Chapter 11

“for political offences to those who once held us in bondage, will furnish, as I believe, the only sound basis of reconstruction and reconciliation for the South.”

Now my friend will not understand that I exaggerate this letter. I do not adduce it as authority, but simply as testimony, showing what an intelligent colored fellow-citizen thinks with regard to his rights on two important points much debated: first, as to the necessity of remedy through the National Government; and, secondly, as to the importance of uniting this assurance of Equal Rights with Amnesty, so that the two shall go together.

Before coming directly to the authority on which my friend is so anxious, I call attention to another communication, from the President of the Georgia Civil Rights Association, which I think should be read to the Senate. It is addressed to me officially; and if I do not read it, the Senate will not have the benefit of it. There is no Senator from Georgia to speak for the Civil Rights Association. I shall let them speak by their President, Captain Edwin Belcher:—

“I realize more and more, every day, the necessity of such a measure of justice as your ‘Supplementary Bill.’ When that becomes a law, the freedom of my race will then be complete.”

I call attention to that point. This writer regards the pending measure essential to complete the Abolition of Slavery; and I hope you will not forget this judgment, because it will be important at a later moment in vindicating the constitutional power of Congress. “When that becomes a law, the freedom of my race will then be complete,”—not before, not till then, not till the passage of the Supplementary Civil Rights Bill. Down to that time Slavery still exists. Such, Sir, is the statement of a man once a slave, and who knows whereof he speaks; nor can it be doubted that he is right.

After reading the letter at length, Mr. Sumner proceeded:—

This instructive letter is full of wise warnings, to which we cannot be indifferent. It is testimony, but it is also argument.

The necessity of this measure appears not only from Georgia, but even from Pennsylvania. I have in my hands an article by Richard T. Greener, the principal of the Colored Institute at Philadelphia, where he vindicates the pending bill. I read a brief passage, and simply in reply to the Senator from Maine, on the necessity of Congressional action. Mr. Greener is no unworthy representative of his race. He knows well how to vindicate their rights. Here is what he says:—

“Not three weeks ago, the Committee which waited on the President from this city, in behalf of Mr. Sumner’s bill, were refused accommodations at the dépôt restaurant in Washington, and only succeeded in being entertained by insisting upon just treatment. It has scarcely been three months since the secretary of the American legation at Port-au-Prince, Rev. J. Theodore Holly, with his wife and three children, was refused a state-room on the steamer running between New Haven and New York city.”

Then he shows the necessity:—

“Should Minister Bassett himself, indorsed by the Union League, return home and arrive late at night, there are probably not two hotels, such as a gentleman of his station would wish to stop at, where he could be accommodated,—not a theatre or place of amusement which he could visit without insult or degrading restrictions,—not a church, except it be a Quaker or Catholic one, where he would not be shown into the gallery, or else be made to feel uncomfortable: so outrageous are the current American ideas of common hospitality and refinement; so vindictive is this persecution of a humble class of your fellow-citizens.”

Lastly he vindicates the pending measure, and asks for a two-thirds vote:—

“The Supplementary Bill ought to pass by a two-thirds vote. If it passes by a simple majority, we shall, of course, be satisfied, and understand the reason why. If Republican Senators, elected by colored votes, give their influence and votes against this measure, it might be well for them to remember that Negroes, along with instinct, have ‘terrible memories.’”

And now, Sir, after these brief illustrations, where our colored fellow-citizens have spoken for themselves, showing the necessity of legislation by the Nation, because only through the Nation can the remedy be applied, I come to the precise argument of the Senator. He asks for the power. Why, Sir, the National Constitution is bountiful of power; it is overrunning with power. Not in one place or two places or three places, but almost everywhere, from the Preamble to the last line of the latest Amendment; in the original text and in all our recent additions, again and again. Still further, in that great rule of interpretation conquered at Appomattox, which, far beyond the surrender of Lee, was of infinite value to this Republic. I say a new rule of interpretation for the National Constitution, according to which, in every clause and every line and every word, it is to be interpreted uniformly and thoroughly for human rights. Before the Rebellion the rule was precisely opposite. The Constitution was interpreted always, in every clause and line and word, for Human Slavery. Thank God, it is all changed now! There is another rule, and the National Constitution, from beginning to end, speaks always for the Rights of Man. That, Sir, is the new rule. That, Sir, is the great victory of the war; for in that are consummated all the victories of many bloody fields,—not one victory, or two, but the whole,—gleaming in those principles of Liberty and Equality which are now the pivot jewels of the Constitution.

