APPENDIX.
These Resolutions became the occasion of controversy, and occupied public attention. They have been considered the starting-point of Reconstruction, although the primary object on their introduction was to strike at Slavery. The principle here enunciated, that Slavery, being without support in the Constitution or in natural right, fell with the local governments on which it depended, seemed to Mr. Sumner impregnable, and he never ceased to regret that it was not authoritatively announced at an early day, believing that such a juridical truth adopted by the Government would have smoothed the way, while it hastened the great result. The essential difficulty proceeded from the indisposition to Emancipation; for here was only another form of the perpetual question, “Shall the slaves be set free?”
Towards the close of the war, Mr. Everett, in an eloquent speech at Faneuil Hall, gave his valuable authority in favor of this principle.
“I will add, that it is very doubtful whether any act of the Government of the United States was necessary to liberate the slaves in a State which is in rebellion. There is much reason for the opinion, that, by the simple act of levying war against the United States, the relation of Slavery was terminated, certainly so far as concerns the duty of the United States to recognize it or to refrain from interfering with it. Not being founded on the Law of Nature, and resting solely on positive local law, and that not of the United States, as soon as it becomes either the motive or pretext of an unjust war against the Union, an efficient instrument in the hands of the Rebels for carrying on the war, a source of military strength to the Rebellion and of danger to the Government at home and abroad, with the additional certainty, that, in any event but its abandonment, it will continue in all future time to work these mischiefs, who can suppose it is the duty of the United States to continue to recognize it? To maintain this would be a contradiction in terms.… No such absurdity can be admitted; and any citizen of the United States, from the President down, who should by any overt act recognize the duty of a slave to obey a Rebel master in a hostile operation, would himself be giving aid and comfort to the enemy.”[144]
Dr. Brownson’s judgment was the same way, as appears in a citation on a subsequent page.
Besides the enunciation of this juridical truth, which, frankly adopted, must have put an end to Slavery legally and constitutionally in the Rebel States, the Resolutions further asserted the jurisdiction of Congress over these States, and the duty to establish republican government therein,—in other words, the plenary power and duty of Reconstruction. Although these were formally denied, yet the power was practically recognized and the duty was followed, but only after injurious delay and the conflict of debate.
The Resolutions were especially criticized, in the Senate and out of it, for what was termed the doctrine of “State Suicide,” and “the lapse of States into Territories.” They were described as proposing to reduce States into Territories. Naturally, the sentiment of State Rights was aroused.
SENATORS ADVERSE.
Mr. Willey, of Virginia, saw in them a scheme of “unconditional, immediate, and universal Emancipation”; and he added:—
“These consequences, in my judgment, involve the lives of thousands of my fellow-citizens, and the happiness of all the loyal people of all the border slaveholding States.”
Then referring to the people of the South, he said:—
“Especially will they point to the sweeping resolutions of the great apostle of Abolition, the Senator from Massachusetts [Mr. Sumner], which by one dash of the pen deprive every Southern man of his slaves.”
Then came the familiar parallel between Mr. Sumner and Jefferson Davis.
“Sir, a few weeks ago we expelled a Senator, because, on the 1st of March last, he wrote a letter to Jefferson Davis, commending to his regard a friend who had a valuable fire-arm to sell, and who visited the South mainly for the purpose of selling it. This was deemed evidence of disloyalty sufficient to warrant his ejection from the Senate. But what do we now see? What, for instance, is the proposition of the distinguished Senator from Massachusetts [Mr. Sumner]? It is, by one fell swoop of his pen, to blot ten or twelve States out of the Union forever to remit them back to a Territorial condition, and thus to involve our muniments of right, the titles to our estates, our franchises and municipal privileges, in a kind of hotch-pot, begetting and superinducing an inevitable confusion as inexplicable and dark as original Chaos.”[145]
Mr. Fessenden, in reply to Mr. Willey, emphatically disowned Mr. Sumner.
“Why, Sir, I do not hesitate to say here most distinctly, for myself, that I dissent entirely from the conclusions of the honorable Senator from Massachusetts, as stated in his resolutions. I do not look upon the States of this Union as gone and destroyed.… It is enough to say, in this connection, that upon this particular point the opinions of the honorable Senator from Massachusetts are his own, for which he alone is responsible, and which he is undoubtedly well able to defend.”[146]
On the next day Mr. Sherman followed in the same vein,—vindicating the Republican party, and especially disowning Mr. Sumner, which in the course of his speech he did twice. The first time he said:—
“The Senator from Massachusetts [Mr. Sumner], as he has a perfect right to do, introduced a series of resolutions giving his idea about the effect of the war upon the political status of the States, and at once those resolutions are seized upon as the dogmas of the Republican party, and we are denounced for them, although candid men must know that they are but the emanation of a single individual, who has decided convictions on this subject, and who is far in advance of any political organization in this country.”
Then, at the close of his speech, after saying that “we ought to oppose all useless and unconstitutional measures of legislation,” he proceeded:—
“I, therefore, cannot help but say, that, while I respect the motives of the honorable Senator from Massachusetts, while I give him credit for consistency, ability, and a great deal of culture, and am always glad to hear him speak, yet I must confess, that, when I looked over his resolutions, they struck me with surprise and regret. They would revolutionize this Government. Sir, strike the States out of this system of Government, and your Government is lost and gone. I cannot conceive of the United States governing colonies and provinces containing millions upon millions of people, black and white. I do not think such a thing can exist. I do not believe it is in the power of Secession to bring us to such a state of things. I can draw no distinction between the resolutions of the Senator from Massachusetts and the doctrines that are proclaimed by Jefferson Davis.… The doctrine of the Senator from Massachusetts is substantially an acknowledgment of the right of secession, of the right to secede. He, however, puts the States in the condition of abject Territories, to be governed by Congress. Jefferson Davis puts it in the power of the people of the States to govern the States themselves. As to which is the most dangerous or obnoxious doctrine I leave every man to determine.”[147]
Not long afterwards, Mr. Dixon, of Connecticut, took up the same strain, characterizing the doctrine of the Resolutions as “fatal to our form of government, destructive of our Federal system, and utterly incompatible with a restoration of harmonious relations between the States in which rebellion now prevails and the United States”; and he condensed his judgment by calling the doctrine a “fatal heresy.”[148]
Mr. Cowan, of Pennsylvania, some time later, spoke in harmony with the others.
“Now everybody knows that the honorable Senator from Massachusetts [Mr. Sumner] has a scheme by which he proposes to turn all these States, in case they could be conquered, into Territories, that they shall be governed by the United States as Territories, and then, when their people come to their senses,—this is the language of the advocates of the scheme,—they are to be readmitted into the Union upon terms. Mr. President, I do not know anybody hardly who has not deprecated that as a most mischievous scheme to agitate just at present.”[149]
Still later, Mr. Doolittle, of Wisconsin, in an elaborate speech, discussed Mr. Sumner’s policy in the same spirit, saying that he had provided a way of disunion,—“which for brevity I will call, with no disrespect to my honorable friend from Massachusetts, the Sumner way for States to go out of the Union, namely, by Act of Congress.” And he attributed the same position to his colleague, Mr. Howe.
“What, in effect, do the Senator from Massachusetts and my colleague propose? To place outside of the Constitution, and to govern with unlimited power, eleven States and ten million people, nearly one third of all the States and people of the United States, without any representation.”[150]
Mr. Howe replied to Mr. Doolittle, and, after referring to a resolution introduced by himself, declaring that “local governments ought to be provisionally organized forthwith for the people in each of the districts named in the preamble hereto,”[151] being the Rebel States, paid the following tribute to Mr. Sumner.
“As to the matter of fact, whether this resolution is the Lincoln and Johnson theory or the Sumner theory, the Senator from Massachusetts has not yet, I regret to say, indorsed that resolution, nor anything that I said in support of it; and I suppose the Senator from Massachusetts will claim the right, which, under the Constitution, as I understand it, belongs to every Senator on this floor, to speak for himself. If it should hereafter happen to receive his indorsement, it will be very gratifying to me. If I should find that I had given utterance on this floor to one sentiment which is approved by the Senator from Massachusetts, it will be only a small compensation for the great number of living sentiments to which I have listened from the Senator from Massachusetts, and which are bound to live long after my colleague and myself shall have passed from this stage of existence.”[152]
Meanwhile, Mr. Sumner, acting upon the principles of his Resolutions, insisted upon colored suffrage in the Rebel States to be ordained by Congress, as will appear hereafter in these volumes. Senators who had originally opposed the power of Congress over these States now united in this requirement. Among those who still stood out was Mr. Doolittle, who, after alluding to President Lincoln’s policy of Reconstruction, said:—
“Neither Mr. Lincoln, nor any member of his Cabinet, nor more than two Senators, I believe, in this body, the Senator from Massachusetts [Mr. Sumner] and the Senator from Missouri [Mr. Gratz Brown], at that time advocated Reconstruction upon a basis including negro suffrage.”
And Mr. Doolittle then proclaimed that more than twenty Republican Senators, who had stood with him, “advocating Reconstruction upon the white basis,” now “go over to the side of the Senator from Massachusetts, and advocate his theory of Reconstruction upon the basis of negro suffrage and white disfranchisement.”[153]
Then came another speech by the same Senator, in which he describes Mr. Sumner as adding to his demands only to find them adopted by Senators who had begun by opposing him.
“My friend from Massachusetts ought to feel a sense of profound satisfaction to see the progress they have made. I mean no discourtesy, when I say the ideas advanced by him that night, rejected then by a majority of four to one, rule the Senate now. Not only have they educated, they have Sumnerized the Senate.”[154]
Mr. Hendricks, of Indiana, the Democratic leader of the Senate, differing widely from Mr. Sumner, in the debate on the Supplementary Reconstruction Bill, gave this testimony:—
“I said in the Senate, a year or two ago, that the course of things is this: the Senator from Massachusetts steps out boldly, declares his doctrine, and then he is approached, and finally he governs. Believing that he is in the right,—I concede that belief to him as a Senator,—his place in this body and before this country to-day is a very proud one. He was told somewhat sneeringly, two years ago, that among his party friends he stood alone; and to-day they all stand upon his position. This is a compliment and indorsement of sagacity and intelligence that but few men receive in the course of a public life.”[155]
THE PRESS.
From the Senate the question was transferred to the great arena where pamphlets, reviews, and newspapers were the disputants. Here the opposition in the Senate found frequent expression. The Resolutions by their positive character offered a full front, and they were openly attacked.
Public meetings and committees also made them the subject of discussion,—especially a great meeting at Cooper Institute, New York, and a meeting of the German Republican Committee in New York, where they were fully sustained.[156]
The North American Review,[157] in an elaborate article, under the title of “Constitutional Law,” afterwards published in a pamphlet with the author’s name[158] on the title-page, treated the Resolutions with a severity which may be judged by the concluding words.
“It is to be hoped that disloyalty will not become more general by reason of threats of conquest, or by propositions that the United States shall become administrator de bonis non of the seceding States. One description of treason against the United States consists ‘in adhering to their enemies, giving them aid and comfort.’ Mr. Conway[159] and Mr. Sumner have given the ‘aid and comfort.’ Had they sent in their adhesion at the same time, they would have done the Union much less mischief.”
Not content with this article, the learned author addressed the following letter to the Boston Journal.
“Unconstitutional Legislation.
“Dear Sir,—Will you permit me to say, that, the sooner the Republican party cuts itself loose from all unconstitutional projects (whether they relate to emancipation by proclamation, conquering States and holding them as Territories, confiscation without trial, or any other measure not warranted by the Constitution), the sooner it will begin to provide for its own salvation.
“Very truly yours,
“Joel Parker.
“Cambridge, May 5, 1862.”
On the other side, Dr. Brownson, the able and indefatigable Catholic writer, sustained Mr. Summer in a powerful article, entitled “State Rebellion, State Suicide.”[160] A few sentences will show its character.
“The slave-owners, by their rebellion, have unquestionably forfeited their right under the Federal Constitution to be protected in their slave property, or, as to that matter, in any other species of property. If Slavery be ever again recognized as legal, therefore, the responsibility will attach not to Slave States only, but to the whole people of the United States, and we of the Free States will become, clearly and decidedly, participes criminis.”[161]
“We hold with Mr. Sumner in his noble Resolutions, creditable alike to him as a statesman and a lawyer, that the State by rebellion commits suicide, and lapses as a civil and political entity. All laws, customs, or usages, depending for their vitality, force, or vigor on the State, are rendered null and void by its secession, and are to be treated as non avenues. Slavery exists in any country only by municipal law,—in no country by the jus gentium. In our political system it exists by the local law, or by the law or usage of a particular State, in distinction from a law or usage of the United States.”[162]
“The Rebellion, in a word, kills the whole State and everything dependent on it. Whether the State be revived and permitted to return to the Union depends entirely on the good pleasure of the Federal authority. It cannot be claimed as a right by the population on the territory of the defunct State. As they could not take the territory out of the Union, and as they, so long as they remain on it, are within the jurisdiction of the United States, the Federal Government has authority to govern them, and may govern them either as a Territory or as a conquered province.”[163]
“The two most important measures ever introduced into the American Congress are, first, the resolutions of Mr. Sumner in the Senate, declaring that a State by rebellion commits suicide, and, second, General Ashley’s bill in the House, from the Territorial Committee, providing for the government of the rebellious States as Territories.… Their adoption would save constitutional government, and give new guaranties of man’s capacity for freedom. But whether these measures be adopted or not, Mr. Sumner’s resolutions will serve as a platform on which will take their stand all in the country worthy of consideration for their political sagacity, their wise statesmanship, their disinterestedness, and their nobility of sentiment.”[164]
The newspapers were not behind the quarterlies in earnestness of difference; but citations from them will not add to the case already stated. An article in the Temps, an Imperialist organ at Paris, is interesting, as showing that the debate had crossed the ocean to France.
“The confidence of the nation possesses the Washington Cabinet, too often accessible to incertitude and discouragements, and its members seem about to rally to the system presented by Mr. Sumner. It is known that the Constitution gives to Congress the absolute power over what is called the Territories,—that is to say, the territorial portions not yet incorporated politically into the Union.… The practical consequence which Mr. Sumner draws from that can be divined. He proposes to consider the Rebel States as simple Territories, which necessarily after victory will return one after another to their vitality. Then, according to the manner in which the Washington Government and Congress shall pronounce definitively on this supreme question, can admittance into the Union be refused to States which do not abolish Slavery or regulate it in a sense favorable to Abolition.”[165]
CORRESPONDENCE.
The response by letters showed that Senatorial protest and newspaper criticism did not prevent the acceptance of the Resolutions by earnest, thoughtful people, anxious for decisive measures and a true preparation for the future. Here was a plan of Reconstruction without Slavery, and this was a wide-spread longing of hearts.
Hon. John Jay, afterwards Minister at Vienna, wrote from New York:—
“There is no question about the fact that Slavery in the Rebel States has ceased to exist, within the meaning and under the protection of the Constitution.
“I have thought somewhat on the matter, and have just completed an argument on it, which I proposed to include in my lecture before the Washington Association. The Southern States have ceased to be States of the Union; their soil has become national territory; and the slaves, in the eyes of the Constitution, are freemen. I wish your resolutions had been referred to some committee from whom we could have had a careful report in their favor, even though it were a minority report, to get the argument before the country.”
