Volume 17 — ADMISSION OF VIRGINIA TO REPRESENTATION IN CONGRESS.

Speeches in the Senate, January 10, 11, 12, 13, 14, 19, 21, 1870.

January 10, 1870, the Senate proceeded to the consideration of a Joint Resolution reported from the Committee on the Judiciary, declaring, “That the State of Virginia is entitled to representation in the Congress of the United States,”—she having, as was said, “complied in all respects with the Reconstruction Acts.”

Mr. Sumner, apprehending that this compliance had been merely formal, and that the Rebel spirit was still the dominant influence in Virginia, urged postponement of the measure for a few days, to afford opportunity for information, remarking:—

I am assured that there are resolutions of public meetings in different parts of Virginia, that there are papers, letters, communications, all tending to throw light on the actual condition of things in that State, which in the course of a short time, of a few days at furthest, will be presented to the Senate. Under these circumstances, I submit most respectfully, and without preferring any request with reference to myself, that the measure should be allowed to go over for a few days, perhaps for a week, till Monday next, and that it then should be taken up and proceeded with to the end. My object is, that, when the Senate acts on this important measure, it may act wisely, with adequate knowledge, and so that hereafter it may have no occasion to regret its conclusion. How many are there now, Sir, who, on the information in our papers to-day, would not recall the vote by which Tennessee was declared entitled to her place as a State! You, Sir, have read that report signed by the Representatives of Tennessee, and by her honored Senator here on my right [Mr. Brownlow]. From that you will see the condition of things in that State at this moment. Is there not a lesson, Sir, in that condition of things? Does it not teach us to be cautious before we commit this great State of Virginia back to the hands of the people that have swayed it in war against the National Government? Sir, this is a great responsibility. I am anxious that the Senate should exercise it only after adequate knowledge and inquiry. I do not believe that they have the means at this moment of coming to a proper determination.

After extended debate, Mr. Sumner’s proposition finally took shape in a motion by his colleague [Mr. Wilson] to postpone the further consideration of the resolution for three days. In response to Mr. Stewart, of Nevada, who had charge of the measure, and who insisted that “no one had been able to find a reason worthy of consideration why they should not proceed and act affirmatively at once,” Mr. Sumner said:—

Mr. President,—It seems to me that this discussion to-day tends irresistibly to one conclusion,—that the Senate is not now prepared to act. I do not say that it will not be prepared in one, two, or three days, or in a week; but it is not now prepared to act. Not a Senator has spoken, either on one side or the other, who has not made points of law, some of them presented for the first time in this Chamber. Hardly a Senator has spoken who has not presented questions of fact. How are we to determine these? Time is essential. We must be able to look into the papers, to examine the evidence, and, if my friend will pardon me, to examine also the law, to see whether the conclusion on which he stands so firmly is one on which the Senate can plant itself forevermore. The Senator must bear in mind that what we do now with reference to Virginia we do permanently and irrepealably, and that we affect the interests of that great State, and I submit also the safety of a large portion of its population. Sir, I am not willing to go forward in haste and in ignorance to deal with so great a question. Let us consider it, let us approach it carefully, and give to it something of that attention which the grandeur of the interest involved requires.

I think, therefore, the suggestion of my colleague, that this matter be postponed for several days, is proper; it is only according to the ordinary course of business of the Senate, and it is sustained by manifest reason in this particular case. I should prefer that the postponement were till next Monday, and I will be precise in assigning my reason. It is nothing personal to myself. My friend from New York said, or intimated, that, if the Senator from Massachusetts wished to be accommodated, he would be ready, of course, to consent to gratify him. Now I would not have it placed on that ground; I present it as a question of business; and I, as a Senator interested in the decision of this business, wish to have time to peruse these papers and to obtain that knowledge which will enable me to decide ultimately on the case. I have not now the knowledge that I desire with reference to the actual condition of things in Virginia. I am assured by those in whom I place confidence that in the course of a few days that evidence will be forthcoming. Will not the Senate receive it? Will it press hastily, heedlessly, recklessly, to a conclusion, which, when reached, it may hereafter find occasion to regret? Let us, Sir, so act that we shall have hereafter no regrets; let us so act that the people of Virginia hereafter may be safe, and that they may express their gratitude to the Congress of the United States which has helped to protect them.

The Senator from Nevada said, that, if we oppose the present bill, we sacrifice the Legislature of the State. I suggest to that Senator, that, if we do not oppose this bill, we sacrifice the people of the State. What, Sir, is a Legislature chosen as this recent Legislature has been chosen in Virginia, composed of recent Rebels still filled and seething with that old Rebel fire,—what is that Legislature in the scale, compared with the safety of that great people? Sir, I put in one scale the welfare of the State of Virginia, the future security of its large population, historic and memorable in our annals, and in the other scale I put a Legislature composed of recent Rebels. To save that Legislature the Senator from Nevada presses forward to sacrifice the people of the State.