My excellent friend from Maine takes no notice of all this. He goes back for his rule to those unhappy days before the war. He makes the system of interpretation, born of Slavery, his melancholy guide. With such Mentor, how can he arrive at any conclusion other than alien to Human Rights? He questions everything, denies everything. He finds no power for anything, unless distinctly written in positive and precise words. He cannot read between the lines; he cannot apply a generous principle which will coördinate everything there in harmony with the Declaration of Independence.

When I refer to the Declaration, I know well how such an allusion is too often received on this floor. I have lived through a period of history, and do not forget that I here heard our great title-deed arraigned as “a self-evident lie.” There are Senators now, who, while hesitating to adopt that vulgar extravagance of dissent, are willing to trifle with it as a rule of interpretation. I am not frightened. Sir, I insist that the National Constitution must be interpreted by the National Declaration. I insist that the Declaration is of equal and coördinate authority with the Constitution itself. I know, Sir, the ground on which I stand. I need no volume of law, no dog-eared page, no cases to sustain me. Every lawyer is familiar with the fundamental beginning of the British Constitution in Magna Charta. But what is Magna Charta? Simple concessions wrung by barons of England from an unwilling monarch; not an Act of Parliament, nothing constitutional in our sense of the term; simply a declaration of rights: and such was the Declaration of Independence. And now, Sir, I am prepared to insist, that, whenever you are considering the Constitution, so far as it concerns human rights, you must bring it always to that great standard; the two must go together; and the Constitution can never be interpreted in any way inconsistent with the Declaration. Show me any words in the Constitution applicable to human rights, and I invoke at once the great truths of the Declaration as the absolute guide to their meaning. Is it a question of power? Then must every word in the Constitution be interpreted so that Liberty and Equality shall not fail.

My excellent friend from Maine takes no notice of this. He goes back to days when the Declaration was denounced as “a self-evident lie,” and the Constitution was interpreted always in the interest of Slavery. Sir, I object to this rule. I protest against it with all my mind and heart and soul. I insist that just the opposite must prevail, and I start with this assumption. I shall not make a long argument, for the case does not require it. I desire to be brief. You know the Amendment:—

“Section 1.Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.“Section 2.Congress shall have power to enforce this article by appropriate legislation.”

“Section 2.Congress shall have power to enforce this article by appropriate legislation.”

Here is an Amendment abolishing Slavery. Does it abolish Slavery half, three-quarters, or wholly? Here I know no half, no three-quarters; I know nothing but the whole. And I say the article abolishes Slavery entirely, everywhere throughout this land,—root and branch,—in the general and the particular,—in length and breadth, and then in every detail. Am I wrong? Any other interpretation dwarfs the great Amendment, and permits Slavery still to linger among us in some of its insufferable pretensions. Sir, I insist upon thorough work. When I voted for that article, I meant what it said,—that Slavery should cease absolutely, entirely, and completely. But, Sir, Congress has already given its testimony to the true meaning of the article. Shortly after its adoption, it passed what is known as the Civil Rights Law, by which the courts of justice throughout the country, State as well as National, are opened tocolored persons, who are authorized not only to sue and be sued, but also to testify,—an important right most cruelly denied, even in many of the Northern States, making the intervention of the Nation necessary, precisely as it is necessary now. That law was passed by both Houses of Congress, vetoed by the President, and passed then by a two-thirds vote over the veto of the President, and all in pursuance of these words:—

“Congress shall have power to enforce this article by appropriate legislation.”

