Mr. DAVIS. Mr. President, I hold that there is no legitimate power to pass any law connected with the subject of this bill, except what is contained in the clause of the constitution which declares that“ the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” If there is any broader or other power vested in Congress to pass the measure under consideration, or an cognate measure, I would thank the able an learned Senfrom Illinois to point it out to the Senate. Hold in that, then to be the sole and exclusive power tIiat is vested in Congress over the subjectmatter of this bill, I will proceed to make some remarks upon the amendment and upon the bill. What does the amendment propose to do? It recites almost literally, certainly substantially, the clause of the constitution declaring that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. An act of Congress that is not declaratory in its character, but is intended to execute and give effect to that clause of the constitution, is every law and contains every provision in relation to the subject that can be properly comprehended in a law of Congress. then by my amendment propose to embody this provision of the constitution in the law, and to declare that the rights secured by this provision of the constitution shall be made good to each citizen of the U.S. by legislative enactment, and by an enactment having the sanction of the same penalty which the honorable Senfrom Illinois has proposed to attach to his bill. Mr. President7 since last evening I have been looking into the bill that is now under consideration, and the more I study it and the better understand it, according to my feeble reason, the more offensive it is to me, and in my opinion the more vulnerable it is to objections growing out of the constitution, and to objection on the ground of injustice and impolicy generally. Before I proceed further the nature of the subject matter of my amendment requires me to make a general remark in relation to the theory and principle of our Government. The General Government is only investedwith power over such matters as concern the relations between the U.S and foreign countries, amon" the States themselves, and between the U.S and the Indian tribes. All other matters of Government, as a general rule and a general principle, are reserve to the States respective y or the people, and the General Government, by any of its Depts, has no jurisdiction over those other subjects. One of the articles of amendment to the constitution adopted soon after the organization of the Government explicitly states this principle in express language; but the Supreme ourt have said, and in my judgment most truly, that that article reserving to the States the powers not delegated need not have been introdiiiced; that the constitution from its very nature and its principles, would have meant the same without that article that it does with it; but to prevent any doubt upon the point, and to place it be yond all controversy, the constitution expressly says that “the powers not delegated to the U.S. by the constitution, nor pprohibited by it to the States, are reserved to the States respectively, or to the people.” If there ever was a principle of government that was in conflict With a proposed bill, this principle is in conflict with the bill under consideration. The ingenuity of man could not frame a bill that would be more generally and more fiagitiously in conflict with the 2 clauses of the constitution which I have just read. Every power of legislation and of government that is not dele gated by the constitution to the General Government is reserved to the States respectively or to the people. In other words, the Genera Government and consequently the Congress ot the U.S., has no jurisdiction over any subjects except those that are delegated by the constitution to the General Government. The honorable Senfrom Illinois, I presume, will not controvert this principle; but I can hardly say that, for I do not know now what he would not controvert. He seems to be one of the progressives. This is a moving age, and the tendency to encroach upon the constitution, the tendency to despotism and consolidation, is moving on, and the bill now under consideration, and its Siamese twin that we passed last week, give about as much impetus in that direction as any 2 measures that have ever been before Congress. Now, Mr. President, what is the power that is vested in Congress on the subject of this bill? “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several totes.” If the Senate would act legitimately upon this subject, its action must be confined to such matters as concern the citizens of different States. LthashopowcnumammuoaotiHelation to the matters of “ matters concefn themiizeulofla single smw. Let me illustrate this, if I can, by the subject that is the main subject of this Hill, the rec negro. There are, let me say for arguments sake, 200,000 free negroes in the State of Kentucky that were born there that have never been residents of any other State. The honorable Senator proposes to make these 200,000 negroes and every free negro in America, whether he has ever been