Part 1

Statesman Edition VOL. XIV

Charles Sumner

HIS COMPLETE WORKS

With Introduction BY HON. GEORGE FRISBIE HOAR

BOSTON LEE AND SHEPARD MCM

COPYRIGHT, 1874 AND 1875, BY FRANCIS V. BALCH, EXECUTOR.

COPYRIGHT, 1900, BY LEE AND SHEPARD.

Statesman Edition. LIMITED TO ONE THOUSAND COPIES. OF WHICH THIS IS No. 565

Norwood Press: NORWOOD, MASS., U.S.A.

CONTENTS OF VOLUME XIV.

PAGE

MAJORITY OR PLURALITY IN THE ELECTION OF SENATORS. Speech in the Senate, on the Contested Election of Hon. John P. Stockton, of New Jersey, March 23, 1866 1

A SENATOR CANNOT VOTE FOR HIMSELF. Speech in the Senate, on the Vote of Hon. John P. Stockton affirming his Seat in the Senate, March 26, 1866 15

REMODELLING OF THE SUPREME COURT OF THE UNITED STATES. Remarks in the Senate, on the Bill to reorganize the Judiciary of the United States, April 2, 1866 30

THE LATE SOLOMON FOOT, SENATOR FROM VERMONT. Speech in the Senate, on his Death, April 12, 1866 33

COMPLETE EQUALITY IN RIGHTS, AND NOT SEMI-EQUALITY. Letter to a Committee on the Celebration of Emancipation in the District of Columbia, April 14, 1866 41

JUSTICE TO MECHANICS IN THE WAR. Speech in the Senate, on a Bill for the Relief of certain Contractors, April 17, 1866 43

POWER OF CONGRESS TO COUNTERACT THE CATTLE-PLAGUE. Remarks in the Senate, on a Resolution to print a Letter of the Commissioner of Agriculture on the Cattle-Plague, April 25, 1866 49

URGENT DUTY OF THE HOUR. Letter to the American Antislavery Society, May 1, 1866 51

TIME AND RECONSTRUCTION. Remarks in the Senate, on a Resolution to hasten Reconstruction, May 2, 1866 52

THE EMPEROR OF RUSSIA AND EMANCIPATION. Remarks on a Joint Resolution relative to Attempted Assassination of the Emperor, May 8, 1866 56

POWER OF CONGRESS TO PROVIDE AGAINST CHOLERA FROM ABROAD. Speeches in the Senate, on a Joint Resolution to prevent the Introduction of Cholera into the Ports of the United States, May 9, 11, and 15, 1866 59

RANK OF DIPLOMATIC REPRESENTATIVES ABROAD. Speeches in the Senate, on an Amendment to the Consular and Diplomatic Bill, authorizing Envoys Extraordinary and Ministers Plenipotentiary instead of Ministers Resident, May 16 and 17, 1866 74

OFFICE OF ASSISTANT SECRETARY OF STATE, AND MR. HUNTER. Remarks in the Senate, on an Amendment to the Consular and Diplomatic Bill, creating the Office of Second Assistant Secretary of State, May 16 and 17, 1866 82

DELAY IN THE REMOVAL OF DISABILITIES. Letter to an Applicant, May, 1866 85

INTERRUPTION OF RIGHT OF PETITION. Remarks in the Senate, on the Withdrawal of a Petition from Citizens of Virginia, May 24, 1866 86

OFFICIAL HISTORY OF THE REBELLION. Remarks in the Senate, on a Joint Resolution to provide for the Publication of the Official History of the Rebellion, May 24, 1866 88

EQUAL RIGHTS A CONDITION OF RECONSTRUCTION. Amendment in the Senate to a Reconstruction Bill, May 29, 1866 92

INTER-STATE INTERCOURSE BY RAILWAY. Remarks in the Senate, on the Bill to facilitate Commercial, Postal, and Military Communication in the several States, May 29, 1866 93

