“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.