Chapter V: Part 5

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May 27th, on a resolution submitted by Mr. Wilson, of
Massachusetts, for the discharge of these persons from custody
“immediately upon the final adjournment of the session,” Mr.
Sumner spoke as follows:--

MR. PRESIDENT,--This question is important, primarily, as it concerns the liberty of the citizen; but it is made important also by the attempt, to which we have just listened, to establish for the Senate a prerogative which on history and precedent does not belong to it.

Some days ago I took the ground, which I shall take to-day, that on the close of the session of the Senate any imprisonment founded on its order must cease. Of that conclusion, whether on history or law, I have not the least doubt. I have listened to the argument of the Senator from New York, [Mr. CONKLING,] and to his comment upon the authorities adduced. The answer, to my mind, is obvious. It will be found simply in stating one of those authorities and calling attention to its precise language. The Senator from Ohio [Mr. SHERMAN] has already presented to-day what I had the honor of quoting on the first day of this discussion, the authoritative words of May in his work on Parliamentary Law, and also the solemn judgment of Lord Denman, Chief-Justice of England. May says, speaking of prisoners committed by order of the House of Commons, that they

“are immediately released from their confinement on a
prorogation, whether they have paid the fees or not. If they
were held longer in custody, they would be discharged by the
courts, upon a writ of _Habeas Corpus_.”[108]

This statement, coming as it does from the well-known Clerk of the House of Commons, as familiar with the usages of that body as any living man, is of itself authority. But he adduces the weighty words of Lord Denman in the most remarkable case of privilege that has ever occurred in English history, being that of Stockdale and Hansard, which, it is well known, was discussed day by day in Parliament, week by week in Westminster Hall. I have before me the opinions of all the judges on that case, but the words that are particularly pertinent now are quoted by May as follows:--

“However flagrant the contempt, the House of Commons can only
commit till the close of the existing session,”--

Mark, Sir, if you please, how positive he is in his language,--

“can only commit till the close of the existing session. Their
privilege to commit is not better known than this limitation
of it. Though the party should deserve the severest penalties,
yet, his offence being committed the day before a prorogation,
if the House ordered his imprisonment but for a week, every
court in Westminster Hall and every judge of all the courts
would be bound to discharge him by _Habeas Corpus_.”[109]

These were the words of the Lord Chief-Justice of England in a most memorable case as late as 1839. This is no ancient authority, but something modern and of our day. It is not expressed in vague or uncertain terms, but in language clear and positive. It is as applicable to the Senate of the United States as to the House of Commons. It is applicable to every legislative body sitting under a constitutional government.

An attempt has been made to claim for the Senate prerogatives which belong to the House of Lords. How so? Is the Senate a House of Lords? Is it an hereditary body? Is it a perpetual body in the sense that the House of Lords is a perpetual body? We know that the House of Lords is in session the whole year round. We know, that, according to a rule of the Civil Law, “_Tres faciunt collegium_,”[110] three make a quorum in the House of Lords. So that the presence of three peers at any time, duly summoned to the chamber, constitutes a sufficient quorum for business. Therefore the House of Lords has in it an essential element enabling it to come together easily and to continue in perpetual session. It is in its character, in the elements of its privileges, clearly distinguishable from the Senate, as it is clearly distinguishable from the House of Commons. Such privileges as the Senate has are derived from the House of Commons rather than from the House of Lords, so far as they are derived from either of these bodies.

Another attempt has been made, by criticizing the word “prorogation,” to find a distinction between the two cases; but a note to May’s work on Parliamentary Law, which I now have in my hand, meets that criticism. After saying in the text that the prisoners committed by the House of Commons “are immediately released from their confinement on a prorogation,” the note says:--

“But this law never extended to an adjournment, even when it
was in the nature of a prorogation.”[111]

Take, for instance, the adjournments which habitually occur in the British Parliament at the Christmas holidays, at the Easter holidays, at the Whitsuntide holidays. You saw in the papers, only the other day, that Mr. Gladstone gave notice that the House of Commons would adjourn over several days on account of the Whitsuntide holidays; but nobody supposes that that is in the nature of a “prorogation,” or that a committal by order of the House of Commons would expire on such an adjournment, as it would not expire on our adjournment for our Christmas holidays.

Therefore do the very precedents of the British Parliament answer completely the case put by the Senator from New York, who imagined a difficulty from occasional adjournments at the Christmas holidays. Sir, we are to look at this precisely as it is. The prorogation of the House of Commons is an adjournment without day, corresponding precisely to our adjournment without day. I believe in Massachusetts, down to this moment, when the Legislature has agreed upon the time of its adjournment, it gives notice to the Governor, who sends the Secretary of the Commonwealth to prorogue it, and the Legislature is declared to be prorogued,--thus following the language so familiar in England.

Then it is argued that this power to commit may be prolonged by a Committee to sit during the vacation. But how so? The Committee has no power to commit. The power to commit comes from the Senate. How does the sitting of the Committee in the vacation add to its powers? It has no such power while the Senate is in session. How can it have any such power when the Senate has closed its session? But the power to protract the imprisonment of a citizen must be kindred with that to imprison.

