It was to provide against the President, and to do such other incidental business as the public interests might require. I never doubted that there would be a session on the 3d of July.[233] I so stated at the passage of the resolution. I have so stated constantly since; and I have advised more than one gentleman connected with Congress not to leave the country, because his post of duty was here. I believe that I have answered the question of my friend.
And now one word more. We are assembled under an Act of Congress and the National Constitution. By the Constitution it is provided that “each House may determine the rules of its proceedings.” That is all it can do. It may not annihilate proceedings; it may not forbid proceedings. It may provide rules for them; but it cannot, in a just sense, prevent. Therefore I submit that the resolution, if not positively unconstitutional, is contrary to the spirit of that instrument.
Mr. Ross, of Kansas, hoped “that either the proposition of the Senator from Massachusetts or something similar to it would carry.” Mr. Tipton, of Nebraska, was “embarrassed in regard to voting for the original resolution.” After further debate, the vote was taken on Mr. Sumner’s substitute, and it was rejected,—Yeas 6, Nays 26.
Mr. Ross then moved a substitute limiting business “to removing the obstructions which have been or are likely to be placed in the way of the fair execution of the Acts of Reconstruction,” and “such as may be rendered necessary for the preservation of the peace on the Western frontier.” Debate ensued, in which Mr. Howe, of Wisconsin, said: “I did not suppose any gentleman would insist that I was bound by the decision of that body, or by the conclusion arrived at in that consultation.… I do not know what penalties I subject myself to by disagreeing here and now with the conclusions then arrived at.” Mr. Wade, of Ohio, spoke vigorously against the original resolution. In his judgment, “there are some questions about which a Senator has no right to conform his view to that of the majority,” and he took the original resolution to be of that class. “It sets a precedent of the greatest danger in high party times.” He hoped “that no such detriment to a minority will ever be successfully urged here.” He judged Mr. Sumner’s “measure, which is to give universal suffrage by Act of Congress, to be upon the subject of Reconstruction, and one of the most efficient measures to that end; and yet gentlemen seem to suppose that that is within the scope of the excluding clause of this resolution.” Mr. Fessenden was equally positive the other way. He referred to the caucus of Republican Senators where the original resolution was prepared, which he deemed “eminently proper.” “When gentlemen go into consultation with their friends, and make no protest whatever against having the result of that consultation acted upon, they agree impliedly and expressly, in my judgment, that they will be bound on that subject by the decision which their friends come to, unless they give notice to the contrary,—that is to say, in case they continue to act on the subject to the end.” Mr. Sumner followed.
Mr. President,—I should not have said another word, but for topics introduced by the Senator from Maine; yet before I allude to those particularly, allow me to answer his argument, so far as I am able to appreciate it. He will pardon me for saying that he confounds right and power. Unquestionably the Senate has the power which he attributes to it; but it has not the right. A jury, as we know, in giving a general verdict, has power to say “Guilty” or “Not guilty,” disregarding the instructions of the court; but I need not say that it is a grave question among lawyers whether it has the right. Now, assuming that the Senate has the power which the Senator from Maine claims, it seems to me it has not the right. It has not the right to disregard the spirit of the National Constitution; and the present proposition is of that character. The Senator does not see it so, I know; for, if he did, he could not give to it the weight of his character. Others do see it so; and if they do, the Senator from Maine must pardon them, if they act accordingly. The Senator would not vote for anything he regarded as hostile to the spirit of the Constitution. I cannot attribute to him any such conduct. Can he expect others to do what he would not do himself? This is my answer to the argument, so far as I understand it. Perhaps I do not do justice to it; yet I try.
There was one other point of argument. The Senate, so the Senator argues, may postpone an individual measure to the next session. Grant it; does it follow that they may postpone, immediately on their arrival, the whole business to another session?
Mr. Fessenden. They can adjourn on the next day, or on the day they meet, if they please.
Mr. Sumner. But so long as they continue in session as a Senate, then, under the National Constitution, they must attend to the business of the country. They cannot tie their hands in advance. To do so is to violate the spirit of the Constitution. The Senator cannot have forgotten the Atherton gag, to which I referred before, without naming it, however. Was it not justly an offence and a stench in the nostrils of every patriot citizen? Has it not left a bad name upon the Congresses that recognized it? But this was simply a declaration not to receive petitions on one subject; and now, under the lead of the Senator, we are to continue in session an indefinite time, and to receive no petition, no bill, nothing on anything except on one specified subject. I submit, if the Atherton gag was unconstitutional, if it was odious, if it was a bad precedent, then you are very rash in establishing this much broader precedent. Do not condemn the offensive legislation of the past; do not condemn those slave-masters once so offensive in these Chambers. You go further than they. You impose a gag not upon petitions merely, but upon the general business of the country.
The Senator from Ohio [Mr. Wade] has, with unanswerable force, depicted the offensive character of this precedent, and he has taught us how, now that we are a majority, we should hesitate to set such an example for the future. How should we feel, he has aptly reminded us, if, as a minority, we had such a cup handed to our lips by a patriot Senator? Doubtless, that for the time patriotism had departed.
I should not have been betrayed into these remarks now, but for topics introduced by the Senator from Maine. When I opened this debate, this morning, Senators will bear me witness, I made no allusion to any discussion elsewhere. I did not think a caucus a proper subject for this Chamber; nor did I attribute to it anything of the character which the Senator from Maine does. He makes it not merely sacred, but a sacro-sanct pact, by which every one at the meeting is solemnly bound. What authority is there for any such conclusion? Senators went to that caucus, I presume, like myself, without knowing what was to be considered; and let me confess, when the proposition, in its first form, was presented, I was startled by its offensive character. I could not believe that a Senator, knowing the responsibilities and duties of a Senator, and under the oath of a Senator, could start such a thing. Well, Sir, discussion went on. The proposition was amended, modified, mitigated, losing something of its offensiveness in form, but it still remained substantially offensive. I am not aware that any Senator suggested that it should be adopted as a rule of the Senate. If any one did, I did not hear it, though paying close attention to the discussion. I do not think the Senator from Maine made any such suggestion. I certainly never supposed that anybody would propose such a rule. So far as it was to have any value, I supposed it was to be the recorded result of the deliberations of political associates,—so far as practicable, a guide for their action, but not a constraint embodied in a perpetual record. At the last moment, after the vote had been declared to which the Senator from Maine refers, and to which I should make no allusion, if he had not brought it forward, I rose in the caucus, and said, “I will not be bound by any such proposition.” When it had arrived at the stage to which I refer,—the Senator from Maine will not forget it, for he interposed a remark which I will not quote now——