Part 16

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this fact, that England has no written Constitution,--that the Great Charter is a mere Act of Parliament, which may be repealed to-morrow?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.