I dismiss the whole argument founded upon the prolongation of the Committee as entirely irrelevant. Prolong the Committee, if you please, till doomsday; you cannot by that in any way affect the liberty of the citizen. The citizen is imprisoned only by the order of the Senate, and the power to imprison or to detain expires with the session. Such, Sir, is the rule that we have borrowed from England. Nor am I alone in thus interpreting it. I cited, the other day, the authentic work of the late Judge Cushing on the Law and Practice of Legislative Assemblies. I will, with your permission, read again his statement, as follows:--

“According to the Parliamentary Law of England there is a
difference between the Lords and Commons in this respect: the
former being authorized, and the latter not, to imprison for a
period beyond the session.”

That is the testimony of Judge Cushing, who had devoted his life to the study of this subject. He then goes on:--

“In this country the power to imprison is either incidental to
or expressly conferred upon all our legislative assemblies;
and in some of the States it is also regulated by express
constitutional provision.”

Then he gives his conclusion:--

“Where it is not so regulated, it is understood that the
imprisonment terminates with the session.”[112]

Mark, if you please, “terminates with the session.”

Here you have the authentic words of this special authority, interpreting the English Parliamentary Law, and also declaring our law. Who is there that can go behind these words? What Senator will set up his research or his conclusion against that of this exemplar? Who is there here that will venture to claim for the Senate a prerogative which this American authority disclaims for legislative bodies in our country, unless expressly sanctioned by Constitutional Law?

I have shown that this power to commit beyond the session does not exist in the House of Commons, from which we derive such prerogatives or privileges as we have. But the stream cannot rise higher than the fountain-head. How, then, if the power does not exist in the House of Commons, can you find it here? You cannot trace the present assumption to any authentic, legitimate fountain. If you attempt it, permit me to say you will fail, and the assumption will appear without authority, and therefore a usurpation. I so characterize it, feeling that I cannot be called in question when I use this strong language. If you undertake to detain these prisoners beyond the expiration of this session, you become usurpers, the Senate of the United States usurps power that does not belong to it; and, Sir, this is more flagrant, when it is considered that it usurps this power in order to wield it against the liberty of fellow-citizens.

When I state this conclusion, I feel that I stand on supports that cannot be shaken. I stand on English authorities sustained by American authorities. You cannot find any exception. That in itself is an authority. If you could mention an exception, I should put it aside as an accident or an abuse, and not as an authority. The rule is fixed and positive; and I now have no hesitation in declaring that it will be the duty of the judge, on a writ of _Habeas Corpus_, as soon as this Senate closes its session, to set these prisoners at liberty, unless the Senate has the good sense in advance to authorize their discharge. I do not doubt the power and the duty of the Court. I am sure that no judge worthy of a place on the bench will hesitate in this judgment. Should he, I would read to him the simple words of the Lord Chief-Justice of England on the very point:--

“If the House ordered his imprisonment but for a week, every
court in Westminster Hall and every judge of all the courts
would be bound to discharge him by _Habeas Corpus_.”[113]

There is no way of answering those words. They are as commanding on this occasion as if they were in the very text of our Constitution. When I say this, I do not speak vaguely; for I am sure that every student of this subject will admit that a judgment like that which I have adduced on a question of Parliamentary Law, and in favor of the rights of the subject, is of an authority in our country equal to the Constitution itself.

* * * * *

This brings me, Sir, to an important point which I had hoped not to be called to discuss, but which the argument of the Senator from New York seems to press upon the consideration of the Senate and of the country; and therefore I shall open it to your attention, even if I do not discuss it. It is this: that, whatever may be the power even in England by Parliamentary Law, it by no means follows that the Senate of the United States has that power.

What is the Senate? A body created by a written Constitution, enjoying certain powers described and defined in the Constitution itself. The Constitution says nothing about contempt or punishment for contempt. In order to obtain this power you must go into inference and deduction; you must infer it or imply it. In the case of impeachments the Senate becomes a judicial body, and it is reasonable to infer that it may have the power to compel the attendance of witnesses,--in short, the powers of a court. The Senate also, by express terms of the Constitution, has the power to expel a member. There again is an inquiry in its nature judicial; and should the Senate on such occasion examine witnesses and proceed as a court, it may be inferred that it is so authorized by the Constitution. There is also a third power which the Senate possesses, judicial in character: it is to determine the election of its members. Beyond these every power that the Senate undertakes to exercise on this subject is derived by inference. It does not stand on any text of the Constitution. It is a mere implication, and, being adverse to the rights of the citizen, it must be construed strictly.

Now I am not ready to say, I do not say, that the Senate has not the power to institute a proceeding like that now in question. I am very clear that it has not the power by compulsory process to compel witnesses to testify in aid of legislation, as was once attempted in what was known familiarly as the Harper’s Ferry Investigating Case. But I do not undertake to say that it may not institute a proceeding like that in which we are now engaged; yet I admit its legality with great hesitation and with sincere doubt. I doubt whether such an assumption can stand an argument in this Chamber; I doubt whether it can stand a discussion before a court of justice. How do you arrive at such a power? The Senator from Wisconsin [Mr. CARPENTER] said, the other day, the Senate, according to the arguments of certain Senators, has not the power of a justice of the peace. The Senator never spoke truer words: the Senate has not the power of a justice of the peace. A justice of the peace is a court with the powers of a court. The Senate of the United States is not a court, except in the cases to which I have already referred. It is a serious question whether it is a court in the proceeding which it has now seen fit to institute. Were it a court, then the argument of the Senator from Wisconsin might be applicable, and it might then claim the privileges of a court. It might proceed, if you please, to fine as well as to commit. The Senate in its discretion forbears to fine; it contents itself with imprisonment. But if it can imprison, why not fine? Why is not the whole catalogue of punishment open to its grasp?

