Part 25

“I have already said that I knew of no provision of law, constitutional or statutory, which prohibited the acceptance of persons of African descent into the military service of the United States; and if they could be lawfully accepted as private soldiers, so also might they be lawfully accepted as commissioned officers, if otherwise qualified therefor. But the express power conferred on the President by the 11th section of the Act of July 17, 1862, chap. 195, before cited, to employ this class of persons for the suppression of the Rebellion as he may judge best for the public welfare, furnishes all needed sanction of law to the employment of a colored chaplain for a volunteer regiment of his own race.”[307]

By the report before the Senate, it is declared as follows: “And the Attorney-General is hereby authorized to determine any question of law arising under this provision.” In the full confidence that we shall at last, through the Attorney-General, obtain that justice which Congress has denied, I consent to give my vote for the report.

The report was concurred in.[308] The Attorney-General, Mr. Bates, as Mr. Sumner anticipated, affirmed the equal rights of the colored soldiers.[309]

OPENING OF THE STREET-CARS TO COLORED PERSONS.

SPEECHES IN THE SENATE, ON VARIOUS PROPOSITIONS, FEBRUARY 10, MARCH 17, JUNE 21, 1864.

The opening of the street-cars in Washington constitutes a special chapter of effort, which, beyond its local influence, was important as an example to the country.

February 27, 1863, the Senate having under consideration the bill to authorize the Alexandria and Washington Railroad Company to extend their road across the Potomac River and through the city of Washington to the Baltimore and Ohio Railroad station, Mr. Sumner moved an amendment in the following words:--

“_And provided, also_, That no person shall be excluded from the cars on account of color.”

In making this motion, he called attention to what seemed to him a new illustration of the barbarism of Slavery. An aged colored person had been excluded from the cars and dropped in the mud. He thought the incident discreditable, and that it was the duty of Congress to interfere. The following dialogue then ensued.

MR. HOWE (of Wisconsin). I should like to ask the Senator from Massachusetts, as a question of law, whether, if this railroad company, being common carriers, should drop any person or refuse to carry any person who offered them their fare, they would not be liable as the law now stands, without any express enactment?

MR. SUMNER. If you ask me the question as a lawyer, I should say they would be liable; but the experience here, as I believe, is, that this liability is not recognized. The Senator knows well, that, under the influence of Slavery, human rights are disregarded, and those principles of law which he recognizes are set aside. Therefore it becomes the duty of Congress to interfere and specially declare them.

MR. HOWE. Would the effect of the amendment be any more than a reënactment of the existing law?

MR. SUMNER. That was said of the Wilmot Proviso, as the Senator will remember.

The question being taken by yeas and nays, resulted, Yeas 19, Nays 18; so the amendment was agreed to. It was concurred in by the House, and approved by the President, March 3, 1863.

This provision, though applicable to a single road, seemed to decide the principle. But it was not so regarded by the other railroads in Washington, which continued to exclude colored persons, often under painful circumstances.

* * * * *

February 10, 1864, Mr. Sumner called attention to this subject by the following resolution:--

“_Resolved_, That the Committee on the District of Columbia be directed to consider the expediency of further providing by law against the exclusion of colored persons from the equal enjoyment of all railroad privileges in the District of Columbia.”

Mr. Sumner explained the resolution.

MR. PRESIDENT,--It is necessary that I should call attention to a recent outrage which has occurred in this District. I do it with great hesitation. At one moment I was inclined to keep silence, believing that the good name of our country required silence; but since it has already found its way into the journals, I cannot doubt that it ought to find its way into this Chamber.

An officer of the United States, with the commission of Major, with the national uniform, has been pushed from a car on Pennsylvania Avenue for no other offence than that he was black. Now, Sir, I desire to say openly that we had better give up railroads in the national capital, if we cannot have them without such an outrage upon humanity, and upon the national character. An incident like that, Sir, is worse at this moment than defeat in battle. It makes enemies for our cause abroad, and sows distrust. I hope, therefore, that the Committee on the District of Columbia,--I know the disposition of my honorable friend, the Chairman of that Committee,--in the bills we are to consider relative to the railroads in this District, will take care that such safeguards are established as will prevent the repetition of any such wrong.

In reply to Mr. Hendricks, of Indiana, Mr. Sumner spoke again.

MR. PRESIDENT,--I am sure that the Senator from Indiana [Mr. HENDRICKS] is mistaken in regard to the provision for colored people. There may be here and there, now and then, once in a long interval of time, a car which colored people may enter; but any person traversing the avenue will see that those cars appear very rarely; and if any person takes the trouble to acquaint himself with the actual condition of things, he will learn that there are great abuses and hardships, particularly among women, growing out of this outrage. I use plain language, Sir, for it is an outrage. It is a disgrace to this city, and a disgrace also to the National Government, which permits it under its eyes. It is a mere offshoot of the Slavery which, happily, we have banished from Washington.