The motion to postpone was rejected,—Yeas 25, Nays 26,—and the debate on the Joint Resolution proceeded: the first question being on an amendment offered by Mr. Drake, of Missouri, providing that the passage by the Legislature of Virginia, at any time thereafter, of any act or resolution rescinding or annulling its ratification of the Fifteenth Article of Amendment to the Constitution of the United States should operate to exclude the State from representation in Congress and remand it to its former provisional government.

January 11th, Mr. Sumner, following Mr. Morton, of Indiana, in support of Mr. Drake’s proposed amendment, and, with him, maintaining the continued power of Congress over a State after reconstruction, said:—

Mr. President,—I have but one word to say, and it is one of gratitude to the Senator from Indiana for the complete adhesion he now makes to a principle of Constitutional Law which I have no doubt is unassailable. The Congress of the United States will have forevermore the power to protect Reconstruction. No one of these States, by anything that it may do hereafter, can escape from that far-reaching power. I call it far-reaching: it will reach just as far as the endeavor to counteract it; it is coextensive with the Constitution itself. I have no doubt of it, and I am delighted that the distinguished Senator from Indiana has given to it the support of his authority.

While I feel so grateful to my friend from Indiana for what he has said on this point, he will allow me to express my dissent from another proposition of his. He says that we are now bound under our Reconstruction Acts to admit Virginia. I deny it.

Mr. Morton. Will the Senator allow me one moment?

Mr. Sumner. Certainly.

Mr. Morton. I do not pretend that there is any clause in the Reconstruction Acts which in express words requires us to admit Virginia upon the compliance with certain conditions; but what I mean to say is, that there went forth with those laws an understanding to the country, as clear and distinct as if it had been written in the statute, that upon a full and honorable compliance with them those States should be admitted. I will ask my friend from Massachusetts if that understanding did not exist?

Mr. Sumner. My answer to the Senator is found in the last section of the Act authorizing the submission, of the Constitutions of these States, as follows:—

“That the proceedings in any of said States shall not be deemed final, or operate as a complete restoration thereof, until their action respectively shall be approved by Congress.”[191]

What is the meaning of that? The whole case is brought before Congress for consideration. We are to look into it, and consider the circumstances under which these elections have taken place, and see whether we can justly give to them our approval. Is that vain language? Was it not introduced for a purpose? Was it merely for show? Was it for deception? Was it a cheat? No, Sir; it was there with a view to a practical result, to meet precisely the case now before the Senate,—that is, a seeming compliance with the requirements of our Reconstruction policy, but a failure in substance.

Now I will read what was in the bill of March 2, 1867, entitled “An Act to provide for the more efficient government of the Rebel States.”[192] It declares in the preamble that “it is necessary that peace and good order should be enforced in said States,”—strong language that!—“until loyal and republican State governments can be legally established.” That is what Congress is to require. To that end Congress must look into the circumstances of the case; it must consider what the condition of the people there is,—whether this new government is loyal, whether it is in the hands of loyal people. To that duty Congress is summoned by its very legislation; the duty is laid down in advance.

And so you may go through all these Reconstruction statutes, and you will find that under all of them the whole subject is brought back ultimately to the discretion of Congress. This whole subject now is in the discretion of Congress. I trust that Congress will exercise it so that life and liberty and property shall be safe.

January 12th, Mr. Sumner presented a memorial from citizens of Virginia then in Washington, claiming to represent the loyal people of that State, in which they declare themselves “anxious for the prompt admission of the State to representation upon such terms that a loyal civil government may be maintained and the rights of loyal men secured; which,” they say, “we feel assured cannot be the case, if any condition less than the application of the test oath to the Legislature shall be imposed by the Congress.” As the grounds of this conviction, they point, among other matters, to the continued manifestations of the Rebel spirit in the community,—the ascendency of the Rebel party in the recently elected Legislature, gained, as they insist, “by intimidation, fraud, violence, and prevention of free speech,”—and particularly to the evidences of disloyalty, and of meditated bad faith in regard to the new State Constitution, exhibited in speeches and other utterances of the Governor and Members of Assembly,—utterances, on the part of some of the latter, accompanied with gross contumely of a distinguished Member of Congress from Massachusetts: all of which, the memorialists say, “if a hearing can now be had, and which we respectfully request may be granted, we pledge ourselves to show by sworn witnesses of irreproachable character, residing in Virginia.”

The memorial was received with denunciation, as “disrespectful,” “unjust and abusive,” “merely the wailing of those who were defeated,” “originating with the view of keeping out Virginia,” “trifling with our own plighted faith and honor,”—and its presentation criticized with corresponding severity,—the Senators from Nevada leading the assault. Mr. Sumner responded:—

Mr. President,—Has it come to this, that the loyal people of Virginia cannot be heard on this floor? that a petition presented by a member of this body, proceeding from them, is to have first the denunciation of the Senator from Nevada on my right [Mr. Nye], and then the denunciation of the Senator from Nevada on my left [Mr. Stewart]? Why are the loyal people of Virginia to be thus exposed? What have they done? Sir, in what respect is that petition open to exception? The Senator says it is disrespectful. To whom? To this body? To the other Chamber? To the President of the United States? To any branch of this Government? Not in the least. It is disrespectful, according to the Senator from Nevada, to the present Governor of Virginia, and he undertakes to state his case.

