Part 22

MR. SUMNER. I shall come to that. The point is, that the Senator treats the Declaration of Independence as no better than the writings of Washington, of Jefferson, of Madison, “The Federalist,” and everything that pertains to that day. It is only part and parcel of contemporary history,--of no special consequence, no binding character, not supreme, but only one of the authorities, or at least one of the witnesses, by which we are to read the Constitution. Sir, is it so regarded by Congress,--or at least is it so regarded by the committee of this body under whose direction is printed what is known familiarly as “The Constitution, Rules, and Manual”? Here is the little volume, to which we daily turn. I find that the first document is the National Declaration, preceding the National Constitution. Sir, it precedes the Constitution in time, as it is more elevated in character. The Constitution is a machine, great, mighty, beneficent. The Declaration supplies the principles giving character and object to the machine. The Constitution is an earthly body, if you please; the Declaration is the soul. The powers under the Constitution are no more than the hand to the body; the Declaration is the very soul itself. But the Senator does not see it so. He sees it as no better than a letter of Jefferson or Madison, or as some other contemporary incident which may help us in finding the meaning of the Constitution. The Senator will not find many ready to place themselves in the isolation he adopts. It was not so regarded by the historian who has described it with more power and brilliancy than any other,--Mr. Bancroft. After setting forth what it contains, he presents it as a new and lofty Bill of Rights:--

“This immortal state-paper, which for its composer was the aurora of enduring fame, was ‘the genuine effusion of the soul of the country at that time,’ the revelation of its mind, when, in its youth, its enthusiasm, its sublime confronting of danger, it rose to the highest creative powers of which man is capable. _The bill of rights which it promulgates_ is of rights that are older than human institutions, and spring from the eternal justice that is anterior to the State.”[240]

The vivid presentment of this state-paper, in its commanding character, like an ordinance for mankind, above all other contemporary things, shows its association with our great national anniversary.

“The nation, when it made the choice of a day for its great anniversary, selected not the day of the resolution of independence, when it closed the past, but that of the declaration of the principles on which it opened its new career.”[241]

Shall I remind you, Sir, of that famous letter by John Adams to his wife, written the day after the Resolution of Independence, and pending the Declaration? Of this epoch he predicts, in words quoted with annual pride, that it “will be the most memorable in the history of America,--celebrated by descending generations as the great anniversary festival,--commemorated as the day of deliverance, by solemn acts of devotion to God Almighty,--solemnized with pomp and power, with cheers, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forevermore.”[242] And yet this Declaration, annually celebrated, having the first pages of our statute-book, placed in the fore-front of the volume of rules for our guidance in this Chamber, this triumphant Magna Charta, is to be treated as “the generalities of a revolutionary pronunciamento,” or at best as of no more value than the letter of a contemporary statesman. Sir, the Senator misconceives the case; and there, allow me to say, is his error.

MR. CARPENTER. The Senator understood me to say, at least I said, in construing the Constitution you must undoubtedly look to the Declaration of Independence, as you must look to all the contemporary history of that day. Did I say there was no difference in the different documents? Did I say that no more importance was to be attached to the Declaration of Independence than to a letter of Madison or Washington? No, Sir,--I said no such thing.

MR. SUMNER. The Senator shall speak for himself. He has spoken now, and you shall hear what he said before:--

“Certainly the Constitution of the United States must be construed upon the same principle.”

That is, as “a contract entered into between two individuals.”

“And when we are considering”--

What?--

“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.”

I am happy in any word of respect for the Declaration,--because the claim of Equal Rights stands on the Constitution interpreted by the Declaration.

This brings me again to the main question. We have the National Constitution from the Preamble to the signature of George Washington, and then we have the recent Amendments, all to be interpreted by the National Declaration, which proclaims, as with trumpet:--

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”

Unquestionably the Constitution supplies the machinery by which these great rights are maintained. I say it supplies the machinery; but I insist, against the Senator, and against all others, that every word in the Constitution must be interpreted by these primal, self-evident truths,--not merely in a case that is doubtful, as the Senator says, but constantly and always, so that the two shall perpetually go together, as the complement of each other; but the Declaration has a supremacy grander than that of the Constitution, more sacred and inviolable, for it gives the law to the Constitution itself. Every word in the Constitution is subordinate to the Declaration.

Before the war, when Slavery prevailed, the rule was otherwise, naturally; but, as I have already said, the grandest victory of the war was the establishment of the new rule by which the Declaration became supreme as interpreter of the Constitution. Take, therefore, any phrase in the Constitution, take any power, and you are to bring it all in subordination to those supreme primal truths. Every power is but the agent by which they are maintained; and when you come to those several specific powers abolishing slavery, defining citizenship, securing citizens in their privileges and immunities, guarding them against any denial of the equal protection of the laws, and then again securing them the right to vote, every one of these safeguards must be interpreted so as best to maintain Equal Rights. Such I assert to be Constitutional Law.

