Mr. DAVIS. Well, that is adictum. The honorable Senator, as I said the other day, is one of the ablest lawyers, and I believe the ablest living lawyer in the land. I have seen gentlemen sometimes so much the lawyer that they had to abate some of the statesman, [Laughter] and I am not certain, I would not say it was sol will not arrogate to myself to say sobut sometimes a suspicion flashes across my mind that that is precisely the predicament of my honorable friend. My honor able friend knows that when an opinion is remdered by a court, the opinion is authority only upon the question before the court, the question coram judice. It has often been sai, and I am not certain that the incumbent of the Chair [Mr. Howe] and all the gentlemen on the Republican side of the Senate have not assumed again and again that Lord Mansfield, in the celebrated case of Sommersett, decided that slaVery did not and could not exist in England. He decided no such principle. He decided diametrically the reverse. He decided that slavery then existed in England, that slaves then might be sold, and if sold for a price to be paid in the future, the sale was a sufficient consideration to maintain the writing and to maintain a suit upon the writin in any of the courts of Westminster Hall. e decided expressly that slavery existed in every English colony in America, that slavery then existed in England, that property in slaves was then recognized in England, and that the sale of slaves was a good and suficient consideration to upliOld a contract and a suit and a recovery upon that contract in Westminster Hall and what did he decide? He simply decided nothing else but this: that there were laws in England passed by Parliament that were incompatible with the owner of Sommersett taking him forciblv from England back to a slave colony in the est Indies; that these laws required him to issue a writ of habeascorpus discharging Sommersett from the ship in which he was hed a prisoner with the purpose of being transported to one of the British Vest India islands. e decided, furthermore, that but for those laws, which were incompatible with that amount of restraint and coercion which the owner of Sommersett was endeavoring to exercise over him, he would not have granted the writ of habeascorpus, and it would have been impossible to do so. If any gentleman will read that case, he will find that Lord Mansfield stated that there were 15,000slaves at that time on the island of England; 15,000Af ricans held in slavery, estimated by him to have been worth 700,000, and he states in the clearest and most explicit language that if any of those 15,000slaves were sold in England and a note executed for the price, the sale would be a good and sufficient consideration to maintain the contract and to authorize a judgment upon that contract before him, or before any of the courts of the kingdom. But I go on; I beg pardon for this digression. I maintain that a negro cannot be made a citizen by Congress; he cannot be made a citizen by any naturalization laws, because the naturalization laws aply to foreigners alone. NO man can shake the egal truth of that position. They apply to foreigners alone; and a negro, an Indian, or any other person born within the U.S., not being a foreigner, cannot be naturalized; therefore they cannot be made citizens by the uniform rule established by Congress under the constitution, and there is no other rule. Congress has no power, as I said before, to naturalize a citizen. hey could not be made citizens by treaty. If they are made so at all, it is by their birth, and the lo cality of their birth, and the general operation and effect of our constitution. If they are so made citizens, that question is a judicial question, not a legislative question. Congress has no power to enlarge or extend any of the provisions of the constitution which bear upon the birth or citizenship of negroes or Indians born in the U.S. All the provisions, all the principles, all the rights which the constitution established in relation to those matters are fixed, immutable as the constitution itself, and congress by no ancillary legislation can enlarge the effect or the operation of any of those provisions or principles of the Constitution or of any rights that could be claimed under them. Then, if a negro is a citizen of the U.S. at all, he is a citizen by birth and by operation of the constitution, and his rights are not to be increased or fortified, nor can they be weakened or restricted or diminished by congressional legislation. He holds them by a bigger warrant than any law of congress. He holds them by the constitution of the U.S. That constitution cannot be interpreted even, much less can it be expanded or restricted by a law of Congress. What, then, does my amendment propose? It incorporates the provision of the Constitution relative to the rights of a citizen in one State in other States; it recognizes those rights, and declares that the exist under and according to the terms and an age of that clause of the constitution, and it then adopts the penal sanction which the honorable Senfrom Illinois has provided in his bill, and it declares that any person who deprives any citizen whatever of any rights under that clause of the comstitution commits a misdemeanor, and shall be subject to the penalties denounced by the bill. Mr. President, if there was any despot in Europe or in the world that wanted a master architect in framing and putting to other a despotic and o ressive law, I woul, if my sli t voice could reach him, by all means say to im, seek the laboratory of the Senfrom Illinois. If he has not proved himself an adept in this kind of legislation, unconstitutional unjust, oppressive, iniquitous, unwise, impolitic, calculated to keep forever a