Now, Sir, I have nothing to say of the present Governor of Virginia. I am told that he is on this floor; but I have not the honor of his acquaintance, and I know very little about him. I make no allegation, no suggestion, with regard to his former course. He may have been as sound always as the Senator from Nevada himself; but the petitioners from Virginia say the contrary. They are so circumstanced as to know more about him than the Senator from Nevada, or than myself; and they are so circumstanced as to have a great stake in his future conduct. Thus circumstanced, they send their respectful petition to this Chamber, asking a hearing; and what is the answer? Denunciation from one Senator of Nevada echoed by denunciation from the other Senator of Nevada. The voice of Nevada on this occasion is united, it is one, to denounce a loyal petition from Virginia.

Was I not right in presenting the petition? Shall these people be unheard? The Committee which the Senator represents, led by the Senator from Illinois [Mr. Trumbull], and now led by himself, are pressing this measure to a precipitate conclusion. These petitioners, having this great interest in the result, ask for a hearing. Several days ago I presumed, respectfully, deferentially, to ask that this measure should be postponed a few days in order to give an opportunity for such a hearing. I was refused. The Senator from Nevada would not consent, and with the assistance of Democrats he crowds this measure forward. Sir, it is natural, allow me to say, that one acting in this new conjunction should trifle with the right of petition. When one begins to act with such allies, I can well imagine that he loses something of his original devotion to the great fundamental principles of our Government.

Something was said by my friend, the other Senator from Nevada [Mr. Nye], on another passage of the petition, referring to a distinguished colleague of my own. Why, Sir, that very passage furnishes testimony against the cause represented by the Senator from Nevada. It shows how little to be trusted are these men. It shows the game of treachery which they have undertaken. It shows how they are intending to press this measure through Congress so as to obtain for Virginia the independence of a State. Are you ready for that conclusion? Are you ready to part with this great control which yet remains to Congress, through which security may be maintained for the rights of all?

Something has been said by different Senators of plighted faith. Sir, there is a faith that is plighted, and by that I will stand, God willing, to the end. It is nothing less than this: to secure the rights of all, without distinction of color, in the State of Virginia. When I can secure those rights, when I can see that they are firmly established beyond the reach of fraud, beyond the violence of opposition, then I am willing that that State shall again assume its independent position. But until then I say, Wait! In the name of Justice, in the name of Liberty, for the sake of Human Rights, I entreat the Senate to wait.

January 13th, in response to criticisms by Mr. Trumbull, of Illinois, Mr. Sumner said:—

It was in pursuance of the effort I made on the first day of this week that yesterday I presented a memorial from loyal citizens of Virginia here in Washington. I presented it as a memorial, and asked to have it read. The Senator from Nevada [Mr. Stewart], in the remarks which he so kindly made with regard to me later in the day, said that in asking to have it read I adopted it. I can pardon that remark to the Senator from Nevada, who is less experienced in this Chamber than the Senator from Illinois; but the latter Senator has repeated substantially the same remark. Sir, this is a new position, that in presenting a memorial one adopts it, especially when he asks to have it read. Why, Sir, what is the right of petition? Is it reduced to this, that no petition can be presented unless the Senator approves it, or that no petition can be read at the request of a Senator unless he approves it? Such a limitation on the right of petition would go far to cut it down to its unhappy condition in those pro-slavery days which some of us remember. Sir, I was right in presenting the memorial, and right in asking to have it read.

And now what is its character? It sets forth a condition of things in Virginia which might well make the Senate pause. I think no candid person can have listened to that memorial without seeing that it contains statements with regard to which the Senate ought to be instructed before it proceeds to a vote. Do you consider, Sir, that when you install this Legislature you consign the people of Virginia to its power? Do you consider that to this body belongs the choice of judges? The whole judiciary of the State is to be organized by it. This may be done in the interests of Freedom and Humanity, or in the ancient interests of the Rebellion. I am anxious that this judiciary should be pure and devoted to Human Rights. But if the policy is pursued which finds such strenuous support, especially from the Senator from Illinois, farewell then to such a judiciary!—that judiciary which is often called the Palladium of the Commonwealth, through which justice is secured, rights protected, and all men are made safe. Instead of that, you will have a judiciary true only to those who have lately been in rebellion. You will have a judiciary that will set its face like flint against those loyalists that find so little favor with the Senator from Illinois. You will have a judiciary that will follow out the spirit which the Senator has shown to-day, and do little else than pursue vindictively these loyalists.

There has been allusion to the Governor of Virginia. The Senator says I have made an assault upon him. Oh, no! How have I assaulted him? I said simply that I understood he was on the floor, as the member-elect from Richmond was on the floor. That is all that I said. But now there is something with regard to this Governor to which I should like to have an answer: possibly the Senator may be able to answer it. I have here a speech purporting to have been made by him at an agricultural fair in the southwest part of Virginia after the election, from which, with your permission, but, Sir, without adopting it at all or making myself in any way responsible for its contents, I will read.

