Charles Sumner; his complete works, volume 18 (of 20)

Copyright, 1880 and 1882,
BY
FRANCIS V. BALCH, Executor.

Copyright, 1900,
BY
LEE AND SHEPARD.

Statesman Edition.

Limited to One Thousand Copies.

Of which this is

Norwood Press:
Norwood, Mass., U.S.A.

CONTENTS OF VOLUME XVIII.

ADMISSION OF MISSISSIPPI TO REPRESENTATION IN CONGRESS.

I am not wrong in this statement. From the beginning it has been the same. How often in times past have we heard the cry of State Rights! At every proposition concerning Slavery, at the presentation of every petition against this tyrannical wrong, at every allusion to it, the cry was heard. And when the Rebellion broke forth, the same cry was raised against those great measures of self-defence by which Slavery, our real enemy, was assailed; and then at each stage of Reconstruction it was the same. Not a measure of Reconstruction which has not encountered this pretension of State Rights. It broke forth in the Virginia debate. It breaks forth on the present occasion. Again we hear the voice of Slavery.

This pretension, which is so constantly manifest, finds partisans naturally on the other side of the Chamber. It is easy for Senators who have upheld Slavery to uphold that interpretation of the Constitution which was the constant ally of Slavery; but it is incomprehensible how Senators fresh from the great battle with Slavery should continue in dalliance with the constant ally.

The argument for State Rights proceeds on a misapprehension. Nobody doubts the right of a State to local self-government, through which are supplied the opportunities of political education, and also of local administration adapted precisely to local wants. This is the peculiarity of our national system, wherein it differs especially from the centralized imperialism of France. But while recognizing the State as the agency for all matters properly local, it must not be allowed to interfere with those other matters, being rights and duties, which are not local, but universal.

Now, Sir, nothing can be clearer than that the Equal Rights of All must be placed under the safeguard of one uniform law which shall be the same in all parts of the nation,—the same in Charleston and New Orleans as in Boston and Chicago. It is absurd to suppose that the rights of the citizen can differ in different States. They must be the same in all the States; but this can be consummated only by the national authority. Therefore, on grounds of reason, I repel that pretension of State Rights which would take this just prerogative from the nation. Understand me, Sir, I do not seek to centralize, but to nationalize. The partisans of State Rights, in their efforts to decentralize, would denationalize. In the name of local self-government they would overthrow the nation.

If I am asked where I find these national powers, I answer, that they are in those two great title-deeds of the Republic, the Declaration of Independence and the National Constitution. Whether viewed apart or together, these two are one and the same; but the two reinforce each other. The Declaration of Independence finds proper machinery for its great purposes in the National Constitution, while the National Constitution is explained, invigorated, and elevated by the Declaration of Independence. By the National Constitution the nation is bound to assure a republican government to all the States, thus giving to Congress the plenary power to fix the definition of such a government; but by the Declaration of Independence the fundamental elements of this very definition are supplied in terms from which there can be no appeal. By this Declaration it is solemnly announced, first, that all men are equal in rights, and, secondly, that just government stands only on the consent of the governed. Other things may fail, but these cannot. Whenever Congress is called to maintain a republican government, it must be according to these universal, irreversible principles. The power to maintain necessarily implies all ancillary powers of prevention and precaution, so that republican government may be assured. All these powers are essentially national, and not local; they belong to the nation, and not to the State.

So long as Slavery existed, this definition was impossible. State Rights were set up against Human Rights; but with the death of Slavery, followed by the extinction of the Rebellion, this definition takes its just place in our national system. Therefore whatever tends to maintain a republican government and to place it beyond assault, whatever tends to maintain the great principles declared at our birth as a nation,—all this is constitutional. As well deny that the sun shines,—as well with puny arm attempt to drag the sun from the sky; still it shines. God be praised! the day has passed when State Rights can be exalted above Human Rights.

It is for Congress to determine, in its discretion, how republican government shall be maintained. Whatever it does in this regard, whether by general law, or by condition or limitation on States, is plainly constitutional beyond all question. All is in the discretion of Congress, which may select the “means” by which this great guaranty shall be performed. It is a guaranty by the express text of the Constitution, and it must be performed. In selecting the means, Congress cannot hesitate at any requirement calculated to secure the beneficent result. By condition-precedent, by condition-subsequent, by prohibitory legislation, by legislation acting directly on the States or the people, by each and all of these Congress may act, bearing in mind always the great definition supplied by our fathers, which must be maintained at all hazards.

