Part 12

MR. PRESIDENT,--It may be well, as the Senate is called to enact a new national statute, to glance back at an early landmark, and contemplate the principles declared by our fathers. I hold in my hand the Declaration of Independence, with these words at the beginning: “We hold these truths to be self-evident, that all men are created equal,” &c. Now, Sir, the Senator from Connecticut [Mr. FOSTER], representing the Judiciary Committee, proposes to establish as a rule of evidence in the national courts that men are not equal.

Mr. Foster here interrupted to say that he proposed “no such rule of evidence”; that he simply proposed “to allow the laws of the several States of this Union to operate as rules to control the courts of the United States sitting within those several States, as it regards the competency of witnesses: that is all.”

Mr. Sumner resumed:--

I could not intentionally do the Senator injustice. Nor do I find that I did him injustice; and he will therefore pardon me, if I repeat what I said before,--that, representing the Judiciary Committee, the Senator comes forward, in defiance of the Declaration of Independence, to ingraft into the legislation of the United States the practical principle that all men are not equal. The Senator rises and denies that he is doing any such thing. He simply recognizes local laws in the States. That is all,--nothing else. But pray, Sir, is not this enough? Local laws which defy the Declaration of Independence cannot be recognized without defying the Declaration; nor can the Senator escape responsibility merely by saying that he follows the local laws. Does he not sanction injustice? The case is plain. He asks us to legislate on the competency of witnesses. He proposes to regulate this competency by Act of Congress, where, among other things, we are to provide that in the courts of the United States witnesses shall be incompetent on account of color. The proposition is not made openly, but in the covert words, that the local laws of States shall in all cases prevail in the national courts. The Senator cannot forget these local laws, how instinct with barbarism they are, nor the shame and scandal they bring upon our country and upon civilization itself; and yet he would give them new sanction and effect,--not in the courts of the States, within the local jurisdiction, but in the courts of the United States, under the Constitution of the United States, within the national jurisdiction, where you and I, Sir, are responsible for the barbarism. No matter in what form it is put, no matter how subtly the attempt is concealed, it is the adoption by Congress of an outrageous rule.

Offer any objection you please to the credibility of a witness, show that he is not intelligent, that he is not worthy of belief, that his character is bad, and make all proper deductions from his testimony on this account, but do not say that he is absolutely incompetent, that he cannot be heard in court, that, no matter how intelligent, truthful, or respectable, he cannot be admitted to testify, if he happens to be of another color than ourselves. Such exclusion is cruel to the witness, degrading to courts administering it, and destructive of justice, which seeks evidence from every quarter.

I listened closely to the ingenious argument of the Senator, going along with him in what he claimed for the States and for their courts. He said, each State is entitled, within its own jurisdiction, to have its rules of evidence. Granted. He thought it better to leave every State its own rule on this question. Granted again, Sir, so far as the courts of the States are concerned.

MR. FOSTER. Why allow them barbarism?

MR. SUMNER. Because I have no right to interfere with them.

MR. FOSTER. That answers the two questions.

MR. SUMNER. There is the mistake of the Senator. He confounds our duties in the two different cases of national courts, where we are responsible, and of State courts, where we have no responsibility and no right to interfere. In his remarks he said: “It is competent for each State to make these rules for itself.” Granted again,--within its own jurisdiction. But he would allow each State its sovereign will on this question. Sir, where I cannot constitutionally interfere to check a barbarism, of course I do not interfere; sorrowfully I allow the sovereign will to prevail. But when a barbarism seeks shelter under the jurisdiction of Congress, when it falls under the direct responsibility of my vote, I cannot be silent.

The Senator will pardon me, if I add, that he erred, when he undertook to transfer the rules of the State courts, without amendment or modification, to the National courts. The State courts have their rules of evidence,--they are beyond our control; but the United States courts are within our control, and the time has come to bring them at last within the pale of civilization. Why, Sir, has the good cause advanced thus far? to what end is it triumphant on this floor, if, in determining rules of evidence in the national courts, we take up and sanction this relic of barbarism?

If the rule is not justly within our reach, pray, Sir, why are we asked to vote on a bill concerning the competency of witnesses, and with a section expressly regulating the whole subject? Sir, I should feel untrue to myself, untrue to the principles I have at heart, and to the people I have the honor to represent, if I allowed a bill like this, with such a title, with such an object, to pass without earnest endeavor to exclude from it all support of the vileness which seeks shelter under its words. Within a few days the Senator has voted for a bill to punish the fraudulent counterfeiting of postage stamps; but suppose the counterfeiter does his work in the presence of colored persons and nobody else, where, under the proposed rule, will the Senator find the evidence required to carry the law into effect? As long as Congress undertakes to legislate criminally, as long as it has courts with a national jurisdiction in the Slave States, it is due to itself, and it is due to justice, that it should furnish the evidence by which such legislation may be made effective, and justice be administered, without a constant act of shame calculated to bring a blush upon the cheeks. I speak plainly, as is my habit, and perhaps with feeling, but I trust that I have said nothing that I ought not to say.

