TO THE PEOPLE OF THE UNITED STATES.
The month of August last witnessed at Paris a Congress or Convention of persons from various countries, to consider what could be done to promote the sacred cause of Universal Peace. France, Germany, Belgium, England, and the United States were represented by large numbers of men eminent in business, politics, literature, religion, and philanthropy. The Catholic Archbishop of Paris, and the eloquent Protestant preacher, M. Athanase Coquerel,—Michel Chevalier, Horace Say, and Frédéric Bastiat, distinguished political economists,—Émile de Girardin, the most important political editor of France,—Victor Hugo, illustrious in literature,—Lamartine, whose glory it is to have turned the recent French Revolution, at its beginning, into the path of Peace,—and Richard Cobden, the world-renowned British statesman, the unapproached model of an earnest, humane, and practical Reformer,—all these gave to this august assembly the sanction of their presence or approbation. Victor Hugo, on taking the chair as President, in an address of persuasive eloquence, shed upon the occasion the illumination of his genius,—while Mr. Cobden, participating in all the proceedings, impressed upon them his characteristic common sense.
The Congress adopted, with entire unanimity, a series of resolutions, asserting the duty of governments to submit all differences between them to Arbitration, and to respect the decisions of the Arbitrators; also asserting the necessity of a general and simultaneous disarming, not only as the means of reducing the expenditure absorbed by armies and navies, but also of removing a permanent cause of disquietude and irritation. The Congress condemned all loans and taxes for wars of ambition or conquest. It earnestly recommended the friends of Peace to prepare public opinion, in their respective countries, for the formation of a Congress of Nations, to revise the existing International Law, and to constitute a High Tribunal for the decision of controversies among nations. In support of these objects, the Congress solemnly invoked the representatives of the press, so potent to diffuse truth, and also all ministers of religion, whose holy office it is to encourage good-will among men.
The work thus begun has been continued since. In England and the United States large public meetings have welcomed the returning delegates. Men have been touched by the grandeur of the cause. Not in the aspirations of religion and benevolence only, but in the general heart and mind, has it found reception, filling all who embrace it with new confidence in the triumph of Christian truth.
Another Congress or Convention has been called to meet at Frankfort-on-the-Main, in the month of August next, to do what is possible, by mutual counsels and encouragement, to influence public opinion, and to advance still further the cause which has been so well commended by the Congress at Paris.
To promote the objects of this Congress generally, and particularly to secure the attendance of a delegation from the United States, in number and character not unworthy of the occasion, a Committee, representing friends of Peace throughout the country, various in opinion, has been appointed, under the name of "Peace Congress Committee for the United States." This Committee now appeal to their fellow-citizens for coöperation in this work.
The Committee hope, in the first place, to interest our Government at Washington in the objects contemplated by the proposed Congress. As this can be done only through the prompting of the people, they recommend petitions like the following:—
"PETITION FOR PEACE.
"To the Honorable Senate (or H. of R.) of the United States.
"The undersigned, inhabitants (or citizens, or legal voters) of——, in the State of——, deploring the manifold evils of War, and believing it possible to supersede its alleged necessity, as an Arbiter of Justice among Nations, by the timely adoption of wise and feasible substitutes, respectfully request your honorable body to take such action as you may deem best in favor of Stipulated Arbitration, or a Congress of Nations, for the accomplishment of this most desirable end."
As the number of delegates to the proposed Congress is not limited, the Committee hope to see States, Congressional Districts, Towns, and other bodies represented. Every delegate will be a link between the community, large or small, from which he comes, and the cause of Universal Peace.
The Committee recommend a State Convention in each State to choose a State Committee, and also two delegates at large from the State;
Also a Convention in each Congressional District to choose a delegate;
Also public meetings in towns, and other smaller localities, to explain the objects of the Congress, and to choose local delegates.
The Committee also recommend to the religious and literary bodies of the country, as churches and colleges, to send delegates to the Congress.
In making this appeal, the Committee desire to impress upon their fellow-citizens the practical character of the present movement. Instead of the custom or institution of War, now recognized by International Law, as the Arbiter of Justice between Nations, they propose, by the consent of nations, to substitute a System of Arbitration, or a permanent Congress of Nations. With this change will necessarily follow a general disarming down to that degree of force required for internal police. The barbarous and incongruous War System, which now encases our Christian civilization as with a cumbrous coat of mail, will be destroyed. The enormous means, thus released from destructive industry and purposes of hate, will be appropriated to productive industry and purposes of beneficence. To help this consummation who will not labor?
The people in every part of the country, East and West, North and South, of all political parties and all religious sects, are now invited to join in this endeavor. So doing, while confident of the blessing of God, they will become fellow-laborers of wise and good men in other lands, and will secure to themselves the inexpressible satisfaction of aiding the advent of that happy day when Peace shall be organized among nations.
By order of the Peace Congress Committee for the United States.
Charles Sumner, Chairman.
Elihu Burritt, } Secretaries.
Amasa Walker,}
Boston, February 22, 1850.
[OUR IMMEDIATE ANTISLAVERY DUTIES.]
Speech at a Free-Soil Meeting at Faneuil Hall, November 6, 1850.
This speech was made a few days before the annual election in Massachusetts, and just after the passage of the Fugitive Slave Bill. As the first open denunciation of this measure, it awakened much feeling on both sides. All who felt strongly against Slavery were grateful.
It is sometimes said to have made Mr. Sumner Senator. More than anything else, it determined his selection by the Free-Soil party shortly afterwards as their candidate. On the other hand, it was often pronounced "treasonable," and in subsequent discussions at Washington, sometimes in newspapers and repeatedly in the Senate, it was employed to point the personalities of slave-masters and their allies. It was called the "Mark Antony speech." It takes the ground to which Mr. Sumner constantly adhered, that the "Fugitive Slave Bill," as he always insisted upon calling it,—refusing to call it Law,—was absolutely unconstitutional in all respects,—not only, according to the old language of the law, "to a certain intent in general," but also "to a certain intent in every particular." Such an enactment could not be treated as law; and Mr. Sumner insisted that good citizens should refuse to it all support, as our fathers refused all support to the British Stamp Act. His effort and hope were to create a public sentiment which would render its enforcement impossible.
In all times there has been something in the human conscience which forbade certain things, even though ordained by law. "A curse on him who is not enough an honest man and enough a man of courage to be capable of the crime of hospitality towards a proscribed person!" Such is the exclamation of an eloquent historian of the French Revolution, after reciting the proposition of Saint-Just, kindred to the requirement of the Fugitive Slave Bill.[53] Guizot, in his Memoirs, records an illustrative incident. Queen Hortense, mother of Louis Napoleon, at a time when all of her family were excluded from France, suddenly arrived in Paris, when, seeing Casimir Périer, Prime-Minister of Louis Philippe, she began: "I know, Sir, that I have violated a law; you have the right to arrest me; that would be just." "Legal, Madame," said the Minister, "but not just."[54]
At the pending election there was what was called a coalition between the Free-Soilers and Democrats, in the choice of State Senators and Representatives, with the understanding that the State officers chosen by the Legislature should be Democrats, and the United States Senator a Free-Soiler. But nothing was said at the time about candidates.
The meeting at Faneuil Hall was large and enthusiastic. It was organized by the choice of William B. Spooner, Esq., President,—Edward A. Raymond, William Washburn, Henry I. Bowditch, William Bates, Ebenezer Atkins, William Dall, Caleb Gill, Theodore D. Cook, Joseph Southwick, Ephraim Allen, Richard Hildreth, and Robert E. Apthorp, Vice-Presidents,—William F. Channing and Charles List, Secretaries. On taking the chair, Mr. Spooner addressed the meeting. Dr. Luther Parks then read a series of resolutions. Mr. Sumner followed, and was received with much enthusiasm. His speech is printed with the interruptions reported at the time.
Mr. Chairman, and you, my Fellow-Citizens:—
Cold and insensible must I be, not to be touched by this welcome. I thank you for the cause, whose representative only I am. It is the cause which I would keep ever foremost, and commend always to your support.
In a few days there will be an important political election, affecting many local interests. Not by these have I been drawn here to-night, but because I would bear my testimony anew to that Freedom which is above all these. And here, at the outset, let me say, that it is because I place Freedom above all else that I cordially concur in the different unions or combinations throughout the Commonwealth,—in Mr. Mann's District, of Free-Soilers with Whigs,—also in Mr. Fowler's District, of Free-Soilers with Whigs,—and generally, in Senatorial Districts, of Free-Soilers with Democrats. By the first of these two good men may be secured in Congress, while by the latter the friends of Freedom may obtain a controlling influence in the Legislature of Massachusetts during the coming session, and thus advance our cause. [Applause.] They may arbitrate between both the old parties, making Freedom their perpetual object, and in this way contribute more powerfully than they otherwise could to the cause which has drawn us together. [Cheers.]
Leaving these things, so obvious to all, I come at once to consider urgent duties at this anxious moment. To comprehend these we must glance at what Congress has done during its recent session, so long drawn out. This I shall endeavor to do rapidly. "Watchman, what of the night?" And well may the cry be raised, "What of the night?" For things have been done, and measures passed into laws, which, to my mind, fill the day itself with blackness. ["Hear! hear!">[
And yet there are streaks of light—an unwonted dawn—in the distant West, out of which a full-orbed sun is beginning to ascend, rejoicing like a strong man to run a race. By Act of Congress California has been admitted into the Union with a Constitution forbidding Slavery. For a measure like this, required not only by simplest justice, but by uniform practice, and by constitutional principles of slaveholders themselves, we may be ashamed to confess gratitude; and yet I cannot but rejoice in this great good. A hateful institution, thus far without check, travelling westward with the power of the Republic, is bidden to stop, while a new and rising State is guarded from its contamination. [Applause.] Freedom, in whose hands is the divining-rod of magical power, pointing the way not only to wealth untold, but to every possession of virtue and intelligence, whose presence is better far than any mine of gold, has been recognized in an extensive region on the distant Pacific, between the very parallels of latitude so long claimed by Slavery as a peculiar home. [Loud plaudits.]
Here is a victory, moral and political: moral, inasmuch as Freedom secures a new foothold where to exert her far-reaching influence; political, inasmuch as by the admission of California, the Free States obtain a majority of votes in the Senate, thus overturning that balance of power between Freedom and Slavery, so preposterously claimed by the Slave States, in forgetfulness of the true spirit of the Constitution, and in mockery of Human Rights. [Cheers.] May free California, and her Senators in Congress, amidst the trials before us, never fail in loyalty to Freedom! God forbid that the daughter should turn with ingratitude or neglect from the mother that bore her! [Enthusiasm.]
Besides this Act, there are two others of this long session to be regarded with satisfaction,—and I mention them at once, before considering the reverse of the picture. The slave-trade is abolished in the District of Columbia. This measure, though small in the sight of Justice, is important. It banishes from the National Capital an odious traffic. But this is its least office. Practically it affixes to the whole traffic, wherever it exists,—not merely in Washington, within the immediate sphere of the legislative act, but everywhere throughout the Slave States, whether at Richmond, or Charleston, or New Orleans,—the brand of Congressional reprobation. The people of the United States, by the voice of Congress, solemnly declare the domestic traffic in slaves offensive in their sight. The Nation judges this traffic. The Nation says to it, "Get thee behind me, Satan!" [Excitement and applause.] It is true that Congress has not, as in the case of the foreign slave-trade, stamped it as piracy, and awarded to its perpetrators the doom of pirates; but it condemns the trade, and gives to general scorn those who partake of it. To this extent the National Government speaks for Freedom. And in doing this, it asserts, under the Constitution, legislative jurisdiction over the subject of Slavery in the District,—thus preparing the way for that complete act of Abolition which is necessary to purge the National Capital of its still remaining curse and shame.
The other measure which I hail with thankfulness is the Abolition of Flogging in the Navy. ["Hear! hear!">[ Beyond the direct reform thus accomplished—after much effort, finally crowned with encouraging success—is the indirect influence of this law, especially in rebuking the lash, wheresoever and by whomsoever employed.
Two props and stays of Slavery are weakened and undermined by Congressional legislation. Without the slave-trade and without the lash, Slavery must fall to earth. By these the whole monstrosity is upheld. If I seem to exaggerate the consequence of these measures of Abolition, you will pardon it to a sincere conviction of their powerful, though subtile and indirect influence, quickened by a desire to find something good in a Congress which has furnished occasion for so much disappointment. Other measures there are which must be regarded not only with regret, but with indignation and disgust. [Sensation.]
Two broad territories, New Mexico and Utah, under the exclusive jurisdiction of Congress, have been organized without any prohibition of Slavery. In laying the foundation of their governments, destined hereafter to control the happiness of innumerable multitudes, Congress has omitted the Great Ordinance of Freedom, first moved by Jefferson, and consecrated by the experience of the Northwestern Territory: thus rejecting those principles of Human Liberty which are enunciated in our Declaration of Independence, which are essential to every Bill of Rights, and without which a Republic is a name and nothing more.
Still further, a vast territory, supposed to be upwards of seventy thousand square miles in extent, larger than all New England, has been taken from New Mexico, and, with ten million dollars besides, given to slaveholding Texas: thus, under the plea of settling the western boundary of Texas, securing to this State a large sum of money, and consigning to certain Slavery an important territory.
And still further, as if to do a deed which should "make heaven weep, all earth amazed," this same Congress, in disregard of all cherished safeguards of Freedom, has passed a most cruel, unchristian, devilish law to secure the return into Slavery of those fortunate bondmen who find shelter by our firesides. This is the Fugitive Slave Bill,—a device which despoils the party claimed as slave, whether in reality slave or freeman, of Trial by Jury, that sacred right, and usurps the question of Human Freedom,—the highest question known to the law,—committing it to the unaided judgment of a single magistrate, on ex parte evidence it may be, by affidavit, without the sanction of cross-examination. Under this detestable, Heaven-defying Bill, not the slave only, but the colored freeman of the North, may be swept into ruthless captivity; and there is no white citizen, born among us, bred in our schools, partaking in our affairs, voting in our elections, whose liberty is not assailed also. Without any discrimination of color, the Bill surrenders all claimed as "owing service or labor" to the same tyrannical judgment. And mark once more its heathenism. By unrelenting provisions it visits with bitter penalties of fine and imprisonment the faithful men and women who render to the fugitive that countenance, succor, and shelter which Christianity expressly requires. ["Shame! shame!">[ Thus, from beginning to end, it sets at nought the best principles of the Constitution, and the very laws of God. [Great sensation.]
I might occupy your time in exposing the unconstitutionality of this Act. Denying the Trial by Jury, it is three times unconstitutional: first, as the Constitution declares "the right of the people to be secure in their persons against unreasonable seizures"; secondly, as it further provides that "no person shall be deprived of life, liberty, or property, without due process of law"; and, thirdly, because it expressly establishes, that "in suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." By this triple cord the framers of the Constitution secured Trial by Jury in every question of Human Freedom. That man is little imbued with the true spirit of American institutions, has little sympathy with Bills of Rights, is lukewarm for Freedom, who can hesitate to construe the Constitution so as to secure this safeguard. [Enthusiastic applause.]
Again, the Act is unconstitutional in the unprecedented and tyrannical powers it confers upon Commissioners. These petty officers are appointed, not by the President with the advice of the Senate, but by the Courts of Law,—hold their places, not during good behavior, but at the will of the Court,—and receive for their services, not a regular salary, but fees in each individual case. And yet in these petty officers, thus appointed, thus compensated, and holding their places by the most uncertain tenure, is vested a portion of that "judicial power," which, according to the positive text of the Constitution, can be in "judges" only, holding office "during good behavior," receiving "at stated times for their services a compensation which shall not be diminished during their continuance in office," and, it would seem also, appointed by the President and confirmed by the Senate,—being three conditions of judicial power. Adding meanness to violation of the Constitution, the Commissioner is bribed by a double fee to pronounce against Freedom. Decreeing a man to Slavery, he receives ten dollars; saving the man to Freedom, his fee is five dollars. ["Shame! shame!">[
But I will not pursue these details. The soul sickens in the contemplation of this legalized outrage. In the dreary annals of the Past there are many acts of shame,—there are ordinances of monarchs, and laws, which have become a byword and a hissing to the nations. But when we consider the country and the age, I ask fearlessly, what act of shame, what ordinance of monarch, what law, can compare in atrocity with this enactment of an American Congress? ["None!">[ I do not forget Appius Claudius, tyrant Decemvir of ancient Rome, condemning Virginia as a slave,—nor Louis the Fourteenth, of France, letting slip the dogs of religious persecution by the revocation of the Edict of Nantes,—nor Charles the First, of England, arousing the patriot rage of Hampden by the extortion of Ship-money,—nor the British Parliament, provoking, in our own country, spirits kindred to Hampden, by the tyranny of the Stamp Act and Tea Tax. I would not exaggerate; I wish to keep within bounds; but I think there can be little doubt that the condemnation now affixed to all these transactions, and to their authors, must be the lot hereafter of the Fugitive Slave Bill, and of every one, according to the measure of his influence, who gave it his support. [Three cheers were here given.] Into the immortal catalogue of national crimes it has now passed, drawing, by inexorable necessity, its authors also, and chiefly him, who, as President of the United States, set his name to the Bill, and breathed into it that final breath without which it would bear no life. [Sensation.] Other Presidents may be forgotten; but the name signed to the Fugitive Slave Bill can never be forgotten. ["Never!">[ There are depths of infamy, as there are heights of fame. I regret to say what I must, but truth compels me. Better for him, had he never been born! [Renewed applause.] Better for his memory, and for the good name of his children, had he never been President! [Repeated cheers.]
I have likened this Bill to the Stamp Act, and I trust that the parallel may be continued yet further, by a burst of popular feeling against all action under it similar to that which glowed in the breasts of our fathers. Listen to the words of John Adams, as written in his Diary at the time.
"The year 1765 has been the most remarkable year of my life. That enormous engine, fabricated by the British Parliament, for battering down all the rights and liberties of America, I mean the Stamp Act, has raised and spread through the whole continent a spirit that will be recorded to our honor with all future generations. In every colony, from Georgia to New Hampshire inclusively, the stamp distributors and inspectors have been compelled by the unconquerable rage of the people to renounce their offices. Such and so universal has been the resentment of the people, that every man who has dared to speak in favor of the stamps, or to soften the detestation in which they are held, how great soever his abilities and virtues had been esteemed before, or whatever his fortune, connections, and influence had been, has been seen to sink into universal contempt and ignominy."[55] [A voice, "Ditto for the Slave-Hunter!">[
Earlier than John Adams, the first Governor of Massachusetts, John Winthrop, set the example of refusing to enforce laws against the liberties of the people. After describing Civil Liberty, and declaring the covenant between God and man in the Moral Law, he uses these good words:—
"This Liberty is the proper end and object of authority, and cannot subsist without it; and it is a liberty to that only which is good, just, and honest. This liberty you are to stand for, with the hazard not only of your goods, but of your lives, if need be. Whatsoever crosseth this is not authority, but a distemper thereof."[56]
Surely the love of Freedom is not so far cooled among us, descendants of those who opposed the Stamp Act, that we are insensible to the Fugitive Slave Bill. In those other days, the unconquerable rage of the people compelled the stamp distributors and inspectors to renounce their offices, and held up to detestation all who dared to speak in favor of the stamps. Shall we be more tolerant of those who volunteer in favor of this Bill? ["No! no!">[—more tolerant of the Slave-Hunter, who, under its safeguard, pursues his prey upon our soil? ["No! no!">[ The Stamp Act could not be executed here. Can the Fugitive Slave Bill? ["Never!">[
And here, Sir, let me say, that it becomes me to speak with caution. It happens that I sustain an important relation to this Bill. Early in professional life I was designated by the late Judge Story a Commissioner of his Court, and, though I do not very often exercise the functions of this appointment, my name is still upon the list. As such, I am one of those before whom the panting fugitive may be dragged for the decision of the question, whether he is a freeman or a slave. But while it becomes me to speak with caution, I shall not hesitate to speak with plainness. I cannot forget that I am a man, although I am a Commissioner. [Three cheers here given.]
Could the same spirit which inspired the Fathers enter into our community now, the marshals, and every magistrate who regarded this law as having any constitutional obligation, would resign, rather than presume to execute it. This, perhaps, is too much to expect. But I will not judge such officials. To their own consciences I leave them. Surely no person of humane feelings and with any true sense of justice, living in a land "where bells have knolled to church," whatever may be the apology of public station, can fail to recoil from such service. For myself let me say, that I can imagine no office, no salary, no consideration, which I would not gladly forego, rather than become in any way the agent in enslaving my brother-man. [Sensation.] Where for me were comfort and solace after such a work? [A voice, "Nowhere!">[ In dreams and in waking hours, in solitude and in the street, in the meditations of the closet and in the affairs of men, wherever I turned, there my victim would stare me in the face. From distant rice-fields and sugar-plantations of the South, his cries beneath the vindictive lash, his moans at the thought of Liberty, once his, now, alas! ravished away, would pursue me, repeating the tale of his fearful doom, and sounding, forever sounding, in my ears, "Thou art the man!" [Applause.]
The magistrate who pronounces the decree of Slavery, and the marshal who enforces it, act in obedience to law. This is their apology; and it is the apology also of the masters of the Inquisition, as they ply the torture amidst the shrieks of their victim. Can this weaken accountability for wrong? Disguise it, excuse it, as they will, the fact must glare before the world, and penetrate the conscience too, that the fetters by which the unhappy fugitive is bound are riveted by their tribunal,—that his second life of wretchedness dates from their agency,—that his second birth as a slave proceeds from them. The magistrate and marshal do for him here, in a country which vaunts a Christian civilization, what the naked, barbarous Pagan chiefs beyond the sea did for his grandfather in Congo: they transfer him to the Slave-Hunter, and for this service receive the very price paid for his grandfather in Congo,—ten dollars! ["Shame! shame!">[
Gracious Heaven! can such things be on our Free Soil? ["No!">[ Shall the evasion of Pontius Pilate be enacted anew, and a judge vainly attempt, by washing the hands, to excuse himself for condemning one in whom he can "find no fault"? Should any court, sitting here in Massachusetts, for the first time in her history, become agent of the Slave-Hunter, the very images of our fathers would frown from the walls; their voices would cry from the ground; their spirits, hovering in the air, would plead, remonstrate, protest, against the cruel judgment. [Cheers.] There is a legend of the Church, still living on the admired canvas of a Venetian artist, that St. Mark, descending from the skies with headlong fury into the public square, broke the manacles of a slave in presence of the very judge who had decreed his fate. This is known as "The Miracle of the Slave," and grandly has Art illumined the scene.[57] Should Massachusetts hereafter, in an evil hour, be desecrated by any such decree, may the good Evangelist once more descend with valiant arm to break the manacles of the Slave! [Enthusiasm.]
Sir, I will not dishonor this home of the Pilgrims, and of the Revolution, by admitting—nay, I cannot believe—that this Bill will be executed here. ["Never!">[ Among us, as elsewhere, individuals may forget humanity, in fancied loyalty to law; but the public conscience will not allow a man who has trodden our streets as a freeman to be dragged away as a slave. [Applause.] By escape from bondage he has shown that true manhood which must grapple to him every honest heart. He may be ignorant and rude, as poor, but he is of true nobility. Fugitive Slaves are the heroes of our age. In sacrificing them to this foul enactment we violate every sentiment of hospitality, every whispering of the heart, every commandment of religion.
There are many who will never shrink, at any cost, and notwithstanding all the atrocious penalties of this Bill, from effort to save a wandering fellow-man from bondage; they will offer him the shelter of their houses, and, if need be, will protect his liberty by force. But let me be understood; I counsel no violence. There is another power, stronger than any individual arm, which I invoke: I mean that irresistible Public Opinion, inspired by love of God and man, which, without violence or noise, gently as the operations of Nature, makes and unmakes laws. Let this Public Opinion be felt in its might, and the Fugitive Slave Bill will become everywhere among us a dead letter. No lawyer will aid it by counsel, no citizen will be its agent; it will die of inanition,—like a spider beneath an exhausted receiver. [Laughter.] Oh! it were well the tidings should spread throughout the land that here in Massachusetts this accursed Bill has found no servant. [Cheers.] "Sire, in Bayonne are honest citizens and brave soldiers only, but not one executioner," was the reply of the governor to the royal mandate from Charles the Ninth, of France, ordering the massacre of St. Bartholomew.[58] [Sensation.]
It rests with you, my fellow-citizens, by word and example, by calm determinations and devoted lives, to do this work. From a humane, just, and religious people will spring a Public Opinion to keep perpetual guard over the liberties of all within our borders. Nay, more, like the flaming sword of the cherubim at the gates of Paradise, turning on every side, it shall prevent any SLAVE-HUNTER from ever setting foot in this Commonwealth. Elsewhere he may pursue his human prey, employ his congenial bloodhounds, and exult in his successful game; but into Massachusetts he must not come. Again, let me be understood, I counsel no violence. I would not touch his person. Not with whips and thongs would I scourge him from the land. The contempt, the indignation, the abhorrence of the community shall be our weapons of offence. Wherever he moves, he shall find no house to receive him, no table spread to nourish him, no welcome to cheer him. The dismal lot of the Roman exile shall be his. He shall be a wanderer, without roof, fire, or water. Men shall point at him in the streets, and on the highways.
"Sleep shall neither night nor day
Hang upon his penthouse-lid;
He shall live a man forbid;
Weary sevennights nine times nine
Shall he dwindle, peak, and pine." [Applause.]
Villages, towns, and cities shall refuse to receive the monster; they shall vomit him forth, never again to disturb the repose of our community. [Repeated rounds of applause.]
The feelings with which we regard the Slave-Hunter will be extended soon to all the mercenary agents and heartless minions, who, without any positive obligation of law, become part of his pack. They are volunteers, and, as such, must share the ignominy of the chief Hunter. [Cheers.]
I have dwelt thus long upon the Fugitive Slave Bill especially in the hope of contributing something to that Public Opinion which is destined in the Free States to be the truest defence of the slave. I now advance to other more general duties.
We have seen what Congress has done. And yet, in the face of these enormities of legislation,—of Territories organized without the prohibition of Slavery, of a large province surrendered to Texas and to Slavery, and of this execrable Fugitive Slave Bill,—in the face also of Slavery still sanctioned in the District of Columbia, of the Slave-Trade between domestic ports under the flag of the Union, and of the Slave Power still dominant over the National Government, we are told that the Slavery Question is settled. Yes, settled,—settled,—that is the word. Nothing, Sir, can be settled which is not right. [Sensation.] Nothing can be settled which is against Freedom. Nothing can be settled which is contrary to the Divine Law. God, Nature, and all the holy sentiments of the heart repudiate any such false seeming settlement.
Amidst the shifts and changes of party, our Duties remain, pointing the way to action. By no subtle compromise or adjustment can men suspend the commandments of God. By no trick of managers, no hocus-pocus of politicians, no "mush of concession," can we be released from this obedience. It is, then, in the light of duties that we are to find peace for our country and ourselves. Nor can any settlement promise peace which is not in harmony with those everlasting principles from which our duties spring.
Here I shall be brief. Slavery is wrong. It is the source of unnumbered woes,—not the least of which is its influence on the Slaveholder himself, rendering him insensible to its outrage. It overflows with injustice and inhumanity. Language toils in vain to picture the wretchedness and wickedness which it sanctions and perpetuates. Reason revolts at the impious assumption that man can hold property in man. As it is our perpetual duty to oppose wrong, so must we oppose Slavery; nor can we ever relax in this opposition, so long as the giant evil continues anywhere within the sphere of our influence. Especially must we oppose it, wherever we are responsible for its existence, or in any way parties to it.
And now mark the distinction. The testimony which we bear against Slavery, as against all other wrong, is, in different ways, according to our position. The Slavery which exists under other governments, as in Russia or Turkey, or in other States of our Union, as in Virginia and Carolina, we can oppose only through the influence of morals and religion, without in any way invoking the Political Power. Nor do we propose to act otherwise. But Slavery, where we are parties to it, wherever we are responsible for it, everywhere within our jurisdiction, must be opposed not only by all the influences of literature, morals, and religion, but directly by every instrument of Political Power. [Rounds of applause.] As it is sustained by law, it can be overthrown only by law; and the legislature having jurisdiction over it must be moved to consummate the work. I am sorry to confess that this can be done only through the machinery of politics. The politician, then, must be summoned. The moralist and philanthropist must become for this purpose politicians,—not forgetting morals or philanthropy, but seeking to apply them practically in the laws of the land.
It is a mistake to say, as is often charged, that we seek to interfere, through Congress, with Slavery in the States, or in any way to direct the legislation of Congress upon subjects not within its jurisdiction. Our political aims, as well as our political duties, are coextensive with our political responsibilities. And since we at the North are responsible for Slavery, wherever it exists under the jurisdiction of Congress, it is unpardonable in us not to exert every power we possess to enlist Congress against it.
Looking at details:—
We demand, first and foremost, the instant Repeal of the Fugitive Slave Bill. [Cheers.]
We demand the Abolition of Slavery in the District of Columbia. [Cheers.]
We demand of Congress the exercise of its time-honored power to prohibit Slavery in the Territories. [Cheers.]
We demand of Congress that it shall refuse to receive any new Slave State into the Union. [Cheers, repeated.]
We demand the Abolition of the Domestic Slave-Trade, so far as it can be constitutionally reached, but particularly on the high seas under the National Flag.
And, generally, we demand from the National Government the exercise of all constitutional power to relieve itself from responsibility for Slavery.
And yet one thing further must be done. The Slave Power must be overturned,—so that the National Government may be put openly, actively, and perpetually on the side of Freedom. [Prolonged applause.]
In demanding the overthrow of the Slave Power, we but seek to exclude from the operations of the National Government a political influence, having its origin in Slavery, which has been more potent, sinister, and mischievous than any other in our history. This Power, though unknown to the Constitution, and existing in defiance of its true spirit, now predominates over Congress, gives the tone to its proceedings, seeks to control all our public affairs, and humbles both the great political parties to its will. It is that combination of Slave-masters, whose bond of union is a common interest in Slavery. Time would fail me in exposing the extent to which its influence has been felt, the undue share of offices it has enjoyed, and the succession of its evil deeds. Suffice it to say, that, for a long period, the real principle of this union was not observed by the Free States. In the game of office and legislation the South has always won. It has played with loaded dice,—loaded with Slavery. [Laughter.] The trick of the Automaton Chess-Player, so long an incomprehensible marvel, has been repeated, with similar success. Let the Free States make a move on the board, and the South says, "Check!" ["Hear! hear!">[ Let them strive for Free Trade, as they did once, and the cry is, "Check!" Let them jump towards Protection, and it is again, "Check!" Let them move towards Internal Improvements, and the cry is still, "Check!" Whether forward or backward, to the right or left, wherever they turn, the Free States are pursued by an inexorable "Check!" But the secret is now discovered. Amid the well-arranged machinery which seemed to move the victorious chess-player is a living force,—only recently discovered,—being none other than the Slave Power. It is the Slave Power which has been perpetual victor, saying always, "Check!" to the Free States. As this influence is now disclosed, it only remains that it should be openly encountered in the field of politics. [A voice, "That is the true way."]
Such is our cause. It is not sectional; for it simply aims to establish under the National Government those great principles of Justice and Humanity which are broad and universal as Man. It is not aggressive; for it does not seek in any way to interfere through Congress with Slavery in the States. It is not contrary to the Constitution; for it recognizes this paramount law, and in the administration of the Government invokes the spirit of its founders. It is not hostile to the quiet of the country; for it proposes the only course by which agitation can be allayed, and quiet be permanently established. And yet there is an attempt to suppress this cause, and to stifle its discussion.
Vain and wretched attempt! [A band of music in the street here interrupted the speaker.]
I am willing to stop for one moment, if the audience will allow me, that they may enjoy that music. [Several voices, "Go on! go on!" Another voice, "We have better music here." After a pause the speaker proceeded.]
Fellow-citizens, I was saying that it is proposed to suppress this cause, and to stifle this discussion. But this cannot be done. That subject which more than all other subjects needs careful, conscientious, and kind consideration in the national councils, which will not admit of postponement or hesitation, which is allied with the great interests of the country, which controls the tariff and causes war, which concerns alike all parts of the land, North and South, East and West, which affects the good name of the Republic in the family of civilized nations, the subject of subjects, has now at last, after many struggles, been admitted within the pale of legislative discussion. From this time forward it must be entertained by Congress. It will be one of the orders of the day. It cannot be passed over or forgotten. It cannot be blinked out of sight. The combinations of party cannot remove it. The intrigues of politicians cannot jostle it aside. There it is, in towering colossal proportions, filling the very halls of the Capitol, while it overshadows and darkens all other subjects. There it will continue, till driven into oblivion by the irresistible Genius of Freedom. [Cheers.]
I am not blind to adverse signs. The wave of reaction, after sweeping over Europe, has reached our shores. The barriers of Human Rights are broken down. Statesmen, writers, scholars, speakers, once their uncompromising professors, have become professors of compromise. All this must be changed. Reaction must be stayed. The country must be aroused. The cause must again be pressed,—with the fixed purpose never to moderate our efforts until crowned by success. [Applause.] The National Government, everywhere within its proper constitutional sphere, must be placed on the side of Freedom. The policy of Slavery, which has so long prevailed, must give place to the policy of Freedom. The Slave Power, fruitful parent of national ills, must be driven from its supremacy. Until all this is done, the friends of the Constitution and of Human Rights cannot cease from labor, nor can the Republic hope for any repose but the repose of submission.
Men of all parties and pursuits, who wish well to their country, and would preserve its good name, must join now. Welcome here the Conservative and the Reformer! for our cause stands on the truest Conservatism and the truest Reform. In seeking the reform of existing evils, we seek also the conservation of the principles handed down by our fathers. Welcome especially the young! To you I appeal with confidence. Trust to your generous impulses, and to that reasoning of the heart, which is often truer, as it is less selfish, than the calculations of the head. [Enthusiasm.] Do not exchange your aspirations for the skepticism of age. Yours is the better part. In the Scriptures it is said that "your young men shall see visions and your old men shall dream dreams"; on which Lord Bacon has recorded the ancient inference, "that young men are admitted nearer to God than old, because vision is a clearer revelation than a dream."[59]
It is not uncommon to hear people declare themselves against Slavery, and willing to unite in practical efforts. Practical is the favorite word. At the same time, in the loftiness of pharisaic pride, they have nothing but condemnation, reproach, or contempt for the earnest souls that have striven long years in this struggle. To such I would say, If you are sincere in what you declare, if your words are not merely lip-service, if in your heart you are entirely willing to join in practical effort against Slavery, then, by life, conversation, influence, vote, disregarding "the ancient forms of party strife," seek to carry the principles of Freedom into the National Government, wherever its jurisdiction is acknowledged and its power can be felt. Thus, without any interference with the States which are beyond this jurisdiction, may you help to efface the blot of Slavery from the National brow.
Do this, and you will most truly promote that harmony which you so much desire. And under this blessed influence tranquillity will be established throughout the country. Then, at last, the Slavery Question will be settled. Banished from its usurped foothold under the National Government, Slavery will no longer enter, with distracting force, into national politics, making and unmaking laws, making and unmaking Presidents. Confined to the States, where it is left by the Constitution, it will take its place as a local institution,—if, alas! continue it must,—for which we are in no sense responsible, and against which we cannot exert any political power. We shall be relieved from the present painful and irritating connection with it, the existing antagonism between the South and the North will be softened, crimination and recrimination will cease, and the wishes of the Fathers will be fulfilled, while this Great Evil is left to all kindly influences and the prevailing laws of social economy.
To every laborer in a cause like this there are satisfactions unknown to the common political partisan. Amidst all apparent reverses, notwithstanding the hatred of enemies or the coldness of friends, he has the consciousness of duty done. Whatever may be existing impediments, his also is the cheering conviction that every word spoken, every act performed, every vote cast for this cause, helps to swell those quickening influences by which Truth, Justice, and Humanity will be established upon earth. [Cheers.] He may not live to witness the blessed consummation, but it is none the less certain. Others may dwell on the Past as secure. Under the laws of a beneficent God the Future also is secure,—on the single condition that we labor for its great objects. [Enthusiastic applause.]
The language of jubilee, which, amidst reverse and discouragement, burst from the soul of Milton, as he thought of sacrifice for the Church, will be echoed by every one who toils and suffers for Freedom. "Now by this little diligence," says the great patriot of the English Commonwealth, "mark what a privilege I have gained with good men and saints, to claim my right of lamenting the tribulations of the Church, if she should suffer, when others, that have ventured nothing for her sake, have not the honor to be admitted mourners. But if she lift up her drooping head and prosper, among those that have something more than wished her welfare, I have my charter and freehold of rejoicing to me and my heirs."[60] We, too, may have our charter and freehold of rejoicing to ourselves and our heirs, if we now do our duty.
I have spoken of votes. Living in a community where political power is lodged with the people, and each citizen is an elector, the vote is an important expression of opinion. The vote is the cutting edge. It is well to have correct opinions, but the vote must follow. The vote is the seed planted; without it there can be no sure fruit. The winds of heaven, in their beneficence, may scatter the seed in the furrow; but it is not from such accidents that our fields wave with the golden harvest. He is a foolish husbandman who neglects to sow his seed; and he is an unwise citizen, who, desiring the spread of good principles, neglects to deposit his vote for the candidate who is the representative of those principles.
Admonished by experience of timidity, irresolution, and weakness in our public men, particularly at Washington, amidst the temptations of ambition and power, the friends of Freedom cannot lightly bestow their confidence. They can put trust only in men of tried character and inflexible will. Three things at least they must require: the first is backbone; the second is backbone; and the third is backbone. [Loud cheers.] My language is homely; I hardly pardon myself for using it; but it expresses an idea which must not be forgotten. When I see a person of upright character and pure soul yielding to a temporizing policy, I cannot but say, He wants backbone. When I see a person talking loudly against Slavery in private, but hesitating in public, and failing in the time of trial, I say, He wants backbone. When I see a person who coöperated with Antislavery men, and then deserted them, I say, He wants backbone. ["Hear! hear!">[ When I see a person leaning upon the action of a political party, and never venturing to think for himself, I say, He wants backbone. When I see a person careful always to be on the side of the majority, and unwilling to appear in a minority, or, if need be, to stand alone, I say, He wants backbone. [Applause.] Wanting this, they all want that courage, constancy, firmness, which are essential to the support of PRINCIPLE. Let no such man be trusted. [Renewed applause.]
For myself, fellow-citizens, my own course is determined. The first political convention which I ever attended was in the spring of 1845, against the annexation of Texas. I was at that time a silent and passive Whig. I had never held political office, nor been a candidate for any. No question ever before drew me to any active political exertion. The strife of politics seemed to me ignoble. A desire to do what I could against Slavery led me subsequently to attend two different State Conventions of Whigs, where I coöperated with eminent citizens in endeavor to arouse the party in Massachusetts to its Antislavery duties. A conviction that the Whig party was disloyal to Freedom, and an ardent aspiration to help the advancement of this great cause, has led me to leave that party, and dedicate what of strength and ability I have to the present movement. [Great applause.]