Charles T. Rodgers, President of the Young Men’s Republican Union, wrote from New York:—
“I have just read the preamble and resolutions offered by you in the Senate, in which you define the position and status of the revolted States, and of persons held to service under the laws thereof.
“I cannot refrain from expressing to you, personally, my pleasure at the fact that the true doctrine on this subject has been so clearly laid down. I am sure that your theory is the true one, and, in fact, the only one this Government can consistently follow, and the only one which seems to offer a plain path out of the maze of conflicting legal and constitutional points in which so many of our public men seem to have become entangled. The States, by seceding, have committed suicide. The slaves therein are de facto free. Stick to that, and you will come out all right.”
Hon. Charles A. Dana, the accomplished journalist, afterwards Assistant Secretary of War, wrote:—
“I fully appreciate the difficulty of settling the South after it is conquered. I don’t see how your plan can be avoided; bon gré, mal gré, it is what we all must come to.”
Park Benjamin, writer and poet, who had not formerly sympathized with Mr. Sumner politically, wrote from New York:—
“Your Territorial plan is the only right and just one, let the short-sighted geese hiss at it as they may.”
William Herries, journalist, wrote from New York:—
“It was my pleasure to-night to be present at the meeting of the German Republican Central Committee, and it was truly refreshing to witness the enthusiasm manifested in behalf of those lofty sentiments embraced in your Rebel Territory Bill. A Memorial is now in course of preparation for you on the subject.”
Hon. J. Y. Smith, of the Wisconsin Argus, wrote from Madison:—
“Early in the Rebellion I took the same view of the effect of Secession upon the Rebel States as is set forth in your Resolutions,—suggested it to our Wisconsin Senators, and wrote several articles in support of it, but could find very few public journals or public men to agree with me. When your resolutions on that subject appeared, I hailed them with joy, and have been exerting the little influence I have to instil the principle into the public mind. It is the true theory, and I wonder why any friend of the country can object to it. By their rebellion they have tumbled Slavery right into our bag, and if we shake it out, our life will go for its life.”
Thomas Garrett, a Quaker Abolitionist, wrote from Wilmington, Delaware:—
“I yesterday read the resolutions thou offeredst on the 11th of this month, and think the view thou hast taken is correct: that any vote of secession, or other act by which a State may undertake to put an end to the supremacy of the Constitution within its territory, is inoperative and void against the Constitution, and, when sustained by force, is practical abdication by the State of all rights under the Constitution; and every such State ought to be expunged and revert back into a Territory, and begin anew. I thought, six months since, that ere this Slavery would have been abolished by the War Power in all the seceded States, but at present I have very little hope of it. It seems to me incredible that the President and Cabinet should have so much more sympathy for the Rebels than they have for the loyal North.”
W. G. Snethen, lawyer, earnest against Slavery, wrote from Baltimore:—
“Your admirable resolutions respecting the status of the Rebel region, in which the Rebellion has killed Slavery, did my heart good, especially as indicating an Administration policy. I hope and pray that this doctrine speaks the mind of Lincoln, and that he will not flinch from its execution with the whole power of the Government.… Oh that Congress may adopt your set just as they came from your mighty pen, and then follow them up by legislation to give them active life!”
Edward P. Brownson communicated the opinion of his father, Orestes A. Brownson, in a letter from Elizabeth, New Jersey.
“I suppose my father has long since told you of his delight, when you introduced your Resolutions into the Senate. The joy with which he read them, and the attention he has given them, you will find very clearly expressed in the deep and careful study he has given the subject, evident in his article on State Rebellion, State Suicide; and he would much rather see them pass than win a victory in the field.”
Mrs. Maria Weston Chapman, the devoted Abolitionist, and among the earliest in the warfare, wrote from Boston:—
“Thanks a thousand-fold for the eleventh volume Pacific Railroad Survey. Your Resolutions are the great Pacific Road to Freedom,—made possible by the War Power though they be. I thank you a million-fold. To say so is no exaggeration, since all done in this behalf is done for all men and all time; and from the hour that Garrison struck the first blow, I have ever felt that the highest numbers were needed fitly to express human gratitude for services rendered to human nature.”
Jabez C. Woodman, an able lawyer, wrote from Portland, Maine:—
“You are not without some judicial authority. As much as ten months ago I heard Judge Ware[166] express the opinion that the Union troops would prevail. He then said he was in favor of coercion,—that he would subjugate the Rebel States, and, taking them at their word, he would not acknowledge them at once as States, but would govern them as conquered provinces, till they were fit to govern themselves.”
Elizur Wright, the early and constant Abolitionist, wrote from Boston:—
“Your Resolutions are the very thing. Had they been passed at the extra session, the war would have been over before now. They, or something to the same effect, must be passed before spring opens, or we are lost. Victories, without this law of the conquest, cannot save us. Quite the reverse. I beg you to press the resolutions with any amount of animosity or violence, and to know that all that is alive at the North will sustain you.
“There are thousands ready to see the present Government blotted out in blood and chaos rather than see the old curse reinstated. On us, not on our children! There has been fooling enough. Heaven bless you!”
Rev. George C. Beckwith, Secretary of the American Peace Society, wrote from Boston:—
“I had some difficulty for a time about your Territorial views; but I am coming fully to the conclusion that we must deal with all rebellion in some such way, before the South can be brought to any terms. We must have and keep them all in our grasp, until they prove themselves, by their good behavior, fit to come again into the Union.”
Charles Husband, an intelligent citizen, whose correspondence was always valuable, wrote from Taunton, Massachusetts:—
“I have to thank you for a copy of your Resolutions, and perhaps you will not deem me intrusive, if I wish you a hearty God-speed in the work you have undertaken,—a work the successful accomplishment of which is large enough to fill the measure of the highest ambition,—a work which will redeem the nation from its low estate, which asserts the nation’s sovereignty and self-existence, instead of ‘borrowing leave to be,’—which demands for the nation the paramount allegiance of every inhabitant of its territory, and sweeps away every institution which interposes itself between the nation and that allegiance,—which calls the Government from being the minister of oppression and the mere dispenser of patronage, to take upon itself the high purposes and duties for which ‘governments are instituted among men,’—which transmutes four millions of chattels into men.
“Allow me to suggest (although it has not, probably, escaped your notice), that the constitutional requirement, that every legislative, executive, and judicial officer in the States shall be sworn to the support of the Constitution of the United States, leaves the whole of the Rebel territory without a civil officer whom the Government can recognize, as every such pretended officer is just as much a usurper in the eye of the Constitution as Jefferson Davis himself.”
Henry Hoyt, publisher and bookseller, wrote from Boston:—
“I cannot sleep another night till I have thanked you from the bottom of my heart for your bill resolving Rebeldom into Territorial relations again. Of all measures ever introduced into Congress, nothing so completely meets the case of the present exigency of our country’s history, and nothing but this can make the confederacy of the whole land stand in safety a single year. We may continue to win battles, but, so long as the ruins of Slavery exist in the body politic, we shall stand on a volcano.”
But the most important commentary on the Resolutions is found in the measures of Reconstruction subsequently adopted, all of which stand on the power of Congress over the Rebel States, which they positively assert, including especially the power and duty to guaranty a republican form of government.
The Report of the Joint Committee on Reconstruction, drawn up by its Chairman, Mr. Fessenden, asserted that the Rebel States “having voluntarily renounced the right to representation, and disqualified themselves by crime from participating in the Government, the burden now rests upon them, before claiming to be reinstated in their former condition, to show that they are qualified to resume Federal relations.” It then laid down the rule:—
“Having, by this treasonable withdrawal from Congress, and by flagrant rebellion and war, forfeited all civil and political rights and privileges under the Federal Constitution, they can only be restored thereto by the permission and authority of that constitutional power against which they rebelled, and by which they were subdued.”[167]
Here was the power of Congress asserted,—but very tardily, and after original denial.
A calm observer has recently recorded his regret that the Resolutions were not adopted at once, and consistently acted upon. After saying that “the mover was overwhelmed with a tornado of denunciation and abuse,” and that the opposition “rendered any satisfactory reconstruction as nearly impracticable as can well be imagined,” the writer proceeds:—
“Time has fully vindicated the wisdom of Mr. Sumner’s course, and many of the Senators against the measure now admit their mistake,—while every man who comes here from the South says that their present miserable condition grows out of that great error.
“To the Democratic party the rejection of the Resolutions was a God-send. It made the continued existence of the Democratic party possible.”[168]
Such is the first chapter of Reconstruction.
TREASURY NOTES A LEGAL TENDER.
Speech in the Senate, on the Clause making Treasury Notes A Legal Tender, February 13, 1862.
February 13th, the Senate having under consideration a bill from the House of Representatives to authorize the issue of United States notes, and for the redemption or funding thereof, and for funding the floating debt of the United States, Mr. Collamer, of Vermont, moved to strike out the following words:—
“And such notes herein authorized, and the notes authorized by the Act of July 17, 1861, shall be receivable in payment of all public dues and demands of every description, and of all claims and demands against the United States of every kind whatsoever, except for interest upon bonds and notes, which shall be paid in coin, and shall also be lawful money and a legal tender in payment of all debts, public and private, within the United States, except interest as aforesaid.”
Mr. Collamer stated that some desired him to try the sense of the Senate on the question of private debts, but he preferred the above amendment, “that these notes shall not be tenderable upon any debts due by the Government or by individuals.” On this proposition he had already made an elaborate speech.
Mr. Fessenden also spoke elaborately upon the whole bill; but he characterized the legal tender clause as “the main question.” Here he said:—
“The question, then, is, Does the necessity exist?… If the necessity exists, I have no hesitation upon the subject, and shall have none. If there is nothing left for us to do but that, and that will effect the object, I am perfectly willing to do that.”
Mr. Sumner spoke last in the debate, and at least one Senator acknowledged that on the question of constitutional power he had been changed by this speech. The vote was then taken on the amendment, and resulted, yeas 17, nays 22.
So the motion to strike out the legal tender clause was rejected.
Mr. Doolittle moved an amendment so as to make the notes “a legal tender in payment of all public debts, and all private debts hereafter contracted within the United States,” which was rejected without a division.
Mr. King also moved a comprehensive amendment, which likewise struck out the legal tender clause; but it was rejected without a division.
The bill was then passed, yeas 30, nays 7.
MR. PRESIDENT,—I am sorry to ask the attention of the Senate at this late hour; but the importance of the question must be my apology.
In what I say I shall confine myself exclusively to a single feature of the present bill. Others may regret that the exigencies of the country were not promptly met by taxation,—or that at the beginning a different system was not organized by the Treasury, through which the national securities might have found a readier market,—or that the national credit was not sustained, at the period of bank suspension, by the resolute redemption of the Government securities in coin at any present sacrifice. But it is useless to discuss these questions. The time for such discussion has passed. The Tax Bill is not yet matured. The system adopted by the Treasury cannot be changed at once, if it were desirable. It is too late to organize the redemption of the national securities in coin on the daily application of holders. Meanwhile the exigencies of Government have become imperative. Money must be had.
And we are told that the credit of Government can be saved only by an act that seems like a forfeiture of credit. Paper promises are to be made a legal tender, like gold and silver; and this provision is to be ingrafted on the present bill authorizing the issue of Treasury notes to the amount of $150,000,000.
All confess that they vote for this proposition with reluctance, while to many it seems positively unconstitutional. Of course, if unconstitutional, there is an end of it, and all discussion of its character is superfluous. I am compelled by candor to declare that the doubts which perplex me do not proceed from the Constitution. If the question of constitutionality were in all respects novel, or, as lawyers phrase it, of first impression, then I might join with friends in their doubts. But it seems to me that the constitutional power of Congress to make Treasury notes a legal tender was settled as long ago as when it was settled that Congress might authorize the issue of Treasury notes; for from time immemorial the two have gone together, one as incident of the other, and, unless expressly severed, they naturally go together.
It is true that in the Constitution there are no words expressly conferring upon Congress the power to make Treasury notes a legal tender; but there are no words expressly conferring upon Congress the power to issue Treasury notes. If we consult the text, we find it as silent with regard to one as with regard to the other. There is no silence with regard to the States, which are expressly prohibited to “emit bills of credit,” or “make anything but gold and silver coin a tender in payment of debts.” Treasury notes are “bills of credit”; and this prohibition is imperative on the States. The inference is just, that this prohibition, expressly addressed to the States, was not intended to embrace Congress indirectly, as it obviously does not embrace it directly. The presence of the prohibition, however, shows that the subject was in the minds of the framers of the Constitution. If they failed to extend it still further, it is reasonable to conclude that they left the whole subject in all its bearings to the sound discretion of Congress, under the ample powers intrusted to it.
The stress so constantly put upon the prohibitions addressed to the States will justify me in introducing the opinion of Mr. Justice Story, in his Commentaries.
“It is manifest that all these prohibitory clauses, as to coining money, emitting bills of credit, and tendering anything but gold and silver in payment of debts, are founded upon the same general policy, and result from the same general considerations. The policy is, to provide a fixed and uniform value throughout the United States, by which commercial and other dealings of the citizens, as well as the moneyed transactions of the Government, might be regulated.”[169]
Plainly, no inference adverse to the powers of the National Government can be drawn from these prohibitory clauses; for, whatever may be these powers, there will be a fixed and uniform value throughout the United States.
As we proceed, the case becomes more clear. The States are prohibited to issue “bills of credit”; but there is no such prohibition on the National Government, which may do in the premises what the States cannot do. The failure to prohibit is equivalent to a recognition of the power. In other words, the National Government may issue “bills of credit,” which have been characterized by no less a person than Chief-Justice Marshall, in pronouncing the opinion of the Supreme Court, when he said: “To ‘emit bills of credit’ conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purposes as money, which paper is redeemable at a future day.” And then again the learned Chief Justice said: “The term has acquired an appropriate meaning; and ‘bills of credit’ signify a paper medium, intended to circulate between individuals, and between Government and individuals, for the ordinary purposes of society.”[170] This “money” and “paper medium” the States are prohibited from emitting; but there is no such prohibition on the National Government,—as there is not a single word to prohibit the National Government from determining what shall be a legal tender.
From the proceedings of the National Convention it appears that a clause in the first draught of the Constitution empowering Congress to “emit bills on the credit of the United States” was after discussion struck out. In the debate on this clause, Mr. Madison asked: “Will it not be sufficient to prohibit the making them a tender? This will remove the temptation to emit them with unjust views.” Mr. Mason said, “Though he had a mortal hatred to paper money, yet, as he could not foresee all emergencies, he was unwilling to tie the hands of the [National] Legislature. He observed, that the late war could not have been carried on, had such a prohibition existed.” Mr. Mercer was “opposed to a prohibition of it altogether. It will stamp suspicion on the Government to deny it a discretion on this point.” Mr. Butler remarked, that “paper was a legal tender in no country in Europe. He was urgent for disarming the Government of such a power.” Mr. Mason was “still averse to tying the hands of the Legislature altogether. If there was no example in Europe, as just remarked, it might be observed, on the other side, that there was none in which the Government was restrained on this head.” Mr. Gorham was “for striking out, without inserting any prohibition.” And this view finally prevailed.[171] Thus it appears that the suggestion was made to prohibit the making of bills a tender; but this suggestion was not acted on, and no such prohibition was ever moved. It is evident that the Convention was not prepared for a measure so positive. Less still was it prepared for a prohibition to emit bills. Such is the record. While all words expressly authorizing bills were struck out, nothing was introduced in restriction of the powers of Congress on this subject.
