Therefore, Sir, I am not without precedent, when I bring forward an
important measure and ask your votes, even though it have not the
sanction of this important committee. I wish it had their sanction;
but I do not hesitate to say that this bill is more important to the
Judiciary Committee than that committee is important to the bill. In
this matter the committee will suffer most. A measure like this, which
links with the National Constitution, and with the Declaration of
Independence, if the Senator from Wisconsin will pardon me--
MR. CARPENTER. I rise to ask why that inquiry is made of me.
Have I criticized allusions to the Declaration of Independence?
MR. SUMNER. I feared the Senator would not allow allusion to the
Declaration, except as a “revolutionary” document. I say, this measure,
linked as it is with the great title-deeds of our country, merits the
support not only of the Judiciary Committee, but of this Chamber. The
Senate cannot afford to reject it.
Sir, I am weak and humble; but I know that when I present this measure
and plead for its adoption I am strong, because I have behind me
infinite justice and the wrongs of an oppressed race. The measure is
not hasty. It has been carefully considered already in this Chamber,
much considered elsewhere, considered by lawyers, by politicians,--ay,
Sir, and considered by our colored fellow-citizens, whose rights it
vindicates. But at the eleventh hour the Senator comes forward with a
substitute which is to a certain extent an emasculated synonym of the
original measure, seeming to be like and yet not like, feeble where the
original is strong, incomplete where the original is complete, petty
where the original is ample, and without machinery for its enforcement,
while the original is well-supplied and most effective.
That you may understand the amendment introduced by me, I call
attention to the original Civil Rights Act, out of which it grows and
to which it is a supplement. That great statute was passed April 9,
1866, and is entitled, “An Act to protect all persons in the United
States in their civil rights, and to furnish the means of their
vindication.”[226] It begins by declaring who are citizens of the
United States, and then proceeds:--
“Such citizens, of every race and color, without regard to any
previous condition of slavery or involuntary servitude, except
as a punishment for crime whereof the party shall have been
duly convicted, shall have the same right, in every State and
Territory in the United States,”--
To do what?
“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,”--