“They have full power to levy war, conclude peace, contract
alliances, establish commerce, and to do all other acts and
things which independent States may of right do.”
Here is the claim, with its limitation,--the great claim, and its great
limitation. The claim was Independence; the limitation was Justice.
“Which independent States may of right do”: nothing else, nothing which
a State may not of right do. Now, Sir, bear in mind, do not forget,
that there is not one thing prohibited by these fundamental conditions
that a State may of right do. Therefore, Sir, in the name of Right, do
I insist that it is binding upon the State. It is binding, even if not
there; and it is binding, being there. Its insertion is like notice or
proclamation of the perpetual obligation.
MR. CARPENTER. Will the Senator allow me to ask him a question?
MR. SUMNER. Certainly.
MR. CARPENTER. In speaking of a State of this Union, does not
the Senator understand the term to apply to the corporation, so
to speak,--the Government of the State?
MR. SUMNER. I do not.
MR. CARPENTER. I ask the Senator, then, in what way the State
of Virginia got out of the Union, except by destroying the
State Government which was a member of the Union? Her territory
was always in; her people were always subject to the laws of
the United States.
MR. SUMNER. There I agree with the Senator. Her people were always in;
her territory was always in.
MR. CARPENTER. But her Government was not.
MR. SUMNER. Not out. Her Government was destroyed.
MR. CARPENTER. Yes, and thereby she ceased to be a member of
the Union.
MR. SUMNER. Rather than say that she had ceased to be a member of the
Union, I would say that her Government was destroyed. She never was
able to take one foot of her soil or one of her people beyond the
jurisdiction of the Nation. The people constitute the State in the just
sense, and it has been always our duty to protect them, and this I now
propose to do.
* * * * *
I return to the point, that what it is proposed to prohibit by these
fundamental conditions no State can of right do. Therefore to require
that Virginia shall not do these things is no infringement of anything
that belongs to a State, for a State can have no such privilege. My
friend made himself, I said, the advocate of privilege. He complained,
that, if we imposed these conditions, we should impair the “privileges”
of a State. No such thing. The State can have no such thing. The
Senator would not curtail a State of its fair proportions. When will it
be apparent that the license to do wrong is only a barbarism?
Then, again, the Senator says, if this is already forbidden, why repeat
the prohibition in the form of a new condition? Why, Sir, my friend is
too well read in the history of Liberty and of its struggles to make
that inquiry seriously. Does he not remember how in English history
Liberty has been won by just such repetitions? It began with Magna
Charta, followed shortly afterward by a repetition; then again, in the
time of Charles the First, by another repetition; and then again, at
the Revolution of 1688, by still another repetition. But did anybody
at either of those great epochs say that the repetition was needless,
because all contained in Magna Charta? True, it was all there; but the
repetition was needed in order to press it home upon the knowledge and
the conscience of the people.
MR. CARPENTER. Will the Senator allow me?
MR. SUMNER. Certainly.
MR. CARPENTER. Is not the great distinction in this fact, that
England has no written Constitution,--that the Great Charter
is a mere Act of Parliament, which may be repealed to-morrow?
With us we have a written Constitution; and when its terms and
provisions are once clear, do we not weaken, do we not show our
lack of faith, that is, our lack of confidence in the value of
the provisions, by reënacting it in the form of a statute?
MR. SUMNER. I must say I cannot follow my friend to that conclusion,
nor do I see the difference he makes between Magna Charta in England
and our Constitution. I believe they are very much alike. And I believe
that the time is at hand when another document of our history will
stand side by side with the Constitution, and enjoy with it coëqual
authority, as it has more than the renown of the Constitution: I mean
the Declaration of Independence. This is the first Constitution of our
history. It is our first Magna Charta. Nor can any State depart from
it; nor can this Nation depart from it. To all the promises and the
pledges of that great Declaration are we all pledged, whether as Nation
or as State. The Nation, when it bends before them, exalts itself; and
when it requires their performance of a State, again exalts itself, and
exalts the State also.
So I see it. Full well, Sir, I know that in other days, when
Slavery prevailed in this Chamber, there was a different rule of
interpretation; but I had thought that our war had changed all that.
Sir, to my mind the greatest victory in that terrible conflict was
not at Appomattox: oh, no, by no means! Nor was it in the triumphal
march of Sherman: oh, no, by no means! This greatest victory was the
establishment of a new rule of interpretation by which the institutions
of our country are dedicated forevermore to Human Rights, and the
Declaration of Independence is made a living letter instead of a
promise. Clearly, unquestionably, beyond all doubt, that, Sir, was
the greatest victory of our war,--greater than any found on any field
of blood: as a victory of ideas is above any victory of the sword;
as the establishment of Human Rights is the end and consummation of
government, without which government is hard to bear, if not a sham.