Remark, if you please, the energy of that expression; I have often had occasion to call attention to it. It is a departure from the old language of the Constitution:—

“The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

It is stronger,—more energetic:—

“Congress shall have power toenforce”—

Mark, Sir, the vitality of the word—

“toenforcethis article by appropriate legislation.”

The whole field of apt legislation is open to be employed by Congress in enforcing Abolition. Congress entered upon that field and passed the original Civil Rights Act. And who among us now, unless one of my friends on the other side of the Chamber, questions the constitutionality of that Act? Does any one? Does any one doubt it? Does any one throw any suspicion upon it? Would any one have it dropped from the statute-book on any ground of doubt or hesitation? If there is any Senator in this category, I know him not. I really should like to have him declare himself. I will cheerfully yield the floor to any one willing to declare his doubts of the constitutionality of the Civil Rights Act. [After waiting a sufficient time.] Sir, there is no Senator who doubts it.

Now, how can any Senator, recognizing the constitutionality of the original Civil Rights Act, doubt the present supplementary measure? Each stands on the same bottom. If you doubt one, you must doubt the other. If you rally against that Amendment, your next move should be to repeal the existing Civil Rights Act as inconsistent with the Constitution. Why does not my excellent friend from Maine bring forward his bill? Why does he not invite the Senate to commence the work of destruction, to tear down that great remedial statute? Why is he silent? Why does he hang back, and direct all his energies against the supplementary measure, which depends absolutely upon the same constitutional power? If he is in earnest against the pending motion, he must show the same earnestness against the preliminary Act.

When I assert that Congress has ample power over this question, I rely upon a well-known text often cited in this Chamber, often cited in our courts,—the judgment of the Supreme Court pronounced by Chief-Justice Marshall, in the case ofMcCullochv.State of Maryland, from which I will read a brief extract:—

“But the argument on which most reliance is placed is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws which may have relation to the powers conferred on the Government, but such only as may be ‘necessary and proper’ for carrying them into execution. The word ‘necessary’ is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory,—that it excludes the choice of means, and leaves to Congress in each case that only which is most direct and simple.”

These words show how the case was presented to the Court. Here is the statement of John Marshall:—

“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, andall means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”[223]

In other words, the Supreme Court will not undertake to sit in judgment on the means employed by Congress for carrying out a power which exists in the Constitution. Now the power plainly exists in the Constitution; it is to abolish Slavery, and it is for Congress in its discretion to select the means. Already it has selected the Civil Rights Law as the first means for enforcing the abolition of Slavery. I ask it to select the supplementary bill now pending as other means to enforce that abolition. One of the letters that I have read to-day from a leading colored citizen of Georgia said: “When that becomes a law, the freedom of my race will then be complete.” It is not complete until then; and therefore, in securing that freedom, in other words in enforcing the Constitutional Amendment, Congress is authorized to pass the bill which I have felt it my duty to introduce, and which is now moved on the Amnesty Bill.

I might proceed with this argument. But details would take time, and I think they are entirely needless. The case is too strong. It needs no further argument. You have the positive grant of power. You have already one instance of its execution, and you have the solemn decision of the Supreme Court of the United States declaring that it is in the discretion of Congress to select the means by which to enforce the powers granted. How, Sir, can you answer this conclusion? How can my excellent friend answer it?

Were I not profoundly convinced that the conclusion founded on the Thirteenth Amendment was unanswerable, so as to make further discussion surplusage, I should take up the Fourteenth Amendment, and show how, in the first place, we have there the definition of a Citizen of the United States, and then, in the second place, an inhibition upon the States, so that they cannot make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor deny to any person within the jurisdiction of the United States the equal protection of the laws. And here again Congress is empowered to enforce these provisions by appropriate legislation. Surely, if there were any doubt in the Thirteenth Amendment, as there is not, it would all be removed by this supplementary Amendment. Here is the definition of Citizenship, and the right to the equal protection of the laws,—in other words, Citizenship and Equality, both placed under the safeguardof the Nation. Whatever will fortify these is within the power of Congress by express grant. But if these are interpreted by the Declaration of Independence, as I insist, the conclusion is still more irresistible.

