Year: 1866

Thus perfect equality ofthe white and


colored race is attempted to be fixed by


federal law, in every state of the Union,


over the vast fields of state jurisdiction


covered by these enumerated rights. In


no one OF them can any state exercise any


power of discrimination between different


races. 1nthe exercise of State policy over


matters exclusively affecting the people


of each state, it has frequently been thought


expedient to discriminate between the two


races. By the statutes of some of the


states north, as we'll as south,it is enacted


for instance, that no white person shall


intermarry with negro or mulatto.


Chancellor Kent says, speaking of the


blacks, that marriages between them and


the whites are forbidden in some of the


states where slavery do's not exist, and


they are prohibited in all the slave holding


states by law, and when not absolutely


contrary to law, they are revolving, and


regarded as an offence against public de-


corum." [ do not say that this bill re-


peals state laws on thsisubject of marriage


between the two races for as the whites


are forbidden tointermarry with the blacks,


the blacks can only make such contracts
as the whites themselves are allowed to
make, and therefore cannot under this


bill enter into the marriage contract with
the whites. cite this discrimination,


however, ,as an instance of the state policy
as to discrimination, and to inquire whether
if Congress can abrogate all state laws of
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 contract Of
marriage between the races. Hitherto
every subject embraced in the enumeration
of the rights contained in the bill has 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 domestic condition of its peo.
pie; varying in each according to its own
peculiar circumstances 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 in
stance, in the state power of Legislation
over contracts, there is federal limitati
that no state shall pass law impairing
the obligations of contracts and as to
crime, that no state shall pass an e1 post
fdctO law and ,as to money, that no state
shall make anything but gold and silver a
laval bonIor. p,,E Cd
federal prohibition against the power of
any state to discriminate between aliens
and citizens, between artificial persons
called corporations and naturalized persons
in the right to hold real estates 7 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 dis
eliminating between the two races on the
subject of suffrage and Office 7 If Congress
can declare by law who shall hold lands,
who shall testify, who shall have capacity
10 make a contract in a state, then Con
yress can also by law declare who, without
regard to race or color, shall have the
right to sit as juror or as a judge,to hold
any Office, and finally, to vote in every
state and territory in the United States.
As respects the territories they come within


he power of Congress for, as to them,


he law making power is the federal power
put as to the states no similar provisions
exists, vesting in Congress the power to
make rules and regulations for them.


The object of the second section of the
oill is to afford discriminating protection
10 colored persons in the full enjoyment
IF all the rights secured to them by the
section. 1t declares that "auy
person who, under color of any law, statute
regulation or custom, shall


ubject or cause to be subjected any in-
labitant of any state or territory to the
deprivation of any rights secured or pro-
ected by this act, or to different punish.
nent, pains or penalties, on account of
Iuch persons having at any time been held
q condition of slavery or involuntary


ervitude, except as a punishment of
crime, whereof the party shall have been
luly convicted, or by reason of his color
'r race, than is prescribed for the punish
nent of white persons, shall be deemed
guilty of misdemeanor, and on conviction
shall be punished by fine not exceeding
$1,000, or Imprisonment not exceeding
one year or both, 10 the discretion of the
court This section seems to be designed
10 apply to some existing or future law of
, state or territory, which may conflict
with the provisions of the bill now under
1t provides for counter
acting such forbidden legislation by i'm,
posing fine and imprisonment upon the


Legislators who may pass such conflicting
avs, or upon the officers or agents who
shall put or attempt to put them into ex-
ecution. 1t means an official offence not