Mr. Walker, addressing the audience, says:—

“A little talking sometimes does a great deal of good; and that expended in the late canvass I heard in a voice of thunder on the 6th of July, when the people of your noble old Commonwealth declared themselves against vandalism, fraud, and treachery. Virginia has freed herself from the tyranny of a horde of greedy cormorants and unprincipled carpet-baggers, who came to sap her very vitals. I have no other feeling but that of pity for the opposition party, who were deceived and led by adventurers having only their own personal aggrandizement and aims in view, with neither interest, character, nor self-respect at stake; for this a majority of them never had.”

Now, Sir, what are the operative words of this remarkable speech? That this very Governor Walker, who finds a vindicator—I may say, adopting a term of the early law, a compurgator—in the Senator from Illinois, announces that by this recent election Virginia has “declared against vandalism, fraud, and treachery,—has freed herself from the tyranny of a horde of greedy cormorants and unprincipled carpet-baggers, who came to sap her very vitals.”

Such is the language by which this Governor characterizes loyal people from the North, from the West, from all parts of the country, who since the overthrow of the Rebellion have gone there with their household gods, with their energies, with their character, with their means, to contribute to the resources of the State! Sir, what does all this suggest? To my mind unhappy days in the future; to my mind anything but justice for the devoted loyal people and Unionists of that State. And now, Sir, while I make this plea for them, again let me say I present no exclusive claim to represent them; I speak now only because others do not speak; and as in other days when I encountered the opposition of the Senator from Illinois I was often in a small minority, sometimes almost alone, I may be so now; but I have a complete conviction that the course I am now taking will be justified by the future. Sad enough, if it be so! I hope it may be otherwise.

Mr. Drake’s amendment was rejected. Another, thereupon offered by Mr. Edmunds, of Vermont, and as subsequently amended, requiring members of the Legislature before taking or resuming their seats, and State officers before entering upon office, to make oath to past loyalty or removal of disabilities, was adopted. Other provisions, against exclusion from civil rights on account of race or color, either by future amendments of the existing State Constitution or by rescinding the State’s ratification of any amendment to the National Constitution, were moved as “fundamental conditions” of admission. In an argument, January 14th, maintaining the validity of such conditions, the pending question being on a provision of this character offered by Mr. Drake, Mr. Sumner spoke as follows:—

Mr. President,—Something has been said of the term by which this proposition should be designated. One will not call it “compact,” finding in this term much danger, but at the same time he refuses to the unhappy people in Virginia now looking to us for protection such safeguard as may be found in this proposition. For myself, Sir, I make no question of terms. Call it one thing or another, it is the same, for it has in it protection. Call it a compact, I accept it. Call it a law, I accept it. Call it a condition, I accept it. It is all three,—condition, law, compact,—and, as all three, binding. The old law-books speak of a triple cord. Here you have it.

My friend from Wisconsin [Mr. Carpenter] falls into another mistake,—he will pardon me, if I suggest it,—which I notice with regret. He exalts the technical State above the real State. He knows well what is the technical State, which is found in form, in technicality, in privilege, if you please,—for he has made himself to-night the advocate of privilege. To my mind the State is the people, and its highest office is their just safeguard; and when it is declared that a State hereafter shall not take away the right of any of its people, here is no infringement of anything that belongs to a State. I entreat my friend to bear the distinction in mind. A State can have no right or privilege to do wrong; nor can the denial of this pretension disparage the State, or in any way impair its complete equality with other States. The States have no power except to do justice. Any power beyond this is contrary to the Harmonies of the Universe.

Since the Senator spoke, I sent into the other room for the Declaration of Independence, in order to read a sentence which is beyond question the touchstone of our institutions, to which all the powers of a State must be brought. Here it is:—

“We, therefore, the representatives of the United States of America in general Congress assembled, appealing to the Supreme Judge of the World for the rectitude of our intentions, do, in the name and by the authority of the good people of these Colonies, solemnly publish and declare that these United Colonies are, and of right ought to be, free and independent States.”

And then it proceeds to say that—

“They have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.”

Here is the claim, with its limitation,—the great claim, and its great limitation. The claim was Independence; the limitation was Justice.

“Which independent States may of right do”: nothing else, nothing which a State may not of right do. Now, Sir, bear in mind, do not forget, that there is not one thing prohibited by these fundamental conditions that a State may of right do. Therefore, Sir, in the name of Right, do I insist that it is binding upon the State. It is binding, even if not there; and it is binding, being there. Its insertion is like notice or proclamation of the perpetual obligation.

Mr. Carpenter. Will the Senator allow me to ask him a question?

Mr. Sumner. Certainly.

Mr. Carpenter. In speaking of a State of this Union, does not the Senator understand the term to apply to the corporation, so to speak,—the Government of the State?

Mr. Sumner. I do not.