I have reminded you, Sir, that our powers, whatever they may be, are under a written Constitution, and in this important respect clearly distinguishable from the powers of the House of Commons, which are the growth of tradition and immemorial usage. I am not the first person to take this ground. I find it judicially asserted in most authentic judgments, to which I beg to call the attention of the Senate.

I have in my hands the fourth volume of Moore’s Privy Council Cases, cases argued in the Privy Council of England, many of them being cases that have come up from the Colonies,--and here is one, being an appeal from the Supreme Court of the island of Newfoundland. I will read the marginal note:--

“The House of Assembly of the island of Newfoundland does not
possess, as a legal incident, the power of arrest, with a view
of adjudication on a contempt committed out of the House,--but
only such powers as are reasonably necessary for the proper
exercise of its functions and duties as a local Legislature.

“_Semble._--The House of Commons possess this power only
by virtue of ancient usage and prescription, the _Lex et
Consuetudo Parliamenti_.

“_Semble._--The Crown, by its prerogative, can create a
Legislative Assembly in a settled colony, subordinate to
Parliament, but with supreme power within the limits of the
colony for the government of its inhabitants; but,

“_Quære._--Whether it can bestow upon it an authority, namely,
that of committing for contempt, not incidental to it by
law?”[114]

I will not take time in reading extracts from the opinion of the Court, which goes on the ground that the Legislature of the Colony is acting under a commission from the Crown in the nature of a Constitution, being a written text, and that it could not therefore claim for itself those vast, immense, unknown privileges and prerogatives which by long usage are recognized as belonging to the House of Commons.

But the question was presented at a later day in another case before the Privy Council, which came from the Supreme Court of Van Diemen’s Land. I cite now Moore’s Privy Council Cases, volume eleven. This case was decided in 1858. It is therefore a recent authority. The marginal note is as follows:--

“The _Lex et Consuetudo Parliamenti_ applies exclusively to
the House of Lords and House of Commons in England, and is
not conferred upon a Supreme Legislative Assembly of a colony
or settlement by the introduction of the Common Law of England
into the colony.

“No distinction in this respect exists between Colonial
Legislative Councils and Assemblies whose power is derived by
grant from the Crown or created under the authority of an Act
of the Imperial Parliament.”[115]

You will see, Sir, that by this decision the powers of a Legislative Assembly created by a Charter are limited to the grants of the Charter, and that the mere creation of the legislative body does not carry with it the Law and Custom of Parliament. In the course of his opinion Lord Chief-Baron Pollock uses the following language. Alluding to the decision of the Privy Council in the Newfoundland case, he says:--

“They held that the power of the House of Commons in England
was part of the _Lex et Consuetudo Parliamenti_; and the
existence of that power in the Commons of Great Britain did
not warrant the ascribing it to every Supreme Legislative
Council or Assembly in the Colonies. We think we are bound
by the decision of the case of Kielley _v._ Carson.… If the
Legislative Council of Van Diemen’s Land cannot claim the power
they have exercised on the occasion before us as inherently
belonging to the supreme legislative authority which they
undoubtedly possess, they cannot claim it under the statute
as part of the Common Law of England (including the _Lex et
Consuetudo Parliamenti_) transferred to the Colony by the 9th
Geo. IV. c. 83, sect. 24. The _Lex et Consuetudo Parliamenti_
apply exclusively to the Lords and Commons of this country,
and do not apply to the Supreme Legislature of a Colony by the
introduction of the Common Law there.”[116]

Now the question is directly presented by these decisions, whether under the written text of the Constitution of the United States you can ingraft upon our institutions the Law and Custom of Parliament. So far as these cases are applicable, they decide in the negative; but I will not press them to that extent. I adduce them for a more moderate purpose,--simply to put the Senate on its guard against any assumption of power in this matter. I do not undertake to say to what extent the Senate may go; but with these authorities I warn it against proceeding on any doubtful practices. If there be any doubt, then do these authorities cry out to you to stop.

I have said, Sir, that our powers here are limited by the Constitution: I may add, also, and the Law in pursuance of the Constitution. And now I ask you to show me any text of the Constitution, and to show me any text of Law, which authorizes the detention of these witnesses by the Senate. The Senate, be it understood, is not a court. Certainly, for this purpose and on this occasion, it is not a court. Show me the law. Does it exist? If it exists, some learned Senator can point it out. But while Senators fail to point out any law sanctioning such a procedure, I point out an immortal text in the Constitution of the United States, borrowed from Magna Charta, which it is difficult to disobey:--

“No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, … nor be deprived of life, liberty, or property,
without due process of law.”

“Without due process of law.” What is the meaning of that language? Judge Story[117] tells us, as follows:--

“Lord Coke[118] says that these latter words, _per legem
terræ_, (by the law of the land,) mean _by due process of
law_: that is, without due presentment or indictment, and
being brought in to answer thereto by due process of the
Common Law. So that this clause in effect affirms the right of
trial according to the process and proceedings of the Common
Law.”[119]

There, Sir, is a living text of the Constitution of the United States, binding upon this Senate. Where do you find any other text authorizing you to institute this proceeding? or if you institute the proceeding, must it not come within the limitations of this prohibition?