Thus was the whole question practically settled; and the usage of the Government has been in harmony with this settlement. Treasury notes were issued during the war of 1812, and in the monetary crisis of 1837, also during the war with Mexico, and constantly since, so that the power to issue them cannot be drawn into doubt. If there was any doubt originally, unquestioned practice, sanctioned by successive Congresses, has completely removed it. I do not stop to consider whether the power is derived primarily from the power “to borrow money,” or the power “to regulate commerce,” or from the unenumerated powers. It is sufficient that the power exists.
But I see not how to escape the conclusion, that, if Congress is empowered to issue Treasury notes, it may affix to these notes such character as shall seem safe and proper, declaring the conditions of their circulation and the dues for which they shall be received. Grant the first power, and the rest must follow. Careful you will be in the exercise of this power, but, if you choose to take the responsibility, I see no check in the Constitution.
The history of our country furnishes testimony, which has been gathered with extraordinary minuteness in an elaborate opinion by Mr. Justice Story.[172] I follow mainly his authority, when I set it forth.
It appears that the phrase “bills of credit” was familiarly used for bank-notes as early as 1683 in England, and also as early as 1714 in New England. But the first issue in America was in 1690, by the Colony of Massachusetts, and the occasion—identical with the present—was to pay soldiers, returning unexpectedly from an unsuccessful expedition against Canada. These notes were from two shillings to ten pounds, and were receivable for dues at the Treasury. Their form was as follows: “This indented bill of ten shillings, due from the Massachusetts Colony to the possessor, shall be in value equal to money, and shall be accordingly accepted by the Treasurer, and Receivers subordinate to him, in all public payments, and for any stock at any time in the Treasury.” Here followed the date, and the signatures of the Committee authorized to issue these notes.[173] Such was their depreciation, that these notes could not command money or commodities at money price, although the historian, Hutchinson, who has recorded these interesting facts, does not hesitate to say that they had better credit than King James’s leather money in Ireland only a short time before.[174] Being of small amount, they were soon absorbed in the payment of taxes. But this example did not stand alone.
The facility with which paper money is created renders it difficult to withstand the temptation, unless a Government is under the restraint of correct principles of finance, which at that early day were utterly unknown. An excuse for Massachusetts may be found in the general poverty at that time, the lack of precious metals, and the distance from marts of trade. In 1702 there was another issue of bills of credit, for £15,000, which, by a subsequent Act, in 1712, were made a tender for private debts. Under the continued cry of scarcity of money, bills of credit were again issued in 1716, to the amount of £150,000, to be lent, for a limited period, to inhabitants, whose lands were mortgaged as security. These were not made a tender; but they were receivable at the Treasury in discharge of taxes, and also of mortgage debts. Other bills were afterwards issued, so that paper money was common. The historian who has exposed this condition of things does not hesitate to liken this currency to pretended values stamped on leather or paper, and declared to be receivable in payment of taxes and in discharge of private debts. The natural consequence was a fatal depreciation, so that an ounce of silver, worth in 1702 six shillings and eight pence, in 1749 was equivalent to fifty shillings of this paper currency.[175] At the present moment I do not seek to exhibit the character of this currency, but simply the original association between bills of credit and the idea of a tender.
But Massachusetts was not alone. The neighboring colony of Rhode Island, as early as 1710, followed her example, and in 1720 made her bills a tender in payment of all debts, except certain debts specified. Connecticut issued bills at different periods, beginning with 1709, some of which were made a tender, and some not. New York began in the same year, substantially following Massachusetts; and her bills were generally made a tender. In 1722 Pennsylvania issued bills, secured on mortgage, and made a tender. In 1739 Delaware did likewise, making her bills a tender. So also did Maryland, in 1733, to the amount of £90,000; but other bills were issued by Maryland, in 1769, which were not made a tender.
The example of Virginia is more conspicuous, although not so early in time. The very term, “Treasury notes,” now used as the equivalent of “bills of credit,” first appears in her colonial legislation, when, in 1755, they were made a tender in payment of debts.[176] There were successive emissions in 1769, 1771, and 1773, which were not made a tender,—and then in 1778, and at other times afterwards, which were made a tender. That these “Treasury notes” were deemed “bills of credit” is demonstrated by the legislation of the State, especially by the Act of May, 1780, which, after reciting that the exigencies of the war require the further emission of paper money, authorizes new “Treasury notes,” and proceeds to punish with death any person who shall forge “any bill of credit or Treasury note to be issued by virtue of this Act.”[177]
I find that North Carolina, as early as 1748, sent forth bills of credit which were made a tender, and many subsequent emissions were authorized. South Carolina began in 1703; but these bills, bearing interest at twelve per cent, do not seem to have been made a tender. Others issued by this colony, at different times afterwards, were made a tender. In 1760 Georgia authorized bills of credit on interest, and secured by mortgage of the property of the receivers, which were made a tender.
The extensive employment of paper money in New England aroused the jealousy of the Imperial Parliament, which, by the Act of 25th June, 1751,[178] expressly forbade the issue of any “paper bills, or bills of credit,” except for certain specific purposes, or upon certain specified emergencies. The Act constantly speaks of these two as equivalent expressions, thus seeming to show that “bills of credit,” in their true meaning, were what is familiarly called “paper money,” with the incidents of such money. But the Act proceeds to limit these incidents by declaring expressly that “no paper currency, or bills of credit,” issued under it, shall be a tender in payment of any private debts or contracts whatsoever, with a proviso that nothing therein contained should make any bills then subsisting a tender. That Parliament should deem it necessary, by special enactment, to take from bills of credit the character of a tender, attests the customary association between these two ideas.
During the Revolutionary War, under the exigencies of that time, with a country without resources and a treasury without money, bills of credit, known as Continental money, were issued by Congress. But, while receivable in discharge of taxes and other public dues, they were not made a tender by Congress, although the States were recommended to make them such.
Mr. Collamer. And did make them so.
Mr. Sumner. At the adoption of the National Constitution, the people, to their wide-spread cost, had become familiar with bills of credit and their incidents, while all conversant with Colonial history must have known the part which bills of credit played for nearly a century, not only as a help to currency, but as a tender, constituting paper money. And yet, with all this ample knowledge,—present certainly to the framers of the Constitution, if not to the people,—no express words on this subject were introduced into the text of the Constitution, except with regard to the States. The conclusion from this silence, under all the circumstances, is strong, if not irresistible.
But the omission of the Constitution with regard to bills of credit was practically supplied by Congress, which has not hesitated to assume the existence of the power. If the Constitution failed to speak, Congress has not failed; and the exercise of this power cannot now be questioned, without unsettling our whole financial system. But we have seen that throughout our Colonial history the tender was a constant, though not inseparable, incident of the bill of credit,—that, indeed, it was so much part of the bill of credit that the Imperial Parliament positively interfered to separate the two, and, while sanctioning the bill of credit, forbade the tender. And now, if this historical review is properly apprehended, if it is not entirely out of place, it must conduct to the conclusion, that, whatever may be the present question of policy, the power to make Treasury notes a tender has precisely the same origin in the Constitution with the power to create Treasury notes. It is true that you may exercise one power and decline the other; but if you assume the power to issue bills of credit, I am at a loss to understand how you can deny the power to make them a tender. The two spring from the same fountain. You may refuse to exercise one or both; but you cannot insist upon one, under the Constitution, and reject the other.
Assuming the constitutionality of this proposition, or rather declining to admit the satisfactory force of the constitutional arguments against it, I am brought to a question which has, for me, more of difficulty and doubt: I mean the policy of exercising the power at this moment. It is not too much to say that this question concerns the national character, as well as the national welfare, while intelligent and patriotic men differ earnestly with regard to it. Decide it as we may, we cannot escape anxiety on the subject. Take which way we will, we cannot escape the just sense of responsibility. Seeking the truth only, and jealous of that good name which is to a Government one of its best possessions, I shall consider the question frankly; nor shall I disguise any of the difficulties which it presents, whether from principle or from experience. This is not the time for concealment, and I insist, that, if the power is exercised, its true character shall be understood. I invoke, also, the examples of history, to make us pause; but it will be my duty to show that there are other examples calculated to sustain the Government in the policy it now so urgently recommends.
If the Treasury notes of the United States were at this moment convertible into coin, there would be no occasion to declare them a tender; for they would be everywhere, at least in our own country, as good as coin. But the suspension of the banks was followed by suspension of the Treasury, and its notes are now inconvertible paper, which it is proposed to sustain artificially by declaring them a tender. If this proposition be adopted, the Treasury will be enabled to substitute bits of engraved paper for money. Of course, such a proposition, on its face, is obnoxious to objections that make upon me an impression not to be disguised.
Looking at the history of paper money, especially in our own country, we find no encouragement. Its evils were vividly portrayed by the “Federalist,”[179] and have been powerfully presented in this debate by the Senator from Vermont [Mr. Collamer]. Congress, during the Revolution, began, as early as 1775, with bills to the amount of $3,000,000, on their face declaring the bearer entitled to receive the sum specified in “Spanish milled dollars, or the value thereof in gold or silver,” according to a certain resolution of Congress. The bills were receivable for taxes, and the thirteen colonies were pledged for their redemption. Other emissions followed, and, as their credit began to fail, Congress went so far as to declare that whoever refused to receive this paper in payment should “be deemed, published, and treated as an enemy of his country.”[180] As the paper continued to depreciate, Congress became more violent in its support, and even ventured to recommend it as of peculiar value. “Let it be remembered,” said Congress, “that paper money is the only kind of money which cannot ‘make unto itself wings and fly away.’”[181] The sum-total of these bills at last reached upwards of three hundred millions, which in 1780 became so utterly worthless in the hands of their possessors that they ceased to circulate, and have ever since been treated only as curiosities, without positive value. No serious proposition for their redemption has ever been made.
The French assignats, amounting to the enormous sum-total of nine thousand million dollars,[182] issued during the fiery excitements of the Great Revolution, shared the fortunes of American Continental money, passing into the limbo of “things transitory and vain.” Perhaps there is not a country on the European continent, which, during the fearful wars that followed, did not encounter the same experience. I have heard it said that old soldiers in Denmark lighted their pipes with paper money, which had become to them only the record of a broken promise.
Power of all kinds is liable to abuse, and experience shows that the power to issue inconvertible paper is no exception to this prevailing law. The issue may be moderate at first, and sustained by plausible reasons, but it breaks soon into excess. Of course, actual value, or its equivalent, is the life of money, giving to it a circulating quality; and when money begins to be suspected, it loses its circulating quality. But inconvertible paper, even when made a tender, has no actual value, and circulates only because Government commands its circulation. It has no present worth beyond the engraving; therefore all ordinary checks to undue issue of money are wanting. Nothing exists to prevent excess and consequent depreciation; and this danger is verified by history. I refer to it now that I may not seem indifferent to any of the perplexities which surround us.
In some countries a legal tender is gold and silver; in others it is gold alone. In England, since 1816, gold, and not silver, has been the tender for sums of forty shillings and upwards; and since 1833 the notes of the Bank have been a tender for sums over five pounds, everywhere except at the Bank itself and its branches. But it is to be borne in mind that both these metals have positive value in the market equivalent to that of coin; so that coin is value itself. But convertible paper is not value itself; it is only the representative of value; while it is doubtful if inconvertible paper can be called the representative of anything in particular. These considerations are not decisive of the policy now proposed, but they justly incline us to a prudent hesitation.
If we are not deterred by the bad examples of history, or by the acknowledged danger of excess and consequent depreciation,—if we are willing to take the chance of seeing Treasury notes in the same list with Continental money and French assignats, and of having returned soldiers in old age light their pipes with the worthless paper,—if these suggestions are put aside as exaggerated or irrelevant, I ask you not to forget that a constant aim of good government is to secure the immediate convertibility of paper into coin. But, instead of securing such immediate convertibility, or taking any steps towards it, you will for the present renounce it.
Pardon my frankness, Sir, if I declare that the present proposition, when examined carefully, seems too much like bad faith. I say it seems: I would not speak too strongly. Is there not bad faith towards creditors, who are compelled to receive what is due in a depreciated currency? Is there not bad faith towards all abroad, who, putting trust in our integrity, national and personal, have sent their money to this country in gold or its equivalent? And just in proportion as this is so, you cannot doubt that we shall suffer alike in character and resources too; for what resource is greater to a nation or to an individual than a character for integrity? The present proposition must be followed soon by others,—even to the extent of $1,000,000,000. But where shall this vast amount be obtained, and at what cost, when it is seen that we have already undertaken to authorize inconvertible paper as a tender? Credit is volatile and sensitive, and will not yield to force. Do you propose the right way to win the delicate possession? It will not come to you from abroad, where money usually abounds. Will it salute you here at home? And is it good economy to obtain the amount you seek by a policy which will create a disturbing impediment to all your efforts for the larger amounts soon to be required? I put these questions without answering them. It is sufficient for me that I open the difficulties before us; and here I follow the Senator from Maine [Mr. Fessenden], Chairman of the Committee on Finance, who commenced this debate.
In courts of law, experts are summoned to testify on questions of science or art within their special knowledge. If, on this occasion, experts in finance or currency were summoned, I do not know that we should be much enlightened; for, according to my observation, there are such differences among them, and, as the Senator from Maine [Mr. Fessenden] has pleasantly told us, such differences even in the same person, one day and the day after, that it is difficult to place reliance in their counsels. Some tell us that making Treasury notes a tender will be most beneficent; others insist that it will be dishonorable and pernicious. On each side strong words are employed. Which shall we follow?
Crossing the sea, we find similar differences, not, of course, with regard to the present proposition, which is not yet known there, but with regard to the principles entering into this debate. In England the general subject has occupied much attention. As late as 1857 it was brought before a distinguished Parliamentary Committee, and their Report is remarkable for the testimony of numerous witnesses whose experience and knowledge give authority to their opinions. The Report is a financial monument. But among these witnesses are some who were little disturbed by an inconvertible currency, although the weight of testimony was the other way.
Nobody was more positive than Nathaniel Alexander, Esq., head of the firm of Alexander & Co., India merchants. His attention being called to the proper means against the effects of panic on the Bank of England, he proposed, as an assistance to the Bank, another currency, inconvertible, and a tender for Government dues, under Act of Parliament. From its inconvertible character, such a currency, he said, would not be reached by panic, and would therefore contribute to the security of the Bank.[183] This testimony seems to maintain the principle of the present proposition; and I quote it, as showing that the proposition is not entirely without practical authority.
John Twells, Esq., a London banker for upwards of fifty years, also testified in favor of an inconvertible note under sanction of Government, and a legal tender. Here are his answers to two questions.
