Mark, Sir, if you please, the period of service,--“for three years,”--

“or until sooner discharged, _and may include persons of

African descent_, organized into separate corps. He will make

the usual needful requisitions on the appropriate staff bureaus

and officers for the proper transportation, organization,

supplies, subsistence, arms, and equipments, of such volunteers.

“EDWIN M. STANTON, _Secretary of War_.”

Now, on the face of this order, the Governor of Massachusetts is

empowered to raise certain regiments in the volunteer service of the

United States for three years. Under what statute? Under no other,

surely, than the statute of 1861, for it was under that statute that

the organization for three years was authorized. If you come to the

later statute--and to that I ask particular attention--of July 17,

1862, which contains a special provision with reference to African

troops, you will find that it is to raise troops for nine months.

“SEC. 3. _And be it further enacted_, That the President be,

and he is hereby, authorized, in addition to the volunteer

forces which he is now authorized by law to raise, to accept

the services of any number of volunteers, not exceeding one

hundred thousand, as infantry, for a period of nine months,

unless sooner discharged.”

And then, Sir, in section twelve of this same statute, the President

is further empowered to employ persons of African descent. In section

fifteen we come to the question of pay.

“_And be it further enacted_, That all persons who have been or

shall be hereafter enrolled in the service of the United States

under this Act”--

“Under this Act,”--an Act authorizing enrolments for nine months, not

for three years--

“shall receive the pay and rations now allowed by law to

soldiers, according to their respective grades: _Provided_,

That persons of African descent, _who under this law shall be

employed_, shall receive ten dollars per month and one ration,

three dollars of which monthly pay may be in clothing.”

Now, Sir, you have the question precisely: Under what statute were

these enlistments made? Were they under the nine months’ statute, or

under the three years’ statute? To answer that question, look at the

order of the War Department:--

“_Ordered_, That Governor Andrew, of Massachusetts, is

authorized, until further orders, to raise such number of

volunteer companies of artillery for duty in the forts of

Massachusetts and elsewhere, and such corps of infantry for the

volunteer military service, as he may find convenient; _such

volunteers to be enlisted for three years, or until sooner

discharged_.”

Here are no nine months’ men. There is nobody under the second statute,

but all are clearly under the first by the plain language of the order.

And this is none the less so, even if the second statute, so far as

Africans are concerned, may be interpreted to sanction a longer term of

enlistment.

Mark well, that “all persons who have been or _shall be hereafter

enrolled in the service of the United States_ under this Act shall

receive the pay and rations now allowed by law to soldiers.” (§

15.) But were not the soldiers of the fifty-fourth and fifty-fifth

Massachusetts regiments “enrolled in the service of the United States”?

Unquestionably, if troops ever were enrolled.

But it is the _proviso_ that follows which causes the mischief.

“Persons of African descent, _who under this law shall be employed_,

shall receive ten dollars,” &c.

It is said that these colored soldiers were “employed,”--that is

all,--not “enrolled,” but “employed”; and on this distinction the

promise of Governor Andrew in the name of the National Government, and

the honest expectations of the soldiers, are set aside.

The order of the Secretary of War is for “volunteer companies of

artillery,” also for “corps of infantry,” “_to be enlisted for three

years_,” “and may include persons of African descent.” The persons

of African descent are to be included in the artillery or infantry

“enlisted.” Such persons are in advance declared men to be _enlisted_.

And yet the argument which denies them their well-earned wages asserts

that they are only “employed,” and not enlisted. But if they are

“employed,” then are the “corps of infantry” in which they are included

“employed” also.

To me the conclusion seems irresistible, on the face of these facts,

that these troops were enrolled or enlisted under the earlier statute.

It is clear that Governor Andrew thought so at the time, and it is

equally clear that the troops themselves thought so at the time.

But there remains behind another question. Is there anything in

existing legislation to prevent the enlistment of a colored person

under the statute of 1861? To this I answer positively in the negative,

and I challenge contradiction. There is no color in that statute.

