Part 20

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 of _McCulloch_ v. _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, and _all 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 safeguard of 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 special _ignis-fatuus_ the 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 Constitution _in behalf of Congressional action_ to 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.”

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, from _ante bellum_ arguments, 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 so essential 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.

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?

REPLY TO MR. CARPENTER.

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, and considered 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?