Part 21

When the Senator interrupted me I was about to address myself to him; for I should not have risen this time but for the remarks which he made. I know not, Sir, why my position on this question should justify the personalities which the Senator from Vermont considers so essential to debate. I certainly made no allusion to him, nor do I claim anything for myself. I am an humble worker in this Chamber, and in this cause I have been laborious for years; but not on that account do I claim anything, nor do I make any pretence. I know not why the Senator should, with personality of manner and allusion, undertake to taunt me for the position that I occupy. Do I deserve it? I represent humbly the sentiments of the people of Massachusetts, who have sent me here now for many years. Always loyal to these sentiments I hope to be, even though it brings upon me the displeasure of the Senator. Sir, I am anxious to harmonize with that Senator. I know, too, his loyalty to this cause,--I do not doubt it; but I now appeal to that Senator to unite with me in speeding this great measure. Let him join sincerely, with his large intelligence, to hasten this bill before the Senate and make it the law of the land; so would he become a benefactor to a much-oppressed people.

Possibly he has his doubts in regard to the Jury provision. I know other lawyers have expressed doubts before; and from the inquiry that he made a moment ago it is perhaps fair to infer that those doubts haunt his mind. To that I simply answer, Happily they do not haunt mine. I know the Constitution of my country, and I know that under that Constitution, unless my judgment fails entirely, the provision with reference to juries is absolutely valid and constitutional. I challenge the discussion. Let the Senator make his objections. The original Civil-Rights Bill, which passed over the veto of the President, solemnly declares that no evidence shall be excluded from any court of justice, National or State, on account of color. The nation has undertaken to regulate the testimony, not only in its own Courts but in State Courts; and will any one pretend that it may not regulate the jury in State Courts, when it may regulate the testimony in State Courts? Why, Sir, there is nothing in the Constitution touching testimony, but there are no less than three distinct provisions relating to trial by jury; and among other terms employed is “an impartial jury,” which is among the privileges and immunities of the citizen. And is it wrong for Congress, in the plenitude of its powers, anxious to do justice to all, to declare that there shall be an impartial jury in all tribunals, whether National or State, without regard to color? Having begun by regulating the testimony, where is the argument which is to prevent us from regulating the jury? I need not remind my excellent friend that originally the witnesses and the jury were almost one and the same.

MR. EDMUNDS. They were precisely the same.

MR. SUMNER. Very well,--so much the better; and the Senator knows that there is a phrase handed down to us from English courts by which we are reminded constantly of the “witness-box” and the “jury-box.” So closely were they together that they come under a common nomenclature. Now I insist that they shall come under a common safeguard. We have already provided that there shall be no exclusion in testimony on account of color: we must also provide that there shall be no exclusion from the jury on account of color; and until that provision is made by supreme national law, not to be set aside, justice is not fully done.

But, Sir, I had no intention to discuss the character of this bill; and I have only been led into it by the allusion of the Senator, who, holding the bill in his hand, signalizes that section as open to criticism. Let him proceed with his criticism. But then I hope for better things. I hope my friend, instead of criticism, will give us that generous support which so well becomes him. He sees full well, that, until this great question is completely settled, the results of the war are not all secured, nor is this delicate and sensitive subject banished from these Halls. Sir, my desire, the darling desire, if I may say so, of my soul, at this moment, is to close forever this great question, so that it shall never again intrude into these Chambers,--so that hereafter in all our legislation there shall be no such words as “black” or “white,” but that we shall speak only of citizens and of men. Is not that an aspiration worthy of a Senator? Is such an aspiration any ground for taunt from the Senator of Vermont? Will he not, too, join in the aspiration and the endeavor to bring about that beneficent triumph? Let this be omitted now, let any part of this bill be dropped out now, and you leave the question for another Congress, to be pursued by other petitions, to be pressed by other Senators and Representatives; for, so long as injustice remains without redress, so long will there be men to petition, and so long, I trust, will there be Senators and Representatives to demand a remedy. I ask for all now.

