Chapter VIII: Conclusion (5)

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.

Mr. Wilson’s motion for a reference of the bill having been
withdrawn, the Senate proceeded to vote on the various
amendments offered. Mr. Edmunds’s Proviso was carried by
Yeas 45, Nays 16. Other amendments, imposing “fundamental
conditions,” to secure equality in suffrage, in eligibility
to office, and in school rights and privileges, passed by
small majorities. A Preamble, moved by Mr. Morton, declaring
“good faith” in the framing and adoption of a republican State
Constitution and in the ratification of the Fourteenth and
Fifteenth Amendments to the National Constitution “a condition
precedent to representation of the State in Congress,” was
adopted by Yeas 39, Nays 20. The bill as thus amended then
passed by Yeas 47, Nays 10. Mr. Sumner voted for all the
amendments, but did not vote upon the bill itself,--it being
his opinion, as shown by his speeches during the debates, that
the admission of Virginia at that time, with its legislative
and executive departments as then constituted, would endanger
the rights and security of her loyal people.

FINANCIAL RECONSTRUCTION AND SPECIE PAYMENTS.

SPEECHES IN THE SENATE, JANUARY 12, 26, FEBRUARY 1, MARCH 2, 10, 11, 1870.

January 12, 1870, Mr. Sumner, in accordance with previous
notice, asked and obtained leave to introduce the following
bill:--

A Bill to authorize the refunding and consolidation of
the national debt, to extend banking facilities, and to
establish specie payments.