To vindicate Freedom, and oppose Slavery, so far as I may constitutionally,—with earnestness, and yet, I trust, without personal unkindness on my part,—is the object near my heart. Would that I could impress upon all who now hear me something of the strength of my own convictions! Would that my voice, leaving this crowded hall to-night, could traverse the hills and valleys of New England, that it could run along the rivers and the lakes of my country, lighting in every heart a beacon-flame to arouse the slumberers throughout the land! [Sensation.] In this cause I care not for the name by which I am called. Let it be Democrat, or "Loco-foco," if you please. No man in earnest will hesitate on account of a name. Rejoicing in associates from any quarter, I shall be found ever with that party which most truly represents the principles of Freedom. [Applause.] Others may become indifferent to these principles, bartering them for political success, vain and short-lived, or forgetting the visions of youth in the dreams of age. Whenever I forget them, whenever I become indifferent to them, whenever I cease to be constant in maintaining them, through good report and evil report, in any future combinations of party, then may my tongue cleave to the roof of my mouth, may my right hand forget its cunning! [Cheers.]
And now as I close, fellow-citizens, I return in thought to the political election with which I began. If from this place I could make myself heard by the friends of Freedom throughout the Commonwealth, I would give them for a rallying-cry three words,—FREEDOM, UNION, VICTORY!
The peroration was received with the most earnest applause, followed by cries of "Three cheers for Charles Sumner!" "Three cheers for Phillips and Walker!" "Three cheers for Horace Mann and the cause!"
[ACCEPTANCE OF THE OFFICE OF SENATOR OF THE UNITED STATES.]
Letter to the Legislature of Massachusetts, May 14, 1851.
The combinations or agreements between the Free-Soilers and Democrats throughout Massachusetts in the election of members of the State Legislature were successful. The election was more than usually interesting, because the Legislature was to choose a United States Senator for the term of six years from the ensuing fourth of March, in the place of Mr. Webster, who had become Secretary of State. Nothing had been said before the election with regard to candidates for this place, but there was a general understanding, at least among Free-Soilers, that it should be claimed for one of their party. Mr. Sumner had never regarded himself as a candidate, and the first intimation he had that he was so regarded by others came to him early in the morning after the election in a note written in pencil at his door by Seth Webb, Jr., Esq., afterwards the excellent Consul at Hayti, as follows.
"My dear Mr. Sumner,—
"I called to tell you such good news. We have carried everything in the State. Senate sure; House nearly certain; Governor, Senator, all. You are bound for Washington this winter.
"Yours truly,
"Seth Webb, Jr."
Similar intimations came from various quarters. Under date of December 18th, the Rev. Joshua Leavitt, the constant Abolitionist, wrote: "I confidently hope and trust that in a month from this time you will take your seat in the Senate of the United States, as the successor of Daniel Webster. I need not say how greatly I shall be gratified at such an event, both for your sake and that of the cause. It will be a worthy rebuke of cotton arrogance, pronounced in earnest and sealed by action in the name of the good old Commonwealth." An active Free-Soiler in Vermont wrote: "I think you are nearer my ideal of a Free-Soiler of this time than anybody else; so does the whole Free-Soil heart of New England. And you may depend that the actual triumph of just such a man as you are will give a heavier blow to the conspirators against Freedom, and do more to fortify the general trust in the ultimate ascendency of uncompromising right, than that of any other living being. You cannot escape from your position." Mr. Giddings and Mr. Chase both wrote from Washington, insisting that Mr. Sumner could not refuse to be a candidate. Hon. John Mills wrote from Springfield: "C.S., I am satisfied, must be the man. He stands better with the Democrats than others, and so he does with the Free-Soilers in this section of the State." Hon. C.F. Adams "saw difficulties in alliance with the Democracy"; but he added, "If our friends decide to risk themselves in that ship, I trust we may get a full consideration for the risk, and the only full consideration that we can receive is in securing your services in the Senate. If anything can be done with that iron and marble body, you may do it. You know how hopeless I think the task."
Under the unamended Constitution of Massachusetts popular elections were determined by a majority of the votes cast, and not by a plurality. In the event of a failure to secure a majority, the election of Governor and Lieutenant-Governor was transferred to the Legislature, which made a selection from the three highest candidates. This duty was now devolved upon the Legislature. At the opening of the session there were separate caucuses of the Free-Soilers and Democrats, with committees of conference, which resulted in the understanding that the Democrats should have the Governor, Lieutenant-Governor, five of the nine Councillors, the Treasurer, and the Senator for the short term, being the few weeks till the 4th of March following, while the Free-Soilers should have the Senator for the long term, being for six years from the 4th of March. The two parties united on Mr. Sumner as their candidate for Senator. The nomination by the Free-Soilers was communicated in the following letter.
"Caucus Room, State House, ½ past 10, A.M. [Jan. 7th, 1851.]
"We have just taken the vote by ballot for Senator, and you are the man.
"Whole number
"For Charles Sumner 82 "Others 00 "We have sworn to stand by you, to sink or swim with you, AT ALL HAZARDS.
"If you shall fail us in any respect, may God forgive you!—we never shall.
"Yours truly,
"E.L. Keyes.
"Charles Sumner."
| "For Charles Sumner | 82 |
| "Others | 00 |
The nomination thus unanimously conferred was welcomed beyond the caucus that made it. A letter of Richard H. Dana, Jr., written the next day, congratulates Mr. Sumner. "I have just learned that you have received the unanimous nomination of the Free-Soil caucus, as their first choice for the Senate. Whether the state of parties permits your election or not, this voluntary and unanimous tribute from our party must be a deep gratification to you through life, and I heartily congratulate you upon it."
Why Mr. Sumner was selected appears from the Commonwealth, which was at the time the organ of the Free-Soil party, and edited by Richard Hildreth, the historian. "Mr. Sumner was selected as the candidate for the Senate, because, while true as the truest to Free-Soil principles, he was supposed to be less obnoxious than any prominent Free-Soiler in the State to the Democratic party. He was never identified with any of the measures of the Whig party, except those relating to Slavery. He never entered a Whig State Convention, except to sustain the sentiment, not of the Whig party alone, but of Massachusetts, against the annexation of Texas and the Mexican War."[61]
The Democrats in caucus were less prompt than the Free-Soilers. They began by a resolution to abide by the decision of two thirds of those present and voting, being the rule of the Baltimore Convention in 1844. This was adopted almost unanimously. Mr. Sumner then received the two thirds required, when one of those who voted against him, after stating his adverse vote, moved that he be unanimously declared the candidate of the Democratic caucus, and six only voted in the negative.
On the completion of these arrangements, the Legislature proceeded to the elections, choosing George S. Boutwell Governor, and Henry W. Cushman Lieutenant-Governor, both Democrats, and, at a later day, Robert Rantoul, Jr., a Democrat, Senator for the short term. The other Democrats were chosen according to the understanding. In the Senate, Henry Wilson, Free-Soiler, had been chosen President, and in the House of Representatives Nathaniel P. Banks, Jr., Democrat, Speaker.
On the 14th of January the House of Representatives proceeded to ballot for Senator, with the following result: Whole number, 381; necessary to a choice, 191; Charles Sumner, 186; R.C. Winthrop, 167; scattering, 28; blanks, 3. There was a second ballot on the same day, when Mr. Sumner had the same number of votes as before. The entire Free-Soil vote was 110, which he received, with 76 Democratic votes.
The Commonwealth announced at once the determination of the Free-Soil party as follows. "This entire unanimity of the Free-Soil members indicates a purpose, not to be changed, to stand by their candidate, come what may. They have taken the candidates presented by the Democratic party without pledges, without questions. They have selected for their candidate a man who stands first in the respect and affections of every true Free-Soiler in the State. Their constituents would repudiate them, if they should desert him now. We are assured they never will."[62]
The failure in the House did not prevent the Senate from proceeding with the election, on January 22d, when the whole number of votes was 38: for Charles Sumner, 23; for R.C. Winthrop, 14; and for Henry W. Bishop, 1; and Mr. Sumner was accordingly chosen on the part of the Senate.
During the long contest which ensued, Mr. Sumner was constant to the end, without doing or saying anything to change or modify his position. Extracts from his speeches, printed in capitals, with hostile comments, appeared daily in the Whig and Democratic papers, and were often characterized as treasonable, while he was called a disunionist. In reply to a personal and political friend, who sought some mode of meeting these attacks, he wrote the following private letter, which was never published.
Boston, January 21, 1851.
My dear Sir:—
The peculiar nature of your inquiry, and the friendship which prompts it, do not allow me to decline an answer.
You know well that I do not seek or desire any political office, that I am not voluntarily in my present position as candidate, and that, prescribing to myself the rule of non-intervention, I have constantly declined doing anything to promote my election, and have refused pledges or explanations with regard to my future course, beyond what are implied in my past life, my published speeches, and my character.
To these I now refer. They will give a sufficient refutation to the charge that I am a Disunionist. No honest person, acquainted with them, can make this charge.
Besides, I am closely identified, as you also are, with the well-known principles of the Free-Soil party. These, while declaring the duty of opposing Slavery and its influence, wherever they exist under the National Government, always recognize that other duty of loyalty to the Union and the Constitution. We propose to wait and work patiently under and through the Constitution, that our purposes may be peaceably accomplished in the spirit of that instrument and of our fathers. We are Constitutionalists and Unionists. In this class I have always been and still am.
That I may place this matter beyond question, I beg leave to repeat and reaffirm what I said on a former occasion: "We reverence the Constitution of the United States, and seek to guard it against infractions, believing that under the Constitution Freedom can be best preserved. We reverence the Union of the States, believing that the peace, happiness, and welfare of all depend upon this blessed bond."
Faithfully yours,
Charles Sumner.
In another letter, written during the contest and published at its close, Mr. Sumner stated his position more fully, and released the party from all obligation to him as a candidate.
Boston, February 22, 1851.
My dear Sir:—
I desire to repeat to you in writing what I have so constantly said to you and others by word of mouth.
Early in life I formed a determination never to hold any political office, and of course never to be a candidate for any. My hope was (might I so aspire!) to show, that, without its titles or emoluments, something might be done for the good of my fellow-men.
Notwithstanding the strength of this determination, often declared, I have, by the confidence of the friends of Freedom in Boston, more than once been pressed into the position of candidate; and now, by the nomination of the Free-Soil and Democratic members of the Legislature of Massachusetts, contrary to desires specially made known to all who communicated with me on the subject, I have been brought forward as their candidate for the Senate of the United States.
Pardon me, if I say that personal regrets mingle with gratitude for the honor done me. The office of Senator, though elevated and important, is to me less attractive than other and more quiet fields.
Besides, there are members of our party, valued associates in our severe struggle, to whom I gladly defer, as representatives of the principles we have at heart.
I trust, therefore, that the friends of Freedom in the Legislature will not, on any ground of delicacy towards me, hesitate to transfer their support to some other candidate, faithful to our cause. In this matter, I pray you, do not think of me. I have no political prospects which I desire to nurse. There is nothing in the political field which I covet. Abandon me, then, whenever you think best, without notice or apology. The cause is everything; I am nothing.
I rely upon you in some proper way to communicate this note to the Free-Soil members of the Legislature.
Believe me, my dear Sir,
Very faithfully yours,
Charles Sumner.
Hon. Henry Wilson, Chairman of the Committee of the Free-Soil Members of the Legislature.
He also wrote privately to more than one leader, proposing to withdraw. Hon. Charles Allen, who was then at Washington, said in reply: "I need no declaration from you to assure me that you did not seek nor desire political office. On that subject you have no secrets to communicate to me. Your purposes and wishes have been transparent.... Though not so tall by some inches, I believe I have kept myself about as bolt upright as you have, and as far within the lines of the Free-Soil party. I shall give no more heed to the suggestion of your letter. You must be the hero of this war to the end,—the conquering hero, I trust." Hon. Stephen C. Phillips, though not sympathizing with the "Coalition," gave his best wishes to Mr. Sumner, saying: "As the case now stands, I hope you will not be disposed, and I am clear that the Free-Soil members should not allow you, to withdraw yourself; and in view of what may affect you personally, and of some probable or possible general results, I rejoice in the prospect of your election."
The issue was presented, if possible, with increased distinctness by the revival in the papers of the speech at Faneuil Hall on the eve of the election. The editor of the Times, a Democratic paper in Boston, calling on Mr. Sumner, invited him to modify his opinions, or, as was sometimes said, to "ease off," especially with regard to his recent speech. This Mr. Sumner declined to do, when the editor inquired how he would like that speech reprinted in the Times, that it might be read by the Legislature. Mr. Sumner replied at once, that nothing could give him more pleasure. The speech appeared the next day, with an appeal to the Legislature as follows. "Mr. Sumner avows that what is called his Faneuil-Hall Speech contains his calm, deliberately formed, and well-matured opinions,—opinions by which his action would be governed in the event of his election to the office of United States Senator.... We hope that every Democratic member of the Legislature will read the speech of the man for whom they are asked to vote, and then consider whether it is not their duty to vote for some other person."[63]
As the discussion proceeded, the Commonwealth also published the speech, introducing it with these defiant words: "We treat our readers to-day to the noble speech of Charles Sumner at that great 'treasonable' meeting in Faneuil Hall. We are proud of it, and of the man who made it. We give it as it was reported by Dr. Stone for the Traveller, and as it was copied into the Times. The apologists for Slavery have heaped abuse on Mr. Sumner for this speech, and garbled it to serve their base purposes; but here it stands. Not a glorious word of it can or shall be rubbed out. We ask any member of the Legislature, whatever may be his politics or party, as a man, as a son of New England, and as an admirer of Washington, Jefferson, Patrick Henry, John Hancock, and Samuel Adams, to read this speech, and tell us how he can do a better thing than to vote for its author next Wednesday. Here you have the intellect and heart of a man,—a man for the times, a man for Massachusetts!"[64]
The session wore on, with constantly recurring ballots, always unsuccessful, when the organ of the Free-Soil party made another appeal, in which it presented strongly the issue of principle involved. An extract will show the character of this appeal. "Circumstances have conspired to give extraordinary interest to this election in Massachusetts. Not here only, but elsewhere, both North and South, it is regarded as symbolical of the march of new opinions on an important subject. There can be no doubt in the mind of any reasonable man that there is gradually, but certainly, approaching that tremendous moral conflict in politics which was early foreseen by the wise men of the Republic as sure at some day to happen, and which no human power can do more than to retard.... One peculiarity attending this election is, that it involves a true issue of principle.... The question is not so much whether Mr. Sumner or any one else is to be Senator as whether the antislavery sentiment shall be understood as having established itself not only in the internal and domestic policy of the Commonwealth, where it has always been, but also in the channels through which it connects itself with the government of the Union. Tenfold importance has been attached to this decision from the fact of the apostasy to Freedom lately committed by the person who for many years was considered as the leading exponent of Massachusetts doctrines in the Senate. The election of such a man as Charles Sumner in the room of such a man as Daniel Webster may be construed to be quite as much a complete disavowal of the late conduct of the one as a sanction of the system advocated by the other. Herein it is not difficult to trace the real causes as well of the extraordinary opposition on the one side as of the tenacious adherence on the other."[65]
This was followed in a few days by the annunciation of the determination of the party. "But one course is left,—to stand by Charles Sumner, as our first, our last, our only choice. And if we fail, we fail in a good cause, true to our promises, true to our faith."[66]
On April 23d there was another ballot, when the result was announced as follows: Whole number of votes, 387; necessary to a choice, 194; Charles Sumner, 194; R.C. Winthrop, 167; scattering, 26. On the report it appeared that Mr. Sumner was elected, when it was insisted that a vote having his name printed upon it, with the name of John Mills in pencil beneath, which had been thrown out, should be counted for Mr. Mills, thus making one more necessary to a choice. It was also stated that the record of the clerk showed that only 386 votes were cast, while this count showed 388. This inconsistency was not explained. Three other ballots were had unsuccessfully. On April 24th there was another unsuccessful ballot, when, on motion of Sidney Bartlett, Esq., the eminent lawyer, and a Whig, it was ordered, that, "in the further balloting, the ballot be placed in an envelope, and that, where two votes for one person are found in the same envelope, one shall be rejected, and that, where two votes for different persons are cast, both shall be rejected; the envelopes to be of a uniform character, furnished by the Sergeant-at-Arms." At the ballot that ensued the votes were: Whole number, 384; necessary to a choice, 193; Charles Sumner, 193; R.C. Winthrop, 166; H.W. Bishop, 11; S.C. Phillips, 4; Caleb Cushing, 3; Isaac Davis, 3; John Mills, 1; H.H. Childs, 1; N.P. Banks, Jr., 1; B.F. Hallett, 1. There were also two blanks, not counted, making 386 who had voted. The Speaker read the report of the committee, and declared Mr. Sumner elected. The announcement was received with applause in the galleries, which the Speaker and Sergeant-at-Arms promptly suppressed. This was the twenty-sixth ballot.
The election had been so long in suspense, and had so much occupied the public mind, that the final result was received with much feeling. As the news spread, some were dejected and angry, others were joyous and satisfied. Mr. Sumner heard of it while at the house of Hon. Charles F. Adams, in Boston, and there received the first congratulations. A proposition for a public demonstration at his own house in the evening he discountenanced, saying, according to the published report, that, while feeling grateful to friends for their kindness, he was unwilling to do or say anything that could be construed by any one as evidence of personal triumph,—that it was the triumph of the cause, but that his heart dictated silence. In the evening there was a meeting for congratulation in State Street, where speeches were made by Hon. Henry Wilson, Joseph Lyman, and Thomas Russell. Similar meetings were held in other towns of Massachusetts, on receiving the news. The crowd in State Street moved to the house of Mr. Sumner, but he had left the city; then to the house of Mr. Adams, who said that he "was glad of the opportunity to be able to congratulate his friends upon the glorious triumph of Liberty in the election of Mr. Sumner"; then to the house of Richard H. Dana, Jr., who, being out of town, was represented by his venerable father, who said that he had "kept his bed until noon through illness, but, on learning the news of the election of Mr. Sumner, he suddenly became better."
The language of leading journals attests the prevailing interest, and the deep sense of the issue that had been tried. A few of these will be mentioned, beginning with the Free-Soil organ in Boston, which thus announced the result: "In congratulating the world on this event, we congratulate the defeated themselves: for, if they did but know it, there is no firm basis for property except the equal rights of man; there can be no durable Union contrary to our immortal Declaration of Independence and the solemn preamble of our Constitution.... Those very men have the greatest reason to rejoice in our victory, for their children, if not for themselves."[67]
The same organ replied to the assaults on Mr. Sumner: "No man ever accepted office with cleaner hands than Charles Sumner. He consented to receive the nomination with extreme reluctance. His pursuits, his tastes, and aspirations were in a different direction. He earnestly entreated his friends to select some other candidate. After he was nominated, and an onslaught unprecedented for ferocity and recklessness in political warfare had seemed to render his election impossible, unless he would authorize some qualification of the alleged obnoxious doctrines of his speeches, particularly of his last Faneuil-Hall speech, Mr. Sumner refused to retract, qualify, or explain. Ten lines from his pen—lines that a politician might have written without even the appearance of a change of sentiment—would have secured his election in January. No solicitation, of friends or opponents, could extort a line. A delegation of Hunkers applied to him for a few words to cover their retreat; in reply, he stated that he had no pledges to give, no explanations to make; he referred them to his published speeches for his position, and added, that he had not sought the office, but, if it came to him, it must find him an independent man. To another Democrat, who called on him on the same errand, he said, 'If by walking across my office I could secure the Senatorship, I would not take a step.' In February he placed in the hands of General Wilson a letter authorizing that gentleman to withdraw his name, whenever, in his judgment, the good of the cause should require it."[68]
The National Era, edited by Dr. Bailey, and the organ of the Free-Soil party at Washington, after speaking of Mr. Sumner in most flattering terms, proceeded as follows: "When it is considered that he is the exponent and advocate of opinions and measures which Mr. Webster has renounced and is seeking to put down, that the whole weight of the influence of this gentleman, with that of the cotton interest, the Administration, and Hunker Democracy, has been brought to bear against him, that at no time has he consented to qualify any word he has ever written or spoken on the questions at issue between him and his opponents, or to give a single pledge, direct or indirect, respecting his course, his election must be regarded as one of the most brilliant, honorable, and decisive triumphs yet achieved by the opponents of Slavery and Conservatism."[69]
The Tribune in New York, though closely allied with the Whig party, rendered justice to Mr. Sumner. "We do not know the man who has entered the Senate under auspices so favorable to personal independence as Mr. Sumner. He has not sought the office, has not made an effort for its acquisition. No pledge has he given to any party or any person upon any question or measure. When asked as to the course he should pursue as Senator, his answer has been a reference to his past acts and published writings; in them were the only promises he had to offer. Though it would have been easy for him to secure the election three months ago by the slightest shadow of a concession to some of the Hunker members of the Legislature, he has steadily refused to say or do anything that could be construed in that manner. To every overture he has replied, that, if chosen, it must be on the footing of absolute independence,—that the Senatorship must come to him, and not he pursue the Senatorship. Such stern adherence to what he considered the path of duty and manliness has thus delayed his election. But it has not prevented it, and now Mr. Sumner enters the Senate free of all trammels whatever. This it is especially which makes us rejoice at the event. It is a new thing in our recent politics, and the loftiest success we can wish him in his Congressional career is an unflinching preservation of the same spirit and conduct."[70]
The London Times had a leader on the election, where, among other things, it said: "He was opposed by the Protectionists of Massachusetts as a partisan of greater freedom of trade, and by the adherents of the Government as an opponent of the Fugitive Slave Act. Yet such was the strength of feeling in Massachusetts on that point alone, that the Free-Soil party have succeeded in sending to the Senate the most active and able representative of their cause, and Mr. Sumner enters upon his ostensible political career under these remarkable and flattering circumstances.... The election of Mr. Sumner to the Senate is everywhere regarded as an emphatic declaration, on the part of his own State, that the law is at least not to remain in its present form unassailed. The South responds to such an election by louder declarations of its resistance to all infractions on its local institutions, even at the sacrifice of the integrity of the Union."[71]
Congratulations came from every quarter. They are alluded to here only because they belong to the history of this election. Some of them are given. One of the earliest was from Richard H. Dana, the scholar, and father of the eminent lawyer, who wrote: "I am thankful that Massachusetts is to speak through you in Washington,—through one whom neither West nor South will be able to win over or to browbeat." John G. Whittier wrote: "I rejoice, that, unpledged, free, and without a single concession or compromise, thou art enabled to take thy place in the Senate. I never knew such a general feeling of real heart pleasure and satisfaction as is manifested by all except inveterate Hunkers in view of thy election. The whole country is electrified by it. Sick abed, I heard the guns, Quaker as I am, with real satisfaction." William C. Bryant wrote: "I am glad that my native State is once more worthily represented in the United States Senate." John Bigelow, who was at the time associated with Mr. Bryant in the Evening Post, wrote: "I was quite overcome when I read the despatch which announced your election; and when the news was communicated through the building, it gave everybody else, including printers and clerks, almost as much pleasure as to me." Epes Sargent, who edited a Whig paper, wrote: "My private acquaintance is a sufficient assurance that your public course will be honorable and patriotic." Neal Dow wrote: "I thank God Massachusetts has at last done something effectual to redeem her character. I am sure that upon the floor of the Senate you will not forget to assert the rights of your State, and maintain with firmness and dignity the great principles upon which a free government should be based." Mr. Chase wrote: "Laus Deo! From the bottom of my heart I congratulate you—no, not you, but all friends of Freedom everywhere—upon your election to the Senate." Mr. Giddings wrote from Ohio: "A most intense interest was felt in this whole region, and I have seen no event which has given greater joy to the population generally." Judge Jay wrote: "May God enable you to leave the public service with a conscience and a reputation as unsullied as those you carry with you!" John Jay telegraphed: "Your election has made us most happy and thankful." Elihu Burritt, who was then in England, wrote: "My soul is gladdened to great and exceeding joy at the news of your election to fill the place of the late Daniel Webster. It has been hailed by the friends of human freedom and progress in this country with exultation. There are more eyes and hearts fixed upon your course than upon that of any man in America." Nobody expressed himself more cordially than John Van Buren, who wrote at once: "You will need no assurance of how delighted I was to hear that you were in fact a Senator from Massachusetts for six years"; and in another letter he said: "I was as much pleased with seeing your frank as I was with the inside of your note. Independent of the fact that it proves your election to the United States Senate, the inscription, 'Free Charles Sumner,' seems to me mighty pretty reading."
This history brings us to the Letter of Acceptance addressed to the Legislature, which was read in the two Houses,—in the Senate by Hon. Henry Wilson, President, and in the House of Representatives by Hon. N.P. Banks, Speaker. In addressing the Legislature directly Mr. Sumner follows the precedent of John Quincy Adams, in 1808, resigning his seat in the Senate.
Fellow-citizens of the Senate and House of Representatives:—
By the hands of the Secretary of the Commonwealth I have received a certificate, that by concurrent votes of the two branches of the Legislature, namely, by the Senate on the 22d day of January, and the House of Representatives on the 24th day of April, in conformity to the provisions of the Constitution and Laws of the United States, I was duly elected a Senator to represent the Commonwealth of Massachusetts in the Senate of the United States for the term of six years, commencing on the 4th day of March, 1851.
If I were to follow the customary course, I should receive this in silence. But the protracted and unprecedented contest which ended in my election, the interest it awakened, the importance universally conceded to it, the ardor of opposition and the constancy of support which it aroused, also the principles which more than ever among us it brought into discussion, seem to justify, what my own feelings irresistibly prompt, a departure from this rule. If, beyond these considerations, any apology is needed for thus directly addressing the Legislature, I may find it in the example of an illustrious predecessor, whose clear and venerable name will be a sufficient authority.
The trust conferred on me is one of the most weighty which a citizen can receive. It concerns the grandest interests of our own Commonwealth, and also of the Union in which we are an indissoluble link. Like every post of eminent duty, it is a post of eminent honor. A personal ambition, such as I cannot confess, might be satisfied to possess it. But when I think what it requires, I am obliged to say that its honors are all eclipsed by its duties.
Your appointment finds me in a private station, with which I am entirely content. For the first time in my life I am called to political office. With none of the experience possessed by others to smooth the way of labor, I might well hesitate. But I am cheered by the generous confidence which throughout a lengthened contest persevered in sustaining me, and by the conviction, that, amidst all seeming differences of party, the sentiments of which I am the known advocate, and which led to my original selection as candidate, are dear to the hearts of the people throughout this Commonwealth. I derive, also, a most grateful consciousness of personal independence from the circumstance, which I deem it frank and proper thus publicly to declare and place on record, that this office comes to me unsought and undesired.
Acknowledging the right of my country to the service of her sons wherever she chooses to place them, and with a heart full of gratitude that a sacred cause is permitted to triumph through me, I now accept the post of Senator.
I accept it as the servant of Massachusetts, mindful of the sentiments solemnly uttered by her successive Legislatures, of the genius which inspires her history, and of the men, her perpetual pride and ornament, who breathed into her that breath of Liberty which early made her an example to her sister States. In such a service, the way, though new to my footsteps, is illumined by lights which cannot be missed.
I accept it as the servant of the Union, bound to study and maintain the interests of all parts of our country with equal patriotic care, to discountenance every effort to loosen any of those ties by which our fellowship of States is held in fraternal company, and to oppose all sectionalism, in whatsoever form, whether in unconstitutional efforts by the North to carry so great a boon as Freedom into the Slave States, in unconstitutional efforts by the South, aided by Northern allies, to carry the sectional evil of Slavery into the Free States, or in any efforts whatsoever to extend the sectional domination of Slavery over the National Government. With me the Union is twice blessed: first, as powerful guardian of the repose and happiness of thirty-one States, clasped by the endearing name of country; and next, as model and beginning of that all-embracing Federation of States, by which unity, peace, and concord will finally be organized among the Nations. Nor do I believe it possible, whatever the delusion of the hour, that any part can be permanently lost from its well-compacted bulk. E Pluribus Unum is stamped upon the national coin, the national territory, and the national heart. Though composed of many parts united into one, the Union is separable only by a crash which shall destroy the whole.
Entering now upon the public service, I venture to bespeak for what I do or say that candid judgment which I trust always to have for others, but which I am well aware the prejudices of party too rarely concede. I may fail in ability, but not in sincere effort, to promote the general weal. In the conflict of opinion, natural to the atmosphere of liberal institutions, I may err; but I trust never to forget the prudence which should temper firmness, or the modesty which becomes the consciousness of right. If I decline to recognize as my guides the leading men of to-day, I shall feel safe while I follow the master principles which the Union was established to secure, leaning for support on the great Triumvirate of American Freedom,—Washington, Franklin, and Jefferson. And since true politics are simply morals applied to public affairs, I shall find constant assistance from those everlasting rules of right and wrong which are a law alike to individuals and communities.
Let me borrow, in conclusion, the language of another: "I see my duty,—that of standing up for the liberties of my country; and whatever difficulties and discouragements lie in my way, I dare not shrink from it; and I rely on that Being who has not left to us the choice of duties, that, whilst I conscientiously discharge mine, I shall not finally lose my reward." These are words attributed to Washington, in the early darkness of the American Revolution. The rule of duty is the same for the lowly and the great; and I hope it may not seem presumptuous in one so humble as myself to adopt his determination, and to avow his confidence.
I have the honor to be, fellow-citizens,
With sincere regard,
Your faithful friend and servant,
Charles Sumner.
Boston, May 14, 1851.
THE DECLARATION OF INDEPENDENCE AND THE CONSTITUTION OF THE UNITED STATES OUR TWO TITLE-DEEDS.
Letter to the Mayor of Boston, for July 4, 1851.
From the beginning, Mr. Sumner never missed an opportunity, in speech or letter, of invoking the Declaration of Independence as a rule of action. The following letter is an example.
Boston, July 3, 1851.
Dear Sir,—I have been honored by an official invitation to unite in the celebration by our City Council of the approaching anniversary of American Independence.
Though it will not be in my power to partake of this celebration, I wish not to seem indifferent to the kind attentions of your Committee or to the hospitality of Boston.
I venture to inclose a sentiment, suggested particularly by the occasion, and in harmony, I trust, with the convictions of all sincere lovers of the Union.
I have the honor to be, dear Sir,
Your faithful servant,
Charles Sumner.
The Declaration of Independence, and the Constitution of the United States,—the two immortal title-deeds of American liberties. Defenders of the Constitution, let us not forget the principles of the Declaration, but, for the equal support of both, in the spirit of our fathers, without compromise, and with a firm reliance on the protection of Divine Providence, mutually pledge to each other our lives, our fortunes, and our sacred honor.
Hon. John P. Bigelow, &c., &c.
[POSITION OF THE AMERICAN LAWYER.]
Letter to the Secretary of the Story Association, July 15, 1851.
Boston, July 15, 1851.
Dear Sir,—As a faithful pupil of the Law School, and an attached friend, during life, of the founder, whose illustrious name your Association bears, I feel a thrill at every act or word which does them honor. And since I may not be able to be present at your festival, I venture to send congratulations on the happy auspices of the day, and—mindful that I address a professional assembly—to inclose a sentiment commemorating the dignity and the duties of the American Lawyer.
A brief personal experience will properly introduce it. Some years ago, while at Heidelberg, in Germany, it was my fortune to see much of Thibaut and Mittermaier, both jurists of eminent fame: the first—now dead—renowned for learning in the Roman Law, and for early and constant support of a just scheme for the reduction of the unwritten law to the certainty of a written text; and the other, who is still spared, the greatest living master of Criminal Law, and of the various systems of Foreign Jurisprudence. Next after the aristocracy of birth, they were unquestionably at that moment among the most conspicuous men of Germany.
In the course of a long conversation, chiefly on matters of juridical interest, in the freedom of social intercourse at dinner, one of them asked with regard to the position of the American Lawyer, and both seemed earnest for my answer. I promptly replied: "No person is his superior. His position, Gentlemen, if you will pardon me for saying it, is what yours would be in Germany, if there were no aristocracy of birth." Both seemed penetrated by this allusion, and, looking each other in the face, exclaimed at once, in apparent consciousness of their true rank: "That is very high indeed!"
The sentiment which I now submit was suggested by this incident.
I have the honor to be, dear Sir,
Very faithfully yours,
Charles Sumner.
To the Secretary of the Story Association.
The American Lawyer: Distinguished by the lofty sphere of his influence, may he find in it new motive to the cultivation of those moral excellences, and those generous virtues of the heart, which give the truest elevation to the character! Nobilitas sola est atque unica virtus.
[SYMPATHY WITH THE RIGHTS OF MAN EVERYWHERE.]
Letter to a Meeting at Faneuil Hall, October 27, 1851.
This meeting was held to consider the case of Smith O'Brien and his fellow-exiles in Australia, and to ask the intercession of our Government in their behalf. Governor Boutwell presided and addressed the meeting.
Boston, October 27, 1851.
Dear Sir,—It will not be in my power to be present at Faneuil Hall this evening; nor am I entirely satisfied that it would be proper for me, holding the official position I now do, to take part in the proceeding which you propose to institute.
But though not present with you, and not undertaking to express any opinion on the precise question of national duty, I wish it to be understood that I can never fail to unite in every earnest, manly word by which the sympathies of our country are extended to all, in whatever land, who are defending the Rights of Man. To this cause we are pledged as a nation by the Declaration of Independence; and my heart warmly responds to the vow.
Nor can I forbear to add, that the clemency which you entreat from a powerful government towards those whom it classes as political offenders is in harmony with the Spirit of the Age and with the lessons of Christianity. It is a grace never otherwise than honorable to ask and honorable to bestow:—
"And 'tis in crowns a nobler gem
To grant a pardon than condemn."
A recent instance enforces the appeal. Kossuth has at last passed from the house of bondage. His emancipation, promoted by the aspirations, the prayers, and the express intervention of our Republic, is an example to all nations,—while the brightness of his fame shows how vain it is for any earthly edict to stigmatize as crime a sincere and generous effort for Human Freedom. Austria brands the great Hungarian as traitor; but an enlightened Public Opinion, the predestined queen of the civilized world, already re-judges the justice of the tyrant government. To the judgments of this exalted authority mankind must bow. No people, for the sake of any seeming temporary expediency, can afford to sacrifice a principle of justice or a sentiment of humanity, and thus to peril the everlasting verdict of History.
In reaching across the sea as far as distant Turkey, to plead for the freedom of the fugitive Kossuth, our Republic has done well; and the Mahometan Sultan, in consenting to his liberation, at extraordinary hazards, has taught a lesson of magnanimity to Christian nations.
The step we have thus taken cannot be the last. With increasing power are increasing duties. The influence we now wield is a sacred trust, to be exercised firmly and discreetly, in conformity with the Laws of Nations, and with an anxious eye to the peace of the world, but always so as most to promote Human Rights. Our example can do much. The magnetism of our national flag will be felt wherever it floats; individual citizens may labor faithfully; but all these will be quickened incalculably by a system of conduct, on the part of our Government, at home and abroad, which, while avoiding all improper interference with other countries, and teaching the beauty of honesty, shall show a prompt and benevolent sympathy with those vital principles without which our Republic is but a name.
In this work, Irishmen, and the children and grandchildren of Irishmen, scattered in millions throughout the land, can help. Their native love of Liberty and hatred of Oppression will here find opportunity for action.
Believe me, dear Sir,
Very faithfully yours,
Charles Sumner.
To the Committee.
[WELCOME TO KOSSUTH.]
Speech in the Senate, December 10, 1851.
Mr. Sumner's credentials as Senator were presented at the opening of the 32d Congress, December 1, 1851, when he took the oath of office. Among those who took the oath on the same day were Hon. Benjamin F. Wade, of Ohio, Hon. Hamilton Fish, of New York, and Hon. Stephen R. Mallory, of Florida, afterward Secretary of the Navy in the Rebel Government. The seat of the last was contested, and the question on his reception drew forth Mr. Clay, who was present for the last time in the Senate. Though living till June, he never again appeared in the Chamber. On the arrangement of the Committees, Mr. Sumner found himself at the bottom of the Committee on Revolutionary Claims and the Committee on Roads and Canals.
On the first day of the session a joint resolution was announced by Mr. Foote, of Mississippi, providing for the reception and entertainment of Louis Kossuth, the recent head of the revolutionary government in Hungary. Governor Kossuth, having escaped from Hungary, had found refuge in Turkey, where he was received on board one of our ships of war. After an interesting visit in England, where he addressed large public audiences with singular power and eloquence, he arrived in New York. Interest in the cause which he so ably represented, and personal sympathy with the exile, quickened by his genius, found universal expression in the country; but there was a protracted debate in the Senate before the vote was taken.
The debate proceeded on a resolution introduced by Mr. Seward, December 8th, as follows:—
"Resolved, &c., That the Congress of the United States, in the name and behalf of the people of the United States, give to Louis Kossuth a cordial welcome to the capital and to the country, and that a copy of this resolution be transmitted to him by the President of the United States."
On the same day, Mr. Shields, of Illinois, introduced a resolution in the following terms:—
"Resolved, That a committee of three be appointed by the Chair to wait on Louis Kossuth, Governor of Hungary, and introduce him to the Senate."
December 9th, Mr. Berrien, of Georgia, addressed the Senate at length in opposition to action by Congress, and, in closing his speech, moved the following amendment:—
"And be it further Resolved, That the welcome thus afforded to Louis Kossuth be extended to his associates who have landed on our shores; but while welcoming these Hungarian patriots to an asylum in our country, and to the protection which our laws do and always will afford to them, it is due to candor to declare that it is not the purpose of Congress to depart from the settled policy of this Government, which forbids all interference with the domestic concerns of other nations."
The final question was not reached till December 12th, when the amendment of Mr. Berrien was rejected: yeas 15, nays 26. The question then recurred on the resolution of Mr. Seward, which was adopted: yeas 33, nays 6. The resolution passed the House of Representatives, and was signed by the President.
On the 10th of December Mr. Sumner spoke. It was his first speech in the Senate. He rose to speak late in the afternoon of the day before, but gave way to an adjournment, which was moved by Mr. Rusk, of Texas. The next day, on motion of Mr. Seward, the Senate proceeded to the consideration of the resolution, when Mr. Sumner took the floor.
The following characteristic letter from Mr. Choate, one of his predecessors as Senator from Massachusetts, illustrates the reception of the speech in the country, besides being a souvenir of friendly relations amidst political differences.
"Boston, December 29, 1851.
"My dear Mr. Sumner,—
"I thank you for the copy of your beautiful speech, and for the making of it. All men say it was a successful one, parliamentarily expressing it; and I am sure it is sound and safe, steering skilfully between cold-shoulderism and inhospitality, on the one side, and the splendid folly and wickedness of coöperation, on the other. Cover the Magyar with flowers, lave him with perfumes, serenade him with eloquence, and let him go home alone,—if he will not live here. Such is all that is permitted to wise states, aspiring to the 'True Grandeur.'
"I wish to Heaven you would write me de rebus Congressus. How does the Senate strike you? The best place this day on earth for reasoned and thoughtful, yet stimulant public speech. Think of that.
"Most truly yours—in the Union,—
"Rufus Choate."
