The Supplementary Civil-Rights Bill, introduced by Mr. Sumner on
the first day of the Session, having now come up for consideration,
and the question being on a motion by Mr. Ferry, of Connecticut, to
refer it to the Committee on the Judiciary, Mr. Sumner said:--
MR. PRESIDENT,--There is a very good reason, a very strong reason, why
this bill should not be referred to the Committee on the Judiciary, and
it is found in the history of the bill. I have in my hand a memorandum,
which has been kindly prepared for me at the desk, disclosing details
which Senators ought to bear in mind before they vote. By the Journals
of the Senate it appears that as long ago as May 13, 1870,--
“Mr. Sumner asked, and by unanimous consent obtained, leave to
bring in a bill supplementary to an Act entitled ‘An Act to protect
all persons in the United States in their civil rights, and furnish
the means of their vindication,’ passed April 9, 1866; which was
read the first and second times, by unanimous consent, referred to
the Committee on the Judiciary, and ordered to be printed.”
The next appearance of the bill is July 7th, of that year, when,
according to the Journal, “Mr. Trumbull, from the Committee on the
Judiciary,” with a large number of other bills reported this to the
Senate, with a recommendation “that they ought not to pass.” The record
says that--
“The Senate proceeded to consider the said bills as in Committee
of the Whole; and no amendment being made, they were severally
reported to the Senate.
“On motion by Mr. Trumbull,
“_Ordered_, That the said bills be postponed indefinitely.”
You will observe, Sir, the bill was treated in the lump with others,
at the close of the session; and you have here the report of the very
committee to which it is now proposed to refer it.
The next appearance of the bill is January 20, 1871, and the entry is
as follows:--
“Mr. Sumner asked, and by unanimous consent obtained, leave to
bring in a bill supplementary to an Act entitled ‘An Act to protect
all persons in the United States in their civil rights, and furnish
the means of their vindication,’ passed April 9, 1866; which was
read the first and second times, by unanimous consent, referred to
the Committee on the Judiciary, and ordered to be printed.”
February 15, 1871, “Mr. Trumbull, from the Committee on the Judiciary,
to whom were referred the following bills [the present with others],
reported them severally without amendment, and that they ought not to
pass.”
There was no action of the Senate at the time; for you will bear in
mind the lateness of the day in the session; and Senators cannot have
forgotten the pressure of business at that time. That was sufficient
reason against the consideration of the bill. Indeed, with all the
assiduity that I could command, I was not able to obtain a hearing for
it.
Then came the first session of the Forty-Second Congress, beginning
March 4, 1871. Upon the Journal it appears, March 9, 1871,--
“Mr. Sumner asked, and by unanimous consent obtained, leave to
bring in [this same bill, with one other], which were read the
first and second times, by unanimous consent, and ordered to lie on
the table and be printed.”
In introducing the bill this third time I stated that it had already
been to the Judiciary Committee twice before; that it was to be
presumed that they had carefully considered it; that they had reported
it adversely; that they had not reported any amendment; that I did not
think it advisable now to refer the bill to a committee which had twice
recorded an adverse judgment; that the bill was well known to Senators;
that it had been before the Senate a long time; and that under the
circumstances I thought I should be justified in asking that it take
its place on the Calendar and be printed. The order was made, and it
held its place on the Calendar.
Shortly afterward a measure of general amnesty, it will be remembered,
passed the House of Representatives and came to this Chamber. Then it
was that I deemed it my duty to move this bill as an amendment, and you
will remember the extended discussion that ensued,--how justice to the
African race was contrasted with generosity to those who had struck at
the life of the Republic, and it was insisted that our first duty was
justice. The debate was protracted. Senators cannot have forgotten
it; and more than once votes were had upon the pending amendment. I
think it was twice carried by the casting vote of the Vice-President.
Certainly it was attached to the bill for general amnesty, and the
debate reached over weeks, during which time the Supplementary
Civil-Rights Bill, as it came to be called, underwent amendment. It
was modified in various particulars,--in none of great importance, in
none of principle, but verbally; also in the penalties, and in the
machinery: but the bill now stands, in principle and in substance, as
it was when originally introduced. So far as it is changed, it is a
change reached by debate in this Chamber. The Senate itself has been a
Committee of the Whole sitting on this bill, superseding thereby the
labors of any special committee.
Why, then, after two references to the Judiciary Committee should we
have a third? Is it for delay? Is it in the hope of any light on this
important subject which Senators have not already? Why, then, the
reference? I can see no considerable or sufficient object, except one
that we are compelled to recognize in this Chamber: can it be a mode of
opposition by interposing time, delay?
Now, Sir, the bill is on the Calendar No. 1. It should have been the
first acted upon this session; and if it was not acted upon first,
there is no blame on me, for I tried to have you act upon it on one
of the earliest days of this session, but I was resisted here by the
Senator from Connecticut [Mr. FERRY], and the Senator from Maine [Mr.