Add the original text of the Constitution, declaring that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” These words, already expounded by judicial interpretation,[224]are now elevated and inspired by the new spirit breathing into them the breath of a new life, and making them yet another source of Congressional power for the safeguard of equal rights.

But I have not done with my friend. I am going to hand him over to be answered by one of his colored fellow-citizens who has no privilege on this floor. I put George T. Downing face to face with my excellent friend, the Senator from Maine. The Senator will find his argument in one of the papers of the day. I shall read enough to show that he understands the question, even constitutionally:—

“But I come directly,” says he, “to ‘misconception,’—to thwarting justice. The Senator”—

Referring to the Senator from Maine—

“opposes Senator Sumner’s amendment; he says it invokes an implication of some principle or provision of the Constitution somewhere, or an implication arising from the general fitness of things possibly, to enable it to invade the domiciliary rights of the citizens of a State.”

These were the precise words of the Senator; I remember them well; I was astonished at them. I could not understand by what delusion, hallucination, or specialignis-fatuusthe Senator was led into the idea that in this bill there is any suggestion of invading the domiciliary rights of the citizens of the States. Why, Sir, the Senator has misread the bill. I will not say he has not read it. He certainly has misread it. And now let our colored fellow-citizen answer him:—

“I do not speak unadvisedly, when I declare that no such end is desired by a single intelligent colored man; no such design can be gleaned from any word ever spoken by Charles Sumner; his amendment cannot by any reasonable stretch of the imagination be open to the implication.”

Not a Senator, not a lawyer says that; it is only one of our colored fellow-citizens whom the Senator would see shut out of the cars, shut out of the hotels, his children shut out from schools, and himself shut out from churches; and seeing these things, the Senator would do nothing, because Congress is powerless! Our colored fellow-citizen proceeds:—

“The amendment says that all citizens, white and black, are entitled to the equal and impartial enjoyment of any accommodation, advantage, facility, or privilege furnished by common carriers, by innkeepers, by licensed theatres, by managers of common schools supported by general taxation or authorized by law. Does any of the same invade the domiciliary rights of a citizen in any State?”

That is not my language, Sir; it is Mr. Downing’s.

“Could any man, white or black, claim a right of entrance into the domicile of the poorest, the humblest, the weakest citizen of the State of Maine by virtue of Mr. Sumner’s amendment, when it shall become a law? Certainly not; a man’s private domicile is his own castle: no one, with even kingly pretensions, dare force himself over its threshold. But the public inn, the public or common school, the public place of amusement, as well as common carriers, asking the special protection of law, created through its action on the plea and for the benefit of the public good, have no such exclusive right as the citizen may rightfully claim within his home; and it seems to me to be invoking the aid of an unholy prejudice in attempting to force the idea that Mr. Sumner desires, or that the colored people in petitioning for civil rights are designing, to break into social circles against the wish of those who compose them.”

It is difficult to answer that. The writer proceeds:—

“I have the testimony of Senator Morrill, this same Senator, to the fact ‘that equality before the law, without distinction of race or color,’ is a constitutional right,—for we have his declaration to that effect recorded, and further setting forth that it is ‘the duty of the Circuit Court of the United States to afford a speedy and convenient means for the arrest and examination of persons charged with a disregard of the same.’ (See proceedings of Senate, April, 1866.)”

