Year: 1866

public decorum / do not say that this
/ bill repeals State laws, on the subject oil
I marriage between the two races, for as
I the whites are forbidden to intermarry


with the blacks. the blacks can only
make such contracts as the whites them
4 selves are allowed to make, and there
4 fore cannot, under this bill, enter into
the marriage contract with the whites
take this discrimination, however. as


an instance of the State policy as to dis
elimination, and to inquire whether, II
/ Congress can abrogate all State laws oi


discrimination between the two races. in


the matter of real estate. OF suits, and OF
contracts generally, Congress may not
also repeal the State laws as to the con
tract of marriage between the races
Hitherto. every subject embraced in the


enumeration of rights contained in the
bill las been considered as exclusively


belonging to the States; they all relate
to the internal policy and economy OF


the respective States. They are matters


which. in each State, concern the domes


tic condition of its people, varying in


each according to its own peculiar cir


cumstances and the safety and well being


of its own citizens / do not mean to


say that upon all these subjects there are


not Federal restraints, as, for instance,


in the State power of legislation over


contracts, there is a Federal Limitation


that no State shall pass law impairing


the obligations of contracts; and, as to


crimes, that no State shall pass an er-


post. facto law and, as to money, that no


State shall make anything but gold and


silver legal tender But where can we


find a Federal prohibition against the


power of any State to discriminate, as


do most Of them, between aliens and


citizens, between artificial persons called


corporations and naturaliZed persons in


the right to hold real estate? If it be


granted that Congress can repeal all


State laws discriminating between 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 discriminating between the


two races on the subject of suffrage and


office? If Congress can declare by law


who shall hold lands. who shall testify,
who shall have capacity to make con
tract in State, then Congress can also
by law declare who, without regard to
race or color, shall have the right TO act
as a juror or as n Judge, to hold any Of
flee, and finally to vote, in every State
and Territory of the United States. AS
respects the Territories, they come with
in the power of Congress, for AS to them
the law making power is the Federal
power; but as to the States no similar
provision exists, vesting in Congress the
power to make rules and regulations for
them


The object Of the second section 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 inhabitant of any State or Territory
to the deprivation of any right secured
or protected by this act, or to different
pains or penalties on ac-
count of such person having at any time
been held in condition of slavery or
involuntary servitude, except as pun
ishment of crime. whereof the party
shall have been duly convicted, or by
reason of his color or race, than is pre-
scribed for the punishment of white per
sons. shall be deemed guilty Of a misde
meanor, and on conviction, shall be pun
ished by fine not exceeding one thousand
dollars, or imprisonment not exceeding
one year. or both, in the discretion Of
the court " This section seems to be
designed to apply to some existing or
future law of a State or Territory, which
may conflict with the provisions of the
bill now under consideration 1t pro-
vides for counteracting such forbidden
legislation, by imposing fine and impris-
onment upon the legislators who may
pass such conflicting laws, or upon the
officers or agents who shall put or at
tempt to put them into execution. 1t
means an official offense, not a 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, but not of his right to
hold property. 1t means a deprivation
of the right itself, either by the State
or the State Legislature 1t
i, therefore, assumed that, under this
section. 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 judg
ments in antagonism with its terms, and
that marshahls and sheriffs who should
as ministerial officers execute 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
invades the judicial power of the State.
1t says to every State Court or Judge:
if YOU decide that this act is unconsti-
tutional if You refuse under the prohib-
ition of State law. to allow a negro to
testify; if You hold that over such sub
ject matter the said law is paramount.
under color of State law refuse the ex-
ercise of the right to the negro your
error of judgment, however conscien-
tous. shall subject you to fine and i'm
prisonment- l do not apprehend that
the conflicting legislation which the bill
seems to contemplate is so likely to oc-
cur. as to render it necessary at this
time to adopt measure of such doubt
full constitutionality. In the next place,
this provision os the bill seems to be Tn
necessary, as adequate judicial remedies
could be adopted to secure the desired