Mr. President,—Words are sometimes things; and I cannot disguise from myself that the resolution in honor of Louis Kossuth now pending before the Senate, when finally passed, will be an act of no small significance in the history of our country. The Senator from Georgia [Mr. Berrien] was right, when he said that it was no unmeaning compliment. Beyond its immediate welcome to an illustrious stranger, it will help to combine and direct the sentiments of our own people everywhere; it will inspire all in other lands who are engaged in the contest for freedom; it will challenge the disturbed attention of despots; and will become a precedent, whose importance will grow, in the thick-coming events of the future, with the growing might of the Republic. Therefore it becomes us to consider well what we do, and to understand the grounds of our conduct.
I am prepared to vote for it without amendment or condition of any kind, and on reasons which seem to me at once obvious and conclusive. In assigning these I shall be brief; and let me say, that, novice as I am in this hall, and, indeed, in all legislative halls, nothing but my strong interest in the question as now presented, and a hope to say something directly upon it, could prompt me thus early to mingle in these debates.
The case seems to require a statement, rather than an argument. As I understand, the last Congress requested the President to authorize the employment of a national vessel to receive and convey Louis Kossuth to the United States. That honorable service was performed, under the express direction of the President, and in pursuance of the vote of Congress, by one of the best appointed ships of our navy,—the steam-frigate Mississippi. Far away from our country, in foreign waters, on the current of the Bosphorus, the Hungarian chief, passing from his Turkish exile, first pressed the deck of this gallant vessel, first came under the protection of our national flag, and for the first time in his life rested beneath the ensign of an unquestioned Republic. From that moment he became our guest. The Republic—which thus far he had seen only in delighted dream or vision—was now his host; and though this relation was interrupted for a few weeks by his wise and brilliant visit to England, yet its duties and its pleasures, as I confidently submit, are not yet ended. The liberated exile is now at our gates. Sir, we cannot do things by halves; and the hospitality, which, under the auspices of Congress, was thus begun, must, under the auspices of Congress, be continued. The hearts of the people are already open to receive him; Congress cannot turn its back upon him.
I would join in this welcome, not merely because it is essential to complete and crown the work of the last Congress, but because our guest deserves it. The distinction is great, I know; but it is not so great as his deserts. He deserves it as the early, constant, and incorruptible champion of the Liberal Cause in Hungary, who, while yet young, with unconscious power, girded himself for the contest, and by a series of masterly labors, with voice and pen, in parliamentary debate and in the discussions of the press, breathed into his country the breath of life. He deserves it by the great principles of true democracy which he caused to be recognized,—representation of the people without distinction of rank or birth, and Equality before the law.[72] He deserves it by the trials he has undergone, in prison and in exile. He deserves it by the precious truth he now so eloquently proclaims, of the Fraternity of Nations.
As I regard his course, I am filled with reverence and awe. I see in him, more than in any other living man, the power which may be exerted by a single, earnest, honest soul in a noble cause. In himself he is more than a whole cabinet, more than a whole army. I watch him in Hungary, while, like Carnot in France, he "organizes victory"; I follow him in exile to distant Mahometan Turkey, and there find him, with only a scanty band, in weakness and confinement, still the dread of despots; I sympathize with him in his happy release; and now, as he comes more within the sphere of immediate observation, amazement fills us all in the contemplation of his career, while he proceeds from land to land, from city to city, and, with words of matchless power, seems at times the fiery sword of Freedom, and then the trumpet of resurrection to the Nations,—
"Tuba mirum spargens sonum."[73]
I know not how others are impressed; but I call to mind no incident in history, no event of peace or war,—certainly none of war,—more strongly calculated, better adapted, to touch and exalt the imagination and the heart than his recent visit to England. He landed on the southern coast, not far from where William of Normandy, nearly eight centuries ago, had landed,—not far from where, nineteen centuries ago, Julius Cæsar had landed also; but William on the field of Hastings, and Cæsar in his adventurous expedition, made no conquest comparable in grandeur to that achieved by the unarmed and unattended Hungarian. A multitudinous people, outnumbering far the armies of those earlier times, was subdued by his wisdom and eloquence; and this exile, proceeding from place to place, traversing the country, at last, in the very heart of the Kingdom, threw down the gauntlet of the Republic. Without equivocation, amidst the supporters of monarchy, in the shadow of a lofty throne, he proclaimed himself a republican, and proclaimed the republic as his cherished aspiration for Hungary. And yet, amidst the excitements of this unparalleled scene, with that discretion which I pray may ever attend him as a good angel,—the ancient poet aptly tells us that no Divinity is absent where Prudence is present,[74]—he forbore all suggestion of interference with the institutions of the country whose guest he was, recognizing that vital principle of self-government by which every state chooses for itself the institutions and rulers it prefers.
Such a character, thus grandly historic,—a living Wallace, a living Tell, I had almost said a living Washington,—deserves our homage. Nor am I tempted to ask if there be any precedent for the resolution now under consideration. There is a time for all things; and the time has come for us to make a precedent in harmony with his unprecedented career. The occasion is fit; the hero is near; let us speak our welcome. It is true, that, unlike Lafayette, he has never directly served our country; but I cannot admit that on this account he is less worthy. Like Lafayette, he perilled life and all; like Lafayette, he did penance in an Austrian dungeon; like Lafayette, he served the cause of Freedom; and whosoever serves this cause, wheresoever he may be, in whatever land, is entitled, according to his works, to the gratitude of every true American bosom, of every true lover of mankind.
The resolution before us commends itself by simplicity and completeness. In this respect it seems preferable to that of the Senator from Illinois [Mr. Shields]; nor is it obnoxious to objections urged against that of the Senator from Mississippi [Mr. Foote]; and I do not see that it can give any just umbrage, in our diplomatic relations, even to the sensitive representative of the House of Austria. Though we have the high authority of the President, in his Message, for styling our guest "Governor,"—a title which seems to imply the de facto independence of Hungary, when it is known that our Government declined to acknowledge it,—the resolution avoids this difficulty, and speaks of him without title of any kind,—simply as a private citizen. As such, it offers him welcome to the capital and to the country.
The Comity of Nations I respect. To the behests of the Law of Nations I profoundly bow. In our domestic affairs all acts are brought to the Constitution, as to a touchstone; so in our foreign affairs all acts are brought to the touchstone of the Law of Nations,—that supreme law, the world's collected will, which overarches the Grand Commonwealth of Christian States. What that forbids I forbear to do. But no text of this voluminous code, no commentary, no gloss, can be found, which forbids us to welcome any exile of Freedom.
Looking at this resolution in its various lights, as a carrying out of the act of the last Congress, as justly due to the exalted character of our guest, and as proper in form and consistent with the Law of Nations, it seems impossible to avoid the conclusion in its favor. On its merits it would naturally be adopted. And here I might stop.
An appeal is made against the resolution on grounds which seem to me extraneous and irrelevant. There is an attempt to involve it with the critical question of intervention by our country in European affairs; and recent speeches in England and New York are adduced to show that such intervention is sought by our guest. It is sufficient to say, in reply to this suggestion, introduced by the Senator from Georgia [Mr. Berrien] with a skill which all might envy, and adopted by the Senator from New Jersey [Mr. Miller], that no such intervention is promised or implied by the resolution. It does not appear on the face of the resolution; it is not in any way suggested by the resolution, directly or indirectly. It can be found only in the imagination, the anxieties, or the fears of Senators. It is a mere ghost, and not a reality. As such we may dismiss it. But I feel strongly on this point, and desire to go further. Here, again, I shall be brief; for the occasion allows me to give conclusions only, and not details.
While thus warmly, with my heart in my hand, joining in this tribute, I wish to be understood as in no respect encouraging any idea of belligerent intervention in European affairs. Such a system would have in it no element of just self-defence, and would open vials of perplexities and ills which I trust our country will never be called to affront. I inculcate no frigid isolation. God forbid that we should ever close our ears to the cry of distress, or cease to swell with indignation at the steps of tyranny! In the wisdom of Washington we find perpetual counsel. Like Washington, in his eloquent words to the Minister of the French Directory, I would offer sympathy and God-speed to all, in every land, who struggle for Human Rights; but, sternly as Washington on another occasion, against every pressure, against all popular appeals, against all solicitations, against all blandishments, I would uphold with steady hand the peaceful neutrality of the country. Could I now approach our mighty guest, I would say to him, with the respectful frankness of a friend: "Be content with the outgushing sympathy which you now inspire everywhere throughout this wide-spread land, and may it strengthen your soul! Trust in God, in the inspiration of your cause, and in the Great Future, pregnant with freedom for all mankind. But respect our ideas, as we respect yours. Do not seek to reverse our traditional, established policy of peace. Do not, under the too plausible sophism of upholding non-intervention, provoke American intervention on distant European soil. Leave us to tread where Washington points the way."
And yet, with these convictions, Mr. President, which I now most sincerely express, I trust the Senator from Georgia [Mr. Berrien] will pardon me when I say I cannot join in his proposed amendment,—and for this specific reason. To an act of courtesy and welcome it attaches a condition, which, however just as an independent proposition, is most ungracious in such connection. It is out of place, and everything out of place is to a certain extent offensive. If adopted, it would impair, if not destroy, the value of our act. A generous hospitality will not make terms or conditions with a guest; and such hospitality I trust Congress will tender to Louis Kossuth.
[OUR COUNTRY ON THE SIDE OF FREEDOM, WITHOUT BELLIGERENT INTERVENTION.]
Letter to a Philadelphia Committee, December 23, 1851.
When this letter was written, Kossuth was engaged in the effort to enlist our country in active measures for the liberation of Hungary.
Washington, December 23, 1851.
Dear Sir,—It is not in my power to unite with the citizens of Philadelphia in their banquet to Governor Kossuth. But though not present in person, my heart will be with them in every word of honor to that illustrious man, in every assurance of sympathy for his great cause, and in every practical effort to place our country openly on the side of Freedom.
Among citizens all violence is forbidden by the Municipal Law, which is enforced by no private arm, but by the sheriff, in the name of the Government, and under the sanctions of the magistrate. So, among the Nations, all violence, and especially all belligerent intervention, should be forbidden by International Law; and I trust the day is not far distant when this prohibition will be maintained by the Federation of Christian States, with an executive power too mighty for any contumacious resistance.
I have the honor to be, Gentlemen,
Your faithful servant,
Charles Sumner.
To the Committee.
[CLEMENCY TO POLITICAL OFFENDERS.]
Letter to an Irish Festival at Washington, January 22, 1852.
At the festival the following toast was given: "Hon. Charles Sumner: In the Cradle of Liberty the cause of the exile will ever find a friend."
The following letter was then read.
Washington, January 22, 1852.
Gentlemen,—It is not in my power to unite in your festal meeting this evening. But be assured I shall rejoice in every word of affection and honor for Ireland, and of sympathy with all her children, especially those patriots who have striven and suffered for the common good.
In answer to your express request, I beg leave to inclose a sentiment, which I trust may find a response at once from our own Government and from that of Great Britain.
I have the honor to be, Gentlemen,
Your faithful servant,
Charles Sumner.
John T. Towers, Esq., Chairman, &c.
Clemency: A grace which it can never be otherwise than honorable to ask and honorable to grant.
"'Tis mightiest in the mightiest; it becomes
The thronèd monarch better than his crown."
[JUSTICE TO THE LAND STATES, AND POLICY OF ROADS.]
Speeches in the Senate on the Iowa Railroad Bill, January 27, February 17, and March 16, 1852.
The Senate having under consideration the "bill granting the right of way, and making a grant of land to the State of Iowa, in aid of the construction of certain railroads in said State," Mr. Sumner entered into the debate, speaking several times. His remarks were much noticed at the time in the Senate, and also in the country, especially in the West. At home in Massachusetts political opponents seized the occasion for criticism, and resolutions on the subject were introduced into the Legislature of Massachusetts. He spoke first January 27, 1852, as follows.
Mr. President,—This bill is important by itself, inasmuch as it promises to secure the building of a railroad, at large cost, for a long distance, through a country not thickly settled, in a remote corner of the land. It is more important still as a precedent for a series of similar appropriations in other States. In this discussion, then, we have before us, at the same time, the special interests of the State of Iowa, traversed by this projected road, and also the great question of the public lands.
I have no inclination to enter into these matters at length, even if I were able; but entertaining no doubt as to the requirements of policy and of justice in the present case, and in all like cases,—seeing my way clearly before me by lights that cannot deceive,—I hope in a few words to exhibit these requirements and to make this way manifest to others. I am especially moved to do so by the tone of remark often heard out of the Senate, and sometimes even here, begrudging these appropriations, and charging particular States for which they are made with undue absorption of the national property. It is sometimes said—not in this body, I know—that "the West is stealing the public lands"; and the Senator from Virginia [Mr. Hunter], who expresses himself with frankness and moderation worthy of regard, in discussing this very measure, distinctly says that "we are squandering away the public lands"; and he complains that such appropriations are partial, "because very large amounts of land are distributed to those States in which they lie, while nothing is given to the old States." And the Senator from Kentucky [Mr. Underwood], taking up this strain, dwells at great length, and in every variety of expression, on the alleged partiality of the distribution.
Now I know full well that the States in which these lands lie need no defender like myself. But, as a Senator from one of the old States, I desire thus early to declare my dissent from these views, and the reasons for this dissent. Beyond a general concern that the public lands, of which the Union is now almoner, custodian, and proprietor, should be administered freely, generously, bountifully, in such wise as most to promote their settlement, and to build upon them towns, cities, and States, the nurseries of future empire,—beyond this concern, which leads me gladly to adopt the proposition in favor of actual settlers brought forward by the Senator from Wisconsin [Mr. Walker], I find clear and special reason for supporting the measure before the Senate in an undeniable rule of justice to the States in which the lands lie.
Let me speak, then, for justice to the Land States. And in doing so I wish to present an important, and, as it seems to me, decisive consideration,—not adduced thus far in this debate, nor do I know that it has been argued in any former discussion,—founded on the exemption from taxation enjoyed by the national lands in the several States, and the unquestionable value of this franchise. The subject naturally presents itself under two heads: first, the origin and nature of this franchise; and, secondly, its extent and value, after deducting all reservations and grants to the several States.
I. In the first place, as to the origin and nature of the immunity enjoyed by the national domain in the several States.
The United States are proprietors of large tracts within the municipal and legislative jurisdiction of States, not held directly by virtue of any original prerogative or eminent domain, by any right of conquest, occupancy, or discovery, but under acts of cession from the old States, in which the lands were situated, and from foreign countries, recognized and confirmed in the statutes by which the different States have been constituted. Words determining this relation are found in the Ordinance of 1787, as follows: "The Legislatures of those districts or new States shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers." This provision is incorporated, as an article of compact, in subsequent statutes under which the new States took their place in the Union. It is "the primary disposal of the soil," without any incident of sovereignty, which is here secured.
Regarding the United States, then, as simple proprietors, under the jurisdiction of the States, would they not be liable, in the discretion of the States, to the burdens of other proprietors, unless specially exempted? This exemption is conceded. In the Ordinance of 1787 it is expressly declared that "no tax shall be imposed on lands the property of the United States"; and this provision, like that already mentioned, was embodied in succeeding Acts of Congress by which new States were constituted. The fact that it was formally conceded and has been thus embodied seems to denote that such concession was regarded as necessary to secure the desired immunity. Indeed, from familiar principles of our jurisprudence, recognized by the Supreme Court, it is reasonable to infer, that, without such express exemption, this whole extent of territory would be within the field of local taxation, liable, like the lands of other proprietors, to all customary burdens and incidents.
Thus, in an early case of Pennsylvania, it is decided that the purchase of land by the United States would not alone be sufficient to vest them with the jurisdiction, or to oust the jurisdiction of the State, without being accompanied or followed by the consent of the Legislature of the State.[75] And it is judicially declared by the late Mr. Justice Woodbury, in a well-considered case:—
"Where the United States own land situated within the limits of particular States, and over which they have no cession of jurisdiction, for objects either special or general, little doubt exists that the rights and remedies in relation to it are usually such as apply to other land-owners within the State."[76]
After setting forth certain rights of the United States, the learned judge proceeds:—
"All these rights exist in the United States for constitutional purposes, and without a special cession of jurisdiction; though it is admitted that other powers over the property and persons on such lands will, of course, remain in the States, till such a cession is made. Nothing passes without such a cession, except what is an incident to the title and purpose of the General Government."[77]
The Supreme Court give great eminence to the sovereign right of taxation in the States, saying:—
"Taxation is a sacred right, essential to the existence of Government,—an incident of sovereignty. The right of legislation is coextensive with the incident, to attach it upon all persons and property within the jurisdiction of a State."[78]
And again, the Court say in another case:—
"However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the Legislature."[79]
In the same case, the Court, after declaring "that the taxing power is of vital importance,—that it is essential to the existence of Government,—that the relinquishment of such a power is never to be assumed," add, cautiously, that they "will not say that a State may not relinquish it,—that a consideration sufficiently valuable to induce a partial release of it may not exist."[80]
While thus upholding the right of taxation as one of the precious attributes belonging to the States, the Court, under the Constitution of the United States, properly exempt instruments and means of government; but they limit the exemption to these instruments and means. Thus it is expressly decided in a celebrated case,[81] that, while the Bank of the United States, being one of the necessary instruments and means to execute the sovereign powers of the nation, is not liable to taxation, yet the real property of the Bank is thus liable, in common with other real property in a particular State.
Now the lands held by the United States do not belong to instruments and means necessary and proper to execute the sovereign powers of the nation. In this respect they clearly differ from fortifications, arsenals, and navy-yards. They are strictly in the nature of private property belonging to the nation and situated within the jurisdiction of States. In excusing them from taxation, our fathers acted unquestionably according to the suggestions of prudence, but also under the influence of precedent, derived at that time from the prerogatives of the British Crown. It was an early prerogative, transmitted from feudal days, when all taxes were in the nature of aids and subsidies to the monarch, that the property of the Crown, of every nature, should be exempt from taxation. But mark the change. This ancient feudal principle is not now the law of England. By the statute of 39 and 40 George III., chap. 88, passed thirteen years after the Ordinance of 1787, the lands and tenements purchased by the Crown out of the privy purse or other moneys not appropriated to any public service, or which came to the King from his ancestors or private persons,—in other words, lands and tenements in the nature of private property,—are subjected to taxation even while they belong to the Crown.
Thus the matter stands. Lands belonging to the nation, which, it seems, even royal prerogative at this day in England cannot save from taxation, are in our country, under express provisions of compact, early established, exempted from this burden. Now, Sir, I make no complaint; I do not suggest any change, nor do I hint any ground of legal title in the States. But I do confidently submit, that in this peculiar, time-honored immunity, originally claimed by the nation, and conceded by the States within which the public lands lie, there is ample ground of equity, under which these States may now appeal to the nation for assistance out of these public lands.
When I listen to comparisons discrediting these States by the side of the old States, when I hear it charged that they are constant recipients of the national bounty, and when I catch those sharper terms of condemnation by which they are characterized as "plunderers" and "robbers" and "pirates," I am forced to inquire whether the nation has not already received from these States something more than it has ever bestowed, even in its most liberal moods,—whether, at this moment, the nation is not equitably debtor to these States, and not these States debtors to the nation.
II. I am now brought to the second head of this inquiry,—that is, the extent and value of the immunity from taxation, after deducting all reservations and grants to the several States. Authentic documents and facts place these beyond question.
From the official returns of the Land Office in January, 1849,[82] it appears that the areas of the twelve Land States—Ohio, Indiana, Illinois, Missouri, Alabama, Mississippi, Louisiana, Michigan, Arkansas, Wisconsin, Iowa, and Florida—embrace 392,579,200 acres. California was not at that time a State of the Union. Of this territory, only 289,961,954 acres had been, in pursuance of the laws of the United States, surveyed, proclaimed, and put into the market. In some of the recent States, more than a moiety of the whole domain had never been brought into this condition. At the date of these official returns it continued still unconscious of the surveyor's chain. Thus, in Wisconsin, out of more than thirty-four millions of acres, only a little more than thirteen millions were proclaimed for sale; and in Iowa, the very State whose interests are now particularly in question, out of more than thirty-two millions of acres, only a little more than twelve millions were proclaimed for sale. I cannot doubt that in fact the aggregate of the public lands within the States at all times much exceeds the amount actually in the market; but since it may be said that lands not yet surveyed, proclaimed, and put into the market, though nominally under the jurisdiction of the State, must lie actually beyond the sphere of its influence, so as not to derive any appreciable advantage from the local government, and as I desire to hold this argument above every imputation of exaggeration,—knowing full well that it can afford to be understated,—I forbear to take the larger amount as basis, but found my estimates upon the extent of territory actually proclaimed for sale, from the beginning down to January, 1849, amounting to 289,961,954 acres.
All these lands thus proclaimed have been exempt from taxation. But since they were proclaimed at different periods, and also sold at different periods, so far as they are sold, it is necessary, in arriving at the value of this immunity, to ascertain what is the average period during which the lands, after being put into the market, are in the possession of the United States. This we are able to do from official returns of the Land Office. Here is a table now before me, from which it appears, that, of the lands offered for sale during a period of thirty years, large quantities were, at the expiration of the period, still on hand. Of the fourteen millions offered in Ohio during this period, more than two millions remained, while, of the nineteen millions offered in Missouri, more than twelve millions remained. Of all the lands offered during this period of thirty years, more than half were still unsold.[83] And out of the aggregate of 289,961,954 acres proclaimed from the beginning down to January, 1849, notwithstanding the advancing tread of our thick-coming population, only 100,209,656 acres had been sold.[84] Now, without further pursuing these details, I assume, what cannot be questioned, as it is most clearly within the truth, that lands proclaimed are not all sold till after a period of fifty years. This estimate makes the average period during which the lands, after being surveyed and proclaimed, are actually in the possession of the United States, and free from taxation, twenty-five years.
According to this estimate, 289,961,954 acres, proclaimed for sale, have been absolutely free from taxation during the space of twenty-five years; and yet, during this whole period, they have, without the ordinary consideration, enjoyed the protection of the State, with advantages and increased value from highways, bridges, and school-houses, all of which are supported by the adjoining proprietors, under the laws of the State, without assistance of any kind from the United States.
Such is the extent of this immunity. But, in order to determine its precise value, it is necessary to advance a step farther, and ascertain one other element: that is, the average annual tax on land in these States,—for instance, on the land of other non-residents. There are no official documents within my knowledge by which this can be determined. But, after inquiry of gentlemen, themselves landholders in these States, I have thought it might be placed, without risk of contradiction, at one cent an acre. Probably it is rather two, or even three cents; but, desiring to keep within bounds, I call it only one cent an acre. The annual tax on 289,961,954 acres, at the rate of one cent an acre, would be $2,899,619, and the sum-total of this tax for twenty-five years would amount to $72,490,475, being the apparent value of this immunity from taxation already enjoyed by the United States; or, if we call the annual tax two cents an acre, instead of one cent, we have nothing less than $144,980,950, of which the United States may now be regarded as trustees in equity for the benefit of the Land States.
Against this large sum I may be reminded of reservations and grants by the nation to the different States. These, when examined, do not materially interfere with the result. From the official returns of the Land Office, January, 1849,[85] we learn the precise extent of these reservations and grants down to that period. Here is the exhibit:—
| Acres. | |
| Common Schools | 10,807,958 |
| Universities | 823,950 |
| Seat of Government | 50,860 |
| Salines | 422,325 |
| Deaf and Dumb Asylums | 45,440 |
| Internal Improvements | 8,474,473 |
| ————— | |
| 20,625,006 |
This is all. In the whole aggregate only a little more than twenty millions of acres have been granted to these States. The value of this sum-total, if deducted from the estimated value of the franchise enjoyed by the nation, will still leave a very large balance to the credit of the Land States. Estimating the land at $1.25 an acre, all the reservations and grants will amount to no more than $25,781,257. Deducting this sum from $72,490,475, we have $46,709,218 to the credit of the Land States; or, if we place the tax at two cents an acre, more than double this sum.
This result leaves the nation so largely in debt to the Land States that it becomes of small importance to scan closely the character of these grants and reservations, to determine whether in large part they are not already satisfied by specific considerations on the part of the States. But the stress, which, in the course of this debate, is laid upon this bounty, leads me to go further. From an examination of the Acts of Congress by which the Land States were admitted into the Union it appears that a large portion of these reservations and grants was made on the express condition that the lands sold by the United States, under the jurisdiction of the States, should remain exempt from any State tax for the space of five years after the sale. This condition is particularly applicable to the appropriations for common schools, universities, seats of government, and salines, amounting to 12,105,093 acres. It is also particularly applicable to another item, not mentioned before, which is known as the five per cent fund, from the proceeds of the public lands, for the benefit of roads and canals, amounting in the whole to $5,242,069. These appropriations, being made on specific conditions, faithfully performed by the States down to this day, are properly excluded from our calculations. And this is an answer to the Senator from Kentucky [Mr. Underwood], who dwelt so energetically on these appropriations, without seeming to be aware of the conditions on which they were granted.
That I may make this more intelligible, let me refer to the act for the admission of Indiana. After setting forth the five reservations and grants already mentioned, it proceeds:—
"And provided always, That the five foregoing provisions herein offered are on the conditions that the convention of the said State shall provide by an ordinance, irrevocable without the consent of the United States, that every and each tract of land sold by the United States, from and after the first day of December next, shall be and remain exempt from any tax laid by order or under any authority of the State, whether for State, county, or township, or any other purpose whatever, for the term of five years from and after the day of sale."
This clause does not stand by itself in the acts admitting the more recent States, but is mixed with other conditions. I will not believe, however, that any discrimination can be made between particular Land States, on the ground of difference in conditions properly attributable to accidental circumstances. The provision just quoted is found substantially in the acts for the admission of Ohio, Missouri, Illinois, Alabama, Mississippi, and Arkansas. So far as these States are concerned, it is a complete consideration, in the nature of satisfaction, for reservations and grants enjoyed by them. It also helps to illustrate the value of the permanent immunity from taxation belonging to the United States, by exhibiting concessions made by the United States to assure this franchise for certain moderate quantities of land during the brief space of five years only.
After the constant charges of squandering the public lands and of partiality to the Land States, I think all will be astonished at the small amount on the debtor side, in the great account between the States and the Nation. This consists of grants for internal improvements, in the whole reaching to only 8,474,473 acres, which, at $1.25 an acre, will be $10,593,091. If this sum be deducted from the estimated value of the immunity already enjoyed by the United States, we shall still have upwards of $60,000,000 surrendered by the Land States to the nation; or, if we call the annual tax two cents an acre, more than double this sum.
In these estimates I group together all the Land States. But, taking separate States, we find the same proportionate result. For instance, there is Ohio, with 16,770,984 acres proclaimed for sale down to January 1, 1849. Adopting the basis already employed, and assuming that these lands continued in the possession of the United States an average period of twenty-five years after being surveyed and proclaimed, and that the land tax was one cent an acre, we have $4,192,746 as the value of the immunity from taxation already enjoyed by the United States in Ohio. From this may be deducted the value of 1,181,134 acres, being grants to this State for internal improvements, at $1.25 per acre, equal to $1,476,417, leaving upwards of two millions—nearly three millions—of dollars yielded by this State to the nation.
Take another State,—Missouri. It appears that down to January, 1849, 39,635,609 acres had been proclaimed for sale in this State. Assuming again the basis already employed, we have $9,908,902 as the value of the immunity from taxation already enjoyed by the United States in Missouri. From this may be deducted the value of 500,000 acres, granted for internal improvements, which, at $1.25 an acre, amounts to $625,000, leaving upwards of nine millions of dollars thus yielded by this State to the nation.
In this way I might proceed with all the Land States individually; but enough is done to repel the charges against them, and to elucidate a peculiar equity. On the one side, they have received little, very little, from the nation,—while, on the other side, the nation, by strong considerations of equity, is largely indebted to them. This obligation of itself constitutes an equitable fund, to which the Land States may properly resort for assistance in works of internal improvement; and Congress will show an indifference to reasonable demands, should it fail to deal with them munificently,—in some sort, according to the simple measure of advantage which the nation has already so largely enjoyed at their hands.
Against these clear and well-supported merits, the old States present small claims to consideration. They have waived no right of taxation over lands within their acknowledged jurisdiction; they have made no valuable concession; they have yielded up no costly franchise. It remains, then, that, with candor and justice, they should recognize the superior—I will not say exclusive—claims of the States within whose borders and under the protection of whose laws the national domain is found.
Thus much for what I have to say in favor of this bill, on the ground of justice to the States in which the lands lie. If this argument did not seem sufficiently conclusive to render any further discussion superfluous, at least from me, I might go forward, and show that the true interests of the whole country—of every State in the Union, as of Iowa itself—are happily coincident with this claim of justice.
The State of Iowa, though distant and still sparsely settled, is known to contain the materials of boundless prosperity. The northern part may wear some of the rigid features of New England, but the middle and southern portion has a surface of great fertility, and in its bosom coal to an incalculable amount,—more, it is supposed, than all to be found in England and the whole European Continent. With these remarkable capacities, which, however, it shares with Illinois and Indiana and with the northern part of Missouri, it will be able to subsist a large population and to support manufactories on the most extensive scale. Its fields will naturally wave with golden harvests, while its inexhaustible stores of coal will quicken every form of human industry, and will furnish an incalculable motive-power to all its multiplying machinery and workshops. If in the reports of Science, now authenticated by a careful and admirable geological survey of this region,[86] we may read the future development, I had almost said the destiny, of States, according to natural laws, which I believe, then it would be difficult to exaggerate what we may expect from Iowa.
But all resources will be vain and valueless without human intelligence, skill, and exertion. These will change the face of the country, opening forests, ploughing fields, working mines, building roads, establishing schools, planting churches, administering justice. To carry such blessings into every part of this new region is now an especial duty. Of course all who have property in this State, particularly all landholders, according to their means, must contribute to the improvements and institutions by which its welfare is advanced. This general principle seems to be clear. It is only when we come to its application that there can be any question.
It will be observed that here is no suggestion of legal right on the part of the Land States, or of legal obligation on the part of the nation. Nor is there any suggestion that our fathers, when by formal compact they placed this immunity beyond question, failed to act justly; nor again is there any suggestion that this immunity should be repealed. It is simply assumed as an existing fact, which has been of value to the nation, and therefore constitutes an equitable ground of obligation on the part of the nation in favor of the Land States. Lord Bacon defines equity as the "general conscience of the realm"; and it is to this "general conscience" of the republic that the parties interested in this obligation must look for its recognition.
And now the question is directly presented, whether the Great Landholder, persevering in this system, will leave to the small landholders by his side the further labor of building railroads, by which his own magnificent domain will be largely enhanced, without contribution thereto. The very statement of the question seems to be sufficient. Reason declares, with unhesitating voice, that, whatever may be the legal immunities of the Great Landholder, he cannot, in equity, be above his neighbors, and that he should contribute to these works in some proportion according to the extent of the benefit and the immunities enjoyed. To ascertain this proportion precisely may be difficult; but the obligation is clear and obvious.
It is on the ground of this obligation that the bill now before the Senate is most strongly commended. It is said, I know, that by the grant of alternate sections for the purpose of railroads the remaining sections are so far enhanced in value that the nation loses nothing by the grant,—so that it may enjoy the rare privilege of bestowing without losing, of squandering, if you please, without any diminution of its means. Though this consideration is not unimportant, yet I do not dwell upon it, because it is so entirely subordinate to that derived from the positive obligation of the Great Landholder on unanswerable grounds of justice. I say confidently on unanswerable grounds of justice, because nothing can render the rules of justice in such a case less obligatory upon the Government than upon a private individual. If the latter, according to all the laws of good neighborhood, would be bound to help such a work, then is the Government bound. To decline this duty, to shirk this obvious obligation, is to behave as no private citizen could behave without the imputation of meanness. Thus strongly may I put the case, without fear of contradiction.
The influence of roads and canals in enhancing the value of the public domain through which they pass is well illustrated by experience. Take the Illinois and Michigan Canal, for which alternate sections of land were granted by the United States. Many years ago, as I understand, all the reserved sections on this line were sold, while in other districts of Illinois, where there has been no similar improvement, large quantities of land still continue unsold. Indeed, of the whole national domain in Illinois, amounting to upwards of thirty-five millions of acres, only fifteen millions had been sold in January, 1849.[87]
Take another instance. The Chicago and Rock Island Railroad—of which one of the proposed roads in Iowa will be an extension—has given an impulse to sales throughout a wide region. The County of Henry, through which it passes, is one of the largest and least populous in Illinois. In this county the lands had been in the market for nearly thirty years, and recent sales had not reached a thousand acres a year. But in the very year after this road was surveyed fifty thousand acres of public land were sold in this county, being more than all the land sold in the remainder of the district. Again, I am told, that, after the bill now pending passed the Senate, at the last Congress, public attention, in anticipation of the promised improvement, was attracted to the neighborhood of Davenport, the eastern terminus of the proposed road, and the public domain, not only at this place, but in the adjoining counties, at once found a market. Though the sales had already been considerable, they were in a single year more than doubled, amounting to upwards of eighty thousand acres.
It will readily occur to all that the whole country must gain by the increased value of the lands still retained and benefited by the proposed road. But this advantage, though not unimportant, is trivial by the side of the grander gains, commercial, political, social, and moral, which must accrue from the opening of a new communication, by which the territory beyond the Mississippi is brought into connection with the Atlantic seaboard, and the distant post of Council Bluffs becomes a suburb of Washington. It would be difficult to exaggerate the influence of roads as means of civilization. This, at least, may be said: Where roads are not, civilization cannot be; and civilization advances as roads are extended. By roads religion and knowledge are diffused,—intercourse of all kinds is promoted,—producer, manufacturer, and consumer are all brought nearer together,—commerce is quickened,—markets are created,—property, wherever touched by these lines, as by a magic rod, is changed into new values,—and the great current of travel, like that stream of classic fable, or one of the rivers in our own California, hurries in a channel of golden sand. The roads, together with the laws, of ancient Rome are now better remembered than her victories. The Flaminian and Appian Ways, once trod by such great destinies, still remain as beneficent representatives of ancient grandeur. Under God, the road and the schoolmaster are two chief agents of human improvement. The education begun by the schoolmaster is expanded, liberalized, and completed by intercourse with the world; and this intercourse finds new opportunities and inducements in every road that is built.
Our country has already been active in this work. Through a remarkable line of steam communications, chiefly by railroad, its whole population is now, or will be shortly, brought close to the borders of Iowa. Cities of the Southern seaboard, Charleston, Savannah, and Mobile, are already stretching their lines in this direction, soon to be completed conductors,—while the traveller from all the principal points of the Northern seaboard, from Portland, Boston, Providence, New York, Philadelphia, Baltimore, and Washington, now passes without impediment to this remote region, traversing a territory of unexampled resources, at once magazine and granary, the largest coal-field and at the same time the largest corn-field of the known globe, winding his way among churches and school-houses, among forests and gardens, by villages, towns, and cities, along the sea, along rivers and lakes, with a speed which may recall the gallop of the ghostly horseman in the ballad:—
"Fled past on right and left how fast
Each forest, grove, and bower!
On right and left fled past how fast
Each city, town, and tower!
"Tramp! tramp! along the land they rode,
Splash! splash! along the sea."
On the banks of the Mississippi he is now arrested. The proposed road in Iowa will bear the adventurer yet further, to the banks of the Missouri; and this remote giant stream, mightiest of the earth, leaping from its sources in the Rocky Mountains, will be clasped with the Atlantic in the same iron bracelet. In all this I see not only further opportunities for commerce, but a new extension to civilization and increased strength to our National Union.
A heathen poet, while picturing the Golden Age, perversely indicates the absence of long roads as creditable to that imaginary period in contrast with his own. "How well," exclaims the youthful Tibullus, "they lived while Saturn ruled,—before the earth was opened by long ways!"
"Quam bene Saturno vivebant rege, priusquam
Tellus in longas est patefacta vias!"[88]
But the true Golden Age is before, not behind; and one of its tokens will be the opening of those long ways, by which villages, towns, counties, states, provinces, nations, are all to be associated and knit together in a fellowship that can never be broken.
SECOND SPEECH.
The debate on the Iowa Railroad Bill was continued on successive days down to February 17th, when the speech of Mr. Sumner was particularly assailed by Mr. Hunter, of Virginia. To this he replied at once.
One word, if you please, Mr. President. The Senator from Virginia [Mr. Hunter], who has just taken his seat, has very kindly given me notice that I am to expect "a broadside" from the Senator from Kentucky [Mr. Underwood]. For this information I am properly grateful. When, a few days ago, I undertook to discuss an important question in this body, I expressed certain views, deemed by me of weight. Those views I submitted to the candor and judgment of the Senate. I felt confidence in their essential justice, and nothing heard since has impaired that confidence. I have listened with respect and attention to the address of the Senator from Virginia, as it becomes me to listen to everything any Senator undertakes to put forth here. But I hope to be excused, if I say, that, in all he has so eloquently uttered with reference to myself, he has not touched by a hair-breadth my argument. He has criticized—I am unwilling to say that he has cavilled at—my calculations; but he has not, by the ninth part of a hair, touched the conclusion which I drew. That still stands. And let me say that it cannot be successfully assailed in the way attempted by him.
I said that injustice is done to the Land States, out of this body and in this body: out of this body, because I often hear them called "land-stealers" and "land pirates"; in this body by the Senator from Virginia, when he complains of the partial distribution of the public lands, and particularly points out the bill now before the Senate as an instance. I said that this charge was without foundation. Why? On what ground? Because there is an existing equity (I so called it,—nothing more) on the part of the Land States as against the General Government. And on what is this founded? On a fact of record in the public acts of this country,—that is, the exemption of the public domain from taxation by the States in which it is situated. The Senator from Virginia does not question this fact; of course he cannot, for it is embodied in Acts of Congress.
The next inquiry, then, was, as to the value of this immunity, which I called an equity. To illustrate this value, I went into calculations and estimates, which I presented, after some study of the subject,—not, perhaps, such study as the Senator from Virginia has found time to give, or such as the Senator from Kentucky, in the plenitude of his researches, doubtless has given. On those calculations and estimates I attributed a certain value to the equity in question. My calculations and estimates may be overstated; they may be exaggerated. The Senator from Virginia thinks them so. Other gentlemen with whom I have had the privilege of conversing think them understated. However this may be, it does not touch the argument. I may have done injustice to my argument by overstating them. I intended to understate them. From all that I hear, I still think that I have understated them. But, whether understated or overstated, the argument still stands, that these States have conceded to the General Government an immunity from taxation,—that this immunity has a certain value, I think very large,—and that this value constitutes an equity to which the Land States have a right to appeal for bountiful, ay, for munificent treatment. Has the Senator from Virginia answered this argument? Can he answer it?
I forbear to go into the subject at this time. I rose simply to state, that, as the Senator from Virginia generously warns me that I am to expect "a broadside" from the Senator from Kentucky, I am to regard what he said to-day, so far as I am concerned, simply as a signal gun. The Senator will pardon me, if I say it is nothing more; for it has not reached me, or my argument. Meanwhile I await, with resignation, and without anxiety, the "broadside" from Kentucky.
THIRD SPEECH.
The debate was continued for many days, during which the speech of Mr. Sumner was attacked and defended. Finally, on the 16th of March, immediately before the question was taken, he again returned to the subject.
Mr. President,—Much time has been consumed by this question. At several periods the debate has seemed about to stop, and then again it has taken a new spring, while the goal constantly receded. I know not if it is now near the end. But I hope that I shall not seem to interfere with its natural course, or unduly occupy the time of the Senate, if I venture again for one moment to take part in it.