But I may be reminded that there are precedents. How many precedents are there for such a proceeding? We are familiar with all of them. The latest, the most authentic, is that of Thaddeus Hyatt, proceeded against because he refused to testify before the Harper’s Ferry Investigating Committee. Is that a precedent which you are disposed to follow? I am sure you would not, if you read the weighty argument in that proceeding made by the late John A. Andrew, and Samuel E. Sewall, of Massachusetts, the accomplished jurist, who still survives to us. Go still further back and you have the case, entirely like that before us, of Nugent,--who was not pursued, I was going to say, as ferociously as the present witnesses have been pursued, for his custody was simply that of the house of the Sergeant-at-Arms, and it was recognized at that time that even that mild custody would expire with the session of the Senate. You have also the earlier precedent of 1800 in the case of Duane, which, I think, Senators would hesitate now to vindicate. Let them look at it and see whether they would sanction a similar proceeding at this day,--whether such a tyranny could go on without shocking the public conscience, and being recognized universally as an assault upon the liberty of the press.[120]

Those are the cases furnished by the history of the Senate. Lord Denman, in the case of _Stockdale_ v. _Hansard_, the famous case to which I have referred, gives an answer to them as follows: I quote from the ninth volume of Adolphus and Ellis’s Reports, page 155:--

“The practice of a ruling power in the State is but a feeble
proof of its legality. I know not how long the practice of
raising ship-money had prevailed before the right was denied
by Hampden; general warrants had been issued and enforced for
centuries before they were questioned in actions by Wilkes
and his associates, who, by bringing them to the test of law,
procured their condemnation and abandonment. I apprehend that
acquiescence on this subject proves, in the first place, too
much; for the admitted and grossest abuses of privilege have
never been questioned by suits in Westminster Hall.”

This proceeding has analogy with one well known in English history, that of the Star-Chamber Court, which you will find described by Mr. Hallam in his “Constitutional History of England,” in chapter eight, and I refer to it merely for the sake of one single sentence which I cite from this great author:--

“But precedents of usurped power cannot establish a _legal
authority_ in defiance of the acknowledged law.”[121]

But where is the _legal authority_ for the imprisonment of these witnesses? Only in mere inference, mere deduction,--the merest inference; but surely you will not take away the liberty of the citizen on any such shadowy, evanescent apology, which is no apology, but a sham, and nothing else. I have already called attention to the argument of Governor Andrew and Hon. S. E. Sewall, which will be found in the Congressional Globe under date of March 9, 1860. Did time permit, I should quote from it at length; but I commend it to the Senate and all inquirers.

As an illustration of the doubts which environ this question, I call attention to the case of _Sanborn_ v. _Carleton_,[122] where Chief-Justice Shaw, of Massachusetts, gave the opinion of the Court. The Senator from Wisconsin [Mr. CARPENTER] will not question his character. After stating that “it is admitted in the arguments that there is no express provision in the Constitution of the United States giving this authority in terms,”--that is, the alleged authority of the Senate,--he proceeds to say that there are questions on this subject “manifestly requiring great deliberation and research.” And yet Senators treat them as settled. The Chief-Justice then proceeds to announce that a warrant issued by order of the Senate of the United States for the arrest of a witness for contempt in refusing to appear before a Committee of the Senate, and addressed only to the Sergeant-at-Arms of the Senate, cannot be served in Massachusetts by a deputy. But this very question arises in the present proceedings. The managing editor of the “Tribune,” Mr. Whitelaw Reid, was summoned by a deputy, and not by the Sergeant-at-Arms. Gracefully yielding to the illegal summons, he appeared before the Committee; but the question of power still remains; and this very question adds to the embarrassments of the subject.

The extent of the abuse now in question will be seen, if I call the attention of the Senate to the last Report of the Committee of Investigation. By that Report it appears that they undertook to examine two agents of the Telegraph Company, who, finally, at the last moment, when asked to make a definitive statement with regard to the copy of the Treaty lodged with them for communication to New York, declined to answer. And you have now in this usurpation of the Senate an attempt to break into the telegraph-offices of the United States. You raise, for the first time in this Chamber, one of the great questions of the times. Can you do any such thing?

MR. NYE [of Nevada]. I should like to ask the Senator
from Massachusetts if the courts have not broken into the
telegraph-offices?

MR. SUMNER. I am not speaking about the courts. I am speaking about the Senate of the United States.

MR. NYE. I ask the Senator if the Senate of the United States,
in this investigation, as long as it exists, has not all the
authority of a court?

MR. SUMNER. I have already stated that it has not,--that it has not the authority of a justice of the peace. The Senate proposes to break into the telegraph-offices of the United States. In the guise of privilege, it enters those penetralia and insists that the secrets shall be disclosed. What is the difference between a communication by telegraph and a communication by letter? Is there not a growing substitution of the telegram for the letter? Has not this taken place to an immense extent in England? Is it not now taking place to an immense extent in our own country?