“What do you conceive to be the advantage of an inconvertible note of that kind over a convertible note payable to bearer on demand?—It would prevent a drain of bullion, when it is required for foreign trade; and it would give us, what is so very essential, a domestic currency which is not influenced by any foreign transactions whatever. If France or America wants a quantity of gold, it ought not to interfere with our domestic currency. Our merchants and all our trade surely should not suffer because America wants gold.
“Do you think that that currency would run the risk of ever being depreciated in value,—that is to say, that inconvertible five pound notes would not exchange for five sovereigns?—I do not know, as compared with sovereigns; that, I think, is of no consequence in the world. We want it for our internal commerce, and we want it to pay Government their taxes.”[184]
Two other questions and answers may be given.
“You have been asked about the French assignats. Is not the difference between the currency which you recommend and the assignats just this, that the Government are bound to take back whatever they issue?—Precisely; and that makes all the difference.
“And, with the French assignats, they refused to take back what they had issued?—Yes. A corrupt Government may commit such an excess as they did in France, where the amount of their assignats was, if I remember right, about £300,000,000 sterling. They could not receive them back; they could not get their taxation, on account of the revolution which was going on; therefore the assignats fell to nothing.”[185]
Another witness was Mr. Edward Capps, who described himself as engaged in the surveying and building trade for thirty years, so that his attention had been directed to the influence of credit on the manner in which buildings are erected in London. He, too, testified in favor of inconvertible paper. Here are some of his answers.
“Would you recommend the issue of an inconvertible paper currency, with the view of remedying the evils which you describe?—I was present and heard the examination of Mr. Twells, and he was mentioning a project, by which he thought, that, instead of the £14,000,000 of paper which the Bank issues upon securities, you might go to the extent of £20,000,000 of an inconvertible paper. I think I understood the proposition rightly, as being to that effect. Though it is not exactly the proposition which I should make, yet I cannot see any objection to that proposition myself.”[186]
“Do you believe that the paper which you recommend would be, on the average, of the same value as the present bank-note, which is convertible into gold?—I think that very shortly it would be of a higher value than our present standard. If any person had to be paid £10,000 fifteen years hence, and had the option whether it should be paid in that way or in the standard of gold, I think he would exercise a wise discretion in choosing the paper.”[187]
“You are not in favor of what is called inconvertible paper, in the sense of worthless paper, are you?—Not at all.
“How do you distinguish between your paper and the rags which have in other cases been issued?—Unless I know the principle, I cannot say.
“Take the French assignats.—The French assignats were issued upon no principle at all, because no provision was made for their redemption.”[188]
Against these witnesses was the testimony of a person perhaps the highest living authority on this question. I refer to Lord Overstone, known before his elevation to the peerage as Mr. Jones Loyd, the eminent banker, whose life makes him practically acquainted with this subject, while his liberal studies and various experience add to the solidity of his judgment. His testimony on this occasion, extending over almost three days, occupies nearly one hundred folio pages. Writers on finance have quoted it ever since, and practical men have accepted it as a guide. In reply to questions by the Committee, he declared himself strongly opposed to the issue of Government notes not payable in specie on demand. In his opinion “they would generate a state of utter confusion which could not be tolerated for three months.”[189] Then again:—
“It is quite clear that there would be a discount upon these notes in the first place; they would not answer the purpose of a circulating medium; it would throw everything into confusion in the very first stage of the process: that would be the first difficulty.”[190]
Here are his answers to other questions.
“Your Lordship was asked, on the last day, whether it would not be possible in a great degree to mitigate such difficulties as I have endeavored to portray, by having two sorts of notes, one of them payable in bullion, but the other, if I may use the expression, a sort of I O U note between the Government and the public; whether, inasmuch as the Government owes £6,000,000 or £7,000,000 every quarter, in the shape of dividends or expenses, and the country owes £6,000,000 or £7,000,000 of taxes, it would not be possible to arrange that there should be two sorts of currency afloat,—one the common banking note, payable in bullion, and applicable for all general purposes, and the other a note applicable in the more limited sense?—Our affairs would then go on very much in the way that a man would walk with one of his legs six inches shorter than the other. One set of notes would circulate at a depreciation, compared with the other set of notes; hence great inconvenience and confusion would arise.”[191]
“Do you believe, that, if any person had notes which insured to him the payment of all the Government demands upon himself, though he had no demands upon him directly, he would not find numbers of persons who would exchange those notes for him at a premium or a discount?—Then you would have a certain proportion of the monetary system of the country circulating at a discount. I cannot conceive a greater state of monetary disorganization than that.”[192]
But the testimony of Lord Overstone, strong as it was, against an inconvertible currency, still admitted a possible occasion for departure from it; and here his testimony bears directly on the pending proposition. Alluding to the well-known suspension of specie payments by the Bank of England in 1797, he says:—
“I am bound to say that with regard to that period of 1797 there are circumstances which may make it doubtful whether the Suspension Act was not a justifiable measure. The pressure in 1797 was undoubtedly, to a considerable extent, connected with political alarm, with the fear of foreign invasion, causing an internal demand for the exchange of notes into coin. Under such circumstances, there is no measure founded upon principle which can pretend to afford an adequate protection. If, for instance, at this moment, this country were suddenly exposed to the calamity of a very large foreign force occupying its soil, or if it were exposed to the calamity of a very formidable and serious civil insurrection, no doubt a state of panic alarm with regard to the paper money might arise, against which no provisions of the Act of 1844, nor any provisions founded upon principle, could possibly afford an adequate protection. But from that view of the subject, again, there is an inference to be drawn of a very instructive and warning character, namely,—to make this Committee very cautious how they extend the issues upon securities. The only protection against such contingencies is the existence of a large amount of coin, or of bullion, in the country; and therefore, when we are looking to contingencies of that nature, we may very properly pause at the questionable recommendation of increasing our issues upon securities, which is, in other words, diminishing our issues upon bullion.”[193]
If this authoritative testimony be accepted in favor of a constant specie currency, it is unquestionably important as recognizing grounds of exception,—as, according to the language of the witness, if the country were “suddenly exposed to the calamity of a very large foreign force occupying its soil, or to the calamity of a very formidable and serious civil insurrection.” In these exceptions there is matter for much reflection. Strong as we may be against any questionable currency, we must not be insensible to a possible limitation even of this just principle. In short, we must be content with the best we can command. And here history affords valuable illustrations in conformity with this testimony.
In 1745, the alarm occasioned by the advance of the Highlanders, under the Pretender, as far as Derby, led to a run upon the Bank of England; and in order to gain time, the directors, while continuing to pay in specie, adopted the device of paying in shillings and sixpences. But, next to the retreat of the enemy, their best relief was found in a resolution by the merchants and traders of the city, declaring their willingness to receive bank-notes in payment of any sum due, and pledging their utmost endeavors to make all payments in these bank-notes. This proceeding, it is perceived, was prompted by the pressure of civil disturbance. But the most authentic case is that of 1797, when the Bank, under pressure of political events, was prohibited, by Order in Council, issued on Sunday, the 26th of February, from paying their notes in cash, until the sense of Parliament should be taken on the subject. At the meeting of Parliament, after much discussion, it was agreed to continue the suspension till six months after the signature of a definitive treaty of peace, thus positively recognizing the existence of war as a reason for this departure from principle. A recent English writer vindicates this act as follows.
“Much difference of opinion has existed with respect to the policy of the restriction in 1797; but, considering the peculiar circumstances under which it took place, its expediency seems abundantly obvious. The run did not originate in any over-issue of bank paper, but grew entirely out of political causes. So long as the alarms of invasion continued, it was clear that no bank paper immediately convertible into gold would remain in circulation. And as the Bank, though possessed of ample funds, was without the means of instantly retiring her notes, she might, but for the interference of Government, have been obliged to stop payments,—an event, which, had it occurred, might have produced consequences fatal to the public interests. The error of the Government did not consist in their coming to the assistance of the Bank, but in continuing the restriction after the alarm of invasion had ceased, and there was nothing to hinder the Bank from safely reverting to specie payments.”[194]
Unhappily, the definitive treaty of peace, on which the restoration of specie payments depended, was not consummated till 1815, so that throughout this long period there was an inconvertible currency, which even the sanction of Parliament did not save, in 1814, from a discount of twenty-five per cent. But peace did not bring specie at once. The routine of paper had become too strongly fixed, and it was only through the remarkable efforts of Sir Robert Peel, in 1819, that an Act of Parliament was passed requiring the payment of specie at the Bank in 1823. Such is the practical testimony of British experience.
The experience of France is similar. I do not now refer to the old assignats, but to a modern instance. Beyond question, the Bank of France is conducted with caution and skill; but no caution and skill are adequate to counteract the influence of a sudden revolution, especially like that of 1848, when the Republic was declared. The Bank made large advances to the Provisional Government. This obligation, combined with distrust universally prevalent, occasioned so severe a drain of gold, that, to prevent the total exhaustion of its vaults, the Bank was authorized by Government decree of 16th March, 1848,—just three weeks after the Revolution,—to suspend specie payments, while its notes were at the same time made a legal tender. To prevent abuse, possible in such a condition of things, a maximum of issues was fixed at three hundred and fifty million francs. Such precautions were proper; but the fact of the authorized suspension remains an example of history. The prompt return to the true system is not without encouragement.
If these instances are entitled to consideration, they seem to show, that, according to the experience of other countries, Government may be compelled at times to relax the rigor of its requirements with regard to convertible paper. But they do not fix the limitation to the exercise of this extraordinary discretion. That the discretion exists is important in the present debate.
It is a discretion kindred to that under which the Habeas Corpus is suspended, so that citizens are arrested without the forms of law,—kindred to that under which an extensive territory is declared to be in a condition of insurrection, so that all business with its inhabitants is suspended,—kindred to that which unquestionably exists, to obtain soldiers, if necessary, by draft or conscription instead of the free offering of volunteers,—kindred to that under which private property is taken for public uses,—and kindred, also, to that undoubted discretion which sanctions the completest exercise of the transcendent right of self-defence.
But, while recognizing the existence of the discretion in the last resort, under the law of necessity, the question still remains if this necessity actually exists. And now, as I close, I shall not cease to be frank. Is it necessary to incur all the unquestionable evils of inconvertible paper, forced into circulation by Act of Congress,—to suffer the stain upon our national faith, to bear the stigma of a seeming repudiation, to lose for the present that credit which in itself is a treasury, and to teach debtors everywhere that contracts may be varied at the will of the stronger? Surely there is much in these inquiries to make us pause. If our country were poor or feeble, without population and without resources, if it were already drained by a long war, if the enemy had succeeded in depriving us of the means of livelihood, then we should not even pause. But our country is rich and powerful, with a numerous population, busy, honest, and determined, abounding in unparalleled resources of all kinds, agricultural, mineral, industrial, and commercial; it is yet undrained by the war in which we are engaged, nor has the enemy succeeded in depriving us of any means of livelihood. It is hard, very hard, to think that such a country, so powerful, so rich, and so beloved, should be compelled to adopt a policy of even questionable propriety.
If I mention these things, if I make these inquiries, it is because of the unfeigned solicitude which I feel with regard to this measure, and not with the view of arguing against the exercise of a constitutional power, when, in the opinion of the Government to which I give my confidence, the necessity for its exercise has arrived. Surely we must all be against paper money, we must all insist upon maintaining the integrity of the Government, and we must all set our faces against any proposition like the present, except as a temporary expedient, rendered imperative by the exigency of the hour. If it has my vote, it will be only because I am unwilling to refuse the Government especially charged with this responsibility that confidence which is hardly less important to the public interests than the money itself. Others may doubt if the exigency is sufficiently imperative; but the Secretary of the Treasury, whose duty it is to understand the occasion, does not doubt. In his opinion the war requires this sacrifice. Uncontrollable passions are let loose to overturn the tranquil conditions of peace. Meanwhile your soldiers in the field must be paid and fed. There can be no failure or postponement. A remedy is proposed which at another moment you would reject. Whatever the national resources, they are not now within reach, except by summary process. Reluctantly, painfully, I consent that the process shall issue.
And yet I cannot give such a vote without warning the Government against the dangers from such an experiment. The medicine of the Constitution must not become its daily bread. Nor can I disguise the conviction that better than any device of legal tender will be vigorous, earnest efforts for the suppression of the Rebellion, and the establishment of the Constitution in its true principles over the territory which the Rebellion has usurped.
LOYALTY A QUALIFICATION REQUIRED IN A SENATOR.
Speeches in the Senate, February 18 and 26, 1862.
January 6, 1862, the credentials of Hon. Benjamin Stark as Senator of Oregon were presented, when Mr. Fessenden, of Maine, moved that the oath be not administered at present, and that the credentials, together with certain papers which he offered, be referred to the Committee on the Judiciary. These papers, according to him, stated that Mr. Stark was understood by everybody in his vicinity to be an open and avowed supporter of Secession,—that he had openly defended the course of the South in seceding, and given utterance to sentiments totally at war with the institutions and the preservation of our country, such as approving the attack on Fort Sumter, making declarations to the effect, that, in the event of civil war, which, in fact, had already commenced, he would sell his property in Oregon and go South and join the Rebels,—that the Rebels were right,—that the Davis Government was, in fact, the only Government left,—that there was, in fact, no Government of the Union at all. Mr. Fessenden added, that numerous declarations of this kind were sworn to by persons certified and proved to his satisfaction to be perfectly reliable. In the course of the debate, Mr. Fessenden further remarked: “Now, Sir, I do not hesitate to say, that, if a part only of what is stated in these papers is true, I presume the Senator from Indiana [Mr. Bright] himself would vote upon the instant to expel this gentleman from the body, if he had taken the oath.”[195]
The motion of Mr. Fessenden was opposed by Mr. Bayard, of Delaware, and Mr. Bright, of Indiana, the latter objecting especially that the motion was without precedent. Here Mr. Sumner spoke briefly, presenting the point on which he subsequently enlarged.
I desire, Mr. President, to make one single remark. It is said that the proposition before the Senate is without precedent. New occasions teach new duties; precedents are made when the occasion requires. Never before has any person appeared to take a seat in this body whose previous conduct and declarations, as disclosed to the Senate, gave reasonable ground to distrust his loyalty. That case, Sir, is without precedent. It behooves the Senate to make a precedent in such an unprecedented case. At this very moment we are engaged in considering if certain Senators shall not be expelled for disloyalty; and it seems to me we shall do our duty poorly, if we receive a new comer with regard to whose loyalty there is reasonable suspicion.
January 10, the credentials of Mr. Stark and the accompanying motion were taken up for consideration again, when Mr. Bayard made an elaborate speech against the motion. Mr. Sumner replied in remarks which will be found in the Congressional Globe,[196] adducing the case of Philip Barton Key, a sitting member from Maryland, against whom it was alleged, that he “either now was or had been a British pensioner,” and that “an inquiry ought to be had in this matter, as, were it true, it would certainly be a disqualification.”[197] After further debate, the motion of Mr. Fessenden prevailed, and the credentials, with the papers, were referred to the Committee.
