Part 3

Among the claimants of the present day there are doubtless many of character and virtue. It is hard to vote against them. But I cannot be controlled on this occasion by my sympathies. Everywhere and in every household there has been suffering which mortal power cannot measure. Sometimes it is borne in silence and solitude; sometimes it is manifest to all. In coming into this Chamber and asking for compensation, it invites comparison with other instances. If your allowance is to be on account of merit, who will venture to say that this case is the most worthy? It is before us now for judgment. But there are others, not now before us, where the suffering has been greater, and where, I do not hesitate to say, the reward should be in proportion. This is an appeal for justice. Therefore do I say, in the name of justice, Wait!

January 15th, the same bill being under discussion, Mr. Sumner spoke as follows:--

There is another point, on which I forbore to dwell with sufficient particularity when I spoke before. It is this: Assuming that this claimant is loyal, I honor her that she kept her loyalty under the surrounding pressure of rebellion. Of course this was her duty,--nor more nor less. The practical question is, Shall she be paid for it? Had she been disloyal, there would have been no proposition of compensation. As the liability of the Nation is urged on the single ground that she kept her regard for the flag truly and sincerely, it is evident that this loyalty must be put beyond question; it must be established like any other essential link of evidence. I think I do not err in supposing that it is not established in the present case,--at least with such certainty as to justify opening the doors of the Treasury.

But assuming that in fact the loyalty is established, I desire to go further, and say that not only is the present claim without any support in law, but it is unreasonable. The Rebel States had become one immense prison-house of Loyalty; Alabama was a prison-house. The Nation, at every cost of treasure and blood, broke into that prison-house, and succeeded in rescuing the Loyalists; but the terrible effort, which cost the Nation so dearly, involved the Loyalists in losses also. In breaking into the prison-house and dislodging the Rebel keepers, property of Loyalists suffered. And now we are asked to pay for this property damaged in our efforts for their redemption. Our troops came down to break the prison-doors and set the captives free. Is it not unreasonable to expect us to pay for this breaking?

If the forces of the United States had failed, then would these Loyalists have lost everything, country, property, and all,--that is, if really loyal, according to present professions. It was our national forces that saved them from this sacrifice, securing to them country, and, if not all their property, much of it. A part of the property of the present claimant was taken in order to save to her all else, including country itself. It was a case, such as might occur under other circumstances, where a part--and a very small part--is sacrificed in order to save the rest. According to all analogies of jurisprudence, and the principles of justice itself, the claimant can look for nothing beyond such contribution as Congress in its bounty may appropriate. It is a case of bounty, and not of law.

It is a mistake to suppose, as has been most earnestly argued, that a claimant of approved loyalty in the Rebel States should have compensation precisely like a similar claimant in a Loyal State. To my mind this assumption is founded on a misapprehension of the Constitution, the law, and the reason of the case,--three different misapprehensions. By the Constitution property cannot be taken for public use without “just compensation”; but this rule was silent in the Rebel States. International Law stepped in and supplied a different rule. And when we consider how much was saved to the loyal citizen in a Rebel State by the national arms, it will be found that this rule is only according to justice.

I have no disposition to shut the door upon claimants. Let them be heard; but the hearing must be according to some system, so that Congress shall know the character and extent of these claims. Before the motion of my colleague,[41] I had already prepared instructions for the Committee, which I will read, as expressing my own conclusion on this matter:--

“That the committee to whom this bill shall be referred, the Committee on Claims, be instructed to consider the expediency of providing for the appointment of a commission whose duty it shall be to inquire into the claims of the loyal citizens of the National Government arising during the recent Rebellion anywhere in the United States, classifying these claims, specifying their respective amounts, and the circumstances out of which they originated, also, the evidence of loyalty adduced by the claimants respectively, to the end that Congress may know precisely the extent and character of these claims before legislating thereupon.”

As this is a resolution of instruction, simply to consider the expediency of what is proposed, I presume there can be no objection to it.

Afterwards, on motion of Mr. Sumner, the bill, with all pending propositions, was recommitted to the Committee on Claims.

TRIBUTE TO HON. JAMES HINDS, REPRESENTATIVE OF ARKANSAS.

SPEECH IN THE SENATE, JANUARY 23, 1869.

Mr. Hinds, while engaged in canvassing the State of Arkansas on the Republican side, was assassinated. The Senators of Arkansas requested Mr. Sumner to speak on the resolution announcing his death.

MR. PRESIDENT,--It is with hesitation that I add a word on this melancholy occasion, and I do it only in compliance with the suggestion of others.