MORRILL]; the Senator from Connecticut insisting, then as now, that the
bill should go to a committee. Now, Sir, I appeal to the Senate to take
this important measure into its own hands at once and directly.
What is the use of a Committee? It is as eyes and ears to the Senate.
How often do we repeat that saying! But who wants eyes and ears for the
appreciation of this measure? Its character is manifest; its justice is
confessed; it is in harmony with all that has been done to carry out
the great results of the war; it is in harmony with the Declaration
of Independence, and with the grand history of the Republic; it is in
harmony with the Constitutional Amendments, and it is indeed necessary
in order to their full enjoyment. The necessity is manifest every day
in the outrages to which the colored race are exposed, not only in
travel and at hotels, but still more in the children of their homes,
who are shut out from those schools where they ought to receive
practically, as well as by lesson, the great duty of Equality. The bill
is an urgent necessity. There ought to be no delay. There should not be
the postponement of a Committee, for the Committee is unnecessary. The
Committee has already sat upon it once, twice: why a third time?
In the debate which ensued, Mr. Stewart, of Nevada, and Mr.
Edmunds, of Vermont (Chairman of the Judiciary Committee), among
others, participated, both urging the proposed reference, and the
latter in remarks replete with personality. Mr. Sumner responded as
follows:--
The Senator from Nevada has made a speech which is founded on oblivion
of the past. The bill has been examined by the Judiciary Committee, and
twice reported by them adversely without amendment.
MR. EDMUNDS. When was the last report?
MR. SUMNER. February 15, 1871.
MR. EDMUNDS. That was in the time of Trumbull.
MR. SUMNER. The Senator says, “That was in the time of Trumbull.” But
it was reported adversely by the Judiciary Committee, of which my
learned friend was a distinguished member, I think. I cannot mistake;
he must have been on the Committee, a party to its report; and there
was from him no minority voice, no opposition on this floor to the
report of the Chairman. He allowed the Chairman to speak for the
Committee, including himself.
But the Senator from Nevada, oblivious of this history, insists upon
another reference. He wishes to put this bill through another dance.
For what purpose? He has read the existing statute to which this is
supplementary, and he thinks that the Committee ought to consider the
aptitude of this bill to carry out the declared purpose. Why, Sir, I
agree with him that such aptitude ought to exist, but do not forget
that the bill has been before the Senate now nearly four years. Nearly
four years has this bill, substantially as at this moment, been before
the Senate, and twice before the Judiciary Committee.
Now, Sir, let us ascend from words to things. Why make another
reference? Is it that it may find verbal place on your record that
this bill was duly referred and duly reported? That is the only reason
I can imagine; for the bill in its substance is well known to every
Senator, and, I may add, is well known to every lawyer in the country.
It has been discussed here again and again, day after day, and has
been modified after discussion; and you now have the result of all
the discussion and the modification. It is well known. It is familiar
to the country. It has received the approbation of those who are most
interested in it. It has been prayed for by petitioners without
number. It has been commended at public meetings with an earnestness
and an enthusiasm almost without parallel.
MR. EDMUNDS. May I ask the Senator a question?
MR. SUMNER. Certainly.
MR. EDMUNDS. I should like to ask my friend, the Senator from
Massachusetts, (as he is now speaking of the character of the bill,
which I did not care to refer to particularly,) where the jury is
summoned, and a man should happen to be convicted of murder or any
other crime under the State law, would it, or not, set aside the
verdict?
MR. SUMNER. The Senator will pardon me. I had not intended to touch
this branch of the debate.
MR. EDMUNDS. I merely wish to ask him what he understands to be the
character of the fourth section, supposing we pass it just as it
stands, and supposing a jury happens to be summoned contrary to the
provisions of the fourth section, but in accordance with the law of
the State.
MR. SUMNER. The effect of the violation of the law in that respect
need not be considered. It is sufficient that this section provides
a penalty against those who violate the law; such is its simple
object.
MR. EDMUNDS. Ah! but let me ask my friend, does it not also provide
what shall constitute a lawful jury?
MR. SUMNER. Very well,--and should it not so provide?
MR. EDMUNDS. Very well,--but my question is, What would be the
effect upon the trial of an indictment found by a grand jury not
composed in conformity to this motion?
MR. SUMNER. I will not presume to pronounce an opinion on that
question. It is sufficient for me that the section is clear and
explicit in imposing a penalty upon the party making the exclusion, and
that is all the bill proposes. The other consequences may be, will be,
for the determination of the courts. The question belongs to them; I
doubt if it belongs to us. But the bill is open to amendment. Let the
Senator move such as he thinks the case requires: I shall welcome it.
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.”