Volume 15 — RECONSTRUCTION ONCE MORE. PUBLIC SCHOOLS; OFFICERS AND SENATORS WITHOUT DISTINCTION OF COLOR.

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.

Mr. Sumner offered the following:—

“And be it further enacted, That there shall be no elections of State or National officers under any new constitution until after the same has been approved by Congress.”

This was objected to by Mr. Trumbull, as out of order under the rule, and so decided by the Senate.

Mr. Sumner then moved the following amendment:—

“And be it further enacted, That in each of these States all judgments and decrees of court which have not been voluntarily executed, and which have been rendered subsequently to the date of the Ordinance of Secession in each State respectively, shall be subject to appeal to the highest court in the State, organized after the State shall be admitted again by Congress into the Union; but no such appeal shall be allowed, unless the motion for the same shall have been lodged in the court, or clerk’s office of the court, in which the decree was rendered, within sixty days after the governor appointed under this Act shall have entered upon the discharge of the duties of his office, and for all judgments rendered subsequently to such date, within sixty days after the same have been rendered.”

Mr. Trumbull objected to it as out of order under the rule. Mr. Sumner said:—

My attention has often been called to the necessity of such a provision, by gentlemen from the South, and especially by lawyers there. They tell me that without some such provision the grossest injustice will be done. Throughout the whole Rebellion the local tribunals were sitting to administer justice; yet it was not justice, but injustice, that they administered. Under their decrees private rights were overthrown; and I doubt not that my friend from Illinois has recently read the account of an extensive injustice in Texas, where private property to an almost incalculable amount was taken away by these unjust decrees.

Should there not be a remedy? I think all will say that there should be. This is, if I may so express myself, the last time of asking. If those States are once organized as States and received into the Union, I know not if we have the power of applying a remedy. That we have now I am sure. I cannot doubt our constitutional power at this moment to set aside all those decrees, so far as they have not been voluntarily submitted to, or subject them, according to the provision of my amendment, to appeal in a higher tribunal after the reorganization of justice in these States. Is not the provision reasonable? Is it not to serve the ends of justice? If you do not accept it now, can you accept it at any time hereafter? And if you do not accept it now or hereafter, will not these parties go without remedy? On that question I do not pronounce dogmatically. I do not mean to say that they will be absolutely without remedy; but I do not easily see their remedy. I see difficulties in the way, while at this moment I see no difficulties in the way.

Then I encounter the objection that this is not in order. Why not? Is it not to carry out your Reconstruction Bill, to smooth difficulties, to remove wrong, to establish justice? It may not have been specially foreshadowed in the original bill or the supplemental bill; but I submit that it is entirely germane to both those bills. Besides, it is commended by an intrinsic justice, which should make it acceptable at any time.

The amendment was decided to be out of order.

Mr. Sumner then offered this amendment:—

“And be it further enacted, 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.”

There was no objection of order to this amendment, and it was agreed to without a division.

After further amendment the bill was ingrafted upon a House bill on the same subject and passed,—Yeas 32, Nays 6. Being referred to a Conference Committee, the report of the Committee was adopted: in the Senate, Yeas 31, Nays 6,—and in the House, Yeas 111, Nays 23.

July 13th, on the report of the Conference Committee in the Senate, Mr. Sumner said:—

And now, as we are about to dismiss this subject for the present session, I cannot forbear again expressing regret that the measure has not been made more complete,—in one word, more radical. This is the third bill of Reconstruction on which we have acted. We ought never to have acted on more than one; and had the Senate been sufficiently radical, had it founded its bill on clear, definite principle, there would have been no occasion for more than one. Just so far as we have failed to found ourselves on clear, definite principle, our bills have failed; and should there be failure under the present bill, it will be precisely on that account.

I shall never cease to lament that Congress did not at once assume jurisdiction of the whole region, and in the exercise of its plenary authority establish civil governments, supplying ample military support. Such a Reconstruction would have been founded on principles to defy the criticism of history. I trust that what we have done will be judged leniently hereafter. I know, however, that it is not above criticism. Of course, such Reconstruction would have removed out of sight all existing State governments and municipal governments set up by Rebel authority, or by the President in the exercise of usurped power. In my opinion, it is not too late to do this last work. Even if you decline to establish civil governments, I think, that, under the Military Bill, you should go forward and brush away all the existing governments there. From information, private and public, out of every one of the Rebel States, I am led to this conclusion. Those governments, whether State or municipal, are just so many engines of Rebel influence. They stand in the way of Reconstruction. They prevent the beneficent operation of your work. But the Senate has declined that path. I regret it, and now at this last moment record my regret.

I am sorry to add that the Senate has declined to require of these people conditions which I think essential to republican government. One of these is a system of public education. I can never cease to mourn the failure in this regard. Here is a paper from New Orleans, which has come to me since I have been at my desk to-day, edited by colored persons,—and an excellent paper it is,—“The New Orleans Tribune” of July 9, 1867, which contains an article entitled “Public Schools,” from which I will read a brief sentence:—

“Who will open the public schools to all children? We are of opinion that it will only be done by a colored mayor with colored members of the city council. This opinion is justified by facts.”

The article then sets forth the impediments in the way of public schools. And yet, in the face of such intelligence from the Rebel States, we decline to require a system of public education as an essential element in these new governments. I lament it; and I desire again to record this sentiment.

I fear also, Mr. President, that in the operation of this bill you will find that we have not been sufficiently explicit in the exclusion of Rebel influence. I have made my best effort to remove doubts and to enlarge the exclusion. But, in saying this, I desire to add, that, in my judgment, all exclusions belong to what I call the transition period. When Reconstruction is accomplished, the time will come for us to open the gates,—but not till then.

July 19th, the bill was vetoed by the President, and on the same day it was re-passed by a two-thirds vote of both Houses: in the Senate, Yeas 30, Nays 6,—and in the House, Yeas 109, Nays 25; so that it became a law.[234]