I hope the amendment will prevail. For years we have been asked to make admirals. Congress has refused,—partly, perhaps, from motives of economy, and partly, also, from hesitation to create officers with that rank and title.

Now, Sir, I am willing, considering the increase of our navy and the exigency of the public service at this time, to create officers with that rank and title. So doing, we confer honor and consideration,—we bestow what officers, military and naval, naturally covet. Wherever they go, they will be addressed as Admiral; and, with naval men, that is much. Sir, I believe it more than money. But, while bestowing rank, I hesitate to increase emolument largely, particularly at this moment of our history. It costs nothing to confer rank; but it will be most expensive to the Treasury, if we enter upon a new scale of pay. Therefore I follow the Senator from New Hampshire in his proposition to reduce the salary. Create the admirals,—bestow this new title, this consideration, this introduction wherever the admiral goes, this equality, if you please, with the admirals of other nations and other fleets; but do not undertake to vie with those nations in salaries. To me it seems unwise.

TESTIMONY OF COLORED PERSONS IN THE COURTS OF THE UNITED STATES.

MR. PRESIDENT,—This bill relates to the national judiciary. The Senate is making rules for the courts of the United States, and now by its vote sanctions the rule that a witness who happens to have a color different from ours is incompetent to testify, he cannot be heard in court. The practical effect of such exclusion is, that any outrage by a white man on a colored person, if no other white person is present, must go unpunished; and the Senate of the United States refuses to interfere against this cruelty. I must say, Sir, that I lose my interest in the bill, when it is associated with such wickedness,—for such I must call it. If there is any outrage at this moment in the form of law, and actually within our reach, it is what I now hold up to the indignation of the country and of mankind. It is hard to think that human beings can be placed thus defenceless by Act of Congress,—that masters or overseers, being white, may offer to colored persons any offence, any brutality, and the testimony of the witnesses, merely because they are colored, shall be excluded absolutely. And yet, Sir, that is what the Senate to-day declares.

The Senator from New Hampshire [Mr. Hale] has voted to sustain this cruelty. Other Senators have voted to sustain it. It is their privilege. Each Senator votes, I know, according to his conscience; but, Sir, I call attention to the vote, and remind you of what occurred on another occasion. Formerly, when I moved this proposition, it was opposed on the allegation that it was not pertinent to the bill under consideration. When I moved it, the other day, on what was known as the Confiscation Bill, the other Senator from New Hampshire [Mr. Clark] mildly suggested, that, at a proper occasion, on a proper bill, he would be ready to support it. I know that the motion must have the approbation of that excellent Senator. He is too just and too humane not to be in favor of it. And now, Sir, the time has come. Here is a bill regulating evidence in courts of the United States,—not in courts of the States, but in courts of the United States. The whole subject is directly before you. It is within your province now to decide. Yours the jurisdiction and power. And yet, Sir, you choose to continue the wrong. I shall vote for the bill on its final passage, because in other respects I think it ought to be a law; but I enter my protest against the conclusion of the Senate. It is melancholy, disastrous, discreditable.

The Senator from New Hampshire severely criticizes the Supreme Court, which he reminds us has decided that the rights of citizenship, being rights that white men are bound to respect, and all the rights which make human life worth anything, are dead to colored persons; and he then proceeds forthwith to sustain a principle every way as bad. He condemns Chief-Justice Taney for declaring that colored persons are not citizens, and then, with marvellous logic, proceeds to say that he will not interfere to overturn the rule by which the testimony of colored persons is excluded from the national courts. Sir, I do not know which is most open to condemnation, the Supreme Court or the Senator. I am against the decision of the Supreme Court. The Senator knows it well. I am not one whit behind him in condemnation of that judgment, which must forever stand forth among the inhumanities of this generation. But permit me to remind the Senator that the rule he sustains is not less inhuman. There is not a word he can launch against the Court that must not rebound upon himself. To me it is unintelligible as painful that the Senator should interfere to save any such inhumanity. I use strong language, but it is only in this way that I can fitly characterize the doctrines of the Supreme Court and of the Senator. The Supreme Court has erred infinitely and wretchedly, but the Senator now errs in the same way.