Now, Sir, mark the limitation of my language. I do not mean to say that the telegram is entitled to all the sacredness of the letter; but I do insist that the Senate, before it undertakes to break into the telegraph-offices of the United States, shall calmly consider the question, and see to what end the present disposition will carry them. Senators who have not entirely forgotten the recent history of England know that the powerful Cabinet of Sir Robert Peel for a time trembled under the imputation that one of its ablest members, Sir James Graham, who, Mr. Webster told me, in his judgment, was the best speaker in Parliament, had authorized the opening of the letters of Mazzini at the Post-Office. The subject was brought before Parliament night after night. You shall see how it was treated. The Liberal member from Finsbury, Mr. Duncombe, in presenting it first,--I read from Hansard,--after inveighing against the opening of letters, said:--

“That was a system which the people of this country would
not bear, which they ought not to bear; and he hoped, after
the exposure which had taken place, that some means would
be adopted for counteracting this insidious conduct of her
Majesty’s ministers. It was disgraceful to a free country that
such a system should be tolerated. It might do in Russia, ay,
or even in France, or it might do in the Austrian dominions, it
might do in Sardinia; but it did not suit the free air of this
free country.”[123]

Lord Denman, always on the side of Freedom, at the time Chief-Justice of England, in the House of Lords said:--

“Could anything be more revolting to the feeling than that any
man might have all his letters opened in consequence of some
information respecting him having been given to the Secretary
of State, and that the contents of those letters, which he
might have never received, might be made use of for the purpose
of proceeding against him in a court of justice? The letters
of a man might be opened, and he might not have the slightest
intimation that he was betrayed. Now is such a state of things
to be tolerated in a civilized country? He would say, without
the slightest hesitation, that it ought not to be borne with
for a single hour.”[124]

Lord Brougham observed that--

“He had not expressed any approval of the system; on the
contrary, he distinctly stated that _nothing but absolute
necessity for the safety of the State would justify it_.”[125]

I might occupy your time till evening in adducing the strong language of reprobation which was employed at that time. I will conclude with an extract from a speech of that remarkable Irish orator, Mr. Sheil, as follows:--

“That which is deemed utterly scandalous in private life
ought not to be tolerated in any department of the State; and
from the Statute-Book, which it dishonors, this ignominious
prerogative ought to be effaced forever.”[126]

That brings me to the point, Sir, that there was an old statute of Queen Anne which authorized the opening of letters at the Post-Office under the order of a Secretary of State;[127] but, notwithstanding that old statute, the system was reprobated. And now it is proposed, in the maintenance of the privileges of the Senate, not in the administration of justice before any court, but in the enforcement of the privileges of the Senate, to penetrate the secrets of the Telegraph. I will not undertake to say that you cannot do it. I content myself now with calling attention to the magnitude of the question, and adducing it as a new reason why you should hesitate in this whole business. You see to what it conducts. You see in what direction you are travelling. You see how, if you persevere, you will shock the conscience and the sensibilities of the American people.

I do not believe that the American people will willingly see the Telegraph rifled, any more than they will see the Post-Office rifled, in order to maintain medieval, antediluvian privileges of the Senate,--especially when those privileges cannot be deduced from any text of the Constitution, but are simply inferred from the ancient, primeval Law and Usage of Parliament. Not only the orators, but the wits of the time, denounced the attempt in England to open letters. Punch caricatured the Secretary who attempted it as “Paul Pry at the Post-Office.”[128] But is not the Senate in the Report of our Committee “Paul Pry at the Telegraph-Office?”

I make these remarks with a view of opening to the Senate the importance of the question before them, that they may once more hesitate and withdraw to the safe ground of the Constitution and the Law; for there is nothing in the Constitution or in the Law that can sanction the continued imprisonment of these witnesses. Even suppose your proceedings have been from the beginning in all respects just and proper, even suppose that you can vindicate them, in regard to which I beg leave to express a sincere doubt, you cannot vindicate the attempt to continue these witnesses in custody when you go away. Then they are as free as you. If they are detained in prison, it is only because you yourselves are imprisoned here in the discharge of your responsible duties. When your imprisonment comes to an end, theirs comes to an end also. You cannot go home and leave them captives. The Law will step in and take them from your clutch. Better, then, in advance, by a proper and generous resolution, to order their discharge, so that the Law will not be compelled to do what you fail to do.

The resolution was agreed to,--Yeas 23, Nays 13.

THE HAYTIAN MEDAL.

RESPONSE TO THE LETTER OF PRESENTATION, JULY 13, 1871.

The Medal was placed in Mr. Sumner’s hands July 13, 1871,
by General Preston, the Haytian Minister, together with
the following letter, signed by the President and several
distinguished citizens of the Republic:--

“LIBERTY, EQUALITY, FRATERNITY! REPUBLIC OF HAYTI.

“_To the Hon. Charles Sumner, Senator of Massachusetts_:--

“HONORABLE SENATOR,--The independence of Hayti has been
our object. To affirm the aptitude of the black race for
civilization and self-government, by your eloquence and
your high morality you have made free four millions of
blacks in the United States. In defending our independence
on two solemn occasions, you have protected and defended
something more august even than the liberty of the blacks
in America. It is the dignity of a black people seeking to
place itself, by its own efforts, at the banquet of the
civilized world. Hayti thanks you. She will be able to
justify your esteem, and to maintain herself at the height
of her mission, marching in the path of progress. In the
name of the Haytian people, we pray you to accept, as a
feeble testimony of its gratitude, this medal, which will
perpetuate in ages to come the recollection of the services
which you have rendered to us as citizens of the world, and
to black Humanity.”

