I could not intentionally do the Senator injustice. Nor do I find
that I did him injustice; and he will therefore pardon me, if I repeat
what I said before,--that, representing the Judiciary Committee, the
Senator comes forward, in defiance of the Declaration of Independence,
to ingraft into the legislation of the United States the practical
principle that all men are not equal. The Senator rises and denies
that he is doing any such thing. He simply recognizes local laws in
the States. That is all,--nothing else. But pray, Sir, is not this
enough? Local laws which defy the Declaration of Independence cannot be
recognized without defying the Declaration; nor can the Senator escape
responsibility merely by saying that he follows the local laws. Does he
not sanction injustice? The case is plain. He asks us to legislate on
the competency of witnesses. He proposes to regulate this competency
by Act of Congress, where, among other things, we are to provide that
in the courts of the United States witnesses shall be incompetent
on account of color. The proposition is not made openly, but in the
covert words, that the local laws of States shall in all cases prevail
in the national courts. The Senator cannot forget these local laws,
how instinct with barbarism they are, nor the shame and scandal they
bring upon our country and upon civilization itself; and yet he would
give them new sanction and effect,--not in the courts of the States,
within the local jurisdiction, but in the courts of the United States,
under the Constitution of the United States, within the national
jurisdiction, where you and I, Sir, are responsible for the barbarism.
No matter in what form it is put, no matter how subtly the attempt is
concealed, it is the adoption by Congress of an outrageous rule.
Offer any objection you please to the credibility of a witness, show
that he is not intelligent, that he is not worthy of belief, that his
character is bad, and make all proper deductions from his testimony on
this account, but do not say that he is absolutely incompetent, that he
cannot be heard in court, that, no matter how intelligent, truthful, or
respectable, he cannot be admitted to testify, if he happens to be of
another color than ourselves. Such exclusion is cruel to the witness,
degrading to courts administering it, and destructive of justice, which
seeks evidence from every quarter.
I listened closely to the ingenious argument of the Senator, going
along with him in what he claimed for the States and for their courts.
He said, each State is entitled, within its own jurisdiction, to have
its rules of evidence. Granted. He thought it better to leave every
State its own rule on this question. Granted again, Sir, so far as the
courts of the States are concerned.
MR. FOSTER. Why allow them barbarism?
MR. SUMNER. Because I have no right to interfere with them.
MR. FOSTER. That answers the two questions.
MR. SUMNER. There is the mistake of the Senator. He confounds our
duties in the two different cases of national courts, where we are
responsible, and of State courts, where we have no responsibility and
no right to interfere. In his remarks he said: “It is competent for
each State to make these rules for itself.” Granted again,--within its
own jurisdiction. But he would allow each State its sovereign will on
this question. Sir, where I cannot constitutionally interfere to check
a barbarism, of course I do not interfere; sorrowfully I allow the
sovereign will to prevail. But when a barbarism seeks shelter under the
jurisdiction of Congress, when it falls under the direct responsibility
of my vote, I cannot be silent.
The Senator will pardon me, if I add, that he erred, when he undertook
to transfer the rules of the State courts, without amendment or
modification, to the National courts. The State courts have their
rules of evidence,--they are beyond our control; but the United States
courts are within our control, and the time has come to bring them at
last within the pale of civilization. Why, Sir, has the good cause
advanced thus far? to what end is it triumphant on this floor, if, in
determining rules of evidence in the national courts, we take up and
sanction this relic of barbarism?
If the rule is not justly within our reach, pray, Sir, why are we
asked to vote on a bill concerning the competency of witnesses, and
with a section expressly regulating the whole subject? Sir, I should
feel untrue to myself, untrue to the principles I have at heart, and
to the people I have the honor to represent, if I allowed a bill like
this, with such a title, with such an object, to pass without earnest
endeavor to exclude from it all support of the vileness which seeks
shelter under its words. Within a few days the Senator has voted for
a bill to punish the fraudulent counterfeiting of postage stamps; but
suppose the counterfeiter does his work in the presence of colored
persons and nobody else, where, under the proposed rule, will the
Senator find the evidence required to carry the law into effect? As
long as Congress undertakes to legislate criminally, as long as it
has courts with a national jurisdiction in the Slave States, it is
due to itself, and it is due to justice, that it should furnish the
evidence by which such legislation may be made effective, and justice
be administered, without a constant act of shame calculated to bring
a blush upon the cheeks. I speak plainly, as is my habit, and perhaps
with feeling, but I trust that I have said nothing that I ought not to
say.
The amendment was rejected,--Yeas 14, Nays 23. The next volume
will show how this effort of Mr. Sumner at last prevailed.