At length, on the representation of Mr. Frelinghuysen, of New Jersey, that, “by acquiescing with the other friends of the measure in its reference to the Committee on the Judiciary, the Senator from Massachusetts has it in his power to take from every opponent of the bill any apology, reason, or excuse for opposing it,” followed by the declaration, “I think we can give the Senator the assurance that a fortnight will not pass without the bill being reported,”--

Mr. Sumner inquiring,--“The Senator is a member of the Judiciary Committee, I believe?”

MR. FRELINGHUYSEN. Yes, Sir.

MR. SUMNER. I accept his assurance and consent to the reference.

Mr. Edmunds, Chairman of the Committee, demurring to the proposed agreement to report the bill within two weeks, suggested as a substitute, “its consideration with the promptness that the business of the Committee will allow,” which Mr. Frelinghuysen pronouncing “equally satisfactory,” it was tacitly so settled,--Mr. Howe, of Wisconsin, thereupon observing, “I think the assurances we have from the Senator from New Jersey and the Senator from Vermont are a sufficient guaranty that the bill will get back here in good season.”

MR. SUMNER. And in good condition. (_Laughter._)

MR. EDMUNDS. Much better than it is now. (_Laughter._)

Mr. Morton of Indiana subsequently remarking,--

I do not myself feel that there is any great importance in referring this bill to a committee, for the reason that the question has been so long before the Senate and has been so amply discussed. But still that is the usage of the Senate; we do that with regard to all bills unless under some very strong emergency; and if the Senator had consented in the first place to the reference of the bill, we should have had it back long ago. So, I think, he has nobody to blame but himself that this bill is not now before the Senate to be acted upon. But I may be allowed to express the hope, and I have no reason to doubt that it will be gratified, that the Judiciary Committee will promptly examine this bill, and report back a Civil-Rights Bill upon which the Senate can take action before long. I think that ought to be done for very many considerations,--

Mr. Sumner replied:--

MR. PRESIDENT,--I should not say another word, except for the ardor with which my friend from Indiana comes forward to throw a little blame on me. He thinks, that, if I had consented to an earlier reference of this bill, it would now be in order before the Senate; but he says that in a case of strong emergency bills are not referred to committees. Now I ask the Senator from Indiana if this is not a case of strong emergency? The bill has been pending nearly four solid years, during all which time a portion of our fellow-citizens, counted by the million, have been exposed to indignity; and because I tried to speed the result, hoping to bring the Senate to a generous conclusion of the whole measure without a reference to the Committee, the Senator from Indiana thus tardily seeks to rebuke me. If I erred at all, it was because I trusted the Senate. I felt, that, with this bill on the Calendar and within reach, it could not hesitate. I was unwilling to see the bill in a committee-room, where the Senate, in a generous moment, could not take it up any day, and, so far as the Senate was concerned, make it the law of the land. I put too much faith in this body, which I ought to know well. I did, Sir, have generous trust. I did believe that at some early day the bill would be considered and adopted. I have been disappointed. More than once I have tried to reach it, I have tried to bring it before the Senate; but you know well the impediments; you know that other important matters have occupied attention, so that I could not, with any reasonable chance of success, seek to press this important measure. That, Sir, is the occasion for delay; and I do not think--I hardly like to make any question with my friend--but I do not think he was generous in the imputation that he sought to throw upon me. Had that Senator, on the first day of the session, or when I made an effort at a later day to bring it up, come forward then to aid me in pressing it on the attention of the Senate,--had he reminded the Senate and the country how many fellow-citizens were shut out from their rights, and that a denial of rights does not allow delay,--had these words come from the Senator at that time, ah! we should have been having no such debate as has occurred to-day. The bill would have been hastened on its way, and a people long enslaved and degraded would be at last lifted to equality.

The question being now put, the bill was referred to the Committee on the Judiciary without objection.

March 11, 1874, Mr. Sumner died.