Mr. Sumner at the time expressed his gratitude, and said that
he would communicate with the signers in writing. That same
evening he sent an informal note to the Minister, saying that
he feared he should feel constrained to decline the present,
and subsequently replied to the letter of presentation as
follows:--

WASHINGTON, July 13, 1871.

GENTLEMEN,--I have received to-day, by the hands of your
Minister at Washington, the beautiful medal which you have done
me the honor of presenting to me in the name of the Haytian
people, together with the accompanying communication bearing
so many distinguished names, among which I recognize that of
the estimable President of the Republic. Allow me to say, most
sincerely, that I do not deserve this token, nor the flattering
terms of your communication. I am only one of many who have
labored for the enfranchisement of the African race, and who yet
stand ready to serve at all times the sacred cause; nor have I
done anything except in the simple discharge of duty. I could not
have done otherwise without the rebuke of my conscience.

In this service I have acted always under promptings which with
me were irresistible. Like you, I hail the assured independence
of Hayti as important in illustrating the capacity of the
African race for self-government; and I rejoice to know that
distinguished Haytians recognize the necessity of clinging to
national life, not only for the sake of their own Republic, but
as an example for the benefit of that vast race over which the
white man has so long tyrannized. Your successful independence
will be the triumph of the black man everywhere, in all the
isles of the sea, and in all the unknown expanse of the African
continent, marking a great epoch of civilization. In cultivating
a sentiment of nationality, you will naturally insist upon that
equality among nations which is your right. Self-government
implies self-respect. In the presence of International Law all
nations are equal. As well deprive a citizen of equality before
the law as deprive a nation. You will also insist upon that
Christian rule, as applicable to nations as to individuals, of
doing unto others as you would have them do unto you. Following
it always in your own conduct, and expecting others to follow it
towards you, will you ever forget that sentiment of Humanity by
which all men are one, with common title, with common right?

I rejoice, again, in the assurance you give that Hayti is
prepared to advance in the path of Progress. Here I offer my best
wishes, with the ardent aspiration that the two good angels,
Education and Peace, may be her guides and support in this happy
path. With education for the people, and with peace, foreign and
domestic, especially everywhere on the island, the independence
of Hayti will be placed beyond the assaults of force or the
intrigues of designing men, besides being an encouragement to the
African race everywhere.

I trust that you will receive with indulgence these frank words
in response to the communication with which you have honored me:
they will show at least my constant sympathy with your cause.

And now, Gentlemen, I throw myself again on your indulgence,
while expressing the hope that you will not suspect me of
insensibility to your generous present, if I add, that,
considering the text of the Constitution of the United States
and the service you have intended to commemorate, I deem it my
duty to return the beautiful medal into your hands. To this
I am constrained by the spirit, if not by the letter of the
Constitution, which forbids any person in my situation from
accepting any present of any kind whatever from a foreign State.
Though this present is not strictly from the State of Hayti, yet,
when I observe, that, according to the flattering inscription,
it is from the Haytian people, and that the communication
accompanying it is signed by the President and eminent
magistrates of Hayti, and still further that it is in recognition
of services rendered by me as a Senator of the United States,
I feel that I cannot receive it without acting in some measure
contrary to the intention of the Constitution which I am bound to
support. In arriving at this conclusion I have been governed by
that same sense of duty which on the occasions to which you refer
made me your advocate, and which with me is a supreme power.
While thus resigning this most interesting token, I beg you to
believe me none the less grateful for the signal honor you have
done me.

Accept for yourselves and for your country all good wishes, and
allow me to subscribe myself, Gentlemen,

Your devoted friend,

CHARLES SUMNER.

The medal was subsequently presented by the Haytian Government
to the Commonwealth of Massachusetts, and deposited in the
State Library.

EQUALITY OF RIGHTS IN PUBLIC SCHOOLS.

LETTER TO GEORGE W. WALKER, PRESIDENT OF THE BOARD OF SCHOOL DIRECTORS OF JEFFERSON, TEXAS, JULY 28, 1871.

Mr. Walker having written to Mr. Sumner, asking his views in
regard to the management of public schools, &c., the latter
replied as follows:--

WASHINGTON, 28th July, 1871.

DEAR SIR,--As in Europe there will be no durable tranquillity
until Republican Government prevails, so among us there will be
a similar failure until Equality before the Law is completely
established,--at the ballot-box,--in the court-house,--in
the public school,--in the public hotel,--and in the public
conveyance, whether on land or water. At least, so it seems to me.

I doubt if I can add materially to the argument which you have
already received, but, with your permission, I ask attention to
the point that _equality_ is not found in _equivalents_. You
cannot give the colored child any equivalent for equality.

Accept my best wishes, and believe me, dear Sir,

Faithfully yours,

CHARLES SUMNER.

PEACE AND THE REPUBLIC FOR FRANCE.

REMARKS IN MUSIC HALL, BOSTON, INTRODUCING M. ATHANASE COQUEREL, OF PARIS, OCTOBER 9, 1871.