Now go back to the facts on which I predicated my motion. The Senator from Iowa [Mr. GRIMES] has referred to the colored officer. I have in my hand his letter, addressed to his military superior, making a report of the case, and, as it is very brief, I will read it.

“WASHINGTON, D. C., February 1, 1864.

“SIR,--I have the honor to report that I have been obstructed in getting to the Court this morning by the conductor of car No. 32 of the Fourteenth Street line of the city railway.

“I started from my lodgings to go to the hospital I formerly had charge of, to get some notes of the case I was to give evidence in, and hailed the car at the corner of Fourteenth and I Streets. It was stopped for me, and, when I attempted to enter, the conductor pulled me back, and informed me that I must ride on the front with the driver, as it was against the rules for colored persons to ride inside. I told him I would not ride on the front, and he said I should not ride at all. He then ejected me from the platform, and at the same time gave orders to the driver to go on. I have, therefore, been compelled to walk the distance in the mud and rain, and have also been delayed in my attendance upon the Court.

“I therefore most respectfully request that the offender may be arrested and brought to punishment.

“I remain, Sir, your obedient servant,

“A. T. AUGUSTA, M. B., “_Surgeon Seventh U. S. Colored Troops_.

“CAPTAIN C. W. CLIPPINGTON, _Judge Advocate_.”

In my opinion, the writer of this letter had just as much right in that car as the Senator from Indiana, and it was as great an outrage to eject him as it would be to eject that Senator. I go further, and I say--pardon the illustration--that the ejection of that Senator would not bring upon this capital half the shame that the ejection of this colored officer necessarily brings upon the capital. I do not mean, of course, to make the remark personal; but, as the Senator from Indiana has entered into this discussion, and chooses to vindicate this inhumanity, I allude to him personally.

The resolution was adopted,--Yeas 30, Nays 10.

February 24th, Mr. Willey, of West Virginia, from the Committee on the District of Columbia, made a report in the following terms.

“That the Act entitled ‘An Act to incorporate the Washington and Georgetown Railroad Company,’ approved May 17, 1862, makes no distinction as to passengers over said road, or as to any of the privileges of said road, on account of the color of the passenger, and that, in the opinion of the Committee, colored persons are entitled to all the privileges of said road which any other persons have, and to all the remedies for any denial or breach of such privileges which belong to any other persons. The Committee, therefore, ask to be discharged from the further consideration of the premises.”

February 25th, Mr. Sumner called attention to this report, and moved to reconsider the vote accepting it. Mr. Grimes stated that “the Committee hold that every person has a right to ride in the cars, and that a colored person has the same remedies open to him for any infringement of his rights by the Company as anybody else.” Mr. Sumner then inquired, “whether it was the understanding of the Committee that the ejection of a colored person from a car was illegal.” Mr. Grimes replied, “As I understood it.” Mr. Sumner. “That the ejection was illegal?” Mr. Grimes. “Yes, Sir.” Mr. Reverdy Johnson united in this conclusion. Mr. Willey said: “The law is now full and perfect in all its provisions and adaptations to secure the colored persons in the enjoyment of the privileges of this railroad.” Mr. Wilson, of Massachusetts, said: “I think in law he is right, but in practice it is an undeniable fact that the spirit of the old law and the old practices still lingers to some extent here in the District.” Mr. Saulsbury, of Delaware, followed: “I most heartily approve of the action of the officer on board that railroad-car. I think he deserved the thanks of the community. When these negroes go about sticking their heads into railroad-cars, and among white people, and into the Supreme Court Room, I think an officer is perfectly right in telling them they have no business there.” Mr. Sumner remarked as follows.

After the declarations made to-day, I am, at least for the present, satisfied, and shall not proceed further with my motion. I was particularly grateful to the Senator from Maryland for his very explicit statement of the law. I do not doubt he is entirely right. It has always been my opinion. I am glad to have it confirmed by that distinguished Senator and lawyer. I am also grateful to the Senator from West Virginia, who made the report, and who has so explicitly stated his own convictions, and, as I understand him, also the unanimous opinion of the Committee, to the effect that these people have legal rights precisely as white persons to the full enjoyment of all the privileges of the railroad in this District. If they have such legal rights, they are at this moment unquestionably exposed to what I must call outrage. If a white person were ejected from the cars on account of his skin, we should all feel that it was an outrage. Is it any less an outrage because the person ejected is simply guilty of a different skin? I confess, that, to my mind, it is a greater outrage, because obligations are greater in proportion to the humility and weakness of those with whom we deal.