April 14th his bill was reported back by Mr. Frelinghuysen from the Committee with an amendment in the form of a substitute,--being substantially the original bill taken into a new draught, with a few differences of machinery. In this form, after long and exhaustive debate, it was passed in the Senate, May 22d, by Yeas 29, Nays 16.

In the House, all efforts to take it up were frustrated by the minority, under the rule requiring a two-thirds vote for this purpose, until the closing hours of the succeeding session, March 3, 1875, when a vote was obtained referring it to the Committee on the Judiciary, but too late for action, and the bill fell with the expiration of the Congress.

Meanwhile, however, February 3d, Mr. Butler, of Massachusetts, had reported a bill from this Committee, covering the provisions of the Senate bill, with the exception only of that relating to cemeteries, but with the addition to that on Common Schools of the proviso,--

“That if any State or the proper authorities in any State, having the control of Common Schools or other public institutions of learning aforesaid, shall establish and maintain separate schools and institutions giving equal educational advantages in all respects for different classes of persons entitled to attend such schools and institutions, such schools and institutions shall be a sufficient compliance with the provisions of this section so far as they relate to schools and institutions of learning.”

On proceeding to a vote, the next day, February 14th, the entire clause, embracing Common Schools, public institutions of learning or benevolence, and national agricultural colleges, together with this proviso, was, on motion of Mr. Kellogg, of Connecticut, struck out by Ayes 123, Noes 48,--a call for the Yeas and Nays, which would have brought out the names, being refused. A previous motion by Mr. Cessna, of Pennsylvania, to substitute the full text of the Senate bill for that of the House Committee, now recurring, was defeated by Yeas 114, Nays 148,--and the latter, amended as above stated, was then passed by Yeas 162, Nays 100,--and subsequently, February 27th, in the Senate also, by Yeas 38, Nays 26,--and March 1st received the approval of the Executive.

This bill, entitled “An Act to protect all citizens in their civil and legal rights,”[239] has since stood on the statute book as a finality,--these rights, in the terms of the statute, consisting of “the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of [1st] inns, [2d] public conveyances on land or water, [3d] theatres, and other places of public amusement”; to which another section, rising to a higher plane, adds the declaration [4th] “That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude,”--with such security to the colored citizens of this inestimable right as may be found in the provision that “any officer or other person, charged with any duty in the selection or summoning of jurors, who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined _not more_ than five thousand dollars.”

FOOTNOTES

[1] Case of Plau, French Consul-General at New York.

[2] April 30, 1864: A Bill to provide for the greater Efficiency of the Civil-Service of the United States. Congressional Globe, 38th Cong. 1st Sess., p. 1985; also, _ante_, Vol. XI. p. 278, seqq.

[3] Times, December 31, 1870. Executive Documents, 42d Cong. 2d Sess., H. of R., No. 1, Foreign Relations, p. 368.

[4] James, iii. 17.

[5] Speech, February 14th: Congressional Globe, 42d Cong. 2d Sess., p. 1016.

For the portion of the Speech referred to, setting forth the authorities on this subject, see Appendix (A), pp. 41-44.

[6] Law of Nations, p. 281.

[7] 7 Wheaton, R., 487.

[8] See Appendix (A), pp. 43, 44.

[9] House Reports, 40th Cong. 2d Sess., No. 64, p. 5.

[10] Merchant of Venice, Act iv. Sc. 1.

[11] Letter of Treasurer Spinner to Senator Wilson, February 16, 1872: Congressional Globe, 42d Cong. 2d Sess., p. 1072.

[12] Commentaries on American Law, Vol. I. p. 128.

[13] A Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers, in Maritime Affairs, by Robert Ward, Esq., Barrister at Law, (London, 1801,) p. 166.

[14] Commentaries upon International Law, Vol. III. p. 282.

[15] Ibid., p. 427.

[16] Phases et Causes Célèbres. Tom. II. p. 407.

[17] Speech on the Report of the Foreign Enlistment Bill, April 16, 1823: Hansard’s Parliamentary Debates, N. S., Vol. VIII. col. 1056.