severance of the Union, to exclude from all their constitutional rights, privileges, and powers under the Government 11 States of the Unionif he has not devised such a measure as that, I have not FO380; enough to comprehend it. What does It o Itattempts to confer, by the 1st section, upon all the inhabitants of the U.S., of every race and color, wheresoever resident in them, the right to make and enforce contracts; to sue, be parties, and give evidence; to in herit, purchase, lease, sell, hold, and convey real and personal property; and the full and equal benefit of a laws and proceedings for the security of person and property; and it exempts them from all punisment, pains, and penalties except such as are common and Uniorm to all the people. If that is not cen tralizing with a vengeance and by wholesale, I do not know what is. Here e honorable Senator in one short bill breaks down all the domestic systems of law that prevail in all the States, so far not only as the negro, but as any man without regard to coll is concerned, and llJLbIfiflkfl down all the enallaws that inflict punishment or penalt u all the people of the States except so as those laws shall be entirely uniform in their a “on. to the extent that there is an variancein those laws, this short hilllimaksiliam down. To the extent that a negro is by them subjected to a severer punishment than a white man, this short bill repeals all the penal laws of the States. In relation to the citizens of a State, to their a rights, privileges, and immunities, as the are to be claimed within that State now an forever, it proposes to do exactly what all these authorities say Congress cannot do, because they say in the most distinct terms that the citizens of each State, so far as their rights are limited by the boundary of that State, so faras their property and contracts are limited to that State, so far as penlaties and punishments are limited to acts one within that State, are exclusively the subjects of State legislation, and Congress has no power whatever to legislate in relation to them. The 2nd section declares all persons who shall subject or cause to be subjected any person to the deprivation of any right secure or protected by the 1st section to be guilty of a misdemeanor, and that the punishment shall be a fine not exceediu $1,000 and imprisonment not exceeding 12 months, one or both, at the discretion of the court. I have before me the law of the Senators own State, which makes it a highlypenal offense for any officer who is authorized to issue a marriage license to issue a license for the marriage of a white person and a negro. I need not read the law. It makes it a highly penal offene for any preacher of the gospel to solem nize such a marriage. What does the gentle mans bill do? If the clerk issues such a iccnse and the license is consummated by a preacher marrying the negro with the white person, the ne prohas incurred a penalty by the laws of Illinois for which he may be prosecuted. suppose the negro is indicted for this offense and e is tried by a jury and convicted, and the judge sentences him to the penalt denounced by the aw, what a lication, then, as the honor able Senators g8]? All the pantieswho were engaged in bringing this ue so to a unisliment to which a white person who ha committed the same act would not bethe rand ury, the petit ju, the judge, and thee er of the law who is a out to carry the judgmeat of the court into execution, would all, according to the honorable Senators bill, be guilt of a misde themeand each of them woultfbe subject to a line of not exceediu" $1,000 and imprisonment not exceeding 12 months, one or both, at the discretion of the court. Does the hou orable Senator think such a law would be constitutional and valid in relation to parties who had been born in the State of Illinms, and who were living there? Let me put the case from myown State, which Imentioned when the other bill was pending. By the law of my State a negro who commits a rape upon a white woman is subject to death, as he ought to he; and he ought to die, and I hope he always will die for an such otfense. when that offense is committed by a white man, it is punished by confinement in the penitentiary for a term of yes. at does the bill say? That a man or any couSrtenoartoarnsyQQ, L officer offlielaw wh presumes to inflict. upon a negro adiflferentpunishuient than thattonhieh awhite man is subject for the same act, shall himselflfe regarde as an offender against the Tamliable to paya penalty of $1,000, or to imsonment not exce months, or ot, a the discretion of the court. Does the honorable sehsasraesrnd assume the position that the State of Kentucky has not the right to punish a negro who has committed that enor mous offense by death, when it punishes a white man who commits it by a different mode and different degree of punishment? Does he say that the judges and oficers who are sworn to uphold the constitution of the State of Kentucky, and to enforce her laws, by carrying this law into operation can be guilty of a high misdemeanor against the Government of the U.S. that shall subject them to the pains and penalties of his bill? Sir, it is preoster ous, it is absurd and unsound to the last egree. The Congress of the U.S. have no right to take jurisdiction over such a case or the parties to such atransaction. They have no right to declare and to denounce such punishment against the State courts and State officers for thus executing the constitutions and penal laws of the States. These are only examples. The cases would occur every day; they would be more numerous than the fleeting minutes. The cases of wrong and outra e would be innumerable upon the reserved rights of the States, upon their powers to legislate for their own domestic