Volume 11 — OPENING OF THE UNITED STATES COURTS TO COLORED WITNESSES.

Speech in the Senate, on an Amendment to the Civil Appropriation Bill, June 25, 1864.

Failing to obtain a hearing for the bill reported from the Committee on Slavery and Freedmen,[364] Mr. Sumner resorted again to the Appropriation Bill.

June 25th, the Senate having under consideration the Civil Appropriation Bill, Mr. Sumner, after stating that the third section appropriated one hundred thousand dollars to aid the administration of justice, especially in bringing to conviction counterfeiters of Treasury notes, bonds, or other United States securities, as well as coin, remarked, that, to accomplish this result, something more than money was needed,—that there must be an amendment of the Law of Evidence; and he sent to the Chair the following proviso, to be added to the third section:—

“Provided, That in the courts of the United States there shall be no exclusion of any witness on account of color.”

Mr. Sumner then remarked:—

This, Mr. President, is an amendment surely apposite. The objection of form, urged to my other proposition, is without any shadow of support here. It is proposed in the bill to appropriate one hundred thousand dollars to “bring to trial and punishment” counterfeiters. The object is important, especially at this moment, when we are putting in circulation national securities on so large a scale. But suppose the counterfeiter, in a State where the evidence of colored persons is excluded, chooses to employ such persons in his crime. How can you bring him to punishment? All this large appropriation will not help then. It will be of no avail. The counterfeiter, surrounded by colored accomplices, may mock your laws. But admit the testimony of these accomplices, and then will justice be done. I refer to this class of cases because your bill provides especially for them, and thus attests the importance of precautionary effort.

But the hardship and absurdity of this rule, apparent in the case of a counterfeiter surrounded by colored accomplices, arise in every other case of crime. How justice can be administered, where such a rule prevails, I am at a loss to understand. Now that Slavery is disappearing, this rule ought to disappear also.

The subject has already been discussed at length, during the present session, in an elaborate report which I have had the honor of making from the Select Committee on Slavery and Freedmen; so that I need not occupy your time. Besides, the case is too plain for argument. But I have in my hands letters from gentlemen in Virginia, showing the practical necessity of the testimony of colored persons there. Here is one:—

“Hall of the Convention, Alexandria, Virginia, March 17, 1864.

“I address thee as friend, although having no personal acquaintance, but have long known thee by reputation as a friend to the human race. Having been connected with the reorganized government from its beginning, I naturally feel a strong interest in its welfare.

“We have in Convention abolished slavery in the organic law of the State, and it would at first sight seem as if our fondest hopes were realized. But another difficulty now stares us in the face, which, in the present state of public opinion, we cannot conquer: I allude to the subject of allowing the freedmen to give testimony in our courts. This will not be allowed, where the interests of whites are involved. The result that will follow any one can foresee,—that their persons and property will be at the mercy of every vagabond who may happen to have a black heart instead of a black skin.

“While they were slaves, their masters were a protection to them against others. Although there was not much law looking that way, their owners being of the all-powerful class in the communities in which they lived, their influence answered the end very well. My object in writing was to make thee acquainted with the probable future position of these people, thinking it might be possible to ameliorate their condition by some Federal legislation. While I speak of Virginia, I have no doubt but that the same will be true of the whole South, and will be a gigantic evil that may lead to the most disastrous results. The negro, after this war, will not be the same man as before: breathing the air of freedom, trained to arms, understanding the power of combination, and familiar with blood, it will be tampering with a volcano to deny him protection of person and property.”

I do not give the name of this writer, because he is unwilling that it should be known. But you will observe, from the date of the letter, that he was a member of the Virginia Convention. His testimony will speak for itself. The other letter, as you will see, is from the District Judge of Virginia.

“United States District Court, Alexandria, Virginia, March 22, 1864.

“Dear Sir,—Some time since I saw by the papers that you were urging the admission of our freedmen as witnesses in all United States courts.

“In several confiscation cases now pending in this court such testimony will be of the greatest importance. Indeed, I am told by the United States Assistant Attorney in this court, that, from his knowledge in the preparation of these cases, the prosecution will probably fail, and the Government be subjected to costs, unless such testimony is allowed in several cases now on our docket. You will therefore see the necessity of a speedy change of the law, corresponding to the change which has taken place in the condition of the freedmen.

“Your obedient servant,

“John C. Underwood, District Judge.

“Hon. Charles Sumner, United States Senate.”

This is practical wisdom. Let me add to it proof from another quarter. Sir Samuel Romilly, whose great fame as a lawyer was enhanced by humane labors in Parliament, has furnished evidence on this very point.

