SPEECHES IN THE SENATE, ON THE THIRD RECONSTRUCTION BILL, JULY 11 AND
13, 1867.
July 8th, Mr. Trumbull, of Illinois, from the Committee on the
Judiciary, reported a “Bill to give effect to an Act entitled
‘An Act to provide for the more efficient Government of the
Rebel States,’ passed March 2, 1867.” This was the third
Reconstruction measure of the present year. It was debated for
several days. July 11th, Mr. Sumner said:--
MR. PRESIDENT,--Before offering amendments which I have on my table, I
desire to call attention briefly to the character of this bill.
The subject of Reconstruction has been before Congress for many years.
It first appeared in the Senate as a proposition of my own, as long ago
as February, 1862. From that time it has been constantly present. If at
any moment Congress has erred, it has been from inaction, and not from
action. And now the same danger is imminent.
Mark, if you please, the stages. At every step there has been battle.
Nothing could be proposed which was not opposed, often with feeling,
sometimes even with animosity. I do not speak now of the other side,
but of friends on this side of the Chamber, some of whom have fought
every measure.
To my mind nothing has been plainer from the beginning than the
jurisdiction of Congress. Obviously it was not for the Executive, but
for the Legislative. The President was commander-in-chief of the army;
that function was his. But he could not make States or constitutions,
or determine how States or constitutions should be made. All that
he did to this end was gross usurpation, aggravated by motives and
consequences.
Unquestionably the jurisdiction was in Congress; and I shall never
cease to lament that it was not asserted promptly and courageously. Our
delay has postponed the establishment of peace and reconciliation. Much
as the President has erred, Congress has not been without error also.
The President erred from assuming powers which did not belong to him;
Congress erred from declining to assume powers which belonged to it.
The sins of the President were of commission; the sins of Congress were
of omission. The President did the things he ought not to have done;
Congress left undone the things it ought to have done.
In the exercise of unquestioned jurisdiction, Congress should at once
have provided civil governments, through whose influence and agency
the Rebel States might have been shaped into republican forms. Such a
proceeding would have been more constitutional and more according to
the genius of our institutions than that which was adopted. It is hard
to reconcile a military government, or any government born of military
power, with the true idea of a republic. Tardily, too tardily,
Congress entered upon the work; and then began hesitations of another
character. Even when assuming jurisdiction, it halted.
For a long time it refused to confer the suffrage upon the colored
race. At last this was done.
Then it refused to exclude Rebels from the work of Reconstruction;
and when at last it attempted something, its rule of exclusion was so
little certain that an ingenious lawyer by a written opinion has set it
aside.
There have been bills with riders, and after the passage of these bills
there has been a supplementary bill with riders. And still further
legislation is needed.
Surely these successive failures have their lesson. They admonish us
now to make thorough work.
If you will not establish civil governments, with the military power
simply as a support, then at least do not hesitate to vacate the
existing governments, which are so many roots and centres of sedition.
All the officers of these governments, from highest to lowest, exercise
an influence adverse to a just reconstruction. They are in the way of
peace and reconciliation. They increase the essential difficulties of
forming new governments. Through their influence a hostile spirit is
engendered and sustained. Such an obstacle should be removed.
At the same time be careful that Rebel influence is not allowed to
prevail in the new governments. Of course this can be only by excluding
Rebels during this transition period, until the new governments are
formed. The rule of exclusion may be properly changed, when loyal
and republican governments are established. Attention has already
been called to cases deserving notice: as, for instance, naturalized
citizens who have taken an oath to support the National Constitution
and afterward became Rebels, but yet are not excluded; cadets at the
Military and Naval Academies; persons who have contributed to Rebel
loans or invested money in Rebel bonds or securities; contractors who
furnished Rebel supplies; also persons who, as authors, publishers,
editors, contributors, or as speakers or preachers, encouraged the
secession of any State or the waging of war against the United States.
Considering what we hear with regard to the boards of
registration,--that in some States they are of doubtful principles,
that in others colored fellow-citizens are excluded, so that a large
proportion of the electors have no representation in the boards,--it
seems to me that we ought by positive words to provide that the boards
shall be constituted without distinction of color. Colored persons may
be chosen to office, and I cannot doubt that we shall soon welcome
colored Senators and Representatives to the National Capitol. Meanwhile
the boards of registration must be kept as open as these Chambers; and
no commanding general can be allowed to set up a rule adverse to the
rights of a race.
A system of public schools without distinction of color should be
required. This important duty must not be left to caprice, or to the
triumph of truth through local influence. Its performance should be
enforced as essential to republican government. We have required
suffrage for all; we should require also education for all.
Provision should be made to invalidate the decrees of court in the
Rebel States which have not been voluntarily executed. This is
necessary for the protection of loyal persons. Look, for instance, at
Texas, where, according to recent report, immense sums have been taken
by unjust decrees. If the remedy is not applied now, it is doubtful if
the opportunity will not be lost forever.