out of the State in which he was born and in which he resides, or not, the subject of this bill. It is not competent for the Senate to pass a bill embracing such classes of our population. The clause of the constitution which I have read does not refer to people in their condition. It refers to the citizens of each State being entitled to all privileges and immunities of citizens in the several States. When does this principle of the constitution aply? Under what state of facts doesit arise? o what state of facts can it be made applicable? Only when a citizen of one State goes into another State, either to change his residence to that other State, or to acquire property there, or to exercise some other right or privilege which a citizen of that other State is entitl to in that State. I do not know that i make myself understood by the honorable chairman. I will endeavor, though to do so. He proposes now to apply his bilI to every citizen of the U.S., without rerd to color, where that citizen is domiciled in the State in which he was born, and when he has no purpose to leave and is not in the act of leaving that State to go into an other; and that is intended to be the great form in which this bill is to have all of its application. Now, I say that the bill constitution ally can have no such application. I agree that if the negro is a citizen he is to be treated exactly as a white citizen except so far as, if to any extent, there be exceptions to his prejudice and in favor of the white citizen by the express language of the constitution. I made the issue with 1 the hoaorable Senator the other day, which I still maintain, that a negro is not a citizen; “ true that a negro said fizmlcuncedm that he is entitled to every right, by every privilege, and every immunity that “a white citizen is entitled under ilhe ntioy position is, that ifa white man was claiming the benefit of this provision of the constitution, and he was a resident of the State of Maine or of the State of Kentucky, remaining there, not going into another State for the purpose of changing his residence or to claim any immunity or privilege of a citizen in another State, under the constitution, we could not embrace him by any act which we could pass in virtue of this provision of the constitution. Certainly, by a legal mind as astute and as learned as that of my friendfrom Name [Mr. MonniLL] that proposition cannot be doubted: Now, sir, throw myself back upon the original, primary, general principle of the division of the powers of the Government which I stated at the commencement of my remarks this morning, namcl, that in relation to the citizens of a State an to all questions and matters that arise within a State and that do not relate to acts, privileges, and immunities that lie between 2 totes. but that are entirely local to a particular State, jurisdictidn was expressly reserved by the States to themselves and withheld from and denied to the General Government. I suppose that no sound lawyer, whose mind is free from prejudice and as not been infected by the fanat icism and the wild dreams of liberty and of philanthropy that have spruu up in this day and generation, would doubt at principle. What, then, does this bill propose to do? It proposes to go into Kentuc, and to regulate the free negro of that State whowas born there, who has lived there always, whose business and interests are entirely local to that State. Where is the clause in the constitution that authorizes Congress to interpose by its legislative powers, and to seize from the State of Kentucky her exclusive right to control the negro that population I have thus described, and all their transactions and all their intereststo draw this local subject reserved by the States to themselves in the constitution, to the legislative powers of Congress? Sir, the authorities which were the other day read and relied upon by the honorable Senfrom Illinois overthrow his premises; they contravene his principles and all the conclusions which he draws from them. They expressly and eXplicitly sustain the view which 1 am now taking of the subject. Let me turn to those authorities and read a few passages from them. 1st, let me read from the case of Campbellvs. Morris, in 3 Harris & the henrys Reports. In that case Mr. Justice Chase said: "By the 2ndsection of the 4th article of the constitution of the U.S. the citizens of each State shall be entitled to all thogrivileges and immu nities of citizens of the several States. "Privilege and immunity are synonymous, or nearly so. privilege signifies a peculiar advantage. exemption. immunity immunity signifies exemption privilege. "Tiie peculiar advantages and exemptions contemplated under this part oftho constitution may be as certained. if not with precision and accuracy, yet satisfactorily. taking a retrospective view of our situation antecedent to the formation of the 1st General Government, or the Confederation, in which the some clause is inserted verbatim, one of the great objects must occur to every person, which was the enabling the citizens of the several States to secure and be] real property in anyof the States, and ceined