Part 21

“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 argument which 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.

MR. CARPENTER. Will my friend allow me,--not for the purpose of interrupting him, but to come to the point? Suppose Congress should pass a law that in no church in this country should the Host be exalted during divine service.

MR. SUMNER. The Senator knows well the difference. This is a religious observance.

Congress cannot interfere with any religious observance. Congress can do nothing to set up a religious establishment. It can make no law respecting an establishment of religion. But the Senator must see that in the case he puts, the proposed law would be the very thing prohibited by the Constitution. I thank him for that instance. I propose no interference with any religious observance,--not in the least: far from it.

Sir, the case is clear as day. All that I ask is, that, in harmony with the Declaration of Independence, there be complete equality before the law everywhere,--in the inn, on the highway, in the common school, in the church, on juries,--ay, Sir, and in the last resting-place on earth. The Senator steps forward and says: No,--I cannot accept equality in the church. There the Constitutional Amendments interpreted by the Declaration are powerless; there a White Man’s Government shall prevail. A church organization may be incorporated by National or State authority, and yet allowed to insult brothers of the human family on account of the skin. In the church this outrage may be perpetrated,--because to forbid it would interfere with religion and set up an establishment.

Such, Sir, is the argument of the Senator; and he makes it in the name of Religious Liberty! Good God, Sir! Religious liberty! The liberty to insult a fellow-man on account of his skin! You listened to his eloquent, fervid appeal. I felt its eloquence, but regretted that such power was employed in such a cause.

I said, that, consciously or unconsciously, he had copied Petroleum V. Nasby, in the letter of that renowned character entitled, “Goes on with his Church,” from which I read a brief passage:--

“CHURCH OF ST. VALLANDIGUM, “_June the 10th, 1863_.

“We hed a blessid and improvin time yisterday. My little flock staggered in at the usual hour in the mornin, every man in a heavenly frame uv mind, hevin bin ingaged all nite in a work uv mercy, to wit: a mobbin uv two enrollin officers. One uv em resisted, and they smote him hip and thigh, even ez Bohash smote Jaheel. (Skriptooral, wich is nessary, bein in the ministry.) He wuz left for dead.

“We opened servis by singin a hym, wich I writ, commencin ez follows:--

“Shel niggers black this land possess, And mix with us up here? O, no, my friends; we rayther guess We’ll never stand that ’ere.”[230]

[_Laughter._]

I ask if that is not the Senator’s speech? [_Laughter._] I know not whether it is necessary for me to go further. Something more, I might say. Very well, I will; the Senator rather invites me.

The Senator becomes here the representative of Caste; and where, Sir? In a Christian church; and while espousing that cause, he pleads the National Constitution. Now, Sir, I have to repeat--and here I am determined not to be misunderstood--we have no right to enter the church and interfere in any way with its religious ordinances, as with the raising of the Host; but when a church organization asks the benefit of the law by an act of incorporation, it must submit to the great primal law of the Union,--the Constitution of the United States, interpreted by the Declaration of Independence. The Senator smiles again; I shall come to that by-and-by. Whenever a church organization seeks incorporation, it must submit to the great political law of the land. It can have the aid it seeks only by submitting to this political law. Here is nothing of religion; it is the political law, the law of justice, the law of Equal Rights. The Senator says, No; they may do as they please in churches, because they are churches, because they are homes of religion, of Christianity; there they may insult on account of the skin. I call that a vindication of Caste, and Caste in one of its most offensive forms. You all know, Sir, the history of Caste. It is the distinction of which we first have conspicuous record in the East, though it has prevailed more or less in all countries; but it is in the East that it showed itself in such forms as to constitute the type by which we describe the abuse. It is an offensive difference between persons founded on birth, not unlike that maintained among us on account of a skin received from birth.