There is no color in any statute raising troops for the army of the

United States, nor any color in any statute raising sailors for the

navy of the United States. Only in our militia statutes do you find

the word “white.” In all our army and navy statutes there is no such

limitation. The statute of 1861, therefore, in point of law embraced

all persons, whether black or white, and it was entirely at the option

of the President, before the passage of the statute of 1862, to

organize or receive colored troops under that statute. He hesitated.

I regretted at the time his hesitation. I thought it an error by

which the country suffered. We endeavored to repair that error by the

amendment introduced by the brave Senator from New York, who is no

longer here [Mr. KING], which you will find in the statutes of 1862.

But I doubt if any person at the time, who had given attention to the

subject, supposed this amendment necessary, except as an encouragement

to a policy which the Government was too slow to adopt. For myself, I

remember well my own feelings in voting for it. I accepted it as notice

to the Administration that in the opinion of Congress the time had come

when colored troops must be used. In point of law it was plain that it

could not stand in the way of an enrolment under the earlier statute.

And the Secretary of War seems to have acted on this interpretation;

for, in undertaking to raise colored troops, no allusion was made

to the statute of 1862, but the language of his order in every

particular pointed to the statute of 1861. Am I wrong, then, if I say

that in point of law these colored troops have just the same right

to the full pay of a soldier that any Senator on this floor has to

his compensation? It is by just as good title, and as firm in the

statute-book, as your own pay, Sir.

I suggested, the other day, that there were two classes of cases,--one

where the enlistments had been made in good faith under the earlier

statute, and a second class where they had been made under the later

statute; and I suggested, that, if we were disposed to recognize the

difference between these two classes, it might afford a solution to our

present difficulties. I am not disposed, on any ground of sentiment,

to impose an unnecessary tax upon the burdened treasury of my country,

although there is no tax required by justice that I would hesitate to

impose. If there are colored troops in our service, who, at the time

they were mustered, had no reason to suppose that they were enlisted

under the statute of 1861, who were led to believe that they came under

the statute of 1862, that is, for the pay of ten dollars, I am not

disposed to press for them any claim on ground of sentiment,--that is,

for the past. I take the past as it is; but for the future I insist

that they shall be put upon an equality. True equality in the past is

for the National Government to redeem its pledges, whether direct or

only implied,--whether there is an absolute promise, of which you have

a record, or only an inference or understanding, founded, it may be, in

misconception, but still embraced in good faith by innocent parties.

On this ground, at a proper moment, I shall be ready to propose an

amendment something like the following, to come in immediately after

the word “service”:--

“_Provided_, That, with regard to all past service, it shall

appear to the satisfaction of the Secretary of War that such

persons, at the time of being mustered into service, were led

to suppose that they were enlisted under the Act of Congress

approved July 22, 1861, as volunteers in the army of the United

States.”

* * * * *

Mr. Fessenden could not concur in Mr. Sumner’s construction of

the Act of 1862. Mr. Lane, of Indiana, thought, “if we place

colored troops hereafter on an equality with the white troops,

it is surely as much as they can ask, either from the justice

or the generosity of this Senate; for no man, in his sober

senses, will say that their services are worth as much, or that

they are as good soldiers.” Mr. Sumner replied:--

MR. PRESIDENT,--I hope the Senator from Indiana will pardon me, if I

refer to him for one minute. He is so uniformly generous and just that

I was the more surprised, when I listened to his remarks just now. I

was surprised at his lack of generosity and his lack of justice--he

will pardon me--toward these colored soldiers. I was surprised--he will

pardon me--at his injustice to the State of Massachusetts. He spoke

disparagingly of the colored soldiers. He thought they had been paid

enough. He thought that the gallant blood shed on the parapets of Fort

Wagner had been paid enough; and he failed to see that the men who died

for us on that bloody night, and were buried in the same grave with the

devoted colonel who led them, now stood alive in this presence to plead

for the equality of their race. How can I help regret that the Senator

was led into such remark?