Sir, I cannot see it otherwise. I cannot see this mighty Magna Charta degraded to the level of a casual letter or an item of history. Why, Sir, it is the baptismal vow of the Republic; it is the pledge which our fathers took upon their lips when they asked the fellowship of mankind as a free and independent nation. It is loftier than the Constitution, which is a convenience only, while this is a guide. Let no one smile when it is invoked. Our fathers did not smile on the great day. It was with them an earnest word, opening the way to victory, and to that welcome in the human family with which our nation has been blest. Without these words what would have been the National Declaration? How small! Simply a dissolution of the tie between the Colonies and the mother country; a cutting of the cord,--that is all. Ah! it was something grander, nobler. It was the promulgation of primal truths, not only for the good of our own people, but for the good of all mankind. Such truths can never die. It is for us to see that they are recognized without delay in the administration of our own Government.

Mr. Carpenter replied at some length. Mr. Sumner followed.

SECOND REPLY TO MR. CARPENTER.

The Senator insists that I am willing to disregard the Constitution. On what ground can the Senator make any such assertion? Does he suppose that his oath is stronger with him than mine with me?

MR. CARPENTER. Will the Senator allow me to answer him?

MR. SUMNER. Certainly.

MR. CARPENTER. I assume that, for the reason that when we come here to discuss a constitutional question, the power of Congress to do a certain thing, the Senator flies from the Constitution and goes to the Declaration of Independence, and says that is the source of power.

MR. SUMNER. The Senator ought to know very well that I have never said any such thing. The Senator proclaims that I fly from the Constitution to the Declaration, which I insist is the source of power. I now yield the floor again, and ask the Senator when I said what he asserts.

MR. CARPENTER. The Senator said that the Declaration was coördinate in authority with the Constitution. What did he mean by that? I supposed he used the word in the ordinary acceptation; and if he did, he meant to say that the Declaration was a coördinate grant of power.

MR. SUMNER. Just the contrary, Mr. President. Senators will bear me witness. I appeal to you all. I said just the contrary. Repeatedly I said that in my judgment the Declaration of Independence was not a grant of power, but coëqual with the Constitution,--the one being a grant of power, and the other a sovereign rule of interpretation. That is what I said. And now the Senator, in the face of my positive words, not heeding them at all, although they are found in the “Globe,” vindicates himself by putting into my mouth what I never said or suggested, and then proceeds to announce somewhat grandly that I set the Constitution at nought. I challenge the Senator again to point out one word that has ever fallen from my lips, during my service in this Chamber, to sustain him in his assertion. I ask him to do it. He cannot. But why this imputation? Is the oath we have all taken at that desk binding only on him? Does he assume that he has a monopoly of its obligations; that other Senators took it with levity, ready to disregard it,--or at least that I have taken it so? Such is the assumption; at least it is his assumption with regard to me.

Now I tell the Senator, and I beg him to understand it for the future, that I shall not allow him to elevate himself above me in any loyalty to the Constitution. Willingly do I yield to the Senator in all he can justly claim of regard and honor. But I do not concede precedence in that service, where, if he does not magnify himself, he degrades me.

I have served the National Constitution longer than he has, and with such fidelity as I could command. I have served it at moments of peril, when the great principles of Liberty to which I have been devoted were in jeopardy; I have served it when there were few to stand together. In upholding this Constitution, never did I fail at the same time to uphold Human Rights. That was my supreme object; that was the ardent aspiration of my soul. Sir, I know how often I have failed,--too often; but I know that I never did fail in devotion to the Constitution, for the true interpretation of which I now plead. The Senator speaks without authority, and, he must pardon me if I say, with levity, when he makes such an allegation against one whose record for the past twenty years in this Chamber is ready to answer him. I challenge him to point out one word ever uttered by me to justify his assault. He cannot do it. He makes his onslaught absolutely without one tittle of evidence.

Sir, I have taken the oath to support the Constitution, but it is that Constitution as I understand it. In other days, when this Chamber was filled with intolerant slave-masters, I was told that I did not support the Constitution, as I have been told to-day by the Senator, and I was reminded of my oath. In reply I borrowed the language of Andrew Jackson, and announced, that, often as I had taken that oath, I had taken it always to support the Constitution as I understood it; and it is so now. I have not taken an oath to support the Constitution as the Senator from Wisconsin understands it, without its animating soul. Sir, my oath was to support the National Constitution as interpreted by the National Declaration. The oath of the Senator from Wisconsin was different; and there, Sir, is the precise divergence between us. He swore, but on his conscience was a soulless text. I am glad that my conscience felt that there was something more.