In submitting a constitution to the people, it seems to me advisable
that it should not be complicated by any election of officers, State
or National, but that all elections should be postponed until after
approval of the constitution by Congress.
There should also be penalties for the violation of the Act. The pardon
of the President must not be allowed to confer a title to vote; and
since officials have shown such a disposition to impair the efficacy
of an Act by interpretation, reducing it to a mere shadow, we ought to
provide that it shall be interpreted liberally.
In making these propositions, I ask that you should not hesitate simply
because they may not be embraced within the terms of the original Acts.
I would do now all that we can to make this measure of Reconstruction
just and beneficent. I know no other rule worthy of the Senate or
adequate to the occasion.
In carrying out these ideas, I propose to offer several amendments,
which I will send to the Chair in order. I begin by an amendment as an
additional section:--
“_And be it further enacted_, That every constitution in
the Rebel States shall require the Legislature to establish
and sustain a system of public schools open to all, without
distinction of race or color.”
* * * * *
Mr. Trumbull objected to the amendment as not in order under
the rule limiting the business of the session. The question of
order was submitted to the Senate, and the amendment was ruled
out of order,--Yeas 11, Nays 22.
Mr. Sumner then moved the following amendment, which he was
sure must be in order, even under the stringent rule of the
Senate:--
“_Provided_, That no person shall be disqualified as member
of any board of registration by reason of race or color.”
Mr. Conkling, of New York, inquired “whether there is any doubt
upon the law, as it stands now, that men otherwise qualified
are eligible, notwithstanding they are black.” Mr. Sumner
replied:--
I am accustomed to that class of questions on this floor. When, some
two or three years ago, I felt it my duty to move, on one bill after
another, that there should be no exclusion from the street cars on
account of color, I was encountered by learned lawyers, and by none
more constantly than my friend opposite, the Senator from Maryland [Mr.
JOHNSON], with precisely the suggestion which my friend from New York
now makes: that in point of law it was unnecessary; that under the
actual law, which was none other than the Common Law, there could be
no exclusion on account of color: and yet, in the face of that Common
Law, Senators all know that there was an exclusion from the cars on
account of color, and the grossest outrages committed. Colored persons
were precipitated into the streets, into the mud, under a pelting rain,
and they could obtain no redress; and when I asked for redress, grave
Senators said, “Let them apply to the courts”; and it was suggested
that perhaps I had better volunteer as counsel in court rather than
appear in this Chamber. Now the question of my friend from New York
is precisely in the same spirit. I cannot doubt, that, under the
existing Reconstruction law, there can be no exclusion on account of
color,--that nobody is for that reason disqualified from the exercise
of any function. What is there to prevent a colored person from being
a Senator of the United States? and who can doubt that within a very
few months it will be our business to welcome a colored Senator on this
floor? I cannot doubt it.
MR. JOHNSON [of Maryland]. How many?
MR. SUMNER. That I do not know. But I ask you who look to the colored
vote in these States as the means of security and peace, through
which you are to find protection for this Republic, and for white
fellow-citizens there as well as for the colored themselves, to see
that this stigma is not put upon them by any commanding general
pretending to act by virtue of our legislation. It is not enough
to tell me, that, under the actual law, colored persons may be
designated. To that I reply, in the State of Virginia they have not
been designated; and I wish now that Congress should declare that any
exclusion on account of color is without the sanction of law.
And that brings me to the inquiry of my friend from Illinois, as to the
penalty, I think, or as to the extent of the remedy.
MR. TRUMBULL. The question was, whether your proviso afforded
any remedy.
MR. SUMNER. That I will answer. My proviso affords precisely the same
remedy that it afforded on the Railroad Bills. It is in nearly the same
terms. I followed those terms, because I know my friend likes good
precedents, and we have enough of those on the question of the street
cars. The Senate adopted that proviso at least half a dozen times.
There it is, without penalty, and yet it has been most efficacious,
not only in these streets, but as an example throughout the country.
Adopt this proviso now, and I am sure it will be most efficacious
with our generals even without any penalty. Should they exclude
fellow-citizens on account of color, it will be a violation of law and
a failure of duty; there can be no votes of thanks for them,--“no hope
of golden spurs to-day.”
Mr. Conkling replied: “I do not wish, for one, to vote for an
amendment which I think carries nothing with it, but which
simply incumbers the bill with unnecessary, and I might say
verbose provisos.”
The amendment was rejected by a tie-vote,--Yeas 18, Nays 18.
At the next stage of the bill, Mr. Sumner renewed his
amendment. In reply to Mr. Edmunds, of Vermont, Mr. Sumner
said:--
I will not spend time. There has been an abuse which has come to our
knowledge. We know that in whole States colored persons are excluded
from the boards, and this justifies our intervention.
On this second trial the amendment was adopted,--Yeas 21, Nays 8.