Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1866-04-05
enumeration of rights contained in this bill has

enumeration of rights contained in this bill ha
been considered as exclusively belonging to th
States. They all relate to the internal polio,
and economy of the respective States. The,
are matters which in each State concern tn
domestic condition of its people, varying il
each according to its own peculiar circumstan
ces, and the safety and well-being Of its owl
citizens. do not mean to say that upon al
these subjects there are not Federal restraints
as, for instance, in the State power Of legisla
ton over contracts, there is Federal iImita-
ton that no State shall pass a law impairine
the obligation Of contracts; and Us to crimes
that no State shall pass an er post .facto law
and as to money, that no State shall lmake any.
thing but gold and silver legal tender. Bu
where can we find 4 Federal prohibition agains
the power of any State to discriminate, as Dc
most of them, between aliens and citizens, be
tween artificial persons called corporations
and natural persons, in the right to hold rea
estate?
II 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 discriminating be-
tween 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 a
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 aud Territory Of the United States AS
respects the Territories, they come within the
power Of Congress, for as to them the law-mak-
ing power is the Federal power; but as to the
States no similar provision exists, vesting In
Congress the power (" to make rules and regu-
lations for them.
The object of the second section of the bills
to afford discriminating protection to colored
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, statute, ordinance, regulation, or GUS
tom, shall subject, or cause to be subjected, any
inhabitant of any State or Territory to the de-
priyation of any right secured or protected by
this act, or to different punishment, pains or
penalties on account of such person having at
any time been held in condition ofslavery OF
involuntary servitude, except as punishment
for crime whereof the party shall have been
duly convicted, or by reason of his color or race
than is prescribed for the punishment of white
person, shall be deemed guilty of a misdcmean-
or, and on conviction, shall be punished by fine
not exceeding one thousand dollars, or imprls-
onment not exceeding one year, or both, In the
discretion of the court" This section seems to
be designed to apply to some existing or fll-
ture law eta State OF Territory which may con-
a;a+ with the provisions of the bill now under
IL pTUvIues IUr cOunreracJrng
such forbidden legislation by imposing fine and
upon the Legislators who may
pass such conflicting laws, or upon the officers
or agents who shall put, or attempt to put,
them into execution. 1t means an official OF
fence, not 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 his '1ght to hold
property II means deprivation of the right
ITSELF either by the State Judiciary or the State
legislature. 1t is therefore asstimed that under
this section members of State legislatures who
should vote for laws conflicting with the pro-
visions of the bill, that judges of the State
courts who should render judgments in antaso-
nsm with its terms, and that marshals and
sherifs who should, as ministerial officers, exc
cute processes sanctioned by State laws and Is
sued by State Judges III execution OF their Judg-
ments, 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. 1t says to every
State court or Judge, if you decide that this act
is unconstitutional-if you refuse, under the
prohibition of the State law, to allow negro
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 apprehend that
the conflicting legislation, which the bill seems
to contemplate. is so likely to occur as to rem
der it necessary at this time to adopt mea-
sure Of such doubtful constitutlonality.
In the next place this provision of the bill
seems to be unnecessary, as adequate judicial
remedies could be adopted to secure the desired
end without invading the immunities oil lcgls-
lators, always important to be preserved IN the
interests'of public liberty; without assailing
the independence of the judiciary, always es-
sential to the preservation of individual rights ;
and without impairing the efficiency of minis
terial officers always necessary for the malnte-
nance of public peace and order. The remedy
proposed by this section seems to be, IN this
respect, not only anomalous butunconstitution-
al, for the Constitution guarantees nothing-with
certainty if it does not insure to the several
States the right of making and executing laws
in regard to all matters arising within their
jurisdiction, subject only to the restriction that
in cases Of conflict 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 cognlzance OF all
crimes and offences committed against the pro-
visions of this act" and concurrent jurisdiction
with the circuit courts Of the United States Of
all civil and criminal cases Z" affecting persons
who are denied or cannot enforce in the courts
or judicial tribunals of the State or locality
where they may be any of the rights secured
to them by the firstscction." The construction
which have given to the second section is
~ Al. IL .a,fso,, f,rt &c