ATTITUDE OF JUSTICE TOWARDS ENGLAND. Remarks in the Senate, on the Bill for the Relief of the Owners of the British Vessel Magicienne, June 26, 1866 96

POWER OF CONGRESS TO MAKE A SHIP CANAL AT NIAGARA. Remarks in the Senate, on a Bill to incorporate the Niagara Ship-Canal, June 28, 1866 99

HONOR TO A CONSTANT UNION MAN OF SOUTH CAROLINA. Remarks in the Senate, on a Joint Resolution to authorize the Purchase for Congress of the Law Library of the Late James L. Pettigru, of South Carolina, July 3, 1866 103

OPEN VOTING IN THE ELECTION OF SENATORS; SECRET VOTING AT POPULAR ELECTIONS. Speech in the Senate, on the Bill concerning the Election of Senators, July 11, 1866 105

MAIL SERVICE BETWEEN THE UNITED STATES AND THE SANDWICH ISLANDS. Speech in the Senate, on a Joint Resolution releasing the Pacific Mail Steamships from stopping at the Sandwich Islands on their Route to Japan and China, July 17, 1866 110

TENNESSEE NOT SUFFICIENTLY RECONSTRUCTED. Speech in the Senate, on a Joint Resolution declaring Tennessee again entitled to Senators and Representatives in Congress, July 21, 1866 114

THE SENATE CHAMBER: ITS VENTILATION AND SIZE. Speech in the Senate, on an Amendment to the Civil Appropriation Bill, July 23, 1866 119

A SHIP-CANAL THROUGH THE ISTHMUS OF DARIEN. Remarks in the Senate, on an Amendment to the Civil Appropriation Bill, July 25, 1866 124

INQUIRY INTO THE TITLE OF A SENATOR TO HIS SEAT. Remarks in the Senate, on the Credentials of the Senator from Tennessee, July 26, 1866 126

NO MORE STATES WITH THE WORD “WHITE” IN THE CONSTITUTION. Speeches in the Senate, on the Admission of Nebraska as a State, July 27, December 14 and 19, 1866, and January 8, 1867 128

THE METRIC SYSTEM OF WEIGHTS AND MEASURES. Speech in the Senate, on Two Bills and a Joint Resolution relating to the Metric System, July 27, 1866 148

ART IN THE NATIONAL CAPITOL. Speech in the Senate, on a Joint Resolution authorizing a Contract with Vinnie Ream for a Statue of Abraham Lincoln, July 27, 1866 164

THE ONE MAN POWER _VS._ CONGRESS. THE PRESENT SITUATION. Address at the Opening of the Annual Lectures of the Parker Fraternity, at the Music Hall, Boston, October 2, 1866 181

THE OCEAN TELEGRAPH BETWEEN EUROPE AND AMERICA. Answer to Invitation to attend a Banquet at New York, in Honor of Cyrus W. Field, November 14, 1866 220

ENCOURAGEMENT TO COLORED FELLOW-CITIZENS. Letter to a Convention of Colored Citizens, December 2, 1866 222

THE TRUE PRINCIPLES OF RECONSTRUCTION. ILLEGALITY OF EXISTING GOVERNMENTS IN THE REBEL STATES. Resolutions and Remarks in the Senate, December 5, 1866 224

FEMALE SUFFRAGE, AND AN EDUCATIONAL TEST OF MALE SUFFRAGE. Speech in the Senate, on Amendments to the Bill conferring Suffrage without Distinction of Color in the District of Columbia, December 13, 1866 228

PROHIBITION OF PEONAGE. Resolution and Remarks in the Senate, January 3, 1867 232

PRECAUTION AGAINST THE REVIVAL OF SLAVERY. Remarks in the Senate, on a Resolution and the Report of the Judiciary Committee, January 3 and February 20, 1867 234

PROTECTION AGAINST THE PRESIDENT. Speeches in the Senate, on an Amendment to the Tenure-of-Office Bill, January 15, 17, and 18, 1867 239

DENUNCIATION OF THE COOLIE TRADE. Resolution in the Senate, from the Committee on Foreign Relations, January 16, 1867 262

