SPEECH.
MR. PRESIDENT,—The independence of Hayti and Liberia has never been acknowledged by our Government down to this day. It is within the province of the President to do this at any time, either by receiving a diplomatic representative or by sending one. The action of Congress is not necessary, except so far as an appropriation is needed to sustain a mission. But the President has seen fit, in his Annual Message, to invite such action. By this bill Congress will associate itself with him in the acknowledgment, which, viewed only as an act of justice, comity, and good neighborhood, must commend itself to all candid minds.
In all respects Hayti and Liberia fulfil the requirements of International Law. Our acknowledgment can raise no question with any foreign power. Independent in fact, and with a civil government in successful operation, these two Republics are entitled to hospitable recognition in the Family of Nations, according to the rule already established by our Government.
In proposing to appoint diplomatic representatives, we necessarily contemplate the negotiation of treaties and the establishment of friendly relations with these two Republics under the sanctions of International Law, and according to the usage of nations. If it be important that such treaties should be negotiated and such relations be established, then the present bill is entitled to support. Thus far our Government, habitually hospitable to all newly formed republics, has turned aside from Hayti and Liberia, although the former has been an independent power for nearly sixty years, and the latter for nearly fifteen. Our national character has suffered from such conduct, while important commercial relations with these countries have continued without the customary support of treaties or the active protection afforded by the presence of an honored representative. It is time to end this anomalous state of things.
The arguments for the recognition of Hayti loom like her own mountains as the mariner approaches the beautiful island, rising higher and higher, while the head of the last purple peak is lost in the clouds; and the arguments for the recognition of Liberia are not inferior in character.
It was my purpose originally to consider this question in some of its larger aspects, to trace the character and history of the two Republics, to exhibit the struggles in our own country for the acknowledgment of their independence, and to vindicate this act in its manifest relations to civilization. I am happy to believe that such a discussion is unnecessary, and shall therefore content myself with a few considerations exclusively practical in character, and especially in reply to the assertion that diplomatic representatives are not needed in our concerns with these two Republics.
Hayti is one of the most charming and important islands in the world, possessing remarkable advantages in size, situation, climate, soil, productions, and mineral wealth. In length, from east to west, it is about three hundred and thirty-eight miles; and in breadth, from north to south, it varies from one hundred and forty-five miles to seventeen. Its circumference, without including bays, measures eight hundred and forty-eight miles. Its surface, exclusive of adjacent islands, is estimated at thirty thousand five hundred and twenty-eight square miles,—being about the area of Ireland, and nearly half that of New England. In size it is so considerable as to attract attention among the islands of the world. In situation it is commanding, being at the entrance to the Gulf of Mexico, and within easy reach of all the islands there. In climate it is salubrious, with natural heats tempered by sea-breezes. In soil, it is rich with tropical luxuriance, various with mountains and plains, watered by numerous rivers, and dotted with lakes. In productions it is abundant beyond even the ordinary measure of such favored regions. The mountains yield mahogany, satin-wood, and lignum-vitæ, while the plains supply all the bountiful returns of the tropics, including bananas, oranges, pine-apples, coffee, cacao, sugar, indigo, and cotton. Among the minerals are gold, silver, platinum, mercury, copper, iron, sulphur, and several kinds of precious stones. Such, in brief, is the physical character of this wonderful island, which, like Ireland, is a “gem of the sea.”
Originally discovered by Christopher Columbus, who named it Hispaniola, or Little Spain, the island was for a long time among the most valued possessions of Spain, from which power the western portion, known as Hayti, passed to France. Throwing off the government of the latter country, the Republic of Hayti for nearly sixty years has maintained its independence before the world, and performed honorably all its duties in the family of nations. At one time it embraced the whole island: at present it occupies a portion only, with a population of six hundred thousand.
The Republic of Liberia extends along the western coast of Africa for a space of five hundred miles, beginning at the British colony of Sierra Leone, with an average breadth of fifty miles, between latitude 4° 20´ and 7° 20´ north, embracing an area of thirty thousand square miles, being almost precisely the area of Hayti,—so that these two regions, one an island and the other a strip of African sea-coast, are of equal geographical extent. I say nothing of the origin of this republic, although it cannot be contemplated without the conviction that perhaps it is one of the most important colonies ever planted. At last civilization obtains foothold in Africa, almost under the equator.