February 7th, Mr. Harris, of New York, reported from the Committee, that, “without expressing any opinion as to the effect of the papers before them upon any subsequent proceeding in the case,” Mr. Stark was “entitled to take the constitutional oath of office.” Mr. Trumbull, Chairman of the Committee, dissented from the report, thinking it “the duty of the Committee to pass upon the testimony before it in regard to the loyalty of the Senator from Oregon.”[198]
February 18th, the Senate resumed the consideration of this case, when Mr. Harris spoke in favor of the report, and Mr. Hale, of New Hampshire, against it. The latter moved that the report be recommitted, with instructions to inquire whether the evidence so far impeached Mr. Stark’s loyalty as to disqualify him from holding a seat in the Senate. This motion presented the very point raised by Mr. Sumner at the beginning, and he spoke upon it as follows.
MR. PRESIDENT,—Over each House of Congress, while in session, floats the flag of the Union. So long as that flag ripples above our end of the Capitol, the passing stranger knows that the Senate is engaged in loyal service to the Republic. In no other country is the national flag thus employed; and I remember to have heard a distinguished artist[199]—who, unhappily, no longer lives except in his works, some of which are near us—remark that this custom was to him the most original and picturesque feature of Washington. The national flag, symbolizing the labors of Congress, seemed to have a double beauty, reminding him not only of country, but also of the patriotic service in which those the people trusted were then engaged.
The Senate is now in session, performing its allotted duties, and the national flag is over it. I need not enlarge on these duties, legislative, diplomatic, and executive. They are present to your minds. Suffice it to say, that not a law can be passed, not a treaty can be ratified, not a nomination to office can be confirmed, without the action of the Senate. And now you are to determine the plain question, if this body, with these exalted, various, and most confidential trusts, and actually sitting beneath the flag of the Union, is so utterly powerless and abject, that, before admitting a person to participation in these trusts, it can make no inquiry with regard to his loyalty, and cannot even consider evidence tending to show that he is false to the flag now waving over us. Sir, if this be so, if the Senate is really in this condition of imbecility, if its doors must necessarily swing open to any traitor, even, presenting himself with a certificate in his pocket, let the flag drop, and no longer symbolize the loyal service in which we are engaged. The Report of the Committee, expressed in simple English, without circumlocution or equivocation, is, “Free admission to traitors here, and no questions asked.” In other words, the claimant of a seat in the Senate can enter and take it without question with regard to loyalty. He can freely participate in these most important trusts, with the flag of the Union waving over him, and nobody shall ask in advance whether he is true to that flag.
But it is argued by the Senator of New York [Mr. Harris], that the Constitution having provided for the expulsion of a Senator by a vote of two thirds, there can be no inquiry on the threshold, except with regard to the qualifications of age, citizenship, and inhabitancy of the State whose certificate he bears. If this be true, then open, flaunting treason is not a disqualification, and the traitor, if allowed to go at large, may present his certificate and proceed to occupy a seat among us. A proposition is sometimes answered simply by stating it; and it seems to me that this is done in the present case. The Constitution was the work of wise and practical men, and they were not guilty of the absurdity which such an interpretation attributes to them. They did not announce that a disloyal man, or, it may be, a traitor, may enter this Chamber without opposition, and then intrench himself securely behind the provision requiring a vote of two thirds for his expulsion; they did not declare that the mere certificate of a Senator is an all-sufficient passport to shield a hateful crime itself from every inquiry; nor did they insist that disloyalty in this high place is to be treated so tenderly as not even to be touched, until, perhaps, it is too late. This whole argument, that the claimant must be admitted to the Senate and then judged afterwards, is more generous to the claimant than just to the Senate; it is more considerate of personal pretensions than of public interests. To admit a claimant charged with disloyalty, in the hope of expelling him afterwards, is a voluntary abandonment of the right of self-defence, which belongs to the Senate as much as to any individual. The irrational character of such abandonment is aptly pictured in a Parliamentary speech reproduced in curious verses, more expressive than poetical, and once quoted by Mr. Webster:—
“I hear a lion in the lobby roar:
Say, Mr. Speaker, shall we shut the door,
And keep him there? or shall we let him in,
To try if we can turn him out again?”[200]
But the Senate is asked to do this very thing. Instead of shutting the door and keeping disloyalty out, we are asked to let it in and see if we can get it out again.
If we look closely at the Constitution, we cannot hesitate. It is assumed by the Committee that there are but three qualifications for a Senator, and these words are quoted:—
“No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.”
According to these words, the three qualifications are (1) age, (2) citizenship, and (3) inhabitancy of the State he assumes to represent. These qualifications are not questioned, because they are grouped in a special clause of the Constitution; and every applicant, on presenting himself here, is subjected at once to these tests. But it is a mistake to suppose that these are the only qualifications imposed. There is another, mentioned in a later part of the Constitution, more important than either of the others; so that, though last in place, it is first in consequence. It is loyalty, which I affirm is made a qualification under the Constitution; and we have already seen, that, even if the organic law were silent, it is so essential to the fitness of a Senator for his trusts, that the Senate, in the exercise of its discretion, ought to require it. But the language of the Constitution leaves no room for doubt.
The words establishing loyalty as a qualification are as follows:—
“The Senators and Representatives before mentioned … shall be bound by oath or affirmation to support this Constitution.”[201]
These words are explicit in requiring the oath to support the Constitution. And the first statute of the First Congress, approved June 1, 1789, and standing at the head of our statute-book, provides for the administration of the oath as follows:—
“The oath or affirmation required by the sixth article of the Constitution of the United States shall be administered in the form following, to wit: ‘I, A. B., do solemnly swear, or affirm, (as the case may be,) that I will support the Constitution of the United States.’ …
“The President of the Senate for the time being shall also administer the said oath or affirmation to each Senator who shall hereafter be elected, previous to his taking his seat.”[202]
Thus by the Constitution, explained by the earliest statutes, must the oath to support the Constitution be administered to a Senator previous to his taking his seat. But the oath is simply evidence and pledge of loyalty; and this evidence and pledge constitute a condition precedent to admission. As loyalty is more important than age or citizenship or inhabitancy, it has been put under the solemn safeguard of an oath. So far from agreeing with the Committee, or with the Senator from New York [Mr. Harris], that it is not named among “qualifications,” it seems to me that it stands first among them. Of course, it is vain to say that it is not expressly called a “qualification.” Let us ascend from words to things. It is made a qualification in fact, call it by what name you will. Men are familiarly said to “qualify” for an office, when they take the necessary oath of office; so that the language of common life becomes an interpreter of the Constitution. Sir, loyalty is among constitutional “qualifications” of a Senator.
Resting on this conclusion, and assuming that disloyalty is a constitutional disqualification, the single question remains as to the time when evidence with regard to it may be considered. Now, as the Senate, under the Constitution, is exclusive judge of the qualifications of its members, the time when it shall consider a case is obviously within its own discretion, according to the exigency. It may take up the case early or late, before or after the administration of the oath. Under ordinary circumstances, where the case turned upon a question of age or citizenship or inhabitancy, it would be reasonable, and according to usage, that the claimant should be admitted under his certificate, which is prima facie evidence of the requisite qualifications. In such a case the public interests would not suffer, for the disqualification is rather of form than of substance. But where the disqualification is founded on disloyalty, it is obvious that the public interests might be seriously compromised, if the claimant were allowed any such privilege,—for the disqualification is of substance, and not of form. Disloyalty must not find a seat in the Senate, even for a day; nor can any claimant charged with disloyalty complain that the Senate refuses welcome to its trusts.
The oath required to support the Constitution is on its face an oath of loyalty, and nothing else. The claimant may declare willingness to take it; but such declaration is not an answer to evidence showing disloyalty, unless you are ready to admit present professions to be a sufficient cloak for disloyalty, or, it may be, treason, in the past. On a question of such importance, with positive evidence against his loyalty, the claimant cannot expect permission to purge himself on his oath. The issue is distinctly presented, if he has not already committed himself, so that his oath to support the Constitution is entitled to no consideration. Sir Edward Coke pronounces generally, that “an infidel cannot be sworn,”—a doctrine which has been since mitigated in our courts. But whatever the rule on this subject in our courts, it is reasonable that an infidel to our Government, an infidel to our Constitution, should not be permitted by the Senate to go through the mockery of swearing to support the Constitution; nor should a person charged with such infidelity be permitted to take the oath, unless able to remove the grounds of the charge. The oath is administered by the President of the Senate at your desk, Sir, in the presence of the Senators; and the solemnity of the occasion is an additional argument against administering it to any person whose loyalty is not above suspicion. There is a German treatise entitled, “On the Lubricity and Slippery Uncertainty of the Suppletory Oath,”—being the oath of a litigant party in his own case. But an oath to support the Constitution by a claimant charged with disloyalty would be open to suspicion, at least, of lubricity and slippery uncertainty not creditable to the Senate.
We are told in the Epistle to the Hebrews that an oath is “the end of the whole dispute”;[203] but this of course assumes that the oath is above question. If not above question, it is wrong to allow the oath,—at least in the Senate of the United States, which is the exclusive judge of its own proceedings.
I say nothing of the facts in the present case; nor do I venture to suggest any judgment on the final weight to which they may be entitled. I confine myself to the simple question as to the duty of inquiry at the present stage of proceedings.
Mr. Trumbull of Illinois, Mr. Dixon of Connecticut, Mr. Davis of Kentucky, Mr. Clark of New Hampshire, and Mr. Morrill of Maine followed against the Report, which was sustained by Mr. Carlile of West Virginia, Mr. McDougall of California, Mr. Ten Eyck of New Jersey, and Mr. Foster of Connecticut. Mr. Sumner moved that the resolution of the Committee be amended so as to read:—
“Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that State by the Governor thereof, and now charged by affidavits with disloyalty to the Government of the United States, is not entitled to take the constitutional oath of office without a previous investigation into the truth of the charge.”
Here Mr. Sumner remarked:—
It is my earnest hope that the claimant will be able to purge himself, and show that he is a loyal citizen. Meanwhile I do not wish to prejudge him; I have not prejudged him; I have come to no conclusion on the facts; but I have come to a perfect, fixed, and irreversible conclusion on the duty of the Senate at this time to enter into this inquiry, and to ascertain from the evidence whether he is loyal or not.
Mr. Fessenden followed, withdrawing his opposition, and concluded by avowing his purpose: “When the question appears before me in a shape that I can vote directly upon it, to vote that the gentleman who presents his credentials be permitted to take the oath and become a member of the Senate.”
February 24th, the debate was resumed, when Mr. Howe, of Wisconsin, spoke in favor of the admission, and Mr. Doolittle against it.
February 26th, Mr. Hale withdrew his proposition, so that the amendment of Mr. Sumner was in order. He then spoke as follows.
MR. PRESIDENT,—I am unwilling to speak again in this debate. Nothing but a sense of duty makes me break silence. But I am determined that this Chamber of high trust, so carefully guarded by the Constitution, shall not be opened to disloyalty, if any argument, any persuasion, or any effort of mine can prevent it.
Of course, in this debate something is assumed. It is simply this: that the evidence touching the loyalty of the claimant is not valueless; that it merits attention; that it affords probable cause, if I may adopt the phrase of the Roman Law, for distrust; that it is enough to put a party on the defensive. If this be the case, if all these affidavits, verified by the certificate so numerously signed, are not put aside as baseless, then the Senate must inquire into the charge. The result of the inquiry may be one way or another; but the inquiry must be made. Not to make it is abandonment of present duty; and not to assert the power is abandonment of an essential right of self-defence.
I have listened to the various arguments pressing the Senate to disarm itself, as they have been presented by able Senators, especially by the Senator from Maine [Mr. Fessenden] and the Senator from Wisconsin [Mr. Howe]; and I have felt, as I listened, new confidence in the constitutional power of the Senate to protect itself at all times against disloyalty, and in the duty to exercise this constitutional power at any time, early or late, in its completest discretion.
But it is said,—and I believe the Senator from Maine first presented this argument, which has been urged so strongly by the Senator from Wisconsin,—that, if we reject the present claimant, Oregon will be without a representative. And if we expel him, will not Oregon be without a representative? Surely this is no reason for hesitation in either case. I, too, desire a representative for Oregon; but I know full well that a disloyal representative is no representative,—or rather, Sir, is worse than no representative. In sustaining such a representative, you sacrifice substance to form,—you abandon the living principle, content with the dead letter,—you “keep the word of promise to the ear, and break it to the hope,”—you offer to the people of Oregon a stone, when they demand bread. In the name of the people of Oregon, whose wishes are manifest in the papers before us, I protest against the pretension that they can be represented by a disloyal person. Misrepresentation is not and never can be representation.
But it is said,—and I believe the Senator from Maine made the argument,—that the evidence against the claimant, if sustained, might justify expulsion, but will not justify refusal of admission to take the oath.
Mr. Fessenden. The Senator will state my position as I put it, and that was, if the same language and declarations were proved as coming from Mr. Stark while a Senator, I thought they might justify his expulsion.
Mr. Sumner. The Senator says, that, if the same language had been used while he was a Senator, it might justify expulsion. That is enough, Sir; and yet the Senator argues that it will not justify the Senate in refusing to open its doors, when he presents himself for admission. In plain terms, the Senate may pronounce the stigma of expulsion, but not the judgment of exclusion. A similar absurdity would be to say, that in private life an offence would justify kicking an intruder down stairs, but would not justify refusing him admission to our house. It is enough to state this case. Nothing can be clearer in the light of reason—and I say also of the Constitution—than that it is the duty of the Senate to meet disloyalty on the threshold,—to say to it, wherever it first shows itself, that this Chamber is no place for it. The English orator pictured his desolation, when he said that he was alone, and had none to meet his enemies in the gate.[204] Desolate will be the Senate, when it cannot meet disloyalty in the gate.
But the Senator from Maine complains, and the Senator from Vermont [Mr. Collamer] joins in the complaint, that the claimant is not allowed to purge himself by his oath,—thus using a technical phrase of the law, applicable chiefly to suspected persons. Not allowed to purge himself! Rather say, Sir, not allowed to perjure himself. For, in view of the testimony on your table, the inference is, unhappily, too strong, that in any oath to support the Constitution he must perjure himself. I say this with pain, and anxious not to prejudge the case, but simply because the facts, as they stand without contradiction, leave no opportunity for any other conclusion.
Since complaint is made by learned lawyers that the claimant is not allowed to purge himself, I desire to adduce a legal analogy on this question. It is well known that by the Common Law a person is not permitted to take an oath who does not believe in God. This is the general principle; but when we look at the application, we see how completely it illustrates the present case. If a person is known to have openly and recently declared disbelief, he will not be permitted to purge himself by his oath, for the reason that his own declarations are decisive.
Here Mr. Sumner read from Greenleaf’s Law of Evidence, § 370, and the note to that section, and then proceeded.
Here again is additional illustration from the annotations to the great work of Phillipps on the Law of Evidence.
“After the incompetency of the witness from defect of religious belief is satisfactorily established by proof of his declarations out of court, he will not be permitted to deny or explain such declarations or his opinions, or to state his recantation of them, when called to be sworn. But he may be restored to his competency on giving satisfactory proof of a change of opinion before the trial, so as to repel any presumption arising from his previous declarations of infidelity.”[205]
I would not press this illustration too far. But it seems to me clear, that, if you accept the declarations of a person as decisive against his religious belief, they must be accepted as equally decisive with regard to his political belief. An oath to support the Constitution presupposes political belief, as much as the oath itself presupposes religious belief.
