Part 28

The Governor, in the same message, shows that these same colored men, while despoiled of the elective franchise, are nevertheless compelled by taxation to support the public schools, from which their children are excluded. Some of the more prosperous, in order to secure education for their children, have sent them to distant parts of the country, to repair the wrong done by this churlish and unjust community. All this is set forth by the Governor in his formal message. He then adds:--

“I do not propose in this connection to discuss the question of equality of race, about which so many words and so much labor have been wasted; but I submit without argument the fact that the colored people in Denver and various parts of the Territory are taxed to pay for educating white children, while their own children are excluded from the public schools; and your action will determine how long the humiliating spectacle shall be presented to the world.”[276]

Could anything be more flagrant? Yet this community now appeals for your favor and countenance and welcome as a State!

I have quoted from the message of the Governor. I cite another authority, being a telegraphic despatch from a colored citizen of Colorado, which has travelled over the wires a very long distance.

“DENVER CITY, COLORADO, January 15, 1866.

“The law adopted by the Territorial Legislature in 1861 allowed all persons over twenty-one to vote, without distinction of color. The law passed in 1864, signed by Governor Evans, deprived colored citizens of the right, at the very time when appealing to them to help save the country. The admission of Colorado under her present constitution makes that law permanent. If not admitted now, this can be corrected.

“WILLIAM J. HARDING, _A colored citizen_.”

* * * * *

After adducing additional evidence, Mr. Sumner proceeded to consider the obligations upon Congress from the Enabling Act, and here he said:--

If I understand the argument, it is, that Congress, by a statute, pledged itself in advance to admit this community as a State into the Union; that we are bound by such statute, so that we cannot escape the obligation; that, in short, we are tied up by our own statute. This is a strong assumption; but I believe it is an accurate statement of the position of the other side.

Now, Sir, I think I can easily show that here is a great mistake. I may remind you that the President, to whom the question was naturally submitted, has expressly stated in a message to the Senate that in his opinion the new constitution was not formed in pursuance of the Enabling Act.

…

I have said that the Enabling Act had expired. These parties can claim nothing under it. It is like an obsolete statute, which we read in the statute-book, but never adduce for authority. It stands as a monument, showing what Congress required, and showing also what this community failed to perform. In adducing it, you bring authority against the present pretension; for you show clearly that the pretension had no foundation in the statute.

But, Sir, even assuming that the Enabling Act was in a condition to be employed for the organization of this Territory,--which I claim it was not,--then it is my duty to go further, and show you that these parties, as the colored telegraphic correspondent from Denver alleges, did not in any respect comply with the Enabling Act.[277] Why, Sir? By the Enabling Act the Convention was to be called by the Governor. But it was called by the executive committees of political parties, being so many caucuses. Such was the origin of the convention to give you a new State. What authority for that do you find in the Enabling Act? Be good enough to point out a single word to justify any such transaction. And yet we are gravely told that this strange political hocus-pocus was by virtue of the Enabling Act,--as if in every respect it was not plainly inconsistent with the Act.

But the Enabling Act declares that “the constitution, when formed, shall be republican.” This is a fundamental condition. And here I repeat what I have so often said, but which at this hour cannot be too often sounded in the ears of the Senate. I affirm with confidence, that a constitution which denies the first principle of human rights cannot be republican in form. Do you answer, that there are States having such constitutions? Then I reply: We are not called to sit in judgment on those constitutions; we have no power to revise them; we are not to vote upon them; but we are called to sit in judgment upon this constitution, to revise it, and to vote upon it. You are now to declare by your votes whether this constitution which tramples upon the principle of human equality is republican in form. I insist that it is not.

Still further, this Enabling Act declares that “the constitution shall not be repugnant to the principles of the Declaration of Independence.” Need I ask you, What is the first principle of the Declaration of Independence? Is it not, in solemn words, that “all men are created equal,” and that all just government stands on “the consent of the governed”? Does any one deny that these are the words? You know them by heart; your children learn them in their earliest infancy; and whatever is done in the Territory is to be brought to this great ordinance, as to a touchstone. Such is the requirement of the Enabling Act. Therefore, even if you argue that the Enabling Act is authority for this proceeding, then do I reply, that this community has not in any respect brought itself within its terms. It has not complied with its requirements of principle or of proceeding. The proceedings were not according to the Enabling Act; the principles are in defiance of the Enabling Act. Tried by either standard, the whole effort must miserably fail.