But, Sir, I have no desire to proceed further in this question. I am for the present satisfied. My hope, however, is, that the railroad corporation will at once take notice, and act according to law.

Mr. Sumner then withdrew his motion.

* * * * *

In the face of this report, the exclusion of colored persons continued, often attended by intolerable outrage. Aged persons were thrust into the street. At last an opportunity occurred of bringing this question to a vote in the Senate.

March 16, 1864, the Senate had under consideration a bill to incorporate the Metropolitan Railroad Company in the District of Columbia, sometimes known as the F Street Road, when Mr. Sumner moved the following amendment:--

“_Provided_, That there shall be no regulation excluding any person from any car on account of color.”

A debate ensued, in which Mr. Saulsbury, of Delaware, and Mr. Reverdy Johnson, of Maryland, earnestly opposed the amendment. March 17th, the latter, while acknowledging that there was nothing in the bill giving “authority to exclude passengers at all,” insisted that colored persons so excluded should be remitted to the courts, and he did not see “why it is necessary to provide more special guaranties for the black man than are provided for the white man”; “if the black man is improperly excluded from one of these cars, … he has the right to go to the courts and seek his remedy there, and the white man has no greater right”; that Mr. Sumner “might just as well propose to pass a law providing that these black men and black women shall have the same right to visit the Presidential mansion on public occasions as the white men and the white women”; and he then discussed the questions of social and political equality, insisting that those just escaped from Slavery “are not the people to exercise the elective franchise, and to mix in society with the educated classes, of which and from which the public councils of the country should always be composed and taken.”

Mr. Sumner replied:--

MR. PRESIDENT,--The question before the Senate is very simple. It is plain as one of the Ten Commandments. But the Senator from Maryland, with that nimbleness of speech which belongs to him, while undertaking to discuss it, has ranged over a very extensive field. He has treated the Senate to a discourse on almost everything, and something else also,--the elective franchise, social privileges of the Presidential mansion, the equality of races, the intermarriage of races, the state of Slavery in Maryland, also in some other States, and then the state of Slavery generally. Now, Sir, I shall not follow him on any of those topics. My desire is to present the precise point in issue. The Senate will then be prepared to vote.

But the Senator from Maryland will allow me to remind him that he seems to exhibit a rare inconsistency,--first, in declaring the absolute right of colored people to a seat in the cars, and then arguing, that, on every consideration of social life and of principle, they ought not to be admitted to any such privilege. The two parts do not go together. If colored people have the legal right to enter these cars, why does the Senator argue that they ought not to have that right? I agree with the Senator in the first point. They have the legal right to enter these cars, and the proprietors are trespassers, when they exclude them. Here I agreed with the Senator the other day. To my mind it is clear, because any other conclusion authorizes a corporation to establish a caste offensive to religion and humanity, injurious to a whole race now dwelling among us, and bringing shame upon our country.

The Senator asks, why, as I accept this conclusion, do I bring forward the present proposition? To this there are two answers, either of which is sufficient. The first is, that in the last railroad statute passed by Congress this provision was introduced, and I have heard of no complaint or trouble from it. In that now before us let us introduce the same provision, and make the two uniform. That is one reason. But the better reason is, that, while, beyond all question, colored persons have the legal right, even without this amendment, yet that legal right has been drawn in question. In point of fact, they are excluded from the cars. The Senator from Maryland refers to one case, because it has become well known. I am familiar with many other cases. They are brought to my attention almost daily. There is, then, at this moment, an existing abuse. Colored persons are kept out of their rights. But we cannot afford, at this crisis of our history, to sanction injustice. Every such act rises in judgment against us, and hangs on the movements of our armies, checking even the currents of victory.

The Senator admits their rights, but he says, Let them go to the courts. Sir, what is that for a poor, humble person, without means and without consideration? The Senator knows something of the law’s delay and the law’s expense; and I ask him whether it is just to subject an oppressed people to this additional oppression, when, by a few words, Congress, now in session, can overturn the wrong.

MR. JOHNSON. Will the Senator permit me to ask him a question by way of reply? Suppose the amendment is adopted; if it will not give them a greater right than they have now, and the Company refuse to let them enjoy the right, what is their remedy? They must go to the courts. I suppose there is no other remedy. You do not provide that the charter shall be forfeited at once.

MR. SUMNER. I know very well that they may, in the last resort, be obliged to go to the courts; but I know that it will be more difficult for the Company to exclude them in the face of a positive statute than when their rights are simply founded on _inference_. The positive words which I propose leave no loophole for doubt. They must be obeyed.