Pardon me, Sir, but I cannot refrain from astonishment that Senators, learned lawyers, should be willing to treat the oath to support the Constitution as an oath of purgation, an oath of defecation, an oath of purification,—by which a suspected person may cleanse himself, by which an evil spirit may be cast out. Sir, it is no such thing. Such is not the oath of the Constitution. By that oath the accepted Senator dedicates himself solemnly to the Constitution. It is not an oath of purgation, as Senators insist, but an oath of consecration. To such an oath may be fitly applied the words of the ancients, when they spoke of the oath as “the greatest pledge of faith among men.”
I would not be carried into technicalities; but, since Senators insist that this oath is merely of purgation, I venture to add, that, according to early writers, there were two forms of oaths,—one technically styled “the oath of expurgation,” sometimes the ex officio oath, by which persons were bound to answer all questions, even to the extent of accusing themselves or intimate friends. This oath was much used and abused in the days of Queen Elizabeth. At an earlier day it was administered to an Archbishop of York charged with murder, and no less than one hundred compurgators were sworn with him. The other is what is called “the promissory oath,” which is the oath of the sovereign, the magistrate, the judge, the senator. Obviously this is widely different from the oath by which a person clears himself from suspicion, or cleanses his name.
There is another oath, with a peculiar title: I mean the custom-house oath. You all know something of this oath, which is taken hastily, without solemnity or question, and is now an acknowledged nuisance and mockery, against which people petition Congress. By such oaths, “sworn is the tongue, but unsworn is the mind.” With such oaths for seed, perjury is the natural harvest. If Senators who have spoken in this debate can have their own way, you will degrade the solemn oath of the Constitution to the same class, and make it the seed of similar harvest.
For myself, I am determined, so far as my vote or voice can go, that the oath shall mean something, and that it shall be kept solemn and above suspicion. It shall not be degraded to be an oath of purgation or a custom-house oath, but shall be in all simplicity what is regarded by the Constitution an oath of office, in itself the pure and truthful expression of assured loyalty,—not of loyalty still in question, still doubtful, so that people openly testify against it. And where there is evidence seriously impeaching the loyalty of a claimant, he shall not take that oath, with my consent, until the impeachment is removed. Sir, I am not insensible to the attractions of comedy, when well performed on the stage; but there is a place for everything, and I am unwilling to sit in my seat here and witness the comedy proposed. The Senate is to resolve itself into a theatre, under the management of grave Senators,—the Senator from New York, the Senator from Maine, and other Senators,—and we are to see the play proceed. The claimant from Oregon crosses the floor, and, under honorable escort, approaches the desk, takes the oath, and kisses the book. The title of the play is borrowed from a forgotten old English drama: “Treason made Easy; or, An Oath no Great Thing.”
It ill becomes the Senate at this moment to do or to forbear anything by which the standard of loyalty can be lowered. If it justly expects loyalty from others, if it requires loyalty in its soldiers and officers, surely it ought to set an example in its own members. Toward itself, at least, it cannot be too austere in requirement. Wherever about us disloyalty shows itself, whether in the Senate or in its lobby, whether already intrenched in this Chamber or struggling to enter in, whether planted at these desks or still standing in the gate, we have one and the same duty to perform. We must inquire into its character, and if it be found unworthy of trust, we must chastise it or exclude it. This is the least we can do.
Mr. Sumner was followed the same day by Mr. McDougall, Mr. Davis, Mr. Cowan, Mr. Carlile, Mr. Sherman, Mr. Harris, all in favor of admission, and by Mr. Wilmot, Mr. Trumbull, Mr. Dixon, against it.
February 27th, Mr. Browning spoke in favor of admission, Mr. Howard against it.
The vote was then taken on the amendment of Mr. Sumner, and it was lost,—yeas 18, nays 26.
The question recurred on the resolution of the Committee, which was adopted, yeas 26, nays 19; and Mr. Stark was admitted to take the oath.
The same question came up again in another form.
April 22d, the Committee to whom were referred the papers touching the disloyalty of Mr. Stark reported that “the Senator from Oregon is disloyal to the Government of the United States.”
May 7th, Mr. Sumner introduced the following resolution:—
“Resolved, That Benjamin Stark, a Senator from Oregon, who has been found by a committee of this body to be disloyal to the Government of the United States, be, and the same is hereby, expelled from the Senate.”
June 5th, Mr. Sumner moved that the Senate proceed with the consideration of this resolution, and explained it briefly.
Mr. President,—The Senate will observe that the resolution declares that the Senator from Oregon has been found by a Committee of the Senate to be disloyal. Now, Sir, I have no desire to discuss the facts of this case. But, in order to exhibit the urgency of this question, it is my duty to exhibit the conclusions of the Committee, set forth in their Report, as follows.
“1st. That for many months prior to the 21st November, 1861, and up to that time, the said Stark was an ardent advocate of the cause of the rebellious States.
“2d. That, after the formation of the Constitution of the Confederate States, he openly declared his admiration for it, and advocated the absorption of the loyal States of the Union into the Southern Confederacy, under that Constitution, as the only means of peace, warmly avowing his sympathies with the South.
“3d. That the Senator from Oregon is disloyal to the Government of the United States.”
Of these propositions the first two had the sanction of the Senator from Virginia [Mr. Willey], while all three had the sanction of the rest of the Committee, being the Senator from New Hampshire [Mr. Clark], the Senator from Indiana [Mr. Wright], the Senator from Michigan [Mr. Howard], and the Senator from Ohio [Mr. Sherman]. Thus, in a Special Committee of five, raised expressly to consider this case, raised, too, after protracted discussion in the Senate, four of the Committee united in all the conclusions of the Report, and the dissenting member united in the first two conclusions. And this Report is, if possible, entitled to additional consideration, when it is known that the Senator from Oregon himself appeared before the Committee. On these accounts I accept the Report, and do not wish to go into it or behind it. It is with me the solemn verdict of a jury duly impanelled for the trial of a cause.
But if the Committee is the jury, the Senate is the court; and it remains that judgment should be entered.
I hear a voice saying that we must not take time for this question. Pray, Sir, what time is needed? The time has been already taken. The hearing has been had, the verdict is rendered.
Pray, why not take time? We are engaged in war to put down disloyalty. For this we set armies in the field, and contend in battle with our own fellow-citizens. For this we incur untold debts. For this we are preparing to incur untold taxation. Sir, all this is simply to put down disloyalty. And yet, when a committee of this body, after careful inquiry, solemnly declares a Senator disloyal to the National Government, we are told that there is no time to consider the question. Sir, I am against disloyalty, wherever it shows itself, whether in belligerent States, sheltered and strengthened by numbers, or sitting here, with all the privileges of this Chamber. Others will do as they please; but I cannot remain silent, while disloyalty, already exposed by our own Committee, is allowed a seat in our councils, open and secret. In not acting, you will discredit the Report of the Committee, or show that the Senate is indifferent to the character of its members. I will have no part in any such thing.
The Senate refused to consider the resolution.
June 6th, Mr. Sumner again moved to proceed with the resolution, urging, that, with the Report of the Committee on the table affirming his disloyalty, it was the duty of the Senate to act promptly.
The question, being taken by yeas and nays, resulted, yeas 16, nays 21. So the motion was not agreed to.
HELP FOR MEXICO AGAINST FOREIGN INTERVENTION.
Report from the Committee of Foreign Relations upon the Draught of a Convention with Mexico, February 19, 1862.
A convention was made at London, October 31, 1861, between Great Britain, France, and Spain, professedly to obtain redress and security from Mexico for citizens of the three contracting powers. Provision was made for the accession of the United States as a fourth party; but the note inviting us to join was dated a month after the Convention. The invitation was declined. But, anxious to help Mexico, Mr. Seward proposed pecuniary aid, in the hope of enabling our neighbor republic to satisfy the demands of the invading allies, so far at least as to make them withdraw. The draught of such a Convention with Mexico was transmitted to the Senate, who were asked to give their advice with regard to it.
A few passages of a letter from Mr. Corwin to Mr. Sumner, dated at Mexico, April 14, 1862, will show the condition of things there.
“The general and leading objects of my mission to Mexico were, first, to prevent the Southern Confederacy from obtaining any recognition here, and thus cut off the hope of augmenting the power of the South by acquisition, accompanied with Slavery, in Mexico, or any of the Southern Spanish-American republics; secondly, to use every proper means to prevent European power from gaining a permanent hold upon this part of the American Continent.
“In the first object I have fully succeeded. The Southern Commissioner, after employing persuasion and threats, finally took his leave of the city, sending back from Vera Cruz, as I am informed, a very offensive letter to the Government here. In obtaining the second end I have had more difficulty.…
“If the French attempt to conquer this country, it is certain to bring on a war of two or three years’ duration. The gorges of the mountains, so frequent here, afford to small detachments stronger holds than any position fortified by art; and the Mexicans have a strong hatred of foreign rule, which animates the whole body of the people. I trust our Government will remonstrate firmly against all idea of European conquest on this continent, and in such time as to have its due influence on the present position of France in Mexico.…
“But I am satisfied this danger may be avoided by the pecuniary aid proposed by the present treaty with us, and the united diplomacy of England, Spain, and the United States. If these means are not promptly and energetically applied, a European power may fasten itself upon Mexico, which it will become a necessity with us, at no distant day, to dislodge. To do this, in the supposed event, would cost us millions twenty times told more than we now propose to lend upon undoubted security.”
Spain and England soon withdrew from coöperation, leaving the French Emperor alone to pursue the unhappy enterprise, which ended in the sacrifice of Maximilian, whom he had placed on the Mexican throne.
The Committee on Foreign Relations, to whom was referred a Message from the President, of December 17, 1861, transmitting a Draught for a Convention with the Republic of Mexico, with accompanying papers, and a Message from the President, of January 24, 1862, transmitting a Despatch from Mr. Corwin, Minister at Mexico, have had the same under consideration, and report.
On the 2d of September, 1861, Mr. Seward, in a despatch to Mr. Corwin, at Mexico, announced that the President greatly desired the political status of Mexico as an independent nation to be permanently maintained; that the events communicated by Mr. Corwin alarmed him, and he conceived that the people of the United States would scarcely justify him, were he to make no effort for preventing so great a calamity on this continent as would be the extinction of that neighbor republic; that he had therefore empowered Mr. Corwin to negotiate a treaty with Mexico for the assumption by the United States of the interest, at three per cent, upon the funded debt of that country, the principal of which was understood to be about sixty-two millions of dollars, for the term of five years from the date of the decree recently issued by Mexico suspending such payment, provided that Mexico could pledge to the United States its faith for the reimbursement of the money, with six per cent interest, to be secured by special lien upon all the public lands and mineral rights in the several Mexican States of Lower California, Chihuahua, Sonora, and Cinaloa, the property so pledged to become absolute in the United States at the expiration of the term of six years from the time when the treaty went into effect, if such reimbursement were not made before that time. The President felt that this course was rendered necessary by circumstances as new as they are eventful, and seeming to admit of no delay.
Mr. Seward proceeds to say, that his instructions are conditional upon the consent of the British and French Governments to forbear action against Mexico, on account of failure or refusal to pay the interest in question, until after the treaty had been submitted to the Senate, and, if ratified, then so long thereafter as the interest is paid by the United States.
Mr. Seward adds, that his instructions are not to be considered as specific, but general, subject to modification as to sums, terms, securities, and other points.
Mr. Corwin, in an earlier despatch, dated at Mexico, 29th July, 1861, and addressed to Mr. Seward, had already suggested the policy he was now authorized to pursue, and proposed a lien on the public lands and mineral rights in the provinces mentioned by Mr. Seward. From such arrangement, in his opinion, two consequences would follow: first, all hope of extending the domain of a separate Southern republic in this quarter or in Central America would be extinguished; and, secondly, any further attempt to establish European power on this continent would cease to occupy either England or Continental Europe.
Afterwards, in a despatch, dated at Mexico, November 29, 1861, Mr. Corwin enclosed to Mr. Seward the project of a treaty between the United States and Mexico, by which the United States were to lend Mexico five millions of dollars, payable in monthly instalments of one half million a month,—also the further sum of four millions of dollars, payable in sums of one half million every six months; the whole to be secured by mortgage on the public lands, mineral rights, and Church property of Mexico, for the realization of which a board of five commissioners was to be organized, three to be appointed by Mexico and two by the United States, holding sessions in the city of Mexico until the debt and interest were fully discharged. No reference was made in the proposed treaty to the consent of the British and French Governments, mentioned by Mr. Seward as a condition, nor to the application of the money, when received by Mexico; nor does anything on this subject appear in the accompanying despatch.
The President, by his Message of December 17, 1861, submitted the draught of this treaty to the Senate for their advice. Afterwards, by another Message, of January 24, 1862, he called their attention to it again, in the following language.
“I have heretofore submitted to the Senate a request for its advice upon the question pending by treaty for making a loan to Mexico, which Mr. Corwin thinks will in any case be expedient. It seems to me to be my duty now to solicit an early action of the Senate upon the subject, to the end that I may cause such instructions to be given to Mr. Corwin as will enable him to act in the manner which, while it will most carefully guard the interests of our country, will at the same time be most beneficial to Mexico.”
Meanwhile, Great Britain, France, and Spain, by a Convention, dated at London, October 31, 1861, have entered into an alliance, the declared object of which is “to demand from the authorities of the Republic of Mexico more efficacious protection for the persons and properties of their subjects, as well as a fulfilment of the obligations contracted by the Republic of Mexico.” The high contracting parties engaged not to seek for themselves, in the employment of coercive measures, any acquisition of territory, nor any special advantage, and not to exercise in the internal affairs of Mexico any influence of a nature to prejudice the right of the Mexican nation to choose and to constitute freely the form of its government. Desiring that the measures they intend to adopt should not bear an exclusive character, and being aware that the Government of the United States, on its part, has, like them, claims upon the Mexican Republic, they further agree that our Government shall be invited to join in the Convention.
Mr. Seward, in a despatch, dated at Washington, December 4, 1861, declined to join in the Convention, saying, “that the United States prefer, as much as lies in their power, to maintain the traditional policy recommended by the Father of their country, confirmed by successful experience, and which forbids them to make an alliance with foreign powers.”
In pursuance of this Convention, the naval and military forces of the three great powers have assembled at San Juan de Ulua, and the flags of the three powers now float over the castle. The Government of Mexico has rallied the people to resistance, and there is at this moment the prospect of a prolonged and exhausting contest. The occasion seems to have arrived, when the aid proposed by Mr. Seward, in his despatch of September 2, 1861, may be of decisive value to Mexico. To the United States it may also be of great importance, if it could be the means of removing from Mexico the pressure of hostile armaments, and placing a neighbor republic in a more tranquil and independent condition. If the Allied Powers desire security for their claims, and nothing else, then a reasonable provision of this nature ought to be satisfactory, so far as any question arises from the claim.
