eral Government undertook to see that the citizen of each State should have all the rights and privileges conceded to citizens of the several States; that is to say, a citizen of the United States in Germany, or France, or England, should receive the same protection that was granted to other foreigners in those countries, and the citizen of Massachusetts should be protected by the Federal Government in his rights when he went to Carolina in the same manner as the citizen of Carolina was protected by the laws of that State.

"This was the character of the Federal Government as originally formed. The personal rights of individuals were at the mercy of the State governments in the respective States. We all know that until 1808 the Constitution of the United States permitted the various States of the Union to bring persons from other countries into their borders and make them slaves. We know that, under the Constitution of the United States, previous to the war, every person of African descent born in certain States of the Union was a slave, deprived of all rights, and, in some, laws were passed reducing to slavery free persons of color. The Constitution in that respect has been changed by the thirteenth amendment, which declares that slavery shall no longer exist in the United States; and it is not competent now for any State to make a slave of any person within its jurisdiction, and the Federal Government is clothed with authority to prevent that being done.

"Under that authority, there was passed, shortly after its enactment, a law known as the civil rights act, which undertook to give effect to the thirteenth amendment and protect those who had been slaves in the same rights as were conceded to white citizens. The civil rights act did not undertake to protect those who had been slaves, nor whites, in particular rights; but it declared that the rights of the colored people should be the same as those conceded to the white people in certain respects, which were named in the act. The necessity for that legislation grew out of the laws in several of the then late slaveholding States, which denied to persons of color the ordinary and fundamental rights which were conceded to white citizens.

"Subsequently to the enactment of the civil rights act, the fourteenth constitutional amend ment was adopted. That amendment in its first clause is but a copy of the civil rights act, declaring that all persons born in the United States, and not subject to any foreign jurisdiction, are citizens of the United States. This had been previously declared by act of Congress, and it was so without any act of Congress. Every person born within the jurisdiction of a nation must be a citizen of that country. Such persons are called subjects of the Crown in Great Britain, in this country citizens of the United States. It is an entire mistake to suppose that there was no such

VOL. XI.-14 A

thing as an American citizen until the adoption of the fourteenth amendment to the Constitution of the United States. American citizenship existed from the moment that the Government of the United States was formed. The Constitution itself prohibits any person from sitting in this body who has not been nine years a citizen of the United States, not a citizen of a particular State. By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House; and, in order to be President of the United States, a person must be a native-born citizen. "It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born. That had been frequently decided in the United States. It has been acted upon by the executive department of the Government in protecting the rights of native-born persons of this country as citizens of the United States. It has been held in the judicial tribunals of the country that persons born in the United States were citizens of the United States.

"It was because of the idea which obtained before the adoption of the thirteenth amendment to the Constitution of the United States, that slaves were property and not persons, that it was thought proper to embody, in the civil rights bill, the declaration that all persons born in the United States were citizens. I did not think at that time that it was necessary. I recollect that I had a discussion on that very point with the then Senator from Maryland, Mr. Reverdy Johnson, as to the propriety of inserting in the civil rights act those words declaring that all persons born in the United States were citizens. We both agreed that after the abolition of slavery everybody born in and subject to the jurisdiction of the United States was a citizen of the United States; but we both thought that in consequence of the declaration which had been enunciated in the Dred Scott case, and also in order that there might be no cavil about it, it was better to declare it by law."

Mr. Edmunds, of Vermont: "That decision was flatly the other way, that they were not citizens, although free persons."