I have not verified this reference; I read it as I find it. The Senator will know whether he has heretofore employed such generous language, in just conformity with the Constitution. Assuming now that he has used this language, I think, as a lawyer, he will feel that George T. Downing has the better of him. I ask my friend to listen, and perhaps he will confess:—

“If equality before the law be a constitutional right, as testified to by Mr. Morrill, and if it be the duty of the Federal courts to protect the same, as he further affirms, is not all conceded as to the right of Congress to act in the case in question, when it is shown that the public inn, the public school, the common carrier, are necessary institutions under the control of law, where equality without regard to race or color may be enforced? Can there be any question as to the same?“I further invoke the letter of the Constitutionin behalf of Congressional actionto protect me in the rights of an American citizen; for instance,”—

“I further invoke the letter of the Constitutionin behalf of Congressional actionto protect me in the rights of an American citizen; for instance,”—

Again I say, this is not the argument of a Senator, nor of a lawyer, but only of one of those colored fellow-citizens for whom my friend can find no protection,—

“for instance, that article which says, ‘The judicial power shall extend to all cases in law and equity arising under this Constitution.’ If equality before the law be, as Mr. Morrill has declared, a constitutional right, the judicial power of the United States reaches the same. Another section says, ‘The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.’”

The writer is not content with one clause of the Constitution:—

“Another section says, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ Another section says, ‘The United States shall guaranty to every State in this Union a republican form of government.’ The section last cited contemplates a case where a controlling power shall strive to have it otherwise, and the subordinated individuals need protection. Congress is left the judge of what constitutes a republican form of government, and consequently of the rights incidental thereto.”

Then again:—

“Another section says, ‘This Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land.’ Another section says, ‘The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the powers vested by this Constitution in the Government of the United States.’ Will it be said that the power is not vested in the Government of the United States to protect the rights of its citizens, and that it is not necessary and proper to do so?“The Senator admits that there is a constitutional inhibition against proscribing men because of their race or color in the enjoyment of rights and privileges, but he denies the existence of a constitutional right on the part of Congress to act in defence of the supreme law, when a State may disregard the Constitution in this respect. I read the Constitution otherwise. I conclude, that, when the supreme law says of right a thing shall not be, Congress, which has that supreme law as its guide and authority, has the power to enforce the same.”

“The Senator admits that there is a constitutional inhibition against proscribing men because of their race or color in the enjoyment of rights and privileges, but he denies the existence of a constitutional right on the part of Congress to act in defence of the supreme law, when a State may disregard the Constitution in this respect. I read the Constitution otherwise. I conclude, that, when the supreme law says of right a thing shall not be, Congress, which has that supreme law as its guide and authority, has the power to enforce the same.”

That, Sir, is the reply of a colored fellow-citizen to the speech of my excellent friend. I ask Senators to sit in judgment between the speech and the reply. I ask if my excellent friend is not completely answered by George T. Downing? If the latter has been able to do this, it is because of the innate strength of his own cause and the weakness of that espoused by the Senator. Our colored commentator places himself on the texts of the Constitution, and interprets them liberally, justly, for the equal rights of his race. The Senator places himself on those same texts, but in an evil moment surrenders to that malignant interpretation which prevailed before the war and helped to precipitate the Rebellion.

Sir, I ask, Is not the constitutionality of this measure vindicated? Does any one really doubt its constitutionality? Can any one show a reason against it? Sir,it is as constitutional as the Constitution itself. You may arraign that great charter; you may call it in doubt; you may say that it is imperfect, that it is wrong; but I thank God it exists to be our guide and master, so that even my excellent friend, the able and ingenious Senator, snatching reasons, if not inspiration, fromante bellumarguments, when State Rights were the constant cry, and from speeches in other days, cannot overturn it. The Constitution still lives, and as long as it lives it must be interpreted by the Declaration of Independence to advance human rights.

This is my answer to the Senator on the question of power, to which he invited attention. I have spoken frankly, I hope not unkindly: but on this question I must be plain and open. Nor is this all.

Sir, there is a new force in our country. I have alluded to a new rule of interpretation; I allude now to a new force: it is the colored people of the United States counted by the million; a new force with votes; and they now insist upon their rights. They appear before you in innumerable petitions, in communications, in letters, all praying for their rights. They appeal to you in the name of the Constitution, which is for them a safeguard,—in the name of that great victory over the Rebellion through which peace was sealed; and they remind you that they mean to follow up their appeal at the ballot-box. I have here an article in the last “New National Era,” of Washington, a journal edited by colored persons,—Frederick Douglass is the chief editor,—and devoted to the present Administration. What does it say?