The argument which I submitted on a former occasion has not passed unregarded. And since it can owe little to my individual position, I accept the opposition it encounters as a tribute to its intrinsic importance. It has been assailed by different Senators, on different days, and in different ways. It has been met by harmless pleasantry, and by equally harmless vituperation,—by figures of arithmetic and figures of rhetoric,—by minute criticism and extended discussion,—also, by that sure resource of a weak cause, hard words, and an imputation of personal motives. I propose no reply to all this array; least of all shall I retort hard words, or repel personal imputations. On this head I content myself with saying,—and confidently, too,—that, had he known me better, the Senator from Kentucky [Mr. Underwood], who is usually so moderate and careful, would have hesitated long before uttering expressions which fell from him in this debate.
The position I took is regarded as natural, or excusable, in a Senator from one of the Land States, acting under the vulgar spur of local interest; but it is pronounced unnatural and inexcusable in a Senator from Massachusetts. Now, Sir, it is sufficient for me to say, in reply to this imputation, that, while I know there are influences and biases incident to particular States or sections of the Union, I recognize no difference in the duties of Senators on this floor. Coming from different States and opposite sections, we are all Senators of the Union; and our constant duty is, without fear or favor, to introduce into the national legislation the principle of justice. In this spirit, while sustaining the bill before the Senate, I spoke for justice to the Land States.
In my present course, I but follow the example of Senators and Representatives of Massachusetts on kindred measures from their earliest introduction down to the present time. The first instance was in 1823, on the grant to the State of Ohio of land one hundred and twenty feet wide, with one mile on each side, for the construction of a road from the lower rapids of the Miami River to the western boundary of the Connecticut Reserve. On the final passage of this grant in the House, the Massachusetts delegation voted as follows: Yeas,—Samuel C. Allen, Henry W. Dwight, Timothy Fuller, Jeremiah Nelson, John Reed, Jonathan Russell; Nay,—Benjamin Gorham. In the Senate the bill passed without a division. In 1828 a still greater unanimity occurred on the passage of the bill to aid the State of Ohio in extending the Miami Canal from Dayton to Lake Erie; and this bill is an early instance of the grant of alternate sections, as in that now before the Senate. On this the Massachusetts delegation in the House voted as follows: Yeas,—Isaac C. Bates, Benjamin W. Crowninshield, John Davis, Edward Everett, John Locke, John Reed, Joseph Richardson, John Varnum; Nays,—none. In the Senate, Messrs. Silsbee and Webster both voted in the affirmative. I pass over intermediate grants, which, I am told, were sustained by the Massachusetts delegations with substantial unanimity. The extensive grants, by the last Congress, to Illinois, Mississippi, and Alabama, in aid of a railroad from Chicago to Mobile, were sustained by all the Massachusetts votes in the House, except one.
Still further, in sustaining the present bill on grounds of justice to the Land States, I but follow the recorded instructions of the Legislature of Massachusetts, addressed to its Senators and Representatives here on a former occasion. The subject was presented in a special message to the Legislature in 1841, by the distinguished Governor at that time,[89] who strongly urged "a liberal policy towards the actual settler, and towards the new States, for this is justly due to both." And he added: "Such States are entitled to a more liberal share of the proceeds of the public lands than the old States, as we owe to their enterprise much of the value this property has acquired. It seems to me, therefore, that justice towards the States in which these lands lie demands a liberal and generous policy towards them."[90] In accordance with this recommendation, it was resolved by the Legislature, "That, in the disposition of the public lands, this Commonwealth approves of making liberal provisions in favor of the new States; and that she ever has been, and still is, ready to cooperate with other portions of the Union in securing to those States such provisions."[91] Thus a generous policy towards the Land States, with liberal provisions in their favor, was considered by Massachusetts the part of justice.
It was my purpose, before this debate closed, to consider again the argument I formerly submitted, and to vindicate its accuracy in all respects, both in principle and in detail. But this has already been so amply done by others much abler than myself,—by the Senator from Missouri [Mr. Geyer], both the Senators from Michigan [Mr. Felch and Mr. Cass], the Senator from Arkansas [Mr. Borland], the Senator from Iowa [Mr. Dodge], and the Senator from Louisiana [Mr. Downs],—all of whom, with different degrees of fulness, have urged the same grounds in favor of this bill, that I feel unwilling at this hour, and while the Senate actually waits to vote on the question, to occupy time by further dwelling upon it. Perhaps on some other occasion I may think proper to return to it.
But, while avoiding what seems superfluous discussion, I cannot forbear asking your attention to the amendment of the Senator from Kentucky [Mr. Underwood].
This amendment, when addressed to Senators of the favored States, is of a most plausible character. It proposes to give portions of the public domain to the original Thirteen, together with Vermont, Maine, Tennessee, and Kentucky, for purposes of education and internal improvement, at the rate of one acre to each inhabitant according to the recent census. This is commended by the declared objects,—education and internal improvement. Still further, in its discrimination of the old States, it assumes a guise well calculated to tempt them into its support. It holds out the attraction of seeming, though unsubstantial, self-interest. It offers a lure, a bait, to be unjust. I object to it on several grounds.
1. But I put in the fore-front, as my chief objection, its clear, indubitable, and radical injustice, written on its very face. The amendment confines its donations to the old States, and, so doing, makes an inequitable discrimination in their favor. It tacitly assumes, that, by the bill in question, or in some other way, the Land States have received their proper distributive portion, so as to lose all title to share with the old States in the proposed distribution. But, if there be any force in the argument, so much considered in this debate, that these railroad grants actually enhance the value of the neighboring lands of the United States, and constitute a proper mode of bringing them into the market, or if there be any force in the other argument which I have presented, drawn from the equitable claims of the Land States, in comparison with the other States, to the bounty of the great untaxed proprietor,[92] then this assumption is unfounded. There is no basis for the discrimination made by the amendment. If the Iowa Land Bill be proper without this amendment, as most will admit, then this amendment, introducing a new discrimination, is improper. Nor do I well see how any one prepared to sustain the original bill can sustain the amendment. The Senator from Kentucky, who leads us to expect his vote for the bill, seems to confess the injustice of his attempted addition.
2. I object to it as out of place. The amendment engrafts upon a special railroad grant to a single State a novel distribution of the national domain. Now there is a place and a time for all things; and nothing seems to me more important in legislation than to keep all things in their proper place, and to treat them at their proper time. The distribution of the public lands is worthy of attention; and I am ready to meet this great question whenever it arises legitimately for our consideration; but I object to considering it merely as a rider to the Iowa Land Bill.
The amendment would be less objectionable, if proposed as a rider to a general system of railroad grants,—as, for instance, to a bill embracing grants to all the Land States; but it is specially objectionable as a graft upon the present bill. The Senator who introduced it doubtless assumed that other bills, already introduced, would pass; but, if his amendment be founded on this assumption, it should wait the action of Congress on all these bills.
3. If adopted, the amendment might endanger, if it did not defeat, the Iowa Land Bill. This seems certain. Having this measure at heart, believing it founded in essential justice, I am unwilling to place it in this jeopardy.
4. It prepares the way for States of this Union to become landholders in other States, subject, of course, to the legislation of those States,—an expedient which, though not strictly objectionable on grounds of law, or under the Constitution, is not agreeable to our national policy. It should not be promoted without strong and special reasons. In the bill introduced by the Senator from Illinois [Mr. Shields], bestowing lands for the benefit of the insane in different States, this objection is partially obviated by providing that the States in which there are no public lands shall select their portion in the Territories of the United States, and not in other States. But, since in a short time these very Territories may become States, this objection is rather adjourned than removed.
5. Lands held under this amendment, though in the hands of States, will be liable to taxation, as lands of other non-resident proprietors, and on this account will be comparatively valueless. For this reason I said that the amendment held out the attraction of seeming, though unsubstantial, self-interest. That the lands will be liable to taxation cannot be doubted. The amendment does not propose in any way to relieve them from this burden, nor am I aware that they can be relieved from it. The existing immunity is only so long as they belong to the United States. Now there is reason to believe, that, from lack of agencies and other means familiar to the United States, the lands distributed by this amendment would not find as prompt a market as those still in the hands of the Great Landholder. But however this may be, it is entirely clear, from the recorded experience of the national domain, that these lands, if sold at the minimum price of the public lands, and only as rapidly as those of the United States, and if meanwhile they are subject to the same burdens as the lands of other non-residents, will, before the sales are closed, be eaten up by the taxes. The taxes will amount to more than the entire receipts from sales; and thus the grant, while unjust to the Land States, will be worthless to the old States, the pretended beneficiaries. In the Roman Law, an insolvent inheritance was known by an expressive phrase as damnosa hæreditas. A grant under this amendment would be damnosa donatio.
For such good and sufficient reasons, I am opposed to this amendment.
[J. FENIMORE COOPER, THE NOVELIST.]
Letter to the Rev. Rufus W. Griswold, February 22, 1852.
Washington, February 22, 1852.
My Dear Sir,—It is not in my power to be present at the proposed demonstration in memory of the late Mr. Cooper. But I am glad of the opportunity, afforded by the invitation with which I have been honored, to express my regard for his name and my joy that he lived and wrote.
As an author of clear and manly prose, as a portrayer to the life of scenes on land and sea, as a master of the keys to human feelings, and as a beneficent contributor to the general fund of happiness, he is remembered with delight.
As a patriot who loved his country, who illustrated its history, who advanced its character abroad, and by his genius won for it the unwilling regard of foreign nations, he deserves a place in the hearts of the American people.
I have seen his works in cities of France, Italy, and Germany. In all these countries he was read and admired. Thus by his pen American intervention was peacefully, inoffensively, and triumphantly carried into the heart of the European Continent.
In honoring him we exalt literature and the thrice blessed arts of peace. Our country will learn anew from your demonstration that there are glories other than those of state or war.
I have the honor to be, dear Sir,
Your obedient servant,
Charles Sumner.
Rev. Rufus W. Griswold.
[CHEAP OCEAN POSTAGE.]
Speech in the Senate, on a Resolution in Relation to Cheap Ocean Postage, March 8, 1852.
This proposition Mr. Sumner constantly renewed at subsequent sessions of Congress.
Mr. President,—I submit the following resolution. As it is one of inquiry, I ask that it may be considered at this time.
Resolved, That the Committee on Naval Affairs, while considering the nature and extent of aid proper to be granted to the Ocean Steamers, be directed to inquire whether the present charges for letters carried by these steamers are not unnecessarily large and burdensome to foreign correspondence, and whether something may not be done, and, if so, what, to secure the great boon of Cheap Ocean Postage.
There being no objection, the question was stated to be on the adoption of the resolution.
Mr. President,—The Committee on Naval Affairs have the responsibility of shaping some measure by which the relations of our Government with the ocean steamers will be defined. And since one special inducement to these relations, involving the bounty now enjoyed and further solicited, is the carrying of the mails, I trust this Committee will be willing to inquire whether there cannot be a reduction on the postage of foreign correspondence. Under the Postage Act of 1851, the Postmaster, by and with the advice of the President, has power to reduce, from time to time, the rates of postage on all mailable matter conveyed between the United States and any foreign country. But the existence of this power in the Postmaster will not render it improper for the Committee, now drawn into connection with this question, to take it into careful consideration, with a view to some practical action, or, at least, recommendation. The subject is of peculiar interest; nor do I know any measure, so easily accomplished, which promises to be so beneficent as cheap ocean postage. The argument in its favor is at once brief and unanswerable.
A letter can be sent three thousand miles in the United States for three cents, and the reasons for cheap postage on land are equally applicable to ocean.
In point of fact, the conveyance of letters can be effected in sailing or steam packets at less cost than by railway.
Besides, cheap ocean postage will tend to supersede the clandestine or illicit conveyance of letters, and to bring into the mails all mailable matter, which, under the present system, is carried in the pockets of passengers or in the bales and boxes of merchants.
All new facilities for correspondence naturally give new expansion to human intercourse; and there is reason to believe, that, through an increased number of letters, cheap ocean postage will be self-supporting.
Cheap postal communication with foreign countries will be of incalculable importance to the commerce of the United States.
By promoting the intercourse of families and friends separated by ocean, cheap postage will add to the sum of human happiness.
The present high rates of ocean postage—namely, twenty-four cents on half an ounce, forty-eight cents on an ounce, and ninety-six cents on a letter which weighs a fraction more than an ounce—are a severe tax upon all, particularly upon the poor, amounting, in many cases, to a complete prohibition of foreign correspondence. This should not be.
It particularly becomes our country, by the removal of all unnecessary burdens upon foreign correspondence, to advance the comfort of European emigrants seeking a home among us, and to destroy, as far as practicable, every barrier to free intercourse between the Old World and the New.
And, lastly, cheap ocean postage will be a bond of peace among the nations of the earth, and will extend good-will among men.
By such reasons this measure is commended. Much as I rejoice in the American steamers, which vindicate a peaceful supremacy of the seas, and help to weave a golden tissue between the two hemispheres, I cannot consider these, with all their unquestionable advantages, an equivalent for cheap ocean postage. I trust that they are not inconsistent with each other, and that both may flourish together.
Objection was made to the resolution, as not being addressed to the proper Committee, and a brief debate ensued, in which Mr. Rusk, Mr. Gwin, Mr. Badger, Mr. Davis, Mr. Seward, Mr. Mason, and Mr. Sumner took part. It was urged by the last, in reply, that the Committee on Naval Affairs was the proper Committee, as at the present moment it is specially charged with a subject intimately connected with the inquiry proposed. At the suggestion of Mr. Badger the matter was allowed to lie over till the next day.
On Tuesday, March 9th, the Senate proceeded to consider the resolution submitted by Mr. Sumner on the 8th, relative to Ocean Steamers and Cheap Ocean Postage. On motion of Mr. Sumner, it was amended, and finally adopted, without opposition, as follows:—
"Resolved, That the Committee on the Post Office and Post Roads be directed to inquire whether the present charges on letters carried by the Ocean Steamers are not unnecessarily large and burdensome to foreign correspondence, and whether something may not be done, and, if so, what, to secure the great boon of Cheap Ocean Postage."
[THE PARDONING POWER OF THE PRESIDENT.]
Opinion submitted to the President, May 14, 1852, on the Application for the Pardon of Drayton and Sayres, incarcerated at Washington for helping the Escape of Slaves.
This case, from beginning to end, is a curious episode of Antislavery history. The people of Washington were surprised, on the morning of April 16, 1848, at hearing that the "Pearl," a schooner from the North, had sailed down the Potomac with seventy-six slaves, who had hurried aboard in the vain hope of obtaining their freedom. The schooner was pursued and brought back to Washington with her human cargo, and the liberators, Drayton, master, and Sayres, mate. As the latter were taken from the river-side to the jail, they were followed by a proslavery mob, estimated at from four to six thousand people, many armed with deadly weapons, amid wrathful cries of, "Hang him!" "Lynch him!" with all profanities and abominations of speech, and exposed to violence of all kinds,—the thrust of a dirk-knife coming within an inch of Drayton. The same mob besieged the jail, and, hearing that Hon. Joshua E. Giddings, the brave Representative of Ohio, was there in consultation with the prisoners, demanded his immediate expulsion, and the jailer, to save bloodshed, insisted upon his departure. Nor was the prevailing rage confined to the jail. It extended to the office of the "National Era," the Antislavery paper, which was saved from destruction only through the courage and calmness of its admirable editor. The spirit of the mob entered both Houses of Congress, and the slave-masters raged, as was their wont.
Meanwhile Drayton and Sayres were indicted before the Criminal Court of the District of Columbia for "transporting" slaves. There were no less than one hundred and fifteen indictments against each of the prisoners, and the bail demanded of each was seventy-six thousand dollars. Hon. Horace Mann, a Representative of Massachusetts, appeared for the defence. His speech on this occasion will be read with constant interest.[93] The spirit of the mob without entered the court-room, betraying itself even in the conduct of the judge, while standing near the devoted counsel for the defence were men who cocked pistols and drew dirks in the mob that followed the prisoners to the jail. Of course the verdict was "Guilty," and the sentence was according to the extreme requirement of a barbarous law.
Drayton and Sayres lingered in prison more than four years, and during this long incarceration they were the objects of much sympathy at the North. A petition to Congress in their behalf, signed by leading Abolitionists, including the eloquent Wendell Phillips, was forwarded to Mr. Sumner for presentation to the Senate. On careful consideration, he was satisfied that such a petition, if presented, would excite the dominant power to insist more strongly than ever on the letter of the law, and he took the responsibility of withholding it. Meanwhile he visited the sufferers in prison, and appealed to President Fillmore for their pardon. In this application he was aided by that humane lady, Miss Dix. The President interposed doubts of his right to pardon in such a case, but expressed a desire for light on this point. At his invitation, Mr. Sumner laid before him the following paper, which was referred to the Attorney-General, Mr. Crittenden, who gave an opinion affirming the power of the President,—adding, however, "Whether the power shall be exercised in this instance is another and very different question."[94] This opinion bears date August 4, 1852, which, it will be observed, was some time after the Presidential Conventions of the two great political parties. Shortly afterwards the pardon was granted.
There was reason to believe that an attempt would be made to arrest the pardoned persons on warrants from the Governor of Virginia. Anticipating this peril, Mr. Sumner, as soon as the pardon was signed, hurried to the jail in a carriage, and, taking them with him, put them in charge of a friend, who conveyed them that night to Baltimore, a distance of forty miles, where they arrived in season for the early morning trains North, and in a few hours were out of danger.
By the laws of Maryland, 1737, chapter 2, section 4, it is provided that any person "who shall steal any negro or other slave, or who shall counsel, hire, aid, abet, or command any person or persons" to do so, "shall suffer death as a felon." The punishment has since been changed to imprisonment, for a term not less than seven nor more than twenty years.
Fourteen years later, by the act of 1751, chapter 14, section 10, it was provided, that, "if any free person shall entice and persuade any slave within this province to run away, and who shall actually run away, from the master, owner, or overseer, and be convicted thereof, by confession, or verdict of a jury upon an indictment or information, shall forfeit and pay the full value of such slave to the master or owner of such slave, to be levied by execution on the goods, chattels, lands, or tenements of the offender, and, in case of inability to pay the same, shall suffer one year's imprisonment without bail or mainprise."
Still later, by the act of 1796, chapter 67, section 19, "the transporting of any slave or any person held to service" from the State was made a distinct offence, for which the offender was liable in an action of damages, and also by indictment.
By the Act of Congress organizing the District of Columbia (February 27, 1801) it was declared, that "the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of the said District which was ceded by that State to the United States, and by them accepted as aforesaid." Under this provision, these ancient laws of Maryland are to this day of full force in the District of Columbia.
The facts to be considered are few. Messrs. Drayton and Sayres, on indictment and trial, under the act of 1737, for stealing slaves, were acquitted, the jury rendering a verdict of "Not guilty." Resort was then had to the statute of 1796, chapter 67, section 19, as follows.
"And be it enacted, That any person or persons, who shall hereafter be convicted of giving a pass to any slave, or person held to service, or shall be found to assist, by advice, donation, or loan, or otherwise, the transporting of any slave, or any person held to service, from this State, or by any other unlawful means depriving a master or owner of the service of his slave, or person held to service, for every such offence the party aggrieved shall recover damages in an action on the case against such offender or offenders; and such offender or offenders also shall be liable, upon indictment, and conviction upon verdict, confession, or otherwise, in this State, in any county court where such offence shall happen, [to] be fined a sum not exceeding two hundred dollars, at the discretion of the court, one half to the use of the master or owner of such slave, the other half to the county school, in case there be any; if no such school, to the use of the county."
Under this statute, proceedings were instituted by the Attorney of the District of Columbia against these parties, in seventy-four different indictments, each indictment being founded on the alleged "transporting" of a single slave. On conviction, Drayton was sentenced on each indictment to a fine of $140 and costs, in each case $19.49, amounting in the sum-total to $11,802.26. On conviction, Sayres was sentenced on each indictment to a fine of $100 and costs, in each case $17.38, amounting in the sum-total to $8,686.12. One half of the fine was, according to law, to the use of the masters or owners of the slaves transported; the other half, to the county school,—or, in case there were no such school, to the use of the county. Afterwards, on motion of the Attorney for the District, they were "prayed in commitment," and committed until the fine and costs should be paid. In pursuance of this sentence, and on this motion, they have been detained in prison, in the City of Washington, since April, 1848, and are still in prison, unable from poverty to pay these large fines. The question now occurs as to the power of the President to pardon them, so at least as to relieve them from imprisonment.
The peculiar embarrassment in this case arises from the nature of the sentence. If it were simply a sentence of imprisonment, the power of the President would be unquestionable. So, also, if it were a sentence of imprisonment, with fine superadded, payable to the United States, his power would be unquestionable; and the same power would extend to the case of a fine payable to the United States, with imprisonment as the alternative on non-payment of the fine.
But in the present case imprisonment is the alternative for non-payment of fines which are not payable to the United States, but to other parties, namely, the slave-owners and the county. It is important, however, to bear in mind that these fines are a mere donation to these parties, and not a compensation for services rendered. These parties are not informers, nor were the proceedings in the nature of a qui tam action.
It should be distinctly understood, at the outset, that the proceedings against Drayton and Sayres were not at the suit of any informer or private individual, but at the prosecution of the United States by indictment. They are therefore removed from the authority of the English cases, which protect the share of an informer after judgment from remission by pardon from the crown.
The power of the President in the present case may be regarded, first, in the light of the Common Law,—secondly, under the statutes of Maryland,—and, thirdly, under the Constitution of the United States.
First. As to the Common Law, it may be doubtful, whether, according to early authorities, the pardoning power can be used so as to bar or divest any legal interest, benefit, or advantage vested in a private individual. It is broadly stated by English writers that it cannot be so used. (2 Hawkins, P.C., 392, Book II., chap. 37, sec. 34; 17 Viner's Abridgment, 39, Prerogative of the King, U. art. 7.) But this principle does not seem to be sustained by practical cases in the United States, except in the instances of informers and qui tam actions, while, on one occasion, in a leading case of Kentucky, it was rejected. (Routt v. Feemster, 7 J.J. Marshall, 132.)
But it is clearly established, that, where the fine is allotted to a public body, or a public officer, for a public purpose, it may be remitted by pardon. This may be illustrated by several cases.
1. As where, in Pennsylvania, the fine was for the benefit of the county. In this case the Court said: "Until the money is collected and paid into the treasury, the constitutional right of the Governor to pardon the offender, and remit the fine or forfeiture, remains in full force. They can have no more vested interest in the money than the Commonwealth, under the same circumstances, would have had; and it cannot be doubted, that, until the money reaches the treasury, the Governor has the power to remit.... In the case of costs, private persons are interested in them; but as to fines and forfeitures, they are imposed upon principles of public policy. The latter, therefore, are under the exclusive control of the Governor." (Commonwealth v. Denniston, 9 Watts, 142.) The same point is also illustrated by a case in Illinois. (Holliday v. The People, 5 Gilman, 214-217.)
2. As where, in Georgia, the fine was to be paid to an inferior court for county purposes. (In Re Flournoy, Attorney-General, 1 Kelly, 606-610.)
3. As where, in South Carolina, the fine was to be paid to the Commissioners of Public Buildings, for public purposes, (The State v. Simpson, 1 Bailey, 378,) or the Commissioners of the Roads. (The State v. Williams, 1 Nott & McCord, 26. See also Rowe v. The State, 2 Bay, 565.)
According to these authorities, the portion of the fine allotted to the county, or to the school, may be remitted. Of this there can be no doubt.
Secondly. The Statutes of Maryland, anterior to the organization of the District of Columbia, may also be regarded as an independent source of light on this question, since these statutes are made the law of the District. And here the conclusion seems to be easy.
By the Constitution of Maryland, adopted November 8th, 1776, it is declared: "The Governor may grant reprieves or pardons for any crime, except in such cases where the law shall otherwise direct." Notwithstanding these strong words of grant, which seem to be as broad as the Common Law, it was further, as if to remove all doubt, declared by the Legislature, in 1782 (Chap. 42, sec. 3): "That the Governor, with the advice of the Council, be authorized to remit the whole or any part of any fine, penalty, or forfeiture, heretofore imposed, or hereafter to be imposed, in any court of law." Here is no exception or limitation of any kind. By express words, the Governor is authorized to remit the whole or any part of any fine. Of course, under this clause he cannot remit a private debt; but he may remit any fine. The question is not, whether the fine be payable to the United States or other parties, but whether it is a fine. If it be a fine, it is in the power of the Governor.
This view is strengthened by the circumstance, that in Maryland, according to several statutes, fines are allotted to parties other than the Government. The very statute of 1796, under which these proceedings were had, was passed subsequently to this provision respecting the remission of fines. It must be interpreted in harmony with the earlier statute; and since all these statutes are now the law of the District of Columbia, the power of the President, under these laws, to remit these fines, seems established without special reference to the Common Law or to the Constitution of the United States.
If this were not the case, two different hardships would ensue: first, the statute of 1782 would be despoiled of its natural efficacy; and, secondly, the minor offence of "transporting" a single slave would be punishable, on non-payment of the fine, with imprisonment for life, while the higher offence of "stealing" a slave is punishable with imprisonment for a specific term, and the other offence of "enticing" a slave is punishable with a fine larger than that for transporting a slave, and, on non-payment thereof, imprisonment for one year only.
Thirdly. Look at the case under the Constitution of the United States.
By the Constitution, the President has power "to grant reprieves and pardons for offences against the United States, except in cases of impeachment." According to a familiar rule of interpretation, the single specified exception leaves the power of the President applicable to all other cases: Expressio unius exclusio est alterius. Mr. Berrien, in one of his opinions as Attorney-General, recognizes "the pardoning power as coextensive with the power to punish"; and he quotes with approbation the words of another writer, that "the power is general and unqualified," and that "the remission of fines, penalties, and forfeitures, under the revenue laws, is included in it." (Opinions of the Attorneys-General, Vol. I. p. 756.)
On this power Mr. Justice Story thus remarks: "The power of remission of fines, penalties, and forfeitures is also included in it, and may, in the last resort, be exercised by the Executive, although it is in many cases by our laws confided to the Treasury Department. No law can abridge the constitutional powers of the Executive Department, or interrupt its right to interpose by pardon in such cases.—Instances of the exercise of this power by the President, in remitting fines and penalties, in cases not within the scope of the laws giving authority to the Treasury Department, have repeatedly occurred, and their obligatory force has never been questioned." (Story, Com. on Constitution, Vol. II. § 1504.)
It has been decided by the Supreme Court, after elaborate argument, that "the Secretary of the Treasury has authority, under the Remission Act of the 3d of March, 1797, chap. 361, to remit a forfeiture or penalty accruing under the revenue laws, at any time, before or after a final sentence of condemnation or judgment for the penalty, until the money is actually paid over to the Collector for distribution"; and that "such remission extends to the shares of the forfeiture or penalty to which the officers of the customs are entitled, as well as to the interest of the United States." In giving his opinion on this occasion, Mr. Justice Johnson, of South Carolina, made use of language much in point. "Mercy and justice," he said, "could only have been administered by halves, if collectors could have hurried causes to judgment, and then clung to the one half of the forfeiture, in contempt of the cries of distress or the mandates of the Secretary." (United States v. Morris, 10 Wheaton, 303.)
A case has occurred in Kentucky, to which reference has been already made, in which it is confidently and broadly assumed that the pardoning power under the Constitution extends even to the penalties due to informers. The following passage occurs in the opinion of the Court. "The act of 1823 says that any prosecuting attorney, who shall prosecute any person to conviction under it, shall be entitled to twenty-five per cent of the amount of such fine as shall be collected.... The act gives the prosecuting attorney one fourth of the money, when collected, but vests him with no interest in the fine or sentence, separate and distinct from that of the Commonwealth, that would screen his share from the effect of any legal operation which should, before collection, abrogate the whole or a part of it. It would require language of the strongest and most explicit character to authorize a presumption that the Legislature intended to confer any such right. We could never presume an intention to control the Governor's constitutional power to remit fines and forfeitures. If he can in this way be restrained in the exercise of his power to remit for the fourth of a fine, so can he be for the half or the whole. This part of his prerogative cannot be curtailed. With the exception of the case of treason, his power to remit fines and forfeitures, grant reprieves and pardons, is unlimited, illimitable, and uncontrollable. It has no bounds but his own discretion. It is no doubt politic and proper for the Legislature to incite prosecuting attorneys and informers, by giving them a portion of fines, when collected; but in so doing the citizen cannot be debarred of his right of appeal to executive clemency." (Routt v. Feemster, 7 J.J. Marshall, 132.)
According to these authorities, it seems reasonable to infer, that, under the Constitution of the United States, the pardoning power, which is clearly applicable to the offence of "transporting" slaves of the District, might remit the penalties in question. These penalties, though allotted to the owners and the county, when finally collected, are neither more nor less than the punishment, under sentence of a criminal court, for an offence of which the parties stand convicted upon indictment. They can be collected and acquitted only by the United States. No process for this purpose is at the command of the slave-owner. He had no control whatever over the prosecution at any stage, nor did it proceed at his suggestion or information. The very statute under which these public proceedings were instituted in the name of the United States secured to the slave-owner his private action on the case for damages,—thus separating the public from the private interests. These it seems the duty of the President to keep separate, except on the final collection and distribution of the penalties. Public policy and the ends of justice require that the punishment for a criminal offence should, in every case, be exclusively subject to the supreme pardoning power, without dependence upon the will of any private person. An obvious case will illustrate this. Suppose, in the case of Drayton and Sayres, it should be ascertained beyond doubt that the conviction was procured by perjury. If, by virtue of the judgment, the slave-owners have an interest in the imprisonment of these men which cannot be touched, then the prisoners, unable to meet these heavy liabilities, must continue in perpetual imprisonment, or owe their release to the accident of private good-will. The President, notwithstanding his beneficent power to pardon, under the Constitution, will be powerless to remedy this evil. But such a state of things would be monstrous; and any interpretation of the Constitution is monstrous which thus ties his hands. Mercy and justice would be rendered not merely by halves, but, owing to the inability of prisoners, from poverty, to pay the other half of the fine, they would be entirely arrested.
The power of pardon, which is attached by the Constitution to offences generally, should not be curtailed. It is a generous prerogative, and should be exercised generously. Boni judicis est ampliare jurisdictionem. This is an old maxim of the law. But if it be the duty of a good judge to extend his jurisdiction, how much more is it the duty of a good President to extend the field of his clemency! At least, no small doubt should deter him from the exercise of his prerogative.
The conclusion from this review is as follows.
1. By the English Common Law the costs and one half of the fines may be remitted. It is not certain that by this law, as adopted in the United States, the other half of the fines may not also be remitted.
2. Under the statutes of Maryland, now the law of the District, the Governor, and, of course, the President, may remit "the whole or any part of any fine," without exception.
3. Under the Constitution of the United States, and according to its true spirit, the pardoning power of the President is coextensive with the power to punish, except in the solitary case of impeachment.
Several courses are open to the President in the present case.
I. By a general pardon he may discharge Drayton and Sayres from prison, and remit all the fines and costs for which they are detained. Such a pardon would unquestionably operate effectually upon the imprisonment and upon the costs, and also upon the half of the fines due to the county. It would be for the courts, on a proper application, and in the exercise of their just powers, to restrict it, if the pardon did not operate upon the other moiety.
Among the opinions of the Attorney-General is a case which illustrates this point. In 1824 Joshua Wingate prayed for a credit, in the settlement of his accounts, for his proportion of a fine incurred by one Phineas Varney. It appeared that suit was instituted by the petitioner as Collector of the District of Bath, Maine, on which judgment was obtained in May, 1809; the defendant was arrested and committed to jail, under execution on that judgment, and the fine was afterwards remitted by the President. The petitioner contended that the President had no constitutional or legal power to remit his proportion of the fine, the right to which had vested by the institution of the suit. On this Mr. Wirt remarks, that "it is unnecessary to express an opinion upon the correctness of this position, because, if it be correct, the act of remission by the President being wholly inoperative as to that portion of the fine claimed by the collector, his legal right to recover it remained in full force, notwithstanding the remission; and it is his own fault, if he has not enforced his right at law." (Opinions of the Attorneys-General, Vol. I. p. 479.)
A general pardon cannot conclude the question so as to divest any existing rights. It can do no wrong. Why should the President hesitate to exercise it?
II. By a limited pardon the President may discharge Drayton and Sayres simply and exclusively from their imprisonment, without touching their pecuniary liability, but leaving them still exposed to proceedings for all fines and costs, to be satisfied out of any property they may hereafter acquire.
If the imprisonment were a specific part of the sentence,—as, if they had been sentenced to one year's imprisonment and a fine of one hundred dollars,—beyond all question they might be discharged, by pardon, from this imprisonment. But where the imprisonment, as in the present case, is not a specific part of the sentence, but simply an alternative in the nature of a remedy, to secure the payment of the fine, the power of the President cannot be less than in the former case.
So far as all private parties are concerned, the imprisonment is a mere matter of remedy, which can be discharged without divesting the beneficiaries of any rights; and since imprisonment for debt has been abolished, it is reasonable, under the circumstances, that this peculiar remedy should be discharged.
III. By another form of limited pardon, the President may discharge Drayton and Sayres from their imprisonment, also from all fines and costs in which the United States have an interest, without touching the rights of other parties.
This would set them at liberty, but would leave them exposed to private proceedings at the instigation of the owners of the "transported" slaves, if any should be so disposed.
IV. By still another form of pardon, reference may be made to the Maryland statute of 1782, under which the Governor is authorized "to remit the whole or any part of any fine," without any exception therefrom; and this power, now vested in the President, may be made the express ground for the remission of all fines and costs due from Drayton and Sayres. By this form of pardon the case may be limited, as a precedent hereafter, to a very narrow circle of cases. It would not in any way affect cases arising under the general laws of the Union.
In either of these alternatives the great object of this application would be gained,—the discharge of these men from prison.
Charles Sumner.
May 14, 1852.
[PRESENTATION OF A MEMORIAL AGAINST THE FUGITIVE SLAVE BILL.]
Remarks in the Senate, May 26, 1852.
In the Senate, Wednesday, 26th May, 1852, on the presentation of a Memorial against the Fugitive Slave Bill, the following passage occurred, which illustrates the sensitiveness of the Senate with regard to Slavery and the impediments to its discussion. Mr. Sumner said:—
Mr. President,—I hold in my hand, and desire to present, a memorial from the representatives of the Society of Friends in New England, formally adopted at a public meeting, and authenticated by their clerk, in which they ask for the repeal of the Fugitive Slave Bill. After setting forth their sentiments on the general subject of Slavery, the memorialists proceed as follows.
"We, therefore, respectfully, but earnestly and sincerely, entreat you to repeal the law of the last Congress respecting fugitive slaves: first and principally, because of its injustice towards a long sorely oppressed and deeply injured people; and, secondly, in order that we, together with other conscientious sufferers, may be exempted from the penalties which it imposes on all who, in faithfulness to their Divine Master, and in discharge of their obligations to their distressed fellow-men, feel bound to regulate their conduct, even under the heaviest penalties which man can inflict for so doing, by the divine injunction, 'All things whatsoever ye would that men should do to you, do ye even so to them,' and by the other commandment, 'Thou shalt love the Lord thy God with all thy heart, and thy neighbor as thyself.'"
Mr. President,—This memorial is commended by the character of the religious association from which it proceeds,—men who mingle rarely in public affairs, but with austere virtue seek to carry the Christian rule into life.
The President [Mr. King, of Alabama]. The Chair will have to interpose. The Senator is not privileged to enter into a discussion of the subject now. The contents of the memorial, simply, are to be stated, and then it becomes a question whether it is to be received, if any objection is made to its reception. Silence gives consent. After it is received, he can make a motion with regard to its reference, and then make any remarks he thinks proper.
Mr. Sumner. I have but few words to add, and then I propose to move the reference of the memorial to the Committee on the Judiciary.
The President. The memorial has first to be received, before any motion as to its reference can be entertained. The Senator presenting a memorial states distinctly its objects and contents; then it is sent to the Chair, if a reference of it is desired. But it is not in order to enter into a discussion of the merits of the memorial until it has been received.[95]
Mr. Sumner. I do not propose to enter into any such discussion. I have already read one part of the memorial, and it was my design merely to refer to the character of the memorialists,—a usage which I have observed on this floor constantly,—and to state the course I should pursue, concluding with a motion for a reference.
The President. The Chair will hear the Senator, if such is the pleasure of the Senate, if he does not go into an elaborate discussion.
Mr. Sumner. I have no such purpose.
Mr. Dawson [of Georgia]. Let him be heard.
Several Senators. Certainly.
Mr. Sumner. I observed that this memorial was commended by the character of the religious association from which it proceeds. It is commended also by its earnest and persuasive tone, and by the prayer which it presents. Offering it now, Sir, I desire simply to say, that I shall deem it my duty, on some proper occasion hereafter, to express myself at length on the matter to which it relates. Thus far, during this session, I have forborne. With the exception of an able speech from my colleague [Mr. Davis], the discussion of this all-absorbing question has been mainly left with Senators from another quarter of the country, by whose mutual differences it is complicated, and between whom I do not care to interfere. But there is a time for all things. Justice also requires that both sides should be heard; and I trust not to expect too much, when, at some fit moment, I bespeak the clear and candid attention of the Senate, while I undertake to set forth, frankly and fully, and with entire respect for this body, convictions deeply cherished in my own State, though disregarded here, to which I am bound by every sentiment of the heart, by every fibre of my being, by all my devotion to country, by my love of God and man. Upon these I do not enter now. Suffice it, for the present, to say, that, when I undertake that service, I believe I shall utter nothing which, in any just sense, can be called sectional, unless the Constitution is sectional, and unless the sentiments of the Fathers were sectional. It is my happiness to believe, and my hope to be able to show, that, according to the true spirit of the Constitution, and according to the sentiments of the Fathers, Freedom, and not Slavery, is NATIONAL, while Slavery, and not Freedom, is SECTIONAL.
In duty to the petitioners, and with the hope of promoting their prayer, I move the reference of their petition to the Committee on the Judiciary.
A brief debate ensued, in which Messrs. Mangum, of North Carolina, Badger, of North Carolina, Hale, of New Hampshire, Clemens, of Alabama, Dawson, of Georgia, Adams, of Mississippi, Butler, of South Carolina, and Chase, of Ohio, took part; and, on motion of Mr. Badger, the memorial was laid on the table.
[THE NATIONAL FLAG THE EMBLEM OF UNION FOR FREEDOM.]
Letter to the Boston Committee for the Celebration of the 4th of July, 1852.
Washington, July 2, 1852.
Dear Sir,—It will not be in my power to unite with my fellow-citizens of Boston in celebrating the approaching anniversary of our national independence. I venture, however, in response to the invitation with which I have been honored, to recall an incident not unworthy of remembrance, especially in our local history.
The thirteen stripes which now distinguish our national flag were first unfurled by Washington, when in command of the American forces which surrounded Boston, after the Battle of Bunker Hill, and before the Declaration of Independence. Thus early was this emblem of Union consecrated to Freedom. Our great chief at once gave to the new ensign a name which may speak to us still. In a letter, written at the time, he calls it the Union Flag, and declares why it was first displayed. His language is, that he had "hoisted the UNION FLAG in compliment to the UNITED Colonies."[96] Afterwards, on the 14th of June, 1777, by a resolution of the Continental Congress, the stars and stripes were formally adopted as the flag of the United States.