Mr. Carpenter. I ask the Senator, then, in what way the State of Virginia got out of the Union, except by destroying the State Government which was a member of the Union? Her territory was always in; her people were always subject to the laws of the United States.

Mr. Sumner. There I agree with the Senator. Her people were always in; her territory was always in.

Mr. Carpenter. But her Government was not.

Mr. Sumner. Not out. Her Government was destroyed.

Mr. Carpenter. Yes, and thereby she ceased to be a member of the Union.

Mr. Sumner. Rather than say that she had ceased to be a member of the Union, I would say that her Government was destroyed. She never was able to take one foot of her soil or one of her people beyond the jurisdiction of the Nation. The people constitute the State in the just sense, and it has been always our duty to protect them, and this I now propose to do.

I return to the point, that what it is proposed to prohibit by these fundamental conditions no State can of right do. Therefore to require that Virginia shall not do these things is no infringement of anything that belongs to a State, for a State can have no such privilege. My friend made himself, I said, the advocate of privilege. He complained, that, if we imposed these conditions, we should impair the “privileges” of a State. No such thing. The State can have no such thing. The Senator would not curtail a State of its fair proportions. When will it be apparent that the license to do wrong is only a barbarism?

Then, again, the Senator says, if this is already forbidden, why repeat the prohibition in the form of a new condition? Why, Sir, my friend is too well read in the history of Liberty and of its struggles to make that inquiry seriously. Does he not remember how in English history Liberty has been won by just such repetitions? It began with Magna Charta, followed shortly afterward by a repetition; then again, in the time of Charles the First, by another repetition; and then again, at the Revolution of 1688, by still another repetition. But did anybody at either of those great epochs say that the repetition was needless, because all contained in Magna Charta? True, it was all there; but the repetition was needed in order to press it home upon the knowledge and the conscience of the people.

Mr. Carpenter. Will the Senator allow me?

Mr. Sumner. Certainly.

Mr. Carpenter. Is not the great distinction in this fact, that England has no written Constitution,—that the Great Charter is a mere Act of Parliament, which may be repealed to-morrow? With us we have a written Constitution; and when its terms and provisions are once clear, do we not weaken, do we not show our lack of faith, that is, our lack of confidence in the value of the provisions, by reënacting it in the form of a statute?

Mr. Sumner. I must say I cannot follow my friend to that conclusion, nor do I see the difference he makes between Magna Charta in England and our Constitution. I believe they are very much alike. And I believe that the time is at hand when another document of our history will stand side by side with the Constitution, and enjoy with it coëqual authority, as it has more than the renown of the Constitution: I mean the Declaration of Independence. This is the first Constitution of our history. It is our first Magna Charta. Nor can any State depart from it; nor can this Nation depart from it. To all the promises and the pledges of that great Declaration are we all pledged, whether as Nation or as State. The Nation, when it bends before them, exalts itself; and when it requires their performance of a State, again exalts itself, and exalts the State also.

So I see it. Full well, Sir, I know that in other days, when Slavery prevailed in this Chamber, there was a different rule of interpretation; but I had thought that our war had changed all that. Sir, to my mind the greatest victory in that terrible conflict was not at Appomattox: oh, no, by no means! Nor was it in the triumphal march of Sherman: oh, no, by no means! This greatest victory was the establishment of a new rule of interpretation by which the institutions of our country are dedicated forevermore to Human Rights, and the Declaration of Independence is made a living letter instead of a promise. Clearly, unquestionably, beyond all doubt, that, Sir, was the greatest victory of our war,—greater than any found on any field of blood: as a victory of ideas is above any victory of the sword; as the establishment of Human Rights is the end and consummation of government, without which government is hard to bear, if not a sham.

January 17th, the Joint Resolution as amended was laid on the table, and the Senate took up the House bill, which admitted the State to representation clear of all conditions; immediately whereupon Mr. Edmunds moved the proviso concerning the oath to be taken by members of the Legislature and State officers which had been attached to the former measure.

The renewal of this proviso gave rise to renewed and protracted debate, in the course of which, Mr. Sumner, in speeches on the 18th and 19th, in reply to an elaborate defence of Governor Walker by Mr. Stewart against the charges of disloyalty and meditated bad faith, adduced copious extracts from speeches of the Governor and others, together with numerous letters from various parts of the State, all serving to show, as he conceived, that the late election was “one huge, colossal fraud.”

Meanwhile Mr. Sumner’s colleague, Mr. Wilson, with a view to “a bill in which all could unite,” moved the reference of the pending bill to the Committee on the Judiciary, “for the purpose of having the whole question thoroughly examined,”—a motion which on the part of the Committee itself was strenuously opposed.