CHEAP BOOKS AND PUBLIC LIBRARIES. Remarks in the Senate, on Amendments to the Tariff Bill reducing the Tariff on Books, January 24, 1867 263

CHEAP COAL. Speech in the Senate, on an Amendment to the Tariff Bill, January 29, 1867 271

A SINGLE TERM FOR THE PRESIDENT, AND CHOICE BY DIRECT VOTE OF THE PEOPLE. Remarks in the Senate, on an Amendment of the National Constitution, February 11, 1867 278

RECONSTRUCTION AT LAST WITH COLORED SUFFRAGE AND PROTECTION AGAINST REBEL INFLUENCE. Speeches in the Senate, on the Bill to provide for the more Efficient Government of the Rebel States, February 14, 19, and 20, 1867 282

THE DEPARTMENT OF EDUCATION. Remarks in the Senate, on the Bill to establish a Department of Education, February 26, 1867 297

MONUMENTS TO DECEASED SENATORS. Remarks in the Senate, on a Resolution directing the Erection of such Monuments, February 27, 1867 299

A VICTORY OF PEACE. Speech in the Senate, on a Joint Resolution giving the Thanks of Congress to Cyrus W. Field, March 2, 1867 301

FURTHER GUARANTIES IN RECONSTRUCTION. LOYALTY, EDUCATION, AND A HOMESTEAD FOR FREEDMEN; MEASURES OF RECONSTRUCTION NOT A BURDEN OR PENALTY. Resolutions and Speeches in the Senate, March 7 and 11, 1867 304

GENEROSITY FOR EDUCATION. Speech in the Senate, on a Joint Resolution giving the Thanks of Congress to George Peabody, March 8, 1867 317

RECONSTRUCTION AGAIN. THE BALLOT AND PUBLIC SCHOOLS OPEN TO ALL. Speeches in the Senate, on the Supplementary Reconstruction Bill, March 15 and 16, 1867 321

PROHIBITION OF DIPLOMATIC UNIFORM. Speech in the Senate, on a Joint Resolution concerning the Uniform of Persons in the Diplomatic Service of the United States, March 20, 1867 344

VIGILANCE AGAINST THE PRESIDENT. Remarks in the Senate, on Resolutions adjourning Congress, March 23, 26, 28, and 29, 1867 348

LOYALTY AND REPUBLICAN GOVERNMENT CONDITIONS OF ASSISTANCE TO THE REBEL STATES. Remarks in the Senate, on a Joint Resolution authorizing Surveys for the Reconstruction of the Levees of the Mississippi, March 29, 1867 358

MAJORITY OR PLURALITY IN THE ELECTION OF SENATORS.

SPEECH IN THE SENATE, ON THE CONTESTED ELECTION OF HON. JOHN P. STOCKTON, OF NEW JERSEY, MARCH 23, 1866.

The seat of Hon. John P. Stockton, as Senator from New Jersey, was contested at this session of the Senate, on the ground of irregularity in the election. The Judiciary Committee, by their Chairman, Mr. Trumbull, reported that he “was duly elected, and is entitled to his seat,” and in their report stated the case:--

“The only question involved in the decision of Mr. Stockton’s right to a seat is, whether an election by a plurality of votes of the members of the Legislature of New Jersey, in joint meeting assembled, in pursuance of a rule adopted by the joint meeting itself, is valid. The protestants insist that it is not; and they deny Mr. Stockton’s right to a seat, because, as they say, he was not appointed by a majority of the votes of the joint meeting of the Legislature.”

The debate on this question showed earnestness and feeling. Mr. Fessenden, of Maine, used strong language: “I was exceedingly surprised--more so, I will say, than I ever was before, at a judicial decision, in my life--at the opinion to which the Committee on the Judiciary arrived in relation to this matter.” Mr. Trumbull defended the report. Mr. Sumner followed.

