Staunton vindicator. [volume] (Staunton, Va.) 1860-1896, 1866-04-06

ton, however as an instance of the State
policy as to discrimination, and to inquire
whether, if Congress can abrogate all State
laws of discrimination between the two races,
in the matter Of real estate suits, and of con-
tracts generally, Congress may not also re.
peal the State laws as to the contract of mar
riages between the two races? Hitherto ev-
ery subject embraced in the enumeration Of
rights contained in this bill, has been consid.
cred as exclusively belonging to the States
They are matters which in each State con-
Germ the domestic condition Of its people, va
rying in each according to its own peculiar
circumstances, and the safety and well being
of it's citizens. | do not mean to say that up
on all these subjects there are not Federal
restraints, as, for instance, in the State pow
er of legislation over contracts, there is a
Federal limitation that no State shall pass a
law impairing the obligations of contracts,
and as to crimes, that no State shall pass an
er posto .ffarto law and as to money, that no
State shall make anything but gold and sill
yer legal tender. But where can we find
Federal prohibition against the power Of
any State to discriminate, as do most of them
between the aliens and citizens, between ar
tifcial persons, called corporations, and nat
ural persons, in the right to hold real estate
If it be granted that Congress can repeal
all State laws discriminating between whites
and blacks, in the subjects covered by this
bill, why, it may be asked, may not Congress
repeal in the same way, all State laws dis
eliminating 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
contract in State, then Congress can by
law also declare who, without regard to col
or Or race, shall have the right to set as a
juror, or as a Judge, to hold any office, and
finally to vote, in every State and Territory
of the United States.
AS respects the territories, they come with
in the power Of Congress, for, as to them,
the w-making power is the Federal power;
but, as to the States, no similar provision ex
lists, 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 color
ed persons in the full enjoyment Of all the
rights secured to them by the preceding Sec
ton. It declares g that any person who I'M
der color Of any law, statute, ordinance, reg
ulation Or custom, shall subject, or cause to
be subjected, any inhabitant of any State or
Territory to the deprivation Of any right Sc
cured Or protected by this act, Or to different
punishment, pains or penalties on account Of
such person having at any time been held in
a condition Of slavery Or involuntary servi-
tude, except as punishment for crime where
Of the party shall have been duly convicted,
or by reason Of his color or race, than is pre-
scribed for the punishment Of white persons,
shall be deemed guilty Of a misdemeanor, and
on conviction, shall be punished by fine not
exceeding one thousand dollars, or imprison-
ment not exceeding one year, or both, in the
discretion Of the COURT
This section seems to be designed to apply
to some existing or future law of State or
Territory which may conflict with the provi-
sions Of the bill now under consideration. It
provides for counteracting such forbidden leg
islation by imposing fine and imprisonment
upon the Legislators who may pass such con-
aicting laws, Or upon the officers and agents
who shall put, or attempt to put, them into
execution. It means an official offence, not
common crime committed against law up
on the person 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 It means a deprivation Of the right
itself, either by the State Judiciary or the
State Legislature. It is, therefore, assumed
that under this section members of the State
Legislatures who should vote for laws con-
ficting 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 sherifs, who should, as
toned by State laws and issued by State
judges, in execution of their judgments, could
be brought before other tribunals and there
subjected to fine and imprisonment for the
performance of the duties which such State
laws might impose.
The Legislation thus proposed invades the
judicial power Of the State. It 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 ne
gro to testify, if you hold that over such a
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 apprehend that the conflicting legislation,
which the bill seems to contemplate, is so
likely to occur as to render it necessary at
this time to adopt measure Of such doubt
full constitutionality.
In the next place, this provision of the
bill seems to be unnecessary, as adequate jul
dicial remedies could be adopted to secure
the desired end, without invading the immu-
mites of legislators, always important to be
preserved in the interest Of public liberty,
without assailing the independence of the ju-
dietary, always essential to the preservation
Of individual rights, and without impairing
the efficiency Of ministerial officers, always
necessary 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 Con-