The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-03-30

States. They are matters which in each
State concern the domestic condition OF
its people, varying in each according to
its own peculiar circumstances and the
safety and well being of its own citi-
zens. lido not mean to say that upon
all these subjects there are no federal
restraints. AS, for instance, in the
State power of legislation over con-
| tracts there is federal limitation that
no State shall pass law impairing the
obligations of contracts; and as TO
crimes, TINT no State shall pass an e1
post fGctO law; and las to money, that
no State shall make anything but gold
and silver n legal tender. But where
can one find a federal prohibition
against the power of any State to dis
criminate, as do most, of them, between
aliens and citizens, between artificial
persons called corporation and natural
persons, in the right to. hold real estate?
! If it be granted that Congress can re-
peal all State laws discriminating be-
tween 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 discrimina-
ting between the two races on the sub
ject of suffrage and office? II Con-
gress 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 race or color,
shall have the right to sit as a juror, or
as n Judge, to hold any office, and final
ly TO vote, in every State and Territory
of the United States. AS respects the
Territories, theycome within the power
of Congress, ,gfor as to them the law
making power is the federal power; but
as to the State, no similar provision OK
lists vestiug in Congress the power ito
make rules and regulations" for them.
The object ofthe second section of the
bill is to afford discriminating protec-
tion oscolored persons IN the. inll en-
ioyment of all the rights secured to
them by the preceding section. 1t de-
clares nthat any person who, under
color of any law, statute, ordinance,
regulation, or custom shall subject, or
cause to be subjected, any inhabitant
of any State or Territory 10 the depriva-
tion of any rights secured or protected
pains, or penalties, on account of such
person having at any time been held in
condition of slavery or involuntary
servitude, except as u 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 persons, shall
be deemed guilty of a misdemeanor,
and on conviction shall be punished by
fine not exceeding one, thousand dol
lars, 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 State or Territory which
may conflict with the provisions of the
bill now under consideration. It pro-
vides for counteracting such forbidden
legislation by imposing fine and inn
prisonment 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 offense, not COM
mon 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. II means
a deprivation of the right itself, either
by the State Judiciary or the State
Legislature. It is therefore assumed
thatundert this section members of State
Legislatures who should vote for laws
conflicting with the provisions of the
bill; that Judges of the State courts who
should render judgments in antago-
nism with its terms, and that Marshals
and -Sheriffs who should, as ministerial
officers, execnte processes sanctioned
by State laws and issued by State
judges, in 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 inyades the judicial power of
the State.l 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
n negro to testify; if you hold that over
such subject matter the State law is
paramount, and, "under color" OF a
State law, refuse the exercise of the
right to the negro, your error of judg-
ment, however conscientious, shall sub
iect YOU to fine and imprisonment.
do not apprehend that the conflicting
legislation which the bill seems to con-
template is so likely to occur rs to rem
der it necessary at this time to adopt a
measure of such doubtful constitution
ality. In the next place, this provision
of the bill seems to be unnecessary, ms
adequate judicial remedies could be
adopted to secure the desired end with
out Invading the immunitteS of legis-
lators, always important to be preserved
in the interest of public liberty; with
out assailing the Independence of the
judiciary, always essential to the pres
eryation of individual rights; and with
out impairing the efficiency of minis
terial 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 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 jurtsdic-
ton, subject only to the restriction that
in cases of conflict with the Const1tu-
tion. and constitutional laws of the Uni-
ted States, the latter should be held to
l., a luHay 0f fha land
The third section gives the District
Courts of the United States exclusive
s'cognizance of all crimes and offences
committed against the provisions of
this act,n and ''concnrrent jurisdiction
with the Circuit Courts of--the United
States ofall civil and criminal cases at-
fecting persons who are denied, or can
not enforce, in the courts of Judicial
tribunals of the State or locality where
they may be, any of the rights secured
to them by the first section. The CON
struction which I have given to the
second section is strengthened by this
third section, for it makes clear what
kind of denial or. deprivation OF the
rights secured by the first section was
in Contemplation. 1t is denial or de-
priyation OF such rights sin the courts
or judicial tribunals OF the State" 1t
stands, therefore, clear of doubt that the
offence, and the penalties provided in
the second p ~tiop ere intended for the
State JudQ !. ,tIn the clear exercise
of his functions as judge, not acting
ministerially, but judicially, shall de-
other words, when State Judge, act
ing upon a question involving a conflict
between State law and a Federal law,
and bound according to his own tudg-
ment and responsibility to give an inn
partial decision between the two, comes