This piece of history suggests a sentiment which I beg leave to offer.
Our National Flag. First hoisted before Boston, as the emblem of Union for the sake of Freedom. Wherever it floats, may it never fail to inspire the sentiments in which it had its origin!
I have the honor to be, dear Sir,
Your faithful servant,
Charles Sumner.
Hon. Benjamin Seaver, Chairman of the Committee, &c., &c.
[UNION AGAINST THE SECTIONALISM OF SLAVERY.]
Letter to a Free-Soil Convention at Worcester, July 6, 1852.
This Convention was organized with the following officers: Hon. Stephen C. Phillips, of Salem, President,—William Davis, of Plymouth, Gershom B. Weston, of Duxbury, Edward L. Keyes, of Dedham, William B. Spooner, of Boston, John G. Palfrey, of Cambridge, John B. Alley, of Lynn, Samuel E. Sewall, of Stoneham, John W. Graves, of Lowell, John Milton Earle, of Worcester, William Jackson, of Newton, Rodolphus B. Hubbard, of Sunderland, Caleb Swan, of Easton, Joel Hayden, of Williamsburg, William M. Walker, of Pittsfield, Vice-Presidents,—Robert Carter, of Cambridge, George F. Hoar, of Worcester, S.B. Howe, of Lowell, Andrew J. Aiken, of North Adams, S.L. Gere, of Northampton, Secretaries.
The resolutions were reported by Hon. Henry Wilson.
Washington City, July 3, 1852.
Dear Sir,—The true and well-tried friends of Freedom in Massachusetts are about to assemble at Worcester. It will not be in my power to be with them, to catch the contagion of their enthusiasm, to be strengthened by their determination, and to learn anew from eloquent lips the grandeur of our cause and the exigency of our duties. But I confidently look to them for trumpet words which shall again rally the country against the sectionalism of Slavery.
At Worcester, in 1848, commenced the first strong movement, which, gaining new force at Buffalo, and sweeping the Free States, enrolled three hundred thousand electors in constitutional opposition to a hateful wrong. The occasion now requires a similar effort. Both the old parties, with apostasy greater than that which aroused our condemnation at that time, have trampled on the Declaration of Independence, and the most cherished sentiments of the Fathers of the Republic. Even liberty of speech is threatened. It is difficult to see how any person, loyal to Freedom, and desirous of guarding it by all constitutional means, can support the national candidates of either of these parties, without surrendering the cause he professes to have at heart. Let no man expect from me any such surrender.
The two Conventions at Baltimore, by their recorded resolutions, have vied with each other in servility to Slavery. But I rejoice to believe that in both parties there are large numbers of good men who will scorn these professions. The respectable persistence in opposition to the Black Flag, which distinguished at least one of the Conventions, furnishes an earnest for the future, though Massachusetts can derive small encouragement from her delegates there. All her votes in that Convention were cast in favor of those declarations by which Slavery has received new safeguards and Freedom new restrictions.
But these efforts are doomed to disappointment. In spite of the clamors of partisans and the assumptions of the Slave Power, there is one principle which must soon prevail. It cannot be too often declared; for it is an all-sufficient basis for our political position, and an answer also to the cry of "Sectionalism," by which the prejudices of the country are ignorantly and illogically directed against us. According to the true spirit of the Constitution and the sentiments of the Fathers, Freedom, and not Slavery, is national, while Slavery, and not Freedom, is sectional. Though this proposition commends itself at once, and is sustained by the history of the Constitution, yet both the great parties, under the influence of the Slave Power, have reversed the true application of its terms. A National Whig is simply a Slavery Whig, and a National Democrat is simply a Slavery Democrat, in contradistinction to all who regard Slavery as a sectional institution, within the exclusive control of the States, and with which the Nation has nothing to do. In upholding Freedom everywhere under the National Government, we oppose a pernicious sectionalism, which falsely calls itself national. All this will yet be seen and acknowledged.
Amidst the difficulties and defections at the present moment, the Future is clear. Nothing can permanently obstruct Truth. But our duties increase with the occasion; nor will the generous soul be deterred by the greatness of the peril. Any such will be content to serve Freedom, to support her supporters, and to leave the result to Providence. Better be where Freedom is, though in a small minority or alone, than with Slavery, though surrounded by multitudes, whether Whigs or Democrats, contending merely for office and place.
Believe me, dear Sir, ever faithfully yours,
Charles Sumner.
Hon. E.L. Keyes.
["STRIKE, BUT HEAR": ATTEMPT TO DISCUSS THE FUGITIVE SLAVE BILL.]
Remarks in the Senate, on taking up the Resolution instructing the Committee on the Judiciary to report a Bill for Immediate Repeal of the Fugitive Slave Act, July 27 and 28, 1852.
Mr. President,—I have a resolution which I desire to offer; and as it is not in order to debate it to-day, I give notice that I shall expect to call it up to-morrow, at an early moment in the morning hour, when I shall throw myself upon the indulgence of the Senate to be heard upon it.
The resolution was then read, as follows:—
"Resolved, That the Committee on the Judiciary be instructed to consider the expediency of reporting a bill for the immediate repeal of the Act of Congress, approved September 18, 1850, usually known as the Fugitive Slave Act."
In pursuance of this notice, on the next day, 28th July, during the morning hour, an attempt was made by Mr. Sumner to call it up, that he might present his views on Slavery.
Mr. President,—I now ask permission of the Senate to take up the resolution which I offered yesterday. For that purpose, I move that the prior orders be postponed, and upon this motion I desire to say a word. In asking the Senate to take up this resolution for consideration, I say nothing now of its merits, nor of the arguments by which it may be maintained; nor do I at this stage anticipate any objection to it on these grounds. All this will properly belong to the discussion of the resolution itself,—the main question,—when it is actually before the Senate. The single question now is, not the resolution, but whether I shall be heard upon it.
As a Senator, under the responsibilities of my position, I have deemed it my duty to offer this resolution. I may seem to have postponed this duty to an inconvenient period of the session; but had I attempted it at an earlier day, I might have exposed myself to a charge of a different character. It might then have been said, that, a new-comer and inexperienced in this scene, without deliberation, hastily, rashly, recklessly, I pushed this question before the country. This is not the case now. I have taken time, and, in the exercise of my most careful discretion, at last ask the attention of the Senate. I shrink from any appeal founded on a trivial personal consideration; but should I be blamed for delay latterly, I may add, that, though in my seat daily, my bodily health for some time past, down to this very week, has not been equal to the service I have undertaken. I am not sure that it is now, but I desire to try.
And now again I say, the question is simply whether I shall be heard. In allowing me this privilege,—this right, I may say,—you do not commit yourselves in any way to the principle of the resolution; you merely follow the ordinary usage of the Senate, and yield to a brother Senator the opportunity which he craves, in the practical discharge of his duty, to express convictions dear to his heart, and dear to large numbers of his constituents. For the sake of these constituents, for my own sake, I now desire to be heard. Make such disposition of my resolution afterward as to you shall seem best; visit upon me any degree of criticism, censure, or displeasure; but do not refuse me a hearing. "Strike, but hear."
A debate ensued, in which Messrs. Mason, of Virginia, Brooke, of Mississippi, Charlton, of Georgia, Gwin, of California, Pratt, of Maryland, Shields, of Illinois, Douglas, of Illinois, Butler, of South Carolina, Borland, of Arkansas, and Hunter, of Virginia, took part. Objections to taking up the resolution were pressed on the ground of "want of time," "the lateness of the session," and "danger to the Union."
The question being put upon the motion by Mr. Sumner to take up his resolution, it was rejected,—Yeas 10, Nays 32,—as follows.
Yeas,—Messrs. Clarke, Davis, Dodge, of Wisconsin, Foot, Hamlin, Seward, Shields, Sumner, Upham, and Wade:—10.
Nays,—Messrs. Borland, Brodhead, Brooke, Cass, Charlton, Clemens, De Saussure, Dodge, of Iowa, Douglas, Downs, Felch, Fish, Geyer, Gwin, Hunter, King, Mallory, Mangum, Mason, Meriwether, Miller, Morton, Norris, Pearce, Pratt, Rusk, Sebastian, Smith, Soulé, Spruance, Toucey, and Weller:—32.
Mr. Sumner was thus deprived of an opportunity to present his views on this important subject, and it was openly asserted that he should not present them during the pending session. Such was the proslavery tyranny which prevailed. He was thus driven to watch for an opportunity, when, according to the rules of the Senate, he might be heard without impediment. On one of the last days of the session it came.
[TRIBUTE TO ROBERT RANTOUL, Jr.]
Speech in the Senate, on the Death of Hon. Robert Rantoul, Jr., August 9, 1852.
A message was received from the House of Representatives, by Mr. Hayes, its Chief Clerk, communicating to the Senate information of the death of the Hon. Robert Rantoul, Jr., a member of the House of Representatives from the State of Massachusetts, and the proceedings of the House thereon.
The resolutions of the House of Representatives were read. Mr. Sumner said:—
Mr. President,—By formal message of the House of Representatives we learn that one of our associates in the public councils is dead. Only a few brief days—I had almost said hours—have passed since he was in his accustomed seat. Now he is gone from us forever. He was my colleague and friend; and yet, so sudden has been this change, that no tidings even of his illness came to me before I learned that he was already beyond the reach of mortal aid or consolation, and that the shadows of the grave were descending upon him. He died here in Washington, late on Saturday evening, 7th August; and his earthly remains, accompanied by the bereaved companion of his life, with a Committee of the other House, are now far on the way to Massachusetts, there to mingle, dust to dust, with his natal soil.
The occasion does not permit me to speak of Mr. Rantoul at length. A few words will suffice; nor will the language of eulogy be required.
He was born 13th August, 1805, at Beverly, in Essex County, Massachusetts, the home of Nathan Dane, final author of the immortal Ordinance by which Freedom was made a perpetual heirloom in the broad region of the Northwest. Here he commenced life under happy auspices of family and neighborhood. Here his excellent father, honored for public services, venerable also with years and flowing silver locks, yet lives to mourn a last surviving son. The sad fortune of Burke is renewed. He who should have been as posterity is to this father in the place of ancestor.
Mr. Rantoul entered the Massachusetts Legislature early, and there won his first fame. For many years he occupied a place on the Board of Education. He was also, for a time, Collector of Boston, and afterwards Attorney of the United States for Massachusetts. During a brief period he held a seat in this body. Finally, in 1851, by the choice of his native District, remarkable for intelligence and public spirit, he became a Representative in the other branch of the National Legislature. In all these spheres he performed acceptable service. And the future promised opportunities of a higher character, to which his abilities, industry, and fidelity would have responded amply. Massachusetts has many arrows in her well-stocked quiver, but few could she so ill spare at this moment as the one now irrevocably sped.
By original fitness, study, knowledge, and various experience, he was formed for public service. But he was no stranger to other pursuits. Devoted early to the profession of the law, he followed it with assiduity and success. In the antiquities of our jurisprudence few were more learned. His arguments at the bar were thorough; nor was his intellectual promptness in all emergencies of a trial easily surpassed. Literature, neglected by many under pressure of professional life, was with him a constant pursuit. His taste for books was enduring. He was a student always. Amidst manifold labors, professional and public, he cherished the honorable aspiration of adding to the historical productions of his country. A work on the history of France, where this great nation should be portrayed by an American pen, occupied much of his thoughts. I know not if any part was ever matured for publication.
The practice of the law, while sharpening the intellect, is too apt to cramp the faculties within the narrow limits of form, and to restrain the genial currents of the soul. On him it had no such influence. He was a Reformer. In warfare with Evil he was enlisted early and openly as a soldier for life. As such, he did not hesitate to encounter opposition, to bear obloquy, and to brave enmity. His conscience, pure as goodness, sustained him in every trial,—even that sharpest of all, the desertion of friends. And yet, while earnest in his cause, his zeal was tempered beyond that of the common reformer. He knew well the difference between the ideal and the actual, and sought, by practical means, in harmony with existing public sentiment, to promote the interests he fondly cherished. He saw that reform does not prevail at once, in an hour, or in a day, but that it is the slow and certain result of constant labor, testimony, and faith. Determined and tranquil in his own convictions, he had the grace to respect the convictions of others. Recognizing in the social and political system those essential elements of stability and progress, he discerned at once the offices of Conservative and Reformer. But he saw also that a blind conservatism was not less destructive than a blind reform. By mingled caution, moderation, and earnestness, he seemed often to blend two characters in one, and to be at the same time a Reforming Conservative and a Conservative Reformer.
I might speak of his devotion to public improvements of all kinds, particularly to the system of Railroads. Here he was on the popular side. There were other causes where his struggle was keener and more meritorious. At a moment when his services were much needed, he was the faithful supporter of Common Schools, the peculiar glory of New England. By word and example he sustained the cause of Temperance. Some of his most devoted labors, commencing in the Legislature of Massachusetts, were for the Abolition of Capital Punishment. Since that consummate jurist, Edward Livingston, no person has done so much, by reports, essays, letters, and speeches, to commend this reform. With its final triumph, in the progress of civilization, his name will be indissolubly connected. There is another cause that commanded his early sympathies and some of his latest best endeavors, to which, had life been spared, he would have given the splendid maturity of his powers. Posterity cannot forget this; but I am forbidden by the occasion to name it here. Sir, in the long line of portraits on the walls of the Ducal Palace at Venice, commemorating its Doges, a single panel, where a portrait should have been, is shrouded by a dark curtain. But this darkened blank, in that place, attracts the beholder more than any picture. Let such a curtain fall to-day upon this theme.[97]
In becoming harmony with these noble causes was the purity of his private life. Here he was blameless. In manners he was modest, simple, and retiring. In conversation he was disposed to listen rather than to speak, though all were well pleased when he broke silence and in apt language declared his glowing thought. But in the public assembly, before the people, or in the legislative hall, he was bold and triumphant. As a debater he rarely met his peer. Fluent, earnest, rapid, sharp, incisive, his words came forth like a flashing scymitar. Few could stand against him. He always understood his subject, and then, clear, logical, and determined, seeing his point before him, pressed forward with unrelenting power. His speeches on formal occasions were enriched by study, and contain passages of beauty. But he was most truly at home in dealing with practical questions arising from the actual exigencies of life.
Few had studied public affairs more minutely or intelligently. As a constant and effective member of the Democratic party, he became conspicuous by championship of its doctrines on the Currency and Free Trade. These he often discussed, and from the amplitude of his knowledge, and his overflowing familiarity with facts, statistics, and the principles of political economy, poured upon them a luminous flood. There was no topic within the wide range of national concern which did not occupy his thoughts. The resources and needs of the West were all known to him, and Western interests were like his own. As the pioneer, resting from his daily labors, learns the death of Rantoul, he will feel a personal grief. The fishermen on the distant Eastern coast, many of whom are dwellers in his District, will sympathize with the pioneer. These hardy children of the sea, returning in their small craft from late adventures, and hearing the sad tidings, will feel that they too have lost a friend. And well they may. During his last fitful hours of life, while reason still struggled against disease, he was anxious for their welfare. The speech which he had hoped soon to make in their behalf was then chasing through his mind. Finally, in broken utterances, he gave to them his latest earthly thoughts.
The death of such a man, so sudden, in mid-career, is well calculated to arrest attention and to furnish admonition. From the love of family, the attachment of friends, and the regard of fellow-citizens, he has been removed. Leaving behind the cares of life, the concerns of state, and the wretched strifes of party, he has ascended to those mansions where there is no strife or concern or care. At last he stands face to face in His presence whose service is perfect freedom. He has gone before. You and I, Sir, and all of us, must follow soon. God grant that we may go with equal consciousness of duty done!
I beg leave to offer the following resolutions.
Resolved, unanimously, That the Senate mourns the death of Hon. Robert Rantoul, Jr., late a member of the House of Representatives from Massachusetts, and tenders to his relatives a sincere sympathy in this afflicting bereavement.
Resolved, As a remark of respect to the memory of the deceased, that the Senate do now adjourn.
The resolutions were adopted, and the Senate adjourned.
Note.—A monument of Italian marble was erected to the memory of Mr. Rantoul in the burial-ground at Beverly. It is an upright, four-sided shaft, on the front face of which is the following inscription, written by Mr. Sumner.
Here lies the body of
ROBERT RANTOUL, JR.,
Who was born at Beverly, 13th August, 1805,
and died at Washington, 7th August, 1852.
An upright lawyer, a liberal statesman, a good citizen,
studious of the Past, yet mindful of the Future.
Throughout an active life he strove for the
improvement of his fellow-men.
The faithful friend of Education, he upheld our Public Schools.
A lover of Virtue, he opposed Intemperance
by word and example.
In the name of Justice and Humanity, he labored
to abolish the punishment of Death.
Inspired by Freedom, he gave his professional services
to a slave hunted down by public clamor,
and bore his testimony, in Court and Congress,
against the cruel enactment which sanctioned the outrage.
He held many places of official trust and honor,
but the Good Works filling his days were above these.
Stranger! at least in something imitate him.
[AUTHORSHIP OF THE ORDINANCE OF FREEDOM IN THE NORTHWEST TERRITORY.]
Letter to Hon. Edward Coles, August 23, 1852.
Mr. Coles has been private secretary to Mr. Jefferson, and then to Mr. Madison, and afterwards Governor of Illinois. The following extract of a letter from him to Mr. Sumner, dated Schooley's Mountain, New Jersey, August 18, 1852, raises the question of the authorship of the Ordinance of Freedom.
"Not having the pleasure of a personal acquaintance with you, I shall ask the favor of Senator Cooper to present you this, and to make me known to you, and thus explain the obligation you have placed me under, as the friend of Mr. Jefferson, to correct an error you lately made in the Senate, by which you take from him, and give to another, one of the noblest and most consistent acts of his life.
"In your speech in the Senate, on the occasion of the death of Mr. Rantoul, you spoke of Nathan Dane as the "Author" of the Ordinance for the government of the Territory northwest of the Ohio. With my recollection,—for I have no book or person to refer to at this summer retreat,—I could not have been more surprised, if you had designated as the author of the Declaration of Independence one of the members who added his name to it after it had been adopted by Congress."
Senate Chamber, August 23, 1852.
Dear Sir,—I have been honored by your letter of August 18th, in which you kindly criticise an allusion by me in the Senate to Nathan Dane, as the author of the Ordinance of 1787. You award this high honor to Mr. Jefferson.
Believe me, I would not take from this great patriot one of his many titles to regard. Among these, I cannot forget the early, though unsuccessful effort, to which you refer, for the prohibition of Slavery in the Territories of the United States. But, while according to him just homage on this account, I cannot forget the crowning labors of another.
I submit to you, as beyond question, that the Ordinance of 1787, as finally adopted, was from the pen of Nathan Dane. In his great work on American Law, published in 1824, while Mr. Jefferson was yet alive, I find the following claim of authorship: "This ordinance (formed by the author of this work) was framed mainly from the laws of Massachusetts."[98]
In the celebrated debate of 1830, on Foot's Resolution, Mr. Webster, in his first speech, referred to the Ordinance as "drawn by Nathan Dane."[99] Afterwards, in his remarkable reply to Mr. Hayne, he vindicated at length this claim of authorship. While admitting the earlier efforts for the prohibition of Slavery in the Territories, he says: "It is no derogation from the credit, whatever that may be, of drawing the Ordinance, that its principles had before been prepared and discussed in the form of resolutions. If one should reason in that way, what would become of the distinguished honor of the author of the Declaration of Independence? There is not a sentiment in that paper which had not been voted and resolved in the Assemblies, and other popular bodies in the country, over and over again."[100]
Such, as it seems to me, is the true state of the question. To Jefferson belongs the honor of the first effort to prohibit Slavery in the Territories: to Dane belongs the honor of finally embodying this Prohibition in the Ordinance drawn by his hand in 1787.
As this question has already been presented to the Senate in a classical debate memorable in the history of the country, it seems to me hardly advisable, at this late stage of the session, to undertake its revival. If you should continue to think that I have made an error, I shall be happy to correct it in any practicable way.
Allow me to express my sincere respect for your character, with which from childhood I have been familiar, and my gratitude for the steadfast support you have ever given to the principles of Freedom advocated by Jefferson.
I remain, dear Sir, faithfully yours,
Charles Sumner.
Hon. Edward Coles.
NOTE.
The history of the efforts for the exclusion of Slavery from the Northwest Territory is thus related by Mr. Webster, in the speeches above referred to.
"An attempt has been made to transfer from the North to the South the honor of this exclusion of Slavery from the Northwestern Territory. The Journal, without argument or comment, refutes such attempts. The cession by Virginia was made in March, 1784. On the 19th of April following, a committee, consisting of Messrs. Jefferson, Chase, and Howell, reported a plan for a temporary government of the Territory, in which was this article: 'That, after the year 1800, there shall be neither slavery nor involuntary servitude in any of the said States, otherwise than in punishment of crimes, whereof the party shall have been convicted.' Mr Spaight, of North Carolina, moved to strike out this paragraph. The question was put, according to the form then practised, 'Shall these words stand as a part of the plan?' New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, and Pennsylvania, seven States, voted in the affirmative; Maryland, Virginia, and South Carolina, in the negative. North Carolina was divided. As the consent of nine States was necessary, the words could not stand, and were struck out accordingly. Mr. Jefferson voted for the clause, but was overruled by his colleagues.
"In March of the next year (1785), Mr. King, of Massachusetts, seconded by Mr. Ellery, of Rhode Island, proposed the formerly rejected article, with this addition: 'And that this regulation shall be an article of compact, and remain a fundamental principle of the constitutions between the thirteen original States and each of the States described in the resolve.' On this clause, which provided the adequate and thorough security, the eight Northern States at that time voted affirmatively, and the four Southern States negatively.[101] The votes of nine States were not yet obtained, and thus the provision was again rejected by the Southern States. The perseverance of the North held out, and two years afterwards the object was attained," by the passage, on the 13th of July, 1787, with only one dissenting voice, of the "Ordinance for the Government of the Territory of the United States Northwest of the River Ohio."
"We are accustomed, Sir, to praise the lawgivers of Antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character than the Ordinance of 1787. That instrument was drawn by Nathan Dane, then and now a citizen of Massachusetts. It was adopted, as I think I have understood, without the slightest alteration; and certainly it has happened to few men to be the authors of a political measure of more large and enduring consequence. It fixed forever the character of the population in the vast regions northwest of the Ohio, by excluding from them involuntary servitude. It impressed on the soil itself, while it was yet a wilderness, an incapacity to sustain any other than freemen. It laid the interdict against personal servitude in original compact, not only deeper than all local law, but deeper, also, than all local constitutions."
[FREEDOM NATIONAL, SLAVERY SECTIONAL.]
Speech in the Senate, on a Motion to repeal the Fugitive Slave Act, August 26, 1852.
Nihil autem gloriosius libertate præter virtutem, si tamen libertas recte a virtute sejungitur.—John of Salisbury.
If any man thinks that the interest of these Nations and the interest of Christianity are two separate and distinct things, I wish my soul may never enter into his secret.—Oliver Cromwell.
Mr. Madison thought it WRONG to admit in the Constitution the idea that there could be property in men.—Debates in the Federal Convention, August 25, 1787.
"O Slave, I have bought thee." "That is thy business," he replied. "Wilt thou run away?" "That is my business," said the slave.
Arabian Proverb.
Aliæ sunt leges Cæsarum, aliæ Christi: aliud Papinianus, aliud Paulus noster præcipit.
St. Jerome, Epistola ad Oceanum de Morte Fabiolæ.
If the marshal of the host bids us do anything, shall we do it, if it be against the great captain? Again, if the great captain bid us do anything, and the king or the emperor commandeth us to do another, dost thou doubt that we must obey the commandment of the king or emperor, and contemn the commandment of the great captain? Therefore, if the king or the emperor bid one thing, and God another, we must obey God, and contemn and not regard neither king nor emperor.
Henry VIII., Glasse of Truth.
Si la peste avoit des charges, des dignités, des honneurs, des bénéfices et des pensions à distribuer, elle auroit bientôt des théologiens et des juris-consultes qui soutiendroient qu'elle est de droit divin, et que c'est un péché de s'opposer à ses ravages.
Abbé de Mably, Droits et Devoirs du Citoyen, Lettre II.
Cleanthes. What, to kill innocents, Sir? It cannot be.
It is no rule in justice there to punish.
Lawyer. Oh, Sir,
You understand a conscience, but not law.
Cleanthes. Why, Sir, is there so main a difference?
Lawyer. You'll never be good lawyer, if you understand not that.
Cleanthes. I think, then, 'tis the best to be a bad one.
Massinger, The Old Law, Act I. Sc. 1.
Among the assemblies of the great
A greater Ruler takes his seat;
The God of heaven as judge surveys
Those gods on earth and all their ways.
Why will ye, then, frame wicked laws?
Or why support the unrighteous cause?
Isaac Watts.
When Mr. Sumner entered the Senate, he found what were known as the Compromise Measures already adopted, among which was the odious Fugitive Slave Bill. These were maintained by the constant assumption that Slavery was a national institution, entitled to the protection of the Nation, while those who opposed them were denounced as Sectionalists. These words were made to play a great part. Both the old parties, Whig and Democrat, plumed themselves upon being national, and one of their hardest hits at a political opponent was to charge him with sectionalism. Mr. Sumner undertook, while showing the unconstitutionality and offensive character of the Fugitive Slave Bill, to turn these party words upon his opponents, insisting that Slavery was Sectional and Freedom National. The title of the speech embodies this fundamental idea, which was generally adopted by the opponents of Slavery.
In making this effort Mr. Sumner had against him both the old parties, fresh from their National Conventions. The Democrats had just nominated Franklin Pierce for the Presidency, and the Whigs General Scott; but the two parties concurred on the Slavery Question, and especially in support of the Fugitive Slave Bill, which was named in both platforms.
The Democrats, in their platform, declared as follows:—
"That the Democratic party will resist all attempts at renewing, in Congress or out of it, the agitation of the Slavery question, under whatever shape or color the attempt may be made."
The Whigs, in their platform, declared as follows:—
"That ... we will discountenance all efforts to continue or renew such agitation, whenever, wherever, or however the attempt may be made."
Here was nothing less than a joint gag, which would have been enforced against Mr. Sumner, as it had been a few weeks before, if he had not succeeded in planting himself on a motion clearly in order, which opened the whole question. Before speaking, he was approached by several, who asked him to give up his purpose, or at least, if he spoke, not to divide the Senate. To all he replied, that, God willing, he should speak, and would press the question to a vote, if he were left alone. A curious parallel to this incident will be found in the Life of Sir Fowell Buxton, when this eminent Abolitionist was pressed not to bring forward in the House of Commons his motion against Slavery, and especially not to divide the House. Against the entreaties of friends, personal and political, he persevered; and this firmness of purpose was the beginning of that victory by which shortly afterwards British Emancipation was secured.[102]
From the statement in the Globe it appears that Mr. Sumner spoke for three hours and three quarters, when a debate ensued, in which the following Senators took part: Messrs. Clemens, of Alabama, Badger, of North Carolina, Dodge, of Iowa, Hale, of New Hampshire, Douglas, of Illinois, Weller, of California, Chase, of Ohio, Rusk, of Texas, Toucey, of Connecticut, Bradbury, of Maine, Hunter, of Virginia, James, of Rhode Island, Bright, of Indiana, Cooper, of Pennsylvania, Butler, of South Carolina, Brodhead, of Pennsylvania, Pratt, of Maryland, Mason, of Virginia, and Cass, of Michigan.
Mr. Clemens opened the debate with personal attack which is a specimen of the brutalities of Slavery; but there was no call to order. He was followed by Mr. Badger, who undertook a formal reply, but could not avoid the personalities which were so natural to speakers vindicating Slavery. He began by remarking: "I think I may say, without hazard or fear of contradiction, that the Senate of the United States never heard a more extraordinary speech than that which has just been delivered by the Senator from Massachusetts,—extraordinary in its character, and most extraordinary in the time and the occasion which the gentleman chose for its delivery.... Three hours and three quarters has the gentleman occupied, at this late period of the session, with this discussion." After considering at some length the constitutionality of the Fugitive Slave Bill, especially in answer to Mr. Sumner, he proceeded to quote from the speech at Faneuil Hall (ante, Vol. II. pp. 398-424) denouncing the Fugitive Slave Bill, and then said, "I shudder, when I think of these expressions." Numerous quotations followed, and he charged upon the speech a pernicious influence on the public mind, stimulating to violence. After exposing the former speech, Mr. Badger proceeded to comment again upon that just made. "This speech, Mr. President, is well calculated to stir up the people of Massachusetts. They look to the honorable Senator for direction and guidance; they consider him a 'marvellous proper man,' and, availing himself of his influence over them, he delivers himself of such a tirade of abuse upon the law of his own country—a law passed by this very Senate, in which he knows there are many gentlemen who voted for and still support that law—as is calculated, if any one lent a moment's credence to what he says, to cover us with scorn.... Does he hope to accomplish anything, except to stir up sedition at home against this law, and make the streets of Boston again the scene of disgraceful riots and lawless violence by the lawless opposers of the Constitution and laws of the United States? Never, Sir, since I have been a member of this body, has the Senate witnessed such an exhibition." Then, with a sneer at Antislavery men as of "one idea," the Senator added, that, "admitting everything they say as to the desirableness of abolishing Slavery, it is utterly impracticable."
Mr. Dodge and Mr. Douglas insisted upon the obligations under the Constitution. So did Mr. Toucey, Mr. Bradbury, Mr. Bright, and others. Mr. Cass justified his original support of the Compromise measures by his fear for the Union, saying, "To speak in ordinary language, I was almost frightened to death.... I would have voted for twenty Fugitive Slave Laws, if I had believed the safety of the Union depended upon my doing so"; and then he added: "Sir, the Fugitive Slave Law is now in force. It shall never be touched, or altered, or shaken, or repealed, by any vote of mine. That is the plain English of it."
Mr. Weller imitated Mr. Clemens and Mr. Badger in personalities. He began by a confession as follows. "I will say, Sir, at the outset, that this is the first time in the course of my life that I have listened to the whole of an Abolition speech. I did not know that it was possible that I could endure a speech for over three hours upon the subject of the Abolition of Slavery. But this oration of the Senator from Massachusetts to-day has been so handsomely embellished with poetry, both Latin and English, so full of classical allusions and rhetorical flourishes, as to make it much more palatable than I supposed it could have been made." He then proceeded to say, among other things, "If the constituents of the Senator from Massachusetts follow his direction, if they obey his counsels, murder, I repeat, is inevitable; and upon your hands, Sir, ay, upon your hands [addressing Mr. Sumner], must rest the blood of those murdered men.... This forcible resistance is not only calculated to strike at the very foundation of our republican institutions by dissolving the Union, but to bring upon the head of the learned Senator from Massachusetts the blood of murdered men. He who counsels murder is himself a murderer." Here Mr. Weller followed the lead of Mr. Badger in misrepresenting the speech just made. Mr. Sumner interrupted him to say,
"Not one word has fallen from my lips to-day, suggesting in any way a resort to force."
Mr. Sumner was not without defenders, and what they said belongs to this history. Early in the debate Mr. Hale expressed himself strongly.
"I feel that I should be doing injustice to my own feelings, and injustice to my friend, the Senator from Massachusetts, if I were to fail at this time to express the very great gratification with which I listened to his speech. In saying that, I do not mean to pass by entirely the honorable Senator from North Carolina [Mr. Badger], for I listened to him, as I always do, with great pleasure; but justice compels me to say that by far the best part of his speech was the extract which he read from a former speech of the honorable Senator from Massachusetts. [Laughter.] I listened to them both with great pleasure; but, Sir, I feel bound to say to-day, that it is my deliberate conviction that the honorable Senator from Massachusetts, if he were actuated by as corrupt and selfish motives as can possibly be attributed to him, has, so far as his own personal fame and reputation are concerned, done enough by the effort he has made here to-day to place himself side by side with the first orators of antiquity, and as far ahead of any living American orator as Freedom is ahead of Slavery. I believe that he has formed to-day a new era in the history of the politics and of the eloquence of the country, and that in future generations the young men of this nation will be stimulated to effort by the record of what an American Senator has this day done, to which all the appeals drawn from ancient history would be entirely inadequate. Yes, Sir, he has to-day made a draft upon the gratitude of the friends of humanity and of liberty that will not be paid through many generations, and the memory of which shall endure as long as the English language is spoken, or the history of this Republic forms a part of the annals of the world. That, Sir, is what I believe; and if I had one other feeling, or could indulge in it, in reference to that effort, it would be a feeling of envy, that it was not in me to tread even at an humble distance in the path which he has so nobly and eloquently illustrated."
Mr. Chase adopted the argument of Mr. Sumner against the Fugitive Slave Bill, and vindicated him personally.
"The argument which my friend from Massachusetts has addressed to us to-day was not an assault upon the Constitution. It was a noble vindication of that great charter of government from the perversions of the advocates of the Fugitive Slave Act.... What has the Senator from Massachusetts asserted? That the fugitive servant clause of the Constitution is a clause of compact between the States, and confers no legislative power upon Congress. He has arrayed history and reason in support of this proposition; and I avow my conviction, now and here, that, logically and historically, his argument is impregnable, entirely impregnable....
"Let me add, Mr. President, that in my judgment the speech of my friend from Massachusetts will mark AN ERA in American history. It will distinguish the day when the advocates of that theory of governmental policy, constitutional construction, which he has so ably defended and so brilliantly illustrated, no longer content to stand on the defensive in the contest with Slavery, boldly attacked the very citadel of its power, in that doctrine of finality which two of the political parties of the country, through their national organizations, are endeavoring to establish as the impregnable defence of its usurpations."
On the close of the debate, the proposition of Mr. Sumner was rejected by the following vote.
Yeas,—Messrs. Chase, Hale, Sumner, and Wade,—4.
Nays,—Messrs. Adams, Badger, Bayard, Bell, Borland, Bradbury, Bright, Brodhead, Brooke, Butler, Cass, Charlton, Clarke, Clemens, Cooper, Dawson, De Saussure, Dodge, of Iowa, Douglas, Felch, Fish, Geyer, Gwin, Hamlin, Houston, Hunter, James, Jones, of Iowa, King, Mallory, Mangum, Mason, Meriwether, Miller, Morton, Pearce, Pratt, Rusk, Shields, Smith, Soulé, Spruance, Toucey, Underwood, Upham, Walker, and Weller,—47.
Mr. Seward was absent,—probably constrained by his prominence as a supporter of General Scott.
This speech, when published, found an extensive echo. It was circulated not only through the press, but in large pamphlet editions, amounting to several hundred thousand. It was translated into German. Two or more editions appeared in England. In the preface to the English edition of "Uncle Tom's Cabin," Lord Carlisle associated the speech with that work, and signalized "the closeness of its logic and the masculine vigor of its eloquence." Lord Shaftesbury, in a letter to the London Times, wrote, "What noble eloquence!" Mr. Combe, the phrenologist, in a letter to a distinguished American, which was published at the time, said: "I have read every word of this speech with pleasure and with pain. The pain arose from the subject,—the pleasure from sympathy with and admiration of the speaker. I have long desired to know the merits of that most cruel and iniquitous enactment, and this speech has made them clear as day." The London Examiner said: "Apart from its noble and affecting eloquence, it is one of the closest and most convincing arguments we have ever read on the policy of the earlier and greater, as contrasted with that of the later and meaner statesmen of America." These testimonies might be accumulated. They are introduced only so far as may be important in giving an idea of the contemporaneous reception of this speech. The title had a vogue beyond the speech itself, as it became one of the countersigns of our politics.
Letters also illustrate the speech. Mr. Seward, who was not in his seat at its delivery, wrote, on reading it: "Your speech is an admirable, a great, a very great one. That is my opinion, and everybody around me, of all sorts, confesses it." Mr. Chase wrote also: "I have read, as well as heard, your truly great speech. Hundreds of thousands will read it, and everywhere it will carry conviction to all willing to be convinced, and will infuse a feeling of incertitude and a fearful looking for judgment in the minds of those who resist the light and toil in the harness of party platforms irreconcilable with justice." Mr. Wilson, who had not yet been elected to the Senate, wrote: "I have read your glorious speech. How proud I am that God gave me the power to aid in placing you in the Senate! You have exhausted the question. Hereafter all that can be said will be to repeat your speech. It will afford to any one the most complete view of the questions in dispute of anything ever published." Hon. Stephen C. Phillips, who had taken a leading part in the Free-Soil organization of Massachusetts, wrote: "I regard it as a contribution of inestimable value to our noble cause, worth all the labor, all the time, all the self-sacrifice, and all the misrepresentation it has cost you. It is statesmanlike in all its features, and does all that is necessary to place our simple and entire design in its true light before the country, and before the world, and in the records of history." Wendell Phillips, while differing on some points, wrote: "I have read your speech with envious admiration. It is admirable, both as a masterly argument and a noble testimony, and will endear you to thousands." These extracts, which might be extended, show the response to this effort.
[SPEECH.]
Thursday, 26th August, 1852.—The Civil and Diplomatic Appropriation Bill being under consideration, the following amendment was moved by Mr. Hunter, of Virginia, on the recommendation of the Committee on Finance.
"That, where the ministerial officers of the United States have or shall incur extraordinary expense in executing the laws thereof, the payment of which is not specifically provided for, the President of the United States is authorized to allow the payment thereof, under the special taxation of the District or Circuit Court of the District in which the said services have been or shall be rendered, to be paid from the appropriation for defraying the expenses of the Judiciary."
Mr. Sumner seized the opportunity for which he had been waiting, and at once moved the following amendment to the amendment:—
"Provided, That no such allowance shall be authorized for any expenses incurred in executing the Act of September 18, 1850, for the surrender of fugitives from service or labor; which said Act is hereby repealed."
On this he took the floor, and spoke as follows.
Mr. President,—Here is a provision for extraordinary expenses incurred in executing the laws of the United States. Extraordinary expenses! Sir, beneath these specious words lurks the very subject on which, by a solemn vote of this body, I was refused a hearing. Here it is; no longer open to the charge of being an "abstraction," but actually presented for practical legislation; not introduced by me, but by the Senator from Virginia [Mr. Hunter], on the recommendation of an important committee of the Senate; not brought forward weeks ago, when there was ample time for discussion, but only at this moment, without any reference to the late period of the session. The amendment which I offer proposes to remove one chief occasion of these extraordinary expenses. Beyond all controversy or cavil it is strictly in order. And now, at last, among these final crowded days of our duties here, but at this earliest opportunity, I am to be heard,—not as a favor, but as a right. The graceful usages of this body may be abandoned, but the established privileges of debate cannot be abridged. Parliamentary courtesy may be forgotten, but parliamentary law must prevail. The subject is broadly before the Senate. By the blessing of God it shall be discussed.
Sir, a severe lawgiver of early Greece vainly sought to secure permanence for his imperfect institutions by providing that the citizen who at any time attempted their repeal or alteration should appear in the public assembly with a halter about his neck, ready to be drawn, if his proposition failed. A tyrannical spirit among us, in unconscious imitation of this antique and discarded barbarism, seeks to surround an offensive institution with similar safeguard. In the existing distemper of the public mind, and at this present juncture, no man can enter upon the service which I now undertake, without personal responsibility, such as can be sustained only by that sense of duty which, under God, is always our best support. That personal responsibility I accept. Before the Senate and the country let me be held accountable for this act and for every word which I utter.