It is vain to say that our fathers did not intend this great power and foresee its exercise. There it is in the Constitution, clear and commanding; and there is the great definition in the Declaration of Independence, clear and commanding. If our fathers did not fully appreciate their mighty act, neither did the barons at Runnymede, when they obtained Magna Charta, the perpetual landmark of English rights. The words of the poet are again fulfilled: “They builded better than they knew.” But they did build. They built this vast temple of Republican Liberty, and enjoined upon Congress its perpetual safeguard, “anything in the constitution or laws of any State to the contrary notwithstanding”; and, Sir, by the oath which you have taken to support the Constitution, are you bound to watch and protect this vast temple.

The recent war has had its losses, terrible and afflicting. It has had its gains also. First among these gains is that interpretation of the Constitution which makes us a nation, and places the equal rights of all under the protection of the national power,—being nothing less than the fulfilment of the early promises of the Fathers. Too slowly has this been accomplished; but it is accomplished at last; and it is our duty to see that these promises are in no respect neglected, and that the Republic, One and Indivisible, dedicated to Human Rights, and an example to mankind, is upheld in every part of our wide-spread country.

THE FIRST COLORED SENATOR.

If I do not discuss the question, it is partly because it is now so plain, and partly because on other occasions I have considered it at length. There is not a point in the case which I have not argued long ago. Nearly a generation has intervened since I insisted at home, in Massachusetts, that all must be equal before the law, without any distinction of color.[1] Several years have intervened since here in this Chamber I insisted on the same truth, and at the same time showed how, at the adoption of the National Constitution, colored persons were citizens according to the terms of all the State Constitutions, except that of South Carolina, and perhaps Virginia and Georgia.[2] These arguments and authorities were not answered then. They cannot be answered. It is useless to interpose ancient pretensions. They are dead beyond resurrection. It is useless to interpose the Dred Scott decision. Born a putrid corpse, this decision became at once a stench in the nostrils and a scandal to the Court itself, which made haste to turn away from its offensive offspring. By the subsequent admission of a colored lawyer to practise at its bar this decision was buried out of sight, to be remembered only as a warning and a shame.[3]

The vote on this question will be an historic event, marking the triumph of a great cause. From this time there can be no backward step. After prolonged and hard-fought battle, beginning with the Republic, convulsing Congress, and breaking out in blood, the primal truths declared by our fathers are practically recognized. “All men are created equal,” says the great Declaration; and now a great act attests this verity. To-day we make the Declaration a reality. For a long time a word only, it now becomes a deed. For a long time a promise only, it now becomes a consummated achievement. The Declaration was only half established by Independence. The greater duty remained behind. In assuring the Equal Rights of All we complete the work.

No man acts for himself alone. What he does, whether for good or evil, is felt in widening circles, according to the measure of his influence. This is true of the Senate, whose influence is coextensive with the Republic, and reaches even beyond its enlarging confines. What the Senate does now will be followed by other bodies and associations. As the greater contains the less, so does the Senate contain all these everywhere throughout the land. In other places there may be a brief struggle, but the end is certain. Doors will open, exclusions will give way, intolerance will cease, and the great truth will be manifest in a thousand examples. Liberty and Equality were the two express promises of our fathers. Both are now assured. And this is the glory of the Republic, before whose mighty presence, radiant with justice, kings and nobles must disappear as the ghosts of night at the morning sun, while the people, with new-found power and majesty, take their place.

What we do to-day is not alone for ourselves, not alone for that African race now lifted up. It is for all everywhere who suffer from tyranny and wrong,—for all everywhere who bend beneath the yoke,—for all everywhere who feel the blight of unjust power; it is for all mankind; it is for God Himself, whose sublime Fatherhood we most truly confess when we recognize the Brotherhood of Man.

CONSIDERATION OF TREATIES IN OPEN SENATE.

From the beginning I have always held that the Senate erred in the establishment of secrecy, particularly with reference to treaties. I think the first year that I had the honor of a seat in the Senate the question of a change of our rule in that regard was presented, and I voted in its favor. I have seen nothing from that day to this to change my judgment upon that particular point materially. I think that the rule of secrecy was a traditional policy which we derived from the diplomatic usages of the Old World. We came to it naturally, and it has continued with us down to this day. Now, personally, I incline to change it; but I have two suggestions to present, applicable to the pending question. The first is, whether it is advisable to change it while it is known that an important treaty is actually pending; whether the change, if such change should be adopted by the Senate, should not be applicable to the future rather than to any pending question. I merely present that, without undertaking to determine it. The other point is, whether a change so important, not to say so radical, whatever may be the judgment of individual Senators, like the Senator from Connecticut, or like myself, should not be referred to the committee having charge of such questions. I would therefore suggest that the proposition be referred to the Committee on Foreign Relations. That committee will meet next Tuesday, and I have no doubt will take it at once into consideration.