Mr. Trumbull, of Illinois: "Yes, sir, there is a decision, I think, that even free colored persons were not citizens. After the abolition of slavery and of the distinction in regard to colored persons, I do not think such a decision could have been maintained. It was advisable, at any rate, to put such an express declaration in the law. After that bill was passed it will be remembered that the President of the United States vetoed it, and one of the reasons that he gave for the veto was that Congress could not by law declare that these persons were citizens of the United States. I remem

ber very well the answer which I gave to that suggestion of the President, which was twofold: first, that it was competent to make persons citizens by statute; second, that the statute was but declaratory of what the law already was. I agreed that they were citizens. The President said in his veto message that, if that was true, the law was of no use, and, if it was not true, the law could not make them citizens; the answer to which was that the statute was declaratory of what the law was before, and numerous statutes were referred to to show that it had been the practice, almost from the origin of the Government, to make persons citizens of the United States by act of Congress. It had been done in reference to Indian tribes; it had been done in regard to Mexicans; and different classes of persons had been made citizens by act of Congress before, and the act was a proper one to settle the question.

"Then, when we came to the adoption of the fourteenth amendment, it was suggested by some persons that there might still be a cavil upon this question as to whether all persons born in the United States were citizens, and it was thought advisable, for the purpose of putting that question once and forever at rest, to insert the words which are in the fourteenth amendment, declaring that all persons born within the United States and subject to its jurisdiction were citizens of the United States. In my opinion, that has not changed at all the fact that, after the abolition of slavery, and after the authority of the States to deprive persons of liberty ceased, every person born in the United States was a citizen of the United States. I do not think there could have been any question that they were all citizens without the declaration in the civil rights act, or without the declaration in the fourteenth amendment. Who believes any court would ever have held that a person born in the United States was not a citizen, if slavery had never existed?"

Mr. Scott, of Pennsylvania, said: "I have felt interested in the statement which the Senator has made, but I wish, in view of the question which he suggests was made as to the necessity of incorporating this clause in the fourteenth amendment, to make a statement with reference to an opinion upon that point, which might have been held to have very considerable weight upon it, and as justifying the declaration in the fourteenth amendment.

"Very considerable attention was being directed in the year 1834 to the status of the free colored population in Pennsylvania, both under the Constitution of the United States and under the constitution of Pennsylvania, in view of the fact that the calling of a convention to reform the constitution was being agitated. At that time a pamphlet was published, by a member of the Pennsylvania bar, elaborately discussing the question, and arriving at the conclusion that the free colored man

was not a citizen of the United States, and that he was not a citizen of Pennsylvania. I have a copy of that pamphlet in my possession. It is a rare pamphlet. It was submitted to Chief-Justice Marshall, and he addressed to the author of the pamphlet a letter indorsing and approving the conclusions at which he arrived; so that there was eminent authority at least-it was not judicially delivered, but the opinion of an eminent judge-that the free colored man was not a citizen of the United States."

Mr. Edmunds, of Vermont: "That was the very point in the Dred Scott case, where the Supreme Court flatly decided so."

Mr. Trumbull, of Illinois: "That has been so decided judicially; but that grew out of this same system of slavery. The Senator from Pennsylvania will see at once to what straits those who maintained slavery were driven. If the colored man in Pennsylvania was a citizen of the United States, he had a right to go to Carolina, and there to enjoy all the rights and immunities of a citizen of Carolina, under the protection of the national Government; and that was inconsistent, as was insisted, with another provision of the Constitution, which authorized, or tolerated, holding the African race in slavery; and, therefore, taking the whole Constitution together, the advocates of slavery insisted that a colored man could not be a citizen anywhere; a very illogical and unjust conclusion, in my opinion, and never warranted either by reason or by the Constitution.

"But the Senator from Pennsylvania will see that the whole force of that argument was destroyed when the authority to hold anybody in slavery was taken away. Then there was no conflict between different portions of the Constitution to be reconciled, even in the view of those who had before insisted that slavery was sustained by that instrument, a position which I do not admit at all, and never did admit; but I do not wish to go into that. I think all that the Constitution of the United States ever did in regard to slavery was simply to tolerate its existence in the States which by their laws authorized it. I think, then, the reason of the decision originally made, that a colored person could not be a citizen, fell when slavery was abolished, and I can hardly conceive that the decision would have been repeated afterward.

