Chapter VII: Conclusion (4)

Men are tempted by the talent which they possess; and he could not resist the impulse to employ, sometimes out of place, those extraordinary powers which he commanded so easily. More penetrating than grasping, he easily pierced the argument of his opponent, and, once engaged, he yielded to the excitement of the moment and the joy of conflict. His words warmed, as the Olympic wheel caught fire in the swiftness of the race. If on these occasions there were sparkles which fell where they should not have fallen, they cannot be remembered now. Were he still among us, face to face, it were better to say, in the words of that earliest recorded reconciliation,--

“Let us no more contend nor blame
Each other, blamed enough elsewhere, but strive
In offices of love how we may lighten
Each other’s burden in our share of woe.”[187]

Error and frailty checker the life of man. If this were not so, earth would be heaven; for what could add to the happiness of life free from error and frailty? The Senator we mourn was human; but the error and frailty which belonged to him often took their color from virtue itself. On these he needs no silence, even if the grave which is now closing over him did not refuse its echoes except to what is good.

CUBAN BELLIGERENCY.

REMARKS IN THE SENATE, DECEMBER 15, 1869.

Mr. Carpenter, of Wisconsin, having moved to proceed to the
consideration of a resolution previously introduced by him,
setting forth,--

“That in the opinion of the Senate the thirty gun-boats
purchased or contracted for in the United States by or on
behalf of the Government of Spain, to be employed against
the revolted district of Cuba, should not be allowed to
depart from the United States during the continuance of
that rebellion,”--

Mr. Sumner said:--

I shall interpose no objection to that; but I feel it my duty to suggest that it does seem to me that a discussion of that question is premature, and for this reason: there is no information with regard to those gun-boats now before the Senate, except what we derive from the newspapers. I understand that the Department of State will in a few days, as soon as the documents can be copied, communicate to the Senate all that it has with reference to our relations with Cuba, which will probably cover the question of the gun-boats. There is a question of fact and of law, and I for one am indisposed to approach its discussion until I have all the information now in the possession of the Government. At the same time my friend from Wisconsin will understand that I have no disposition to interfere with any desires he may have. If he wishes, therefore, to go on, I shall content myself with the suggestions that I have made.

Mr. Carpenter’s motion prevailing, he proceeded with an
argument in support of the resolution in question, to which Mr.
Sumner replied as follows:--

MR. PRESIDENT,--The Senator from Wisconsin closed by saying that he understood that eighteen of the gun-boats would leave to-morrow. I have had put into my hands a telegram received last night from New York, which I will read, as it relates to that subject:--

“The vessels delivered by Delamater to the representatives of
the Spanish Navy have their officers and crews on board and
fly the flag of Spain. They are now as completely the property
of that Government as is the Pizarro. Unless something not
foreseen occurs, they will be at sea to-morrow morning, if not
already gone.”

“To-morrow morning” is this morning.

But there are eight other boats, that are still unfinished, on the stocks, to which the resolution of the Senator from Wisconsin is applicable.

* * * * *

I have no disposition now to discuss the great question involved in the speech of the Senator from Wisconsin; but the Senator will pardon me, if I venture to suggest that he has misapprehended the meaning of the statute on which he relies. Certainly he has misapprehended it or I have. He has misapprehended it or the Administration has. I do not conceive that the question which he has presented can arise under the statute. The language on which he relies is as follows:--

“If any person shall within the limits of the United States
fit out and arm, or attempt to fit out and arm, or procure to
be fitted out and armed, or shall knowingly be concerned in
the furnishing, fitting out, or arming of any ship or vessel,
with intent that such ship or vessel shall be employed in the
service of any foreign prince or state, or of any colony,
district, or people, to cruise or commit hostilities against
the subjects, citizens, or property of any foreign prince or
state, or of any colony, district, or people, with whom the
United States are at peace,” &c.[188]

The operative words on which the Senator relies being “any colony, district, or people,” I understand the Senator to insist that under these words Spain cannot purchase ships in the United States to cruise against her Cuban subjects now in revolt. That is the position of the Senator. He states it frankly. To that I specifically reply, that the language of the statute is entirely inapplicable. Those words, if the Senator will consult their history, were introduced for a specific purpose. It was to meet the case of the revolted Spanish colonies already for eight years in arms against the parent Government, having ships in every sea, largely possessing the territories on the Spanish main, and with independence nearly achieved.