I did not know Mr. Hinds personally; but I have been interested in his life, and touched by his tragical end. Born in New York, educated in Ohio, a settler in Minnesota, and then a citizen of Arkansas, he carried with him always the energies and principles ripened under our Northern skies. He became a Representative in Congress, and, better still, a vindicator of the Rights of Man. Unhappily, that barbarism which we call Slavery is not yet dead, and it was his fate to fall under its vindictive assault. Pleading for the Equal Rights of All, he became a victim and martyr.

Thus suddenly arrested in life, his death is a special sorrow, not only to family and friends, but to the country which he had begun to serve so well. The void, when a young man dies, is measured less by what he has done than by the promises of the future. Performance itself is forgotten in the ample assurance afforded by character. Already Mr. Hinds had given himself sincerely and bravely to the good cause. By presence and speech he was urging those great principles of the Declaration of Independence whose complete recognition will be the cope-stone of our Republic, when he fell by the stealthy shot of an assassin. It was in the midst of this work that he fell, and on this account I am glad to offer my tribute to his memory.

As the life he led was not without honor, so his death is not without consolation. It was the saying of Antiquity, that it is sweet to die for country. Here was death not only for country, but for mankind. Nor is it to be forgotten, that, dying in such a cause, his living voice is echoed from the tomb. There is a testimony in death often greater than in any life. The cause for which a man dies lives anew in his death. “If the assassination could trammel up the consequence,” then might the assassin find some other satisfaction than the gratification of a barbarous nature. But this cannot be. His own soul is blasted; the cause he sought to kill is elevated; and thus it is now. The assassin is a fugitive in some unknown retreat; the cause is about to triumph.

Often it happens that death, which takes away life, confers what life alone cannot give. It makes famous. History does not forget Lovejoy, who for devotion to the cause of the slave was murdered by a fanatical mob; and it has already enshrined Abraham Lincoln in holiest keeping. Another is added to the roll,--less exalted than Lincoln, less early in immolation than Lovejoy, but, like these two, to be remembered always among those who passed out of life through the gate of sacrifice.

POWERS OF CONGRESS TO PROHIBIT INEQUALITY, CASTE, AND OLIGARCHY OF THE SKIN.

SPEECH IN THE SENATE, FEBRUARY 5, 1869.

The Senate having under consideration a joint resolution from the House of Representatives proposing an Amendment to the Constitution of the United States on the subject of Suffrage in the words following, viz.:--

“ARTICLE ----.

“SECTION 1. The right of any citizen of the United States to vote shall not be denied or abridged by the United States or any State by reason of the race, color, or previous condition of slavery of any citizen or class of citizens of the United States.

“SEC. 2. The Congress shall have power to enforce by proper legislation the provisions of this Article.”--

Mr. Sumner offered the following bill as a substitute:--

SECTION 1. That the right to vote, to be voted for, and to hold office shall not be denied or abridged anywhere in the United States, under any pretence of race or color; and all provisions in any State Constitutions, or in any laws, State, Territorial, or Municipal, inconsistent herewith, are hereby declared null and void.

SEC. 2. That any person, who, under any pretence of race or color, wilfully hinders or attempts to hinder any citizen of the United States from being registered, or from voting, or from being voted for, or from holding office, or who attempts by menaces to deter any such citizen from the exercise or enjoyment of the rights of citizenship above mentioned, shall be punished by a fine not less than one hundred dollars nor more than three thousand dollars, or by imprisonment in the common jail for not less than thirty days nor more than one year.

SEC. 3. That every person legally engaged in preparing a register of voters, or in holding or conducting an election, who wilfully refuses to register the name or to receive, count, return, or otherwise give the proper legal effect to the vote of any citizen, under any pretence of race or color, shall be punished by a fine not less than five hundred dollars nor more than four thousand dollars, or by imprisonment in the common jail for not less than three calendar months nor more than two years.

SEC. 4. That the District Courts of the United States shall have exclusive jurisdiction of all offences against this Act; and the district attorneys, marshals, and deputy marshals, the commissioners appointed by the Circuit and Territorial Courts of the United States, with powers of arresting, imprisoning, or bailing offenders, and every other officer specially empowered by the President of the United States, shall be, and they are hereby, required, at the expense of the United States, to institute proceedings against any person who violates this Act, and cause him to be arrested and imprisoned or bailed, as the case may be, for trial before such court as by this Act has cognizance of the offence.

SEC. 5. That every citizen unlawfully deprived of any of the rights of citizenship secured by this Act, under any pretence of race or color, may maintain a suit against any person so depriving him, and recover damages in the District Court of the United States for the district in which such person may be found.