Upon this posture of the case, January 19th, Mr. Morton, of Indiana, remarked, that “there seemed to be an obstinate determination that Virginia must come in according to the bill reported by the Committee or not come in at all,”—that “the Senator from Nevada [Mr. Stewart], with all his zeal and his good intentions, was standing as substantially in the way of the admission of Virginia as the Senator from Massachusetts [Mr. Sumner]”; and turning to the latter, he said: “It seems that the distinguished Senator from Massachusetts is unwilling that Virginia shall come in now upon any terms; and the Senator has developed more clearly this morning than he has done before what his desire is. It is that there shall be a new election in Virginia. Am I right in regard to that?”

Mr. Sumner. I have not said that.

Mr. Morton. Then what does the Senator’s argument mean, that the last election was a monstrous fraud? What is the object in proving that the last election was a monstrous fraud, unless the Senator wants a new election? Let us have an understanding about that.

Mr. Sumner. I wish to purge the Legislature of its Rebels. I understand that three-fourths of the Legislature, if not more, cannot take the test oath. That is what I first propose to do.

After further remarks by Mr. Morton, Mr. Sumner spoke as follows:—

Mr. President,—In what the Senator from Indiana has said in reply to the Senator from Nevada I entirely sympathize. I unite with the Senator from Indiana in his amendments. I unite with him in his aspirations for that security in the future which I say is the first great object now of our legislation in matters of Reconstruction. Without security in the future Reconstruction is a failure; and that now should be our first, prime object. But while I unite with the Senator on those points, he will pardon me, if I suggest to him that he has not done me justice in his reference to what I said. And now, Sir, before I comment on his remarks, I ask to have the pending motion read.

The Presiding Officer. (Mr. Anthony, of Rhode Island, in the chair.) The pending motion is the motion of the Senator from Massachusetts [Mr. Wilson] to refer the bill to the Committee on the Judiciary.

Mr. Sumner. So I understood, Sir, and it was to that motion that I spoke. I argued that the bill and all pending questions should be referred to the Committee,—and on what ground? That the election was carried by a colossal fraud. The Senator complains because I did not go further, and say whether I would have a new election or not. The occasion did not require it. I am not in the habit, the Senator knows well, of hesitating in the expression of my opinions; but logically the time had not come for the expression of any opinion on that point. My argument was, that there must be inquiry. To that point the Senate knows well I have directed attention from the beginning of this debate. I have said: “Why speed this matter? Why hurry it to this rash consummation? Why, without inquiry, hand over the loyalists of Virginia, bound hand and foot, as victims?” That is what I have said; and it is no answer for my friend to say that I do not declare whether I would have a new election or not.

When an inquiry has been made, and we know officially and in authentic form the precise facts, I shall be ready to meet all the requirements of the occasion,—so, at least, I trust. My friend, therefore, was premature in his proposition to me. May I remind him of that incident in the history of our profession, when a very learned and eminent chief-justice of England said to a counsellor at the bar, “Do not leap before you come to the stile,”—in other words, Do not speak to a point until the point has arisen?[193] The point which the Senator presents to me had not yet arisen; the question was not before the Senate, whether there should be a new election or not. There was no such motion; nor did the occasion require its consideration. My aim was in all simplicity to show the reasons for inquiry. Now it may be, that, when that inquiry is made, it will appear that I am mistaken,—that this election is not the terrible fraud that I believe it,—that the loyal people, black and white, will hereafter be secure in the State of Virginia under the proposed Constitution. It may be that all that will become apparent on the report of your Committee. It is not apparent now. On the contrary, just the opposite is apparent. It is apparent that loyalists will not be secure, that freedmen will suffer unknown peril, unless you now throw over them your protecting arm.

That is my object. I wish to secure safety. I wish to surround all my fellow-citizens in that State with an impenetrable ægis. Is not that an honest desire? Is it not a just aspiration? I know that my friend from Indiana shares it with me; I claim no monopoly of it, but I mention it in order to explain the argument which I have made.

In the course of this debate there has been an iteration of assertion on certain points. I mention two,—one of fact, and the other of law. It has been said that we are pledged to admit Virginia, and this assertion has been repeated in every variety of form; and then it is said that in point of law the test oath is not required. Now to both these assertions, whether of fact or law, I reply, “You are mistaken.” The pledge to admit Virginia cannot be shown, and the requirement of the test oath can be shown.

It is strange to see the forgetfulness of great principles into which Senators have been led by partisanship. Certain Senators forget the people, forget the lowly, only to remember Rebels. They forget that our constant duty is to protect our fellow-citizens in Virginia at all hazards. This is our first duty, which cannot be postponed. In the reconstruction of Virginia it must be an ever-present touchstone.

Look at the text of the Reconstruction Acts, or their spirit, and it is the same. By their text the first and commanding duty is, “that peace and good order should be enforced in said States until loyal and republican State governments can be legally established”; and until then “any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same.” Such are the duties and powers devolved upon Congress by the very terms of the first Reconstruction Act.[194] The duty is to see that “loyal and republican State governments” be established; and the power is “to abolish, modify, control, or supersede” the provisional governments.

