“The enlistment rolls signed by these men bound them to obey
the President,” &c.
How?
“In pursuance of the law passed in July, 1861, calling for
volunteers.”
Such was the understanding. By this lure you won these men to the field
of sacrifice.
I have already said too much, but before I sit down I cannot forget
that the Senator from Indiana, in his impetuous movement, brushed
against the Commonwealth of Massachusetts. I do not remember his
precise words, nor do I care to remember them. But he more than
intimated that there was on the part of this State something else than
a patriotic motive in pressing this obligation. I think he said this
whole effort is to save the payment of this extra money. Does not the
Senator know that Massachusetts has already provided for the payment
of this sum, so far as its own two regiments are concerned, and that
those regiments have refused to receive it? These colored troops
declare that they were enlisted as soldiers of the United States, and
as such are entitled to the pay of soldiers of the United States from
the Government of the United States. If it be wrong to maintain their
claim, then is Massachusetts wrong, then am I wrong. If the claim is
maintained earnestly, it is because, both in law and in sentiment, and
on every ground of policy or expediency, it commends itself to those
who represent Massachusetts. And now, since this State has been called
in question, I shall not content myself with merely giving my own
opinions and arguments, but I ask you to listen to her honored Governor.
In an official communication to the Legislature of Massachusetts,
Governor Andrew has discussed this whole question with his accustomed
lucidity and thoroughness. Here is something of what he says.
“To my own mind, the right of these men, under the existing
statutes, to the lawful pay and allowances of volunteers is
demonstrably clear. But if it is doubtful, it is agreed, I
believe, in all quarters, that it will be the duty and the
pleasure of Congress to embrace an early opportunity to
prevent by positive legislation the continuance of that doubt.
Meantime I must embrace the earliest occasion to invoke the
Legislature of Massachusetts to render justice to the men of
these regiments beyond the possibility of a doubt, by the
appropriation of the needful means out of our own treasury
until the National Congress or the Executive Department shall
correct the error.”[305]
The Governor, after considering some details of the argument, proceeds
as follows.
“I think there can be no proposition of law more clear than
this, namely, that colored men are competent to be enlisted
into the regular army of the United States, into the volunteer
army of the United States, into the navy of the United States,
and to be employed in any arm of either service.
“The Military Enlistment Law of 1814 required only that the
recruit shall be a ‘free, effective, able-bodied man, between
the ages of eighteen and fifty years.’ (_See Act of December
10, 1814._) It did not require a man to be under forty-five,
nor a citizen, nor white, in which three respects it differs
from the old Militia Act. The Naval Act of 1813 is not less
clear.”[306]
Such is the statement of the Governor on this question in point of law.
At the time these regiments were mustered into the service he believed
that he was acting legally under the statutes of the United States. He
so instructed these men; and these men naturally believed him, and gave
themselves, generously, nobly, beautifully, to the public service. Will
the country now disown them? Will the country now fasten a ban upon
them, and lead them to say in their hearts that they have been duped?
February 13th, the subject being still before the Senate,
Mr. Sumner offered the proviso of which he had already given
notice at the close of his first remarks; but, after debate,
he withdrew it at the request of Mr. Wilson, who, seeing
the opposition to the joint resolution, proposed to abandon
all that part making it retroactive. In withdrawing it, Mr.
Sumner again vindicated it, saying, in conclusion: “I am
unwilling to withdraw the proposition. I shall do it, if my
colleague desires it. At any rate, I should rather, for my own
satisfaction, have a vote upon it.”
In the debate that ensued, Mr. Reverdy Johnson said: “If the
Governor of Massachusetts has made a promise which the law did
not authorize, if he has created, as between the Massachusetts
soldiers and the Governor of Massachusetts, an obligation which
ought to be redeemed, let Massachusetts redeem it.” “They have
passed a law to redeem it,” said Mr. Fessenden, “but these
regiments refuse to receive it from Massachusetts.”
Mr. Wilson moved to insert words making the resolution
applicable only “from and after the first day of January,
1864,” which was agreed to. After debate, Mr. Sumner again
moved his proviso, which was lost,--Yeas 16, Nays 21. Other
amendments were moved, and the debate continued for days.
February 23d, Mr. Davis moved as a substitute three
resolutions,--that all negroes and mulattoes, by whatever term
designated, in the military service of the United States, be
discharged and disarmed, and also providing for payment to
loyal owners on account of slaves taken into the service.
Lost,--Yeas 7, Nays 30.
Mr. Collamer, of Vermont, having moved an amendment providing
for a certain class of cases, Mr. Sumner, February 25th,
brought forward his amendment in the following terms:--
“_Provided, also_, That all persons whose papers of
enlistment shall show that they were enlisted under the Act
of Congress of July, 1861, shall receive from the time of
their enlistment the pay promised by that statute.”
In proposing this again, he said: “I believe, if any persons
have enlisted in the national service, and, through any
ambiguity or misinterpretation of legislation, their rights
have been drawn in question, it belongs to Congress, as
guardian and conservator of the rights of every citizen, to
see that they have the proper remedy.” The amendment was
adopted,--Yeas 19, Nays 18.
February 29th, Mr. Fessenden addressed the Senate in
explanation of his position. He had been from the beginning in
favor of placing colored soldiers on the same footing as white;
but he objected to the attempt to provide for exceptional cases
on this general bill, and he asked, “whether we should have had
such an uproar throughout the country, if this amendment had
been in regard to three or four or more white regiments, to
go back and pay them an additional sum from the time of their
enlistment, and the principle had been objected to.”