With me, Sir, there is no alternative. Painfully convinced of the unutterable wrong and woe of Slavery,—profoundly believing, that, according to the true spirit of the Constitution and the sentiments of the Fathers, it can find no place under our National Government,—that it is in every respect sectional, and in no respect national,—that it is always and everywhere creature and dependant of the States, and never anywhere creature or dependant of the Nation,—and that the Nation can never, by legislative or other act, impart to it any support, under the Constitution of the United States,—with these convictions I could not allow this session to reach its close without making or seizing an opportunity to declare myself openly against the usurpation, injustice, and cruelty of the late intolerable enactment for the recovery of fugitive slaves. Full well I know, Sir, the difficulties of this discussion, arising from prejudices of opinion and from adverse conclusions strong and sincere as my own. Full well I know that I am in a small minority, with few here to whom I can look for sympathy or support. Full well I know that I must utter things unwelcome to many in this body, which I cannot do without pain. Full well I know that the institution of Slavery in our country, which I now proceed to consider, is as sensitive as it is powerful, possessing a power to shake the whole land, with a sensitiveness that shrinks and trembles at the touch. But while these things may properly prompt me to caution and reserve, they cannot change my duty, or my determination to perform it. For this I willingly forget myself and all personal consequences. The favor and good-will of my fellow-citizens, of my brethren of the Senate, Sir, grateful to me as they justly are, I am ready, if required, to sacrifice. Whatever I am or may be I freely offer to this cause.
Here allow, for one moment, a reference to myself and my position. Sir, I have never been a politician. The slave of principles, I call no party master. By sentiment, education, and conviction a friend of Human Rights in their utmost expansion, I have ever most sincerely embraced the Democratic Idea,—not, indeed, as represented or professed by any party, but according to its real significance, as transfigured in the Declaration of Independence and in the injunctions of Christianity. In this idea I see no narrow advantage merely for individuals or classes, but the sovereignty of the people, and the greatest happiness of all secured by equal laws. Amidst the vicissitudes of public affairs I shall hold fast always to this idea, and to any political party which truly embraces it.
Party does not constrain me; nor is my independence lessened by any relations to the office which gives me a title to be heard on this floor. Here, Sir, I speak proudly. By no effort, by no desire of my own, I find myself a Senator of the United States. Never before have I held public office of any kind. With the ample opportunities of private life I was content. No tombstone for me could bear a fairer inscription than this: "Here lies one who, without the honors or emoluments of public station, did something for his fellow-men." From such simple aspirations I was taken away by the free choice of my native Commonwealth, and placed at this responsible post of duty, without personal obligation of any kind, beyond what was implied in my life and published words. The earnest friends by whose confidence I was first designated asked nothing from me, and throughout the long conflict which ended in my election rejoiced in the position which I most carefully guarded. To all my language was uniform: that I did not desire to be brought forward; that I would do nothing to promote the result; that I had no pledges or promises to offer; that the office should seek me, and not I the office; and that it should find me in all respects an independent man, bound to no party and to no human being, but only, according to my best judgment, to act for the good of all. Again, Sir, I speak with pride, both for myself and others, when I add that these avowals found a sympathizing response. In this spirit I have come here, and in this spirit I shall speak to-day.
Rejoicing in my independence, and claiming nothing from party ties, I throw myself upon the candor and magnanimity of the Senate. I ask your attention; I trust not to abuse it. I may speak strongly, for I shall speak openly and from the strength of my convictions. I may speak warmly, for I shall speak from the heart. But in no event can I forget the amenities which belong to debate, and which especially become this body. Slavery I must condemn with my whole soul; but here I need only borrow the language of slaveholders; nor would it accord with my habits or my sense of justice to exhibit them as the impersonation of the institution—Jefferson calls it the "enormity"[103]—which they cherish. Of them I do not speak; but without fear and without favor, as without impeachment of any person, I assail this wrong. Again, Sir, I may err; but it will be with the Fathers. I plant myself on the ancient ways of the Republic, with its grandest names, its surest landmarks, and all its original altar-fires about me.
And now, on the very threshold, I encounter the objection, that there is a final settlement, in principle and substance, of the question of Slavery, and that all discussion of it is closed. Both the old political parties, by formal resolutions, in recent conventions at Baltimore, have united in this declaration. On a subject which for years has agitated the public mind, which yet palpitates in every heart and burns on every tongue, which in its immeasurable importance dwarfs all other subjects, which by its constant and gigantic presence throws a shadow across these halls, which at this very time calls for appropriations to meet extraordinary expenses it has caused, they impose the rule of silence. According to them, Sir, we may speak of everything except that alone which is most present in all our minds.
To this combined effort I might fitly reply, that, with flagrant inconsistency, it challenges the very discussion it pretends to forbid. Their very declaration, on the eve of an election, is, of course, submitted to the consideration and ratification of the people. Debate, inquiry, discussion, are the necessary consequence. Silence becomes impossible. Slavery, which you profess to banish from public attention, openly by your invitation enters every political meeting and every political convention. Nay, at this moment it stalks into this Senate, crying, like the daughters of the horseleech, "Give! give!"
But no unanimity of politicians can uphold the baseless assumption, that a law, or any conglomerate of laws, under the name of Compromise, or howsoever called, is final. Nothing can be plainer than this,—that by no parliamentary device or knot can any Legislature tie the hands of a succeeding Legislature, so as to prevent the full exercise of its constitutional powers. Each Legislature, under a just sense of its responsibility, must judge for itself; and if it think proper, it may revise, or amend, or absolutely undo the work of any predecessor. The laws of the Medes and Persians are said proverbially to have been unalterable; but they stand forth in history as a single example where the true principles of all law have been so irrationally defied.
To make a law final, so as not to be reached by Congress, is, by mere legislation, to fasten a new provision on the Constitution. Nay, more; it gives to the law a character which the very Constitution does not possess. The wise Fathers did not treat the country as a Chinese foot, never to grow after infancy; but, anticipating progress, they declared expressly that their great Act is not final. According to the Constitution itself, there is not one of its existing provisions—not even that with regard to fugitives from labor—which may not at all times be reached by amendment, and thus be drawn into debate. This is rational and just. Sir, nothing from man's hands, nor law nor constitution, can be final. Truth alone is final.
Inconsistent and absurd, this effort is tyrannical also. The responsibility for the recent Slave Act, and for Slavery everywhere within the jurisdiction of Congress, necessarily involves the right to discuss them. To separate these is impossible. Like the twenty-fifth rule[104] of the House of Representatives against petitions on Slavery,—now repealed and dishonored,—the Compromise, as explained and urged, is a curtailment of the actual powers of legislation, and a perpetual denial of the indisputable principle, that the right to deliberate is coextensive with the responsibility for an act. To sustain Slavery, it is now proposed to trample on free speech. In any country this would be grievous; but here, where the Constitution expressly provides against abridging freedom of speech, it is a special outrage. In vain do we condemn the despotisms of Europe, while we borrow the rigors with which they repress Liberty, and guard their own uncertain power. For myself, in no factious spirit, but solemnly and in loyalty to the Constitution, as a Senator of the United States, representing a free Commonwealth, I protest against this wrong. On Slavery, as on every other subject, I claim the right to be heard. That right I cannot, I will not abandon. "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties":[105] these are glowing words, flashed from the soul of John Milton in his struggles with English tyranny. With equal fervor they should be echoed now by every American not already a slave.
But, Sir, this effort is impotent as tyrannical. Convictions of the heart cannot be repressed. Utterances of conscience must be heard. They break forth with irrepressible might. As well attempt to check the tides of Ocean, the currents of the Mississippi, or the rushing waters of Niagara. The discussion of Slavery will proceed, wherever two or three are gathered together,—by the fireside, on the highway, at the public meeting, in the church. The movement against Slavery is from the Everlasting Arm. Even now it is gathering its forces, soon to be confessed everywhere. It may not be felt yet in the high places of office and power, but all who can put their ears humbly to the ground will hear and comprehend its incessant and advancing tread.
The relations of the National Government to Slavery, though plain and obvious, are constantly misunderstood. A popular belief at this moment makes Slavery a national institution, and of course renders its support a national duty. The extravagance of this error can hardly be surpassed. An institution which our fathers most carefully omitted to name in the Constitution, which, according to the debates in the Convention, they refused to cover with any "sanction," and which, at the original organization of the Government, was merely sectional, existing nowhere on the national territory, is now, above all other things, blazoned as national. Its supporters pride themselves as national. The old political parties, while upholding it, claim to be national. A National Whig is simply a Slavery Whig, and a National Democrat is simply a Slavery Democrat, in contradistinction to all who regard Slavery as a sectional institution, within the exclusive control of the States, and with which the nation has nothing to do.
As Slavery assumes to be national, so, by an equally strange perversion, Freedom is degraded to be sectional, and all who uphold it, under the National Constitution, are made to share this same epithet. Honest efforts to secure its blessings everywhere within the jurisdiction of Congress are scouted as sectional; and this cause, which the founders of our National Government had so much at heart, is called Sectionalism. These terms, now belonging to the commonplaces of political speech, are adopted and misapplied by most persons without reflection. But here is the power of Slavery. According to a curious tradition of the French language, Louis the Fourteenth, the Grand Monarch, by an accidental error of speech, among supple courtiers, changed the gender of a noun. But Slavery does more. It changes word for word. It teaches men to say national instead of sectional, and sectional instead of national.
Slavery national! Sir, this is a mistake and absurdity, fit to have a place in some new collection of Vulgar Errors, by some other Sir Thomas Browne, with the ancient, but exploded stories, that the toad has a gem in its head, and that ostriches digest iron. According to the true spirit of the Constitution, and the sentiments of the Fathers, Slavery, and not Freedom, is sectional, while Freedom, and not Slavery, is national. On this unanswerable proposition I take my stand, and here commences my argument.
The subject presents itself under two principal heads: first, the true relations of the National Government to Slavery, wherein it will appear that there is no national fountain from which Slavery can be derived, and no national power, under the Constitution, by which it can be supported. Enlightened by this general survey, we shall be prepared to consider, secondly, the true nature of the provision for the rendition of fugitives from service, and herein especially the unconstitutional and offensive legislation of Congress in pursuance thereof.
I.
And now for the true relations of the National Government to Slavery. These are readily apparent, if we do not neglect well-established principles.
If Slavery be national, if there be any power in the National Government to uphold this institution,—as in the recent Slave Act,—it must be by virtue of the Constitution. Nor can it be by mere inference, implication, or conjecture. According to the uniform admission of courts and jurists in Europe, again and again promulgated in our country, Slavery can be derived only from clear and special recognition. "The state of Slavery," said Lord Mansfield, pronouncing judgment in the great case of Sommersett, "is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law.... It is so odious, that nothing can be suffered to support it but POSITIVE LAW."[106] And a slaveholding tribunal,—the Supreme Court of Mississippi,—adopting the same principle, has said:—
"Slavery is condemned by reason and the Laws of Nature. It exists, and can only exist, through municipal regulations."[107]
And another slaveholding tribunal—the Court of Appeals of Kentucky—has said:—
"We view this as a right existing by positive law of a municipal character, without foundation in the Law of Nature or the unwritten and Common Law."[108]
Of course every power to uphold Slavery must have an origin as distinct as that of Slavery itself. Every presumption must be as strong against such a power as against Slavery. A power so peculiar and offensive, so hostile to reason, so repugnant to the Law of Nature and the inborn Rights of Man,—which despoils its victim of the fruits of labor,—which substitutes concubinage for marriage,—which abrogates the relation of parent and child,—which, by denial of education, abases the intellect, prevents a true knowledge of God, and murders the very soul,—which, amidst a plausible physical comfort, degrades man, created in the divine image, to the state of a beast,—such a power, so eminent, so transcendent, so tyrannical, so unjust, can find no place in any system of Government, unless by virtue of positive sanction. It can spring from no doubtful phrase. It must be declared by unambiguous words, incapable of a double sense.
Slavery, I repeat, is not mentioned in the Constitution. The name Slave does not pollute this Charter of our Liberties. No "positive" language gives to Congress any power to make a slave or to hunt a slave. To find even any seeming sanction for either, we must travel, with doubtful footstep, beyond express letter, into the region of interpretation. But here are rules which cannot be disobeyed. With electric might for Freedom, they send a pervasive influence through every provision, clause, and word of the Constitution. Each and all make Slavery impossible as a national institution. They shut off from the Constitution every fountain out of which it can be derived.
First, and foremost, is the Preamble. This discloses the prevailing objects and principles of the Constitution. This is the vestibule through which all must pass who would enter the sacred temple. Here are the inscriptions by which they are earliest impressed. Here is first seen the genius of the place. Here the proclamation of Liberty is soonest heard. "We, the People of the United States," says the Preamble, "in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Thus, according to undeniable words, the Constitution was ordained, not to establish, secure, or sanction Slavery,—not to promote the special interests of Slaveholders,—not to make Slavery national, in any way, form, or manner,—but to "establish justice," "promote the general welfare," and "secure the blessings of Liberty." Here, surely, Liberty is national.
Secondly. Next to the Preamble in importance are the explicit contemporaneous declarations in the Convention which framed the Constitution, and elsewhere, expressed in different forms of language, but all tending to the same conclusion. By the Preamble the Constitution speaks for Freedom. By these declarations the Fathers speak as the Constitution speaks. Early in the Convention, Gouverneur Morris, of Pennsylvania, broke forth in the language of an Abolitionist: "He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of Heaven on the States where it prevailed."[109] These positive words, in harmony with other things from the same quarter, show a vehement determination that Slavery should not be national.
At a later day a discussion ensued on the clause touching the African slave-trade, which reveals the definitive purposes of the Convention. From the report of Mr. Madison we learn what was said. Oliver Ellsworth, of Connecticut, said: "The morality or wisdom of Slavery are considerations belonging to the States themselves."[110] According to him, Slavery was sectional. Elbridge Gerry, of Massachusetts, "thought we had nothing to do with the conduct of the States as to slaves, but ought to be careful not to give any sanction to it."[111] According to him, Slavery is sectional, and he would not make it national. Roger Sherman, of Connecticut, "was opposed to a tax on slaves imported, as making the matter worse, because it implied they were property."[112] He would not have Slavery national. After debate, the subject was referred to a committee of eleven, who reported a substitute, authorizing "a tax or duty on such migration or importation, at a rate not exceeding the average of the duties laid on imports."[113] This language, classifying persons with merchandise, seemed to imply a recognition that they were property. Mr. Sherman at once declared himself "against this part, as acknowledging men to be property, by taxing them as such under the character of slaves."[114] Mr. Gorham "thought that Mr. Sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them."[115] Mr. Madison, in mild juridical phrase, "thought it wrong to admit in the Constitution the idea that there could be property in men."[116] After discussion it was finally agreed to make the clause read:—
"But a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."[117]
The difficulty seemed then to be removed, and the whole clause was adopted. This record demonstrates that the word "persons" was employed to show that slaves, everywhere under the Constitution, are always to be regarded as persons, and not as property, and thus to exclude from the Constitution all idea that there can be property in man. Remember well, that Mr. Sherman was opposed to the clause in its original form, "as acknowledging men to be property,"—that Mr. Madison was also opposed to it, because he "thought it wrong to admit in the Constitution the idea that there could be property in men,"—and that, after these objections, the clause was so amended as to exclude the idea. But Slavery cannot be national, unless this idea is distinctly and unequivocally admitted into the Constitution.
The evidence still accumulates. At a later day in the proceedings of the Convention, as if to set the seal upon the solemn determination to have no sanction of Slavery in the Constitution, the word "servitude," which appeared in the clause on the apportionment of representatives and taxes was struck out, and the word "service" inserted. This was done by unanimous vote, on the motion of Mr. Randolph, of Virginia; and the reason assigned for this substitution, according to Mr. Madison, in his authentic report of the debate, was, that "the former was thought to express the condition of slaves, and the latter the obligations of free persons."[118] With such care was Slavery excluded from the Constitution.
Nor is this all. In the Massachusetts Convention, to which the Constitution, when completed, was submitted for ratification, a veteran of the Revolution, General Heath, openly declared, that, according to his view, Slavery was sectional, and not national. His language was pointed. "I apprehend," he said, "that it is not in our power to do anything for or against those who are in slavery in the Southern States. No gentleman within these walls detests every idea of Slavery more than I do; it is generally detested by the people of this Commonwealth; and I ardently hope that the time will soon come when our brethren in the Southern States will view it as we do, and put a stop to it; but to this we have no right to compel them. Two questions naturally arise: If we ratify the Constitution, shall we do anything by our act to hold the blacks in slavery? or shall we become partakers of other men's sins? I think neither of them."[119]
Afterwards, in the first Congress under the Constitution, on a motion, much debated, for a duty on the importation of slaves, the same Roger Sherman, who in the National Convention opposed the idea of property in man, authoritatively exposed the true relations of the Constitution to Slavery. His language was, that "the Constitution does not consider these persons as a species of property; it speaks of them as persons."[120]
Thus distinctly and constantly, from the very lips of the framers of the Constitution, we learn the falsehood of recent assumptions in favor of Slavery and in derogation of Freedom.
Thirdly. According to a familiar rule of interpretation, all laws concerning the same matter, in pari materia, are to be construed together. By the same reason, the grand political acts of the Nation are to be construed together, giving and receiving light from each other. Earlier than the Constitution was the Declaration of Independence, embodying, in immortal words, those primal truths to which our country pledged itself with baptismal vows as a Nation. "We hold these truths to be self-evident," says the Nation: "that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." But this does not stand alone. There is another national act of similar import. On the successful close of the Revolution, the Continental Congress, in an Address to the States, repeated the same lofty truth. "Let it be remembered," said the Nation again, "that it has ever been the pride and boast of America, that the rights for which she contended were the rights of human nature. By the blessing of the Author of these rights on the means exerted for their defence, they have prevailed against all opposition, and FORM THE BASIS of thirteen independent States."[121] Such were the acts of the Nation in its united capacity. Whatever may be the privileges of States in their individual capacities, within their several local jurisdictions, no power can be attributed to the Nation, in the absence of positive, unequivocal grant, inconsistent with these two national declarations. Here, Sir, is the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, entering into all the national legislation and spreading through all its parts. Thus again is Freedom national.
Fourthly. Beyond these is a principle of the Common Law, clear and indisputable, a supreme rule of interpretation, from which in this case there can be no appeal. In any question under the Constitution every word must be construed in favor of Liberty. This rule, which commends itself to the natural reason, is sustained by time-honored maxims of early jurisprudence. Blackstone aptly expresses it, when he says that "the law is always ready to catch at anything in favor of Liberty."[122] The rule is repeated in various forms. Favores ampliandi sunt; odia restringenda: "Favors are to be amplified; hateful things to be restrained." Lex Angliæ est lex misericordiæ: "The law of England is a law of mercy." Angliæ jura in omni casu Libertati dant favorem: "The laws of England in every case show favor to Liberty." And this sentiment breaks forth in natural, though intense force, in the maxim, Impius et crudelis judicandus est qui Libertati non favet: "He is to be adjudged impious and cruel who does not favor Liberty." Reading the Constitution in the admonition of these rules, Freedom, again I say, is national.[123]
Fifthly. From a learned judge of the Supreme Court of the United States, in an opinion of the Court, we derive the same lesson. In considering the question, whether a State can prohibit the importation of slaves as merchandise, and whether Congress, in the exercise of its power to regulate commerce among the States, can interfere with the slave-trade between the States, a principle was enunciated, which, while protecting the trade from any intervention of Congress, declares openly that the Constitution acts upon no man as property. Mr. Justice McLean says: "If slaves are considered in some of the States as merchandise, that cannot divest them of the leading and controlling quality of persons, by which they are designated in the Constitution. The character of property is given them by the local law. This law is respected, and all rights under it are protected, by the Federal authorities; but the Constitution acts upon slaves as PERSONS, and not as property.... The power over Slavery belongs to the States respectively. It is local in its character, and in its effects."[124] Here again Slavery is sectional, while Freedom is national.
Sir, such, briefly, are the rules of interpretation, which, as applied to the Constitution, fill it with the breath of Freedom,—
"Driving far off each thing of sin and guilt."[125]
To the history and prevailing sentiments of the times we may turn for further assurance. In the spirit of Freedom the Constitution was formed. In this spirit our fathers always spoke and acted. In this spirit the National Government was first organized under Washington. And here I recall a scene, in itself a touchstone of the period, and an example for us, upon which we may look with pure national pride, while we learn anew the relations of the National Government to Slavery.
The Revolution was accomplished. The feeble Government of the Confederation passed away. The Constitution, slowly matured in a National Convention, discussed before the people, defended by masterly pens, was adopted. The Thirteen States stood forth a Nation, where was unity without consolidation, and diversity without discord. The hopes of all were anxiously hanging upon the new order of things and the mighty procession of events. With signal unanimity Washington was chosen President. Leaving his home at Mount Vernon, he repaired to New York,—where the first Congress had commenced its session,—to assume his place as elected Chief of the Republic. On the 30th of April, 1789, the organization of the Government was completed by his inauguration. Entering the Senate Chamber, where the two Houses were assembled, he was informed that they awaited his readiness to receive the oath of office. Without delay, attended by the Senators and Representatives, with friends and men of mark gathered about him, he moved to the balcony in front of the edifice. A countless multitude, thronging the open ways, and eagerly watching this great espousal,
"With reverence look on his majestic face,
Proud to be less, but of his godlike race."[126]
The oath was administered by the Chancellor of New York. At such time, and in such presence, beneath the unveiled heavens, Washington first took this vow upon his lips: "I do solemnly swear that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States."
Over the President, on this new occasion, floated the national flag, with its stripes of red and white, its stars on a field of blue. As his patriot eye rested upon the glowing ensign, what currents must have rushed swiftly through his soul! In the early days of the Revolution, in those darkest hours about Boston, after the Battle of Bunker Hill, and before the Declaration of Independence, the thirteen stripes had been first unfurled by him, as the emblem of Union among the Colonies for the sake of Freedom. By him, at that time, they had been named the Union Flag. Trial, struggle, and war were now ended, and the Union, which they first heralded, was unalterably established. To every beholder these memories must have been full of pride and consolation. But, looking back upon the scene, there is one circumstance which, more than all its other associations, fills the soul,—more even than the suggestions of Union, which I prize so much. At this moment, when Washington took his first oath to support the Constitution of the United States, the National Ensign, nowhere within the National Territory, covered a single slave. Then, indeed, was Slavery Sectional, and Freedom National.
On the sea an execrable piracy, the trade in slaves, to the national scandal, was still tolerated under the national flag. In the States, as a sectional institution, beneath the shelter of local laws, Slavery unhappily found a home. But in the only territories at this time belonging to the nation, the broad region of the Northwest, it was already made impossible, by the Ordinance of Freedom, even before the adoption of the Constitution. The District of Columbia, with its Fatal Dowry, was not yet acquired.
The government thus organized was Antislavery in character. Washington was a slaveholder, but it would be unjust to his memory not to say that he was an Abolitionist also. His opinions do not admit of question. Only a short time before the formation of the National Constitution, he declared, by letter, that it was "among his first wishes to see some plan adopted by which Slavery in this country might be abolished by law";[127] and again, in another letter, that, in support of any legislative measure for the abolition of Slavery, his suffrage should "never be wanting";[128] and still further, in conversation with a distinguished European Abolitionist, a travelling propagandist of Freedom, Brissot de Warville, recently welcomed to Mount Vernon, he openly announced, that, to promote this object in Virginia, "he desired the formation of a Society, and that he would second it."[129] By this authentic testimony he takes his place with the early patrons of Abolition Societies.
By the side of Washington, as, standing beneath the national flag, he swore to support the Constitution, were illustrious men, whose lives and recorded words now rise in judgment. There was John Adams, the Vice-President, great vindicator and final negotiator of our national independence, whose soul, flaming with Freedom, broke forth in the early declaration, that "consenting to Slavery is a sacrilegious breach of trust,"[130] and whose immitigable hostility to this wrong is immortal in his descendants. There also was a companion in arms and attached friend, of beautiful genius, the yet youthful and "incomparable" Hamilton,—fit companion in early glories and fame with that darling of English history, Sir Philip Sidney, to whom the latter epithet has been reserved,—who, as member of the Abolition Society of New York, had recently united in a solemn petition for those who, though "free by the laws of God, are held in Slavery by the laws of this State."[131] There, too, was a noble spirit, of spotless virtue, the ornament of human nature, who, like the sun, ever held an unerring course,—John Jay. Filling the important post of Secretary for Foreign Affairs under the Confederation, he found time to organize the "Society for Promoting the Manumission of Slaves" in New York, and to act as its President, until, by the nomination of Washington, he became Chief Justice of the United States. In his sight Slavery was an "iniquity," "a sin of crimson dye," against which ministers of the Gospel should testify, and which the Government should seek in every way to abolish. "Till America comes into this measure," he wrote, "her prayers to Heaven for liberty will be impious. This is a strong expression, but it is just. Were I in your Legislature, I would prepare a bill for the purpose with great care, and I would never cease moving it till it became a law or I ceased to be a member."[132] Such words as these, fitly coming from our leaders, belong to the true glories of the country:—
"While we such precedents can boast at home,
Keep thy Fabricius and thy Cato, Rome!"
They stood not alone. The convictions and earnest aspirations of the country were with them. At the North these were broad and general. At the South they found fervid utterance from slaveholders. By early and precocious efforts for "total emancipation," the author of the Declaration of Independence placed himself foremost among the Abolitionists of the land. In language now familiar to all, and which can never die, he perpetually denounced Slavery. He exposed its pernicious influence upon master as well as slave, declared that the love of justice and the love of country pleaded equally for the slave, and that "the abolition of domestic slavery was the greatest object of desire." He believed that "the sacred side was gaining daily recruits," and confidently looked to the young for the accomplishment of this good work.[133] In fitful sympathy with Jefferson was another honored son of Virginia, the Orator of Liberty, Patrick Henry, who, while confessing that he was a master of slaves, said: "I will not, I cannot justify it. However culpable my conduct, I will so far pay my devoir to Virtue as to own the excellence and rectitude of her precepts, and lament my want of conformity to them."[134] At this very period, in the Legislature of Maryland, on a bill for the relief of oppressed slaves, a young man, afterwards by consummate learning and forensic powers acknowledged head of the American bar, William Pinkney, in a speech of earnest, truthful eloquence,—better for his memory than even his professional fame,—branded Slavery as "iniquitous and most dishonorable," "founded in a disgraceful traffic," "its continuance as shameful as its origin"; and he openly declared, that "by the eternal principles of natural justice, no master in the State has a right to hold his slave in bondage for a single hour."[135]
Thus at that time spoke the Nation. The Church also joined its voice. And here, amidst diversities of religious faith, it is instructive to observe the general accord. Quakers first bore their testimony. At the adoption of the Constitution, their whole body, under the early teaching of George Fox, and by the crowning exertions of Benezet and Woolman, had become an organized band of Abolitionists, penetrated by the conviction that it was unlawful to hold a fellow-man in bondage. Methodists, numerous, earnest, and faithful, never ceased by their preachers to proclaim the same truth. Their rules in 1788 denounced, in formal language, "the buying or selling the bodies and souls of men, women, or children, with an intention to enslave them."[136] The words of their great apostle, John Wesley, were constantly repeated. On the eve of the National Convention, that burning tract was circulated in which he exposes American Slavery as "vilest" of the world,—"such slavery as is not found among the Turks at Algiers"; and after declaring "Liberty the right of every human creature," of which "no human law can deprive him," he pleads, "If, therefore, you have any regard to justice (to say nothing of mercy, nor the revealed law of God), render unto all their due. Give liberty to whom liberty is due,—that is, to every child of man, to every partaker of human nature."[137] At the same time the Presbyterians, a powerful religious body, inspired by the principles of John Calvin, in more moderate language, but by a public act, recorded their judgment, recommending "to all their people to use the most prudent measures, consistent with the interest and the state of civil society in the counties where they live, to procure eventually the final abolition of Slavery in America."[138] The Congregationalists of New England, also nurtured in the faith of John Calvin, and with the hatred of Slavery belonging to the great Nonconformist, Richard Baxter, were sternly united against this wrong. As early as 1776, Samuel Hopkins, their eminent leader and divine, published his tract showing it to be the Duty and Interest of the American Colonies to emancipate all their African slaves, and declaring that Slavery is "in every instance wrong, unrighteousness, and oppression,—a very great and crying sin,—there being nothing of the kind equal to it on the face of the earth."[139] And in 1791, shortly after the adoption of the Constitution, the second Jonathan Edwards, a twice-honored name, in an elaborate discourse often published, called upon his country, in "the present blaze of light" on the injustice of Slavery, to "prepare the way for its total abolition." This he gladly thought at hand. "If we judge of the future by the past," said the celebrated preacher, "within fifty years from this time it will be as shameful for a man to hold a negro slave as to be guilty of common robbery or theft."[140]
Thus, at this time, the Church, in harmony with the Nation, by its leading denominations, Quakers, Methodists, Presbyterians, and Congregationalists, thundered against Slavery. The Colleges were in unison with the Church. Harvard University spoke by the voice of Massachusetts, which already had abolished Slavery. Dartmouth College, by one of its learned Professors, claimed for the slaves "an equal standing, in point of privileges, with the whites."[141] Yale College, by its President, the eminent divine, Ezra Stiles, became the head of the Abolition Society of Connecticut.[142] And the University of William and Mary, in Virginia, at this very time testified its sympathy with the cause by conferring upon Granville Sharp, the acknowledged chief of British Abolitionists, the honorary degree of Doctor of Laws.[143]
The Literature of the land, such as then existed, agreed with the Nation, the Church, and the College. Franklin, in the last literary labor of his life,[144]—Jefferson, in his "Notes on Virginia,"—Barlow, in his heroic verse,—Rush, in a work which inspired the praise of Clarkson,[145]—the ingenious author of the "Algerine Captive," the earliest American novel, and, though now but little known, one of the earliest American books republished in London,—were all moved by the contemplation of Slavery. "If our fellow-citizens in the Southern States are deaf to the pleadings of Nature," exclaims the last earnestly, "I will conjure them, for the sake of consistency, to cease to deprive their fellow-creatures of freedom, which their writers, their orators, representatives, senators, and even their Constitutions of Government, have declared to be the unalienable birthright of man."[146] A female writer and poet, earliest in our country among the graceful throng, Sarah Wentworth Morton, at the very period of the National Convention, admired by the polite society in which she lived, poured forth her sympathies also. The generous labors of John Jay in behalf of the crushed African inspired her muse; and in another poem, commemorating a slave who fell while vindicating his freedom, she rendered a truthful homage to his inalienable rights, in words which I now quote as testimony of the times:—
"Does not the voice of Reason cry,
'Claim the first right that Nature gave,
From the red scourge of bondage fly,
Nor deign to live a burdened slave'?"[147]
Such, Sir, at the adoption of the Constitution and the first organization of the National Government, was the outspoken, unequivocal heart of the country. Slavery was abhorred. Like the slave-trade, it was regarded as transitory; and by many it was supposed that they would disappear together. As the oracles grew mute at the coming of Christ, and a voice was heard, crying to mariners at sea, "Great Pan is dead!" so at this time Slavery became dumb, and its death seemed to be near. Voices of Freedom filled the air. The patriot, the Christian, the scholar, the writer, the poet, vied in loyalty to this cause. All were Abolitionists.
The earliest Congress under the Constitution attests this mood. One of its first acts was to accept the Ordinance of Freedom for the Northwestern Territory, thus ratifying the prohibition of Slavery in all existing territory. It is impossible to exaggerate the importance of this act as a national landmark, especially when we consider that on the list of those who sanctioned it were men fresh from the National Convention, and therefore familiar with the Constitution which it framed. The same Congress entertained the question of Slavery in other forms,—sometimes on memorials duly presented, and then again in debate. Virginia was heard by her Abolition Society denouncing Slavery as "not only an odious degradation, but an outrageous violation of one of the most essential rights of human nature, and utterly repugnant to the precepts of the Gospel."[148] There was another petitioner, whose illustrious services at home and abroad entitled him to speak with authority rather than with prayer. It was none other than Benjamin Franklin. After a long life of various effort,—representing his country in England during the controversies that preceded the Revolution,—returning to take his great part in the Declaration of Independence,—then representing his country in its European negotiations,—then again returning to take his great part in the formation of the National Constitution, while all the time his life was elevated by philosophy and the peculiar renown he had won,—this Apostle of Liberty, recognized as such in the two hemispheres, whose name was signed to the Declaration of Independence, was signed to the Treaty of Alliance with France, was signed to the Treaty of Independence with Great Britain, was signed to the National Constitution, now set this same name to another instrument, a simple petition to Congress. At the age of eighty-four, venerable with years, and with all the honors of philosophy, diplomacy, and statesmanship,—a triple crown never before enjoyed,—the patriot sage comes forward, as President of the Abolition Society of Pennsylvania, and entreats Congress "that it would be pleased to countenance the restoration of Liberty to those unhappy men who alone in this land of Freedom are degraded into perpetual bondage,"—and then again, in concluding words, "that it would step to the very verge of the power vested in it for discouraging every species of traffic in the persons of our fellow-men."[149] Shortly after this prayer the petitioner descended to his tomb, from which he still prays that Congress will step to the very verge of the power vested in it to DISCOURAGE Slavery; and this prayer, in simple words, proclaims the National policy of the Fathers. Not encouragement, but discouragement of Slavery,—not its nationalization, but its denationalization, was their rule.
Sir, enough has been said to show the sentiment which, like a vital air, surrounded the National Government as it stepped into being. In the face of this history, and in the absence of any positive sanction, it is absurd to suppose that Slavery, which under the Confederation had been merely sectional, was now constituted national. Our fathers did not say, with the apostate angel, "Evil, be thou my good!" In different spirit they cried out to Slavery, "Get thee behind me, Satan!"
There is yet another link. In the discussions which took place in the local conventions on the adoption of the Constitution, a sensitive desire was manifested to surround all persons under the Constitution with additional safeguards. Fears were expressed, from the supposed indefiniteness of some of the powers conceded to the National Government, and also from the absence of a Bill of Rights. Massachusetts, on ratifying the Constitution, proposed a series of amendments, at the head of which was this, characterized by Samuel Adams, in the Convention, as "A Summary of a Bill of Rights":—
"That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."[150]
New Hampshire, New York, Rhode Island, Virginia, South Carolina, and North Carolina, with minorities in Pennsylvania and Maryland, united in this proposition. In pursuance of these recommendations, the First Congress presented for adoption the following article, which, being ratified by the proper number of States, became part of the Constitution as the Tenth Amendment:—
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Stronger words could not be employed to limit the power under the Constitution, and to protect the people from all assumptions of the National Government, particularly in derogation of Freedom. Its guardian character commended it to the sagacious mind of Jefferson, who said: "I consider the foundation of the Constitution as laid on this ground."[151] And Samuel Adams, ever watchful for Freedom, said: "It removes a doubt which many have entertained respecting this matter, and gives assurance, that, if any law made by the federal Government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the Constitution of this State, it will be an error, and adjudged by the courts of law to be void."[152]
Beyond all question, the National Government, ordained by the Constitution, is not general or universal, but special and particular. It is a government of limited powers. It has no power which is not delegated. Especially is this clear with regard to an institution like Slavery. The Constitution contains no power to make a king, or to support kingly rule. With similar reason it may be said, that it contains no power to make a slave, or to support a system of Slavery. The absence of all such power is hardly more clear in the one case than in the other. But if there be no such power, all national legislation upholding Slavery must be unconstitutional and void. The stream cannot be higher than the fountain-head. Nay, more, nothing can come out of nothing; the stream cannot exist, if there be no spring from which it is fed.
At the risk of repetition, but for the sake of clearness, review now this argument, and gather it together. Considering that Slavery is of such an offensive character that it can find sanction only in "positive law," and that it has no such "positive" sanction in the Constitution,—that the Constitution, according to its Preamble, was ordained to "establish justice" and "secure the blessings of liberty,"—that, in the Convention which framed it, and also elsewhere at the time, it was declared not to sanction Slavery,—that, according to the Declaration of Independence, and the Address of the Continental Congress, the Nation was dedicated to "Liberty," and the "rights of human nature,"—that, according to the principles of the Common Law, the Constitution must be interpreted openly, actively, and perpetually for Freedom,—that, according to the decision of the Supreme Court, it acts upon slaves, not as property, but as PERSONS,—that, at the first organization of the National Government under Washington, Slavery had no national favor, existed nowhere on the national territory, beneath the national flag, but was openly condemned by Nation, Church, Colleges, and Literature of the time,—and, finally, that, according to an Amendment of the Constitution, the National Government can exercise only powers delegated to it, among which is none to support Slavery,—considering these things, Sir, it is impossible to avoid the single conclusion, that Slavery is in no respect a national institution, and that the Constitution nowhere upholds property in man.
There is one other special provision of the Constitution, which I have reserved to this stage, not so much from its superior importance, but because it fitly stands by itself. This alone, if practically applied, would carry Freedom to all within its influence. It is an Amendment proposed by the First Congress, as follows:—
"No person shall be deprived of life, liberty, or property, without due process of law."
Under this great ægis the liberty of every person within the national jurisdiction is unequivocally placed. I say every person. Of this there can be no question. The word "person" in the Constitution embraces every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave. Show me a person within the national jurisdiction, and I confidently claim for him this protection, no matter what his condition or race or color. The natural meaning of the clause is clear, but a single fact of its history places it in the broad light of noon. As originally recommended by Virginia, North Carolina, and Rhode Island, it was restricted to the freeman. Its language was, "No freeman ought to be deprived of his life, liberty, or property, but by the law of the land."[153] In rejecting this limitation, the authors of the Amendment revealed their purpose, that no person, under the National Government, of whatever character, should be deprived of liberty without due process of law,—that is, without due presentment, indictment, or other judicial proceeding. But this Amendment is nothing less than an express guaranty of Personal Liberty, and an express prohibition of its invasion anywhere, at least within the national jurisdiction.
Sir, apply these principles, and Slavery will again be as when Washington took his first oath as President. The Union Flag of the Republic will become once more the flag of Freedom, and at all points within the national jurisdiction will refuse to cover a slave. Beneath its beneficent folds, wherever it is carried, on land or sea, Slavery will disappear, like darkness under the arrows of the ascending sun,—like the Spirit of Evil before the Angel of the Lord.
In all national territories Slavery will be impossible.
On the high seas, under the national flag, Slavery will be impossible.
In the District of Columbia Slavery will instantly cease.
Inspired by these principles, Congress can give no sanction to Slavery by the admission of new Slave States.
Nowhere under the Constitution can the Nation, by legislation or otherwise, support Slavery, hunt slaves, or hold property in man.
