The weekly north Iowa times. [volume] (McGregor, Iowa) 1857-1867, 1866-04-11
McGREGOR, IOWA, WEDNESDAY, APRIL IL, 1866

where can we find federal prohibition
against the power of any state to discrimi-
nate, as most of them do, between aliens
and citizens, between artificial persons call
cd corporations, and naturalized persons,
in the right to hold real 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 may not congress repeal in the
same way all state laws discriminating be-
tween the two races ON the subject of suff-
rage and Office If congress can declare
by law who shall hold lands, who shall tes-
tify, who shall have capacity to make a
contract in state, then congress can de-
clare by law who, without regard to race
or color, shall have the right to sit as a ju-
ror or judge, to hold any Office, and final
ly to vote in every state and territory Of
the United States. AS respects the terrific
ries, they come within the jurisdiction of
congress, for as to them the law making
power is the federal power; but as to states
no similar provision exists giving congress
the power to make rules and regulations
for them. The object of the second sec
ton OF the bill IS 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 custom,
shall subject or cause to be subjected any
inhabtant of any state or territory to the
deprivation ofany right secured or protect
ed by this act, or to different punishment,
pains or penalties, on account of such per-
son having at any time been held in con-
dition of slavery or involuntary servitude,
except as punishment Of crime whereof
the party shall have been duly convicted.
or by reason Of color or race, than is pre-
scribed for the punishment of white pco-
pie, shall he deemed guilty of a misdemean-
or. Conviction shall be punished by fine
not exceeding $1,000, or Imprisonment not
exceeding one year, or both, at the discre-
ton of the court.
This section seems to be designed to ap-
ply to some existing or future law of a
state or territory which may conflict with
the provisions Of the bill now under con-
sideration. II provides for countcracting g
such forbidden legislation by imposing fine
and imprisonment upon the legislator who
may pass such conflicting laws, or upon
the officer or agent who shall put or at
tempt to put them into execution. 1t means
an offence, not common crime. committed
against law upon the person or property of
the black race. Such an act may deprive
the black man of his property 1t means
a deprivation of the right itself, either by
the state judiciary or the state legislature.
1t is therefore assumed that under this Sec
ton members of state legislature who
should vote for laws conflicting 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 sheriffs, who should as min
isterial officers, execute process sanctioned
by state laws and issued by state Judge
ments, could be brought before other tri-
bunals 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 states. 1t says to
every state court or judge: If you decide
that this act is unconstitutional; if you re-
fuse, under the prohibition of state law,
to allow negro to testify; if you hold that
over such a subject matter the said law is
paramount under color of a state law, and
refuse the exercise of the right to the ne
gro, your error or Judgment however con-
scientlous, shall subject you to fnc and
imprisonment.
| do not apprehend that conflicting leg
latlon, which the bill seems to contemplate.
is so likely to occur as to render it ncces-
sary 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 judicial rem
edies could be adopted to assure the desired
end, without invading the immunities of
legislators, always important to be pre-
served in the interests Of public liberty:
without assailing the independence of the
Judiciary, always essential to the pre-
servation of individual rights: and without
impairing the efficiency of ministerial Off
GERS, always necessary for the maintainance
of public peace and order. The remedy
proposed by this section seems to be in this
respect not only anomalous but unconsti-
totional, for the constitution guarantees
nothing with certainty, if it does not
ensure to the several states the right of
making index ruling laws in regard to all
matters arising within their Jurisdiction.
subject only to the restrictions, in case of
conflict with the constitution al,d constitu-
tional 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 cosnizance
OF all crimes and offence commis+nd against
| the provisions of this act, and concS-rent
jurisdiction with the civil courts OF the
| United States, Of all civil and criminal
cases affecting persons who are denied or
cannot enforce in the courts or judicial
tribunals of the state or locality where
may be any Of the rights secured to them
by the first section. The construction
which l have given to the second section,
for it makes clear what kind Of denial or
deprivation Of rights secured by the first
section was in contemplation, it is denial
or deprivation of such rights in the courts
or judicial tribunals Of the state. 1t stands,
therefore, clear of doubt that the of1ense
and the penalties provided in the second
section, arc intended for the state Judge,
who in the clear exercise Of his function:
uo O judge, not acting ministerially, but
judiciali!y, shall decide contrary to this
federal law, in other words, when state
Judge, acting upon question involving q
conflict between state law and o federal
law, iHu pOuAlu, uCCOIuilS W AAS oWA
judgment and responsibility, to give an
4 impartial decision between the two, comes
to the conclusion that the state law is void
and the federal law invalid, he must not
follow the dictates of his own judgment, al
the peril Of fine and Imprisonment. The
legislative department of the government
lof the United States thus takes from the
judicial department Of the states the sacred
and exclusive duty Of a Judicial decision,
and converts the state judge into a mere
ministerial officers, bound to decide accor'
ding to ahe will Of Congress. 1t is clear
that in states which dony to persons whose
rights are secured by the lst section OF the
bill, any ono of those rights, all criminal
and civil cases affecting them will, by the
provisions of the Sd section, come under
tho executive cognizance Of tn federal tri.
bunals, it follows that, if any state law
denies To q colored person any one af al