The Senator is entirely mistaken, when he says that the rule which I seek to overturn proceeds from the Supreme Court. It is no such thing; and if I can have his attention one moment, I can make him understand it. The rule against the testimony of colored persons stands on the local law of the States, and not on any decision of the Supreme Court of the United States. The Court cannot interfere with it one way or the other. Congress alone, when legislating for its own courts, can interfere with it; and I entreat the Senate now, as it is about to legislate for the national courts, to interfere with it. The amendment of the Senator from Connecticut, which I have in my hand, is as follows:—

That is, the laws of the several States shall be rules of decision in the United States courts. That is what we declare. I simply propose to add, that those laws shall not be rules of decision in the United States courts, so far as they exclude witnesses on account of color. The Senator from New Hampshire opposes this just, humane, and irresistible proposition; and his argument is, that, instead of reaching the result by legislation, we must overturn the Supreme Court. Sir, permit me to say, his argument is entirely inapplicable, his whole philippic against the Supreme Court is out of place. Whether I agree with him or not, it is plain that this is not the time for it; and I must confess that I like to see things in their proper place. The question now is much more simple, more direct. Why enter upon the ample, illimitable debate which the Senator opens? Why review the Supreme Court and its relations to the country, and whether it shall be overturned, whether it shall be reformed, whether it shall be modified? All this has nothing to do with the question, and the Senator, when he introduced it, simply diverted attention from the business before us. I do not know that he did it purposely. Indeed, I rather suspect the ardor of his nature, which has led him into this strange diversion with its irrelevant amplification.

But the Senator says that the cases in which colored persons are interested arise in the State courts, and not in the United States courts, and that therefore my amendment is entirely inapplicable. The Senator is entirely mistaken again. The United States courts have jurisdiction of crimes without reference to color. They also have civil jurisdiction in other cases which do not depend upon citizenship. The Senator, as a lawyer, knows this well; and yet, deliberately, by vote, and now by speech, he upholds the barbarous rule of exclusion on account of color. Sir, I do not know which was worse, the vote or the speech, although the latter was in harmony with the former. I was astonished at the vote. I am now astonished at the speech, which, pardon me, is as illogical in argument as bad in principle. Most kindly, but most earnestly, do I dissent from it. Sir, I do not wish to take up time, but the subject is of transcendent importance. You will bear with my frankness, if I add, that sanctioning this exclusion can do no honor to Congress. I am sure it must be recorded in judgment against us, and deservedly too. Civilization will blush at the record. God save us!

Mr. President,—It may be well, as the Senate is called to enact a new national statute, to glance back at an early landmark, and contemplate the principles declared by our fathers. I hold in my hand the Declaration of Independence, with these words at the beginning: “We hold these truths to be self-evident, that all men are created equal,” &c. Now, Sir, the Senator from Connecticut [Mr. Foster], representing the Judiciary Committee, proposes to establish as a rule of evidence in the national courts that men are not equal.

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. Sumner. Because I have no right to interfere with them.

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.

PROVISIONAL GOVERNMENTS AND RECONSTRUCTION.

That abomination, Sir, is set forth in the Revised Code of North Carolina, chap. 34, sec. 82. But lest it should fail by the employment of slaves as school-teachers, we have the following prohibition.

The punishment of slaves for this offence is whipping, repeated for every act. But, Sir, here is another specimen.

Here is yet another.

And now one more.

I have read enough, Sir. These passages show you the statutes to be enforced in the name of the National Union, by its constituted authorities, in courts organized by Congress. And behind all these is Slavery itself to be enforced also.

Sir, such an exhibition is more than sufficient. You cannot consent to any such thing. In organizing these governments, all that we can do is to protect life and property, and generally to provide the machinery of administration. Further we cannot go, and protect institutions in themselves an outrage to civilization.

In this country there is but one “institution,” as all the world knows, and the phrase “and institutions,” when carefully introduced, means only one institution, which I need not name.

TAXES ON KNOWLEDGE.

Nor is there any practical argument founded on protection. There are no interests requiring protection which will be promoted by an increased duty, as appears in last year’s memorial of publishers and importers, praying a reduction to ten per cent, and also in another and later memorial from New York importers, praying for the same reduction, and setting forth that their business seriously suffers from the existing rate.