Mr. Sumner was here interrupted by Mr. Trumbull, who, quoting from the Territorial election law of 1861 a provision requiring voters to be citizens, remarked, that, while he would not be understood as saying that in his opinion a colored person is not a citizen, such was the understanding in Colorado. Mr. Sumner replied:--

The Governor of the Territory, whose message I hold in my hand, does not put upon the statute the interpretation the Senator does.[278] I have great respect for the opinion of my friend, as he knows; but on this matter I submit, that the Governor of the Territory, on the spot, in a formal communication to the Legislature, is a better authority even than my honorable friend.

MR. TRUMBULL. Better than the statute?

MR. SUMNER. I am coming to that. The statute enumerates first in the class of voters citizens of the United States; and my honorable friend himself is obliged to confess that in his opinion colored persons are citizens of the United States. He does not doubt it. If he did, it would be my duty to remind him of an opinion by the Attorney-General of the United States, in 1862, more than a year prior to the Enabling Act, declaring colored persons citizens of the United States.[279] I refer to this opinion with something more than respect: I refer to it with reverence. I do think, humbly speaking, that this opinion was one of the most remarkable and one of the grandest acts in the history of the late Administration. I do not doubt that hereafter, when the annals of these times are written, the historian will dwell with honest pride upon that admirable document, where one man reversed the whole policy of the Nation, fixing the law of this country forever,--that all colored persons are citizens of the United States. And that was the law of Colorado. The Senator from Illinois does not doubt it. Therefore, when the Territorial Legislature added the words “citizens of the United States,” it did not alter the case by a hair’s breadth: all persons could vote, without distinction of color. The Senator is informed that no colored persons did vote. I have been informed the contrary. But I insist, that, beyond all question, by the Territorial statute colored persons were entitled to vote.

…

Mr. President, such are the facts against the admission of Colorado as a State into this Union. I do not see how you can admit it, without, in the first place, injustice to its own population, at this moment unable to bear the burdens of a State government; secondly, without injustice to the other States, which ought not to find themselves “paired” in this Chamber by two Senators from this small community; and, in the third place, without sacrificing a principle which at this moment is of incalculable importance to the peace of the country. In other times we have heard the cry, _No more Slave States!_ There is kindred cry which must be ours,--_No more States with inequality of rights!_ Against all this I catch a whisper, not an argument. It is breathed that we need two more votes on this floor. Sir, there is something that you need more than two more votes. It is constancy in the support of that great principle so essential to the harmony of the Republic. Better far than any number of votes will be loyalty to this commanding cause. Tell me not that it is expedient to create two more votes in this Chamber. Nothing can be expedient that is not right. If I were now about to pronounce the last words that I could ever utter in this Chamber, I would say to you, Senators, do not forget that right is always the highest expediency. You can never sacrifice the right without suffering for it.

April 25th, the question was taken on Mr. Wilson’s motion to reconsider, and was carried,--Yeas 19, Nays 13. The bill was again before the Senate.

Mr. Sumner then moved his proviso, that the Act should not take effect except upon the fundamental condition that within the State there should be no denial of the elective franchise or of any other rights on account of color or race, which was lost,--Yeas 7, Nays 27.

The bill was then passed by the Senate,--Yeas 19, Nays 13. Mr. Edmunds, of Vermont, Mr. Foster, of Connecticut, Mr. Grimes, of Iowa, Mr. Morgan, of New York, Mr. Poland, of Vermont, and Mr. Sumner were the only Republicans voting in the negative.

* * * * *

May 3d, the bill passed the House of Representatives,--Yeas 81, Nays 57,--among the latter Mr. Stevens,--and was duly presented to the President for his signature.