At the first of two lectures entitled “The Two Sieges of
Paris,” by M. Coquerel, Mr. Sumner, being called to preside,
said:--

I cannot forget, Ladies and Gentlemen, that in other years the enjoyments of Paris were heightened for me, as I listened, more than once, to an eloquent French preacher, on whose words multitudes hung with rapture while he unfolded Christian truth. The scene, though distant in time, rises before me, and I enjoy again that voice of melody, and that rare union of elegance with earnestness, of amenity with strength, which were so captivating; nor do I know that I have since witnessed in any pulpit or assembly, or on any platform, more magnetic power visibly appearing as the orator drew to himself the listening throng, and all commingled into one.

It is now my grateful duty to welcome the son of that orator, who, with his father’s genius, visits us on an errand of charity.

He will speak to you of Paris the Beautiful, and of the double tragedy only recently enacted, where the bursting shells of a foreign foe were followed by the more direful explosions of domestic feud. The story is sad, among the saddest in history; but it is a wonderful chapter, with most instructive lesson.

Knowing our honored guest by his life, I am sure that to him war is detestable, while Republican Government is his aspiration for France. Were all Frenchmen of his mind, the deadly war-fever would disappear, and the Republic would be established on a foundation not to be shaken; and then would France rise to glories which she has never before reached. Plainly, at this epoch of civilization, there are two Great Commandments which this powerful nation cannot disobey with impunity. The first is Peace; and the second, which is like unto the first, is the Republic. But the Republic is Peace,--most unlike the Empire, which was always war in disguise.

It is sometimes said, somewhat lightly, that France is a Republic without Republicans. A great mistake. Was not Lafayette a Republican? And I now have the honor of presenting to you another.

THE GREAT FIRE AT CHICAGO, AND OUR DUTY.

SPEECH AT FANEUIL HALL, AT A MEETING FOR THE RELIEF OF SUFFERERS AT CHICAGO, OCTOBER 10, 1871.

The meeting was at noon, and the chair taken by the Mayor, Hon.
William Gaston. Hon. Alexander H. Rice introduced resolutions,
and spoke, when Mr. Sumner followed:--

MR. MAYOR AND FELLOW-CITIZENS:--

I come forward to second the resolutions moved by my friend Mr. Rice, and to express my hope that they may be adopted unanimously, and then acted upon vigorously.

Fellow-Citizens, I had expected to be elsewhere to-day; but, thinking of the distress of distant friends and countrymen, my heart was too full for anything else, and, putting aside other things, I have come to Faneuil Hall, as a simple volunteer, to help swell this movement of sympathy and beneficence.

This is a meeting for action; but are we not told that eloquence is _action, action, action_? And most true is it now. Help for the suffering is the highest eloquence. The best speech is a subscription. And he is the orator whose charity is largest.

“Thrice he gives who quickly gives.” This is a familiar saying from the olden time. Never was it more applicable than now. Destruction has been swift; let your gifts be swift also. If the Angel Charity is not as quick of wing as the Fire-Fiend, yet it is more mighty and far-reaching. Against the Fire-Fiend I put the Angel Charity.

According to another saying handed down by ancient philosophy, that is the best government where a wrong to a single individual is resented as an injury to all. This sentiment is worthy of careful meditation. It implies the solidarity of the community, and the duty of coöperation. There is no wrong now, but an immense calamity, in which individuals suffer. Be it our duty to treat this calamity of individuals as the calamity of all.

Who does not know Chicago? Most have visited it, and seen it with the eye; but all know its pivotal position, making a great centre, and also its immense growth and development. In a few years, beginning as late as 1833, it has become a great city; and now it is called to endure one of those visitations which in times past have descended upon great cities. Much as it suffers, it is not alone. The catalogue discloses companions in the past.

The fire of London, in September, 1666, raged from Sunday to Thursday, with the wind blowing a gale, reducing two-thirds of the city to ashes. Thirteen thousand two hundred houses were consumed, and eighty-nine churches, including St. Paul’s, covering three hundred and seventy-three acres within and sixty-three without the walls. The value of buildings and property burned was estimated at between ten and twelve millions sterling, which, making allowance for difference of values, now would be more than one hundred million dollars. I doubt if the population of London then was larger than that of Chicago. And yet an English historian, recounting this event, says, “Though severe at the time, this visitation contributed materially to the improvement of the city.”[129]

Ancient Rome had her terrible conflagration, hardly less sweeping, when populous quarters were devoured by the irresistible flame; and history records that out of this destruction sprang a new life.

Is there not in these examples a lesson of encouragement for Chicago sitting now in ashes? A great fire in other days was worse than a great fire now; for then it was borne in solitude by the place where it occurred; now the whole country rushes forward to bear it, making common cause with the sufferers. I cannot doubt that out of this great calamity, which we justly deplore, will spring improvement. Everything will be bettered. The city thus far has been a growth; it will become at once a creation. But future magnificence, filling the imagination, will not feed the hungry and clothe the naked, nor will it provide homes for the destitute. The future cannot take care of the present. This is our duty, and it is all expressed in Charity.

Other speakers followed. The resolutions were adopted, and a
subscription was commenced at once.

RIGHTS AND DUTIES OF OUR COLORED FELLOW-CITIZENS.

LETTER TO THE NATIONAL CONVENTION OF COLORED CITIZENS AT COLUMBIA, SOUTH CAROLINA, OCTOBER 12, 1871.

This letter was read in the Convention October 24th, the sixth
day of its sitting, and received a vote of thanks.

