And then it proceeds to say that--

“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.

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