"The amendment further declares that they are also citizens of the States in which they reside. That was judicially decided to be so before. A person who was a citizen of the United States and resided in one of the States was a citizen of that State before the adoption of the fourteenth amendment; and so it had been judicially decided.

"I come now, Mr. President, to those clauses of the fourteenth amendment which, it is supposed, have changed the Constitution as it was originally formed. The next is:

"The protection which the Government affords to American citizens under the Constitution as it was originally formed is precisely the protection it affords to American citizens under the Constitution as it now exists. The fourteenth amendment has not extended the rights and privileges of citizenship one iota. They are right where they always were. The citizen of the United States was to be defended as against foreign aggression, as against foreign nations, in all his rights of a national character, under the old Constitution. The fourteenth amendment has not defined what the privileges and immunities of citizenship are. Was not Martin Van Buren, or Zachary Taylor, or James K. Polk, just as much a citizen, and a native-born citizen, of the United States before the fourteenth amend ment as the Senator from Wisconsin is to-day since the adoption of the fourteenth amendment? They were citizens, and they were clothed with all the rights of American citizenship, and the Federal Government was bound to protect them in whatever immunity and privilege belonged to them as citizens of the nation; but that did not have reference to the protection of those persons in individual rights in their respective States, except so far as being citizens of one State entitled them to the privileges and immunities of citizens in every other."

Mr. Carpenter, of Wisconsin, said: "I understand him to maintain that a colored man born in Massachusetts, under the old Constitation, was a citizen of the United States." Mr. Trumbull: "That was my opinion, but not the opinion of others."

Mr. Carpenter: "I am trying your opinions, nobody else's. The Senator says the colored man born in Massachusetts was a citizen of the United States under the old Constitution. If he moved from Massachusetts into South Carolina, he did not carry with him the rights of citizenship of the State of Massachusetts, and the Constitution in South Carolina only

protected him in the rights which belonged to a colored citizen of that State. If these rights which we are now speaking of are the rights of an American citizen, apart from the citizenship of the State, and they were protected by, the old Constitution, then, whatever those privileges and immunities were, they would have been the same in South Carolina as they were in Massachusetts; and yet we all know that every privilege that can be assigned to a man-the right to be a party in court, the right to be a witness-all those privileges which are personal, and which pertain to every free man everywhere, were denied to that citizen_just as soon as he got into South Carolina, and the Constitution of the United States did not reach him, and did not profess to reach him. It simply said to South Carolina, 'You shall give this colored man coming from Massachusetts just as much right as you give the colored men of South Carolina.' The Constitution now says to South Carolina, 'You shall no longer enforce a law that abridges the privileges of any citizen.""

Mr. Trumbull, of Illinois, said: "The Senator is entirely mistaken. This Constitution says no such thing as that a State shall not abridge the privileges of any citizen. It speaks of citizens of the United States, and you have not advanced one step in the argument unless you can define what the privileges and immunities of citizens of the United States are. If the Senator from Wisconsin had honored me with his attention when I commenced, he would have observed that I stated at the commencement that this national Government was not formed for the purpose of protecting the individual in his rights of person and of property."

Mr. Carpenter: "That is what I understand to be the very change wrought by the fourteenth amendment. It is now put in that aspect, and does protect them."

Mr. Trumbull: "Then it would be an annihilation entirely of the States. Such is not the fourteenth amendment. The States were, and are now, the depositaries of the rights of the individual against encroachment."

Mr. Carpenter: And that Constitution forbids them to deny them, and authorizes Congress to legislate so as to carry that prohibition into execution."