MR. PRESIDENT,--When the Senator from Illinois rose to speak, I had made up my mind to say nothing in this debate; but topics have been introduced by him which I am unwilling should pass without notice.

The Senator did not disguise that the case is without a precedent in the history of the Senate. Never before has a Senator appeared in this Chamber with the credentials of a minority. And I venture to say further, that the rule of a majority has the constant consecration of history in the proceedings of parliamentary or electoral bodies. It is the rule of the House of Commons in the choice of Speaker; and this is the most important precedent for us, for our Parliamentary Law is derived from England. But it antedates the English Parliament. The oldest electoral body in the world is the Conclave of Cardinals; but who has heard that a Pope was ever elected by a minority? I ask your attention to this example, that you may see how the rule of the minority is constantly rejected, notwithstanding temptation, inducement, and pressure to adopt it. There have been many contested elections, during which the Cardinals, separated from the world, each in a small apartment or cell of the Vatican or the Palace of the Quirinal, have been imprisoned like a jury, sometimes for months, waiting for the requisite majority. They did not undertake to change the rule, and set up the will of a minority. There was Lambertini, who shone as Pope Benedict the Fourteenth, conspicuous as statesman and patron of letters, who was not chosen until after six months’ ineffectual efforts. Such instances stand like so many pillars, and I refer to them now as proper to guide your conduct.

The question before us is of law, and nothing else. It is not a question of politics or of sentiment, except so far as these enter into the determination of law. It is a question for reason alone.

It lies in a nutshell. A brief text of the National Constitution, and another brief text of a local statute, are all that need be considered.

The National Constitution provides as follows:--

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

“The times, places, and _manner of holding elections for Senators_ and Representatives shall be _prescribed_ in each State by the _Legislature_ thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”

In carrying out this provision, the Legislature of New Jersey, by a statute passed April 10, 1846, and copied from a statute passed in 1790, enacted as follows:--

“Senators of the United States on the part of this State shall be appointed _by the Senate and General Assembly of this State in joint meeting assembled_.”

In pursuance of these two provisions of National Constitution and of local statute, the Legislature of New Jersey has undertaken to elect a Senator. From the statement of the case, it appears, that, on a certain day, the two Houses assembled “in joint meeting”; that they proceeded to act on a resolution declaring that “any candidate receiving a _plurality_ of votes of the members present shall be declared duly elected”; that this resolution was adopted by forty-one votes out of eighty-one,--eleven Senators, being a majority of the Senate, and thirty members of the House, being less than a majority of that body, voting for it; that, in pursuance of this resolution, Mr. Stockton was declared Senator, although he did not receive a majority of the votes of either House or of the joint meeting. In point of fact, he received forty votes, of which ten were from Senators and thirty from members of the Assembly, while against him were forty-one votes; and the question you are to decide is on the legality of this election.

The National Constitution is the original and highest source of light on the question. Here we find, that, in the absence of any regulations from Congress, the manner of choosing a Senator is referred to the State Legislature. The Senator is to be chosen by the _Legislature_, which is to _prescribe_, among other things, the _manner_ of holding the election. Whatever the State can do must be derived from this source, nor more nor less. The choice is by the Legislature, according to a manner prescribed by the Legislature.

The National Constitution does not undertake to define a State Legislature or its forms of proceeding. This is left to the State itself. Notoriously, these Legislatures were modelled on the Colonial Legislatures preceding them, which had been modelled on the Parliament of the mother country. As a general rule, there were two Chambers, upper and lower; but this was not universal. In Georgia and Pennsylvania there was for a while only a single Chamber, constituting the Legislature. I mention this to show how completely the State itself was left to determine the conditions of its Legislature. But the State speaks through the State Constitution, which fixes these conditions. Where the Constitution is silent, can the Legislature itself venture to speak?

Repairing to the Constitution of New Jersey, we find it providing that “the _legislative power_ shall be vested in a Senate and General Assembly”; that these bodies shall meet and organize separately”; that “all bills and joint resolutions shall be read three times in each House”; and “no bill or joint resolution shall pass, unless there be a _majority_ of all the members of each body personally present and agreeing thereto.” Such is the definition of a Legislature, and such are the forms of legislative proceedings prescribed by the Constitution of New Jersey.