The debt of Mexico to the Allied Powers may be stated, in round numbers, as follows.
| To England, | immediate | $ 1,000,000 | |
| convention, 4 per cent interest | 5,000,000 | ||
| bondholders, 3 per cent interest | 65,000,000 | ||
| general claims | 4,000,000 | ||
| ————— | $75,000,000 | ||
| To France, | immediate | 500,000 | |
| convention, balance, immediate | 200,000 | ||
| Pennand agreement | 800,000 | ||
| claims, general | 3,500,000 | ||
| ————— | 5,000,000 | ||
| To Spain, | immediate | 500,000 | |
| convention, 3 per cent interest | 8,000,000 | ||
| claims | 1,500,000 | ||
| ————— | 10,000,000 | ||
| ————— | |||
| Total | $90,000,000 |
Of course, payment or guaranty of this large mass on our part is out of the question; nor was it contemplated by the United States in the original instructions to Mr. Corwin. It was proposed to make such payment as would afford present relief to Mexico, and secure the forbearance of the Allied Powers. To this end, Mr. Seward offered to assume the interest of the Mexican debt for the term of five years. But the unfunded claims in the foregoing list, entitled “immediate,” it is understood, are pressed with equal energy by the Allied Powers. If these were satisfied, and provision made for the interest, the United States would have the following liabilities.
| Payments, immediate, or at 3, 6, and 12 months, as follows. | ||
| To England, 3, 6, and 12 months’ drafts of Mexico on United States | $1,000,000 | |
| To France, 3, 6, and 12 months’ drafts of Mexico on United States | 700,000 | |
| To Spain, 3, 6, and 12 months’ drafts of Mexico on United States | 500,000 | |
| ————— | ||
| Total cash, or 3, 6, and 12 months | $2,200,000 | |
| Interest, in semi-annual drafts of Mexico on the United States. | ||
| To England, convention, 4 per cent | $200,000 | |
| bondholders, 3 per cent | 1,950,000 | |
| ————— | $2,150,000 | |
| To Spain, convention, 3 per cent | 240,000 | |
| ————— | ||
| Total interest, per annum | $2,390,000 |
Other outstanding claims of the Allied Powers are not included in either of these lists. It is proposed that these should be provided for by a sinking fund, at the rate of 10 per cent a year for ten years, as follows.
| To England | $400,000 |
| To France | 80,000 |
| To France | 350,000 |
| To Spain | 150,000 |
| ———— | |
| Total, per annum | $980,000 |
The assumption of all these liabilities for a long period would throw upon the United States a burden too great for the present moment, although, perhaps, not out of proportion to the anticipated advantages. If anything be done on our part, it must be more moderate. The offer of Mr. Seward for five years, if accepted, would devolve upon the United States a responsibility sufficiently large; and this responsibility ought to be kept within a limitation, of which $15,000,000 should be a maximum.
But there are two conditions to be required by the United States, before the assumption of any such responsibility. The first is the assent of the Allied Powers, and the acceptance on their part of the friendly offers proposed. Unless the Allied Powers are parties to the transaction, it would be productive only of embarrassment and loss, without accomplishing any permanent good to the United States or to Mexico.
The other essential condition is, that security should be given by Mexico for the liabilities assumed. It is not too much to expect such security; nor is Mexico, as is well known, disinclined to give it. Her creditors are now foreclosing their demands, at the cost, perhaps, of her national existence, and she turns to the United States for help. Not merely friendship, but a continental policy, affecting our own cherished interests, prompts us to afford such help, so far as in our power. In asking for security, we simply follow the rules of prudence, whether between individuals or nations.
The security proposed by Mr. Corwin on the public lands, minerals, and Church property of Mexico, would require the appointment of a board or mixed commission for the management and disposition of this property. This necessity adds to the complications of such security.
The security proposed by Mr. Seward, on the public lands and mineral rights in the several provinces of Lower California, Chihuahua, Sonora, and Cinaloa, is simple, and it is understood that in some of this territory there is vast mineral wealth. The province of Lower California is unquestionably the territory of Mexico most interesting to the United States in a military and naval point of view.
Another security, perhaps less manageable, but more interesting still, would be the right of way across the Isthmus of Tehuantepec, with a mortgage on the adjoining public lands of the Isthmus. Estimated by its pecuniary value, this security would not be large; but there can be no doubt of its political and commercial value.
Still another security would be a pledge by Mexico of 25 per cent, or perhaps a larger percentage, of the customs or other revenues.
It is not easy to say positively, at this distance from the scene of operations, and with the information before the Committee, what is the most practicable form of security. Perhaps it is advisable to leave the matter to the careful discretion of our minister at Mexico, under instructions from the President, with the explicit understanding that the United States decline any territorial acquisition, and seek the consolidation of Mexico, without dismemberment of any kind.
Such are the main features of the question on which the President has asked the advice of the Senate. With more precise information on the matters involved, it might be proper for the Senate to enter upon details in its answer. But such information, especially with regard to actual relations, now daily changing, between Mexico and the Allied Powers, can be obtained only on the spot. It is evident, therefore, that the Senate can do little more than indicate an opinion on what has already been done, and declare the proper principles on which a negotiation with Mexico should be conducted, without presuming to fix in advance all its terms. Much must be left to the discretion of our minister there, and to the instructions he will receive from the President.
The Committee recommend the passage of the following resolution.
Resolved, That, in the changing condition of the relations between Mexico and the Allied Powers, and in the absence of precise information, it is impossible for the Senate to advise the President with regard to all the terms of a treaty with Mexico, so as to supersede the exercise of considerable discretion on the part of our Minister there, under instructions from the President, but that, in answer to the two several Messages of the President, the Senate expresses the following conclusions.
First. The Senate approves the terms of the instructions to our Minister at Mexico contained in the despatch bearing date September 2, 1861.
Secondly. The Senate does not advise a treaty in conformity with the project communicated by our Minister to Mexico in his despatch of November 29, 1861, as the same fails to secure in any way the application of the money to the demands of the Allied Powers, or either of them, and therefore can be in no respect satisfactory to them.
Thirdly. The Senate advises a treaty with Mexico providing for the assumption of the interest on the debt from Mexico to the Allied Powers during a limited period of time, and also for the payment of certain immediate claims by these Powers, the whole liability to be kept within the smallest possible sum; it being understood that the same shall be accepted by the Allied Powers in present satisfaction of their claims, so that they shall withdraw from Mexico.[206] And it shall be secured by such mortgage or pledge as is most practicable, without any territorial acquisition or dismemberment of Mexico.
The Resolution reported by the Committee was amended in the Senate by striking out all after the word “Resolved,” and inserting in lieu thereof as follows: “That, in reply to the two several Messages of the President with regard to a treaty with Mexico, the Senate express the opinion that it is not advisable to negotiate a treaty that will require the United States to assume any portion of the principal or interest of the debt of Mexico, or that will require the concurrence of European powers.”
NO RECOGNITION OF THE FUGITIVE SLAVE BILL.
Motion and Remarks in the Senate, February 25, 1862.
February 25th, the Senate having under consideration a bill, reported by Mr. Trumbull, of Illinois, to confiscate the property and free the slaves of Rebels, an incidental question arose on the recognition of the Fugitive Slave Bill, when Mr. Sumner spoke as follows.
I desire to move an amendment, which I believe will carry out the idea of the Senator from Kansas. I concur with that Senator in all he has said in relation to the Fugitive Slave Bill. I have never called it a law, hardly an act. I regard it simply as a bill, still a bill, having no authority under the Constitution. There is no unsoundness in that instrument out of which such excrescence can grow. That is my idea; I believe it is the idea of the Senator from Kansas. Therefore I concur with him in any criticism upon legislation seeming even in the most indirect way to recognize the existence of a thing which can have, thank God, under the Constitution, when properly interpreted, no legal existence. Therefore, if the language introduced in this bill has the effect which the Senator supposes, if it does in any way recognize the existence of that bill, certainly I am against it; and when I listened to the remarks of the Senator, and critically examined the language, I must say I feared that there was some implication or other on our part in favor of that bill. I therefore propose an amendment which shall remove all such implication or possibility of recognition on our part, while, at the same time, I believe it will carry out completely, adequately, in every respect, the idea of the Senator from Illinois in the measure now under consideration. The language here is as follows.
“And whenever any person claiming to be entitled to the service or labor of any other person shall seek to enforce such claim, he shall, in the first instance, and before any order for the surrender of the person whose service is claimed, establish not only his title to such service, as now provided by law, but also that he is, and has been, during the existing Rebellion, loyal to the Government of the United States.”
I propose to strike out all after the word “before,” in the sixteenth line, down to the word “that,” in the nineteenth line, being these words,—
“any order for the surrender of the person whose service is claimed, establish not only his title to such service, as now provided by law, but also”—
and instead thereof insert—
“proceeding with the trial of his claim, satisfactorily prove”—
so that the sentence will read,—
“he shall, in the first instance, and before proceeding with the trial of his claim, satisfactorily prove that he is, and has been, during the existing Rebellion, loyal to the Government of the United States.”
This language, as I believe, carries out completely the idea of the Senator from Illinois in the measure before us. I think it also carries out the idea of the Senator from Kansas. It gives all proper efficacy to the language of the statute; at the same time it does not compromise any of us, in this age of Christian light, by a new recognition, direct or indirect, of the Fugitive Slave Bill.
Mr. Cowan. How long will that provision last?
Mr. Sumner. As long as this statute lasts.
Mr. Cowan. Then a person claiming one hundred years from this time would open his cause by showing that he was loyal during this Rebellion!
Mr. Sumner. I hope so, certainly,—forever.
The amendment was agreed to. The bill never became a law. Another bill on the same subject from the House of Representatives was adopted, with the following title, “To suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the property of Rebels, and for other purposes,” and approved by the President, July 17, 1862.[207]
OUR GERMAN FELLOW-CITIZENS, AND A TRUE RECONSTRUCTION.
Letter to the German Republican Central Committee of New York, February 25, 1862.
Mr. Sumner’s letter is in reply to the following resolutions, communicated to him by the Secretary of the Committee.
“The German Republican Central Committee of the City and County of New York, at their regular monthly meeting, held at head-quarters, February 14th, 1862, unanimously
“Resolved, That the thanks of this Committee are hereby tendered to the Hon. Charles Sumner, United States Senator from Massachusetts, for the ‘Resolutions declaratory of the relations between the United States and the territory once occupied by certain States, and now usurped by pretended Governments without constitutional or legal right,’ introduced by him into the United States Senate.
“Resolved, That we consider these Resolutions as embodying sound constitutional doctrine, conclusive logical argumentation, and the only true basis upon which the Union can be permanently reconstructed.”
Senate Chamber, February 25, 1862.
SIR,—I have had the honor to receive the Resolutions unanimously adopted by the German Republican Central Committee of New York, declaring their adhesion to certain principles presented by me to the Senate on the relation between the United States and the territory once occupied by certain States, and now usurped by pretended Governments without constitutional or legal right.
I pray you to let the Committee know my gratitude for the prompt and generous support they have given to these principles. Our German fellow-citizens, throughout the long contest with Slavery, have not only been earnest and true, but have always seen the great question in its just character and importance. Without them our cause would not have triumphed at the last Presidential election. It is only natural, therefore, that they should continue to guard and advance this cause.
Where so many hesitate and fail, it is most gratifying to find a Committee so distinguished as yours ready again to enter into the contest for Human Rights.
Accept the assurance of the respect with which I have the honor to be, Sir,
Faithfully yours,
Charles Sumner.
Wm. M. Wermerskirch, Esq.,
Corresponding Secretary of the German Republican Central Committee, New York.
STATE SUICIDE AND EMANCIPATION.
Letter to a Public Meeting at the Cooper Institute, New York, March 6, 1862.
This meeting was in pursuance of the following call.
“All citizens of New York who rejoice in the downfall of treason, and are in favor of sustaining the National Government in the most energetic exercise of all the rights and powers of war, in the prosecution of its purpose to destroy the cause of such treason, and to recover the territories heretofore occupied by certain States recently overturned and wholly subverted as members of the Federal Union by a hostile and traitorous power calling itself ‘The Confederate States,’ and all who concur in the conviction that said traitorous power, instead of achieving the destruction of the Nation, has thereby only destroyed Slavery, and that it is now the sacred duty of the National Government, as the only means of securing permanent peace, national unity and well-being, to provide against its restoration, and to establish in said territories Democratic Institutions founded upon the principles of the Great Declaration, ‘That all Men are created equal, endowed by their Creator with the unalienable rights of Life, Liberty, and the pursuit of Happiness,’ are requested to meet at the Cooper Institute, on the sixth day of March, at eight o’clock, p. m., to express to the President and Congress their views as to the measures proper to be adopted in the existing emergency.”
On the day of this great meeting the President communicated to Congress his Message on Compensated Emancipation, which was his first public step in the transcendent cause.
The President of the meeting was Hon. James A. Hamilton, the venerable son of Alexander Hamilton, who agreed with Mr. Sumner in regard to the death of Slavery and the power of Congress. There was also a distinguished list of Vice-Presidents, with George Bancroft at the head. There were letters from Preston King, Senator of New York, Henry Wilson, Senator of Massachusetts, David Wilmot, Senator of Pennsylvania, George W. Julian, Representative in Congress from Indiana, and from Mr. Sumner. Among the orators were the President of the meeting, Mr. Martin F. Conway, Representative in Congress from Kansas, and Carl Schurz, who had recently returned from his Spanish mission.
The report in the New York Tribune has the caption, “The Suicide of Slavery.—New York for a Free Republic.”
Mr. Sumner’s letter was a vindication of his Resolutions.
Senate Chamber, March 5, 1862.
DEAR SIR,—Never, except when suffering from positive disability, have I allowed myself to be absent from my seat in the Senate for a single day, and now, amid the extraordinary duties of the present session, I am more than ever bound by this inflexible rule. If anything could tempt me to depart from it, I should find apology in the invitation with which you honor me.
The meeting called under such distinguished auspices is needed at this moment as a rally to those true principles by which alone this great Rebellion can be permanently suppressed. I should be truly happy to take part in it, and try to impart something of the strength of my own convictions.
It is only necessary that people should see things as they are, and they will easily see how to deal with them. This is the obvious condition of practical action. Now, beyond all question, Slavery is the great original malefactor and omnipresent traitor,—more deadly to the Union than all Rebel leaders, civil or military. Therefore, as you are in earnest against the Rebellion, you will not spare Slavery. And happily the way is plain, so that it cannot be mistaken.
Look throughout the whole Rebel territory, and you do not find a single officer legally qualified to discharge any function of Government. By the Constitution of the United States, “members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution.” But these functionaries have all renounced allegiance to the United States, and taken a new oath to support the Rebel Government, so that at this moment they cannot be recognized as constitutionally empowered to act. But a State is known only through its functionaries, constitutionally empowered to act; and since all these have ceased to exist, the State, with its unnatural institutions, has ceased to exist also, or it exists only in the lifeless parchments by which its Government was originally established. The action of these functionaries was impotent to transfer its territory to a pretended confederation. To destroy the State was all they could do.