And now I add, that this increased duty is a tax on knowledge, and as such to be discountenanced and opposed. But I rest my argument on the simple ground, that it will not increase the revenue. If at this exacting moment it would have any such consequence, much as I should regret the necessity, I could not oppose it. But it is easy to show that such will not be the consequence: at least, the statistics point this way. The total value of books imported in 1858, with a duty of eight per cent, amounted to five hundred and thirty thousand dollars: I do not give the odd figures. The total value in 1859, likewise with a duty of eight per cent, was seven hundred and seventy-seven thousand dollars; and in 1860, with the same rate, it was seven hundred and thirty-four thousand. In 1861, the total value, with a duty of fifteen per cent, sank as low as three hundred and forty-six thousand. These figures speak.

I do not err, when I infer from them that the higher duty has been an injury to the revenue, and also to the importer. Therefore it is open to a twofold objection. With a duty of ten per cent the revenue would gain, and the public with the importer would be benefited.

The case is stated in a few words. An increased duty on books will do nothing for the revenue; but it will interfere with a useful business, and at the same time impose a tax on knowledge.

Here is another tax on knowledge. On the face it is a tax on rags; but rags are imported to make paper; so that a tax on rags is a tax on paper, and as such is a tax on knowledge.

CONSTITUTIONAL QUORUM OF THE SENATE.

It will be observed that the quorum of the Commons, numbering six hundred and fifty-four persons, is only forty, and this number appears to have been recognized as long ago as 5th January, 1640. At an earlier day more than sixty was required, and as late as March 18, 1801, an attempt was made in the Commons to revive this ancient rule, but it failed. For a short time in 1833 and 1834 the quorum for private business was twenty.[98]

The quorum of the Lords, numbering four hundred and sixty-five, is only three. A spectator at the law sessions of the Upper House is struck by the appearance of the Lord Chancellor on the woolsack, in wig and gown, listening to arguments, with two lay lords, like two lay figures, on the side benches, merely to constitute a quorum so as to legalize the decision of the Chancellor. The origin of this quorum, having the sanction of unbroken usage, is lost in the night of Antiquity. It is probably founded on the ancient maxim of the Roman Law, Tres faciunt collegium,—“Three make a college,”—the latter word being equivalent, in some respects, to our word corporation.

Thus, according to Parliamentary Law, two things appear: first, the quorum of each House is within the control of the House; secondly, it is now, and always has been, in each House, much smaller than a majority.

With us the quorum, in general terms, is fixed by the Constitution. It is not left to usage, or the control of each House; but it is reasonable to infer that any question on the meaning of the Constitution, arising from generality of language, may be interpreted in the light of Parliamentary Law. Indeed, this is only according to the rule under which all technical words in the Constitution are interpreted. For instance, words known to the Common Law or to the English Chancery are interpreted according to the Common Law or the English Chancery. Mr. Wirt, in his admirable argument on the impeachment of Judge Peck, states the rule in these words:—

According to this rule, so clearly enunciated, the words “quorum” and “House,” which are derived from English Parliamentary Law, may be explained by that law; so that, in case of doubt, that law is for this purpose embodied in the Constitution. Now the Constitution declares that a majority of each House shall constitute a quorum to do business. The rule, it will be observed, is the same for each House. But the question arises, What is a majority of each House? or rather, putting aside all question with regard to the House of Representatives, which is perfectly free to determine for itself, What is a majority of the Senate?

In fixing the quorum at a majority rather than any smaller number, our Constitution followed the law of business corporations, where a majority always prevails, according to an old maxim of the Common Law,—Ubi major pars est, ibi est totum,—“Where the greater part is, there is the whole.” This rule is so reasonable, that it has been vindicated by an eminent authority as founded on the Law of Nature. Here are the words of the great jurist Savigny:—

Thomas Jefferson, a very different person from the German jurist, has also vindicated the rule.

But the question still occurs, What is the major part of the Senate? Is it the major part of the abstract or theoretical Senate, or the major part of the real Senate? In other words, is it the major part of the Senate contemplated by the Constitution, with two Senators from each State, or the major part of the actual Senate, counting only those entitled to vote? At the present moment there is a wide difference between the two cases.

Several clauses of the Constitution are applicable to this question. I group them together.