necessary, as each State was a soveriegn, independent State, an the States had confederate onlyfor the purposes of general defense and security and to promote the general welfare. It seems screed from the manner of expounding or defining the words immnuities and privileges by the oounsol on both sides. that a particular and limited operation is to be given to these words and not a full and comprehensive one. It is agreedit does not mean the right ot election. thp right of holding odices. the right of being elect d and in this respect the decision was somewhat with the great authority of my honorable friendfrom Maryland: “The court areof opinion it means thst the citizens of all the States shall have the peculiar advantage of acquiring and holding real as well as personal property and that such property shall he protects (praonpd secured by the laws of the State in the same manner as the property of the citizens of the State is protected. It means sneh property shall not be liableto any taxes or burdens which the property of the citizen is not an cct to. It may also mcaii. that as creditors. they sha l he on the same footing with the Statecrediton in the payment of the debts of a deceased debtor. It securesand protects personal rights.” These principles are all correctly laid down, accordin my judgment. I agree with the Maryland Judge in relation to these premises. He further says:. “The way to expound a clause in the General Government or Constitution of the U.S. is by comparing it with other parts and considering them together; and to lay ll foundation for a right expositionin the present case. it will be proper to suggesta few plain principles. "1. That Congress can exercise no power as a legislative bod but whnt is vestedin them by the Constitution: it being under and by virtue of that instrument alone they derive their powers.” The Supreme Court also consider Congress as possessin those powers which arise from the constitution by necessary implication; but this decismn goes on: “2. All power jurisdietlon and rights of sovererignty in. uonti sghrcadn. Tareby sttihller people ed by btyhatthienmstrinum the several tales and in their respective State Legislatures n. according to oflatwhesiirnfotrhmes State osviser contemplated by the General Government only in 2 cases, on the subject of bankruptcies and naturalization. The legislative powersof Congress are particularly defined in the 8th section of the 1st article. "Those powersdo not interfere with or abridgethe power of the States to make local regulations. the operationof which is confinedto the State.” There is the great principle to which I wish to invite the attention of the honorable Senfrom Illinois, and of gentlemen upon this floor who advocate and intend to vote for this bill. This authority is express that congress has no powers except what are conferred y the constitution; that. outside of the powers conferred by the constitution, Congress can exercise no legislative authority whatever; that the legislative powers of Congress are particularly defined iu the 8th section of the 1st article of the constitution, and those powers this court say expressly “ do not interfere with or abridge the power of the States to make local regulations the operation of which is confined to the State ” The power of the State of Kentucky to legislkte for herown tfree negroes, in relation to all their rights. priVileges, and immunities, in relation to all their property, so far as those laws are to apply locally to that State and operate within that State. according to the authority relied upon by the honorable Senfrom Illinois himself, is a power that belongs exclusively to the Slate, and Congress has no authority to grasp it as a subject of congressional legislation. That is in obedience to the great principle by which the powers of the State governments an those of the General Govern inciitare scparated. It is in conformity to and in strict harmony Wllll the great principle that Congress has no power to regulate any concerns in the States except those that relate to 2 or more States; that within a single State, all subjects of legislation, all persons that are subject to legislation, and all theirrights privileges, and immunities, so far as these are limited and restricted to the State and the laws, are to Operate within the State, belong to the State exclusively. This opinion further says: “The restrictive clausesin the 10th sooth of the lI L 1 1st article. limiting the powersof theStates. Are confined tocertain enumeratedeases. noncof which comprehend the subject under consideration: the power of ltlilllailng processior the more effectual recovery of do is.” hat reasoning establishes another principle, that when a matter is enumerated specie. l; when a power is conferred by express we I, and that power is vested in a particular magis tracy, no other power can be claimed, and no other magistracy than the one named can exercise that power within the constitution. Now let me read a few sentences from the decision of Chief Justice Parker in the case in 6 Pickering, to which the honorable Senator referred. There is a clot of debate and of doubt between