January 17th, the Joint Resolution as amended was laid on
the table, and the Senate took up the House bill, which
admitted the State to representation clear of all conditions;
immediately whereupon Mr. Edmunds moved the proviso concerning
the oath to be taken by members of the Legislature and State
officers which had been attached to the former measure.
The renewal of this proviso gave rise to renewed and protracted
debate, in the course of which, Mr. Sumner, in speeches on the
18th and 19th, in reply to an elaborate defence of Governor
Walker by Mr. Stewart against the charges of disloyalty and
meditated bad faith, adduced copious extracts from speeches
of the Governor and others, together with numerous letters
from various parts of the State, all serving to show, as he
conceived, that the late election was “one huge, colossal
fraud.”
Meanwhile Mr. Sumner’s colleague, Mr. Wilson, with a view to
“a bill in which all could unite,” moved the reference of
the pending bill to the Committee on the Judiciary, “for the
purpose of having the whole question thoroughly examined,”--a
motion which on the part of the Committee itself was
strenuously opposed.
Upon this posture of the case, January 19th, Mr. Morton, of
Indiana, remarked, that “there seemed to be an obstinate
determination that Virginia must come in according to the bill
reported by the Committee or not come in at all,”--that “the
Senator from Nevada [Mr. STEWART], with all his zeal and his
good intentions, was standing as substantially in the way of
the admission of Virginia as the Senator from Massachusetts
[Mr. SUMNER]”; and turning to the latter, he said: “It seems
that the distinguished Senator from Massachusetts is unwilling
that Virginia shall come in now upon any terms; and the Senator
has developed more clearly this morning than he has done before
what his desire is. It is that there shall be a new election in
Virginia. Am I right in regard to that?”
MR. SUMNER. I have not said that.
MR. MORTON. Then what does the Senator’s argument mean,
that the last election was a monstrous fraud? What is the
object in proving that the last election was a monstrous
fraud, unless the Senator wants a new election? Let us have
an understanding about that.
MR. SUMNER. I wish to purge the Legislature of its Rebels.
I understand that three-fourths of the Legislature, if
not more, cannot take the test oath. That is what I first
propose to do.
After further remarks by Mr. Morton, Mr. Sumner spoke as
follows:--
MR. PRESIDENT,--In what the Senator from Indiana has said in reply to
the Senator from Nevada I entirely sympathize. I unite with the Senator
from Indiana in his amendments. I unite with him in his aspirations
for that security in the future which I say is the first great object
now of our legislation in matters of Reconstruction. Without security
in the future Reconstruction is a failure; and that now should be
our first, prime object. But while I unite with the Senator on those
points, he will pardon me, if I suggest to him that he has not done me
justice in his reference to what I said. And now, Sir, before I comment
on his remarks, I ask to have the pending motion read.
THE PRESIDING OFFICER. (Mr. ANTHONY, of Rhode Island, in the
chair.) The pending motion is the motion of the Senator from
Massachusetts [Mr. WILSON] to refer the bill to the Committee
on the Judiciary.
MR. SUMNER. So I understood, Sir, and it was to that motion that I
spoke. I argued that the bill and all pending questions should be
referred to the Committee,--and on what ground? That the election was
carried by a colossal fraud. The Senator complains because I did not
go further, and say whether I would have a new election or not. The
occasion did not require it. I am not in the habit, the Senator knows
well, of hesitating in the expression of my opinions; but logically
the time had not come for the expression of any opinion on that point.
My argument was, that there must be inquiry. To that point the Senate
knows well I have directed attention from the beginning of this
debate. I have said: “Why speed this matter? Why hurry it to this
rash consummation? Why, without inquiry, hand over the loyalists of
Virginia, bound hand and foot, as victims?” That is what I have said;
and it is no answer for my friend to say that I do not declare whether
I would have a new election or not.