In soil and productions, if not in climate, this region is hardly less favored than Hayti. Though so near the equator, the mercury seldom rises above ninety degrees in the shade, and never falls below sixty. Most of the productions in one are also found in the other. But Liberia abounds in iron ore. Copper and other metals are said to exist in the interior. It is, however, in sugar, cotton, coffee, and palm-oil that Liberia seems destined to excel. A person familiar with the country reports that it “bids fair to become one of the greatest sugar-producing countries in the world.” The population embraces some fifteen thousand persons, emigrants, or their children, from the United States, with a large native population, held in subjection and already won toward civilization, amounting to more than two hundred thousand.
With two countries like these the argument for treaties is strong, without pursuing the inquiry further. But it becomes irresistible, when we consider the positive demands of our commerce in these quarters. Even in spite of coldness, neglect, and injustice, our commercial relations have grown there to great importance. If assured of the customary protection afforded by treaties and the watchful presence of a diplomatic representative, they must become of greater importance still.
I have in my hands a tabular statement of our commerce and navigation with foreign countries for the year ending June 30, 1860, arranged according to amount, so that the country with the largest commercial intercourse stands first. This authentic testimony has been prepared at the Treasury Department, under my directions, for this occasion. Though most interesting and instructive, it is too minute to be read in debate. Here, under one head, are the exports from the United States; under another head, the imports; and, under other heads, the number of ships and tonnage: the whole so classified that we see at a glance the relative importance of foreign countries in their commercial relations with the United States.[280] Such a statement is in itself an argument.
It is to exhibit the precise position of Hayti and Liberia in the scale that I introduce this table. When it is said that out of seventy-one countries Hayti stands the twenty-seventh, and Liberia at least helps to make the twenty-ninth, this is not enough. It must be observed that there are no less than ten countries, like Canada and Cuba, which, though enumerated separately, belong to other nationalities. If these are excluded, or added to their proper nationalities, Hayti will rank as seventeenth, and Liberia will take her place as nineteenth. But if we examine this table in detail, we find the important relative position of these two countries amply sustained. Confining ourselves for the present to Hayti, we have these remarkable results.
Hayti, in exports received from us, stands next to Russia. The exports to Hayti are $2,673,682; while those to Russia amount to $2,786,835. But the imports from Hayti are $2,062,723, while those from Russia are only $1,545,164. In number of vessels employed, Hayti is much the more important to us. Only sixty vessels are employed between the United States and Russia, while four hundred and ninety are employed between the United States and Hayti. So that, in importance of commercial relations, Hayti stands above Russia, where we have been constantly represented by a Minister Plenipotentiary of the highest class, with a Secretary of Legation, and have at this moment no less than eight consuls besides.
According to this table, there are no less than fifteen countries with which the United States maintain diplomatic relations, although lower than Hayti in the scale of commerce and navigation. This is not all. In point of fact, there are at least three other countries, where we are now represented by a Minister Resident, which do not appear in any commercial tables: I refer to Switzerland, Paraguay, and Bolivia. So that there are as many as eighteen countries of less commercial importance than Hayti, with which the United States are now in diplomatic relations.
The exports to Austria, including Venice, where we are represented by a Minister Plenipotentiary of the first class, with a Secretary of Legation and three consuls, are less than one half our exports to Hayti, while the number of ships in this commerce is only forty-five, being four hundred and forty-five less than in our commerce with Hayti. The exports to Peru, where we are represented also by a Minister Plenipotentiary of the first class, with a Secretary of Legation and five consuls, are still less than those to Austria.
In this scale of commerce and navigation Hayti stands above Prussia, where we are represented by a Minister Plenipotentiary, and also above Sweden, Turkey, Central America, Portugal, the Papal States, Japan, Denmark, and Ecuador, where we are represented by Ministers Resident. It also stands above the Sandwich Islands, where we are represented by a Commissioner. Of these there are several whose combined commerce with the United States is inferior to that of Hayti. This is the case with Sweden, Turkey, Portugal, Japan, Denmark, and Ecuador, which altogether do not equal Hayti in commercial relations with the United States.
Our combined exports to Turkey in Europe and Turkey in Asia are nearly two millions less than to Hayti; and yet, with this Mohammedan Government we have felt it important within a few weeks to negotiate a treaty of commerce.
