The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1874-12-01
spect than on account Of race, color, and

sPtct tDan Oh account OF race, color, aDd
previous servitude.i 2 (
II the Constitution gives this permission
to the States, then no act OF Congress for
bidding the abridgment OF thfs right on
other account than Of race. color, &C., is
constitutional, and no indictment founded
upon such law is valid to give jurisdiction
OF the offence charged to the national courts.
DISCRIMINATION BETWEEN SIaHTs CONFERRED
BIZ TIE NATIONAL CONSTRUCTION AND THOSE
MERELY GUARANTEED BY THAT INSTRUMENT
But DERIygD FROM THE STATES.
1t is contended that from whatever source
right comes to citizen of the United
States, yet, once attaching to bim, II Is com.
petent for Congress aud the United States
courts to protect him in it. This argumen.
would confer the power and duty of pro-
tecting the citizen of the United States from
any of the ordinary offences at common Law, !,
such as murder, false Imprisonment, aud the
like. This cannot be sound proposition.
There Is an obvious distinction to be made
on this subject. -'9. G
Although still unnecessary to my argu.
ment as to the eight indictments mentioned,
/ will advert 10 the distinction which
should be drawn between rights proper aud
those improper for the jurisdiction of the
national courts. 1t is that so we'll stated by
Justice Bradley In his opinion In the case OF
the United States us. Cr7sikshdnk et ais, re.
ported in t13 American Law Register, $50,
where the learned Justice distinguishes BE-
tween those provisions of the National Con-
stitution which guarantee fundamental
rights, the duty of protecting which pro-
perly belongs to the States, and those proVi.
sions which either create rights or eujoin
affirmative legislation upon Congress for
their protection. s
! cannot but express cordial and full
concurrence in the following remarks Of
Justice Bradley on that subject. he says:
"With regard to those acknowledged
rights and privileges of the citizen which
form a part of his political inheritance de-
rived from the mother country, and which
were challenged and vindicated by centuries
OF stubborn resistapcs to arbitrary power,
they belong to him as his birthright, and it Is
the duty of the particular State Of which he
Is a citizen to protect and enforce them, and
to do nought to deprive him of their full
enjoyment.
"When any Of these rights and privileges
are secured by the Constitution Of the
United States only by q declaration that the
State, or the United States, shall not violate
or abridge them, it is at once understood
that they are not created or conferred by the
Constitution, but that the Constitution only
guarantees that they shall not be impaired
BY the State, or the United States, as the case
may be-. .'t 'f
-" The fulflment by the United States Of this
guaranty is the only duty with which that
Government is charged.
"The affirmative enforcement OF the rights
and privileges themselves, unless something
more is expressed, does not deVolye upon it,
but belongs to the State Government as q
sart of its residuary sovereignty. af.
: "For example, when ills declared that no
State shall deprive any person ofilife, Iiber'
ty, or property, without due process Of law,
this declaration is not intended as guaranty
against the commission of murder, false
Imprisonment, robbery, or any other crime
committed by individual malefactors, SO as
to give Congress the power to pass laws Tor
the punishment of such crimes in the several
States generally" ."* =" It's a guaranty against
the egertion of arbitrary and tyrannical
power on the part Of the Government and
Legislature OF the State, not a guaranty
against the commission ofindiYidual offences;
and the power of Congress, whetherimplied
or expressed, to egislate for the enforcement
Of such guaranty does not exteno TO the
passage of laws for the suppression OF ordl.
nary crimes within the States.
- t.'Tbe enforcement OF the guaranty
does, not require or authorize congress 10
perform the duty which the guaranty ltseiI
supposes it to be the duty OF the State TO
perform, and which it requires the State 10
- "If these views be correct, there can
be no constitutional legislation of< Congress
for directly enforcing the privileges and I'M
munities of citizens of the United States by
original proceedings in the courts OF the
United States, where the only, constitutional
guaranty of such privileges and immunitles
IS that no State shall pass any law to aoridge
them, and where the State has passed no Ia P"
adverse TO them, but, on the contrary, has
passed laws TO sustain and enforce them.H
If this distinction be correct, then, as the
right of voting is not conferred by the Ma
tional Constitution, nor even guaranteed Dy
that instrument except in qualified and
negative way by the fifteenth amendment,
II Is not one of those rights over which,
when proposed to be exercised. In a.State
election. Congress or the national courts have
jurisdiction. ta
Plus are we brought by Legitimate argu'
ment. founded upon the decision in the
Slaushter.house cases, and theYery able one
in the Cruikshank case, to a. conclusion
against the validity of the eight indictments
pending against the judges OF election o.
Petersburg. -,' ''.
THE DIRECT AND cokcLusiVE ARGUMENT OF
= ,, THIS SUBJECT. ..s., ....
i But there is a much more direct method
Of reaching the same conclusion, which
avoids q resort 10 the power. OF con
struction, and which renders useless ths
distinction drawn by the national courts IL
the cases alluded to between the rights be-
ionging to person respectively IN bis tWt
characters of citizen of the State and citizen
of the United States, and between the rights
created or conferred and those merely suaran
teed by the National Constitution. ltls this
Admit for arguments sake that the four
teenth amendment, in its frst paragraph
was intended to prohibit the abridgemen'
Of any privilege Of the citizen by the Slate.
or By its citizens, on any account whatever
yet the second paragraph Of the SAME amend
Inent. which leaves TO the States the power
always held by them to prescribe the quali-
fications for. suffrage at their pleasure in
National and State elections, expressly ex.
cepts the right Of voting from those general
privileges; and the most that can be insisted
upon. is that the fourteenth amendment pro-
iects the cisizen of the United States inlall
privileges except the right of voting, and
leaves this right to be regulated al h6,t.en'
by the States. ! 1t was this latter fact which
created the necessity for the fifteenth
amendment, and that amendment would
mean nothing, and would have been
wholly unnecessary if before its adop-
tion the States had not had uncontrolled
mower over athe right of suffrage. LIS
sole object was to limit the unrestralneo
nower of the State over this right whichhao