There is nothing more common in legislation than, in case of doubt as to the meaning of a statute, or of the Common Law, to remove it by what is well known as a “declaratory” statute. I have in my hands a work of authority, which the Senator knows well, Dwarris on Statutes, from which I read:--

“And first of declaratory acts. These are made where the old custom of the kingdom is almost fallen into disuse or become disputable, in which case the Parliament has thought proper, _in perpetuum rei testimonium_, and for avoiding all doubts and difficulties, to declare what the Common Law is and ever hath been.”[310]

Are not these words completely applicable to the case before us? What should be the custom is, according to these words, “almost fallen into disuse, or become disputable.” I say, therefore, again, following these words, “for avoiding all doubts and difficulties,” it is the duty of Congress “to declare” what the law of the land is.

Again, in another place, this same authority, speaking still further of declaratory statutes, says:--

“Acts to explain laws are properly acts of interpretation by legislative authority,--or, to borrow an expression from the writers on the Roman Law, they are acts of _authentic interpretation_.”[311]

I ask the attention of the Senator to the expression, “they are acts of _authentic interpretation_.” Now, Sir, what I desire is, that the Senate shall give an authentic interpretation to the law. To do this it is not needful to range over the whole field of history, of morals, or of politics, in imitation of the Senator, or to discuss the equality of races, or their fortunes in the future; but it is enough for us to become acquainted with the existing abuse, every day under our own eyes, in the streets of this capital, and then to apply the remedy. Beyond all question, there is an abuse. The remedy is simple, and I cannot doubt that it will be effective.

Listening to the objections which this measure has encountered, I am reminded of those so often brought against the Wilmot Proviso. Sometimes it was said that Slavery could not go into the Territories without positive statute, and that therefore the prohibition was unnecessary. But it generally happened that those who opposed the positive prohibition were indifferent to the great question. No, Sir; there can be but one true rule. It is this: the rights of colored persons must be placed under the protection of positive statute, warning their oppressors against continued outrage.

The question being taken on Mr. Sumner’s amendment, it was adopted,--Yeas 19, Nays 17. The House concurred, and the President approved the bill.

Thus was another road brought within the sphere of this prohibition. But the exclusion was continued on the main road in Pennsylvania Avenue.

* * * * *

June 21st, the Senate having under consideration a bill to amend the charter of the Washington and Georgetown Railroad Company, Mr. Sumner moved the following amendment:--

“_And provided, further_, That there shall be no exclusion of any person from any car on account of color.”

Debate ensued. Mr. Sherman, of Ohio, thought “the amendment ought not to be adopted.” Mr. Hendricks, of Indiana, thought it tended to depreciate the value of investments made on the faith of former legislation. Mr. Willey, of West Virginia, declared his opposition, saying, “It is a matter to be regulated by the interests of the Company, the convenience of the people, and especially the tastes of the people.” Mr. Powell, of Kentucky, said: “If the Senator from Massachusetts is such a vehement friend of this down-trodden race, as he is a lawyer, why did he not undertake their case, and propose to argue it for them before the courts? That would have indicated that he really felt for the negro.… The Senator shows his devotion to this down-trodden race here, and only in words.… The Senator’s staple is this fanatical idea. He wants this little hobby to ride through Massachusetts on, and to feed a fanatical flame there. He can fool nobody here with this kind of thing. Take the negro out of the Senator’s vocabulary, and, rich as it is, it would be exceedingly barren.” Mr. Trumbull, of Illinois, also opposed the amendment. In the course of the debate, Mr. Sumner spoke as follows, especially in reply to Mr. Trumbull.

MR. PRESIDENT,--The Senator from Illinois [Mr. TRUMBULL], in former days, was a sincere, intelligent, devoted supporter of the Wilmot Proviso. As I understand that Proviso, it was simply a prohibition of Slavery in the Territories. Now I know not whether the Senator held, as I did, that, even without that prohibition, yet, by a strict interpretation of the Constitution, Slavery could not go into the Territories. I presume he did; most of us did. For myself, I held it resolutely and sincerely. I always regarded the Wilmot Proviso, if the Constitution were properly interpreted, as mere surplusage, sheer supererogation; and yet I never hesitated, in season or out of season, to vindicate it; and I believe the Senator never hesitated, in season or out of season, to do the same. I remember that my earliest admiration of that Senator was founded on his brave and able support of that very prohibition. Not then was he deterred from a humane provision because without it, according to his interpretation of the Constitution, Slavery could not enter the Territories. Nor was he deterred because the provision might be offensive to persons of weak nerves. No, Sir; openly and courageously he maintained the principle that Slavery must be prohibited. And on the same principle--if I may pass from great things to smaller, I admit, but not small--I insist that this proviso should also be adopted.