[18] Occasional Productions, pp. 176, 177. See the letter to William H. Trescott upon Public and Diplomatic Subjects.

[19] This dispatch, after remaining unquestioned for more than a month and for several weeks after the date of this speech, was finally contradicted by the French authorities. See Telegram from Minister Washburne to Secretary Fish, March 19, and Note from the French Chargé at Washington, M. de Bellonet, to same, March 30, 1872: Report of Committee on Sale of Ordnance Stores,--Senate Reports, 42d Cong. 2d Sess., No. 183, pp. 524, 604.

[20] Speech of February 14th: Congressional Globe, 42d Cong. 2d Sess., pp. 1008, 1013. This important letter may be found in the Report of the Select Committee on the Sales of Ordnance Stores by the United States Government during the Fiscal Year 1871-72: Senate Reports, 42d Cong. 2d Sess., No. 183.

[21] _Ante_, p. 12.

[22] Joint Resolution, July 20, 1868: Statutes at Large, Vol. XV. p. 259.

[23] Executive Documents, 42d Cong. 2d Sess., H. of R., No. 1, Part 2, pp. 250, 251.

[24] De l’Esprit des Lois, Liv. III. chs. iii. vi.

[25] Senate Reports, 36th Cong. 1st Sess., No. 278, pp. 140, 253.

[26] Law of Evidence, Part II. ch. xiii.

[27] Ibid., p. 250 (_Rex_ v. _Hardy_, 24 Howell’s State Trials, 808).

[28] Ibid.

[29] _Ante_, p. 5.

[30] D’Ewes, Journals of all the Parliaments during the Reign of Queen Elizabeth, p. 629.

[31] Page 146.

[32] Gray’s Debates of the House of Commons, Vol. V. p. 145.

[33] Ibid., Vol. VI. p. 373.

[34] Manual of Parliamentary Practice, Sec. XXVI.

[35] Ibid.

[36] Ibid.

[37] Lex Parl. Amer., pp. 729-30.

[38] Ibid., p. 732.

[39] Lex Parl. Amer., p. 383.

[40] Congressional Globe, 26th Cong. 2d Sess., p. 231. Cushing, Lex Parl. Amer., App. XIV., p. 1009.

[41] Entitled, “The Struggles (Social, Financial, and Political) of Petroleum V. Nasby,”--DAVID ROSS LOCKE, editor of the Toledo [Ohio] Blade, where most of these Letters, one hundred and eighty-eight in number, first appeared, during the period from March 21, 1861, to May 12, 1870.

[42] Fourth Annual Report of the Commissioners of Fairmount Park, pp. 15-16.

[43] Ibid., p. 17.

[44] Works, ed. Sparks, Vol. IX. p. 476.

[45] Duties of Massachusetts at the Present Crisis: Formation of the Republican Party. _Ante_, Vol. IV. p. 267.

[46] For the text of this passage see _ante_, Vol. VI. pp. 336-7.

[47] The Federalist, No. XLVII.

[48] Letter to Richard Henry Lee, November 15, 1775: Works, Vol. IV. p. 186.

[49] Defence of the Constitutions of Government of the United States,--Preface: Ibid., p. 296.

[50] Statutes at Large, ed. Hening, Vol. IX. p. 114.

[51] Constitution of Massachusetts, Part I.: Declaration of Rights, Art. XXX.

[52] History of Civilization in England, (London, 1868,) Vol. I. pp. 199, 200.

[53] Ibid., p. 200.

[54] Ibid., p. 201.

[55] Ibid.

[56] Sir H. L. Bulwer, Historical Characters, (4th edit.,) Vol. II. p. 331.

[57] Speech at Great Falls, N. H., February 24, 1872, pp. 6, 7.

[58] June 6th, Mr. Sumner reiterated in debate, with much emphasis, his statement of Mr. Stanton’s expressed opinion of the President, and added the testimony of a letter of Horace White, editor of the Chicago Tribune.--See Congressional Globe, 42d Cong. 2d Sess., p. 4283.