Also, in the ardor of his utterance,--he will pardon me still

further,--the Senator undertook to say, that, if we entered on this

payment, we should charge the Treasury with some one or two hundred

millions in addition to its present burden. Why, Sir, that is an entire

mistake. Even if we pay everything contemplated by the resolution, I am

told that the whole will be little more than a million: much, I admit,

to charge unnecessarily upon the Treasury, but not the very large sum

which seemed to fill the patriotic vision of the Senator.

MR. LANE, of Indiana. The Senator misunderstood my statement

altogether. My statement was, that, if we were called upon now

to go back and increase the pay of the colored troops three

dollars a month more than the law provided, with the same

propriety we might be called upon to go back and increase the

pay of our white soldiers because they thought that their pay

had not been enough; and that would add to the burdens of the

Treasury to a very large amount.

MR. SUMNER. I accept the correction gladly. Certainly I have no

disposition to press anything beyond the meaning of the Senator. But

he will allow me to say that I was hardly mistaken in his argument.

It was, that we should charge the Treasury with a burden it could ill

bear. Now, if this money is due, let us charge the Treasury with the

burden; and that brings me again to the direct question, Is not the

money due? The Senator denies it; but he will pardon me again, if I

say he hardly went into an argument on that head. I repeat, then, is

the money due? I dislike to trouble the Senate by going over topics

already too much discussed; but I trust they will excuse me, if I state

the case yet once more. On many accounts I confess a special interest

in it; not the least is that I would have my country above doing

injustice, least of all injustice to people of a race too long crushed

by injustice.

The argument need not be long. In the first place, the statute of 1861

contains no words which can be interpreted in any way to exclude the

enrolment of persons of color under it. I challenge any Senator to

mention a single word in that statute authorizing any such exclusion.

You have, then, the statute in the case. That is the first point. Then

you have the order from the Secretary of War to Governor Andrew,

authorizing an enrolment for three years, making no discrimination

between persons of African descent and white soldiers. That is the

second point. You have, in the third place, the open promises and

pledges of Governor Andrew, under that order, and for the time being

the agent of the United States, solemnly promising the full pay of

thirteen dollars a month to these colored persons as soldiers of the

United States. And, in the last place, you have the very terms of

enlistment subscribed by these soldiers at the time of enlistment,

which I read the other day, where it is expressly stated that they

entered into service under the statute of 1861.

These four points,--the statute of 1861, the order of the Secretary,

the promise of Governor Andrew in behalf of the United States, and the

terms of enlistment,--all these make a case by which, as it seems to

me, the Government is bound. In face of these, how can it be said that

these colored troops were “employed” under the statute of 1862? There

is no ingenuity of interpretation which can place them there.

That I am not mistaken in the facts on which I found this argument is

apparent from a letter which I hold in my hand, written by one of these

soldiers, now on Morris Island. I content myself with a brief extract.

“In the month of February, 1863, Governor John A. Andrew

announced that he had permission from the War Department to

raise a regiment of infantry to be composed of men of color.

Enlisting began immediately, and the fifty-fourth regiment was

filled to overflowing in three months. The only inducement he

offered to these men was an acknowledgment of their manhood;

for he promised that the United States Government would treat

them, in _every_ particular, the same as other volunteer

regiments from the State of Massachusetts.”

MR. LANE. Will the Senator pardon me a moment just there?

MR. SUMNER. Certainly.

MR. LANE. They were to be treated in every respect as the

volunteer troops from Massachusetts. Will the Senator contend

that the commissioned officers of colored regiments might be

drawn from the colored troops themselves, after the passage of

the law of 1862? Was not that a disparity? Was that treating

them like other troops?

MR. SUMNER. Of course the order is applicable simply to the enlisted

men. It is not applicable to the officers.

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