ELIGIBILITY TO THE SENATE: QUESTION OF INHABITANCY.

The Senator from Illinois [Mr. Trumbull] substantially admitted this rule of law. I agree with him that there are but two things to be shown: first, what the old books call the factum, and, secondly, what the same old books call the animus. What is the factum? It is residence. What is the animus? It is intent to stay. Now in point of law you can add nothing to these. You may argue till doomsday, you may cite authorities without number, but you can add nothing to these two simple requirements, residence and intent.

Mr. Sumner. Certainly.

Mr. Sumner. Very well,—I will come to that. The Senator and myself agree that in point of law there are two things to be established, and only two,—residence and intent. The question that remains is one of evidence; it is not a question of law. If the Senator were on the bench, which he once adorned, he would be obliged to charge the jury in this way. The rule of law is positive. All that remains comes under the head of evidence. Now I say by law you must show those two things, residence and intent, and you cannot add to either a tittle.

On this occasion, the most important requirement is that of intent. This is the requirement that has been most argued. And here I go back to that original Latin phrase which dominates this case, and which is in itself an all-sufficient rule: I mean the animus manendi. Why is this phrase, so often repeated, handed down for successive centuries? Simply because, like maxims of law, or like proverbs, it contains in one short phrase a rule. You have there a chapter of jurisprudence, if you please, or a volume. It is the mind, or the intent to remain, which governs. This is all that the law says. The law does not go forward and require, as the Senator from Illinois has argued to-day, that there must be an act. You find no such requirement in the rule. The rule is explicit, precise; and here I challenge contradiction. It is simply the intent to remain, the animus manendi. Step beyond that and you are lost, if you undertake to state the law. There is no rule of law outside of this simple sum-total.

I come, then, to the point that we have before us, simply a question of intent. I might cite authorities here. I have some of them before me. I will read one. For instance, here is Vattel, quoted by Judge Story in his article on Domicile in the “Encyclopædia Americana,” which Senators familiar with this subject know is of authority:—

On this Judge Story very properly remarks:—

Here are words completely applicable to the case now before us. The learned author then proceeds to say:—

And then adds:—

Mark the old recurring phrase, with its light and limitation. Here again I say is the rule. You cannot go outside of it. If you go outside of it, you are lost. I am speaking of the rule of law. I know that there can be no addition to that, because, if you do undertake to add to it or to take from it, you must depart from the jurisprudence of every civilized country,—not only of our own country, not only of England, but of every civilized nation on the continent of Europe. In the jurisprudence of every one of those countries you will find this same distinct, precise, simple rule.

Now, Sir, allow me to say,—I say it with entire respect,—the confusion in this debate has arisen from confounding the rule of law with the evidence under that rule. The rule, I say, is precise, that there must be intent. But how shall the intent be proved? Sometimes in one way, sometimes in another; sometimes by long-continued residence,—by purchase of property,—by the establishment of a home,—by the establishment of a place of business,—by all those circumstances and incidents which show fixity of purpose. All this comes under the head of evidence. It does not touch the rule of law behind.

The Senator from Illinois says there must be an act. Allow me to say that words are sometimes acts, and especially if associated with important events. It is a familiar phrase of law that language enters into what we call the res gestæ; language is welded into the transaction and becomes a part of it. Words then become things; and when were words more things than when the commanding general in Mississippi distinctly declared his purpose to resign his commission in the Army of the United States and accept a nomination as Senator? Here was a declaration constituting part of the res gestæ, and in itself an act.

I am not speaking merely on theory. I have in my hand a case, which I think, when I read it, you will see is applicable: I refer to Metcalf’s Reports, volume three, page 200, the case of Kilburn v. Bennett. In the statement of facts is the following passage:—

The case was carried before the full bench, when the ruling of the judge below was set aside, and the Court observed as follows:—

Now on the authority of this case it seems to me that the declaration of General Ames, accompanied by the acceptance of candidacy as a Senator, is clearly an act. But I do not argue that the Senate is now bound by any technical rule of this kind. It is enough if the Senate is satisfied with regard to his intent on the evidence adduced. No rule of limitation or exclusion can prevail. If the Senate believes that he had at the time the animus manendi, it must act accordingly.