concerns, in relation to their own people, the punishment of their own people, the property and estates and transactions and contracts of their own peoIs. All these subjects belong to the States exc usivel, and Congress cannot, without usur pation an a violation of the constitution, interfere with them. The cases of offense and misdemeanor that in these respects the honorable Senators bill would bring up every day in the U.S. would be as numerous as the passing minutes. The result would be to utterly subvert our Government; it would be wholly incompatible with its principles, With its provisions or with its spirit. It would leave the General Covernment no longer a limited Government of delegated authority, with no powers except those expressly or by implication given to 11008353"? it by the constitution. t would produce a perfect and despotie central consolidated Government. All the State governments and State constitutions would be brought in ruins prostrate to the feet of the oligarchy of Congress an oligarchy more des potic than that ot the Council of 500 or the Council of Ten of Venice, or any other council of despotism that ever was organized. The bill is outrageous. I am amazed that any man of intelligence who has read law can shut his eyes against its enormous unconstitutionality. The men who do so, if the are honest, are forgetting their knowledge of the constitution and they have only to let that disease of forgetfulness go a little further, and they will know nothing at all about it. Section 3 provides that all suits brought in State courts at come within the purview of the previous sections may he removed into the Federal courts. See what an enormous, oppressive provision of the honorable Senator s hill that is. Here is a suit in a State court between parties who are resident in the State, who have never had residence out of it, about a transaction that has transpired wholly within the State. Who has the right, what power has the right, to pmscribe a code to regulate such matters, and to try the parties? he State, no authority but the State. Congress has no power over such parties and over such subjects of suit not a particle. Your own courts have so decided; the constitution so reads; reason cannot doubt the truth of that position. All such cases and contracts and persons are exclusively within the control of State authority, State law, and State courts; and yet where these State laws and those State courts are resorted to for the redress of such wrongs, your act comes in and most unjustly and unconstitution ally and oppressively provides for the removal of all such cases into the Federal courts. The 4th section requires the U.S. attorneys, marshals, and deputy marshals, to institute both penal proceedings and civil suits in the names of persons who, may be injured by any violations of the letter of this act, at the cost of the U.S., and authorizes the U.S. courts to appoint commissioners without limit in point of number, to enforce this act. What is the effect of that? This is an act for the benefit of the free negro, not the white man. If there had been no ree negro, this act never would have been heard of. What does it provide? If, accordin to the letter of this unconstitution al] void, an iniqui tous act, a free negros rights are infringed, the attorneys and marshals of the U.S. are required to institute both civil and penal proceedings for the benefit of the negro, to brin a criminal prosecution on behalf of the U.S., and also a suit in the name of the negro, against the white Officers who infrin e his rights under this act, and these suits, civil and penal, are to be prosecuted for the benefit of the negro at the cost of the Treasury of the U.S. Sir, when was the white man so favored by congressional legislation? When did the learned chairman of the ComJudiciary introduce a bill that, where the rights of a white man were impugned or violated, it should be the duty of the attorne s and the marshals and the deputy marshals of the U.S. both. to prosecute penally and to sue civill in the name of the negro tor his violated rights, and to sue at the cost of the Treasury of the U.S.? It is a most diabolical feature. Section 5 vests these commissioners with judicial powers to enforce the act. I have read repeatedly from the constitution of the U.S. the express and emphatic words that all the judicial power of the government is vested in the Supreme Courtand in such inferior courts as Congress may from time to time establish; but here the honorable Senators bill authorizes the courts of the U.S. to appoint commissioners without number, legions of them. The names of these commissioners are not submitted to the Senate of the U.S. for confirmation. The are not courts, theyareno part of the judicial ranch of the Government; they are not Officers nominated by the president and approved of and consented to by the Senate; they are appointed by the will, the dictum of the courts. In times of heated political presidential contests the Executive may cover the face of the country with them, an these men might o on, against the Constitution of the U.S., exercising judicial power under this lawless and unconstitutional act, controlling the voters of the land, imprisoning and finin, orbringing up for imprisonment and fine, another modes of nnishment, all the contumacious, all the free citizens of America that would not vote according to their be hest and this enormous power of creating such a numerous tribe of myrmidons with des potic power is vested by this bill in the courts, and these officials are to exercise judicial pow ersl The 6th section requires the marshals and deputy marshals to execute all processes issuing in virtue of this act, under the penalty of $1,000, and authorizes the commissioners to