The amendment was rejected,--Yeas 14, Nays 23. The next volume will show how this effort of Mr. Sumner at last prevailed.

PROVISIONAL GOVERNMENTS AND RECONSTRUCTION.

REMARKS IN THE SENATE, ON A BILL TO ESTABLISH PROVISIONAL GOVERNMENTS IN CERTAIN CASES, JULY 7, 1862.

This was reported from the Judiciary Committee, by Mr. Harris, of New York, with certain amendments, one of which recognized “the laws and _institutions_” in a State before the Rebellion. On the latter amendment Mr. Sumner remarked:--

MR. PRESIDENT,--I cannot consent to the amendment. Plainly it is going too far. A government organized by Congress and appointed by the President is to enforce laws and institutions, some of which are abhorrent to civilization. Take, for instance, the Revised Code of North Carolina, which I have before me. Here is a provision which the Governor, under this Act, must enforce. I say must enforce. The amendment is, that there shall be “no interference with the laws and institutions existing in such State at the time its authorities assumed to array the same against the Government of the United States.” Therefore they must be enforced. And now, if you please, listen to one of them.

“Any free person, who shall teach, or attempt to teach, any slave to read or write, the use of figures excepted, or shall give or sell to such slave any book or pamphlet, shall be deemed guilty of a misdemeanor, and upon conviction thereof, if a white man or woman, shall be fined not less than one hundred nor more than two hundred dollars, or imprisoned, and if a free person of color, shall be fined, imprisoned, or whipped, not exceeding thirty-nine nor less than twenty lashes.”

That abomination, Sir, is set forth in the Revised Code of North Carolina, chap. 34, sec. 82. But lest it should fail by the employment of slaves as school-teachers, we have the following prohibition.

“It shall not be lawful for any slave to teach, or attempt to teach, any other slave or free negro to read or write, the use of figures excepted.”[93]

The punishment of slaves for this offence is whipping, repeated for every act. But, Sir, here is another specimen.

“If any person shall wilfully bring into the State, with an intent to circulate, or shall wilfully circulate or publish within the State, or shall aid or abet the bringing into, or the circulation or publication of within, the State, any written or printed pamphlet or paper, whether written or printed in or out of the State, the evident tendency whereof is to cause slaves to become discontented with the bondage in which they are held by their masters and the laws regulating the same, and free negroes to be dissatisfied with their social condition and the denial to them of political privileges, and thereby to excite among the said slaves and free negroes a disposition to make conspiracies, insurrections, or resistance against the peace and quiet of the public, such person so offending shall be deemed guilty of felony, and on conviction thereof shall, for the first offence, be imprisoned not less than one year, and be put in the pillory and whipped, at the discretion of the court, and for the second offence _shall suffer death_.”[94]

Here is yet another.

“If any free person of color shall preach or exhort in public, or in any manner officiate as a preacher or teacher in any prayer meeting, or other association for worship, where slaves of different families are collected together, he shall be deemed guilty of a misdemeanor, and, on conviction, shall, for each offence, receive not exceeding thirty-nine lashes on his bare back.”[95]

And now one more.

“If any person shall wilfully carry or convey any slave, the property of another, without the consent of the owner or the guardian of the owner, with the intent and for the purpose of enabling such slave to escape out of this State, from the service of his owner, or any one having an interest in such slave, present or future, vested or contingent, legal or equitable, or if any person shall wilfully conceal any slave, the property of another, with such intent and purpose, the person so offending shall suffer death.”[96]

I have read enough, Sir. These passages show you the statutes to be enforced in the name of the National Union, by its constituted authorities, in courts organized by Congress. And behind all these is Slavery itself to be enforced also.

Sir, such an exhibition is more than sufficient. You cannot consent to any such thing. In organizing these governments, all that we can do is to protect life and property, and generally to provide the machinery of administration. Further we cannot go, and protect institutions in themselves an outrage to civilization.

In the debate that ensued Mr. Sumner remarked:--

In this country there is but one “institution,” as all the world knows, and the phrase “and institutions,” when carefully introduced, means only one institution, which I need not name.

Mr. Trumbull united with Mr. Sumner in criticizing the bill.

“I was for it in the Committee; but since I have seen the operation of these laws in the Southern States, and the manner in which persons acting in behalf of the United States undertake to execute them, I have changed my opinion in regard to the propriety of such a clause as this, and I agree with the Senator from Massachusetts. I cannot consent by my vote, and I never will consent by my vote, to give sanction to a law that punishes a man for teaching another to read the word of God.”

