EQUAL PAY OF COLORED SOLDIERS.

MR. PRESIDENT,—I am grateful to the Senator from Connecticut [Mr. Foster] for his admirable argument on this question; and yet it seems to me, if he will pardon me, that even in point of law he has not stated the case as strongly in favor of this obligation as it might be stated. It may be remembered, that, when this discussion was closing, the other day, I ventured to throw out the remark, that there were evidently two classes of cases: the first, where enlistments in good faith were made under the statute of 1861; and the second, where they were made under the statute of 1862.

In point of law, it seems obvious, if enlistments were made in good faith under the statute of 1861, and there was no legal objection to those enlistments, then the United States are bound. If, on the contrary, they were made under the subsequent statute, then it is simply a question of policy and expediency whether we shall make this payment. The whole subject is open to discussion,—first, in the light of sentiment, which may involve expediency and policy, and, secondly, in the light of law. I shall not say anything upon it in the first aspect, except to make one remark,—that our country at this moment can ill afford to take the responsibility of refusing justice to colored soldiers whom it has allowed to shed their blood in its cause. The soul repudiates any such sacrifice,—for sacrifice it will be, at once of honor and of interest. I do not follow out this idea, but pass at once to the second aspect, which I called the question of law; and there I differ from my learned friend from Connecticut, when I say that there are certain colored regiments in the field who in point of law are entitled to the full wages of thirteen dollars a month.

Mr. Sumner. Very well. I still understood the Senator to imply that perhaps in point of law there might be some doubt whether the Government was liable for the thirteen dollars a month. I propose to carry the argument a little further, and show, by calling attention for one moment to the statutes,—not at any great length,—that, under the statutes themselves, the Government is obliged to pay certain regiments thirteen dollars a month.

I begin with the Massachusetts fifty-fourth and fifty-fifth regiments; and these may be taken as examples. I have before me the actual order under which those two regiments were raised.

Mark, Sir, if you please, the period of service,—“for three years,”—

Now, on the face of this order, the Governor of Massachusetts is empowered to raise certain regiments in the volunteer service of the United States for three years. Under what statute? Under no other, surely, than the statute of 1861, for it was under that statute that the organization for three years was authorized. If you come to the later statute—and to that I ask particular attention—of July 17, 1862, which contains a special provision with reference to African troops, you will find that it is to raise troops for nine months.

And then, Sir, in section twelve of this same statute, the President is further empowered to employ persons of African descent. In section fifteen we come to the question of pay.

“Under this Act,”—an Act authorizing enrolments for nine months, not for three years—

Now, Sir, you have the question precisely: Under what statute were these enlistments made? Were they under the nine months’ statute, or under the three years’ statute? To answer that question, look at the order of the War Department:—

Here are no nine months’ men. There is nobody under the second statute, but all are clearly under the first by the plain language of the order. And this is none the less so, even if the second statute, so far as Africans are concerned, may be interpreted to sanction a longer term of enlistment.

Mark well, that “all persons who have been or shall be hereafter enrolled in the service of the United States under this Act shall receive the pay and rations now allowed by law to soldiers.” (§ 15.) But were not the soldiers of the fifty-fourth and fifty-fifth Massachusetts regiments “enrolled in the service of the United States”? Unquestionably, if troops ever were enrolled.

But it is the proviso that follows which causes the mischief. “Persons of African descent, who under this law shall be employed, shall receive ten dollars,” &c.

It is said that these colored soldiers were “employed,”—that is all,—not “enrolled,” but “employed”; and on this distinction the promise of Governor Andrew in the name of the National Government, and the honest expectations of the soldiers, are set aside.

The order of the Secretary of War is for “volunteer companies of artillery,” also for “corps of infantry,” “to be enlisted for three years,” “and may include persons of African descent.” The persons of African descent are to be included in the artillery or infantry “enlisted.” Such persons are in advance declared men to be enlisted. And yet the argument which denies them their well-earned wages asserts that they are only “employed,” and not enlisted. But if they are “employed,” then are the “corps of infantry” in which they are included “employed” also.

To me the conclusion seems irresistible, on the face of these facts, that these troops were enrolled or enlisted under the earlier statute. It is clear that Governor Andrew thought so at the time, and it is equally clear that the troops themselves thought so at the time.