Probably “the whole number of Senators” is equivalent to the term “House.” But what is the “House”?

The Senate de jure consists of two Senators from each State.

The Senate de facto may consist of Senators actually elected and qualified, or of Senators actually elected.

Whether the “House” shall be the Senate de jure or the Senate de facto is now within our discretion. The question has been raised, and the way is open to adopt either interpretation, according to the meaning of the Constitution as seen in the light of Parliamentary Law, and, I add also, of convenience.

According to Parliamentary Law, the whole question is in our hands.

According to convenience, the quorum should be founded on the actual Senate, being the Senators actually elected and qualified.

If ever the argument of convenience was strong, peculiarly strong, it is now, when a wicked rebellion has undertaken to withdraw the Senators of eleven States, thus reducing our numbers. It is not necessary to assert that these States should be no longer counted among our stars. It is enough, if we declare that their vacant chairs shall no longer be counted in our quorum. As the language of the Constitution is drawn into debate, I cannot doubt, that, according to Parliamentary Law, the present question is within the control of the Senate, to be determined by the teachings of reason and convenience, so as to assure the public welfare. Any other interpretation must leave the Senate to all the hazards of disorganization by treason, or, it may be, by indifference. If the Senate declines to exercise this power, it will abandon an essential principle of self-defence.

An extreme case might be put, where, through defection, the actual Senators are reduced to a mere handful. But the rule is not to be tried by any such extreme case, which can occur only when the Government is broken up.

I rest confidently on the double conclusion: first, that the words of the Constitution with regard to the quorum of the Senate, so far as doubtful, are to be interpreted by Parliamentary Law; and, secondly, that, by Parliamentary Law, these words are within the control of the Senate, to be interpreted according to its own ample discretion under the exigency of the occasion.

PROTEST AGAINST FINAL ADJOURNMENT OF CONGRESS.

There is another question, not less important. It is the bill of the Senator from New York [Mr. Harris], constituting Provisional Governments for the Rebel States,—a subject of transcendent importance, and I submit, also, of practical interest at this very moment; for it involves precisely this inquiry, Whether you are to allow a system of military governments or Congressional governments. It is a question between the military and the civil power.

Then we have the Army Bill, which my colleague has in charge. Few matters of greater importance have ever been laid before the Senate. It involves nothing less than the organization in our country of a system of conscription, so well known on the Continent of Europe, but thus far happily unknown to us; and yet, Sir, this great question, also, is to be hurried forward without any adequate discussion.

Then we have Executive business, to which I can only allude in a general way, but of vast moment, which cannot be adequately considered without days, and I might say weeks.

Then we have also the whole Calendar, to which the Senator from Illinois has referred, that ought to occupy us for weeks.

Here are at least five important matters,—West Virginia, the Provisional Governments, the Army Bill, Executive business, and the whole Calendar,—all open to consideration; and yet, Sir, Senators propose to go home,—Senators are weary,—Senators would like to find a retreat, away from these legislative cares. I can enter into that feeling. Sir, I should be glad to be at home. I suppose the gallant soldiers on the James River, on the Chickahominy, would also be glad to be at home. They are not excused, they have not a furlough,—and yet we Senators talk of our furlough.

Now it is known that formerly, when Congress was paid by the day, it never thought of adjourning at this time. One of the most important bills on your statute book bears date the 18th day of September, 1850;[102] and for some years immediately thereafter Congress did not adjourn until late in August. I think I have sat myself close upon September; but when I mentioned this fact the other day, the Senator from Ohio reminded me that then Congress was paid by the day, whereas now it is paid by the year. Has it come to this, that Congress could sit here content when paid by the day, and now that it is paid by the year it leaves its important business to be neglected entirely, or to be hurried forward without that discussion which it ought to receive?

Sir, I hope the Senate will not consent to fix any day of adjournment. I hope it will sit here, proceeding regularly with the business now on its Calendar, and meeting any contingencies which in the present state of the country may arise. A duty is cast upon Congress which ought not to be slighted. It is to see that the Republic receives no detriment. Solemnly now this duty addresses itself to all of us. Let us not neglect it. For the sake of the public business, and for the sake of those responsibilities which from their very uncertainty at this crisis are so vast, I ask the Senate to continue here.