It is not enough to say that Virginia has performed certain things required by the statute. This is not enough. The Senate must be satisfied that her government is loyal and republican. This opens the question of fact. Is Virginia loyal? Is her Legislature loyal? Is the new Government loyal? These questions must be answered. How is the fact? Do not tell me that Virginia has complied with certain formal requirements. Behind all these is the great requirement of Loyalty. Let Senators who insist upon her present swift admission show this loyalty. There is no plighted faith of Congress which can supersede this duty. Disloyalty is like fraud; it vitiates the whole proceeding. Such is the plain meaning of the text in its words.

But if we look at the spirit of the Acts, the conclusion becomes still more irresistible. It is contrary to reason and to common sense to suppose that Congress intended to blind its eyes and tie its hands, so that it could see nothing and do nothing, although the State continued disloyal to the core. And yet this is the argument of Senators who set up the pretension of plighted faith. There is Virginia with a Constitution dabbled in blood, with a Legislature smoking with Rebellion, and with a Governor commending himself to Rebels throughout a long canvass by promising to strike at common schools; and here is Congress blindfold and with hands tied behind the back. Such is the picture. To look at it is enough.

Sir, the case is clear,—too clear for argument. Congress is not blindfold, nor are its hands tied. Congress must see, and it must act. But the loyalty of a State should be like the sun in the heavens, so that all can see it. At present we see nothing but disloyalty.

The next assertion concerns the test oath; and on this point I desire to be precise.

General Canby, the military commander in Virginia, thought that the test oath, or “iron-clad,” should be required in the organization of the Virginia Legislature. This opinion was given after careful examination of the statutes, and was reaffirmed by him at different times. According to him, the test oath must be applied until the Constitution has been approved by Congress; and in one of his letters the commander says, “Its application to the seceded States before they were represented in Congress appears to be the natural result of their political relation to the Union, independent of the requirements of the ninth section of the law of July 19, 1867.”[195] To my mind this opinion is unanswerable, and it is reinforced by the reason assigned. Nothing could be more natural than that the test oath, which was expressly required of the Boards of Registration and of other functionaries, should be required of the Legislature, so long as the same was within the power of Congress. The reason for it in one case was equally applicable in the other case; nay, it was stronger, if possible, in the case of the Legislature, inasmuch as the powers of the latter are the most vital. It is this Legislature which is to begin the new State government. Two essential parts of the system depend upon it,—the courts of justice, which are to be reorganized, and the common schools. To my mind it is contrary to reason that the establishment and control of these two great agencies should be committed to a disloyal Legislature,—in other words, to a Legislature that cannot take the test oath. The requirement of this oath is only a natural and reasonable precaution, without harshness or proscription. It is simply for the sake of security. Therefore is General Canby clearly right on grounds of reason.

Looking at the text of the Reconstruction Acts, the conclusion of reason is confirmed by a positive requirement. By the ninth section of the Act of July 19, 1867,[196] it is provided,—

“That all members of said Boards of Registration, and all persons hereafter elected or appointed to office in said military districts, under any so-called State or municipal authority, … shall be required to take and to subscribe the oath of office prescribed by law for officers of the United States.”

Senators find ambiguity in the terms “under any so-called State or municipal authority”; but I submit, Sir, that this is because they do not sufficiently regard the whole series of Reconstruction Acts and construe these words in their light. If there be any ambiguity, it is removed by other words, which furnish a precise and unassailable definition of the term “so-called State authority.” By the Reconstruction Act of March 2, 1867, it is provided, “that, until the people of said Rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States.”[197] This is clear and precise. Until the people are admitted to representation, the State government is “provisional only,”—or, in other words, it is a “so-called State authority.” Now the Legislature was elected under “so-called State authority,”—that is, under a State constitution which was “provisional only.” Therefore, according to the very text of the Reconstruction Acts, one interpreting another, must this test oath be required.

If it be insisted that the Legislature was not elected under “so-called State authority,” pray under what authority was it elected? Perhaps it will be said, of the United States. Then surely it would fall under the general requirement of the Act of July 2, 1862,[198] prescribing the test oath to all officers of the United States. But I insist upon this application of the statute only in reply to those who would exclude the Legislature from the requirement of the Reconstruction Act. I cannot doubt that it comes precisely and specifically within this requirement.

This conclusion is enforced by three additional arguments.

1. By a resolution of Congress bearing date February 6, 1869, “respecting the provisional governments of Virginia and Texas,”[199] it is declared “that the persons now holding civil offices in the provisional governments of Virginia and Texas, who cannot take and subscribe the oath prescribed by the Act entitled ‘An Act to prescribe an Oath of Office, and for other Purposes,’ approved July 2, 1862, shall, on the passage of this Resolution, be removed therefrom.” By these plain words is the purpose of Congress manifest. The test oath is prescribed for all persons “holding civil offices in the provisional government of Virginia.” But, by requirement in the first Reconstruction Act, the provisional government lasts until the State is admitted to representation.

2. Then comes a well-known rule of interpretation, requiring that words shall be construed ut res magis valeat quam pereat,—in other words, so that the object shall prevail rather than perish. But the very object of the Reconstruction Act on which this question arises was to keep Rebels from the State government. This object is apparent from beginning to end. But this object is defeated by any interpretation disallowing the test oath.