Mr. Sumner, in reply, reviewed the case, and in conclusion
said:--
From the question of law I pass to that other question which occupied
the attention of the Senator from Maine, as to when and where we should
meet this obligation. He says, Bring in a separate bill. That was said
the other day. I say, Meet it whenever it appears. It is in itself a
case of such absolute and overwhelming justice that the Senate ought
not to postpone it for a single day,--especially ought not to postpone
it, when it has under consideration a bill so entirely germane as the
present. If it were a bill concerning the Pacific Railroad or the sale
of gold, it might be questionable whether the proposition should be
ingrafted upon it; but, as it is a bill to put colored troops on an
equality with other troops in the national service, I say that the
pending proposition is perfectly germane, and, being in itself of
commanding justice, ought not to be postponed. It is a common device of
enemies to object to a measure on a particular bill. For myself, I wish
it understood that I am for the proposition on any bill and at any time.
Then, on motion of Mr. Grimes, of Iowa, the joint resolution
was recommitted to the Committee on Military Affairs.
March 2d, Mr. Wilson reported a new bill, in lieu of the
original joint resolution so much discussed, which, besides
the provision in the joint resolution, contained an additional
section in substantial conformity with Mr. Sumner’s proviso,
giving to all persons of color enlisted and mustered into the
service of the United States the pay allowed by law to other
volunteers in the service, from the date of their muster, if it
had been pledged or promised to them by any officer or person,
who, in making such pledge or promise, acted by authority of
the War Department; and the Secretary of War was to determine
any question of fact arising under this provision.
March 8th, the bill being under consideration, Mr. Davis moved
an additional section, giving to loyal owners of slaves taken
into service compensation to be determined by commissioners
appointed by the Circuit Court of the United States.
March 9th, Mr. Davis made an elaborate speech vindicating
property in slaves.
March 10th, after further debate, the additional section of
Mr. Davis was rejected,--Yeas 6, Nays 31,--and also another
amendment moved by him. The bill then passed the Senate,--Yeas
31, Nays 6. In the House of Representatives other matters were
substituted for the provisions which had occupied the attention
of the Senate, as the object was already accomplished in
another way.
April 22d, the Army Appropriation Bill being under
consideration, Mr. Wilson moved, as an amendment, the bill to
equalize the pay of soldiers which had passed the Senate. Mr.
Fessenden thought that “the measure ought to be passed, and
passed at once.” If the Senate would waive the objection to
putting it on the Appropriation Bill, he would not object. The
amendment was agreed to,--Yeas 31, Nays 5.
Then followed another series of struggles. The House of
Representatives made amendments which were disagreed to by the
Senate. Then came no less than three different Committees of
Conference. The report of the last Committee, which was made
June 10th, contained the following substitute for the Senate
amendment:--
“That all persons of color who were free on the nineteenth
day of April, 1861, and who have been enlisted and mustered
into the military service of the United States, shall,
from the time of their enlistment, be entitled to receive
the pay, bounty, and clothing allowed to such persons
by the laws existing at the time of their enlistment.
And the Attorney-General of the United States is hereby
authorized to determine any question of law arising under
this provision. And if the Attorney-General aforesaid shall
determine that any of such enlisted persons are entitled to
receive any pay, bounty, or clothing in addition to what
they have already received, the Secretary of War shall make
all necessary regulations to enable the pay department to
make payment in accordance with such determination.”
Mr. Sumner observed that the report did not seem to settle the
question in issue; that, if he were merely looking after the
interests of his own constituents and the regiments organized
in Massachusetts, he might rest satisfied; but that he was
unwilling to sanction a settlement which did not embrace all
the colored troops. The debate extended into the next day, when
Mr. Sumner remarked:--
I stated last night that in my opinion this report undertook to
conclude something, but did not conclude it. On further consideration,
I am satisfied that I was not much mistaken. It is a conclusion in
which nothing is concluded. I may say, too, that it is not entirely
creditable to Congress, and, so far as I now accept the result, it
will be with much reluctance. It would have better become Congress to
recognize a solemn obligation toward those now baring their breasts for
us in battle, and falling on the ramparts of the enemy, rather than
question their title to pay as soldiers, which I believe as strong
for them as for any white soldiers. I regret sincerely that their
title has not been positively recognized in the text of a statute;
but, after effort in both branches, and the appointment of several
committees of conference, such recognition has failed. I despair of
obtaining it, at least on the present bill. On that account I am
induced to look critically at the proposition before us, to see whether
this affords any measure of justice. In one sense it affords nothing;
and I believe the Senator from Maine [Mr. MORRILL], who was on the
last committee, will not differ from me on that point; but it does
distinctly and unequivocally refer the question to the judgment of the
Attorney-General of the United States. Substantially Congress agrees
to take his opinion. He has already given it. I have it in my hand,
in a communication dated April 23, 1864, on a case submitted by the
President.
“I do not know that any rule of law, constitutional or
statutory, ever prohibited the acceptance, organization, and
muster of ‘persons of African descent’ into the military
service of the United States as enlisted men or volunteers. But
whatever doubt might have existed on the subject had been fully
resolved before this order was issued, by the 11th section
of the Act of July 17, 1862, chap. 195, which authorized the
President to employ as many persons of African descent as he
might deem necessary and proper for the suppression of the
Rebellion, and for that purpose to organize and use them in
such manner as he might judge best for the public welfare.”