Mr. Trumbull: "If the Constitution had said that the privileges and immunities of citizens of the United States embraced all the rights of person and property belonging to an individual, then the Senator would be right; but it says no such thing. In my judgment, the fourteenth amendment has not changed an iota of the Constitution, as it was originally framed, in that respect. I take the Senator's case of the colored man in Massachusetts. That colored man in Massachusetts before the fourteenth amendment was adopted, in my judgment, was a citizen of the United States as well as a citizen of Massachusetts. That

Mr. Trumbull: "Mr. President, I am not specially upon the question of remedies at this moment, as to how the United States should afford the remedy; but let me say to the Senator from Wisconsin that the authority of the United States was just as positive under the Constitution, as originally framed, as it is under the fourteenth amendment. What says the Constitution of the United States? says-this is the original ConstitutionNo State shall pass any ex post facto law, or law impairing the obligation of contracts.

It

"That is what the Constitution said. What else did it say?

The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

"What was vested in the Government of the United States? The power to carry out the clause declaring that no State should pass a law impairing the obligation of contracts. This was a power conceded by the people to the Government of the United States when they made it, and with that concession went along the power to make all laws necessary and proper to carry it into effect."

Mr. Carpenter: "As I now understand his construction of the old Constitution, the authority conferred on Congress to pass laws to execute the powers conferred on the Government included the power to pass laws which should prevent the States from doing the things which they were prohibited from doing by the Constitution. With that admission, I do not think the fourteenth article, or any article, could add any thing to the old Constitution. But I never heard of that construction before; and, while I am not ready to make an affidavit that it is sound, it is satisfactory for all the purposes of this bill.'

Mr. Trumbull: "Mr. President, as I have once or twice said to the Senator from Wisconsin, I am not upon the remedies. The Government of the United States did provide, in 1789, by a law, to give effect to that very clause of the Constitution, and the Senator knows it."

Mr. Edmunds, of Vermont, said: "I have no doubt my friend from Illinois wishes to get at the real point in this matter. Let me suggest to him whether the true construction of the clause he has read as to the power of passing laws to carry into effect the powers herein

granted, and also the powers granted to any department of the Government, would not oblige us to come to the conclusion that all the powers that the Constitution granted to Congress, Congress might carry out by legislation; all the powers that the Constitution granted to the judiciary to protect private rights (which was the case as against laws impairing the obligation of contracts), Congress might pass laws in aid of through the judiciary. So, too, it might be provided, as Congress did provide by the act to which my friend has referred, that if any man had the obligation of his contract impaired by State legislation he might have redress through the judiciary, either of the State in the first instance or of the United States in the first instance, as it might have been. But when you come to the other class of powers, which are granted powers to Congress, there you stand upon a different ground. If that is a just distinction, then let me submit to my friend whether this amendment does not make a wise advance in favor of the protection of private rights by affirmative legislation by Congress where those private rights are guaranteed by the Constitution, and that in connection with it Congress is authorized by the same Constitution to carry them into effect by affirmative law."

Mr. Trumbull: "Mr. President, in my judgment the Congress of the United States has authority to carry into effect the powers conferred upon the Government of the United States by affirmative law. What is it but affirmative law? Was not the act of 1789 an affirmative law?"

Mr. Edmunds: "Certainly, in aid of the judiciary. But in the old case, in the case of the obligation of contracts, could it have been done in any other way? That is my point."

Mr. Trumbull: "Perhaps it could have been done in no other way, properly, in the first instance; but suppose a case such as is supposed in this bill; suppose, under the Constitution as it originally stood, a conspiracy, a combination, had been formed to prevent the Senator from Wisconsin taking a case from the Supreme Court of Wisconsin to the Supreme Court of the United States, which involved the question of impairing the obligation of a contract by a law of Wisconsin. Suppose that conspiracy had been so formidable as to prevent the clerk of the court from certifying the record, and the Senator from Wisconsin from appearing as counsel, does the Senator from Vermont mean to say that the Government of the United States might not have passed a law for putting down that conspiracy in some other way than by means of the court? Could we not have done more? But that is a question of detail."

Mr. Edmunds: "If my friend asks me a question, I will answer it now or at any other time. I agree with him most perfectly that would have been the common case of provid