The Senator must hesitate before he assaults me again for any failure in devotion to the Constitution. I put my life against the life of the Senator; I put my little service, humble as it is, against the service of the Senator; I put every word uttered by me in this Chamber or elsewhere against all that has been said by the Senator,--and the world shall pronounce between us on the question he has raised. If I have inclined in favor of Human Rights, if I have at all times insisted that the National Constitution shall be interpreted always so that Human Rights shall find the greatest favor, I have committed no error. In the judgment of the Senator I may have erred, but I know that in the judgment of the American people I have not erred; and here I put myself upon the country to be tried.

Sir, on that issue I invoke the sentiments of mankind and posterity when all of us have passed away. I know that it will be then written, that the National Constitution is the Charter of a mighty Republic dedicated to Human Rights, dedicated at its very birth by the Great Declaration, and that whoever fails to enlarge and ennoble it by the interpretation through which Human Rights are most advanced will fail in his oath to support the Constitution: ay, Sir, fail in his oath!

The debate was continued successive days: Mr. Thurman of Ohio, Mr. Ferry of Connecticut, Mr. Corbett and Mr. Kelly, both of Oregon, Mr. Hill of Georgia, Mr. Stevenson of Kentucky, and Mr. Tipton of Nebraska speaking against Mr. Sumner’s bill; Mr. Harlan, of Iowa, in favor of it; and Mr. Frelinghuysen, of New Jersey, declaring his support, if Mr. Sumner would modify its provisions as to “churches.”

The substitute of Mr. Carpenter was rejected,--Yeas 17, Nays 34. A motion of Mr. Frelinghuysen to make the bill inapplicable to “churches” was carried,--Yeas 29, Nays 24. The next question was on a motion of Mr. Carpenter to strike out the clause relating to “juries.” This was earnestly debated by Mr. Edmunds, of Vermont. Before the vote was taken, Mr. Sumner remarked:--

There is a famous saying that comes to us from the last century, that the whole object of government in England--of King, Lords, and Commons--is to bring twelve men into a jury-box. Sir, that is the whole object of government, not only in England, but in every other country where law is administered through popular institutions; and especially is it the object of government here in the United States; and the clause in this bill which it is now proposed to strike out is simply to maintain that great principle of popular institutions.

This amendment was rejected,--Yeas 12, Nays 42. Other amendments were moved and rejected.

* * * * *

The question was then taken on Mr. Sumner’s bill as an amendment to the Amnesty Bill, and it was adopted by the casting vote of Vice-President Colfax,--the Senate being equally divided, Yeas 28, Nays 28, as follows:--

YEAS,--Messrs. Ames, Anthony, Brownlow, Cameron, Chandler, Clayton, Conkling, Cragin, Fenton, Ferry of Michigan, Frelinghuysen, Gilbert, Hamlin, Harlan, Morrill of Vermont, Morton, Osborn, Patterson, Pomeroy, Ramsey, Rice, Sherman, Spencer, Sumner, West, Wilson, Windom, and Wright,--28.

NAYS,--Messrs. Blair, Boreman, Carpenter, Cole, Corbett, Davis of West Virginia, Ferry of Connecticut, Goldthwaite, Hamilton of Texas, Hill, Hitchcock, Johnston, Kelly, Logan, Morrill of Maine, Norwood, Pool, Robertson, Saulsbury, Sawyer, Schurz, Scott, Stevenson, Stockton, Thurman, Tipton, Trumbull, and Vickers,--28.

ABSENT,--Messrs. Alcorn, Bayard, Buckingham, Caldwell, Casserly, Cooper, Davis of Kentucky, Edmunds, Flanagan, Hamilton of Maryland, Howe, Kellogg, Lewis, Nye, Pratt, Sprague, and Stewart,--17.

The announcement of the adoption of the amendment was received with great applause in the galleries.

The provisions relating to Amnesty were then taken up, and after some modification of them Mr. Sumner declared his purpose to vote for the Bill as amended,--that it was now elevated and consecrated, and that whoever voted against it must take the responsibility of opposing a great measure for the assurance of Equal Rights.

The question was then taken on the passage of the bill as amended, when it was rejected,--Yeas 33, Nays 19,--two-thirds not voting in the affirmative. Democrats opposed to the Civil Rights Bill voted against Amnesty with this association.

The attention of the Senate was at once occupied by other business, so that Amnesty and Civil Rights were for the time superseded.