There was no question of belligerence. It was admitted by all the civilized world. Nation after nation practically recognized it. Our Government, our courts, every department of the Government, recognized the belligerence of those Spanish colonies. Their independence was recognized more tardily, after ample discussion in these two Chambers as late as 1820; but their belligerence was a fact perfectly established and recognized by every branch of the Government. To meet their case, and for no other object, as I understand it, Mr. Miller, a Representative of South Carolina, on the 30th day of December, 1817, introduced the following resolution:--

“_Resolved_, That a committee be appointed to inquire into the
expediency of so amending the fourth section of the Act passed
on the 3d of March, 1817, entitled ‘An Act more effectually to
preserve the neutral relations of the United States,’ as to
embrace within the provisions thereof the armed vessels of a
Government at peace with the United States and at war with any
colony, district, or people with whom the United States are or
may be at peace.”[189]

The important words “any colony, district, or people” were introduced to cover the precise case of the revolted Spanish colonies and their precise condition at that moment, there being no question of belligerence. Now the practical question is, whether these words, introduced originally for a specific purpose, having an historic character beyond question, can be extended so as to be applied to insurgents who have not yet achieved a corporate existence,--who have no provinces, no cities, no towns, no ports, no prize courts. Such is the fact. I cannot supply the fact, if it does not exist; nor can the Senator, with his eloquence and with his ardor enlisted in this cause. We must seek the truth. The truth is found in the actual facts. Now do those facts justify the concession which the Senator requires?

The Cuban insurgents, whatever the inspiration of their action, have not reached the condition of belligerents. Such, I repeat, is the fact, and we cannot alter the fact. Here we must rely upon the evidence, which, according to all the information within my reach, is adverse. They do not come within any of the prerequisites. They have no provinces, no towns, no ports, no prize courts. Without these I am at a loss to see how they can be treated as belligerents by foreign powers. Before this great concession there must be assurance of their capacity to administer justice. Above all, there must be a Prize Court. But nobody pretends that there is any such thing.

MR. CARPENTER. Will the Senator now allow me to ask him one
question?

MR. SUMNER. Certainly.

MR. CARPENTER. My question is, if it be not the most favorable
opportunity to obtain the facts to libel those boats and get
proof on the question?

MR. SUMNER. The Senator will pardon me, if I say I do not think it is. I think that the better way of ascertaining the facts is to send to our authorized agents in Cuba,--we have consuls at every considerable place,--and direct them to report on the facts. I understand such reports have been received by the Department of State. They will be communicated to the Senate. They are expected day by day, and they are explicit, unless I have been misinformed, on this single point,--that, whatever may be the inspiration of that insurrection, it has not yet reached that condition of maturity, that corporate character, which in point of fact makes it belligerent in character.

MR. HOWARD. I do not wish to interrupt the Senator, but I
should like to ask a question at this point.

MR. SUMNER. Certainly.

MR. HOWARD. I wish for information on this subject, and I
think we all stand in need of it; and I should be very much
obliged to the Senator from Massachusetts, if he is able to do
so, if he would give us a statement of the amount of military
force actually in the field in Cuba, or the amount of force
that is available; and whether the insurgents have established
a civil government for themselves,--whether it be or be not
in operation as a government. On these subjects I confess my
ignorance.

MR. SUMNER. The Senator confesses we are in the dark, and on this account I consider the debate premature. We all need information, and I understand it will be supplied by the Department of State. There is information on the precise point to which the Senator calls attention, and that is as to the number of the forces on both sides. I understand on the side of the insurgents it has latterly very much diminished; and I have been told that they are now little more than _guerrilleros_, and that the war they are carrying on is little more than a guerrilla contest,--that they are not in possession of any town or considerable place. Such is my information.

MR. HOWARD. Have they any government?

MR. SUMNER. I understand they have the government that is in a camp. With regard to that the Senator knows as well as I; but that brings us back again to the necessity of information.

MR. HOWARD. Any civil government, any legislative power for the
actual exercise of legislative functions?

MR. SUMNER. I think there is no evidence that there is a legislative body; and I must say I await with great anxiety the evidence of their action on the subject of Slavery itself. What assurance have we that slavery will be terminated by these insurgents? Have they the will? Have they the power? I know the report that they have abolished slavery, but this report leaves much to be desired. I wish it to be authenticated and relieved from all doubt. It is said that there are two decrees,--one to be read at home, and another to be read abroad. Is this true? And even if not true, is there any assurance that the insurrectionists are able to make this decree good? But while I require the surrender of slavery from the insurrectionists, I make the same requirement of Spain. Why has this power delayed?

