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 the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in all trials at Common Law in the courts of the United States, in cases where they apply.”
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. Davis, of Kentucky, followed with the remark:—
“I do not think, Mr. President, there was any need for sticking the perpetual, the all-pervading, the everywhere-to-be-found, the ever-in-the-way negro to this bill. I hope and trust that the Senate and the Congress of the United States will be allowed to mature and perfect some few bills, in which the interests and the business of the white man are involved, without having this ever-present negro stuck upon them by the Senator from Massachusetts. If he desires to bring up this matter of the negro in connection with the rules of proceeding in the Federal courts, let him introduce a distinct bill, and not make everything odoriferous of his friend.”
Mr. Sumner then renewed his motion in the form of a proviso, and afterwards the Senate adjourned. The bill was never taken up again. But the same question was soon presented on another bill.
July 15th, the Senate had under consideration a bill concerning the competency of witnesses in courts of the United States, which provided that this should be regulated by “the laws of the State in which the court shall be held.” Mr. Sumner offered his amendment again. It was opposed by Mr. Foster, of Connecticut, who had reported the pending bill. In the course of his remarks he said: “It is competent for every State to fix its own rules for itself, and the independence of each State of every other State requires that they should be protected in that right of making their own laws.”
Mr. Sumner replied:—
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.