And now pardon me, if I call attention to the way in which this discrimination has been characterized by the most eminent persons familiar with it. I begin with the words of an estimable character known in religion and also in poetry,--Bishop Heber, of Calcutta, who pictured Caste in these forcible terms:--

“A system which tends, more than anything else the Devil has yet invented, to destroy the feelings of general benevolence, and to make nine-tenths of mankind the hopeless slaves of the remainder.”[231]

Then comes the testimony of Rev. Mr. Rhenius, a zealous and successful missionary in the East:--

“I have found Caste, both in theory and practice, to be diametrically opposed to the Gospel, which inculcates love, humility, and union; whereas Caste teaches the contrary. It is a fact, in those entire congregations where Caste is allowed, the spirit of the Gospel does not enter; whereas in those from which it is excluded we see the fruits of the Gospel spirit.”

* * * * *

MR. CARPENTER. Will the Senator allow me to interrupt him to ask whether these commentaries are read for the purpose of construing the Constitution of the United States? That is the only point of difference between us.

MR. SUMNER. The Senator will learn before I am through. I shall apply them.

After quoting other authorities, Mr. Sumner proceeded:--

These witnesses are strong and unimpeachable. In Caste, Government is nurturing a tremendous evil,--a noxious plant, by the side of which the Graces cannot flourish,--part and parcel of Idolatry,--a system which, more than anything else the Devil has yet invented, tends to destroy the feelings of general benevolence. Such is Caste,--odious, impious, accursed, wherever it shows itself.

Now, Sir, I am ready to answer the inquiry of the Senator, whether I read these as an interpretation of the Constitution of the United States. Not precisely; but I do read them to exhibit the outrage which seems to find a vindicator in the Senator from Wisconsin,--in this respect, at least, that he can look at the National Constitution, interpreted by the National Declaration, proclaiming the Equal Rights of All, and find no word empowering Congress to provide that in churches organized by law this hideous outrage shall cease. I think I do no injustice to the Senator. He finds no power. He tells us that if we exercise this power we shall have an Established Church, and he invokes the National Constitution. Sir, I, too, invoke the National Constitution,--not in one solitary provision, as the Senator does, but from its Preamble to its last Amendment,--and I invoke the Declaration of Independence. The Senator may smile. I know how he treats that great charter. I know how in other days he has treated it. But, Sir, the Declaration survives. It has been trifled with, derided, insulted often on this floor, but it is more triumphant now than ever. Its primal truths, announced as self-evident, are more commanding and more beaming now than when first uttered. They are like the sun in the heavens, with light and warmth.

…

Sir, is not the Senator answered? Is not the distinction clear as noonday between what is prohibited by the Constitution and what is proposed by my amendment? The difference between the two is as wide as between the sky and the earth. They cannot be mingled. There is no likeness, similitude, or anything by which they can be brought together. The Senator opposes a religious amendment. I assert that there shall be no political distinction; and that is my answer to his argument on churches.

And now, Sir, may I say, in no unkindness, and not even in criticism, but simply according to the exigencies of this debate, that the Senator from Wisconsin has erred? If you will listen, I think you will see the origin of his error. I do not introduce it here; nor should I refer to it, if he had not introduced it himself. The Senator has never had an adequate idea of the Great Declaration. The Senator smiles. I have been in this Chamber long enough to witness the vicissitudes of opinion on our Magna Charta. I have seen it derided by others more than it ever was by the Senator from Wisconsin.

MR. CARPENTER. I should like to ask the Senator from Massachusetts when he ever heard me deride it.

MR. SUMNER. The Senator will pardon me; I am coming to that. The Senator shall know. The person who first in this Chamber opened assault upon the Declaration was John C. Calhoun, in his speech on the Oregon Bill, June 27, 1848. He denounced the claim of equality as “the most false and dangerous of all political errors”; and he proceeded to say that it “has done more to retard the cause of Liberty and Civilization, and is doing more at present, than all other causes combined.” He then added, that “for a long time it lay dormant, but in the process of time it began to germinate and produce its poisonous fruits,”[232]--these poisonous fruits being that public sentiment against Slavery which was beginning to make itself felt.

This extravagance naturally found echo from his followers. Mr. Pettit, a Senator from Indiana, after quoting “We hold these truths to be self-evident, that all men are created equal,” proceeded:--

“I hold it to be a self-evident lie. There is no such thing. Sir, tell me that the imbecile, the deformed, the weak, the blurred intellect in man is my equal, physically, mentally, or morally, and you tell me a lie. Tell me, Sir, that the slave in the South, who is born a slave, and with but little over one-half the volume of brain that attaches to the northern European race, is his equal, and you tell what is physically a falsehood. There is no truth in it at all.”[233]

This was in the Senate, February 20, 1854. Of course it proceeded on a wretched misconstruction of the Declaration, which announced equality of rights and not any other equality, physical, intellectual, or moral. It was a declaration of rights,--nor more nor less.

