The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1872-01-11
INpnRYANT DECISION.


Green Smith, presiding Branson, colored,
sought to charge Samuel Payne, colored, with
being the father of bastard child of which she
had been delivered. The cause was argued by
S. Travers Phillips, Attorney for the Common
wealth, on behalf of the woman, and Meade F.
White. counsel for Payne. His Honor in deliv-
ering the opinion of the Court, said substantial
ly, as fellows:
The l25.h Chap. of the Code of Virginia, au-
thorizes such proceeding to be instituted by
ANY unmarried white woman and it is contended
by counsel that, by force of the Act of Congress,
known as the GIRL Rights Bill, colored woman
has the same privilege. 1t is to be observed,
however, that this is a Virginia State Court,
placed here to expound the laws of Virginia.
It has no criminal jurisdiction in respect of the
Civil Rights Bill, or any other penal statute of
the United States; but i. is left to infer its duty
from its own State authority and organization.
If the Court, of its own caprice, upon the assump-
ton of enforcing the Civil Rights Ball, should
strike out from the State statute, above cited, the
word sswhitc," or interpolate after that word,
the words cor colored;" in either case it would
be nothing short of actual, positive legislation
by the Court.
1t isnot readily perceived, however, that there
is any conflict between the Civil Rights Bill, and
the l25th Oh. of the Code of Virginia. The Civ
il Rights Bill Sec l., declares that all citizens
of the United States, irrespective of color fsnall
have the same rights to make and enforce con-
tracts, to sue, be parties, give evidence, to inner
it, purchase, lease, sell, hold and convey real
and personal property, and to full and equal
benefit of all laws and proceedings for the secn-
rity of person and property as is enjoyed by
white citizens, and shall be subject to like pune
ishment, pains and penalties, and to none other,
any law, statute, ordinance, regulation or custom
to the contrary, notwithstanding"
Now it is observed Of the 125th CHI. of the Code
of Virginia, that it does not relate to either the
security of the person or property, nor the impo-
siton of any pains, penalty or punishment 1t
is mere police regulation, protecting the commu-
nit; from the burden Of supporting bastard pauper
children, and devolying ths cir maintenance upon
the father. 1t is true that the woman, if she SO
chooses, must first make the afday. as to the pa
ternity of the child, after which, either she OF
the overseer Of the poor may continue with the
proceedings; but in any and every event, the
bonds exacted by the Court of the father for the
maintenance of the child, made payable to
the oversears OF the poor, and not TO the mother.
Neither her person or property are in anywise
affected by the law-nor is the support Of the
child imposed upon the father as penalty, but
rather duty, for it would be strange pen
atty attached to the law which the woman could,
as in this case she can, obstruet and defeat, by
her refusal to make the necessary affidavit
1t is further noticed that the Civil Rights Bill is
q penal statute, which must therefore be strictly
construed aud cannot be said to embrace this
State statutory provision, which at least only
abriges the privilege of preferring the accusation,
by combining such privilege to sshite women in
exclusion of those who are colored.
So far, therefore, as the Civil Rights Bill is con-
cerned no difficulty is encountered this case The
i Wv ;cf md; INT ba1
ment 10 the Constitution of tne United States as
ratified by the joint Resolution of the Genelaal As
sembly Of Virginia, approved Oct. 9Th, 1869. 1t
must have been soon discovered that the Civil
Rights Bill, passed April, 9th, 1866, would not
answer the purpose for which it was intended,
and accordingly, few weeks afterwards, on the
18th of June, 1866, the 18th Amendment was sub
mitted to the States for ratification as part of
the Constitution of the United States. The Ian
guage of the Constitution. as amended, is much
more broad and comprehensive than that employ
ed in the Civil Rights Bill, and in the opinion of
| the Court, is conclusive of this case.
The 1st Sec. of the Amendment reads as fol-
lows ''All persons, born naturalzed in the
United States, and subject to the jurisdiction
thereof, are citizens of the q. States, and of the
State wherein they reside. No State shall make
izeges or immunities of citizens of the United
States nor shall any State deprive any person
of life, liberty, CT property, without due process
| Of law, or deny to any person within its juris-
diction, the equal protection of the laws"
| The party now in Court, a colored woman,
seeks the privilege of carrying on these proceed
| ings to relieve herself from the support of her
bastard child AMI devolve the expense upon
it's alleged father, who is colored man. They
are both citizens of the United States. The law
sought to be enforced, is one which confers the
privilege only on ''an unmarried a0hte q0onaan. -
| The Constitution Of the United States expressly
| declares that no State shall make or enforce any
law ghch shall abridge the privileges of citizens
! of TIE United States. The State law does abridge
woman, on account Of her color, a privilege,
| it accords to white woman. 1t can scarcely
ton as amended, is to make all, irrespective Of
be neither desirable nor possible, but overland
ed justice to all, of every color, is absolutely i'm
| peratIve.
It follows, in the judgment Of the Court, that this
law was virtually repealed by the ratification of
the 14th Amendment, and cannot be enforced on
the application of any woman, srhite or colored.-
Nor does the Court regret the conclusion to which
it has arrived for it is matter Of notcriety
among the profession. that while the statute may
have, in some few instances subserved the pur-
pose for which it was intended; yet, on many oc-
| ca sions it has been used as means of extort-
| ing money from innocent persons, under threats
of public exposure to a charge, as easily made
as it is difficult to dsprcye.