When an inquiry has been made, and we know officially and in authentic
form the precise facts, I shall be ready to meet all the requirements
of the occasion,--so, at least, I trust. My friend, therefore, was
premature in his proposition to me. May I remind him of that incident
in the history of our profession, when a very learned and eminent
chief-justice of England said to a counsellor at the bar, “Do not
leap before you come to the stile,”--in other words, Do not speak to
a point until the point has arisen?[193] The point which the Senator
presents to me had not yet arisen; the question was not before the
Senate, whether there should be a new election or not. There was no
such motion; nor did the occasion require its consideration. My aim was
in all simplicity to show the reasons for inquiry. Now it may be, that,
when that inquiry is made, it will appear that I am mistaken,--that
this election is not the terrible fraud that I believe it,--that the
loyal people, black and white, will hereafter be secure in the State of
Virginia under the proposed Constitution. It may be that all that will
become apparent on the report of your Committee. It is not apparent
now. On the contrary, just the opposite is apparent. It is apparent
that loyalists will not be secure, that freedmen will suffer unknown
peril, unless you now throw over them your protecting arm.
That is my object. I wish to secure safety. I wish to surround all my
fellow-citizens in that State with an impenetrable ægis. Is not that an
honest desire? Is it not a just aspiration? I know that my friend from
Indiana shares it with me; I claim no monopoly of it, but I mention it
in order to explain the argument which I have made.
* * * * *
In the course of this debate there has been an iteration of assertion
on certain points. I mention two,--one of fact, and the other of law.
It has been said that we are pledged to admit Virginia, and this
assertion has been repeated in every variety of form; and then it is
said that in point of law the test oath is not required. Now to both
these assertions, whether of fact or law, I reply, “You are mistaken.”
The pledge to admit Virginia cannot be shown, and the requirement of
the test oath can be shown.
It is strange to see the forgetfulness of great principles into which
Senators have been led by partisanship. Certain Senators forget the
people, forget the lowly, only to remember Rebels. They forget that
our constant duty is to protect our fellow-citizens in Virginia at all
hazards. This is our first duty, which cannot be postponed. In the
reconstruction of Virginia it must be an ever-present touchstone.
Look at the text of the Reconstruction Acts, or their spirit, and it
is the same. By their text the first and commanding duty is, “that
peace and good order should be enforced in said States _until loyal
and republican State governments can be legally established_”; and
until then “any civil governments which may exist therein shall be
deemed _provisional_ only, and in all respects subject to the paramount
authority of the United States at any time to abolish, modify, control,
or supersede the same.” Such are the duties and powers devolved upon
Congress by the very terms of the first Reconstruction Act.[194]
The duty is to see that “loyal and republican State governments”
be established; and the power is “to abolish, modify, control, or
supersede” the provisional governments.
It is not enough to say that Virginia has performed certain things
required by the statute. This is not enough. The Senate must be
satisfied that her government is loyal and republican. This opens the
question of fact. Is Virginia loyal? Is her Legislature loyal? Is the
new Government loyal? These questions must be answered. How is the
fact? Do not tell me that Virginia has complied with certain formal
requirements. Behind all these is the great requirement of Loyalty. Let
Senators who insist upon her present swift admission show this loyalty.
There is no plighted faith of Congress which can supersede this duty.
Disloyalty is like fraud; it vitiates the whole proceeding. Such is the
plain meaning of the text in its words.
But if we look at the spirit of the Acts, the conclusion becomes still
more irresistible. It is contrary to reason and to common sense to
suppose that Congress intended to blind its eyes and tie its hands, so
that it could see nothing and do nothing, although the State continued
disloyal to the core. And yet this is the argument of Senators who
set up the pretension of plighted faith. There is Virginia with
a Constitution dabbled in blood, with a Legislature smoking with
Rebellion, and with a Governor commending himself to Rebels throughout
a long canvass by promising to strike at common schools; and here is
Congress blindfold and with hands tied behind the back. Such is the
picture. To look at it is enough.
Sir, the case is clear,--too clear for argument. Congress is not
blindfold, nor are its hands tied. Congress must see, and it must act.
But the loyalty of a State should be like the sun in the heavens, so
that all can see it. At present we see nothing but disloyalty.
* * * * *
The next assertion concerns the test oath; and on this point I desire
to be precise.
