Mr. COWAN. I know the honorable senators oint, and I will come to it, and when I come. e can have whichever horn of the did lemma he chooses to take. I say that this bill accordingto its grammatical construction, and according to the construction that any judge not strongly impregnated with the idea may rammatica nonvitiat can readily put upon it, confers upon married women, upon mine rs, upon idiots, upon lunatics, and upon everybody native born in all the States, the right to make and enforce contracts, because there is no qualification in the bill, and the very object of the bill is to override the qualifications that are upon those rights in the States, and to punish the judges of the several States for executin them. There is no qualification as to the kin of contracts. The power given to these people by this bill is unimited as to persons, and it is equally unlimited as to contracts. l need not remind you, sir, that there are n large number of contracts which are not allowe in the several States, some on account of policy, some on account of morality, and others upon account of positive injunction to the contrary. A contract in my State made 11 on the Sabbath day is void; but under this bill that contract could be enforced. A contract made against chastity, prob pudor is void; but under this bill that might be enforced. f wish to direct the attention of Senators to the artistic mode in which these important bills are drawn and passed through this body, because I hold that this 1st section in itself if there were nothing more in it in the world than this incongruous kind of phrase that is made use of, would justify any executive oficer in putting his veto upon it. I have no doubt it was intended oriinally by the person who drew this bill to may rethe next p irase which comes in qualify the former, so that the bill would readb That all persons born in the U.S shall have the sums right in every State and Territory to make contracts and to the full and equal benefit of all laws and proceedings for the security of person and property as is cmoyed by white citizens. “As is enjoyed.” But you will observe that it is a singular verb, and to take the phrase literally, the word “ benefit” in the line preced in is the nominative to that verb, and supplies al that is needed in the we of a nominative. I am perfectly free to admit that a fair construction of this section would be to make that 2nd clause qualify the 1st and to take the whole section as meaning that these persons should only enjoy such rights as are enjoyed by the white persons of the State or Territory where these rights are claimed; but that is not this bill; it isnotits grammatical construction; and when we observe, as we do here daily, that cavils are made upon the 9th art of a hair, very frequently; and when we lind such loose notions prevailing upon the proper construction to be given to the laws, I am afraid that a corrupt, a passionate, or a prejudiced judge, l who had some end or motive beyond that which ought to govern him in the execution of his official duty, would take advantage of this in order to widen the jurisdiction of the U.S. courts and drag into them not only all the native born people of the country, but to drag into those courts all the business which had heretofore occupied the State courts. Is that nothing 7 Why, sir, to suppose such a thin possilfie is to suppose an ignorance of our form of government, of its frame and text ure, and of the powers delegated to it that is enough in this 19thcentury to make a man tremble for the fate of constitutional government. Mr. President, the subjectsmatter of the 1st section of this bill never have been within the jurisdiction or control of the U.S. Government. When did an inhabitant of a State or Territory, in a controversy between himself and one of his neighbors, look to the U.S. Government to settle that controversy? When did he look to the U.S. Government for any of those rights which are usually protected by Governments? Never. The inhabitant of a State settles his disutes with his neighbors by a reference to the late courts. They are the tribunals to decide those questions; and to the State laws it is to be referred whether there was a contract or not, whether the party in contracting was competent and capable to make the contract or not. It is to be referred to the State courts whether there is a title oine t, and how that title shall be evidenced and how it shall be maintained. All these subjects are purely and exclusively within the domain of the States; and the judiciary power of the U.S. extends only to that single, solitary case, where it was necessary, where disputes arise between citizens of different States. If I have a difficulty with my friendfrom Maryland 1 am not oblied to go into a Maryland court in order to adjust that difficulty. Being acitizen of the State of Pennsylvania, I can take him O hde vice into the district court of the U.S and have an impartial (as it was supposed) tribunal there to settle the differences between us. But when he has difficulties with citizens of Maryland, or I have them with citizens of the State of Pennsylvania, the U.S. Government has nothing more to do with it, and never has had, and never has claimed any more right to do with it than the Government of GreatBritain, or the Government of Russia, or any other Government having no jurisdiction at all; and it is the same way with regard to the ordinary crimes and offenses. Take all the criminal court business of the States, and what have the U.S. to do with it? Nothing in the world. They have no jurisdiction except that which is expressly given. They have a right to collect the revenues, and they have the right to protect the revenues. They have a rightto coin money, and therefore they have a right to punish counterfeiting the coin and securities of the U.S. The have a right to establish postoffices, and tierefore they have a right to unish for robbin the mails. They have a right, because the U.S. Government is the medium through which we communicate with all foreign Powers, to declare the punishment of crimes against the laws of nations, and to define them. But with these domestic concerns they never have had, and have not now in my judgment, anything whatever todo; and to confer upon this Government that power would be an incalculable mise hief, and