[59] Letter to Benjamin Adams, April 22, 1799: Works, Vol. VIII. p. 636.

[60] Letter to George Jefferson, March 27, 1801: Writings, Vol. IV. p. 388.

[61] Nipotismo di Roma, Parte I. p. 34.

[62] Ibid., pp. 41, 60.

[63] Nipotismo di Roma, Parte I. p. 60.

[64] Dictionnaire Universel d’Histoire et de Géographie.

[65] Appleton’s New American Cyclopædia.

[66] Nipotismo di Roma, Parte I. p. 68.

[67] Ibid., p. 89.

[68] Nipotismo di Roma, Parte I., p. 80.

[69] Ibid., pp. 82, 83; Parte II. p. 17.

[70] Nipotismo di Roma, Parte I. pp. 99-100.

[71] Ibid., p. 94.

[72] Ibid., Parte II. p. 132.

[73] Nipotismo di Roma, Parte I. p. 114.

[74] Ibid., Parte II. p. 162.

[75] Ibid., pp. 167-68.

[76] Ibid., Parte I. p. 103.

[77] Ibid., pp. 94, 95.

[78] Ibid., p. 94.

[79] Nipotismo di Roma, Parte I. pp. 179-80.

[80] Ibid., pp. 92-93.

[81] Ibid., Parte II. p. 132.

[82] Ibid., p. 75.

[83] Ibid., p. 142.

[84] Nipotismo di Roma, Parte II. p. 145.

[85] Ibid., p. 152.

[86] Ibid., p. 11.

[87] Ibid., p. 18.

[88] Irving’s Life of Washington, Vol. V. p. 22. See also the writings of Washington, ed. Sparks, Vol. IX. p. 479, note.

[89] Letter to Benjamin Harrison, March 9, 1789: Writings, ed. Sparks, Vol. IX. p. 476.

[90] Washington to Adams, February 20, 1797: Works of John Adams, Vol. VIII. p. 530.

[91] Letter to Madison, March 23, 1813.

[92] Letter to George Jefferson, March 27, 1801: Writings, Vol. IV. p. 388.

[93] Letter to J. Garland Jefferson, January 25, 1810: Writings, Vol. V. p. 498.

[94] Works of John Adams, Vol. IX. p. 63.

[95] _Ante_, p. 103.

[96] Works of John Adams, Vol. VIII. pp. 529-30, note.

[97] Historic Americans, p. 211.

[98] Letter to John Jebb, August 21, 1785: Works, Vol. IX. p. 535.

[99] Letter to Edward Cole, August 29, 1834: Letters and other Writings, Vol. IV. p. 357.

[100] Memoirs, by Thomas Bartlett, (London, 1839,) p. 200.

[101] Deuteronomy, xvi. 19.

[102] Plutarch’s Lives,--_Cleomenes_, ed. Clough: Vol. IV. p. 479.

[103] “Timeo Danaos et dona ferentes.”--VIRGIL, _Æneid_. Lib. II. 49.

[104] Life and Times of Henry Lord Brougham, London, 1870, Vol. II. pp. 29-32.

[105] Letter of Benjamin Harrison, January 6, 1785: Washington’s Writings, ed. Sparks, Vol. IX. p. 83.

[106] Life of Washington, Vol. IV. p. 448.

[107] Letter to Harrison, January 22, 1785: Writings, ed. Sparks, Vol. IX. p. 85.

[108] September 26, 1785: Ibid., p. 133.

[109] Forney’s Anecdotes of Public Men, p. 240.

[110] Guizot, Histoire de France, Tom. I. p. 519.

[111] See Memoirs, Vol. III. p. 528.

[112] King Henry VI., Third Part, Act V. Sc. 1.

[113] Timon of Athens, Act I. Sc. 1.

[114] Writings, ed. Sparks, Vol. XII. p. 1.

[115] Writings, Vol. VIII. p. 1.