Such, Sir, are my sincere convictions. According to the Constitution, as I understand it, in the light of the Past and of its true principles, there is no other conclusion which is rational or tenable, which does not defy authoritative rules of interpretation, does not falsify indisputable facts of history, does not affront the public opinion in which it had its birth, and does not dishonor the memory of the Fathers. And yet politicians of the hour undertake to place these convictions under formal ban. The generous sentiments which filled the early patriots, and impressed upon the government they founded, as upon the coin they circulated, the image and superscription of Liberty, have lost their power. The slave-masters, few in number, amounting to not more than three hundred and fifty thousand, according to the recent census, have succeeded in dictating the policy of the National Government, and have written Slavery on its front. The change, which began in the desire for wealth, was aggravated by the desire for political predominance.[154] Through Slavery the cotton crop increased, with its enriching gains; through Slavery States became part of the Slave Power. And now an arrogant and unrelenting ostracism is applied, not only to all who express themselves against Slavery, but to every man unwilling to be its menial. A novel test for office is introduced, which would have excluded all the Fathers of the Republic,—even Washington, Jefferson, and Franklin! Yes, Sir! Startling it may be, but indisputable. Could these revered demigods of history once again descend upon earth and mingle in our affairs, not one of them could receive a nomination from the National Convention of either of the two old political parties! Out of the convictions of their hearts and the utterances of their lips against Slavery they would be condemned.
This single fact reveals the extent to which the National Government has departed from its true course and its great examples. For myself, I know no better aim under the Constitution than to bring the Government back to the precise position on this question it occupied on the auspicious morning of its first organization by Washington,—
"Nunc retrorsum
Vela dare, atque iterare cursus
. . . . relictos,"[155]—
that the sentiments of the Fathers may again prevail with our rulers, and the National Flag may nowhere shelter Slavery.
To such as count this aspiration unreasonable let me commend a renowned and life-giving precedent of English history. As early as the days of Queen Elizabeth, a courtier boasted that the air of England was too pure for a slave to breathe,[156] and the Common Law was said to forbid Slavery. And yet, in the face of this vaunt, kindred to that of our fathers, and so truly honorable, slaves were introduced from the West Indies. The custom of Slavery gradually prevailed. Its positive legality was affirmed, in professional opinions, by two eminent lawyers, Talbot and Yorke, each afterwards Lord Chancellor. It was also affirmed on the bench by the latter as Lord Hardwicke.[157] England was already a Slave State. The following advertisement, copied from a London newspaper, The Public Advertiser, of November 22, 1769, shows that the journals there were disfigured as some of ours, even in the District of Columbia.
"To be sold, a black girl, the property of J.B., eleven years of age, who is extremely handy, works at her needle tolerably, and speaks English perfectly well; is of an excellent temper and willing disposition. Inquire of her owner at the Angel Inn, behind St. Clement's Church, in the Strand."
At last, in 1772, only three years after this advertisement, the single question of the legality of Slavery was presented to Lord Mansfield, on a writ of Habeas Corpus. A poor negro, named Sommersett, brought to England as a slave, became ill, and, with an inhumanity disgraceful even to Slavery, was turned adrift upon the world. Through the charity of an estimable man, the eminent Abolitionist, Granville Sharp, he was restored to health, when his unfeeling and avaricious master again claimed him as bondman. The claim was repelled. After elaborate and protracted discussion in Westminster Hall, marked by rarest learning and ability, Lord Mansfield, with discreditable reluctance, sullying his great judicial name, but in trembling obedience to the genius of the British Constitution, pronounced a decree which made the early boast a practical verity, and rendered Slavery forever impossible in England. More than fourteen thousand persons, at that time held as slaves, and breathing English air,—four times as many as are now found in this national metropolis,—stepped forth in the happiness and dignity of freemen.
With this guiding example I cannot despair. The time will yet come when the boast of our fathers will be made a practical verity also, and Court or Congress, in the spirit of this British judgment, will proudly declare that nowhere under the Constitution can man hold property in man. For the Republic such a decree will be the way of peace and safety. As Slavery is banished from the national jurisdiction, it will cease to vex our national politics. It may linger in the States as a local institution; but it will no longer engender national animosities, when it no longer demands national support.
II.
From this general review of the relations of the National Government to Slavery, I pass to the consideration of THE TRUE NATURE OF THE PROVISION FOR THE RENDITION OF FUGITIVES FROM SERVICE, embracing an examination of this provision in the Constitution, and especially of the recent Act of Congress in pursuance thereof. As I begin this discussion, let me bespeak anew your candor. Not in prejudice, but in the light of history and of reason, we must consider this subject. The way will then be easy, and the conclusion certain.
Much error arises from the exaggerated importance now attached to this provision, and from assumptions with regard to its origin and primitive character. It is often asserted that it was suggested by some special difficulty, which had become practically and extensively felt, anterior to the Constitution. But this is one of the myths or fables with which the supporters of Slavery have surrounded their false god. In the Articles of Confederation, while provision is made for the surrender of fugitive criminals, nothing is said of fugitive slaves or servants; and there is no evidence in any quarter, until after the National Convention, of hardship or solicitude on this account. No previous voice was heard to express desire for any provision on the subject. The story to the contrary is a modern fiction.
I put aside, as equally fabulous, the common saying, that this provision was one of the original compromises of the Constitution, and an essential condition of Union. Though sanctioned by eminent judicial opinions, it will be found that this statement is hastily made, without any support in the records of the Convention, the only authentic evidence of the compromises; nor will it be easy to find any authority for it in any contemporary document, speech, published letter, or pamphlet of any kind. It is true that there were compromises at the formation of the Constitution, which were the subject of anxious debate; but this was not one of them.
There was a compromise between the small and large States, by which equality was secured to all the States in the Senate.
There was another compromise finally carried, under threats from the South, on the motion of a New England member, by which the Slave States are allowed Representatives according to the whole number of free persons and "three fifths of all other persons,"[158] thus securing political power on account of their slaves, in consideration that direct taxes should be apportioned in the same way. Direct taxes have been imposed at only four brief intervals. The political power has been constant, and at this moment sends twenty-one members to the other House.
There was a third compromise, not to be mentioned without shame. It was that hateful bargain by which Congress was restrained until 1808 from the prohibition of the foreign slave-trade, thus securing, down to that period, toleration for crime. This was pertinaciously pressed by the South, even to the extent of absolute restriction on Congress. John Rutledge said: "If the Convention thinks that North Carolina, South Carolina, and Georgia will ever agree to the Plan [the National Constitution], unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest." Charles Pinckney said: "South Carolina can never receive the Plan, if it prohibits the slave-trade." Charles Cotesworth Pinckney "thought himself bound to declare candidly, that he did not think South Carolina would stop her importations of slaves in any short time."[159] The effrontery of the slave-masters was matched by the sordidness of the Eastern members, who yielded again. Luther Martin, the eminent member of the Convention, in his contemporary address to the Legislature of Maryland, described the compromise. "I found," he said, "the Eastern States, notwithstanding their aversion to Slavery, were very willing to indulge the Southern States at least with a temporary liberty to prosecute the slave-trade, provided the Southern States would in their turn gratify them by laying no restriction on navigation acts."[160] The bargain was struck, and at this price the Southern States gained the detestable indulgence. At a subsequent day Congress branded the slave-trade as piracy, and thus, by solemn legislative act, adjudged this compromise to be felonious and wicked.
Such are the three chief original compromises of the Constitution and essential conditions of Union. The case of fugitives from service is not of these. During the Convention it was not in any way associated with these. Nor is there any evidence from the records of this body, that the provision on this subject was regarded with any peculiar interest. As its absence from the Articles of Confederation had not been the occasion of solicitude or desire, anterior to the National Convention, so it did not enter into any of the original plans of the Constitution. It was introduced tardily, at a late period of the Convention, and adopted with very little and most casual discussion. A few facts show how utterly unfounded are recent assumptions.
The National Convention was convoked to meet at Philadelphia on the second Monday in May, 1787. Several members appeared at this time, but, a majority of the States not being represented, those present adjourned from day to day until the 25th, when the Convention was organized by the choice of George Washington as President. On the 28th a few brief rules and orders were adopted. On the next day they commenced their great work.
On the same day, Edmund Randolph, of slaveholding Virginia, laid before the Convention a series of fifteen resolutions, containing his plan for the establishment of a New National Government. Here was no allusion to fugitive slaves.
Also, on the same day, Charles Pinckney, of slaveholding South Carolina, laid before the Convention what was called "A Draft of a Federal Government, to be agreed upon between the Free and Independent States of America," an elaborate paper, marked by considerable minuteness of detail. Here are provisions, borrowed from the Articles of Confederation, securing to the citizens of each State equal privileges in the several States, giving faith to the public records of the States, and ordaining the surrender of fugitives from justice. But this draft, though from the flaming guardian of the slave interest, contained no allusion to fugitive slaves.
In the course of the Convention other plans were brought forward: on the 15th June, a series of eleven propositions by Mr. Patterson, of New Jersey, "so as to render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union"; on the 18th June, eleven propositions by Mr. Hamilton, of New York, "containing his ideas of a suitable plan of Government for the United States"; and on the 19th June, Mr. Randolph's resolutions, originally offered on the 29th May, "as altered, amended, and agreed to in Committee of the Whole House." On the 26th July, twenty-three resolutions, already adopted on different days in the Convention, were referred to a "Committee of Detail," for reduction to the form of a Constitution. On the 6th August this Committee reported the finished draft of a Constitution. And yet in all these resolutions, plans, and drafts, seven in number, proceeding from eminent members and from able committees, no allusion is made to fugitive slaves. For three months the Convention was in session, and not a word uttered on this subject.
At last, on the 28th August, as the Convention was drawing to a close, on the consideration of the article providing for the privileges of citizens in different States, we meet the first reference to this matter, in words worthy of note. "General [Charles Cotesworth] Pinckney was not satisfied with it. He SEEMED to wish some provision should be included in favor of property in slaves." But he made no proposition. Unwilling to shock the Convention, and uncertain in his own mind, he only seemed to wish such a provision. In this vague expression of a vague desire this idea first appeared. In this modest, hesitating phrase is the germ of the audacious, unhesitating Slave Act. Here is the little vapor, which has since swollen, as in the Arabian tale, to the power and dimensions of a giant. The next article under discussion provided for the surrender of fugitives from justice. Mr. Butler and Mr. Charles Pinckney, both from South Carolina, now moved openly to require "fugitive slaves and servants to be delivered up like criminals." Here was no disguise. With Hamlet, it was now said in spirit,—
"Seems, Madam! Nay, it is. I know not seems."
But the very boldness of the effort drew attention and opposition. Mr. Wilson, of Pennsylvania, the learned jurist and excellent man, at once objected: "This would oblige the Executive of the State to do it at the public expense." Mr. Sherman, of Connecticut, "saw no more propriety in the public seizing and surrendering a slave or servant than a horse." Under the pressure of these objections, the offensive proposition was withdrawn,—never more to be renewed. The article for the surrender of criminals was then unanimously adopted.[161] On the next day, 29th August, profiting by the suggestions already made, Mr. Butler moved a proposition,—substantially like that now found in the Constitution,—for the surrender, not of "fugitive slaves," as originally proposed, but simply of "persons bound to service or labor," which, without debate or opposition of any kind, was unanimously adopted.[162]
Here, palpably, was no labor of compromise, no adjustment of conflicting interests,—nor even any expression of solicitude. The clause finally adopted was vague and faint as the original suggestion. In its natural import it is not applicable to slaves. If supposed by some to be applicable, it is clear that it was supposed by others to be inapplicable. It is now insisted that the term "persons bound to service," or "held to service," as expressed in the final revision, is the equivalent or synonym for "slaves." This interpretation is rebuked by an incident to which reference has been already made, but which will bear repetition. On the 13th September—a little more than a fortnight after the clause was adopted, and when, if deemed to be of any significance, it could not have been forgotten—the very word "service" came under debate, and received a fixed meaning. It was unanimously adopted as a substitute for "servitude" in another part of the Constitution, for the reason that it expressed "the obligations of free persons," while the other expressed "the condition of slaves." In the face of this authentic evidence, reported by Mr. Madison, it is difficult to see how the term "persons held to service" can be deemed to express anything beyond "the obligations of free persons." Thus, in the light of calm inquiry, does this exaggerated clause lose its importance.
The provision, showing itself thus tardily, and so slightly regarded in the National Convention, was neglected in much of the contemporaneous discussion before the people. In the Conventions of South Carolina, North Carolina, and Virginia, it was commended as securing important rights, though on this point there was difference of opinion. In the Virginia Convention, an eminent character, Mr. George Mason, with others, expressly declared that there was "no security of property coming within this section." In the other Conventions it was disregarded. Massachusetts, while exhibiting peculiar sensitiveness at any responsibility for Slavery, seemed to view it with unconcern. One of her leading statesmen, General Heath, in the debates of the State Convention, strenuously asserted, that, in ratifying the Constitution, the people of Massachusetts "would do nothing to hold the blacks in slavery." "The Federalist,"[163] in its classification of the powers of Congress, describes and groups a large number as "those which provide for the harmony and proper intercourse among the States," and therein speaks of the power over public records, standing next in the Constitution to the provision concerning fugitives from service; but it fails to recognize the latter among the means of promoting "harmony and proper intercourse"; nor does its triumvirate of authors anywhere allude to the provision.
The indifference thus far attending this subject still continued. The earliest Act of Congress, passed in 1793, drew little attention. It was not suggested originally by any difficulty or anxiety touching fugitives from service, nor is there any contemporary record, in debate or otherwise, showing that any special importance was attached to its provisions in this regard. The attention of Congress was directed to fugitives from justice, and, with little deliberation, it undertook, in the same bill, to provide for both cases. In this accidental manner was legislation on this subject first attempted.
There is no evidence that fugitives were often seized under this Act. From a competent inquirer we learn that twenty-six years elapsed before it was successfully enforced in any Free State. It is certain, that, in a case at Boston, towards the close of the last century, illustrated by Josiah Quincy as counsel, the crowd about the magistrate, at the examination, quietly and spontaneously opened a way for the fugitive, and thus the Act failed to be executed. It is also certain, that, in Vermont, at the beginning of the century, a Judge of the Supreme Court of the State, on application for the surrender of an alleged slave, accompanied by documentary evidence, gloriously refused compliance, unless the master could show a Bill of Sale from the Almighty. Even these cases passed without public comment.
In 1801 the subject was introduced in the House of Representatives by an effort for another Act, which, on consideration, was rejected. At a later day, in 1817-18, though still disregarded by the country, it seemed to excite a short-lived interest in Congress. In the House of Representatives, on motion of Mr. Pindall, of Virginia, a committee was appointed to inquire into the expediency of "providing more effectually by law for reclaiming servants and slaves escaping from one State into another," and a bill reported by them to amend the Act of 1793, after consideration for several days in Committee of the Whole, was passed. In the Senate, after much attention and warm debate, it passed with amendments. But on return to the House for adoption of the amendments, it was dropped.[164] This effort, which, in the discussions of this subject, has been thus far unnoticed, is chiefly remarkable as the earliest recorded evidence of the unwarrantable assertion, now so common, that this provision was originally of vital importance to the peace and harmony of the country.
At last, in 1850, we have another Act, passed by both Houses of Congress, and approved by the President, familiarly known as the Fugitive Slave Bill. As I read this statute, I am filled with painful emotions. The masterly subtlety with which it is drawn might challenge admiration, if exerted for a benevolent purpose; but in an age of sensibility and refinement, a machine of torture, however skilful and apt, cannot be regarded without horror. Sir, in the name of the Constitution, which it violates, of my country, which it dishonors, of Humanity, which it degrades, of Christianity, which it offends, I arraign this enactment, and now hold it up to the judgment of the Senate and the world. Again, I shrink from no responsibility. I may seem to stand alone; but all the patriots and martyrs of history, all the Fathers of the Republic, are with me. Sir, there is no attribute of God which does not take part against this Act.
But I am to regard it now chiefly as an infringement of the Constitution. Here its outrages, flagrant as manifold, assume the deepest dye and broadest character only when we consider that by its language it is not restricted to any special race or class, to the African or to the person with African blood, but that any inhabitant of the United States, of whatever complexion or condition, may be its victim. Without discrimination of color even, and in violation of every presumption of freedom, the Act surrenders all who may be claimed as "owing service or labor" to the same tyrannical proceeding. If there be any whose sympathies are not moved for the slave, who do not cherish the rights of the humble African, struggling for divine Freedom, as warmly as the rights of the white man, let him consider well that the rights of all are equally assailed. "Nephew," said Algernon Sidney in prison, on the night before his execution, "I value not my own life a chip; but what concerns me is, that the law which takes away my life may hang every one of you, whenever it is thought convenient."
Whilst thus comprehensive in its provisions, and applicable to all, there is no safeguard of Human Freedom which the monster Act does not set at nought.
It commits this great question—than which none is more sacred in the law—not to a solemn trial, but to summary proceedings.
It commits this great question, not to one of the high tribunals of the land, but to the unaided judgment of a single petty magistrate.
It commits this great question to a magistrate appointed, not by the President with the consent of the Senate, but by the Court,—holding office, not during good behavior, but merely during the will of the Court,—and receiving, not a regular salary, but fees according to each individual case.
It authorizes judgment on ex parte evidence, by affidavit, without the sanction of cross-examination.
It denies the writ of Habeas Corpus, ever known as the Palladium of the citizen.
Contrary to the declared purposes of the framers of the Constitution, it sends the fugitive back "at the public expense."
Adding meanness to violation of the Constitution, it bribes the Commissioner by a double stipend to pronounce against Freedom. If he dooms a man to Slavery, the reward is ten dollars; but saving him to Freedom, his dole is five.
The Constitution expressly secures the "free exercise of religion": but this Act visits with unrelenting penalties the faithful men and women who render to the fugitive that countenance, succor, and shelter which in their conscience "religion" requires; and thus is practical religion directly assailed. Plain commandments are broken; and are we not told that "whosoever shall break one of these least commandments, and shall teach men so, he shall be called the least in the kingdom of Heaven"?[165]
As it is for the public weal that there should be an end of suits, so by the consent of civilized nations these must be instituted within fixed limitations of time; but this Act, exalting Slavery above even this practical principle of universal justice, ordains proceedings against Freedom without any reference to the lapse of time.
Glancing only at these points, and not stopping for argument, vindication, or illustration, I come at once upon two chief radical objections to this Act, identical in principle with those triumphantly urged by our fathers against the British Stamp Act: first, that it is a usurpation by Congress of powers not granted by the Constitution, and an infraction of rights secured to the States; and, secondly, that it takes away Trial by Jury in a question of Personal Liberty and a suit at Common Law. Either of these objections, if sustained, strikes at the very root of the Act. That it is obnoxious to both is beyond doubt.
Here, at this stage, I encounter the difficulty, that these objections are already foreclosed by legislation of Congress and decisions of the Supreme Court,—that as early as 1793 Congress assumed power over this subject by an Act which failed to secure Trial by Jury, and that the validity of this Act under the Constitution has been affirmed by the Supreme Court. On examination, this difficulty will disappear.
The Act of 1793 proceeded from a Congress that had already recognized the United States Bank, chartered by a previous Congress, which, though sanctioned by the Supreme Court, has been since in high quarters pronounced unconstitutional. If it erred as to the Bank, it may have erred also as to fugitives from service. But the Act itself contains a capital error on this very subject, so declared by the Supreme Court, in pretending to vest a portion of the judicial power of the Nation in State officers. This error takes from the Act all authority as an interpretation of the Constitution. I dismiss it.
The decisions of the Supreme Court are entitled to great consideration, and will not be mentioned by me except with respect. Among the memories of my youth are happy days when I sat at the feet of this tribunal, while Marshall presided, with Story by his side. The pressure now proceeds from the case of Prigg v. Pennsylvania (16 Peters, 539), where is asserted the power of Congress. Without going into minute criticism of this judgment, or considering the extent to which it is extra-judicial, and therefore of no binding force,—all which has been done at the bar in one State, and by an able court in another,—but conceding to it a certain degree of weight as a rule to the judiciary on this particular point, still it does not touch the grave question which springs from the denial of Trial by Jury. This judgment was pronounced by Mr. Justice Story. From the interesting biography of the great jurist, recently published by his son, we learn that the question of Trial by Jury was not considered as before the Court; so that, in the estimation of the learned judge himself, it was still an open question. Here are the words.
"One prevailing opinion, which has created great prejudice against this judgment, is, that it denies the right of a person claimed as a fugitive from service or labor to a trial by jury. This mistake arises from supposing the case to involve the general question as to the constitutionality of the Act of 1793. But in fact no such question was in the case; and the argument, that the Act of 1793 was unconstitutional, because it did not provide for a trial by jury according to the requisitions of the sixth article in the Amendments to the Constitution, having been suggested to my father on his return from Washington, he replied, that this question was not argued by counsel nor considered by the Court, and that he should still consider it an open one."[166]
But whatever may be the influence of this judgment as a rule to the judiciary, it cannot arrest our duty as legislators. And here I adopt with entire assent the language of President Jackson, in his memorable Veto, in 1832, of the Bank of the United States. To his course was opposed the authority of the Supreme Court, and this is his reply.
"If the opinion of the Supreme Court cover the whole ground of this Act, it ought not to control the coördinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges, when it may be brought before them for judicial decision.... The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."[167]
With these authoritative words I dismiss this topic. The early legislation of Congress and the decisions of the Supreme Court cannot stand in our way. I advance to the argument.
(1.) First, of the power of Congress over this subject.
The Constitution contains powers granted to Congress, compacts between the States, and prohibitions addressed to the Nation and to the States. A compact or prohibition may be accompanied by a power,—but not necessarily, for it is essentially distinct in nature. And here the single question arises, Whether the Constitution, by grant, general or special, confers upon Congress any power to legislate on the subject of fugitives from service.
The whole legislative power of Congress is derived from two distinct sources: first, from the general grant, attached to the long catalogue of powers, "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof"; and, secondly, from special grants in other parts of the Constitution. As the provision in question does not appear in the catalogue of powers, and does not purport to vest any power in the Government of the United States, or in any department or officer thereof, no power to legislate on this subject can be derived from the general grant. Nor can any such power be derived from any special grant in any other part of the Constitution; for none such exists. The conclusion must be, that no power is delegated to Congress over the surrender of fugitives from service.
In all contemporary discussions and comments, the Constitution was constantly justified and recommended on the ground that the powers not given to the Government were withheld. If under its original provisions any doubt on this head could have existed, it was removed, so far as language could remove it, by the Tenth Amendment, which, as we have already seen, expressly declares, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Here, on the simple text of the Constitution, I might leave this question. But its importance justifies more extended examination, in twofold light: first, in the history of the Convention, revealing the unmistakable intention of its members; and, secondly, in the true principles of our Political System, by which the powers of the Nation and of the States are respectively guarded.
Look first at the history of the Convention. The articles of the old Confederation, adopted by the Continental Congress 15th November, 1777, though containing no reference to fugitives from service, had provisions substantially like those in our present Constitution, touching the privileges of citizens in the several States, the surrender of fugitives from justice, and the credit due to the public records of States. But, since the Confederation had no powers not "expressly delegated," and as no power was delegated to legislate on these matters, they were nothing more than articles of treaty or compact. Afterwards, at the National Convention, these three provisions found place in the first reported draft of a Constitution, and were arranged in the very order which they occupied in the Articles of Confederation. The clause relating to public records stood last. Mark this fact.
When this clause, being in form merely a compact, came up for consideration in the Convention, various efforts were made to graft upon it a power. This was on the very day of the adoption of the clause relating to fugitives from service. Charles Pinckney moved to commit it, with a proposition for a power to establish uniform laws on the subject of bankruptcy and foreign bills of exchange. Mr. Madison was in favor of a power for the execution of judgments in other States. Gouverneur Morris, on the same day, moved to commit a further proposition for a power "to determine the proof and effect of such acts, records, and proceedings." Amidst all these efforts to associate a power with this compact, it is clear that nobody supposed that any such already existed. This narrative places the views of the Convention beyond question.
The compact regarding public records, together with these various propositions, was referred to a committee, on which were Mr. Randolph and Mr. Wilson, with John Rutledge, of South Carolina, as chairman. After several days, they reported the compact, with a power in Congress to prescribe by general laws the manner in which such records shall be proved. A discussion ensued, in which Mr. Randolph complained that the "definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going further than the Report, which enables the Legislature to provide for the effect of judgments."[168] The clause of compact with the power attached was then adopted, and is now part of the Constitution. In presence of this solicitude for the preservation of "State powers," even while considering a proposition for an express power, and also of the distinct statement of Mr. Randolph, that he "was for not going further than the Report," it is evident that the idea could not then have occurred, that a power was coupled with the naked clause of compact on fugitives from service.
At a later day the various clauses and articles severally adopted from time to time in Convention were referred to a committee of revision and arrangement, that they might be reduced to form as a connected whole. Here another change was made. The clause relating to public records, with the power attached, was taken from its original place at the bottom of the clauses of compact, and promoted to stand first in the article, as a distinct section, while the other clauses of compact concerning citizens, fugitives from justice, and fugitives from service, each and all without any power attached, by a natural association compose but a single section, thus:—
"Article IV.
"Section 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
"Section 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.
"A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
"Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.
"The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.
"Section 4. The United States shall guaranty to every State in this Union a republican form of Government, and shall protect each of them against invasion, and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence."
Here is the whole article, in its final form. It will be observed that the third section, immediately following the triad section of compacts, contains two specific powers,—one with regard to new States, and the other with regard to the public Territory. These are naturally grouped together, while the fourth section of this same article, which is distinct in character, is placed by itself. In the absence of all specific information, reason alone can determine why this arrangement was made. But the conclusion is obvious, that, in the view of the Committee and of the Convention, each of these sections differs from the others. The first contains a compact with a grant of power. The second contains provisions, all of which are simple compacts, and two of which were confessedly simple compacts in the old Articles of Confederation, from which, unchanged in character, they were borrowed. The third is a twofold grant of power to Congress, without any compact. The fourth is neither power nor compact merely, nor both united, but a solemn injunction upon the National Government to perform an important duty.
The framers of the Constitution were wise and careful, having a reason for what they did, and understanding the language they employed. They did not, after discussion, incorporate into their work any superfluous provision; nor did they without design adopt the peculiar arrangement in which it appears. Adding to the record compact an express grant of power, they testified not only their desire for such power in Congress, but their conviction that without such express grant it would not exist. But if express grant was necessary in this case, it was equally necessary in all the other cases. Expressum facit cessare tacitum. Especially, in view of its odious character, was it necessary in the case of fugitives from service. Abstaining from any such grant, and then grouping the bare compact with other similar compacts, separate from every grant of power, they testified their purpose most significantly. Not only do they decline all addition to the compact of any such power, but, to render misapprehension impossible, to make assurance doubly sure, to exclude any contrary conclusion, they punctiliously arrange the clauses, on the principle of noscitur a sociis, so as to distinguish all the grants of power, but especially to make the new grant of power, in the case of public records, stand forth in the front by itself, severed from the naked compacts with which it was originally associated.
Thus the proceedings of the Convention show that the founders understood the necessity of powers in certain cases, and, on consideration, jealously granted them. A closing example will strengthen the argument. Congress is expressly empowered "to establish an uniform rule of Naturalization, and uniform laws on the subject of Bankruptcies, throughout the United States." Without this provision these two subjects would have fallen within the control of the States, leaving the Nation powerless to establish a uniform rule thereupon. Now, instead of the existing compact on fugitives from service, it would have been easy, had any such desire prevailed, to add this case to the clause on Naturalization and Bankruptcies, and to empower Congress to establish a uniform rule for the surrender of fugitives from service throughout the United States. Then, of course, whenever Congress undertook to exercise the power, all State control of the subject would be superseded. The National Government would have been constituted, like Nimrod, the mighty Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or jurisdictions, throughout all the States. But no person in the Convention, not one of the reckless partisans of Slavery, was so audacious as to make this proposition. Had it been distinctly made, it would have been as distinctly denied.
The fact that the provision on this subject was adopted unanimously, while showing the little importance attached to it in the shape it finally assumed, testifies also that it could not have been regarded as a source of National power for Slavery. It will be remembered that among the members of the Convention were Gouverneur Morris, who had said that he "NEVER would concur in upholding domestic slavery,"—Elbridge Gerry, who thought we "ought to be careful NOT to give any sanction to it,"—Roger Sherman, who "was OPPOSED to a tax on slaves imported, because it implied they were property,"—James Madison, who "thought it WRONG to admit in the Constitution the idea that there could be property in men,"—and Benjamin Franklin, who likened American slaveholders to Algerine corsairs. In the face of these unequivocal judgments, it is absurd to suppose that these eminent citizens consented unanimously to any provision by which the National Government, the creature of their hands, dedicated to Freedom, could become the most offensive agent of Slavery.
Thus much for the evidence from the history of the Convention. But the true principles of our Political System are in harmony with this conclusion of history; and here let me say a word of State Rights.
It was the purpose of our fathers to create a National Government, and to endow it with adequate powers. They had known the perils of imbecility, discord, and confusion, protracted through the uncertain days of the Confederation, and they desired a government which should be a true bond of Union and an efficient organ of national interests at home and abroad. But while fashioning this agency, they fully recognized the governments of the States. To the Nation were delegated high powers, essential to the national interests, but specific in character and limited in number. To the States and to the people were reserved the powers, general in character and unlimited in number, not delegated to the Nation or prohibited to the States.
The integrity of our Political System depends upon harmony in the operations of the Nation and of the States. While the Nation within its wide orbit is supreme, the States move with equal supremacy in their own. But, from the necessity of the case, the supremacy of each in its proper place excludes the other. The Nation cannot exercise rights reserved to the States, nor can the States interfere with the powers of the Nation. Any such action on either side is a usurpation. These principles were distinctly declared by Mr. Jefferson in 1798, in words often adopted since, and which must find acceptance from all parties.
"That the several States composing the United States of America are not united on the principle of unlimited submission to their General Government; but that by a compact, under the style and title of a Constitution for the United States and of Amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force."[169]
I have already amply shown to-day that Slavery is in no respect national,—that it is not within the sphere of national activity,—that it has no "positive" support in the Constitution,—and that any interpretation inconsistent with this principle would be abhorrent to the sentiments of its founders. Slavery is a local institution, peculiar to the States, and under the guardianship of State Rights. It is impossible, without violence to the spirit and letter of the Constitution, to claim for Congress any power to legislate either for its abolition in the States or its support anywhere. Non-Intervention is the rule prescribed to the Nation. Regarding the question in its more general aspects only, and putting aside, for the moment, the perfect evidence from the records of the Convention, it is palpable that there is no national fountain out of which the existing Slave Act can possibly spring.
But this Act is not only an unwarrantable assumption of power by the Nation, it is also an infraction of rights reserved to the States. Everywhere within their borders the States are the peculiar guardians of personal liberty. By Jury and Habeas Corpus to save the citizen harmless against all assault is among their duties and rights. To his State the citizen, when oppressed, may appeal; nor should he find that appeal denied. But this Act despoils him of rights, and despoils his State of all power to protect him. It subjects him to the wretched chance of false oaths, forged papers, and facile commissioners, and takes from him every safeguard. Now, if the slaveholder has a right to be secure at home in the enjoyment of Slavery, so also has the freeman of the North—and every person there is presumed to be a freeman—an equal right to be secure at home in the enjoyment of Freedom. The same principle of State Eights by which Slavery is protected in the Slave States throws an impenetrable shield over Freedom in the Free States. And here, let me say, is the only security for Slavery in the Slave States, as for Freedom in the Free States. In the present fatal overthrow of State Rights you teach a lesson which may return to plague the teacher. Compelling the National Government to stretch its Briarean arms into the Free States for the sake of Slavery, you show openly how it may stretch these same hundred giant arms into the Slave States for the sake of Freedom. This lesson was not taught by our fathers.
Here I end this branch of the question. The true principles of our Political System, the history of the National Convention, the natural interpretation of the Constitution, all teach that this Act is a usurpation by Congress of powers that do not belong to it, and an infraction of rights secured to the States. It is a sword, whose handle is at the National Capital, and whose point is everywhere in the States. A weapon so terrible to Personal Liberty the Nation has no power to grasp.
(2.) And now of the denial of Trial by Jury.
Admitting, for the moment, that Congress is intrusted with power over this subject, which truth disowns, still the Act is again radically unconstitutional from its denial of Trial by Jury in a question of Personal Liberty and a suit at Common Law. Since on the one side there is a claim of property, and on the other of liberty, both property and liberty are involved in the issue. To this claim on either side is attached Trial by Jury.
To me, Sir, regarding this matter in the light of the Common Law and in the blaze of free institutions, it has always seemed impossible to arrive at any other conclusion. If the language of the Constitution were open to doubt, which it is not, still all the presumptions of law, all the leanings to Freedom, all the suggestions of justice, plead angel-tongued for this right. Nobody doubts that Congress, if it legislates on this matter, may allow a Trial by Jury. But if it may, so overwhelming is the claim of justice, it MUST. Beyond this, however, the question is determined by the precise letter of the Constitution.
Several expressions in the provision for the surrender of fugitives from service show the essential character of the proceedings. In the first place, the person must be, not merely charged, as in the case of fugitives from justice, but actually held to service in the State from which he escaped. In the second place, he must "be delivered up on claim of the party to whom such service or labor may be due." These two facts, that he was held to service, and that his service was due to his claimant, are directly placed in issue, and must be proved. Two necessary incidents of the delivery may also be observed. First, it is made in the State where the fugitive is found; and, secondly, it restores to the claimant complete control over the person of the fugitive. From these circumstances it is evident that the proceedings cannot be regarded, in any just sense, as preliminary, or ancillary to some future formal trial, but as complete in themselves, final and conclusive.
These proceedings determine on the one side the question of Property, and on the other the sacred question of Personal Liberty in its most transcendent form,—Liberty not merely for a day or a year, but for life, and the Liberty of generations that shall come after, so long as Slavery endures. To these questions the Constitution, by two specific provisions, attaches Trial by Jury. One is the familiar clause, already adduced: "No person shall be deprived of life, liberty, or property, without due process of law,"—that is, without due proceeding at law, with Trial by Jury. Not stopping to dwell on this, I press at once to the other provision, which is still more express: "In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of Trial by Jury shall be preserved." This clause, which does not appear in the Constitution as first adopted, was suggested by the very spirit of Freedom. At the close of the National Convention, Elbridge Gerry refused to sign the Constitution because, among other things, it established "a tribunal without juries, a Star Chamber as to civil cases."[170] Many united in his opposition, and on the recommendation of the First Congress this additional safeguard was adopted as an amendment.
Now, regarding the question as one of Property, or of Personal Liberty, in either alternative the Trial by Jury is secured. For this position authority is ample. In the debate on the Fugitive Slave Bill of 1817-18, a Senator from South Carolina, Mr. Smith, anxious for the asserted right of property, objected, on this very floor, to a reference of the question, under the writ of Habeas Corpus, to a judge without a jury. Speaking solely for Property, these were his words.
"This would give a judge the sole power of deciding the right of property the master claims in his slave, instead of trying that right by a jury, as prescribed by the Constitution. He would be judge of matters of law and matters of fact, clothed with all the powers of a jury as well as the powers of a court. Such a principle is unknown in your system of jurisprudence. Your Constitution has forbid it. It preserves the right of Trial by Jury in all cases where the value in controversy exceeds twenty dollars."[171]
But this provision has been repeatedly discussed by the Supreme Court, so that its meaning is not open to doubt. Three conditions are necessary: first, the proceeding must be "a suit"; secondly, "at Common Law"; and, thirdly, "where the value in controversy exceeds twenty dollars." In every such case "the right of Trial by Jury shall be preserved." Judgments of the Supreme Court cover each of these points.
First. In the case of Cohens v. Virginia (6 Wheaton, 407), the Court say: "What is a suit? We understand it to be the prosecution or pursuit of some claim, demand, or request." Of course, then, the "claim" for a fugitive must be a "suit."
Secondly. In the case of Parsons v. Bedford et al. (3 Peters, 447), while considering this very clause, the Court say: "By Common Law the framers of the Constitution meant ... not merely suits which the Common Law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined.... In a just sense, the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights." Now, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are called legal rights, it must be a "suit at Common Law."
Thirdly. In the case of Lee v. Lee (8 Peters, 44), on a question whether "the value in controversy" was "one thousand dollars or upwards," it was objected, that the appellants, who were petitioners for Freedom, were not of the value of one thousand dollars. But the Court said: "The matter in dispute is the Freedom of the petitioners.... This is not susceptible of a pecuniary valuation.... We entertain no doubt of the jurisdiction of the Court."[172] Of course, then, since Liberty is above price, the claim to any fugitive always and necessarily presumes that "the value in controversy exceeds twenty dollars."
By these successive steps, sustained by judgments of the highest tribunal, it appears, as in a diagram, that the right of Trial by Jury is secured to the fugitive from service.
This conclusion needs no additional authority; but it receives curious illustration from the ancient records of the Common Law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that "nearly as many of Blackstone's Commentaries were sold in America as in England,"[173] carrying thither the knowledge of those vital principles of Freedom which were the boast of the British Constitution. Thus imbued, the earliest Continental Congress, in 1774, declared, "That the respective Colonies are entitled to the Common Law of England, and more especially to the great and inestimable privilege of being tried by their Peers of the Vicinage, according to the course of that law."[174] Amidst the troubles which heralded the Revolution, the Common Law was claimed as a birthright.
Now, although the Common Law may not be approached as a source of jurisdiction under the National Constitution,—and on this interesting topic I forbear to dwell,—it is clear that it may be employed to determine the meaning of technical terms in the Constitution borrowed from this law. This, indeed, is expressly sanctioned by Mr. Madison, in his celebrated Report of 1799, while limiting the extent to which the Common Law may be employed. Thus by this law we learn the nature of Trial by Jury, which, though secured, is not described by the Constitution; also what are Attainder, Habeas Corpus, and Impeachment, all technical terms of the Constitution, borrowed from the Common Law. By this law, and its associate Chancery, we learn what are cases in law and equity to which the judicial power of the United States is extended. These instances I adduce merely for example. Also in the same way we learn what are suits at Common Law.
Now, on principle and authority, a claim for the delivery of a fugitive slave is a suit at Common Law, and is embraced naturally and necessarily in this class of judicial proceedings. This proposition can be placed beyond question. And here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge inquiry and answer.
History painfully records, that, during the early days of the Common Law, and down even to a late period, a system of Slavery existed in England, known under the name of villenage. The slave was generally called a villein, though in the original Latin forms of judicial proceedings he was termed nativus, implying slavery by birth. The incidents of this condition are minutely described, and also the mutual remedies of master and slave, all of which were regulated by the Common Law. Slaves sometimes then, as now, escaped from their masters. The claim for them, after such escape, was prosecuted by a "suit at Common Law," to which, as to every suit at Common Law, Trial by Jury was necessarily attached. Blackstone, in his Commentaries, in words which must have been known to all the lawyers of the Convention, said of villeins: "They could not leave their lord without his permission; but if they ran away, or were purloined from him, might be CLAIMED and recovered by ACTION, like beasts or other chattels."[175] This very word, "action," of itself implies "a suit at Common Law" with Trial by Jury.
From other sources we learn precisely what the action was. That great expounder of the ancient law, Mr. Hargrave, says, "Our Year Books and Books of Entries are full of the forms used in pleading a title to villeins regardant."[176] Though no longer of practical value in England, they remain as monuments of jurisprudence, and as mementos of a barbarous institution. He thus describes the remedy of the master at Common Law.