call to the aid of such marshals and deputy marshals the bystanders, the posse comitatus, and then the Army and the Navy of the U.S. Yes, sir, here is a law made almost co nomine, made unquestionably for the benefit of the free negro and in violation of the constitution, and the marshals are required, under the penalty of $1,000 for every instance of defalcation, to execute the process under this void and unconstitutional law, and if the fail to do so the commissioner is authorize by this most mon strous and abominable bill to summon every by stander to aid the marshal in the execution of this unconstitutional law, to summon the posse comiiaius of the county in which the process is to be executed to aid in it, and, if necessary, to summon the entire Army and Navy of the U.S. to execute such void process. When, sir, was such partiality ever shown for the white man, the soverei, citizen, and lord of this landhim who mad: the Government, who won its independence, who established, as e thought, the eep and firm foundations of free government in a written constitution nd whose mission it is to u hold and to defend hat Government for himse f and for his latest posterity? When was such (partial, nnust, and iniquitous legislation devise for the white man who achieve all this good for his country and for the world? Never, never. But the negro and his insane friends bring up now for the 1st time such monstrous legislation. There is another most remarkable feature. All persons who violate the rights of the negro under this act are subjected by it to 2 penalties of $1,000 each, one for the benefit of the U.S., and the other for the benefit of the injured negro in the form of liqui dated damages. The honorable Senator knows what liquidated damages are and so does every lawyer. When damagesare iquidated they are no on er a penalty or in the nature of a pen alty. Vhen they are liquidated by the law, the whole of the nominal amount may be collected without rerd to the heine usness of the case in which they are due. Here now is an act thatereates 2 separate penalties on a defaulting Officer. If the officer assumes not to execute the process because it is void, being under an unconstitutional law, he is subjected to 2 penalties. The honorable Senator must be a lineal descendant of Draco of old. He imposes 2 penalties of $1,000 each, one for the benefit of the U.S., and the other for the benefit of the free negro whose rights, according to the letter of this monstrous and unconstitutional law, have been violated; and the penalty in favor of the free negro is as sessed in the form of liquidated damages, and the mandate of the court gocsinexorably to the marshal to pay to the negro his $1,0001iqui dated damages. The contest may be about a cow, or a months work, or some other trifle of no significance; the white man may be right and the negro wron; the whole proceeding may be void; but without regard to thesequestions, the marshal is inexora lyto execute are writ; and if he is guilty of any defalcation, any neglect in the energetic PUPSflMf the party named in the recess, e incurs 2 penalties of $1000 each). That to the Government of the U.S. may be ameliorated; the President may remit it; or it may be decided by the courts that the real amount of damage sustained by the negro, and not the penalty is the criterion of the recovery against the marshal for the 1st $1,000; but no such mitigation or defense can be brought up for the 2nd. The 2nd is for the benefit of thenegro. No law relaxes when the penalty is for the benefit of the negro. No law can be mitigated by justice, by mercy, or by humanity, when its enforcement is for the benefit of the negro; it is as unalterable as the laws of the Me es and Persians, and as inexorable as tyranny itself. The 8th section of this bill gives a fee to the commissioner of ten dollars in every case and 5 dollars to the marshal for every arrest. The 9th section makes the courts of the U.S and all their Officers and parapher nalia tributary to the execution of this law, and the 10th section provides for the use of the Army and the Navy and the militia to carry out this execution of justice to the negro. Mr. President, was it for these fruits and these laws that we went into this war? Was it for these fruits and these laws and these oppressions that 2 million and a narter of men were ordered into the field? i as it that the American people might enjoy these as the fruits of the triump iant close of this war that 100s of 1,000s of them have been mutilated on the battlefield and by the diseases of the camp, and that a debt of 4 or 5,000 million dollars has been left upon the country? If these are to be the results of the war better that not a single man had been marshuled in the field nor a single star worn by one of our Officers. These military gentlemen think they have a right to comman and control every where. hey do it. They think they have a right to do it here, and we are sheep in the hands of our shearers. We are dumb. Mr. President, I do not know how soon, for my action on the present occasion, I shall be compelled to silence by the military power of my country, by the men who ought to be subordinate to the civil power. When the Father of his Country surrendered his military commission, his proudest and most glorious boast was that he had always kept the military subordinate to the civi power. Times have changed. The military power is now rampant and triumphant, and a] we have to do is to how our heads. But I live in the he that a better day is coming, when the may est military man in the land, with all his by goody laurels, will find that he is but an instrument in the hands of the law, and that he has to yield the same submission to the law that the humblest citizen of the land does.