“Here, then, is a measure, just and necessary, the embodiment of the very principles upon which the Government is founded, and which distinguish it from monarchical and aristocratic Governments,—a measure upon which there should be no division in the Republican Party in Congress, and of which there is no question as to its being of more importance than Amnesty. Without this measure Amnesty will be a crime, merciless to the loyal blacks of the South, and an encouragement of treason and traitors. We have met colored politicians from the South who think that the Amnesty proposition is an attempt to gain the good-will of the white voters of the South at the expense of the colored voters. Should this feeling become general among the colored people, there is danger of a division of the colored vote to such an extent as to defeat the Republican Party. Give us the just measure of protection of our civil rights before the pardoning of those who deny us our rights and who would destroy the nation, and the colored people can feel assured that they are not to be forced into a back seat, and that traitors are not to be exalted.”

Is not this natural? If you, Sir, were a colored citizen, would you not also thus write? Would you not insist that you must doubt any political party, pretending to be your friend, that failed in this great exigency? I know you would. I know you would take your vote in your hand and insist upon using it so as to secure your own rights.

The testimony accumulates. Here is another letter, which came this morning, signed, “An Enfranchised Republican,” dated at Washington, and published in the “New York Tribune.” It is entitled, “President Grant and the Colored People.” The writer avows himself in favor of the renomination of General Grant, but does not disguise his anxiety at what he calls “the President’s unfortunate reply to the colored delegation which lately waited on him.”

Now, Sir, in this sketch you see a slight portraiture of a new force in the land, a political force which may change the balance at any election,—at a State election, at a Presidential election even. Take, for instance, Pennsylvania. There are colored voters in that State far more than enough to turn the scale one way or the other, as they incline; and those voters, by solemn petition, appeal to you for their rights. The Senator from Maine rises in his place and gravely tells them that they are all mistaken, that Congress has no power to give them a remedy,—and he deals out for their comfort an ancient speech.

Sir, I trust Congress will find that it has the power. One thing I know: if it has the power to amnesty Rebels, it has the power to enfranchise colored fellow-citizens. The latter is much clearer than the former. I do not question the former; but I say to my excellent friend from Maine that the power to remove the disabilities of colored fellow-citizens is, if possible, stronger, clearer, and more assured than the other. Unquestionably it is a power of higher necessity and dignity. The power to do justice leaps forth from every clause of the Constitution; it springs from every word of its text; it is the inspiration of its whole chartered being.

Mr. President, I did not intend to say so much. I rose to-day merely to enable the absent to speak,—that colored fellow-citizens, whose own Senators had failed them, might be heard through their written word. I did not intend to add anything of my own; but the subject is to me of such incalculable interest, and its right settlement is soessential to the peace of this country, to its good name, to the reconciliation we all seek, that I could not resist the temptation of making this further appeal.

February 1st, Mr. Carpenter, of Wisconsin, in an elaborate speech, replied to Mr. Sumner, and criticized his bill, especially so far as it secured equal rights in churches and juries.February 5th, in pursuance of the opposition announced in his speech, Mr. Carpenter moved another bill as a substitute for Mr. Sumner’s. Mr. Norwood, of Georgia, sustained the substitute; Mr. Wilson of Massachusetts, Mr. Frelinghuysen of New Jersey, and Mr. Morton of Indiana predicated the earlier proposition. Mr. Sumner then replied to Mr. Carpenter.

February 1st, Mr. Carpenter, of Wisconsin, in an elaborate speech, replied to Mr. Sumner, and criticized his bill, especially so far as it secured equal rights in churches and juries.

February 5th, in pursuance of the opposition announced in his speech, Mr. Carpenter moved another bill as a substitute for Mr. Sumner’s. Mr. Norwood, of Georgia, sustained the substitute; Mr. Wilson of Massachusetts, Mr. Frelinghuysen of New Jersey, and Mr. Morton of Indiana predicated the earlier proposition. Mr. Sumner then replied to Mr. Carpenter.