* * * * *

May 8th, another Amnesty Bill, which had passed the House, being under consideration, Mr. Sumner moved to strike out all after the enacting clause and insert the Civil Rights Bill. Mr. Ferry, of Connecticut, promptly objected that the amendment was not in order; but Vice-President Colfax overruled the point, and was sustained by the Senate. The next day Mr. Ferry moved to strike out of Mr. Sumner’s bill the words applicable to “common schools and other public institutions of learning,” which was rejected,--Yeas 25, Nays 26. Mr. Blair, of Missouri, then moved that “the people of every city, county, or State” should “decide for themselves the question of mixed or separate schools,” and this was rejected,--Yeas 23, Nays 30. Mr. Carpenter moved to strike out the section relating to “juries,” and this was rejected,--Yeas 16, Nays 33. On a motion by Mr. Trumbull, of Illinois, to strike out the first five sections of Mr. Sumner’s bill, the votes being Yeas 29, Nays 29, the casting vote of Vice-President Colfax was given in the negative, amidst manifestations of applause in the galleries. The question was then taken on the motion to substitute the Civil Rights Bill for the Amnesty Bill, and it was lost,--Yeas 27, Nays 28. Mr. Sumner at once moved the Civil Rights Bill as an addition, with the result,--Yeas 28, Nays 28, and the adoption of the amendment by the casting vote of the Vice-President. This amendment as in Committee of the Whole was then concurred in by the Senate,--Yeas 27, Nays 25. On the passage of the bill thus amended, the vote stood, Yeas 32, Nays 22; so that, two-thirds not voting in the affirmative, the bill was rejected.

Again there was a lull in the two measures.

* * * * *

May 10th, Mr. Sumner introduced another Supplementary Civil Rights Bill, being his original bill with such verbal changes and emendations as had occurred during its protracted consideration, and the bill was placed on the calendar of the Senate without reference to a committee.

* * * * *

May 21st, the Senate having under consideration a bill to extend the provisions of the Enforcement Act in the Southern States, known as the Ku-Klux Act, and entering upon a “night session” in order to pass the bill, Mr. Sumner, who was an invalid, contrary to his habit left the Chamber. In the early morning the bill was passed, when the Senate, on motion of Mr. Carpenter, of Wisconsin, took up Mr. Sumner’s Civil Rights Bill, and, striking out all after the enacting clause, inserted a substitute, imperfect in machinery, and with no allusion to schools, institutions of learning, churches, cemeteries, juries, or the word “white.” The bill thus changed passed the Senate in Mr. Sumner’s absence. Meanwhile Mr. Spencer, of Alabama, had moved an adjournment, saying, “It is unfair and unjust to take a vote upon this bill during the absence of the Senator from Massachusetts.… I insist on the motion to adjourn, as the Senator from Massachusetts is not here.” The motion was rejected. A messenger from the Senate informed Mr. Sumner of the effort making, and he hurried to the Chamber; but the bill had been already acted on, and another Amnesty Bill on the calendar taken up, on motion of Mr. Robertson, of South Carolina, and pressed to a final vote. Mr. Sumner arrived in season to protest against this measure, unless associated with Equal Rights. At the first opportunity after reaching his seat, he said:--

MR. PRESIDENT, I understand that in my absence, and without any notice to me from any quarter, the Senate have adopted an emasculated Civil Rights Bill, with at least two essential safeguards wanting,--one concerning the Common Schools, and the other concerning Juries. The original bill contains both, and more; and I now ask the Senate, most solemnly, to consider whether, while decreeing equal rights for all in the land, they will say that those equal rights shall not prevail in the common school and in the jury. Such I understand to have been the vote of the Senate. What will ensue, should it be confirmed by the other House? The spirit of Caste will receive new sanction in the education of children; justice will find a new impediment in the jury.

Sir, I plead for the colored race, who unhappily have no representative on this floor. I ask the Senate to set its face against the spirit of Caste now prevailing in the common schools, against the injustice now installed in the jury. I insist that the Senate shall not lose this great opportunity. You recognize the commanding principle of the bill. Why not, then, apply it throughout, so that hereafter there shall be no question? For, Sir, be well assured, there is but one way of settling this great cause, and that is by conceding these equal rights. So long as they are denied you will have the colored people justly complaining and knocking at your doors,--and may I say, so long as I remain in this Chamber you will have me perpetually demanding their rights. I cannot, I will not cease. I ask, Sir, that this terrible strife be brought to an end, and the cause settled forever. Now is the time. But this cannot be, except by the establishment of equal rights absolutely and completely wherever the law can reach.

Sir, early in life I vowed myself to nothing less than the idea of making the principles and promises of the Declaration of Independence a living reality. This was my aspiration. For that I have labored. And now at this moment, as its fulfilment seems within reach, I appeal to my fellow-Senators that there shall be no failure on their part. Make, I entreat you, the Declaration of Independence in its principles and promises a living letter; make it a practical reality.