The Republican. [volume] (Oakland, Md.) 1877-current, 1886-12-11

Judge Duffy. of the Criminal Court.
The law provided the arrest and pun
ishment of white woman for bear
ing an illeditimate child; but if she
disclosed the name of the father,
whether white or coIored, the mother
was to be released and the father
prosecuted, to compel him to give
security or indemnity to the state
for the maintenance of the child for J.
seven years. In the case of James
Smith, colored man, an effort was
some time since made, at a hearing
before the full Supreme Bench, to
have the statute extended to embrace
within its provisions colord man;
but all the Judges without passing
upon the constitutionaIity of the
law, which point was not raised, as
the law was desired to be retained, if
possible, for the protection of the
colored woman) cOncurred in the
opinion that The law could not be ex-
tended. 1t was this case which Mr..
Waring, the first coiOred lawyer
admitted to the bar in this state,
4rgued so ably. 1t was his first case
liter his admission. Thomas B.
Driscoll, white man, was arrested
IN August last on the oath of Sarah
e. Clinton, No. North Castle street,
for being the father of her ilIegiti-
mate child, born April 2, 1886.
Thomas G. Butler. counsel for
Driscoll, then pleaded that the state
law was unconstitutional under the
first section of the Fourteenth
Amendment, when reads, "all per-
sons within the juridisction OF the
United States, shall have the same
right in every state and territory to
make and enforce contracts, to sue,
be parties, give evidence, and pro-
ceedings for the security of persons
and property as is enjoyed by white
citizens, and shall be subject to like
punishments, pains. penalties, taxes,
licenses, and exactions of every kind,
aud to no other"
Judge Duffy decided that the
bastardy law denied to white wom-
an who had an illegitImatc child
liable to arrest and prosecution, when
no such proceedings were provided
as against colored woman. Again,
it denied the colOred woman the
right to have the father of her illegit-
innate child compelled, by process of
law, to support the child, right ac-
corded by the law to the white wom-
an, and was therefore in that respect
also unconstitutional. Although
there was no discrimination in color
made by the law as to the putative
fathers, since the liability of the
father depended upon the mother be
ing white. that part of the law which
punished the father being dependent
for its operations upon precedent
portion of the law which was uncon-
stitutional. The whole law, there,
fore. is against the Fourteenth
Amendment of the Constitution of
the United States and is void, The
case was submitted to the court
without argument, and will be APP.
pealed by the state, so that the
Court of Appeals may authoritative
ly settle the question.
Deputy States Attorney Cans
agrees with Judge Duffy, and so
stated, but says an appeal is desired,
that the law may be decided for the
whole state, as a county judge might
disagree with Judge Duffy as to its
constitutionality AS its stands, no
arrests will be made, in the city at
least, under the bastardy law. The
next legislature will probable pass
new law; that is, if the Court of APP
peals agrees vita the decision.