* * * * *

May 16th, the bill was returned to the Senate, with the objections of the President to its becoming a law. On motion of Mr. Wade, of Ohio, the message was laid on the table. May 21st, on motion of Mr. Hendricks, of Indiana, it was taken up and made the special order for May 29th. On this motion, Mr. Sumner, after discussing the order of business, remarked:--

I have said enough in answer to observations on the order of business by Senators who have preceded me; but there seems to have been a disposition to open the main question. Senators have expressed opinions with more or less fulness on that. I shall not follow them. This is not the time for such a discussion. That time may come. It has already been in this Chamber, and then I had ample opportunity to say what I chose. I may deem it proper to take another opportunity; but I am in no haste. I have no disposition to press the matter.

I cannot take my seat, however, without one remark, in reply to my friend from Ohio. He says that he is for the admission of Colorado now, notwithstanding the veto of the President. I rejoin, that I am against the admission of Colorado now, with or without the veto of the President. If alone, I mean to insist always, that, from this time forward, no State shall be received into the Union with a constitution disavowing the first principle of the Declaration of Independence; and I shall take advantage of every opportunity to uphold that principle, whether given me by a Senator on this floor or by the President of the United States.

The veto was never considered, and the effort for the admission of Colorado expired for that session. Had the veto been considered, Mr. Sumner would have said:--

Months have passed since the application of Colorado was presented to Congress, with a constitution disregarding that vital principle which constitutes the essential element of republican government, without which a republican government is a name and nothing more. For months representatives of Colorado have struggled to triumph over this benign principle. Meanwhile the popular voice has been heard, sounding in the ears of members of Congress, and still the efforts of these representatives of Colorado are continued. I regret this much. I regret that they did not return home and crown their labors by making the new State an example to the country.

On this occasion I shall sustain the veto of the President. I must do this, because I agree with him, that Colorado should not now be admitted as a State.

There are reasons assigned by the President which are applicable and sufficient. There is at least one other assigned by him which is inapplicable, and, of course, insufficient. When he objects to the reception of a new State with so small a population as Colorado, to exercise equal power, legislative, diplomatic, and executive, with New York, in this Chamber,--and when again he objects to this new State on the ground that the people there are not yet ripe and ready for the responsibilities of a State government,--clearly, in these two cases he has reason on his side. All that he says is at once applicable and sufficient. But I must be pardoned, if I cannot adopt his other reason,--that we should not undertake to admit new States while our late Rebel States are still unrepresented in Congress. This reason is obviously inapplicable, and, of course, insufficient. He might as well object to the validity of elections because criminals have not been let out of the prisons and penitentiaries to vote. States hardly yet washed clean from the blood of rebellion cannot expect to be received instantly into the great copartnership of the National Government. For the present, the business must be done by the loyal members.

There is another reason, at once applicable and sufficient, which the President has forgotten to assign. That he should forget it may seem strange, when we consider, that, on an important occasion in Tennessee, standing on the steps of the Capitol, he openly announced himself as the “Moses” of an oppressed race. But, Sir, are we not told by the poet that the soul can reach heights which it cannot keep? Clearly, in this utterance, so grandiose in promise, our President reached heights he has not been able to keep. He is mortal, and the early inspiration has passed from him. Had it been otherwise, he would not have forgotten to rebuke this young Colorado coming forward with a constitution that openly sets at nought that equality of rights which attaches to the loyal citizens of an oppressed race. Here is reason enough for the rejection. As in times past there has been the cry, “No more Slave States!” the cry now must be, “No more States with the word ‘white’!” I trust the Territories west of the Mississippi will take notice, and govern themselves accordingly.

At the next session, another bill was promptly introduced by Mr. Wade, and then reported by him from the Committee on Territories. Meanwhile a bill for the admission of Nebraska was taken up, and, after a protracted discussion, in which Mr. Sumner took part, that Territory was admitted as a State, on the fundamental condition of Equal Rights.[280]

* * * * *

January 9, 1867, immediately on the passage of the Nebraska Bill in the Senate, the bill for the admission of Colorado was taken up. The proviso requiring equal rights as a fundamental condition was adopted,--Yeas 21, Nays 18,--and the bill then passed the Senate,--Yeas 23, Nays 11,--Mr. Sumner voting in the affirmative.

