The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1866-03-29
this bill, enter into the marriage contract with

discrimination, and to inquire whether, If
congress can abrogate MI State laws of dis
crimination between the two races in the
matter of real estate of suits, and OF contracts
generally, Congress may not also repeal the
state laws as TO the contract of marriage be-
tween the two races Hitherto every subject
embraced In the enumeration Of rights con i
tanned in this bill has been considered ~ ex-
clusively belonging 10 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 In each according 10 its
own peculiar circumstances and the safety
and we'll being of its own citizens. | do not
mean To say that upon all these. subjects there
are not Federal restraints Us, for instance, in
the State power of logisla ton over contracts
there is n Federal limitation that no State
shall pass law impairing the obligations of
contracts ; and rs 10 crimes, that no State shall
pass an ~ post tdcfo law: and rs to money,
that no State shall make anything but gold and
silver legal tender. But where can we find
4 Federal prohibition against the power of
any State to discriminate, rs do most of them,
between aliens and citizens. between artificial
persons. called corporations, and natural per
sons i'll the right TO hold real estate
If IL be granted that Congress can re-
peal all State laws discriminating between
whites and blacks in the subjects covered by
| this bill, why, it may be asked, may not Con-
sreSs repeal in the same way all State laws
discriminating between the two races on the
subjects of suffrage and office If Congress
| can declare by law who shall hold lands, who
shall testify. who shall have capacity TO make
a contract in 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 10 them the law
making power is the Federal power but as
/ TO the States, no similar provisions exist vest.
4 ;,,l srpr ha 10
regulations for them.
| The object of the second section Of the bill is
to afford discriminating protection 10 uolored
persons in the full enjoyment of all the rights
secured 10 them by the preceding section. 1t
declares (" that any person who, under color of
any law, statute, ordnance regulation, or
custom, shall subject, or cause 10 be subIecteu'
any mhahitant OF any state or territory 10
/ the deprivation of any right secured or pro
! tccted by this act. or TO different punishment,
pains or penalties on account OF such person
having at any time been held IN cohdltloh OF
slavery or involuntary serNltude, except as Il
punishment for crime, Whcreol the party shall
have been duly convicted or by reason OF his
color or race, than is prescribed tor the
punishment of white persons, shall be deemed
guilty of 4 miSdcmeanOr, ana on conviction
shall be punished by fine not exceeding one
/ thousand dollars, or Imprisonment not eN.
ceeding one year, or both, III the dlscretloh OF
the court" This section seems to be designed
TO apply to some r eX.inS , or l" 'nay
u al
conflict with the provisions of the bill now
under consideration. II provides for counter
acting 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 PAT, or at
tcmDt TO pat, them into execution. II means
an Official offence, not Il common CRIME COM
united against law upon the persons OF pro-
perty Of the black race. Such an ACT may
deprive the black man of his property, but not
of the ,iyLt TO hold pIonrrtN. 1t means de-
pryation Of The right itself, either by the state
judiciary or the state Legislature. II Is there
fore assumed that, under this sectlon, mem
hers of State Legislatures WHO should vote Tor
laws conflicting with the provisions of the
bill: that judges Of the stat" courts VINO
should render judgments IN anta%onlNin WIN
its terms and that marShalS ana SheilHS VINO
sbOuld rs ministerial officers, execute pro
cns.rS sanctioned by state laws and issued by
State Judges in execution of their judgments,
could Ic brought before other tribunals ana
there subjected to fine and imprisonment for
the performance OF the duties Whltn sueh
State laws might impose.
The legislation thus proposed lnNadcS the
iudicial power of the State. IT says to every
State, court, or Judge: II You decide mat tnlH
act i unconstitutioual-it you refuse, under
The prohibition Of Il State law, Ia allow negro
TO testify-if YOU hold that over such II sub
ipct matter the State laW Il paramount, ana
under color OF Il State law refuse me OK,
ercise of the right 10 the negro, your error ol
Won 10 fine aud imprisonment. | do not APP
prchend that the conflicting legislation winch
the bill seems 10 contemplate Is so llkeiS 10
occur As TO render 1t necessary AT thiS I'm" 10
adopt Il measure of such doubtful consIlt
tionaiily. ,.,
In the next place, this provision OF the hlii
seems TO be unnecessary, as adequate Iuulel'i
remedies could be adopted 10 secure the Desired
end without invading Tie lmmunilIeS OF legiS-
lators, always important to be preserved i'll the
interests Of public liberty without aSsalllhE
the independence of the judiciary, Always cS-
spntial to the preservation OF lndlNiuuai rlGht"'
and without impairin% Inc cilic'eilcS ol ill" !
rrrol officers always necessary Tor The mann
tanance of hubble peace and order. The remedy
nropOsed by this section seems 10 De, III inns
respect, not only anomalous buI uiieohslil"'
tional for the Constitution guarantees NO
thing with certainty if ii does not insure TO
the several States the right OF making ana cN-
ecuting laws in regard TO all matters arising
within their jurisdiction, SUBJECT only 10 me
restriction that Ill cases VI couliict VIZ Nv
Constitution and constitutional laws OF the
United States the latter should be held 10 De
the supreme law OF the land
The third section gives the district courts
of the United States exclusive "coghiZahce OF
all crimes and offences committed against the
provisions of this act" and concurrent luilS-
dic1ion with the circuit courts OF the 'nl'ea
States of all civil and crimlnal cases 'aiecI-
ing persons who are denied OF cannot eHiol!c
in the courts or judicial tribunals of the State
or locality where there may be any OF the
rishts secured to them by the first section,
The construction which nave gwen 10 tht
second section is strengthened by this third
section, for it makes clear what kind of denial
ar derivation of the rights secured ny the
Grs, saction was in contemplation. 1t is a
denial or deprivation of such rights I'm the
courts or judicial tribunals OF me H'ate. e
stands therefore, clear of doubt that the Of
fence and the penalties provided IN the second
section are intended for the State Judge, VINO
in the clear exercise OF ms 1uhctiohs as -"
;udge. not acting ministerially, but ludiclally,
shall decide contrary to this Federal law. III
other words, when Il State judge, acting upon
\ question involving a conflict between Stale
law and Federal law, and bound, according
TO his own Judgment and responsibility, 10
give an impartial decision between the TWO
comes 20 the conclusion that the State law Is
valid and the Federal law is invalid, he must
not follow the dictates of his own Judgment, al
the peril of fine and imprisonment Inc legis-
lotiye department of the Government OF the
United States thus takes from the ]udiclill ae-
partment of the States the sacred ana eAclu-
siye duty of judicial decision, and converts
the State Judge into mere ministerial oihcer'
hound to decide according 10 the will OF Con-