But there remains behind another question. Is there anything in existing legislation to prevent the enlistment of a colored person under the statute of 1861? To this I answer positively in the negative, and I challenge contradiction. There is no color in that statute. There is no color in any statute raising troops for the army of the United States, nor any color in any statute raising sailors for the navy of the United States. Only in our militia statutes do you find the word “white.” In all our army and navy statutes there is no such limitation. The statute of 1861, therefore, in point of law embraced all persons, whether black or white, and it was entirely at the option of the President, before the passage of the statute of 1862, to organize or receive colored troops under that statute. He hesitated. I regretted at the time his hesitation. I thought it an error by which the country suffered. We endeavored to repair that error by the amendment introduced by the brave Senator from New York, who is no longer here [Mr. King], which you will find in the statutes of 1862. But I doubt if any person at the time, who had given attention to the subject, supposed this amendment necessary, except as an encouragement to a policy which the Government was too slow to adopt. For myself, I remember well my own feelings in voting for it. I accepted it as notice to the Administration that in the opinion of Congress the time had come when colored troops must be used. In point of law it was plain that it could not stand in the way of an enrolment under the earlier statute.

And the Secretary of War seems to have acted on this interpretation; for, in undertaking to raise colored troops, no allusion was made to the statute of 1862, but the language of his order in every particular pointed to the statute of 1861. Am I wrong, then, if I say that in point of law these colored troops have just the same right to the full pay of a soldier that any Senator on this floor has to his compensation? It is by just as good title, and as firm in the statute-book, as your own pay, Sir.

I suggested, the other day, that there were two classes of cases,—one where the enlistments had been made in good faith under the earlier statute, and a second class where they had been made under the later statute; and I suggested, that, if we were disposed to recognize the difference between these two classes, it might afford a solution to our present difficulties. I am not disposed, on any ground of sentiment, to impose an unnecessary tax upon the burdened treasury of my country, although there is no tax required by justice that I would hesitate to impose. If there are colored troops in our service, who, at the time they were mustered, had no reason to suppose that they were enlisted under the statute of 1861, who were led to believe that they came under the statute of 1862, that is, for the pay of ten dollars, I am not disposed to press for them any claim on ground of sentiment,—that is, for the past. I take the past as it is; but for the future I insist that they shall be put upon an equality. True equality in the past is for the National Government to redeem its pledges, whether direct or only implied,—whether there is an absolute promise, of which you have a record, or only an inference or understanding, founded, it may be, in misconception, but still embraced in good faith by innocent parties. On this ground, at a proper moment, I shall be ready to propose an amendment something like the following, to come in immediately after the word “service”:—

Mr. President,—I hope the Senator from Indiana will pardon me, if I refer to him for one minute. He is so uniformly generous and just that I was the more surprised, when I listened to his remarks just now. I was surprised at his lack of generosity and his lack of justice—he will pardon me—toward these colored soldiers. I was surprised—he will pardon me—at his injustice to the State of Massachusetts. He spoke disparagingly of the colored soldiers. He thought they had been paid enough. He thought that the gallant blood shed on the parapets of Fort Wagner had been paid enough; and he failed to see that the men who died for us on that bloody night, and were buried in the same grave with the devoted colonel who led them, now stood alive in this presence to plead for the equality of their race. How can I help regret that the Senator was led into such remark?

Also, in the ardor of his utterance,—he will pardon me still further,—the Senator undertook to say, that, if we entered on this payment, we should charge the Treasury with some one or two hundred millions in addition to its present burden. Why, Sir, that is an entire mistake. Even if we pay everything contemplated by the resolution, I am told that the whole will be little more than a million: much, I admit, to charge unnecessarily upon the Treasury, but not the very large sum which seemed to fill the patriotic vision of the Senator.

Mr. Sumner. I accept the correction gladly. Certainly I have no disposition to press anything beyond the meaning of the Senator. But he will allow me to say that I was hardly mistaken in his argument. It was, that we should charge the Treasury with a burden it could ill bear. Now, if this money is due, let us charge the Treasury with the burden; and that brings me again to the direct question, Is not the money due? The Senator denies it; but he will pardon me again, if I say he hardly went into an argument on that head. I repeat, then, is the money due? I dislike to trouble the Senate by going over topics already too much discussed; but I trust they will excuse me, if I state the case yet once more. On many accounts I confess a special interest in it; not the least is that I would have my country above doing injustice, least of all injustice to people of a race too long crushed by injustice.

The argument need not be long. In the first place, the statute of 1861 contains no words which can be interpreted in any way to exclude the enrolment of persons of color under it. I challenge any Senator to mention a single word in that statute authorizing any such exclusion. You have, then, the statute in the case. That is the first point. Then you have the order from the Secretary of War to Governor Andrew, authorizing an enrolment for three years, making no discrimination between persons of African descent and white soldiers. That is the second point. You have, in the third place, the open promises and pledges of Governor Andrew, under that order, and for the time being the agent of the United States, solemnly promising the full pay of thirteen dollars a month to these colored persons as soldiers of the United States. And, in the last place, you have the very terms of enlistment subscribed by these soldiers at the time of enlistment, which I read the other day, where it is expressly stated that they entered into service under the statute of 1861.