“The laws of the Colonies are said to be humane; but by those laws a child of five or six years old may receive, for a slight offence or for no offence, at the caprice of the master or overseer, no less than thirty-nine lashes with what is termed a cart-whip. To this dreadful extent the law authorizes the infliction of punishment by individuals. But even in cases where the law conveys no authority, where wanton cruelty is inflicted in defiance of the law, how easy it must be to escape detection, when the testimony of a negro, or a thousand negroes, would not avail against a white man! And with what force must this argument strike, when we reflect on the proportion which the white bear to the black inhabitants of the island! What security could we expect in our passage even through the streets of London, if ninety-nine people out of a hundred, or even nine out of ten, were incompetent to give evidence in a court of justice?”[365]

Mr. President, in bringing forward this measure, I waive for the present all questions of right, and, if you please, all sentiments of humanity. I ask attention plainly and directly to the practical failure of justice which must arise without its adoption. This may be seen under two different heads: first, with regard to colored persons; and, secondly, with regard to white persons.

If colored persons cannot testify against white persons, what protection can they have against outrage? The white person may perpetrate any brutality upon colored persons with impunity. There is nothing in the dreary catalogue of crime, from a simple assault to murder itself, which may not be committed with impunity by a white person, if no other white person be present. This bare statement is enough. Surely at this moment there should be no delay in preventing such failure of justice.

But the same failure may occur in the case of white persons. Let a white person be assaulted, or murdered, if you please, by another white person, but only in the presence of colored persons, and justice cannot be administered. The criminal will continue at large unpunished.

Therefore, for the administration of justice, that it may not fail to the colored person, and then again that it may not fail to the white person, there should be no exclusion of any citizens on account of color.

Let the witness always be admitted to testify, leaving the jury to be judges of his credibility. If his story seems improbable, or there be anything in his manner, conduct, or past life to excite distrust, the jury will be able to measure the just weight of his testimony.

It is hard to be obliged to argue this question. I do not argue it. I will not argue it. I simply ask for your votes. Surely, Congress will not adjourn without redressing this grievance. The king, in Magna Charta, promised that he would deny justice to no one. Congress has succeeded to this promise and obligation.

Mr. Sherman said he “trusted, that, after the experience of last night, when the thermometer here rose to ninety-three degrees, and we were all exhausted by a debate on irrelevant matter, the Senator from Massachusetts would not introduce upon this appropriation bill a topic of this kind.” He thought we had already voted on this amendment on two other bills.

Mr. Sumner, after remarking that he had not been able to bring the amendment applicable to the United States courts to a vote by itself, said:—

I can state to the Senator the different occasions on which this principle prevailed. It prevailed on the statute emancipating slaves in this District; but here it was applicable only to cases arising in questions of freedom under the statute. It was next broadened to all proceedings in the courts of the District. But it has not been applied beyond that. I have sought to apply it generally; I have moved it more than once on other bills, and have failed; and the measure is now pending as a bill reported by the Select Committee on Slavery and Freedmen, and it is also pending as a section of another bill reported by the Senator from Vermont [Mr. Collamer] from the Committee on Post-Offices and Post-Roads. Therefore it has the approval, as a general proposition, of two separate committees of this body, while, as a proposition applicable to the District of Columbia, it has had the sanction of the Senate twice over; and now I plead with the Senate not to arrest it here.

Mr. Sherman replied: “I agree with the Senator in the general principle entirely; but I hope he will not press the proposition as an amendment to this bill, for I know it will create discussion.”

Mr. Sumner said:—

I believe it is always time for an act of justice, and I think this Congress ought not to separate without this act of justice. It ought to do it for the sake of the administration of justice. I have not put this case, you will bear witness, on any grounds of sympathy or sentiment or humanity; I plead for it now as essential to the administration of justice; and for one, as a Senator, I cannot willingly abandon the opportunity afforded me by my seat here of making this motion,—of making this effort to open the courts of my country to evidence without which justice must often fail.

Mr. Carlile, of Virginia, appealed to Mr. Sumner “to withdraw the amendment, and allow this subject to rest, at least until the next session of Congress.” This he declined to do.

Mr. Buckalew, of Pennsylvania, thereupon moved to amend the amendment by adding, “nor in civil actions, because he is a party to or interested in the issue tried.” Then came the following passage.

Mr. Sumner. I am in favor of that proposition, taken by itself; but I do not wish it put upon this.

Mr. Gratz Brown (to Mr. Sumner). That is just what other people say about yours.

Mr. Sumner. I understand that; but I wish to secure this justice.

Mr. Buckalew. I wish to secure the additional justice provided by my amendment.

Mr. Sumner. I will vote for the Senator’s proposition by itself. Let him move it when mine is carried.

Mr. Saulsbury. I do not wish to say anything about the “nigger” aspect of this case. It is here every day, and I suppose it will be here every day for years to come, till the Democratic party comes into power and wipes out all legislation on the statute-book of this character, which I trust in God they will soon do.

The amendment of Mr. Buckalew was agreed to, and Mr. Sumner’s amendment, as amended, was carried,—Yeas 22, Nays 16,—and the bill was approved by the President July 2, 1864.