The bill was allowed to drop. But this debate had its influence in showing how impossible it was to recognize “institutions” existing in a State before the Rebellion. Slavery and the Black Code were not to obtain license under any such terms. Here was a point in Reconstruction.

TAXES ON KNOWLEDGE.

REMARKS IN THE SENATE, ON THE DUTIES UPON IMPORTED BOOKS AND RAGS, JULY 8, 1862.

MR. PRESIDENT,--I ask a moment’s attention to the tax on books, which is raised in this bill from fifteen to twenty per cent. Assuming that this is done to increase the revenue, I have to say, that, if we place reliance on the evidence before us, it will not have such effect.

The annual importation of books during the last four years shows that a duty of ten per cent is more productive than a higher rate. The increased importation is more than compensation for the diminished rate; but here it is with books as with other things.

If there were a tax on the manufacture of books in our country, there might be reason for a corresponding duty; but there is no such tax.

By the experience of the last tariff we are warned. The increase of this duty was disastrous to the book-trade, and I am assured that several booksellers who have imported largely are withdrawing from this branch of business, because the rate of fifteen per cent renders it unprofitable. And yet you propose to raise the rate to twenty per cent.

Nor is there any practical argument founded on protection. There are no interests requiring protection which will be promoted by an increased duty, as appears in last year’s memorial of publishers and importers, praying a reduction to ten per cent, and also in another and later memorial from New York importers, praying for the same reduction, and setting forth that their business seriously suffers from the existing rate.

And now I add, that this increased duty is a tax on knowledge, and as such to be discountenanced and opposed. But I rest my argument on the simple ground, that it will not increase the revenue. If at this exacting moment it would have any such consequence, much as I should regret the necessity, I could not oppose it. But it is easy to show that such will not be the consequence: at least, the statistics point this way. The total value of books imported in 1858, with a duty of eight per cent, amounted to five hundred and thirty thousand dollars: I do not give the odd figures. The total value in 1859, likewise with a duty of eight per cent, was seven hundred and seventy-seven thousand dollars; and in 1860, with the same rate, it was seven hundred and thirty-four thousand. In 1861, the total value, with a duty of fifteen per cent, sank as low as three hundred and forty-six thousand. These figures speak.

I do not err, when I infer from them that the higher duty has been an injury to the revenue, and also to the importer. Therefore it is open to a twofold objection. With a duty of ten per cent the revenue would gain, and the public with the importer would be benefited.

The case is stated in a few words. An increased duty on books will do nothing for the revenue; but it will interfere with a useful business, and at the same time impose a tax on knowledge.

Mr. Sumner moved to reduce the tax from twenty to ten per cent, but, at the suggestion of Mr. Fessenden, Chairman of the Finance Committee, consented to fifteen per cent, which was adopted. The amendment failed between the two Houses.

The bill as it came from the House had a proviso, “That all imported cotton and linen rags for the manufacture of paper shall be free of duty.” Mr. Sumner made an ineffectual effort to prevent this from being struck out. In the course of his remarks, he said:--

Here is another tax on knowledge. On the face it is a tax on rags; but rags are imported to make paper; so that a tax on rags is a tax on paper, and as such is a tax on knowledge.

CONSTITUTIONAL QUORUM OF THE SENATE.

SPEECH IN THE SENATE, ON A RESOLUTION DECLARING THE CONSTITUTIONAL QUORUM, JULY 12, 1862.

According to long-continued usage, a quorum of the Senate was a majority of the whole number of Senators, assuming each State represented by two Senators. After the withdrawal of the Rebel Senators, business was often embarrassed from the failure of what was supposed to be the constitutional quorum. To remove this difficulty, Mr. Sherman, April 11th, introduced the following:--

“_Resolved_, That a majority of the Senators duly elected and entitled to seats in this body is a constitutional quorum.”

July 12th, Mr. Sumner said:--

MR. PRESIDENT,--What is a quorum depends upon the Constitution; but we approach its consideration with the knowledge that in England, the original home of our institutions, and especially of Parliamentary Law, the question, for a long period anterior to the National Constitution, was fixed by usage. Indeed, usage is authority for the larger part of the English Constitution. But in this case of a quorum the usage is liable to alteration. In his elaborate work on the Law and Practice of Legislative Assemblies, the Parliamentary Law on the subject is thus stated by Mr. Cushing:--

“In the British Parliament, according to the ancient and invariable usage of the two Houses, as evidenced by their rules, three is the number necessary to constitute a quorum of the Lords, and forty a quorum of the Commons. These numbers, respectively, although established by and dependent upon usage merely, and within the power of each House to abrogate or change at any time, have, nevertheless, the force of standing orders; that is, they are equally binding upon every succeeding Parliament until abrogated, and do not require to be specially adopted in order to be in force.”[97]