January 15th, in the House of Representatives, the proviso adopted by the Senate was changed so as to require the assent of the State Legislature,--Yeas 84, Nays 65,--and the bill then passed the House,--Yeas 90, Nays 60. The Senate concurred, but President Johnson returned the bill with his objections.

March 1st, on the question of the passage of the bill, notwithstanding the objections of the President, the vote stood, Yeas 29, Nays 19. Two thirds not having voted for the bill, it did not become a law. Nebraska was more fortunate.

* * * * *

Although Colorado failed to be admitted as a State, the long and earnest debate was not without result. The power of Congress to require Equal Rights as a fundamental condition was affirmed.

OPPOSITION TO THE CONSTITUTIONAL AMENDMENT ON THE BASIS OF REPRESENTATION.

LETTER TO THE BOSTON DAILY ADVERTISER, MARCH 15, 1866.

SENATE CHAMBER, March 15, 1866.

TO THE EDITORS OF THE BOSTON DAILY ADVERTISER.

GENTLEMEN,--My attention has been called to an editorial article in your paper,[281] where you say that Mr. Sumner “aided in defeating” the proposed Constitutional Amendment, “because in his opinion it fell short of what was needed.”

Permit me to say that this does not state my position accurately.

My objection to the proposed Amendment was twofold: first, that it carried into the Constitution by express words the idea of inequality of rights, which, in my opinion, would be a defilement of the text; and, secondly, that it lent the sanction of the Constitution to a wholesale disfranchisement on account of race or color. Thus far, nothing of the kind had been allowed to find place in its text. To my mind it was clear that nothing of the kind could rightly be allowed to find place in its text.

You will see, therefore, that my opposition was not because the proposed Amendment “fell short of what was needed,”--although this was too true,--but because it did what in my judgment ought not to be done. Its objectionable character became more apparent, when it was considered that it did this at a crisis when complete justice to the freedmen was at once the prompting of gratitude and the requirement of necessity for the sake of national peace and the good name of the Republic. But the special objection to the proposed Amendment was not that it “fell short,” but that it was bad in itself. It is sometimes said, “Half a loaf is better than no bread,” and this has been called “half a loaf.” But nobody would accept “half a loaf,” if it were poisoned. Here was a poisonous ingredient. The proposition to found representation on voters, besides being more surely effective to the same end, had no poison in it.

Others did not see the proposed Amendment as I did. Had they seen it so, they must have voted against it. But, seeing it as I did, I think you will agree that I could not hesitate in opposition to it.

I do not write now for any purpose of controversy, but simply that my position may not be misunderstood.

I am, Gentlemen, your faithful servant,

CHARLES SUMNER.

FOOTNOTES

[1] Afterwards Minister and Consul General to the Government of Hayti.

[2] _Post_, Vol. XIV. pp. 228-231.

[3] Blackstone, Commentaries, Vol. IV. p. 278.

[4] _Post_, p. 22.

[5] _Post_, pp. 113, 123.

[6] _Post_, p. 271.

[7] _Post_, pp. 315, seqq.

[8] This same oath appears in another bill, introduced by Mr. Sumner on the same day, entitled “A Bill prescribing an oath to maintain a republican form of government in the Rebel States”; this oath to be taken by every person in any State lately declared to be in rebellion, before he shall be allowed to vote at any election, State or National, or before he shall enter upon the duties of any office, State or National, or become entitled to the salary or other emoluments thereof. See, _ante_, p. 12.

[9] Statutes at Large, Vol. XII. pp. 255-258.

[10] The Senate Chamber.

[11] Mr. Butler.

[12] Congressional Globe, 34th Cong. 1st Sess., p. 640, March 12, 1856.

[13] See the engraving of Retzsch.

[14] _Ante_, Vol. XI. p. 365: Speech of Mr. Sumner on the Recognition of Arkansas, June 13, 1864.

[15] First Inaugural Address, March 4, 1801: Writings, Vol. VIII. p. 4.