Is the Senate, on the evidence before it,—without the application of any technical rule of evidence, without recognizing his declaration as part of the res gestæ,—is the Senate satisfied that at the time named he intended to reside in Mississippi? This is the whole case. On this question of fact each Senator will judge for himself, on the evidence before him. This evidence I will read in the Report of the Committee, being the language of General Ames in a written statement to them, as follows:—

On which the Committee remark:—

Sir, what more can you ask? On the report of your own Committee you have explicit evidence of the intent of General Ames to reside in Mississippi; and where intent is enough, you need add nothing to it. There is no necessity for any act beyond this declaration, which, as I have already said, is in itself an act, as the Senator from Michigan [Mr. Howard] says, taken in connection with his personal presence on the spot,—and I would add, taken in connection with all the necessary implications from his position, and from his acceptance of the candidacy. This is not a case in a justice’s court, or even in a county court. This is the Senate of the United States; and we are considering the evidence with regard to the declarations of a gentleman already chosen by a State of this Union to take his seat among us. We cannot apply to these declarations any technical rule which possibly might be applied in an inferior tribunal. We are to look at the case in its essence, and, if satisfied of the intent, we cannot go further. The Senate does not sit in chains. It may act according to its conscience on the evidence, without any constraint, except from the rule of law requiring intent.

Much stress has been laid upon the fact that General Ames held a commission in the Army of the United States, and was actually the military commander and provisional governor of Mississippi. What then? Does this affect his position now? Is a soldier or officer in the Army, is the commander of an army, shut out from the same privileges that belong to you, Sir, and to me? Each of us may change his domicile as he pleases, and to-morrow or next week transfer his home to another State of the Union, and nobody can say, No. Has the soldier or the officer fewer rights than you and I have? I think not; and I am sure that both reason and authority sustain my conclusion. I have in my hands a volume of the California Reports,—the twenty-eighth volume. I call attention to the case of The People v. William Holden, and I will not trouble you with anything more than one clause from the marginal note, as follows:—

“If it is his intention so to do.” These words are strictly applicable to the case of General Ames. There was nothing in his service in Mississippi, nothing in his high military command, to prevent him from establishing an inhabitancy in that State, if it was his intention so to do.

Thus at every point are we brought back to the single rule of law and the evidence under it,—the rule being that there must be an intent to remain, and the evidence being open to the judgment of the tribunal before which the question is raised. Especially must this be the case with the Senate, which will look through all technicalities, all cobwebs, to find the truth. Nor can the Senate be so unjust to any class of citizens as to say that a military commander may not acquire inhabitancy in a State where he is fixed by military duties, provided he so intends. All the adverse presumptions from military residency will be overcome at once by the animus manendi, so soon as this is proved.

Do you remember, Sir, a pointed remark made by Lafayette in the French Chamber, shortly after Louis Philippe was crowned King? Astonishment was expressed that the great defender of Liberty should espouse the cause of a Bourbon and help him to the throne. Lafayette, with remarkable condensation of phrase, replied, that he was in favor of Louis Philippe, not because, but notwithstanding he was a Bourbon,—“not because, but notwithstanding.” And in this famous saying of the great French-American you have terms strictly applicable to this case. General Ames, soldier, officer, military commander in Mississippi, became an inhabitant thereof, not because, but notwithstanding he was soldier, officer, and military commander.

RATIFICATION OF THE FIFTEENTH AMENDMENT.

It is my nature, fellow-citizens, to think more of what remains to be done than of what has been done,—to think more of our duties than of our triumphs; and only to-day I have heard from Philadelphia of a decision in a court of justice that a person of foreign birth could not be naturalized in this country because of color. This is in pursuance of one of those old statutes of the days of Slavery, before the word “white” was stricken from the laws. Repeatedly, from my seat in the Senate, I have made appeals for the expunging of that word from the laws. I have now a bill before the Judiciary Committee to strike this word from our naturalization laws. What the Committee will do remains to be seen. I need not say that I shall try to impress upon the Senate the importance of passing this bill. It remains also, that equal rights should be secured in all the public conveyances and on all the railroads in the United States, so that no one shall be excluded by reason of color.

It further remains that you here in Washington shall complete this equality of rights in your common schools. You all go together to vote, and any person may find a seat in the Senate of the United States; but the child is shut out of the common school on account of color. This discrimination must be abolished. All schools must be open to all, without distinction of color. In laboring for this, you will not only work for yourselves, but will set an example for all the land, and most especially for the South. Only in this way can your school system be extended for the equal good of all. And now, as you have at heart the education of your children, that they may grow up in that knowledge of equal rights so essential to their protection in the world, it is your bounden duty here in Washington to see that this is accomplished.

Your school system must be founded on Equal Rights, so that no one shall be excluded on account of color. In this way Human Rights will be best established. And I would remind you, although this has not been effected, the victories already gained are the assurance that all that should be done will be done.

You have progressed, step by step, until you have reached your present position; and now it only remains that you should continue to the end earnest, faithful, and determined; then will the work be completed.

Returning you my sincere thanks, and offering my felicitations on this occasion, I bid you good night.

ADMISSION OF GEORGIA TO REPRESENTATION IN CONGRESS.