MR. MORTON. I ask the Senator if Spain has not recently
affirmed the existence of slavery in Cuba and Porto Rico,
especially in Porto Rico, by publishing a new constitution
guarantying the existence of slavery?

MR. SUMNER. I am not able to inform the Senator precisely on that point. I do know enough, however, to satisfy me that Spain is a laggard on this question; and if my voice could reach her now, it would plead with her to be quick, to make haste to abolish slavery, not only in Cuba, but in Porto Rico. Its continued existence is a shame, and it should cease.

* * * * *

I have no disposition to go into this subject at length. There is, however, one other remark that the Senator from Wisconsin made to which I shall be justified in replying. He alludes to the case of the Hornet, and the proceedings against that vessel.[190] It is not for me now to vindicate those proceedings. They may have been proper under the statute, or may not; but it is very clear to me that the cases of the Hornet and the Spanish gun-boats are plainly distinguishable, and, if the Senate will pardon me one moment, I will make the distinction, I think, perfectly apparent. We all know that two or three or four or a dozen persons may levy war against the Government, may levy war against the king. A traitor levies war against the king. The king, when he proceeds against the traitor, does not levy war. He simply proceeds in the exercise of his executive functions in order to establish his authority. And in the spirit of this illustration I am disposed to believe that the United States were perfectly justifiable, even under this statute, in arresting the Hornet; but they would not be justifiable in arresting the Spanish gun-boats. The Hornet was levying war against Spain, and therefore subject to arrest. The gun-boats are levying no war, simply because the insurrection against which they are to be used has not reached the condition of war.

MR. CARPENTER. Will the Senator allow me to ask one other
question?

MR. SUMNER. Certainly.

MR. CARPENTER. What I want to know is this: whether the
condition of neutrality does not necessarily depend upon the
fact that war is progressing between two parties? Can there
be any neutrality, unless there is a contest of arms going
on between two somebodies? Now, if it be a violation of our
Neutrality Act for one of those bodies to come in and fit out
vessels in the United States, is it not equally so for the
other?--or is our pretence of neutrality a falsehood, a cheat,
and a delusion?

MR. SUMNER. Mr. President, I do not regard it as a question of neutrality. Until the belligerence of these people is recognized, they are not of themselves a power, they are not a people. Therefore there can be no neutrality on the part of our Government between Spain and her revolted subjects, until they come up to the condition of a people. They have not reached that point; and therefore I submit that there is at this moment no question of neutrality, and that the argument of the Senator in that respect was inapplicable. When the belligerence of the insurgents is recognized there will be a case for neutrality, and not before.

ADMISSION OF VIRGINIA TO REPRESENTATION IN CONGRESS.

SPEECHES IN THE SENATE, JANUARY 10, 11, 12, 13, 14, 19, 21, 1870.

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

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

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

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

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

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

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

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

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

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

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

MR. MORTON. Will the Senator allow me one moment?

MR. SUMNER. Certainly.

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

MR. SUMNER. My answer to the Senator is found in the last section of the Act authorizing the submission, of the Constitutions of these States, as follows:--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * * * *

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

Mr. Walker, addressing the audience, says:--

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

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

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

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

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

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

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

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

And then it proceeds to say that--

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

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

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

MR. CARPENTER. Will the Senator allow me to ask him a question?

MR. SUMNER. Certainly.

MR. CARPENTER. In speaking of a State of this Union, does not
the Senator understand the term to apply to the corporation, so
to speak,--the Government of the State?

MR. SUMNER. I do not.

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

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

MR. CARPENTER. But her Government was not.

MR. SUMNER. Not out. Her Government was destroyed.

MR. CARPENTER. Yes, and thereby she ceased to be a member of
the Union.

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

* * * * *

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

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

MR. CARPENTER. Will the Senator allow me?

MR. SUMNER. Certainly.

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

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

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

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

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

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

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

MR. SUMNER. I have not said that.

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

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

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

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

THE PRESIDING OFFICER. (Mr. ANTHONY, of Rhode Island, in the
chair.) The pending motion is the motion of the Senator from
Massachusetts [Mr. WILSON] to refer the bill to the Committee
on the Judiciary.

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

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

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

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