PUBLIC DOCUMENTS. 



Oil 





between the two races ? Hither to every subject cm- 

 . in the enumeration of right.s contain, d in this 

 11 been considered as exclusively L.-lnn^in^ to 

 v all relate to tliu intern. ! 



WUoa in each Stuti. 1 concern the doi 



ag in each according to 

 ill the safety and 

 . I do not moan to say 

 hero are not Federal re,- 

 , in the State power of lejjis- 

 is ii Federal limitation 

 to State shall pass a law impairing the obliga- 



- ; and as to crimes, that in. 



shall pass mi ,j- iwt facto law; and as to money, 



that n 1! make any thing but gold and sil- 



. lint where. can we. (ind a Federal 



o power of any State to din- 



is do most of them, between aliens and 



i artificial persons called corpora- 



.;id uuturul persons, in the right to hold real 



It it he granted that Congress can repeal all State 

 laws discriminating between whites and blacks in 

 the subjects covered by this bill, why, it may be 

 . imiy not Congress repeal in the same way 

 all State laws discriminating between the two races 

 ou the subjects of suffrage and office ? If Congress 

 can declare by law who shall hold lands, who shall 

 . who shall have capacity to make a contract 

 in a State, then Congress can by law also declare 

 who, without regard to color or race, shall have the 

 right to sit as a juror or ns a judge, to bold any 

 office, and, finally, to vote "in every State and Ter- 

 ritory cif the United States." As respects the Ter- 

 . come within the power of Congress, 

 for, as to them, the law-making power is the Federal 

 power; but as to the States no similar provisions 

 exist, vesting in Congress the power "to make rules 

 and regulations" for them. 



The object of the second section of the bill is to 

 afibrd discriminating protection to colored persons 

 in the full enjoyment of all the rights secured to 

 them by the preceding section. It 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 \>\ this act, or to different punishment, 

 pains, or penalties on account of such person having 

 at one time been held in a condition of slavery or iu- 

 voluntary servitude, except as a punishment of crime 

 whereof the party shall have been duly convicted, or 

 "n ot bJa color or race, than is prescribed for 

 the punishment of white persons, shall be deemed 

 tuilty of a misdemeanor, and, on conviction, shall 

 be punished by fine not exceeding $1,000, or impris- 

 onment not exceeding one year, or both, in the. discre- 

 tion 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. It provides for 

 counteracting such forbidden legislation by imposing 

 fine and imprisonment upon the legislators who may 

 pass such conflicting laws, or upon the officers or 

 agents who shall put, or attempt to put, them into 

 execution. It means an official offence, not a com- 

 mon crime committed against law upon the persons 

 or property of the black race. Such an act in 

 prive the black man of bis property, but not of the 

 riirht to hold properly. It means a deprivation of 

 lit itself, either by the Stute judiciary or the 

 State Legislature. It is therefore assumed that un- 

 der this sect : on members of State Legislatures who 

 should vote for laws conflicting with the provisions 

 of the bill; that judges of the State courts who 

 should render judgments in antagonism with its 

 term-; and that marshals and sheriffs who Mn'iild, 

 as ministerial officers, execute processes, sanctioned 

 by State laws and issued by State judges, in cxecu- 

 VOL. TI. 41 A 



f their judgments, conld bo brought befori 



other tribunals and there subjected to fine and im- 



pii-onment for the performance of the duties which 



Hieh Stute lawn might impose. 



The legislation thus proposed invades the judicial 



SI' the State. It says to every State court or 

 , if you decide that this act is unconstitutional, 

 i refuse, under the prohibition of a State law, 

 to allow a negro to testify, if you hold that over such 

 a mliject-matter the State law is paramount, and 

 " under color " of a State law refuse the exercise of 

 the right to the negro, your error of judgment, bow- 

 ever conscientious, shall subject you to fine and im- 

 prisonment. 1 do not apprehend that the conflicting 

 legislation which the bill seems to contemplate is so 

 likely to occur as to render it nccepsary at this time 

 to adopt a measure of bucb. doubtful constitution- 

 ality. 



In the next place, this provision of the bill seems 

 to be unnecessary, as adequate judicial remedies 

 could be adopted to secure the desired end without 

 invading the immunities of legislators, always im- 

 portant to be preserved in the interest of public lib- 

 erty ; without assailing the independence of the ju- 

 diciary, always essential to the preservation of indi- 

 vidual rights ; and without impairing the efficiency 

 of ministerial officers, always necessary for the main- 

 tenance of public peace and order. The remedy pro- 

 posed by this section seems to be, in this respect, 

 not only anomalous, but unconstitutional ; for the 

 Constitution guarantees nothing with certainty, if it 

 does not insure t'o the several States the right of 

 making and executing laws in regard .to all matters 

 arising within their jurisdiction, subject only to the 

 restriction that in cases of conflict with the Consti- 

 tution and constitutional laws of the United States 

 the latter should be held to be the supreme law of 

 the land. 



The third section gives the district courts of the 

 United States exclusive "cognizance of all crimes 

 and offences committed against the provisions of this 

 act," and concurrent jurisdiction with the circuit 

 courts of the United States of all civil and criminal 

 cases "affecting persons who are denied or cannot 

 enforce in the courts or judicial tribunals of the State 

 or locality where they may be, any of the rights se- 

 cured to them by the first section." The construc- 

 tion which I have given to the second section is 

 strengthened by this third section, for it makes clear 

 what kind of denial or deprivation of the rights se- 

 cured by the first section was in contemplation. It 

 is a denial or deprivation of such rights "in the 

 courts or judicial tribunals of the State. It stands, 

 therefore, clear of doubt that the offence and the 

 penalties provided in the second section are intended 

 for the State judge, who, in the clear exercise of his 

 functions as a judge, not acting ministerially, but 

 judicially, shall decide contrary to this Federal law. 

 In other words, when a State judge, acting upon a 

 question involving a conflict between a State law and 

 a Federal law, ana bound, according to his own judg- 

 ment and responsibility, to give an impartial decision 

 between the two, comes to the conclusion that the 

 State law is valid and the Federal law is invalid, ho 

 must not follow the dictates of his own judgment at 

 the peril of fine and imprisonment. The legislative 

 department of the Government of the United States 

 thus takes from the judicial department of the States 

 the sacred aud exclusive duty of judicial decision, 

 and converts the State judge into a mere ministerial 

 officer, bound to decide according to the will of Con- 

 gress. 



It is clear that in States which deny to persons 

 whose rights are secured by the first section of the 

 bill any one of those rights, all criminal and civil 

 cases a'ffecting them will, by the provisions of the 

 third section, come under the exclusive cognizance 

 of the Federal tribunals. It follows that if, in any 

 St-iti: which denies to a colored person any one of ail 

 those rights, that pcioon should commit a crime 