It will be observed that the quorum of the Commons, numbering six hundred and fifty-four persons, is only forty, and this number appears to have been recognized as long ago as 5th January, 1640. At an earlier day more than sixty was required, and as late as March 18, 1801, an attempt was made in the Commons to revive this ancient rule, but it failed. For a short time in 1833 and 1834 the quorum for private business was twenty.[98]

The quorum of the Lords, numbering four hundred and sixty-five, is only three. A spectator at the law sessions of the Upper House is struck by the appearance of the Lord Chancellor on the woolsack, in wig and gown, listening to arguments, with two lay lords, like two lay figures, on the side benches, merely to constitute a quorum so as to legalize the decision of the Chancellor. The origin of this quorum, having the sanction of unbroken usage, is lost in the night of Antiquity. It is probably founded on the ancient maxim of the Roman Law, _Tres faciunt collegium_,--“Three make a _college_,”--the latter word being equivalent, in some respects, to our word _corporation_.

Thus, according to Parliamentary Law, two things appear: first, the quorum of each House is within the control of the House; secondly, it is now, and always has been, in each House, much smaller than a majority.

With us the quorum, in general terms, is fixed by the Constitution. It is not left to usage, or the control of each House; but it is reasonable to infer that any question on the meaning of the Constitution, arising from generality of language, may be interpreted in the light of Parliamentary Law. Indeed, this is only according to the rule under which all technical words in the Constitution are interpreted. For instance, words known to the Common Law or to the English Chancery are interpreted according to the Common Law or the English Chancery. Mr. Wirt, in his admirable argument on the impeachment of Judge Peck, states the rule in these words:--

“The Constitution secures the _trial by jury_. Where do you get the meaning of a _trial by jury_? Certainly not from the Civil or Canon Law, or the Law of Nations. It is peculiar to the _Common Law_; and to the Common Law, therefore, the Constitution itself refers you for a description and explanation of this high privilege, _the trial by jury_, and the mode of proceeding in those trials.… I insist, that, the moment that _a Court of Common Law_ or _a Court of Equity_ is established under the authority of the Constitution, its modes of proceeding and its powers of self-protection arise with it, and that the _very name_ by which it is called into being authorizes it to look at once to the English archetypes for its government in these particulars.”[99]

According to this rule, so clearly enunciated, the words “quorum” and “House,” which are derived from English Parliamentary Law, may be explained by that law; so that, in case of doubt, that law is for this purpose embodied in the Constitution. Now the Constitution declares that _a majority of each House_ shall constitute a quorum to do business. The rule, it will be observed, is the same for each House. But the question arises, What is a majority of each House? or rather, putting aside all question with regard to the House of Representatives, which is perfectly free to determine for itself, What is a majority of the Senate?

In fixing the quorum at a majority rather than any smaller number, our Constitution followed the law of business corporations, where a majority always prevails, according to an old maxim of the Common Law,--_Ubi major pars est, ibi est totum_,--“Where _the greater part_ is, there is the whole.” This rule is so reasonable, that it has been vindicated by an eminent authority as founded on the Law of Nature. Here are the words of the great jurist Savigny:--

“The will of a corporation is not merely the concurring will of all its members, but even that of the greater number. Therefore the will of a majority of all its existing members is to be regarded as being properly invested with the rights of the corporation. This rule is founded on the Law of Nature, inasmuch as, if unanimity were demanded, will and action on the part of a corporation would be quite impossible. It is also confirmed by the Roman Law.”[100]

Thomas Jefferson, a very different person from the German jurist, has also vindicated the rule.

“The _Lex majoris partis_ is founded in Common Law as well as common right. It is the natural law of every assembly of men whose numbers are not fixed by any other law.”[101]

But the question still occurs, What is the major part of the Senate? Is it the major part of the abstract or theoretical Senate, or the major part of the real Senate? In other words, is it the major part of the Senate contemplated by the Constitution, with two Senators from each State, or the major part of the actual Senate, counting only those entitled to vote? At the present moment there is a wide difference between the two cases.

Several clauses of the Constitution are applicable to this question. I group them together.

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six years.”

“_A majority of each House_ shall constitute a quorum to do business.”

“The Congress, whenever _two thirds of both Houses_ shall deem it necessary, shall propose amendments to this Constitution.”

“A quorum for the purpose [the election of Vice-President] shall consist of two thirds of _the whole number of Senators_, and a majority of the whole number shall be necessary to a choice.”

Probably “the whole number of Senators” is equivalent to the term “House.” But what is the “House”?

The Senate _de jure_ consists of two Senators from each State.