Part 24

But there remains behind another question. Is there anything in existing legislation to prevent the enlistment of a colored person under the statute of 1861? To this I answer positively in the negative, and I challenge contradiction. There is no color in that statute. There is no color in any statute raising troops for the army of the United States, nor any color in any statute raising sailors for the navy of the United States. Only in our militia statutes do you find the word “white.” In all our army and navy statutes there is no such limitation. The statute of 1861, therefore, in point of law embraced all persons, whether black or white, and it was entirely at the option of the President, before the passage of the statute of 1862, to organize or receive colored troops under that statute. He hesitated. I regretted at the time his hesitation. I thought it an error by which the country suffered. We endeavored to repair that error by the amendment introduced by the brave Senator from New York, who is no longer here [Mr. KING], which you will find in the statutes of 1862. But I doubt if any person at the time, who had given attention to the subject, supposed this amendment necessary, except as an encouragement to a policy which the Government was too slow to adopt. For myself, I remember well my own feelings in voting for it. I accepted it as notice to the Administration that in the opinion of Congress the time had come when colored troops must be used. In point of law it was plain that it could not stand in the way of an enrolment under the earlier statute.

And the Secretary of War seems to have acted on this interpretation; for, in undertaking to raise colored troops, no allusion was made to the statute of 1862, but the language of his order in every particular pointed to the statute of 1861. Am I wrong, then, if I say that in point of law these colored troops have just the same right to the full pay of a soldier that any Senator on this floor has to his compensation? It is by just as good title, and as firm in the statute-book, as your own pay, Sir.

I suggested, the other day, that there were two classes of cases,--one where the enlistments had been made in good faith under the earlier statute, and a second class where they had been made under the later statute; and I suggested, that, if we were disposed to recognize the difference between these two classes, it might afford a solution to our present difficulties. I am not disposed, on any ground of sentiment, to impose an unnecessary tax upon the burdened treasury of my country, although there is no tax required by justice that I would hesitate to impose. If there are colored troops in our service, who, at the time they were mustered, had no reason to suppose that they were enlisted under the statute of 1861, who were led to believe that they came under the statute of 1862, that is, for the pay of ten dollars, I am not disposed to press for them any claim on ground of sentiment,--that is, for the past. I take the past as it is; but for the future I insist that they shall be put upon an equality. True equality in the past is for the National Government to redeem its pledges, whether direct or only implied,--whether there is an absolute promise, of which you have a record, or only an inference or understanding, founded, it may be, in misconception, but still embraced in good faith by innocent parties. On this ground, at a proper moment, I shall be ready to propose an amendment something like the following, to come in immediately after the word “service”:--

“_Provided_, That, with regard to all past service, it shall appear to the satisfaction of the Secretary of War that such persons, at the time of being mustered into service, were led to suppose that they were enlisted under the Act of Congress approved July 22, 1861, as volunteers in the army of the United States.”

* * * * *

Mr. Fessenden could not concur in Mr. Sumner’s construction of the Act of 1862. Mr. Lane, of Indiana, thought, “if we place colored troops hereafter on an equality with the white troops, it is surely as much as they can ask, either from the justice or the generosity of this Senate; for no man, in his sober senses, will say that their services are worth as much, or that they are as good soldiers.” Mr. Sumner replied:--

MR. PRESIDENT,--I hope the Senator from Indiana will pardon me, if I refer to him for one minute. He is so uniformly generous and just that I was the more surprised, when I listened to his remarks just now. I was surprised at his lack of generosity and his lack of justice--he will pardon me--toward these colored soldiers. I was surprised--he will pardon me--at his injustice to the State of Massachusetts. He spoke disparagingly of the colored soldiers. He thought they had been paid enough. He thought that the gallant blood shed on the parapets of Fort Wagner had been paid enough; and he failed to see that the men who died for us on that bloody night, and were buried in the same grave with the devoted colonel who led them, now stood alive in this presence to plead for the equality of their race. How can I help regret that the Senator was led into such remark?

Also, in the ardor of his utterance,--he will pardon me still further,--the Senator undertook to say, that, if we entered on this payment, we should charge the Treasury with some one or two hundred millions in addition to its present burden. Why, Sir, that is an entire mistake. Even if we pay everything contemplated by the resolution, I am told that the whole will be little more than a million: much, I admit, to charge unnecessarily upon the Treasury, but not the very large sum which seemed to fill the patriotic vision of the Senator.

MR. LANE, of Indiana. The Senator misunderstood my statement altogether. My statement was, that, if we were called upon now to go back and increase the pay of the colored troops three dollars a month more than the law provided, with the same propriety we might be called upon to go back and increase the pay of our white soldiers because they thought that their pay had not been enough; and that would add to the burdens of the Treasury to a very large amount.

MR. SUMNER. I accept the correction gladly. Certainly I have no disposition to press anything beyond the meaning of the Senator. But he will allow me to say that I was hardly mistaken in his argument. It was, that we should charge the Treasury with a burden it could ill bear. Now, if this money is due, let us charge the Treasury with the burden; and that brings me again to the direct question, Is not the money due? The Senator denies it; but he will pardon me again, if I say he hardly went into an argument on that head. I repeat, then, is the money due? I dislike to trouble the Senate by going over topics already too much discussed; but I trust they will excuse me, if I state the case yet once more. On many accounts I confess a special interest in it; not the least is that I would have my country above doing injustice, least of all injustice to people of a race too long crushed by injustice.

The argument need not be long. In the first place, the statute of 1861 contains no words which can be interpreted in any way to exclude the enrolment of persons of color under it. I challenge any Senator to mention a single word in that statute authorizing any such exclusion. You have, then, the statute in the case. That is the first point. Then you have the order from the Secretary of War to Governor Andrew, authorizing an enrolment for three years, making no discrimination between persons of African descent and white soldiers. That is the second point. You have, in the third place, the open promises and pledges of Governor Andrew, under that order, and for the time being the agent of the United States, solemnly promising the full pay of thirteen dollars a month to these colored persons as soldiers of the United States. And, in the last place, you have the very terms of enlistment subscribed by these soldiers at the time of enlistment, which I read the other day, where it is expressly stated that they entered into service under the statute of 1861.

These four points,--the statute of 1861, the order of the Secretary, the promise of Governor Andrew in behalf of the United States, and the terms of enlistment,--all these make a case by which, as it seems to me, the Government is bound. In face of these, how can it be said that these colored troops were “employed” under the statute of 1862? There is no ingenuity of interpretation which can place them there.

That I am not mistaken in the facts on which I found this argument is apparent from a letter which I hold in my hand, written by one of these soldiers, now on Morris Island. I content myself with a brief extract.

“In the month of February, 1863, Governor John A. Andrew announced that he had permission from the War Department to raise a regiment of infantry to be composed of men of color. Enlisting began immediately, and the fifty-fourth regiment was filled to overflowing in three months. The only inducement he offered to these men was an acknowledgment of their manhood; for he promised that the United States Government would treat them, in _every_ particular, the same as other volunteer regiments from the State of Massachusetts.”

MR. LANE. Will the Senator pardon me a moment just there?

MR. SUMNER. Certainly.

MR. LANE. They were to be treated in every respect as the volunteer troops from Massachusetts. Will the Senator contend that the commissioned officers of colored regiments might be drawn from the colored troops themselves, after the passage of the law of 1862? Was not that a disparity? Was that treating them like other troops?

MR. SUMNER. Of course the order is applicable simply to the enlisted men. It is not applicable to the officers.

The letter goes on to say,--

“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.”

And then again he says:--