General Canby, the military commander in Virginia, thought that the
test oath, or “iron-clad,” should be required in the organization
of the Virginia Legislature. This opinion was given after careful
examination of the statutes, and was reaffirmed by him at different
times. According to him, the test oath must be applied until the
Constitution has been approved by Congress; and in one of his letters
the commander says, “Its application to the seceded States before
they were represented in Congress appears to be the natural result of
their political relation to the Union, independent of the requirements
of the ninth section of the law of July 19, 1867.”[195] To my mind
this opinion is unanswerable, and it is reinforced by the reason
assigned. Nothing could be more natural than that the test oath, which
was expressly required of the Boards of Registration and of other
functionaries, should be required of the Legislature, so long as the
same was within the power of Congress. The reason for it in one case
was equally applicable in the other case; nay, it was stronger, if
possible, in the case of the Legislature, inasmuch as the powers of the
latter are the most vital. It is this Legislature which is to begin the
new State government. Two essential parts of the system depend upon
it,--the courts of justice, which are to be reorganized, and the common
schools. To my mind it is contrary to reason that the establishment
and control of these two great agencies should be committed to a
disloyal Legislature,--in other words, to a Legislature that cannot
take the test oath. The requirement of this oath is only a natural and
reasonable precaution, without harshness or proscription. It is simply
for the sake of security. Therefore is General Canby clearly right on
grounds of reason.
Looking at the text of the Reconstruction Acts, the conclusion of
reason is confirmed by a positive requirement. By the ninth section of
the Act of July 19, 1867,[196] it is provided,--
“That all members of said Boards of Registration, and all
persons hereafter elected or appointed to office in said
military districts, _under any so-called State or municipal
authority_, … shall be required to take and to subscribe the
oath of office prescribed by law for officers of the United
States.”
Senators find ambiguity in the terms “under any _so-called State_
or municipal authority”; but I submit, Sir, that this is because
they do not sufficiently regard the whole series of Reconstruction
Acts and construe these words in their light. If there be any
ambiguity, it is removed by other words, which furnish a precise and
unassailable definition of the term “so-called State authority.” By the
Reconstruction Act of March 2, 1867, it is provided, “that, until the
people of said Rebel States shall be by law admitted to representation
in the Congress of the United States, any civil governments which may
exist therein shall be deemed _provisional only_, and in all respects
subject to the paramount authority of the United States.”[197] This is
clear and precise. Until the people are admitted to representation,
the State government is “provisional only,”--or, in other words, it is
a “so-called State authority.” Now the Legislature was elected under
“so-called State authority,”--that is, under a State constitution which
was “provisional only.” Therefore, according to the very text of the
Reconstruction Acts, one interpreting another, must this test oath be
required.
If it be insisted that the Legislature was not elected under “so-called
State authority,” pray under what authority was it elected? Perhaps it
will be said, of the United States. Then surely it would fall under the
general requirement of the Act of July 2, 1862,[198] prescribing the
test oath to all officers of the United States. But I insist upon this
application of the statute only in reply to those who would exclude the
Legislature from the requirement of the Reconstruction Act. I cannot
doubt that it comes precisely and specifically within this requirement.
This conclusion is enforced by three additional arguments.
1. By a resolution of Congress bearing date February 6, 1869,
“respecting the provisional governments of Virginia and Texas,”[199]
it is declared “that the persons now holding civil offices in the
provisional governments of Virginia and Texas, who cannot take and
subscribe the oath prescribed by the Act entitled ‘An Act to prescribe
an Oath of Office, and for other Purposes,’ approved July 2, 1862,
shall, on the passage of this Resolution, be removed therefrom.”
By these plain words is the purpose of Congress manifest. The test
oath is prescribed for all persons “holding civil offices in the
provisional government of Virginia.” But, by requirement in the first
Reconstruction Act, the provisional government lasts until the State is
admitted to representation.
2. Then comes a well-known rule of interpretation, requiring that
words shall be construed _ut res magis valeat quam pereat_,--in other
words, so that the object shall prevail rather than perish. But the
very object of the Reconstruction Act on which this question arises was
to keep Rebels from the State government. This object is apparent from
beginning to end. But this object is defeated by any interpretation
disallowing the test oath.
3. Then comes another rule of interpretation, which is of equal
obligation. It is, that we are always to incline so as to protect
Liberty and Right; and this rule, for double assurance, is embodied in
the very text of the statute whose meaning is now under consideration,
being the last section, as follows:--
“That all the provisions of this Act, and of the Acts to which
this is supplementary, shall be construed liberally, to the end
that all the intents thereof may be fully and perfectly carried
out.”[200]
Following this rule, we find still another reason for so interpreting
the statute as to require the test oath.
Thus by the reason of the case, by the natural signification of the
text, by the light furnished from the supplementary statute, by the
rule of interpretation that the object must prevail rather than
perish, and by that other commanding rule which requires a liberal
interpretation favorable to Liberty and Human Rights,--by all these
considerations, any one of which alone is enough, while the whole make
a combination of irresistible, infinite force, are we bound to require
the test oath.