Before the vote is taken, I hope the Senate will pardon me, if I explain briefly the difference between the two amendments.

First let me say a word in regard to the way in which the amendment moved by me comes before the Senate. Even this circumstance has been dwelt on in this debate, and I have been criticized—I think not always justly—on that account. Here is a memorandum made for me at the desk from the Journal of the Senate, which shows the history of this amendment. I will read it.[225]

…

At last, during this session, before the holidays, when the present measure of Amnesty was under consideration, I found for the first time a chance. Twice had I introduced the bill, and on my motion it was referred to the Judiciary Committee, who had twice reported against it. Sir, was I to be discouraged on that account? No committee enjoys higher authority on this floor than the Judiciary Committee; but I have been here long enough to know that its reports do not always find favor. Have we not during this very session, within a very few days, seen that committee overruled on the Apportionment question?

Therefore, Sir, I am not without precedent, when I bring forward an important measure and ask your votes, even though it have not the sanction of this important committee. I wish it had their sanction; but I do not hesitate to say that this bill is more important to the Judiciary Committee than that committee is important to the bill. In this matter the committee will suffer most. A measure like this, which links with the National Constitution, and with the Declaration of Independence, if the Senator from Wisconsin will pardon me—

Mr. Carpenter.I rise to ask why that inquiry is made of me. Have I criticized allusions to the Declaration of Independence?

Mr. Sumner.I feared the Senator would not allow allusion to the Declaration, except as a “revolutionary” document. I say, this measure, linked as it is with the great title-deeds of our country, merits the support not only of the Judiciary Committee, but of this Chamber. The Senate cannot afford to reject it.

Sir, I am weak and humble; but I know that when I present this measure and plead for its adoption I am strong, because I have behind me infinite justice and the wrongs of an oppressed race. The measure is not hasty. It has been carefully considered already in this Chamber, much considered elsewhere, considered by lawyers, by politicians,—ay, Sir, andconsidered by our colored fellow-citizens, whose rights it vindicates. But at the eleventh hour the Senator comes forward with a substitute which is to a certain extent an emasculated synonym of the original measure, seeming to be like and yet not like, feeble where the original is strong, incomplete where the original is complete, petty where the original is ample, and without machinery for its enforcement, while the original is well-supplied and most effective.

That you may understand the amendment introduced by me, I call attention to the original Civil Rights Act, out of which it grows and to which it is a supplement. That great statute was passed April 9, 1866, and is entitled, “An Act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication.”[226]It begins by declaring who are citizens of the United States, and then proceeds:—

“Such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States,”—

To do what?

“to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

The Senate will perceive that this Act operates not only in the National but in the State jurisdiction. No person will question that. It operates in every National court and in every State court. The language is, “in every State and Territory in the United States.” Every State court is opened. Persons without distinction of color are entitled to sue and be sued, especially to be heard as witnesses, and the colored man may hold up his hand as the white man.…

Now I ask the Senator from Wisconsin to consider what is the difference in character between the right to testify and the right to sit on a jury.

Mr. Carpenter.Or on the bench.

Mr. Sumner.The Senator will allow me to put the question in my own way. I say nothing about the bench, and the Senator is too good a lawyer not to see why. He knows well the history of trial by jury; he knows that at the beginning jurors were witnesses from the neighborhood,—afterward becoming judges, not of law, but of fact. They were originally witnesses from the vicinage; so that, if you go back to the very cradle of our jurisprudence, you find jurors nothing but witnesses: and now I insist that they must come under the same rule as witnesses. If the courts are opened to colored witnesses, I insist by the same title they must be opened to colored jurors. Call the right political or civil, according to the distinction of the Senator. No matter. The right to be a juror is identical in character with the right to be a witness. I know not if it be political or civil; it is enough for me that it is a right to be guarded by the Nation. I say nothing about judges; for the distinction is obvious between the two cases. I speak now of colored jurors; and I submit, as beyond all question, that every reason or argumentwhich opens the courts to colored witnesses must open them to colored jurors. The two go together, as natural yoke-fellows.