[116] Congressional Globe, 41st Cong. 1st Sess., p. 1.

[117] Sir H. L. Bulwer, Historic Characters, Vol. II. p. 324.

[118] Boswell’s Life of Johnson, ed. Croker, April, 1781.

[119] Act of September 2, 1789, Section 8: Statutes at Large, Vol. I. p. 67.

[120] Congressional Globe, 41st Cong. 1st Sess., p. 22.

[121] Congressional Globe, 41st Cong. 1st Sess., p. 22.

[122] Ibid., p. 34.

[123] Daily Morning Chronicle, March 16, 1869.

[124] Writings, Vol. VIII. p. 4.

[125] Act of July 23, 1866: Statutes at Large, Vol. XIV. pp. 206-7.

[126] Statutes at Large, Vol. XV. p. 96.

[127] Statutes at Large, Vol. XII. p. 736.

[128] Ibid., Vol. XIV. p. 174.

[129] Ibid., p. 336.

[130] Ibid., Vol. XVI. p. 320.

[131] Statutes at Large, Vol. V. p. 260.

[132] Ibid., Vol. XV. p. 58.

[133] Ibid., Vol. XVI. p. 319.

[134] General Orders, No. 10.

[135] General Orders, No. 11.

[136] Ibid., No. 12.

[137] Ibid., No. 28.

[138] Congressional Globe, 40th Cong. 3d Sess., p. 754, Feb. 1, 1869.

[139] General Orders, No. 49.

[140] Statutes at Large, Vol. IV. p. 736.

[141] _Ante_, p. 135.

[142] Executive Documents, 41st Cong. 3d Sess., H. of R., No. 1, Part 2, p. 37.

[143] Executive Documents, 41st Cong. 3d Sess., H. of R., No. 1, Part 2, p. 4.

[144] Inaugural Address, March 4, 1869: Congressional Globe, 41st Cong. 1st Sess., p. 1.

[145] Daily Morning Chronicle, March 17, 1869.

[146] New York Custom-House Investigation,--Testimony of Gen. G. W. Palmer: Senate Reports, 42d Cong. 2d Sess., No. 227, Vol. III. p. 581.

[147] Testimony of William Atkinson: Ibid., p. 626.

[148] Private letter to Mr. Sumner, quoted in Speech of March 27, 1871: _Ante_, Vol. XIX. p. 32.

[149] Executive Documents, 41st Cong. 3d Sess., Senate, No. 17, p. 79; No. 45, p. 3. Senate Reports, 41st Cong. 2d Sess., No. 234, pp. 38, 39.

[150] Senate Reports, 41st Cong. 2d Sess., No. 234, p. 188.

[151] Executive Documents, 41st Cong. 3d Sess., Senate, No. 17., pp. 80-82.

[152] Same, No. 34, p. 9.

[153] Congressional Globe, 41st Cong. 3d Sess., pp. 6, 7.

[154] Message, April 5, 1871: Cong. Globe, 42d Congr. 1st Sess., pp. 469-70.

[155] See Letter to Hon. Andrew D. White, _post_, p. 205.

[156] Titus Andronicus, Act I. Sc. 2.

[157] Cymbeline, Act III. Sc. 4.

[158] “Le roi de France ne venge pas les injures du duc d’Orléans.” LOUIS XII.--Fournier, L’Esprit dans l’Histoire, (Paris, 1860,) p. 121.

[159] Raoul de Caën, Faits et Gestes du Prince Tancrède: Guizot, Mémoires relatifs à l’Histoire de France, Tom. XXIII. p. 6.

[160] Third Satire of Juvenal, 454-55, 468-69: Dryden’s Works, ed. Scott, Vol. XIII. p. 146.

[161] Gifford, (2d edit., London, 1806,) 407-10.

[162]

“Larges estoit et volentis, Mès n’estoit pas bien ententis, En ce que ou royaume failloit, Si comme reson li bailloit.”

GODEFROY DE PARIS, _Chronique Métrique_, 8047-50.