Schurz's speech, delivered on the 14th of April, was a masterpiece of political philosophy, not inferior to anything in the orations of Edmund Burke. It was a plea for the abrogation of all political disabilities. It occupies three pages of the Congressional Globe. Among other things he said:
On the whole, sir, let us not indulge in the delusion that we can eradicate all the disorders that exist in the South by means of laws and by the application of penal statutes. Laws are apt to be especially inefficacious when their constitutionality is, with a show of reason, doubted, and when they have the smell of partisanship about them; and however pure your intentions may be (and I know they are), in that light a law like this, unless greatly modified, will appear suspicious. If we want to produce enduring effects there, our remedies must go to the root of the evil; and in order to do that, they must operate upon public sentiment in the South. I admit that in that respect the principal thing cannot be done by us: it must be done by the Southern people themselves. But at any rate, we can in a great measure facilitate it.[120]
Edmunds and Carpenter, of the Judiciary Committee, held that the Fourteenth Amendment of the Constitution gave power to the federal authorities to enforce the ordinary criminal law as between persons in the states. Some years later a case, arising under this Ku-Klux Law in Tennessee, reached the Supreme Court, where it was pronounced unconstitutional and void. The court held that the three latest amendments of the Constitution prohibited the states from discriminating against citizens on account of race or color, but did not change the administration of the criminal law in the states. That jurisdiction remained with the states exclusively. Here Trumbull's position was sustained almost in his own words.[121]
While the Ku-Klux Act was doing its work in South Carolina under suspension of the habeas corpus, the Senate on December 20, 1871, took up a bill which had passed the House by more than two-thirds majority to remove the legal and political disabilities imposed by the Fourteenth Amendment, except in a few cases. Sumner moved as an amendment a bill which he had previously offered as a separate measure, that all citizens, without distinction of race or color, should have equal rights in steamboats, railway cars, hotels, theatres, churches, jury service, common schools, colleges, and cemeteries, whether under federal or State authority. Trumbull, and the two Senators from South Carolina, besought him not to encumber the Amnesty Bill, which required a two-thirds vote, with the Equal Rights Bill which required only a majority, since they believed that both could be passed separately, but that if his bill were tacked upon the Amnesty Bill, both would fail. Sumner insisted upon his amendment, and a vote was taken on it, February 9, resulting in a tie (Trumbull and Schurz voting in the negative), whereupon the Vice-President (Colfax) voted in the affirmative. The Sumner amendment having been adopted, all the Democrats turned against the bill and it was lost by 33 to 19, not two thirds.
A second attempt, beginning in the House, had the same result. When the bill was taken up in the Senate Sumner again moved his Equal Rights Bill as an amendment, and it was again adopted by the casting vote of the Vice-President, and then the whole was lost by 32 to 22.
In the mean time the Liberal Republican Convention had met at Cincinnati and adopted a platform very emphatic on the subject of amnesty. A sudden change came over the spirit of the regulars. The Amnesty Bill was reintroduced in the House by General Butler, May 13, and passed the same day without debate. It was taken up in the Senate, May 21. Sumner's Equal Rights Bill, when offered in a modified form as an amendment, was rejected by 11 to 81, and the bill was passed the same day by 38 to 2, the negatives being Sumner and Nye.