one which would tend inevitably to destroy it by consolidation and by centralizin everything here. That is the 1st objection t rat I have to this bill; and that objection is, that the 1st section is capable of a construction which, if the U.S. courts were inclined to am plify and enlarge their jurisdiction, and draw into them cases everyw iere, would annihilate the jurisdiction of the States as to everything except foreigners. rlhere is another ambition to which I wish toity in the 3rd see direct attention; and I should like to know from some gentleman learned in the law what is the meaning of this particular phraseology: That the district courts of the U.S. with their respectivedistricts shall have, exclusively (It? the courts of the several States, cognizanceof all crimesand offense se ommittedagainstthe llOVlSIOH of this act and also concurrent! with the circuit courts of the U.S., of al causes.civil rnd criminal. uffectingpersonswho are denied or cannot enforcein the courts oriudicial tribunals of the State or leenlity where they may be any of the rights securedto them by the 1st sectionof this not. Mr. President, could you tell whether that was an exclusive jurisdiction on the part of the U.S. court, or n concurrentjurisdiction in them and the State courts, or an appellate jurisdiction over the State courts? l at is the meaning of it? What construction will a judge put upon it? If the judge were disposed to put the construction upon the 1st section of which I say it is grammatically capable, and perhaps he would be justifinble in doing so, that would draw into the U.S. courts all nativeborn people; it would draw into them all that class and character of business which have heretofore been exrcssly and exclusively within the control of State legislation and State courts, and ifthis is net ually an exclusive jurisdiction on the part of the district court and the circuit court of the U.S., then the whole is finished, the work is done; then the States are annihilated; then, instead of going into a State court you will be obliged to go into the U.S. court. If the jurisdiction is exclusive, you must go there; and, as power always tends to eneroach, what is to prevent this power from eneroaching in that irection, and what guarantee have you thatit will stop where you think it should stop and within safe limits? None whatever; and let no man in these revolutionary times delude himself with the idea that it will so step. If not intended to produce centralization, it will as a matter of necessity do so in the struggle which must ensue between the State governments and the U.S. Government. Mr. President I do not choose to run that risk. If we had undoubted authority to pass this bill, under the circumstances I would not vote for it, on account of its objectionable phraseolo, its dubiouslunguage, and the mischief whie might attend upon a large and liberal construction of it in the district and circuit courts of the U.S. Therefore I would ask, what is the meaning of this bill? Is it intended, as the language would indicate, that these courts have exclusively of the State courts jurisdiction of all the cases I have enumerated and of all the persons I have enumerated, or is it an alternative jurisdiction? Does the author of the bilhnean that one of the proscribed class, before he can go into the district court or into the circuit court of the U.S. for remedy, must 1st go into the State court and try it? Is he to go there to see whether he can enforce his right, or whether it shall be denied him? Then, Mr. President and I come to that now if that is to be its construction, (and that is the fairest and most charitable construction that the authors of the bill can ask to be put upon it) I say to these friends of the emancipated African and the African ever where, your remedy is delusive; your remedy is no remedy at all; and to hOlt it up to the world as a remed, is a gross fraud, however pious it may be. how many district courts are there in the several States that these people inhabit? There are not more than 2 district courts in any of the slave States, and in a great many of them [think there is but one; and on provide here, and propose it as a feXDEt y to the black man, “ Go into the State court with your claim and try it; if you are denied or cannot enforce your remedy there, on can O into the district court of the U.S. Now, I appeal to Senators whether that is not a delu srou and a snare? Of what magnitude will the claims of these poor black people be, pray? Not one out of every huudre Mlever have a claim amounting to over lift dollars, or, if you please, say $100. You senhim into the State court to get a remedy; the judge decides, according to the State laws, that he has no rem edy; and then you say to him, “You can go into the district court of the U.S. ” Where is it? Not within 100 (ind 50 miles of him perhaps, perhaps more; and he is to go there and seek a remedy for the recovery of 50 or 100 dollars. Sir, the legislator who would profess to guaranty the rights of these people with machinery of that kind is not their riend. Let us accompany him if you please in his journey to procure that remedy. He travels 150 miles with his little claim in his pocket. What then? He could hardly ay a lawyer in these expensive times to sign {is pracipe for much less than the whole of it as a retaining fee; but let me ask what would he have of it after he contests there in litigation with a stronger and a more ra acious opponent than himself? That is the casted remedy which the civil rights bill now occupying the attention of congress is to give the African. Mr. President, I trust I have treated this bill fairly. But I “ hear some gentlemen say, Oh, the judge of the State court who decided against the negro and who turned him out of his court is to be indicted; he is to be unished; he is to be made a criminal and ned $1,000 and imprisoned a certain length of time." May I ask, sir, of what great benefit that would be to the negro? I agree that that would be exceedingly offensive to the judge, and it might be exceedingly irritating in his neighborhood, particularly ifthe people thought the judge was right in his decision; and I agree that it might give rise to an eternal feud there; but I ask, wherein would that hel the black man? Sir, the machinery of this government is utterly and entirely