On this he spoke as follows:--

MR. PRESIDENT,--In the construction of a machine the good mechanic seeks the simplest process, producing the desired result with the greatest economy of time and force. I know no better rule for Congress on the present occasion. We are mechanics, and the machine we are constructing has for its object the conservation of Equal Rights. Surely, if we are wise, we shall seek the simplest process, producing the desired result with the greatest economy of time and force. How widely Senators are departing from this rule will appear before I have done.

* * * * *

Rarely have I entered upon any debate in this Chamber with a sense of sadness so heavy as oppresses me at this moment. It was sad enough to meet the champions of Slavery, as in other days they openly vindicated the monstrous pretension and claimed for it the safeguard of the Constitution, insisting that Slavery was national and Freedom sectional. But this was not so sad as now, after a bloody war with Slavery, and its defeat on the battle-field, to meet the champions of a kindred pretension, for which they claim the safeguard of the Constitution, insisting also, as in the case of Slavery, upon State Rights. The familiar vindication of Slavery in those early debates was less sickening than the vindication now of the intolerable pretension, that a State, constituting part of the Nation, and calling itself “Republican,” is entitled to shut out any citizen from participation in government simply on account of race or color. To denominate such pretension as intolerable expresses very inadequately the extent of its absurdity, and the utterness of its repugnance to all good principles, whether of reason, morals, or government.

I make no question with individual Senators; I make no personal allusion; but I meet the odious imposture, as I met the earlier imposture, with indignation and contempt, naturally excited by anything unworthy of this Chamber and unworthy of the Republic. How it can enter here and find Senators willing to assume the stigma of its championship is more than I can comprehend. Nobody ever vindicated Slavery, who did not lay up a store of regret for himself and his children; and permit me to say now, nobody can vindicate Inequality and Caste, whether civil or political, the direct offspring of Slavery, as intrenched in the Constitution, beyond the reach of national prohibition, without laying up a similar store of regret. Death may happily come to remove the champion from the judgment of the world; but History will make its faithful record, to be read with sorrow hereafter. Do not complain, if I speak strongly. The occasion requires it. I seek to save the Senate from participation in an irrational and degrading pretension.

Others may be cool and indifferent; but I have warred with Slavery too long, in all its different forms, not to be aroused when this old enemy shows its head under an _alias_. Once it was Slavery; now it is Caste; and the same excuse is assigned now as then. In the name of State Rights, Slavery, with all its brood of wrong, was upheld; and now, in the name of State Rights, Caste, fruitful also in wrong, is upheld. The old champions reappear under other names and from other States, each crying out, that, under the National Constitution, notwithstanding even its supplementary Amendments, a State may, if it pleases, deny political rights on account of race or color, and thus establish that vilest institution, a Caste and an Oligarchy of the Skin.

This perversity, which to careless observation seems so incomprehensible, is easily understood, when it is considered that the present generation grew up under an interpretation of the National Constitution supplied by the upholders of Slavery. State Rights were exalted and the Nation was humbled, because in this way Slavery might be protected. Anything for Slavery was constitutional. Such was the lesson we were taught. How often I have heard it! How often it has sounded through this Chamber, and been proclaimed in speech and law! Under its influence the Right of Petition was denied, the atrocious Fugitive Slave Bill was enacted, and the claim was advanced that Slavery travelled with the flag of the Republic. Vain are all our victories, if this terrible rule is not reversed, so that State Rights shall yield to Human Rights, and the Nation be exalted as the bulwark of all. This will be the crowning victory of the war. Beyond all question, the true rule under the National Constitution, especially since its additional Amendments, is, that _anything for Human Rights is constitutional_. Yes, Sir; against the old rule, _Anything for Slavery_, I put the new rule, _Anything for Human Rights_.

* * * * *

Sir, I do not declare this rule hastily, and I know the presence in which I speak. I am surrounded by lawyers, and now I challenge any one or all to this debate. I invoke the discussion. On an occasion less important, Mr. Pitt, afterwards Lord Chatham, after saying that he came not “with the statute-book doubled down in dog’s-ears to defend the cause of Liberty,” that he relied on “a general principle, a constitutional principle,” exclaimed: “It is a ground on which I stand firm, on which I dare meet any man.”[42] In the same spirit I would speak now. No learning in books, no skill acquired in courts, no sharpness of forensic dialectics, no cunning in splitting hairs can impair the vigor of the constitutional principle which I announce. Whatever you enact for Human Rights is constitutional. There can be no State Rights against Human Rights; and this is the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding.