his opinion and those of his as sociate judges; and it is whether after a citizen of one State has moved to another State, and become a resident of that other State, he can claim any right whatever under the clause of the constitution which gives to the citizens of one State the privileges and immunities of citizens in the several States. ChiefJustice Par ker seems to think that this right attaches and can only be claimed and exercised when the citizen has moved from one State to another. The 2 other judges, in rendering their opinions, treat it differently, and, in my poor judgment, treat it correctly. Theyhold that where a citizen of one State has removed to another to reside there, he ceases to be the subject of the provision of the constitution which I have rea in relation to the rights of a citizen in another State. It is only when he goes there as a visitor, when he goes there to (purchase property, when he goes to the 2nd State for purposes of temporary residence, or to do any act which the citizen of one State may lawfully and constitution ally claim to do in another State it is only whi e be occupies that predicament and that condition thathe places himself within the pale of this constitutional provision. So Judge Chase, of Maryland, adjudged, as I understand his opinion; and so did Mr. Justice Washington in the opinion which is reported in his Circuit Court Reports; but Mr. Chief Justice Parker seems to treat the matter differently; and I will read from his decision so much as bears upon this paint: "Before the adoption of the national constitution if a husband of Massachusetts desertedhis wife and removedinto another State. making noprovision for her and forbidding her to follow him assuming a new marriagerelation defacto in his adopted State, the wife remaining here working for her support, he exercisingall the rights of a citizen of the other State and never intending to return. would not this amount to an BbjlllBUODof his native State. so that his wife might have the privileges and be liable to the burdensof afpmerole here? We think it would. Doesthen the Union of the States or the provision in the constitution referred to. makeaditTerence? The jurisdictions of the Several States as such. aredistinct, and in most respects foreign. The constitution of the U.S. makes the peopleof the U.S. suhicctsof one Governmentwood everything within the national power and jurisdiction. but leavesthem subjectsof separateand distinct governments.” As to everything not within the Federal jurisdiction the States are considered as so mate and foreign governments. That is an inequitable principle of our system, and it is here recognized distinctly by Chief Justice Parker; and he goes on to say: "The privileges pnd immunities securedto the people of each State in evsryother State, can be up lied only in caseof removal from one Stateinto not or.” In that position I think the learned judge was in error, but I may be mistaken. “By such removal they become citizens of the adopted State without naturalization. I admit that they have a right to go there and become residents there. That is a right which a pertains to them as citizens of the State from whence they removed; but when they have moved and changed their residence the have exhausted all the rights that they are entitled to under the provision which I have read from the constitution, and they become subject to the some laws and the same rules of legislation that the citizens of the State to which ey have removed are subject. The learned judge says: “Bysuch removal they beeome citizens of the adopted State without naturalization, and have a right to sac and be sued as citizens; and yet this privilege is qualiffed and not absolute, for they cannot enjoy the rightof suffrage. ur of eligibility to office. without such term of residenceas shall be prescribed by the constitution and laws of the State into which they shall remove. They shall have the privileges and immunities of citizens. that is. they shall not e deemed aliensabut may take and hold real estate and may. according to the laws of such State. eventually enjoy tbheeinfgulnl artiguhratslisoefde. Citizenship without the necessity of Iaccord to the positions which are here stated; but I go further and I say that the rights which may be claimed by a citizen of one State in another State take effect and apply to the citizen practically before he has removed his residence into the other State, and they apply for some purposes after that. removal has taken place. The constitutional provision referred to is necessarily limited and unlified. for it cannot be pretended that a citizen of RhdIsland. Coming into this State to live is im, ado entitled to the full privileges of a citizen, if any term of residence is liminary prescribed as preto the exercise of political or municipal rights. The scvernl States. then. remain sovereign to some purposes and foreign to each other. as before the a option of the constitution of the U. S and especially in regard to the administration OIJHS ticc and in the regulation of property and estates, the laws of marriage and divorce and the protectiop of the personsoft