The statute of New Jersey, to which I have referred as framed in 1790, was entitled “An Act to _prescribe the manner_ of appointing Senators of the United States and Electors of the President and Vice-President of the United States on the part of this State.” This was in pursuance of the National Constitution. It was the execution, on the part of the State, of the power with which it was invested to prescribe the manner of electing Senators.

I have no purpose of raising any question with regard to the validity of this statute prescribing the election of Senators _in joint meeting_. Constant usage is in its favor; and yet I have no hesitation in saying that it has always seemed to me inconsistent with a just construction of the National Constitution. Senators are to be “chosen by the Legislature”; but the Legislature is composed of two separate bodies, defined by the State Constitution. Senators, therefore, should be chosen by the two bodies separately. So it has always seemed to me, and the practice of my own State is accordingly. In this opinion I am sustained by so eminent an authority as Chancellor Kent, who, after setting forth the usage, proceeds to express his dissent from it as a just construction of the National Constitution. His language is explicit:--

“I should think, if the question was a new one, that, when the Constitution directed that the Senators should be chosen by _the Legislature_, it meant, not the members of the Legislature _per capita_, but the Legislature in the true technical sense, being the two Houses acting in their separate and organized capacities, with the ordinary constitutional right of negative on each other’s proceedings.”[1]

It is difficult to resist this conclusion, especially when it is considered that in any other way the smaller body is actually swamped by the larger. In a joint meeting the Senate loses its relative power. I adduce this, not for criticism, but only for illustration. Even admitting that the received usage of choosing Senators in joint meeting is consistent with the National Constitution, it is clear that it should not be extended; and this is the precise question before us. Contrary to all usage or precedent, and without any direct sanction in the Constitution or statutes of New Jersey, the Legislature has undertaken in joint meeting, not only to choose a Senator, but also to prescribe the manner of choosing him. Finding that it could not choose according to existing usage, it adopted the resolution declaring that the election should be determined by a minority of votes instead of a majority.

In this resolution two questions arise: first, can the Legislature itself, by legislative act, substitute a minority for a majority in the election of Senators, and thus set aside a great and traditional principle? and, secondly, can it do this in a “joint meeting,” without any previous legislative act? It is enough for the present occasion, if I show, that, whatever may be the powers of the Legislature by legislative act, it can have no such extraordinary power in the questionable assembly known as “joint meeting.” But we shall better understand the second question, after considering the first.

To what extent can a Legislature substitute a minority for a majority in any of its proceedings? In most cases the question is controlled by the express language of the State Constitution; but I present the question now independently of any State Constitution.

In considering the power of the Legislature, it is important to put aside any influence that may be attributed to the unquestioned usage of choosing Representatives and other officers by plurality of votes. Because the people choose by plurality, it does not follow that a Legislature may. From time immemorial, the rule in the two cases has been different, unless we except the New England States, where, until recently, even popular elections were by a majority. But the origin of the practice in New England testifies to the rule.

It is proper for us to interrogate the country from which our institutions are derived, for the origin of the rule. Indeed, where a word is used in the Constitution having a previous signification or character in the institutions of England, we cannot err, if we consider its import there. I think we do this habitually. Mr. Wirt, in his masterly argument on the impeachment of Judge Peck, develops this idea.

“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.… The very name by which it is called into being authorizes it to look at once to the English archetypes for its government.”[2]

Following this statement, so clearly expressed, the words “Legislature” and “holding elections,” in the National Constitution, which belonged to the political system of England, may be explained by that system,--so, at least, that in case of doubt we shall find light in this quarter.

Now, from the beginning, it appears that in England there have been two different rules with regard to elections by the legislature and elections by the people. Elections by the legislature, like legislative acts, have been by majority; elections by the people for Parliament have been by plurality. This distinction is found throughout English history.