A State exercises its proper function, when, within its own jurisdiction, it administers local law, watches local interests, promotes local charities, and by local knowledge brings the guardianship of Government to the home of the citizen. Such is the proper function of the State, by which we are saved from that centralization elsewhere so absorbing. But a State transcends its proper function, when it interferes with those Equal Rights, whether civil or political, which by the Declaration of Independence and repeated texts of the National Constitution are under the safeguard of the Nation. The State is local in character, and not universal. Whatever is justly local belongs to its cognizance; whatever is universal belongs to the Nation. But what can be more universal than the Rights of Man? They are for “all men,”--not for all white men, but for all men. Such they have been declared by our fathers, and this axiom of Liberty nobody can dispute.

* * * * *

Listening to the champions of Caste and Oligarchy under the National Constitution, and perusing their writings, I think I understand the position they take. With as much calmness as I can command, I note what they have to say in speech and in print. I know it all. I do not err, when I say that this whole terrible and ignominious pretension is traced to direct and barefaced perversion of the National Constitution. Search history, study constitutions, examine laws, and you will find no perversion more thoroughly revolting. By the National Constitution it is provided, that “the electors in each State shall have the _qualifications_ requisite for electors of the most numerous branch of the State Legislature,”--thus seeming to refer the primary determination of what are called “qualifications” to the States; and this is reinforced by the further provision, that “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_.” This is all On these simple texts, conferring plain and intelligible powers, the champions insist that “color” may be made a “qualification,” and that under the guise of “regulations” citizens whose only offence is a skin not colored like our own may be shut out from political rights,--and that in this way a monopoly of rights, being at once a Caste and an Oligarchy of the Skin, is placed under the safeguard of the National Constitution. Such is the case of the champions; this is their stock-in-trade. With all their learning, all their subtlety, all their sharpness, this is what they have to say in behalf of an infamous pretension under the National Constitution. Everything from them begins and ends in a perversion of two words,--“qualifications” and “regulations.”

Now to this perversion I oppose point-blank denial. These two words are not justly susceptible of any such signification, especially in a National Constitution, which is to be interpreted always so that Human Rights shall not suffer. I do not stop now for dictionaries. The case is too plain. A “qualification” is something that can be acquired. A man is familiarly said to “qualify” for an office. Nothing can be a “qualification” which is not in its nature attainable,--as residence, property, education, or character, each of which is within the possible reach of well-directed effort. Color cannot be a “qualification.” If the prescribed “qualification” were color of the hair or color of the eyes, all would see its absurdity; but it is none the less absurd, when it is color of the skin. Here is an unchangeable condition, impressed by Providence. Are we not reminded that the leopard cannot change his spots, or the Ethiopian his skin? These are two examples of enduring conditions. Color is a quality from Nature. But a “quality” is very different from a “qualification.” A quality inherent in man and part of himself can never be a “qualification” in the sense of the National Constitution. On other occasions I have cited authorities,[43] and shown how this attempt to foist into the National Constitution a pernicious meaning is in defiance of all approved definition, as it is plainly repugnant to reason, justice, and common sense.

The same judgment must be pronounced on the attempt to found this outrage upon the power to make “regulations,”--as if this word had not a limited signification which renders such a pretension impossible. “Regulations” are nothing but rules applicable to a given matter; they concern the manner in which a business shall be conducted, and, when used with regard to elections, are applicable to what may be called incidents, in contradistinction to the principal, which is nothing less than the right to vote. A power to regulate is not a power to destroy or to disfranchise. In an evil hour Human Rights may be struck down, but it cannot be merely by “regulations.” The pretension that under such authority this great wrong may be done is another illustration of that extravagance which the champions do not shrink from avowing.

The whole structure of Caste and Oligarchy, as founded on two words, may be dismissed. It is hard even to think of it without impatience, to speak of it without denouncing it as unworthy of human head or human heart. There are honorable Senators who shrink from any direct argument on these two words, and, wrapping themselves in pleonastic phrase, content themselves with the general assertion, that power over suffrage belongs to the States. But they cannot maintain this conclusion without founding on these two words,--insisting that color may be a “qualification,” and that under the narrow power to make “regulations” a race may be broadly disfranchised. To this wretched pretension are they driven. And now, if there be any such within the sound of my voice, I ask the question directly,--Can “color,” whether of hair, eyes, or skin, be a “qualification” under our National Constitution? under the pretence of making “regulations” of elections, can a race be disfranchised? With all the power derived from both these words, can any State undertake to establish a Caste and organize an Oligarchy of the Skin? To put these questions is to answer them.