3. Then comes another rule of interpretation, which is of equal obligation. It is, that we are always to incline so as to protect Liberty and Right; and this rule, for double assurance, is embodied in the very text of the statute whose meaning is now under consideration, being the last section, as follows:—

“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.”[200]

Following this rule, we find still another reason for so interpreting the statute as to require the test oath.

Thus by the reason of the case, by the natural signification of the text, by the light furnished from the supplementary statute, by the rule of interpretation that the object must prevail rather than perish, and by that other commanding rule which requires a liberal interpretation favorable to Liberty and Human Rights,—by all these considerations, any one of which alone is enough, while the whole make a combination of irresistible, infinite force, are we bound to require the test oath.

There is one remark of Andrew Johnson, just, wise, and patriotic, for which I can forget many derelictions of duty, when he said, “For the Rebels back seats.” I borrow this language. The time will come when Rebels will be welcome to the full copartnership of government; but this can be only when all are secure in their rights. Until then, “for the Rebels back seats.”

January 21st, the long debate terminated with an arraignment by Mr. Trumbull of Mr. Sumner’s course in reference not only to the pending bill, but to former measures of Reconstruction, and an answer of similar scope by Mr. Sumner, concluding with regard to Virginia[201] as follows:—

The next count in the Senator’s indictment was, that I had called the late election in Virginia a fraud; and how did he encounter this truthful allegation? He proceeded to show that General Canby designated only five counties in which there were cases of fraud. Is that an answer to my entirely different allegation? Does the Senator misunderstand me, or is it an unintentional change of issue? My statement was entirely different from that which he attributes to me. I made no allegation of frauds in different counties, be they few or many.

I said that the election in the whole State was carried by a conspiracy reaching from one end of the State to the other, of which the candidate for Governor was the head, to obtain the control of the State, and by this means take the loyalists away from the protecting arms of Congress. That was my allegation. Is that met by saying to me that I do not adduce evidence of fraud in districts, or that there were only five districts with regard to which we have such evidence? How do I know, that, if you should go into an inquiry, you might not find that very evidence with regard to all the districts? The Senator sets his face against inquiry, as we all know. But I did not intend to open this question. My object was entirely different: it was to show that from beginning to end the whole canvass was a gigantic fraud; that Walker by a fraudulent conspiracy imposed himself upon the State; that by appeals to the Rebels he obtained their votes and thus installed himself in power, with the understanding that when once installed he should administer the State in their interest.

Then, Sir, farewell the equal rights of all! farewell an equal judiciary, which is the Palladium of just government! farewell trial by jury! farewell suffrage for all! farewell that system of public schools which is essential to the welfare of the community!—all sacrificed to this conspiracy. Such, Sir, is my allegation; and it was in making this allegation I challenged reply. I challenge it now. When I first made it, I looked about the Senate, I looked at those who are most strenuous for this sacrifice, and none answered. None can answer. The evidence is before the Senate in the speeches of the Governor and in the election.

Sir, shall I follow the Senator in other things? I hesitate. I began by saying I would not follow him in his personalities. I began by saying that I would meet the counts of his indictment, one by one, precisely on the facts. Have I not done so, turning neither to the right nor to the left? I have no taste for controversy; much rather would I give the little of strength that now remains for me to the direct advocacy of those great principles to which my life in humble measure has been dedicated, not forgetting any of my other duties as a Senator. If I have in any respect failed, I regret it. Let me say in all simplicity, I have done much less than I wish I had. I have failed often,—oh, how often!—when I wish I had prevailed. No one can regret it more than I. But I have been constant and earnest always. Such, God willing, such I mean to be to the end.

And now, Sir, as I stand before the Senate, trying by a last effort to prevent the sacrifice of Unionists, white and black, in Virginia, I feel that I am discharging only a simple duty. To do less would be wretched failure. I must persevere. This cause I have at heart; this people I long to save; this great State of Virginia I long to secure as a true and loyal State in the National Union. Show that such is her character, and no welcome shall surpass mine.

Mr. Wilson’s motion for a reference of the bill having been withdrawn, the Senate proceeded to vote on the various amendments offered. Mr. Edmunds’s Proviso was carried by Yeas 45, Nays 16. Other amendments, imposing “fundamental conditions,” to secure equality in suffrage, in eligibility to office, and in school rights and privileges, passed by small majorities. A Preamble, moved by Mr. Morton, declaring “good faith” in the framing and adoption of a republican State Constitution and in the ratification of the Fourteenth and Fifteenth Amendments to the National Constitution “a condition precedent to representation of the State in Congress,” was adopted by Yeas 39, Nays 20. The bill as thus amended then passed by Yeas 47, Nays 10. Mr. Sumner voted for all the amendments, but did not vote upon the bill itself,—it being his opinion, as shown by his speeches during the debates, that the admission of Virginia at that time, with its legislative and executive departments as then constituted, would endanger the rights and security of her loyal people.