Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-03-28

policy and economy of the respective
States. They are matters which in each
State concern the domestic condition of It's
people, varying in each according to its own
peculiar circumstances and the safety and
well-being of its own citizens.
DO not mean to say that upon all these
subjects there are not Federal restraints, as
for Instance, In the State power of legisla-
tlon over contracts, there is Federal lin
ltation that no State shall pass law im-
pairing the obligations of contracts; and as
to crimes, that no State shall pass an en post
JdctO law; and as to money, that no State
shall make anything but gold and silver a
legal tender. But where can we find Fed
eral prohibition against tbe power of any
State discriminating, as do most of them,
between aliens and citizens, between artifi-
cial persons, called corporations, and natu-
rallied persons in the right to hold real es-
tate?
If it be granted that Congress can repeal
all State laws discriminating between
whites and blacks on subjects covered by
this bill, why, it may be asked, may not
Congress repeal, in the same way, all State
laws discriminating between the two races
on the subject of suffrage and office? If
Congress can declare by law who shall hold
lands, who shall testify, who shall have ca
pacity to make a contract in State then
Congress can also, by law, declare who,
without regard to race or color, shall have
the right to sit as a juror or as Judge, to
| hold any office, and finally to vote, in every
State and Territory of the United States.
Asrespects the Territories, they come with
in the power of Congress, for as to them the
law-making power is the Federal power,
but as to the States no similar provision
exists 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 full enjoyment OF all
the rights secured to them by the preced-
ing section. 1t declares that any person
| who, under color of any law, statute, ordi-
nance, regulation or custom, shall subject,
or cause to be subjected, any inhabitant of
any State or Territory, to the deprivation
of any right secured or protected by this
act, or to different punishment, pains or
penalties, on account ofsuch person having
at any time been held in condition of sla-
very or involuntary servitude, except as a
punishment of crime whereof the party
shall have been duly convicted, or by reas-
| on of color or race, than is prescribed tor
punishment of white persons, shall be
deemed guilty of msdemeanor, ard on
! conviction shall be punished by fine not
exceeding one thousand dollars, or impris-
onment not exceeding one year, or both, in
the discretion of the Court.
This section seems to be designed to ap-
| ply to some existing or future law of State
or Territory which may conflict with the
provisions of the bill now under
consideration. 1t provides for furnishing
such forbidden legislation, by impos-
ing fine and imprisonment upon the
Legislator who may pass such conflict
ing laws, or upon the officer or agent who
shall put, or attempt to put, them into
execution. 1t means an official offense,
not common crime, committed against
law upon the person or property of the
black race. Such all act may deprive
the black man of his property, but not of
his right to hold property. 1t means de-
privation of right itself, either by the State
Judiciary or the State Legislature. 1t is
therefore assumed that under this section
members OF State Legislature who should
vote for laws conflicting with the proyis-
ions of the bill, Judges OF the State Courts
who should render judgments in antago-
nism with its terms, and that Marshas or
Sheriffs who should, as ministerial officers,
execute process sanctioned by State laws
and issued by State Judges, in execution Of
their Judgments, could be brought before
other tribunals, and there subjected to fine
the duties which such State laws might i'm
pose.
The legislation thus proposed invades the
judicial power of the State. 1t says to ev-
cry State Court Judge, if you decide tina
this act is unconstitutional, if you refuse,
under the prohibition of State law. to al
low negro to testify, if you hold that on
every such subject matter said law is para
mount, and under color of State law, re-
fuse the exercise of the right to the negro.
your error of Judgment however conscious,
shall subject you to fine and imprisonment.
do not apprehend that conflicting legisla-
ton, which the bill seems to contemplate,
is so likely to occur as to render it necessa-
| ry 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 Judi
cial remedies could be adopted to secure the
desired end without invading the immuni-
ties OF Legislators, always important to be
preserved IN the interest of public liberty:
without assailing the independence of the
judiciary, always essential to the preserya-
tion of individual rights, and without i'm
pairing the efficiency of ministerial officers,
always ready for the maintenance of public
peace and order. The remedy proposed by
this section seems to be, in this respect, not
only anomalous, but unconstitutional, for
the Constitution guarantees nothing with
certainty, if it does not insure to the sever
al States the right of making laws in regard
to all matters arising within their jurisdic-
tion, subject only to reconstruction in cases
of conflict with the Constitution and Con-
stltutiOnal laws of the United States, the
latter to be held as the supreme law of the
land.
The third section gives the District Courts
of the United States exclusive cognizance
of all crimes and otfenses 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 cannot
enforce in the courts OF judicial tribunal of
the State or locality where they NAV be,
any of the rights secured to them by the
first section. The construction which L
have given to the second section, for il
makes clear what kind of denial or depriva-
ton of rights secured by the first section
was in contemplation, is denial or de- |
privaton of such rights in the courts or iu- |
1icial tribunals ofthe State. Itstands there |
clear of doubt that the offense and the pen- |
alties provided in the second section are |
Intended for the State judge who, in the
clear exercise of his functions as Judge, |
not acting ministerially but judicially, |
shall decide contrary to this Federal law, |
In other words, when State Judge acting
upon question involving conflict be-
tween State law and a Federal law. and
bound according to his own judgment
ind responsibility, to give an impartial