[16] Act of July 13, 1861: Statutes at Large, Vol. XII. pp. 255-258.

[17] Congressional Globe, 38th Cong. 2d Sess., February 4, 1865, p. 591.

[18] Horne, Commentary on the Psalms: Ps. xi. 3.

[19] See, _ante_, p. 42.

[20] Executive Documents, 39th Cong. 1st Sess., Senate, No. 1, pp. 2-105.

[21] Burke, Letter to Henry Dundas, April 9, 1792: Works (Boston, 1865-67), Vol. VI. p. 261.

[22] _Ante_, Vol. XII. pp. 312-314.

[23] Affranchissement des Serfs: Traduction des Documents Officiels, Résumés Explicatifs et Annotations (St. Petersburg, 1861).

[24] Constitution of Massachusetts, Declaration of Rights, drawn by John Adams.

[25] _Ante_, p. 17.

[26] _Ante_, p. 14.

[27] _Post_, pp. 136, seqq.

[28] Letters from New Orleans, October, 1865: Nation, October 26, 1865, Vol. I. pp. 523, 524.

[29] He had already united with President Johnson in his “policy.”

[30] Act to establish and regulate the Domestic Relations of Persons of Color, etc., Sec. XVII. [Approved December 21, 1865.]

[31] Ibid., Sections L., LII., LIII.

[32] Later evidence showed that this hope was without foundation.

[33] Senate Journal, 1865-66, p. 151.

[34] Code of Tennessee, § 3808.

[35] Statutes at Large, Vol. XIV. p. 50.

[36] The Necessity of Universal Suffrage in Reconstruction; Letter to the Editor of the New York _Nation_, October, 1865: Speeches and Addresses, pp. 585-596.

[37] Speech in the House of Commons, on the Address of Thanks, December 13, 1792: Hansard’s Parliamentary History, Vol. XXX. col. 13.

[38] _Ante_, p. 14.

[39] _Post_, p. 123.

[40] Debates in the Federal Convention, August 25, 1787: Madison Papers, Vol. III. pp. 1429, 1430.

[41] Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication. It passed the Senate February 2d, and became a law, notwithstanding the veto of President Johnson, April 9th.--_Statutes at Large_, Vol. XIV. p. 27.

[42] Andrew Fletcher of Saltoun: Characters, prefixed to Political Works, (Glasgow, 1749,) p. viii.

[43] _Ante_, p. 113.

[44] _Ante_, Vol. X. p. 167, Our Domestic Relations, Power of Congress over the Rebel States; Vol. XII. p. 305, The National Security and the National Faith. See, also, Vol. IX. p. 1, Rights of Sovereignty and Rights of War.

[45] Speech in Washington, April 11, 1865: McPherson’s Political History of the United States during the Rebellion, p. 609.

[46] Constitution of the Confederate States, Art. IV., Sec. 3, Clause 4: Statutes at Large (Richmond, 1864), p. 21. See, also, Appleton’s Annual Cyclopædia, 1861, art. _Public Documents._

[47] Of Reformation in England, Book II.: Works (London, 1851), Vol. III. p. 34.

[48] No. XXI.

[49] Notes on the Confederacy, April, 1787: Letters and other Writings, Vol. I. p. 322.

[50] Madison Papers, Vol. III., Appendix, No. 5.

[51] Works, Vol. II. pp. 463-466.

[52] Debates in the Federal Convention, May 29, 1787: Madison Papers, Vol. II. pp. 731, 734.

[53] Ibid., June 20, 1787, p. 913.

[54] Ibid., May 29, 1787, p. 734.

[55] Debates in the Federal Convention, June 11 and July 18, 1787: Madison Papers, Vol. II. pp. 844, 1139, 1141.

[56] Ibid., August 6, 30, and September 12, 15, 1787: Madison Papers, Vol. II. p. 1241, Vol. III. pp. 1466, 1467, 1558, 1590, 1621.

[57] The Federalist, No. XLIII. See, also, Story’s Commentaries on the Constitution, Vol. III. § 1811.