osewho live under their jurisdiction. No process can go from one State into another nor can the citizen ofone State he made amenableto the lawspf another, unless he comeWithin its Jurisdiction What principles are here laid down? That for all purposes of government except those vested in the Government of the U.S. by the constitution expressly, the States occupy th position and relationship of foreign Govern m ts; each State legislates for itself as distinctly as aforeign Government would legislate, and is no more bound by the legislation of congress in relation to the matters herein enumer ated than would be the Govarnment of England or of France or of any foreign country. Let me read again from this decision: “The several Statesthen remain sovereignto some purposesandforeignto eachother as before the adoption of the constitution of the U.S and especiallyin regard to the administration of justicc, and in theregulation of property and estates, the laws of ninrrie and divorce and the protection of the persons o thosewho live under their jurisdiction.” Here is the authority relied n n by the honorable Senfrom Illinois imself, which expressly and triumphantly overturns the position which he assumes in his bill. In this bill be proposes to legislate by Congress for the resident negro in Kentucky, born there, who has always lived there, and who intends to remain there for his lifetime, and for every nc proin America. This authority holds that the States are sovereign, “especially in regard to the administration of justice, and in the regulation of property and estates, the laws of mamage and divorce and the protection of the persons of these who live under their jurisdiction.” This authority expressly lays it down that all these subjects are the distinctive and exclusive subjects of State legislation; that over them the authority, the jurisdiction of the respective States is as though the States were foreign countries. It occurred to me from the manner in which the honorable Senator was scrapping these opinions, thatbe was not reading the whole of them, that he was not reading enough of them to give the Senate a full and Just conception of the principles decided hy them: and when they are referred to, my suspicion is abundantly confirmed, is clearly established; for, on eviscerating the o iuions and seeing the principles that are decidedin them, I find that they are not onlyiu conflictwith, but that they expressly overturn all the provisions of the honorable Senators bill, even upon the principle that the negro is a citizen, so far as the bill is intended to op erate upon the local inhabitants of Kentucky, or of any other State. Now, sir, turn your guns ii on on, and I am endeavoring to make them t unerin your frail works, and it requires but one or 2 shotsto utterly demolish them; and here is a shot that does utterly demolish th"em: TheseveialStates, then. remainsovereignto some purposes and foreign to each other, as before the adoption of the constitution of the U. S and especially in regard". Especially do they remain foreign to each other and to the General Government Just as they were before the adoption of the Constitution of the U.S., says the learned judge “In regard to the administration of jnsticc and in the regulation of property and estates. the laws of marriage and divorce and the protection of the per, sonsof those who live under their iurisdiction.” 124.” 1866. 597 Will the honorable Senator when he comes to respond, if he deigns to iepl I do not care whether he does or nottell the Senate from whence he derives the power to apply this bill to a free negro or a white local resident citizen of Kentucky, who is not going into another State, who has no business transactions in another State, who does not propose to go into another State at all? In relation to the administration of justice to such people, in the regulation of the property and estates of such people, in the laws of marriage and divorce as applicable to such cople, and in the protection of the persons of those people who live entirely and exclusively within the jurisdiction of Kentucky and the other States, where is the authority derived by which Congress claims the right to legislate in respect to them as people, Without any regard to their relationship, personal or business, with any other State? I have got the other decision to which the honorable Senator referred before me, but I will not read from it except to quote the extract which the honorable gentleman embodied in his speech and upon which be relied, and it is just as hostile to his positionand his bills as the 2 from which I have read. " But, sir, ” says the honorable gentleman “The decision most elaborate u ii this olanscof the constitution is the be found ip ashingtonsCir ouit Ccurt Report. sin. a casewhich was reserved for consideration after argument. I will read several sentences from the opinion of the circuit judge. be causci t Will beseenthath e enumerates the very rights belonging to a citizen of the U.S. which are set forth in the 1st sectionof this bill.” Yes, he does, but to whom does he attach them? Who does he say are entitled to these rights? The