unlitted for the execution of any such low as this; and why? Just because this was the Government of the U.S., and it was clothed with delegated powers to do the things for the U.S., and which would be for their benefit, that the States themselves could not do; and you may search the Constitution from end to end, and you cannot find a single line in that instrument which gives color to the idea that the U.S. government was to have power over any subject which the States could administer for themselves. It was given power over war and peace; and why? Because the U.S., 36 of them, could make war and could make peace better than anyone State. It was given jurisdiction over disputes between the States; and why? Because the 36 States could settle their intestinal disputes among themselves better by a reference to this Congress and the General Government than they could by war ring them out between one another, as was very often the case with the ancient confederations and leagues that were formed between small States such as ours. It was given jurisdiction over the revenue for its own support. It was given jurisdiction over certain subjects common to the whole with regard to which there ought to be uniform laws, but no jurisdiction was ever given it to intermeddle in the concerns of the States, and between the citizens of the several States, and in their domestic affairs where the States themselves could and ought to afford justice and a remedy. But, as I said before, if we had the power to afford the remedy, this is no remedy. It is no remedy to the cordebtor that you prosecute his judge and t reaten him with fine and imprisonnient. It is no remedy to the poor man with a small claim that you ocate a court 100 or 200 miles away from him which is so expensive in its administration of justice that he cannot enter there. Besides, there is another difficulty about the execution of this law, if it ever becomes a law. It is to secure to the negro the right to testify in the courts. Some people do not like to be witnesses very well, and I am one of them my self, I do not think anybody need quarrel much about it if it was taken away entirely. The right to testify as a witness is not one that he usually prizes very highly. He would a great deal rather stay at home and attend to his own business than to be dragged to a court and hang around there 8 or 10 days in order to be a witness for some other man. But the judge is to be punished under this bill for refusing the testimony of certain people who are said by the States not to be competent to testif. How is that remedy to be enforced, or who is to enforce it? Is the negro to be insulted because he cannot go into the State court to testify, and is he to become the public prose cutor in the case and vindicate his right to be a witness? If any Senator thinks there would be an especial advantage in that, I must confess that I do not see it. The right to testify is a right which belongs to the parties in the court, and if the negro is acompetent witness, and if the juries of the country in any State or communit will believe him and can believe him, an if he is to be useful as a witness, it is the clear interest of those Communities themselves to confer upon him that right or privilege; and I think, from the tendency of the times, that all disabilities will be removed in the case of witnesses. I think after awhile they will all be competent and whatever objections there may be to their testimony will go to their credibility rather than to their competency. There is anotherprovision of the bill which, notwithstanding the act of Congress relied upon by the honorable Senfrom Illinois, I think is unquestionably anomalous, and to me not only anomalous, but atrocious; and that is, the substitution of an indictment for the writ of error. What has been the law of these U.S. heretofore? When an act of Congress came in contact with aState law, and the judge of the State court decided that the law of congress was unconstitutional, there was an appeal given to the defeated party to the SCOTUS in order to determine the constitutionality of the law. But, sir, who until the last few months ever heard of making the judge a criminal because he decided against the constitutionality of a law of the U.S.? One would think we were being transported back to the dark:1 es of the world when a man is to be accuse and perhaps convicted of a crime who has done nothing more than honestly and conse ientiously discharged his duty. I know that the persons of embassadors are sacred, and I know that it is a very high offense against the law of nutions. which no civil judge of any court could justify, to invade this sacred right of the em assador, but everybody knows that that is an exceptional case. Everybody knows that in all times and in all ages the judge was punish able who did not respect the person of an embassador. But that is not this case. That analogy will not help the 3rd section of this bill. It is openly avowed upon the floor of the Senate of the U.S., in the year of our Lord 1866, in the full blaze and light of the 19thcentury, that the indictment is to be a substitute for the writ of error, and it is justified because a judge ought to be in dicted who violates the sacred person of an embassador! What potency there must be in the recent amendment of the Constitution which has foisted the negro and set him upon the same platform as the envoy extraordinary and minister plenipotentiar of GreatBritain or of all the Itussias to the U.S.A., and made him as sacred as an embassador, and the judge who decides against him is to be punished as a criminal! I Mr. President, there are in the law facts as well as rules. No enactment in the world can make that a crime which in itself is not a crime. The Congress of the U.S., otent as, it is within the range of its delegate powers, the Parliament of England, omnipotent as it is, cannot make that a crime which is not a crime in itself; and to do so is only to convict itself of an absurdity which at some subsequent period, if it does not, it should regret. I ask whether we here are willing to put upon our statute book a provision of that kind I up peal to Senators of the reforming school, senators of the progressive school, Senators who declare that their course is forward and onward, will they do this thing? and for what?