There is one remark of Andrew Johnson, just, wise, and patriotic, for
which I can forget many derelictions of duty, when he said, “For the
Rebels back seats.” I borrow this language. The time will come when
Rebels will be welcome to the full copartnership of government; but
this can be only when all are secure in their rights. Until then, “for
the Rebels back seats.”
January 21st, the long debate terminated with an arraignment
by Mr. Trumbull of Mr. Sumner’s course in reference not only
to the pending bill, but to former measures of Reconstruction,
and an answer of similar scope by Mr. Sumner, concluding with
regard to Virginia[201] as follows:--
The next count in the Senator’s indictment was, that I had called
the late election in Virginia a fraud; and how did he encounter
this truthful allegation? He proceeded to show that General Canby
designated only five counties in which there were cases of fraud. Is
that an answer to my entirely different allegation? Does the Senator
misunderstand me, or is it an unintentional change of issue? My
statement was entirely different from that which he attributes to me. I
made no allegation of frauds in different counties, be they few or many.
I said that the election in the whole State was carried by a conspiracy
reaching from one end of the State to the other, of which the candidate
for Governor was the head, to obtain the control of the State, and
by this means take the loyalists away from the protecting arms of
Congress. That was my allegation. Is that met by saying to me that I
do not adduce evidence of fraud in districts, or that there were only
five districts with regard to which we have such evidence? How do I
know, that, if you should go into an inquiry, you might not find that
very evidence with regard to all the districts? The Senator sets his
face against inquiry, as we all know. But I did not intend to open this
question. My object was entirely different: it was to show that from
beginning to end the whole canvass was a gigantic fraud; that Walker by
a fraudulent conspiracy imposed himself upon the State; that by appeals
to the Rebels he obtained their votes and thus installed himself in
power, with the understanding that when once installed he should
administer the State in their interest.
Then, Sir, farewell the equal rights of all! farewell an equal
judiciary, which is the Palladium of just government! farewell trial by
jury! farewell suffrage for all! farewell that system of public schools
which is essential to the welfare of the community!--all sacrificed to
this conspiracy. Such, Sir, is my allegation; and it was in making this
allegation I challenged reply. I challenge it now. When I first made
it, I looked about the Senate, I looked at those who are most strenuous
for this sacrifice, and none answered. None can answer. The evidence is
before the Senate in the speeches of the Governor and in the election.
Sir, shall I follow the Senator in other things? I hesitate. I began by
saying I would not follow him in his personalities. I began by saying
that I would meet the counts of his indictment, one by one, precisely
on the facts. Have I not done so, turning neither to the right nor to
the left? I have no taste for controversy; much rather would I give
the little of strength that now remains for me to the direct advocacy
of those great principles to which my life in humble measure has been
dedicated, not forgetting any of my other duties as a Senator. If I
have in any respect failed, I regret it. Let me say in all simplicity,
I have done much less than I wish I had. I have failed often,--oh, how
often!--when I wish I had prevailed. No one can regret it more than I.
But I have been constant and earnest always. Such, God willing, such I
mean to be to the end.
And now, Sir, as I stand before the Senate, trying by a last effort
to prevent the sacrifice of Unionists, white and black, in Virginia,
I feel that I am discharging only a simple duty. To do less would be
wretched failure. I must persevere. This cause I have at heart; this
people I long to save; this great State of Virginia I long to secure
as a true and loyal State in the National Union. Show that such is her
character, and no welcome shall surpass mine.
Mr. Wilson’s motion for a reference of the bill having been
withdrawn, the Senate proceeded to vote on the various
amendments offered. Mr. Edmunds’s Proviso was carried by
Yeas 45, Nays 16. Other amendments, imposing “fundamental
conditions,” to secure equality in suffrage, in eligibility
to office, and in school rights and privileges, passed by
small majorities. A Preamble, moved by Mr. Morton, declaring
“good faith” in the framing and adoption of a republican State
Constitution and in the ratification of the Fourteenth and
Fifteenth Amendments to the National Constitution “a condition
precedent to representation of the State in Congress,” was
adopted by Yeas 39, Nays 20. The bill as thus amended then
passed by Yeas 47, Nays 10. Mr. Sumner voted for all the
amendments, but did not vote upon the bill itself,--it being
his opinion, as shown by his speeches during the debates, that
the admission of Virginia at that time, with its legislative
and executive departments as then constituted, would endanger
the rights and security of her loyal people.