Then, in the order of impeachment, followed a remarkable utterance from a much-valued friend of my own and of the Senator, the late Rufus Choate, who, without descending into the same particularity, seems to have reached a similar conclusion, when, in addressing political associates, he characterized the Declaration of Independence as “that passionate and eloquent manifesto of a revolutionary war,” and then again spoke of its self-evident truths as “the glittering and sounding generalities of natural right.”[234] This was in his letter to the Maine Whig State Central Committee, August 9, 1856. In my friendship for this remarkable orator, I can never think of these too famous words without a pang of regret.

This great question became a hinge in the memorable debate between Mr. Douglas and Mr. Lincoln in the contest for the Senatorship of Illinois, when the former said, in various forms of speech, that “the Declaration of Independence only included the white people of the United States”;[235] and Abraham Lincoln replied, that “the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the negro was not included in the Declaration.”[236] This was in Mr. Lincoln’s speech at Galesburg, October 7, 1858. Elsewhere he repeated the same sentiment.

Andrew Johnson renewed the assault. After quoting the great words of the Declaration, he said in this Chamber, December 12, 1859:--

“Is there an intelligent man throughout the whole country, is there a Senator, when he has stripped himself of all party prejudice, who will come forward and say that he believes that Mr. Jefferson, when he penned that paragraph of the Declaration of Independence, intended it to embrace the African population? Is there a gentleman in the Senate who believes any such thing?… There is not a man of respectable intelligence who will hazard his reputation upon such an assertion.”[237]

All this is characteristic of the author, as afterward revealed to us.

Then, Sir, in the list we skip to April 5, 1870, when the Senator from Wisconsin ranges himself in the line, characterizing the great truths of the Declaration as “the generalities of that revolutionary pronunciamento.” In reply to myself, he rebuked me, and said that it was my disposition, if I could not find a thing in the Constitution, to seek it in the Declaration of Independence,--and if it were not embodied in “the generalities of that revolutionary pronunciamento,” then to go still further.[238]

I present this exposition with infinite reluctance; but the Senator makes it necessary. In his speech the other day, he undertook to state himself anew with regard to the Declaration. He complained of me because I made the National Constitution and the National Declaration coëqual, and declared, that, if preference be given to one, it must be to the Declaration. To that he replied:--

“Now the true theory is plain.”

Mr. President, you are to have the “true theory” on this important question:--

“If the Senator from Massachusetts says, that in doubtful cases it is the duty of a court, or the duty of the Senate, or the duty of any public officer, to consider the Declaration of Independence, he is right. So he must consider the whole history of this country; he must consider the history of the Colonies, the Articles of Confederation, all anterior history. That is a principle of Municipal Law. A contract entered into between two individuals, in the language of the cases, must be read in the light of the circumstances that surrounded the parties who made it. Certainly the Constitution of the United States must be construed upon the same principle; and when we are considering a doubtful question, the whole former history of the country, the Declaration of Independence, the writings of Washington and of Jefferson and of Madison, the writings in ‘The Federalist,’--everything that pertained to that day and gives color and tone to the Constitution, must be considered.”[239]

Plainly, here is improvement. There is no derision. The truths of the Declaration are no longer “the generalities of that revolutionary pronunciamento.”

MR. CARPENTER. Oh, yes, it is; I stand by that.

MR. SUMNER. The Senator stands by that. Very well.

MR. CARPENTER. I glory in it. I glory in all the history of that revolutionary period, our revolutionary fathers, our revolutionary war. It is the Revolution that I make my stand upon.

MR. SUMNER. Then, as the Senator from Vermont [Mr. EDMUNDS] remarks, the Senator should give some effect to what he glories in. I hope he will not take it all out in glory, but will see that a little of it is transfused into Human Rights.

MR. CARPENTER. All that is consistent with the express provisions of the Constitution.