BOSTON, October 12, 1871.

DEAR SIR,--I am glad that our colored fellow-citizens are to
have a Convention of their own. So long as they are excluded
from rights or suffer in any way on account of color, they will
naturally meet together in order to find a proper remedy; and
since you kindly invite me to communicate with the Convention, I
make bold to offer a few brief suggestions.

In the first place, you must at all times insist upon your
rights; and here I mean not only those already accorded, but
others still denied, all of which are contained in Equality
before the Law. Wherever the law supplies a rule, there you must
insist on Equal Rights. How much remains to be obtained you know
too well in the experience of life.

Can a respectable colored citizen travel on steamboats or
railways, or public conveyances generally, without insult on
account of color? Let Governor Dunn of Louisiana describe his
journey from New Orleans to Washington. Shut out from proper
accommodation in the cars, the doors of the Senate Chamber
opened to him, and there he found that equality which a railroad
conductor had denied. Let our excellent friend, Frederick
Douglass, relate his melancholy experience, when, on board the
mail-boat of the Potomac and within sight of the Executive
Mansion, he was thrust back from the supper-table, where his
brother Commissioners were already seated. You know the outrage.

I might ask the same question with regard to hotels, and even
the common schools. A hotel is a legal institution, and so is a
common school, and as such each must be for the equal benefit
of all. Nor can there be any exclusion from either on account
of color. It is not enough to provide separate accommodations
for colored citizens, even if in all respects as good as those
of other persons. Equality is not found in any pretended
equivalent, but only in equality; in other words, there must be
no discrimination on account of color.

The discrimination is an insult, a hindrance, a bar, which not
only destroys comfort and prevents equality, but weakens all
other rights. The right to vote will have no security until
your equal rights in the public conveyances, hotels, and common
schools are at last established; but here you must insist for
yourselves by speech, by petition, and by vote. Help yourselves,
and others will help also.

The Civil Rights Law needs a supplement to cover these cases.
This defect has been apparent from the beginning, and for a
long time I have striven to remove it. A bill for this purpose,
introduced by me, is now pending in the Senate. Will not colored
fellow-citizens see that those in power no longer postpone
this essential safeguard? Surely here is an object worthy of
effort. Nor has the Republican party done its work until this is
accomplished.

Is it not better to establish all our own people in the enjoyment
of equal rights before we seek to bring others within the sphere
of our institutions, to be treated as Frederick Douglass was on
his way to the President from San Domingo? It is easy to see that
a small part of the means, the energy, and the determined will
spent in the expedition to San Domingo, and in the prolonged
war-dance about that island, with menace to the Black Republic of
Hayti, would have secured all our colored fellow-citizens in the
enjoyment of equal rights. Of this there can be no doubt.

Among cardinal objects is Education, which must be insisted on;
here again must be equality, side by side with the alphabet. It
is vain to teach equality, if you do not practise it. It is vain
to recite the great words of the Declaration of Independence, if
you do not make them a living reality. What is a lesson without
example?

As all are equal at the ballot-box, so must all be equal at the
common school. Equality in the common school is the preparation
for equality at the ballot-box. Therefore do I put this among the
essentials of education.

In asserting your rights, you will not fail to insist upon
justice to all, under which is necessarily included purity in
the Government. Thieves and money-changers, whether Democrats
or Republicans, must be driven out of our Temple. Let Tammany
Hall and Republican self-seekers be overthrown. There should
be no place for either. Thank God, good men are coming to the
rescue. Let them, while uniting against corruption, insist upon
Equal Rights for All,--also the suppression of lawless violence,
whether in the Ku-Klux-Klan outraging the South, or illicit
undertakings outraging the Black Republic of Hayti.

To these inestimable objects add Specie Payments, and you will
have a platform which ought to be accepted by the American
people. Will not our colored fellow-citizens begin this good
work? Let them at the same time save themselves and save the
country.

These are only hints, which I submit to the Convention, hoping
that its proceedings will tend especially to the good of the
colored race.

Accept my thanks and best wishes, and believe me faithfully yours,

CHARLES SUMNER.

HON. H. M. TURNER.

ONE TERM FOR PRESIDENT.

RESOLUTION AND REMARKS IN THE SENATE, DECEMBER 21, 1871.

MR. PRESIDENT,--In pursuance of notice already given, I ask leave to introduce a Joint Resolution proposing an Amendment of the Constitution confining the President to one term. In introducing this Amendment I content myself with a brief remark.

This is the era of Civil Service Reform, and the President of the United States, in formal Message, has already called our attention to the important subject, and made recommendations with regard to it.[130] It may be remembered that I hailed that Message at once, as it was read from the desk. I forbore then to observe that I missed one recommendation, a very important recommendation, without which all the other recommendations, I fear, may be futile. I missed a recommendation in conformity with the best precedents of our history, and with the opinions of illustrious men, that the Constitution be amended so as to confine the President to one term.

Sir, that is the initial point of Civil Service Reform; that is the first stage in the great reform. The scheme of the President is the play of “Hamlet” without Hamlet. I propose by the Amendment that I offer to see that Hamlet is brought into the play. I send the resolution to the Chair.

MR. BAYARD. I should like to have that paper read for the
information of the Senate.

THE PRESIDENT _pro tempore_. The Joint Resolution will be
read at length.