF con-
tracts generally, Congress may not also repeal
the State laws as to the contract of marriage
between the two races? Hitherto every SUBJ
iect embraced in the enumeration of rights
contained in this bill has been considered as
exclusively belonging to the States. They
all relate to the internal police and economy
of the respective States. They are matters
which in each State, concern the domestic
condition of its people, varying i'll each ac
cording to its own peculiar circumstances and
the safety and well being Of its own citizens.
do not mean to say that upon all these sub
iects there are not Federal restraints. As,
, for instance. in the State power Of Legislation
over contracts there is a Federal limitation
that no State shall pass a law impairing the
obligation of contracts: and us to crimes, that
no State shall pass an &c past fHcto law {: aud
as to money that no State shIli, make anything
but gold and silver legal tender But
where can one find Federal prohibition
against the power of any State to discriminate,
as do most of them, between alieEs and citi-
zens. between artficirl persons called corpora
tion and natural persons, in the right to hold
real estate. It it be granted that Congress
can repeal all State laws discriminating be-
tween whites and blacks in the subjects COW
cred in this bill, why, it may be asked, may
not Congress repeal in the same way, all State
laws discriminating between tire two races on
the subject of suffrage and office? 1t Con-
gress can declare by law who shall hold lands,
who shall testify. who shall have capacity to
make contract in State then Congress can
by law also declare who. without regard to
race or color. shall have the right to sit as Il
juror, or as Il judge, to hold any office, and
finally to vote, i'll every State and Territory Of
the United States. As respects the Territo>
RI; -,
for to them the law making power is the
! Federal power; but to the States, no ,mi>
hlr provision exists vesting in G. n"ress the
power ito make rules and regulations" for
them.
The object of the second section of the
bill Is to afford discriminating protection to
cOlOrcd persons in the full enjoyment Of all
the rights secured to them by the preceding
section. 1t declares that any person who
under color OF any law, statue, ordiuamcc
regulation, or custom. shall subject or cause
to be subjected, any nhabitent of any State
or Territory to the deprivation Of any rights
secured or projected by this act, or to diff
fcrent punishment, pains, or penalties, on
account CT such person having ut any time
been held in condition Of slavery or iuvol-
untAry Hservitudc, except us punishment
for crime. whereof the party shall have been
race. than is prescribed fur the punishment
OF white persons, shall be deemed guilty ola
misdcmeanDr, and conviction shall be
punished by hnc not exceeding one Thousand
dollars or Imprisonment not exceeding one
year. or both, i'll 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 pro-
visions Of the bill now under consideration
1t provides for counteracting such forbidden
legislation by imposing fimc aid imprisonment
upon tn" Legislators who may pass such con-
hctinS laws, upon the officers or agents
who shall put, or attempt to put, them into
execution. 1t means an official offence, not
a 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.
ltmeans deprivation Of the right itself. either
by the State } judiciary or the State Legislature.
1t is therefore assumed that under this sec
tion members of State Legislatures who should
vote for laws conflicting with the provisions
ofthe bill :; that Judges of the State courts
who should render judgments in an:agonism
with its terms, and that Marshals and Shcrifs
who should. as ministerial officers. execute pro-
cesscs sanctioned by State laws and is,ued by
State Judges. in execution Of their judgments
there subjected to fine and imprisonment for
the performance of the duties wnic!l 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 refuse under
the prohibition of State law to allow a ne.
gro to testify; if you hold that over such
subject matter the State law is paramount,
and. under color of State law, refuse the
exercise Of the right to the negro your error
of judgment. however conscientious, shall
subject you to fine and imprisonment. | do
not arprehcnd that the conflicting legislation
which the bill seems to contemplate is so
likely to occur to render it necessary at
this time t" adopt mea3ure of such doubtful
constitutlOnaity In the next place. this
provision of the bill seems to be unnecessary,
as adequate judicinl remedies could be adnp-
ted to secure the desired end without invading
the immunities of Legislators, always imnor-
tant to be preserved in the interest of public
liberty; without assailing the independence
of the judiciary always essential to .hc pres
crvatiOn Of individual rights: and without i'm
pairing the efficiency of ministerial officers,
always necessary for the maintenance of pub
lie reace and order. The remedy proposed
by this section seems to he in This respect not
only anomalous but unconstitutional. for the
Constitution guarantees nothing with certainty
If it does n"t insure to the seveml Stntes the
right OF making and executing laws in regard
to all matters arising within their jursdic-
ton, subject only to the restriction that in
cases of confic let 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 :'cognizance
of all crimes and offences committed against
the provisions of this act" and concurrent
jurisdiction with the Circuit Courts of the
limited States Of all civil and cririir.,l eases