"The lord's remedy for a fugitive villein was either by seizure or by suing out a writ of Nativo Habendo, or Neifty, as it is sometimes called. If the lord seized, the villein's most effectual mode of recovering liberty was by the writ of Homine Replegiando, which had great advantage over the writ of Habeas Corpus. In the Habeas Corpus the return cannot be contested by pleading against the truth of it, and consequently on a Habeas Corpus the question of liberty cannot go to a jury for trial.... But in the Homine Replegiando it was otherwise.... The plaintiff, ... on the defendant's pleading the villenage, had the same opportunity of contesting it as when impleaded by the lord in a Nativo Habendo. If the lord sued out a Nativo Habendo, and the villenage was denied, in which case the sheriff could not seize the villein, the lord was then to enter his plaint in the county court; and as the sheriff was not allowed to try the question of villenage in his court, the lord could not have any benefit from the writ, without removing the cause by the writ of Pone into the King's Bench or Common Pleas."[177]
The authority of Mr. Hargrave is sufficient. But I mean to place this matter beyond all cavil. From the Digest of Lord Chief Baron Comyns, which at the adoption of the Constitution was among the classics of our jurisprudence, I derive another description of the remedy.
"If the lord claims an inheritance in his villein, who flies from his lord against his will, and lives in a place out of the manor to which he is regardant, the lord shall have a Nativo Habendo. And upon such writ, directed to the sheriff, he may seize him who does not deny himself to be a villein. But if the defendant say that he is a freeman, the sheriff cannot seize him, but the lord must remove the writ by Pone before the Justices in Eyre, or in C.B., where he must count upon it."[178]
An early writer of peculiar authority, Fitzherbert, in his Natura Brevium, on the writs of the Common Law, thus describes these proceedings.
"The writ de Nativo Habendo lieth for the lord who claimeth inheritance in any villein, when his villein is run from him, and is remaining within any place out of the manor unto which he is regardant, or when he departeth from his lord against the lord's will: and the writ shall be directed unto the sheriff.... And the sheriff may seize the villein, and deliver him unto his lord, if the villein confess unto the sheriff that he is his villein; but if the villein say to the sheriff that he is frank, then it seemeth that the sheriff ought not to seize him: as it is in a replevin, if the defendant claim property, the sheriff cannot replevy the cattle, but the party ought to sue a writ de Proprietate Probanda: and so if the villein say that he is a freeman, &c., then the sheriff ought not to seize him, but then the lord ought to sue a Pone to remove the plea before the Justices in the Common Pleas, or before the Justices in Eyre. But if the villein purchase a writ de Libertate Probanda before the lord hath sued the Pone to remove the plea before the Justices, then that writ of Libertate Probanda is a Supersedeas unto the lord, that he proceed not upon the writ of Nativo Habendo till the Eyre of the Justices, or till the day of the plea be adjourned before the Justices, and that the lord ought not to seize the villein in the mean time."[179]
These authorities are not merely applicable to the general question of freedom, but they distinctly contemplate the case of fugitive slaves, and the "suits at Common Law" for their rendition. Blackstone speaks of villeins who "ran away"; Hargrave of "fugitive villeins"; Comyns of a villein "who flies from his lord against his will"; and Fitzherbert of the proceedings of the lord "when his villein is run from him." The forms, writs, counts, pleadings, and judgments in these suits are all preserved among the precedents of the Common Law. The writs are known as original writs, which the party on either side, at the proper stage, could sue out of right without showing cause. The writ of Libertate Probanda for a fugitive slave was in this form:—
"Libertate Probanda.
"The king to the sheriff, &c. A. and B. her sister have showed unto us, that, whereas they are free women, and ready to prove their liberty, F., claiming them to be his neifs unjustly, vexes them; and therefore we command you, that, if the aforesaid A. and B. shall make you secure touching the proving of their liberty, then put that plea before our justices at the first assizes, when they shall come into those parts, because proof of this kind belongeth not to you to take; and in the mean time cause the said A. and B. to have peace thereupon, and tell the aforesaid F. that he may be there, if he will, to prosecute his plea thereof against the aforesaid A. and B. And have there this writ. Witness, &c."[180]
By these various proceedings, all ending in Trial by Jury, Personal Liberty was guarded, even in the unrefined and barbarous days of the early Common Law. Any person claimed as a fugitive slave might invoke this Trial as a sacred right. Whether the master proceeded by seizure, as he might, or by legal process, Trial by Jury, in a suit at Common Law, before one of the high courts of the realm, was equally secured. In the case of seizure, the fugitive, reversing the proceedings, might institute process against his master, and appeal to a Court and Jury. In the case of process by the master, the watchful law secured to the fugitive the same protection. By no urgency of force, by no device of process, could any person claimed as a slave be defrauded of this Trial. Such was the Common Law. If its early boast, that there could be no slaves in England, fails to be true, this at least may be its pride,—that, according to its indisputable principles, the liberty of every man was placed under the guard of Trial by Jury.
These things may seem new to us; but they must have been known to the members of the Convention, particularly to those from South Carolina, through whose influence the provision on this subject was adopted. Charles Cotesworth Pinckney and Mr. Rutledge had studied law at the Temple, one of the English Inns of Court. It would be a discredit to them, and also to other learned lawyers, members of the Convention, to suppose that they were not conversant with the principles and precedents directly applicable to this subject, all of which are set down in works of acknowledged authority, and at that time of constant professional study. Only a short time before, in the case of Sommersett, they had been most elaborately examined in Westminster Hall. In a forensic effort of unsurpassed learning and elevation, which of itself vindicates for its author his great juridical name, Mr. Hargrave had fully made them known to such as were little acquainted with the more ancient sources. But even if we could suppose them unknown to the lawyers of the Convention, they are none the less applicable in determining the true meaning of the Constitution.
The conclusion is explicit. Clearly and indisputably, in England, the country of the Common Law, a claim for a fugitive slave was "a suit at Common Law," recognized "among its old and settled proceedings." To question this, in the face of authentic principles and precedents, is preposterous. As well might it be questioned, that a writ of replevin for a horse, or a writ of right for land, was "a suit at Common Law." It follows, then, that this technical term of the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves, if any such be instituted or allowed under the Constitution. And thus, by the letter of the Constitution, in harmony with the requirements of the Common Law, all such persons, when claimed by their masters, are entitled to Trial by Jury.
Such, Sir, is the argument, briefly uttered, against the constitutionality of the Slave Act. Much more I might say on this matter; much more on the two chief grounds of objection which I have occupied. But I am admonished to hasten on.
Opposing this Act as doubly unconstitutional from the want of power in Congress and from the denial of Trial by Jury, I find myself again encouraged by the example of our Revolutionary Fathers, in a case which is a landmark of history. The parallel is important and complete. In 1765, the British Parliament, by a notorious statute, attempted to draw money from the Colonies through a stamp tax, while the determination of certain questions of forfeiture under the statute was delegated, not to the Courts of Common Law, but to Courts of Admiralty without a jury. The Stamp Act, now execrated by all lovers of Liberty, had this extent and no more. Its passage was the signal for a general flame of opposition and indignation throughout the Colonies. It was denounced as contrary to the British Constitution, on two principal grounds: first, as a usurpation by Parliament of powers not belonging to it, and an infraction of rights secured to the Colonies; and, secondly, as a denial of Trial by Jury in certain cases of property.
The public feeling was variously expressed. At Boston, on the day the Act was to take effect, the shops were closed, the bells of the churches tolled, and the flags of the ships hung at half-mast. At Portsmouth, in New Hampshire, the bells were tolled, and the friends of Liberty were summoned to hold themselves in readiness for her funeral. At New York, the obnoxious Act, headed "Folly of England and Ruin of America," was contemptuously hawked about the streets. Bodies of patriots were organized everywhere under the name of "Sons of Liberty." The merchants, inspired then by Liberty, resolved to import no more goods from England until the repeal of the Act. The orators also spoke. James Otis with fiery tongue appealed to Magna Charta.
Of all the States, Virginia—whose shield bears the image of Liberty trampling upon chains—first declared herself by solemn resolutions, which the timid thought "treasonable,"[181] but which soon found response. New York followed. Massachusetts came next, speaking by the pen of the inflexible Samuel Adams. In an Address from the Legislature to the Governor, the true grounds of opposition to the Stamp Act, coincident with the two radical objections to the Slave Act, are clearly set forth.
"You are pleased to say that the Stamp Act is an Act of Parliament, and as such ought to be observed. This House, Sir, has too great a reverence for the Supreme Legislature of the nation to question its just authority. It by no means appertains to us to presume to adjust the boundaries of the power of Parliament; but boundaries there undoubtedly are. We hope we may without offence put your Excellency in mind of that most grievous sentence of excommunication solemnly denounced by the Church in the name of the Sacred Trinity, in the presence of King Henry the Third and the estates of the realm, against all those who should make statutes, OR OBSERVE THEM, BEING MADE, contrary to the liberties of Magna Charta.... The Charter of this Province invests the General Assembly with the power of making laws for its internal government and taxation; and this Charter has never yet been forfeited. The Parliament has a right to make all laws within the limits of their own constitution.... The people complain that the Act invests a single judge of the Admiralty with a power to try and determine their property, in controversies arising from internal concerns, without a jury, contrary to the very expression of Magna Charta, that no freeman shall be amerced but by the oath of good and lawful men of the vicinage.... We deeply regret it that the Parliament has seen fit to pass such an act as the Stamp Act; we flatter ourselves that the hardships of it will shortly appear to them in such a point of light as shall induce them, in their wisdom, to repeal it; in the mean time we must beg your Excellency to excuse us from doing anything to assist in the execution of it."[182]
Thus in those days spoke Massachusetts. The parallel still proceeds. The unconstitutional Stamp Act was welcomed in the Colonies by the Tories of that day precisely as the unconstitutional Slave Act is welcomed by large and imperious numbers among us. Hutchinson, at that time Lieutenant-Governor and Chief-Justice of Massachusetts, wrote to Ministers in England: "The Stamp Act is received among us with as much decency as could be expected. It leaves no room for evasion, and will execute itself."[183] Like the Judges of our day, in charges to grand juries, he resolutely vindicated the Act, and admonished "the jurors and people" to obey.[184] Like Governors of our day, Bernard, in his speech to the Legislature of Massachusetts, demanded unreasoning submission. "I shall not," says this British Governor, "enter into any disquisition of the policy of the Act.... I have only to say that it is an Act of the Parliament of Great Britain; ... and I trust that the supremacy of that Parliament over all the members of their wide and diffused empire never was and never will be denied within these walls."[185] The military were against the people. A British major of artillery at New York exclaimed, in tones not unlike those now heard, "I will cram the stamps down their throats with the end of my sword!"[186] The elaborate answer of Massachusetts, a paper of historic grandeur, drawn by Samuel Adams, was pronounced "the ravings of a parcel of wild enthusiasts."[187]
Thus in those days spoke the partisans of the Stamp Act. But their weakness was soon manifest. In the face of an awakened community, where discussion has free scope, no men, though supported by office and wealth, can long maintain injustice. Earth, water, Nature they may subdue; but Truth they cannot subdue. Subtle and mighty against all efforts and devices, it fills every region of light with its majestic presence. The Stamp Act was discussed and understood. Its violation of constitutional rights was exposed. By resolutions of legislatures and of town meetings, by speeches and writings, by public assemblies and processions, the country was rallied in peaceful phalanx against the execution of the Act. To this great object, within the bounds of Law and the Constitution, were bent all the patriot energies of the land.
And here Boston took the lead. Her records at this time are full of proud memorials. In formal instructions to her representatives, adopted unanimously in Town Meeting at Faneuil Hall, "having been read several times, and put paragraph by paragraph," the following rule of conduct was prescribed.
"We therefore think it our indispensable duty, in justice to ourselves and posterity, as it is our undoubted privilege, in the most open and unreserved, but decent and respectful terms, to declare our greatest dissatisfaction with this law: and we think it incumbent upon you by no means to join in any public measures for countenancing and assisting in the execution of the same, but to use your best endeavors in the General Assembly to have the inherent, unalienable rights of the people of this Province asserted and vindicated, and left upon the public records, that posterity may never have reason to charge the present times with the guilt of tamely giving them away."[188]
Virginia responded to Boston. Many of her justices of the peace surrendered their commissions, rather than aid in the enforcement of the law, or be "instrumental in the destruction of their country's most essential rights and liberties."[189]
As the opposition deepened, there was a natural tendency to outbreak and violence. But this was carefully restrained. On one occasion, in Boston, it showed itself in the lawlessness of a mob. But the town, at a public meeting in Faneuil Hall, called without delay on the motion of the opponents of the Stamp Act, with James Otis as chairman, condemned the outrage. Eager in hostility to the execution of the Act, Boston cherished municipal order, and constantly discountenanced all tumult, violence, and illegal proceedings. Her equal devotion to these two objects drew the praises and congratulations of other towns. In reply, March 24, 1766, to an Address from the inhabitants of Plymouth, her own consciousness of duty done is thus expressed.
"If the inhabitants of this metropolis have taken the warrantable and legal measures to prevent that misfortune, of all others the most to be dreaded, the execution of the Stamp Act, and, as a necessary means of preventing it, have made any spirited applications for opening the custom-houses and courts of justice,—if at the same time they have bore their testimony against outrageous tumults and illegal proceedings, and given any example of the love of peace and good order, next to the consciousness of having done their duty is the satisfaction of meeting with the approbation of any of their fellow-countrymen."[190]
Learn now from the Diary of John Adams the results of this system.
"The year 1765 has been the most remarkable year of my life. That enormous engine, fabricated by the British Parliament, for battering down all the rights and liberties of America,—I mean the Stamp Act,—has raised and spread through the whole continent a spirit that will be recorded to our honor with all future generations. In every Colony, from Georgia to New Hampshire inclusively, the stamp distributors and inspectors have been compelled by the unconquerable rage of the people to renounce their offices. Such and so universal has been the resentment of the people, that every man who has dared to speak in favor of the stamps, or to soften the detestation in which they are held, how great soever his abilities and virtues had been esteemed before, or whatever his fortune, connections, and influence had been, has been seen to sink into universal contempt and ignominy."[191]
The Stamp Act became a dead letter. At the meeting of Parliament numerous petitions were presented, calling for its instant repeal. Franklin, at that time in England, while giving his famous testimony before the House of Commons, was asked whether he thought the people of America would submit to this Act, if "moderated." His brief, emphatic response was: "No, never, unless compelled by force of arms."[192] Chatham, weak with disease, yet mighty in eloquence, exclaimed in ever memorable words: "The gentleman tells us, America is obstinate, America is almost in open rebellion. Sir, I rejoice, that America has resisted. Three millions of people, so dead to all the feelings of liberty as voluntarily to submit to be slaves, would have been fit instruments to make slaves of the rest.... The Americans have been wronged; they have been driven to madness by injustice.... Upon the whole, I will beg leave to tell the House what is really my opinion. It is, that the Stamp Act be repealed, absolutely, totally, and immediately."[193] It was repealed. Within less than a year from its original passage, denounced and discredited, it was driven from the Statute Book. In the charnel-house of history, with unclean things of the Past, it now rots. Thither the Slave Act must follow.
Sir, regarding the Stamp Act candidly and cautiously, free from animosities of the time, it is impossible not to see, that, though gravely unconstitutional, it was at most an infringement of civil liberty only, not of personal liberty. There was an unjust tax of a few pence, with the chance of amercement by a single judge without a jury; but by no provision of this Act was the personal liberty of any man assailed. No freeman could be seized under it as a slave. Such an Act, though justly obnoxious to every lover of Constitutional Liberty, cannot be viewed with the feelings of repugnance enkindled by a statute which assails the personal liberty of every man, and under which any freeman may be seized as a slave. Sir, in placing the Stamp Act by the side of the Slave Act, I do injustice to that emanation of British tyranny. Both infringe important rights: one, of property; the other, the vital right of all, which is to other rights as soul to body,—the right of a man to himself. Both are condemned; but their relative condemnation must be measured by their relative characters. As Freedom is more than property, as Man is above the dollar that he earns, as heaven, to which we all aspire, is higher than earth, where every accumulation of wealth must ever remain, so are the rights assailed by an American Congress higher than those once assailed by the British Parliament. And just in this degree must history condemn the Slave Act more than the Stamp Act.
Sir, I might here stop. It is enough, in this place, and on this occasion, to show the unconstitutionality of this enactment. Your duty commences at once. All legislation hostile to the fundamental law of the land should be repealed without delay. But the argument is not yet exhausted. Even if this Act could claim any validity or apology under the Constitution, which it cannot, it lacks that essential support in the Public Conscience of the States, where it is to be enforced, which is the life of all law, and without which any law must become a dead letter.
The Senator from South Carolina (Mr. Butler) was right, when, at the beginning of the session, he pointedly said that a law which can be enforced only by the bayonet is no law.[194] Sir, it is idle to suppose that an Act of Congress becomes effective merely by compliance with the forms of legislation. Something more is necessary. The Act must be in harmony with the prevailing public sentiment of the community upon which it bears. I do not mean that the cordial support of every man or of every small locality is necessary; but I do mean that the public feelings, the public convictions, the public conscience, must not be touched, wounded, lacerated, by every endeavor to enforce it. With all these it must be so far in harmony, that, like the laws by which property, liberty, and life are guarded, it may be administered by the ordinary process of courts, without jeoparding the public peace or shocking good men. If this be true as a general rule, if the public support and sympathy be essential to the life of all law, this is especially the case in an enactment which concerns the important and sensitive rights of Personal Liberty. In conformity with this principle, the Legislature of Massachusetts, in 1850, by formal resolution, declared with singular unanimity:—
"We hold it to be the duty of Congress to pass such laws only in regard thereto as will be sustained by the public sentiment of the Free States, where such laws are to be enforced."[195]
The duty of consulting these sentiments was recognized by Washington. While President of the United States, towards the close of his administration, he sought to recover a slave who had fled to New Hampshire. His autograph letter to Mr. Whipple, the Collector at Portsmouth, dated at Philadelphia, 28th November, 1796, which I now hold in my hand, and which has never before seen the light, after describing the fugitive, and particularly expressing the desire of "her mistress," Mrs. Washington, for her return, employs the following decisive language:—
"I do not mean, however, by this request, that such violent measures should be used AS WOULD EXCITE A MOB OR RIOT, WHICH MIGHT BE THE CASE, IF SHE HAS ADHERENTS, OR EVEN UNEASY SENSATIONS IN THE MINDS OF WELL-DISPOSED CITIZENS. Rather than either of these should happen, I would forego her services altogether,—and the example, also, which is of infinite more importance.
"George Washington."
Mr. Whipple, in his reply, dated at Portsmouth, December 22, 1796, an autograph copy of which I have, recognizes the rule of Washington.
"I will now, Sir, agreeably to your desire, send her to Alexandria, if it be practicable without the consequences which you except,—that of exciting a riot or a mob, or creating uneasy sensations in the minds of well-disposed persons. The first cannot be calculated beforehand; it will be governed by the popular opinion of the moment, or the circumstances that may arise in the transaction. The latter may be sought into and judged of by conversing with such persons, without discovering the occasion. So far as I have had opportunity, I perceive that different sentiments are entertained on this subject."
The fugitive was never returned, but lived in freedom to a good old age, down to a very recent day, a monument of the just forbearance of him whom we aptly call Father of his Country. True, he sought her return. This we must regret, and find its apology. He was at the time a slaveholder. Often expressing himself with various degrees of force against Slavery, and promising his suffrage for its abolition, he did not see this wrong as he saw it at the close of life, in the illumination of another sphere. From this act of Washington, still swayed by the policy of the world, I appeal to Washington writing his will. From Washington on earth I appeal to Washington in heaven. Seek not by his name to justify any such effort. His death is above his life. His last testament cancels his authority as a slaveholder. However he may have appeared before man, he came into the presence of God only as liberator of his slaves. Grateful for this example, I am grateful also, that, while slaveholder, and seeking the return of a fugitive, he has left in permanent record a rule of conduct which, if adopted by his country, will make Slave-Hunting impossible. The chances of riot, or mob, or "even uneasy sensations in the minds of well-disposed citizens," must prevent any such pursuit.[196]
Sir, the existing Slave Act cannot be enforced without violating the precept of Washington. Not merely "uneasy sensations of well-disposed citizens," but rage, tumult, commotion, mob, riot, violence, death, gush from its fatal overflowing fountains:—
"Hoc fonte derivata clades
In patriam populumque fluxit."[197]
Not a case occurs without endangering the public peace. Workmen are brutally dragged from employments to which they are wedded by years of successful labor; husbands are ravished from wives, and parents from children. Everywhere there is disturbance,—at Detroit, Buffalo, Harrisburg, Syracuse, Philadelphia, New York, Boston. At Buffalo the fugitive was cruelly knocked by a log of wood against a red-hot stove, and his mock trial commenced while the blood still oozed from his wounded head. At Syracuse he was rescued by a sudden mob; so also at Boston. At Harrisburg the fugitive was shot; at Christiana the Slave-Hunter was shot. At New York unprecedented excitement, always with uncertain consequences, has attended every case. Again at Boston a fugitive, according to received report, was first seized under base pretext that he was criminal; arrested only after deadly struggle; guarded by officers acting in violation of the State laws; tried in a court-house girdled by chains, contrary to the Common Law; finally surrendered to Slavery by trampling on the criminal process of the State, under an escort in violation again of the laws of the State, while the pulpits trembled, and the whole people, not merely "uneasy," but swelling with ill-suppressed indignation, though, for the sake of order and tranquillity, without violence, witnessed the shameful catastrophe.
Oppression by an individual is detestable; but oppression by law is worse. Hard and inscrutable, when the law, to which the citizen naturally looks for protection, becomes itself a standing peril. As the sword takes the place of the shield, despair settles down like a cloud. Montesquieu painted this most cruel tyranny, when he said that the man is drowned by the very plank on which he thought to escape.[198] And Moses exposes a kindred harshness, when, in commandment to the Israelites, he mysteriously enjoins; "Thou shalt not seethe a kid in its mother's milk"[199] Alas! every sacrifice under the form of law is only a repetition of this forbidden offence. The victim is the innocent kid, and the law is its mother's milk.
With every attempt to administer the Slave Act, it constantly becomes more revolting, particularly in its influence on the agents it enlists. Pitch cannot be touched without defilement, and all who lend themselves to this work seem at once and unconsciously to lose the better part of man. The spirit of the law passes into them, as the devils entered the swine. Upstart commissioners, mere mushrooms of courts, vie and re-vie with each other. Now by indecent speed, now by harshness of manner, now by denial of evidence, now by crippling the defence, and now by open, glaring wrong, they make the odious Act yet more odious. Clemency, grace, and justice die in its presence. All this is observed by the world. Not a case occurs which does not harrow the souls of good men, bringing tears of sympathy to the eyes, and those other noble tears which "patriots shed o'er dying laws."
Sir, I shall speak frankly. If there be an exception to this feeling, it will be found chiefly with a peculiar class. It is a sorry fact, that the "mercantile interest," in unpardonable selfishness, twice in English history, frowned upon endeavors to suppress the atrocity of Algerine Slavery, that it sought to baffle Wilberforce's great effort for the abolition of the African slave-trade, and that, by a sordid compromise, at the formation of our Constitution, it exempted the same detested, Heaven-defying traffic from American judgment. And now representatives of this "interest," forgetful that Commerce is born of Freedom, join in hunting the Slave. But the great heart of the people recoils from this enactment. It palpitates for the fugitive, and rejoices in his escape. Sir, I am telling you facts. The literature of the age is all on his side. Songs, more potent than laws, are for him. Poets, with voices of melody, sing for Freedom. Who could tune for Slavery? They who make the permanent opinion of the country, who mould our youth, whose words, dropped into the soul, are the germs of character, supplicate for the Slave. And now, Sir, behold a new and heavenly ally. A woman, inspired by Christian genius, enters the lists, like another Joan of Arc, and with marvellous power sweeps the popular heart. Now melting to tears, and now inspiring to rage, her work everywhere touches the conscience, and makes the Slave-Hunter more hateful. In a brief period, nearly one hundred thousand copies of "Uncle Tom's Cabin" have been already circulated.[200] But this extraordinary and sudden success, surpassing all other instances in the records of literature, cannot be regarded as but the triumph of genius. Better far, it is the testimony of the people, by an unprecedented act, against the Fugitive Slave Bill.
These things I dwell upon as incentives and tokens of an existing public sentiment, rendering this Act practically inoperative, except as a tremendous engine of horror. Sir, the sentiment is just. Even in the lands of Slavery, the slave-trader is loathed as an ignoble character, from whom the countenance is turned away; and can the Slave-Hunter be more regarded, while pursuing his prey in a land of Freedom? In early Europe, in barbarous days, while Slavery prevailed, a Hunting Master—nachjagender Herr, as the Germans called him—was held in aversion. Nor was this all. The fugitive was welcomed in the cities, and protected against pursuit. Sometimes vengeance awaited the Hunter. Down to this day, at Revel, now a Russian city, a sword is proudly preserved with which a Hunting Baron was beheaded, who, in violation of the municipal rights of the place, seized a fugitive slave. Hostile to this Act as our public sentiment may be, it exhibits no similar trophy. The State laws of Massachusetts have been violated in the seizure of a fugitive slave; but no sword, like that of Revel, now hangs at Boston.
I have said, Sir, that this sentiment is just. And is it not? Every escape from Slavery necessarily and instinctively awakens the regard of all who love Freedom. The endeavor, though unsuccessful, reveals courage, manhood, character. No story is read with greater interest than that of our own Lafayette, when, aided by a gallant South Carolinian, in defiance of despotic Austrian ordinances, kindred to our Slave Act, he strove to escape from the bondage of Olmütz. Literature pauses with exultation over the struggles of Cervantes, the great Spaniard, while a slave in Algiers, to regain the liberty for which he declared to his companions "we ought to risk life itself, Slavery being the greatest evil that can fall to the lot of man."[201] Science, in all her manifold triumphs, throbs with pride and delight, that Arago, astronomer and philosopher,—devoted republican also,—was rescued from barbarous Slavery to become one of her greatest sons. Religion rejoices serenely, with joy unspeakable, in the final escape of Vincent de Paul. In the public square of Tunis, exposed to the inspection of traffickers in human flesh, this illustrious Frenchman was subjected to every vileness of treatment, compelled, like a horse, to open his mouth, to show his teeth, to trot, to run, to exhibit his strength in lifting burdens, and then, like a horse, legally sold in market overt. Passing from master to master, after protracted servitude, he achieved his freedom, and, regaining France, commenced that resplendent career of charity by which he is placed among the great names of Christendom. Princes and orators have lavished panegyric upon this fugitive slave, and, in homage to his extraordinary virtues, the Catholic Church has introduced him into the company of Saints.
Less by genius or eminent service than by suffering are the fugitive slaves of our country now commended. For them every sentiment of humanity is aroused.
"Who could refrain,
That had a heart to love, and in that heart
Courage to make his love known?"
Rude and ignorant they may be; but in their very efforts for Freedom they claim kindred with all that is noble in the Past. Romance has no stories of more thrilling interest. Classical antiquity has preserved no examples of adventure and trial more worthy of renown. They are among the heroes of our age. Among them are those whose names will be treasured in the annals of their race. By eloquent voice they have done much to make their wrongs known, and to secure the respect of the world. History will soon lend her avenging pen. Proscribed by you during life, they will proscribe you through all time. Sir, already judgment is beginning. A righteous public sentiment palsies your enactment.
And now, Sir, let us review the field over which we have passed. We have seen that any compromise, finally closing the discussion of Slavery under the Constitution, is tyrannical, absurd, and impotent; that, as Slavery can exist only by virtue of positive law, and as it has no such positive support in the Constitution, it cannot exist within the national jurisdiction; that the Constitution nowhere recognizes property in man, and that, according to its true interpretation, Freedom and not Slavery is national, while Slavery and not Freedom is sectional; that in this spirit the National Government was first organized under Washington, himself an Abolitionist, surrounded by Abolitionists, while the whole country, by its Church, its Colleges, its Literature, and all its best voices, was united against Slavery, and the national flag at that time nowhere within the National Territory covered a single slave; still further, that the National Government is a Government of delegated powers, and, as among these there is no power to support Slavery, this institution cannot be national, nor can Congress in any way legislate in its behalf; and, finally, that the establishment of this principle is the true way of peace and safety for the Republic. Considering next the provision for the surrender of fugitives from service, we have seen that it was not one of the original compromises of the Constitution; that it was introduced tardily and with hesitation, and adopted with little discussion, while then and for a long period thereafter it was regarded with comparative indifference; that the recent Slave Act, though many times unconstitutional, is especially so on two grounds,—first, as a usurpation by Congress of powers not granted by the Constitution, and an infraction of rights secured to the States, and, secondly, as the denial of Trial by Jury, in a question of Personal Liberty and a suit at Common Law; that its glaring unconstitutionally finds a prototype in the British Stamp Act, which our fathers refused to obey as unconstitutional on two parallel grounds,—first, because it was a usurpation by Parliament of powers not belonging to it under the British Constitution, and an infraction of rights belonging to the Colonies, and, secondly, because it was the denial of Trial by Jury in certain cases of property; that, as Liberty is far above property, so is the outrage perpetrated by the American Congress far above that perpetrated by the British Parliament; and, finally, that the Slave Act has not that support, in the public sentiment of the States where it is to be executed, which is the life of all law, and which prudence and the precept of Washington require.
Sir, thus far I have arrayed the objections to this Act, and the false interpretations out of which it has sprung. But I am asked what I offer as a substitute for the legislation which I denounce. Freely I answer. It is to be found in a correct appreciation of the provision of the Constitution under which this discussion occurs. Look at it in the double light of Reason and of Freedom, and we cannot mistake the exact extent of its requirements. Here is the provision:—
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
From the very language employed, it is obvious that this is merely a compact between the States, with a prohibition on the States, conferring no power on the Nation. In its natural signification it is a compact. According to examples of other countries, and principles of jurisprudence, it is a compact. Arrangements for extradition of fugitives have been customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. In mediæval Europe cities refused to recognize this obligation in favor of persons even under the same National Government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, the Supreme Council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory,[202] which is expressly declared to be a compact; and this Ordinance, finally drawn by Nathan Dane, was itself borrowed, in distinctive feature, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States.[203] Thus this provision is a compact in language, in nature, in its whole history; as we have already seen, it is a compact according to the intentions of our fathers and the genius of our institutions.
As a compact, its execution depends absolutely upon the States, without any intervention of the Nation. Each State, in the exercise of its own judgment, will determine for itself the precise extent of obligation assumed. As a compact in derogation of Freedom, it must be construed strictly in every respect, leaning always in favor of Freedom, and shunning any meaning, not clearly necessary, which takes away important personal rights; mindful that the parties to whom it is applicable are regarded as "persons," of course with all the rights of "persons," under the Constitution; especially mindful of the vigorous maxim of the Common Law, early announced by Fortescue, that "he is to be adjudged impious and cruel who does not favor Liberty"[204]; and also completely adopting, in letter and spirit, as becomes a just people, the rule of the great Commentator, that "the law is always ready to catch at anything in favor of Liberty."[205] With this key the true interpretation is natural and easy.
Briefly, the States are prohibited from any "law or regulation" by which any "person" escaped from "service or labor" may be discharged therefrom, and on establishment of the claim to such "service or labor" he is to be "delivered up." But the mode by which the claim shall be tried and determined is not specified. All this is obviously within the control of each State. It may be by virtue of express legislation; in which event, any Legislature, justly careful of Personal Liberty, would surround the fugitive with every shield of Law and Constitution. But here a fact pregnant with Freedom must be studiously observed. The name Slave—that litany of wrong and woe—does not appear in the clause. Here is no unambiguous phrase, incapable of a double sense,—no "positive" language, applicable only to slaves, and excluding all other classes,—no word of that absolute certainty in every particular which forbids any interpretation except that of Slavery, and makes it impossible "to catch at anything in favor of Liberty." Nothing of this kind is here. But, passing from this,—"impiously and cruelly" renouncing for the moment all leanings for Freedom,—refusing "to catch at anything in favor of Liberty,"—abandoning the cherished idea of the Fathers, that it was "wrong to admit in the Constitution the idea that there could be property in men,"—and, in the face of these commanding principles, assuming two things,—first, that, in the evasive language of this clause, the Convention, whatever may have been the aim of individual members, really intended fugitive slaves, which is sometimes questioned, and, secondly, that, if they so intended, the language employed can be judicially regarded as justly applicable to fugitive slaves, which is often and earnestly denied,—then the whole proceeding, without any express legislation, may be left to ancient and authentic forms of the Common Law, familiar to the framers of the Constitution, and ample for the occasion. If the fugitive be seized without process, he will be entitled at once to his writ de Homine Replegiando, while the master, resorting to process, may find his remedy in the writ de Nativo Habendo, each requiring trial by jury. If, from ignorance or lack of employment, these processes have slumbered in our country, still they belong to the great arsenal of the Common Law, and continue, like other ancient writs, tanquam gladius in vagina, ready to be employed at the first necessity. They belong to the safeguards of the citizen. But in any event, and in either alternative, the proceeding would be by "suit at Common Law," with Trial by Jury; and it would be the solemn duty of the court, according to all the forms and proper delays of the Common Law, to try the case on the evidence, strictly to apply all protecting rules of evidence, and especially to require stringent proof, by competent witnesses under cross-examination, that the person claimed was held to service, that his service was due to the claimant, that he had escaped from the State where such service was due, and also proof of the laws of the State under which he was held. Still further, to the Courts of each State must belong the determination of the question, to what class of persons, according to just rules of interpretation, the phrase "person held to service or labor" is strictly applicable.
Such is this much debated provision. The Slave States, at the formation of the Constitution, did not propose, as in cases of Naturalization and Bankruptcy, to empower the National Government to establish an uniform rule for the rendition of fugitives from service, throughout the United States; they did not ask the National Government to charge itself in any way with this service; they did not venture to offend the country, and particularly the Northern States, by any such assertion of hateful pretension. They were content, under the sanctions of compact, in leaving it to the public sentiment of the States. There, I insist, it must remain.
Mr. President, I have occupied much time; but the great subject still stretches before us. One other point yet remains, which I must not leave untouched, and which justly belongs to the close. The Slave Act violates the Constitution, and shocks the Public Conscience. With modesty, and yet with firmness, let me add, Sir, it offends against the Divine Law. No such enactment is entitled to support. As the throne of God is above every earthly throne, so are his laws and statutes above all the laws and statutes of man. To question these is to question God himself. But to assume that human laws are beyond question is to claim for their fallible authors infallibility. To assume that they are always in conformity with the laws of God is presumptuously and impiously to exalt man even to equality with God. Clearly, human laws are not always in such conformity; nor can they ever be beyond question from each individual. Where the conflict is open, as if Congress should command the perpetration of murder, the office of conscience as final arbiter is undisputed. But in every conflict the same queenly office is hers. By no earthly power can she be dethroned. Each person, after anxious examination, without haste, without passion, solemnly for himself must decide this great controversy. Any other rule attributes infallibility to human laws, places them beyond question, and degrades all men to an unthinking, passive obedience.
According to St. Augustine, an unjust law does not appear to be a law: Lex esse non videtur quæ justa non fuerit.[206] And the great Fathers of the Church, while adopting these words, declare openly that unjust laws are not binding. Sometimes they are called "iniquity," and not law; sometimes "violences," and not laws.[207] And here again the conscience of each person is final arbiter. But this lofty principle is not confined to the Church. Earlier than the Church, a sublime Heathen announced the same truth. After assailing indignantly that completest folly which would find the rule of justice in human institutions and laws, and then asking if the laws of tyrants are just simply because laws, Cicero declares, that, if edicts of popular assemblies, decrees of princes, and decisions of judges constitute right, then there may be a right to rob, a right to commit adultery, a right to set up forged wills; whereas he does not hesitate to say that pernicious and pestilent statutes can be no more entitled to the name of law than robber codes; and he concludes, in words as strong as those of St. Augustine, that an unjust law is null.[208] A master of philosophy in early Europe, of intellectual renown, the eloquent Abelard, in Latin verses addressed to his son, clearly expresses the universal injunction:—
"Jussa potestatis terrenæ discutienda:
Cœlestis tibi mox perficienda scias.
Si quis divinis jubeat contraria jussis,
Te contra Dominum pactio nulla trahat."[209]
The mandates of an earthly power are to be discussed; those of Heaven must at once be performed; nor should we suffer ourselves to be drawn by any compact into opposition to God. Such is the rule of morals. Such, also, by the lips of judges and sages, is the proud declaration of English law, whence our own is derived. In this conviction, patriots have braved unjust commands, and martyrs have died.
And now, Sir, the rule is commended to us. The good citizen, who sees before him the shivering fugitive, guilty of no crime, pursued, hunted down like a beast, while praying for Christian help and deliverance, and then reads the requirements of this Act, is filled with horror. Here is a despotic mandate "to aid and assist in the prompt and efficient execution of this law."[210] Again let me speak frankly. Not rashly would I set myself against any requirement of law. This grave responsibility I would not lightly assume. But here the path of duty is clear. By the Supreme Law, which commands me to do no injustice, by the comprehensive Christian Law of Brotherhood, by the Constitution, which I have sworn to support, I am bound to disobey this act. Never, in any capacity, can I render voluntary aid in its execution. Pains and penalties I will endure, but this great wrong I will not do. "Where I cannot obey actively, there I am willing to lie down and to suffer what they shall do unto me": such was the exclamation of him to whom we are indebted for the "Pilgrim's Progress," while in prison for disobedience to an earthly statute.[211] Better suffer injustice than do it. Better victim than instrument of wrong. Better even the poor slave returned to bondage than the wretched Commissioner.
There is, Sir, an incident of history which suggests a parallel, and affords a lesson of fidelity. Under the triumphant exertions of that Apostolic Jesuit, St. Francis Xavier, large numbers of Japanese, amounting to as many as two hundred thousand,—among them princes, generals, and the flower of the nobility,—were converted to Christianity. Afterwards, amidst the frenzy of civil war, religious persecution arose, and the penalty of death was denounced against all who refused to trample upon the effigy of the Redeemer. This was the Pagan law of a Pagan land. But the delighted historian records, that from the multitude of converts scarcely one was guilty of this apostasy. The law of man was set at nought. Imprisonment, torture, death, were preferred. Thus did this people refuse to trample on the painted image. Sir, multitudes among us will not be less steadfast in refusing to trample on the living image of their Redeemer.
Finally, Sir, for the sake of peace and tranquillity, cease to shock the Public Conscience; for the sake of the Constitution, cease to exercise a power nowhere granted, and which violates inviolable rights expressly secured. Leave this question where it was left by our fathers, at the formation of our National Government,—in the absolute control of the States, the appointed guardians of Personal Liberty. Repeal this enactment. Let its terrors no longer rage through the land. Mindful of the lowly whom it pursues, mindful of the good men perplexed by its requirements, in the name of Charity, in the name of the Constitution, repeal this enactment, totally and without delay. There is the example of Washington; follow it. There also are words of Oriental piety, most touching and full of warning, which speak to all mankind, and now especially to us: "Beware of the groans of wounded souls, since the inward sore will at length break out. Oppress not to the utmost a single heart; for a solitary sigh has power to overturn a whole world."