But do not, Sir, forget the necessity of the case. How can justice be administered throughout States thronging with colored fellow-citizens, unless you have them on the juries? Denying to colored fellow-citizens their place on the juries, you actually deny them justice. This is plain, and presents a case of startling wrong. I am in the receipt of letters almost daily, complaining of the impossibility of obtaining justice in State courts because colored fellow-citizens are excluded from juries. I say, therefore, from the necessity of the case, and also from the analogy of witnesses, the courts should be opened to colored jurors. The Senator makes a mistake, when he deals his blow in the very Temple of Justice. He strikes down the safeguards of justice for the whole colored race; and what is the excuse? That to sit on the jury is a question of politics,—that it is a political right, and not a civil right. Sir, I cannot bring myself to make any question whether it is a civil right or a political right; it is a right. It is a right which those men have by the Law of Nature, and by the National Constitution interpreted by the National Declaration.

But, Sir, not content with striking at the colored race even in the very Temple of Justice, the Senator, finding an apology in the Constitution, insists upon the very exclusion from churches which the famous Petroleum V. Nasby had set up before. From juries I now come to churches. The Senator is not original; he copies, as I shall show, from a typical Democrat, who flourished during the war. But before I come to his prototype, let us consider the constitutional question presented by the Senator with so much gravity, without even the smile that plays so readily on his countenance. He seemed in earnest, when he read these words of the National Constitution:—

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

And still without a smile he argued that the application of the great political principles of the Declaration and of the recent Constitutional Amendments to a church organization incorporated by law was a violation of this provision, and he adduced the work of the much-venerated friend of my early life, and my master, the late Judge Story, expounding that provision. I do not know if the Senator read these words from the commentary of that great jurist:—

“The real object of the Amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects,”—

Observe, Sir, what it is,—

“but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to a hierarchy the exclusive patronage of the National Government.”[227]

How plain and simple! The real object was to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment. Such was the real object.

But the Senator says, if Congress decrees that the Declaration of Independence in its fundamental principles is applicable to a church organization incorporated by State or National authority, we violate this provision of the Constitution! You heard him, Sir; I do no injustice to his argument.

Our authority, Judge Story, continues in another place:—

“It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic as well as in foreign annals, that it was deemed advisable to exclude from the National Government all power to act upon the subject.”[228]

To act upon what? The subject of a religious establishment. No pretence here of denying to Congress the establishment of police regulations, if you please, or the enforcement by law of the fundamental principles of the Declaration of Independence. There is nothing in this text inconsistent with such a law. The Constitution forbids all interference with religion. It does not forbid all effort to carry out the primal principles of republican institutions. Now, Sir, here is no interference with religion. I challenge the Senator to show it. There is simply the assertion of a political rule, or, if you please, a rule of political conduct. Why, Sir, suppose the manners and morals which prevailed among the clergy of Virginia during the early life of Mr. Jefferson, and recently revealed by the vivid pen of one of our best writers, should find a home in the churches of Washington. You have read Mr. Parton’s account in a late number of the “Atlantic Monthly.”[229]Suppose Congress, taking into consideration the peculiar circumstances, should give expression to public sentiment and impose a penalty for such scandalous conduct here under our very eyes; would that be setting up an Established Church? Would that be a violation of the National Constitution, in the provision which the Senator invokes, “Congress shall make no law respecting an establishment of religion”? And yet, in the case I suppose, Congress would enter the churches; it might be only in the District of Columbia; but the case shows how untenable is the position of the Senator, according to which the effort of Congress to preserve churches from the desecration of intemperance would be kindred to setting up an established religion. There is a desecration as bad as intemperance, which I now oppose. I introduce the case of intemperance only as an illustration.

And now, Sir, I come to the question. Suppose Congress declares that no person shall be excluded from any church on account of race, color, or previous condition; where is the interference with the constitutional provision? Is that setting up a church establishment? Oh, no, Sir! It is simply setting up the Declaration of Independence in its primal truths, and applying them to churches as to other institutions.

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