These four points,—the statute of 1861, the order of the Secretary, the promise of Governor Andrew in behalf of the United States, and the terms of enlistment,—all these make a case by which, as it seems to me, the Government is bound. In face of these, how can it be said that these colored troops were “employed” under the statute of 1862? There is no ingenuity of interpretation which can place them there.

That I am not mistaken in the facts on which I found this argument is apparent from a letter which I hold in my hand, written by one of these soldiers, now on Morris Island. I content myself with a brief extract.

Mr. Sumner. Certainly.

Mr. Sumner. Of course the order is applicable simply to the enlisted men. It is not applicable to the officers.

The letter goes on to say,—

How?

Such was the understanding. By this lure you won these men to the field of sacrifice.

I have already said too much, but before I sit down I cannot forget that the Senator from Indiana, in his impetuous movement, brushed against the Commonwealth of Massachusetts. I do not remember his precise words, nor do I care to remember them. But he more than intimated that there was on the part of this State something else than a patriotic motive in pressing this obligation. I think he said this whole effort is to save the payment of this extra money. Does not the Senator know that Massachusetts has already provided for the payment of this sum, so far as its own two regiments are concerned, and that those regiments have refused to receive it? These colored troops declare that they were enlisted as soldiers of the United States, and as such are entitled to the pay of soldiers of the United States from the Government of the United States. If it be wrong to maintain their claim, then is Massachusetts wrong, then am I wrong. If the claim is maintained earnestly, it is because, both in law and in sentiment, and on every ground of policy or expediency, it commends itself to those who represent Massachusetts. And now, since this State has been called in question, I shall not content myself with merely giving my own opinions and arguments, but I ask you to listen to her honored Governor.

In an official communication to the Legislature of Massachusetts, Governor Andrew has discussed this whole question with his accustomed lucidity and thoroughness. Here is something of what he says.

The Governor, after considering some details of the argument, proceeds as follows.

Such is the statement of the Governor on this question in point of law. At the time these regiments were mustered into the service he believed that he was acting legally under the statutes of the United States. He so instructed these men; and these men naturally believed him, and gave themselves, generously, nobly, beautifully, to the public service. Will the country now disown them? Will the country now fasten a ban upon them, and lead them to say in their hearts that they have been duped?

From the question of law I pass to that other question which occupied the attention of the Senator from Maine, as to when and where we should meet this obligation. He says, Bring in a separate bill. That was said the other day. I say, Meet it whenever it appears. It is in itself a case of such absolute and overwhelming justice that the Senate ought not to postpone it for a single day,—especially ought not to postpone it, when it has under consideration a bill so entirely germane as the present. If it were a bill concerning the Pacific Railroad or the sale of gold, it might be questionable whether the proposition should be ingrafted upon it; but, as it is a bill to put colored troops on an equality with other troops in the national service, I say that the pending proposition is perfectly germane, and, being in itself of commanding justice, ought not to be postponed. It is a common device of enemies to object to a measure on a particular bill. For myself, I wish it understood that I am for the proposition on any bill and at any time.

I stated last night that in my opinion this report undertook to conclude something, but did not conclude it. On further consideration, I am satisfied that I was not much mistaken. It is a conclusion in which nothing is concluded. I may say, too, that it is not entirely creditable to Congress, and, so far as I now accept the result, it will be with much reluctance. It would have better become Congress to recognize a solemn obligation toward those now baring their breasts for us in battle, and falling on the ramparts of the enemy, rather than question their title to pay as soldiers, which I believe as strong for them as for any white soldiers. I regret sincerely that their title has not been positively recognized in the text of a statute; but, after effort in both branches, and the appointment of several committees of conference, such recognition has failed. I despair of obtaining it, at least on the present bill. On that account I am induced to look critically at the proposition before us, to see whether this affords any measure of justice. In one sense it affords nothing; and I believe the Senator from Maine [Mr. Morrill], who was on the last committee, will not differ from me on that point; but it does distinctly and unequivocally refer the question to the judgment of the Attorney-General of the United States. Substantially Congress agrees to take his opinion. He has already given it. I have it in my hand, in a communication dated April 23, 1864, on a case submitted by the President.

And then again he says:—

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

OPENING OF THE STREET-CARS TO COLORED PERSONS.

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

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

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

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

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