In the absence of any legitimate authority in this territory, Congress must assume the necessary jurisdiction. Not to do so is abandonment of urgent duty. Some propose a temporary military government; others propose a temporary provisional government, with limited powers. These all concede to Congress jurisdiction over the territory; nor can such jurisdiction be justly questioned. But I cannot doubt that it is better to follow the authoritative precedents of our history, and proceed as Congress is accustomed to proceed in the organization and government of other territories. This is simple.
And as to Slavery, if there be any doubt that it died constitutionally and legally with the State from which it drew its malignant breath, it might be prohibited by the enactment of that same Jeffersonian ordinance which originally established Freedom throughout the great Northwest.
Accept my thanks for the honor you have done me, and believe me, dear Sir,
Faithfully yours,
Charles Sumner.
Among the resolutions adopted at the meeting was one calling for the overthrow of Slavery,—“because the supreme jurisdiction of the National Constitution over all the territories now occupied by the Rebel States must be held to be exclusive of the traitorous Rebel authorities therein established, by virtue of which alone Slavery now therein exists, and that wherever the Constitution has exclusive jurisdiction it ordains Liberty and not Slavery.”
These were forwarded to Mr. Sumner by one of the secretaries, with the following letter.
“I hand herewith a copy of Resolutions adopted, amid the wildest enthusiasm, and without a breath of dissent, by an assembly of some three thousand of our prominent citizens, last evening, at the Cooper Institute Mass Meeting. No such audience has been convened in this city (except only the Union Square meeting of last April) since your address in July, 1860. Nor has so demonstrative a gathering been seen here since that time. I say this to give you an idea of the character and popularity of the affair. I hand the Resolutions to you for personal presentation to the President (and to Congress, if your views are not opposed to such a course), preferring to secure their reaching the President through you as a medium of communication.”
Mr. Sumner had pleasure in presenting them to the President.
REMOVAL OF DISQUALIFICATION OF COLOR IN CARRYING THE MAILS.
Bill in the Senate, March 18, 1862, and Incidents.
March 18, 1862, Mr. Sumner asked, and by unanimous consent obtained, leave to introduce a bill to remove all disqualification of color in carrying the mails, which was read twice by its title and referred to the Committee on Post-Offices and Post-Roads.
The bill in its operative words was as follows.
That, from and after the passage of this Act, no person, by reason of color, shall be disqualified from employment in carrying the mails; and all Acts and parts of Acts establishing such disqualification, including especially the seventh section of the Act of March 3, 1825, are hereby repealed.
March 27th, the bill was reported to the Senate by Mr. Collamer, of Vermont, Chairman of the Committee, without amendment.
The existing law was as follows:—
“That no other than a free white person shall be employed in conveying the mail, and any contractor who shall employ or permit any other than a free white person to convey the mail shall for every such offence incur a penalty of twenty dollars.”[208]
This passed the Senate March 1, 1825, and the House March 2, without a division. The first suggestion of this measure was as early as 1802, by Gideon Granger, Postmaster-General, in a communication addressed to Hon. James Jackson, Senator from Georgia, which, it will be seen, was private in character.
“General Post-Office, March 23, 1802.
“Sir,—An objection exists against employing negroes, or people of color, in transporting the public mails, of a nature too delicate to ingraft into a report which may become public, yet too important to be omitted or passed over without full consideration. I therefore take the liberty of making to the Committee, through you, a private representation on that subject.…
“Everything which tends to increase their knowledge of natural rights, of men and things, or that affords them an opportunity of associating, acquiring, and communicating sentiments, and of establishing a chain or line of intelligence, must increase your hazard, because it increases their means of effecting their object.
“The most active and intelligent are employed as post-riders. These are the most ready to learn and the most able to execute. By travelling from day to day, and hourly mixing with people, they must, they will, acquire information. They will learn that a man’s rights do not depend on his color. They will in time become teachers to their brethren. They become acquainted with each other on the line. Whenever the body, or a portion of them, wish to act, they are an organized corps, circulating our intelligence openly, their own privately.”[209]
This communication, which Mr. Sumner laid before the Committee, was the argument on which he relied.
April 11th, the bill was considered in the Senate, on motion of Mr. Sumner, and passed without amendment or debate: Yeas 24, Nays 11.
A correspondent of the Boston Journal remarked at the time:—
“This is the first time, within the recollection of your correspondent, that any bill having the negro in it, directly or indirectly, has been passed by the Senate without debate. What a good time is coming, when the negro questions shall all have been legislated upon, and when the African race will no longer be a bone of contention in our legislative halls!”
The bill was less fortunate in the House of Representatives, where, May 20th, Mr. Colfax, of Indiana, reported it from the Post-Office Committee with the recommendation that it do not pass. In explaining the reasons for this report, he referred to the original Act of Congress establishing the disqualification, and said:—
“That law has been on the statute-book for more than a third of a century. Among all the petitions presented during that time to this House and the Senate, from people in all sections of the country, there has not been, so far as I have been able to discover, a single petition from any person, white or black, male or female, asking for a repeal or modification of this law. It has remained there by common consent until the present time; and therefore I think it unwise and inexpedient to pass the bill at the present time, not being demanded by public opinion.
“In the second place, the repeal of this bill does not affect exclusively the blacks of the country, as generally supposed. It will throw open the business of mail-contracting, and of thus becoming officers of the Post-Office Department, not only to blacks, but also to the Indian tribes, civilized and uncivilized, and to the Chinese, who have come in such large numbers to the Pacific coast.…
“By this bill, if it is to pass, you would allow all over the South the employment by the slaveholder of his slaves to carry the mail, and to receive compensation for the labor of such slaves out of the Federal Treasury. By the present law not a dollar is ever paid out of the Post-Office Treasury to any slaveholder for the labor of his slave.…
“Mr. Speaker, I am furthermore authorized by the Postmaster-General to say that he has not recommended the passage of this bill, nor does he regard it as promotive of the interests of the Department. I cannot find that it is asked for by any official or private citizen throughout the length and breadth of this land.”
To these objections he added, that it was necessary to have testimony by which you can convict mail depredators; and “in some of the States Indians and negroes, and in California and Oregon the Chinese also, are not allowed by the statutes of the State to give testimony in the courts against white persons.”
Mr. Dawes, of Massachusetts, inquired of Mr. Colfax, “whether he supposes depredators upon the mails are tried in the State courts, or whether they are tried in the United States courts, and if the latter, whether he and I do not make the laws of the United States and the courts of the United States, prescribing who shall testify and who shall not?”
“Mr. Colfax. Not being a lawyer, and not understanding, therefore, all the rules which govern the proceedings of the courts, I, however, say that I am informed by those who are lawyers that the rules of evidence in force in the States respectively are adopted by the United States courts in such States. And the gentleman from Massachusetts, who is a lawyer, ought to have known the fact, and, knowing it, ought not to have asked me such a question.
“Mr. Dawes. The gentleman from Indiana has not quite answered me.”[210]
Mr. Colfax moved to lay the bill on the table, which was ordered, May 21st: Yeas 82, Nays 45. So the bill was lost.
In the next Congress it was again introduced by Mr. Sumner.
A letter from William C. Nell, of Boston, well known for his volume on “The Colored Patriots of the Revolution,” shows how a single individual suffered under this discrimination of color.
“Please accept my sincere thanks for your efforts to remove the disqualification of color in mail-carrying.
“Mr. Phillips conveyed to me the substance of information imparted by you, to wit, the postponement of the bill in the House. To me the disappointment is heavy, presuming said action to be a finality, at least for this session, and the next one is not likely to be as liberal.
“I never had more desire or more need of chances to earn money than now, and never were my opportunities so small.”
The existing law was general, and Mr. Nell could not be a letter-carrier in Boston.
RANSOM OF SLAVES AT THE NATIONAL CAPITAL.
Speech in the Senate, on the Bill for the Abolition of Slavery in the District of Columbia, March 31, 1862.
And I will very gladly spend and be spent for you.
St. Paul, 2 Corinthians, XII. 15.
Ornatus sacramentorum redemtio captivorum est.
St. Ambrose, De Officiis Ministrorum, Lib. II. Cap. 28.
Thy ransom paid, which man from death redeems.
Milton, Paradise Lost, Book XII. 424.
Let me observe, fellow-citizens, that this enterprise of unparalleled magnitude and importance, the extirpation of Slavery from the face of the earth, of which the Abolition of Slavery throughout this Union is the principal branch, and the Abolition of Slavery in the District of Columbia a minute ramification, is an effort to purify and redeem the human race from the sorest evil with which they are afflicted in the mortal stage of their existence.—John Quincy Adams, Speech at Bridgewater, Mass., November 6, 1844.
In activity against Slavery Mr. Sumner did not confine himself to public effort. By writing and personal appeal he was always doing. The letter to Governor Andrew, already given,[211] not only shows his exertion in that important quarter, but affords a glimpse of his relations with the President, whom he reports as saying that there was a difference between them of a month or six weeks only. In point of fact, Mr. Sumner found the difference much greater.
On his arrival at Washington, previously to the opening of Congress, he lost no time in seeing the President, who read to him the draught of his Annual Message. Mr. Sumner was disheartened by the absence of any recommendation or statement on Emancipation, and especially by what the President told him of his striking from Mr. Cameron’s Report a strong passage on this subject. But he was entirely satisfied that the President was really against Slavery, and was determined to do his duty. From that time Mr. Sumner saw him constantly, never missing an opportunity of pressing action. Not a week passed without one or more interviews. At the same time, Mr. Chase was pressing, also, and the two interchanged reports with regard to his state of mind. During this time he was watching the Border States, and communicating with friends in Kentucky. For Mr. Sumner this was an anxious period.
At last, early in the morning of March 6th, he received a request from the President to come to him as soon as convenient after breakfast. Mr. Sumner hastened, and on his arrival the President said that he had something to read; and he then read the draught of the Special Message of that date, proposing Compensated Emancipation.
Mr. Sumner never had strong faith in the practicability of Compensated Emancipation on a large scale, and was always against Gradual Emancipation; but he welcomed any step towards Emancipation, being assured, that, when once begun in any way, it must proceed to the complete establishment of Freedom. In the conversation that ensued he began with a mild protest against gradualism in dealing with wrong, but said nothing against compensation. Taking the draught into his hands, and reading it over slowly and carefully, he could not but object to a certain brief paragraph, which he thought might be turned against us by the other side, and he asked permission to rewrite it, so as to remove the ground of possible objection. While occupied in this attempt with his pencil, the President said: “Don’t trouble yourself; I will strike it all out”: and it was struck out. As Mr. Sumner continued for some time studying the paper, the President at length interrupted him in a familiar, pleasant way, saying: “Enough; you must go, or the boys[212] won’t have time to copy it.” He then said that he should communicate the Message to the Senate that day. It was communicated accordingly.
Before he left, Mr. Sumner told the President, that, though knowing that the Message was coming, he should stand aside and leave to others the making of the proper motion with regard to it. As he anticipated, nothing was ever done under it beyond the adoption by the two Houses of the joint resolution recommended: “That the United States ought to coöperate with any State which may adopt gradual abolishment of Slavery, giving to such State pecuniary aid, to be used by such State in its discretion, to compensate for the inconveniences, public and private, produced by such change of system.” But the Message gave public assurance that the President was occupied with the great question, and its concluding words sank into the popular heart. “In full view,” he said, “of my great responsibility to my God and to my country, I earnestly beg the attention of Congress and the people to the subject.” Many breathed freer.
Meanwhile a bill was introduced into the Senate by Mr. Wilson, providing for Emancipation in the District of Columbia. This was entitled, “For the release of certain persons held to service or labor in the District of Columbia.” It provided for a commission to appraise the claims on account of the slaves liberated, limiting their allowance in the aggregate to an amount equal to three hundred dollars a slave, and appropriated one million dollars to pay loyal owners; to which was added, on motion of Mr. Doolittle, one hundred thousand dollars for the colonization of slaves who desired to emigrate to Hayti or Liberia.
This bill was introduced December 16th, referred to the Committee on the District of Columbia December 20th, reported with amendments by Mr. Morrill of Maine February 13th, taken up for consideration March 12th, and proceeded with to its final passage April 3d: Yeas 29, Nays 14.
April 11th, it passed the House: Yeas 94, Nays 44.
April 16th, it was approved by the President, who sent a Message expressing gratification that “the two principles of compensation and colonization are both recognized and practically applied in the Act.”[213]
In the interval between the passage of the bill and its approval by the President there was concern with many lest it should fail in his hands. During this painful suspense, Mr. Sumner visited the President, and said: “Do you know who at this moment is the largest slave-holder in this country? It is Abraham Lincoln; for he holds all the three thousand slaves of the District, which is more than any other person in the country holds.” He then expressed astonishment that the President could postpone the approval a single night.
Mr. Sumner spoke, March 31st, treating the case as of ransom rather than compensation. He was willing to vote money for Emancipation, but would not recognize the title of the master implied in compensation. The distinction facilitated a bolder dealing with the question, which was needed in the Rebel States.
This method was noticed especially by the New York Tribune.
“The speech of Mr. Sumner in the Senate on the Bill for the Abolition of Slavery in the District of Columbia is a statesmanlike view of the subject, which should commend it to the impartial consideration of the country. He addressed himself, not to a discussion of the character of Slavery itself, but simply to its recognition in the national capital, and advocates its removal because it is not in accordance with the Constitution. On this point his reasoning is conclusive, and is an appeal to the national self-respect which ought not to be disregarded. Not less forcible is the ground he takes on the question of compensation. Viewing it rather in the light of ransom for the slave than compensation to the master for a right surrendered, he upholds it as a duty springing from the complicity of the whole country in the existence heretofore of the system in the domain exclusively under national jurisdiction. Common sense and a sense of justice to all parties alike commend such a treatment of the subject.”
Lewis Tappan, the early and most watchful Abolitionist, wrote from New York:—
“I have just read the speech again in pamphlet form. Your able efforts in procuring the passage of this bill add another link to the golden chain by which you are bound to the good people of my native State, and, as I believe, to posterity.”
Orestes A. Brownson, able and indefatigable with his pen, recognized the idea of ransom.
“I thank you for your able speech on the Ransom of the Slaves in the District of Columbia. The term Ransom is happily chosen, and meets many scruples.”
Frederick Douglass wrote with the effusion of a freeman once a slave.
“I want only a moment of your time to give you my thanks for your great speech in the Senate on the Bill for the Abolition of Slavery in the District of Columbia. I trust I am not dreaming; but the events taking place seem like a dream. If Slavery is really dead in the District of Columbia, and merely waiting for the ceremony of ‘Dust to dust’ by the President, to you more than to any other American statesman belongs the honor of this great triumph of justice, liberty, and sound policy. I rejoice for my freed brothers,—and, Sir, I rejoice for you. You have lived to strike down in Washington the power that lifted the bludgeon against your own free voice. I take nothing from the good and brave men who have coöperated with you. There is, or ought to be, a head to every body; and whether you will or not, the slaveholder and the slave look to you as the best embodiment of the Antislavery idea now in the councils of the nation. May God sustain you!”
The speech, while addressed to the particular circumstances of the District of Columbia, presented considerations applicable to Slavery everywhere. It was a blow at Slavery outside the District, as well as inside, while it illustrated the power and duty of Congress over this subject.