citizens of the other State, aifd not the citizen of the State who has been born in and has been local to his State all the time. Let me read what the honorable Senator has extracted from Judge Washingtons decision: “The next question is. whetherthis act infrin as that section of the constitution which declares that the citizens of each State shall be entitled to all privileges and immunities of citizens in the severaL The inquiry is. what are the privileges and immunities of citizens in the sovera States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature undamentul;which belong of right to the citizensof all free governments; and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free. independent and sovereign. What these fundamental priuciples are it would perhapsbe more tedious than difficult to enumerate. They may however be all comprehended under the following General bends: protection by the Government: the enjoyment of life and liberty. with the right to acquire and possess property of every kind; and to pursue and obtain happiness and safety. subject, nevertheless, to such restraints as the Government mn justly prescribe for the general good of the whole or ig tofaciti son of one State to pass through or to reside in any other Slate. for purposes of trade, agriculture. professional pursuits, or otherwisc: to claim the benefit of the writ of habeuscorpus; to institute and maintain actions nfa n vkind in the courts of the State to take. hold and disposeof property. either real or personal: and an excrulptiou from higher taxes or impositions than are paid by the other citizens of the State. may be mentioned as some of the particular privileges and immunities of citizens. which are clearly embraced by the fundamental description of privileges deemed to be to which many be added the elective franchise. as regulated and established by the laws or constitution of the State in which it is to be exercised. ”Corfield vs. Curve”, 4 Walhington Circuit Court Reporla. page380. In relation to the other rights, except the right to vote, which this judge says only at taclies when the party removing from one State into another has become acitizen of the 2nd State and has conformed to all the laws regulating the right to vote in that State, what description of persons does he a ply then to I Who does he say are entitled to t cse other rights? “The right of a citizen of one State to pass through or to residein any other State, for purposes of trade. agriculture professional pursuits, or otherwise; to claim the encfit of the writ of Italianson iu; to institute and maintain notions of any kind in the courts of the State to tuke. hold and dispose of property. either realor personal: and an exemption from higher taxes or imposntions than are paid by the other citizens of the State may be mentioned as some of the particular privileges and immunities of citizens, which it reclear y embraced by the Generaldescription of priVileges deemed to be fundamental: to which may be added the elective franchisees regulated and establisligd by the laws or constitution of theStatein which it is to be exercised.” All these rights and privileges are attributed by the decision of the court to the citizens of one State going into another State. If Senators will examine this opinion, they will find that every doctrine laid down by it, and every right and privilege of the citizen that it establishes under the clause of the constitution which I have read, appertains to a citizen residing in his own State and claiming these immunities or privileges in another State, or they attach to a citizen of one State who has removed into the other State and changed his relationship. The opinions relie on by the honorable senator do not establish any other proposition. On the contrary, they notive almost in positive termsthey do, as satisfactorily as though the language they used was ever so positive, lieg ative the idea that a citizen, black or white, of a State, born in that State, having no business, no transactions in another State, not having gone into another State to change his place of residence, but still living and residing in the State where he was born, is or can become the subject of congressional legislation under this provision of the constitution. such a citizen is not in a condition, not in a predicament, to claim the advantage of this provision of the constitution. Mr. President, I then come to the conclusion, adI think that it is legitimately reached, it is reached in virtue of the gentlemans authorities, that his bill, so far as it legislates upon the person or property of white citizens or negroes who have always lived in one State, and who have no business and no transactions and claim no rights and no immunities in another State, is flagrantly unconstitutional and void. There is one other feature of the bill upon which I shall say a word. I was surprised and astonished to hear the honorable Senfrom Maryland [Mr. Jonxsos] announce that allnegroes born in the U.S. were citizens, an that Congress might pass an act declaring them to be citizens, and that they would thereby be entitled to the right of suffrage.