The commerce with China is among the most valuable we possess, and the ships engaged in it are of large size; but in number they are inferior to those engaged in trade with Hayti. And yet at China we have a Minister Plenipotentiary of the first class, with a salary of twelve thousand dollars, an interpreter with a salary of five thousand dollars, two consuls with salaries each of four thousand dollars, one other consul with a salary of three thousand five hundred dollars, two other consuls with salaries each of three thousand dollars, and two other consuls paid by fees.
Perhaps the comparison between Hayti and the Sandwich Islands is the most instructive. Both are islands independent in government,—Hayti with a population of six hundred thousand, the Sandwich Islands with a population of little more than seventy thousand. The exports to Hayti, as we have already seen, are $2,673,682, while the exports to the Sandwich Islands are only $747,462. And the difference in navigation is as great. In commerce with Hayti there are four hundred and ninety ships, with an aggregate of 82,360 tons, while in commerce with the Sandwich Islands there are only eighty-five ships, with an aggregate of 35,368 tons. And yet, at the Sandwich Islands, with this inferior population, inferior commerce, and inferior navigation, we are represented by a Commissioner, with a salary of seven thousand five hundred dollars, one consul with a salary of four thousand dollars, another consul with a salary of three thousand dollars, and still another paid by fees.
Nor is the interest in the trade with Hayti confined to any particular State or section of the United States. From other authentic tables it appears that the New England States send fish and cheap cottons,—Pennsylvania and the Western States send pork,—Vermont, New York, Ohio, and Illinois send beef, butter, and cheese,—Philadelphia and Boston send soap and candles,—while Maine sends lumber, and in times past Southern States have sent rice and tobacco.
Of fish Hayti in 1859-60 took from us 55,652 cwt., being much more than was taken by any other country, except Cuba, which took 59,719 cwt., and much more than was taken by all the rest of the West Indies. Of cotton manufactures Hayti took from us to the value of $227,717, being more than was taken by many other countries together, and nearly double the amount taken by Cuba and Porto Rico together, the two remaining, but valuable, American possessions of Spain. Of butter Hayti took 211,644 pounds, of cheese 121,137 pounds, of lard 675,163 pounds,—but of soap she took 2,602,132 pounds, being three times as much as was taken by any other country. Cuba, which stands next, took only 867,823 pounds, while Mexico took only 66,874 pounds.[281]
Such are some of the articles, which I mention that you may see the distribution of this commerce in our own country, as well as the extent to which, though pursued under difficulties, it has already gone.
The practical advantages from the recognition of Hayti were directly urged upon the National Government by one of its agents, even during the unfriendly administration of President Pierce. I refer to the consular return of John L. Wilson, commercial agent at Cape Haytien, under date of June 5, 1854, as follows.
“By a recognition of the independence of Hayti our commerce would be likely to advance still more. Our citizens trading there would enjoy more privileges, besides standing on a better footing. Many decided advantages might also be obtained through treaty, and our own Government exercise a wholesome influence over theirs, of which it stands much in need.”[282]
This is certainly strong testimony, although, when we consider his political relations, testimony from an unwilling witness. There is other testimony of a similar character. In the text of the elaborate report by the Department of State, from which the above is taken, is found the following weighty opinion.
“There being no treaty between the United States and Hayti, the commerce between the two countries is governed by such local laws and regulations as may from time to time be enacted. These are always subject to changes and alterations, sometimes so sudden,—decrees of to-day superseding the laws in force but yesterday,—that commercial interests, especially those of the United States, have been in many instances most seriously affected.”[283]
As late as June 25, 1850, a law was in force which subjected the vessels of all countries not acknowledging the independence of Hayti to an additional duty of ten per cent. American vessels, being within its operation, could not compete with the vessels of other nations, even in exporting to Hayti our own staples. Then, again, there was a tariff, that took effect in January, 1850, under which there was a most injurious discrimination against our trade. A despatch at that period from Aux Cayes to the Department of State says: “While the citizens of France are scarcely affected in their importations to Hayti, the Americans here import, and our merchants at home export, scarcely any article that is free.” And yet, in the face of these annoyances, and notwithstanding the embarrassments which they occasioned, our merchants have secured at least a moiety of the foreign trade of Hayti. With the encouragements bestowed on our relations with other countries, we shall enjoy a much larger proportion.[284]
If any additional motive were needed, it might be found in the political condition of the West India Islands, and the present movements in Mexico. Spain, quickened by ancient pride, has begun to recover her former foothold,[285] and it is sometimes supposed that France is willing to profit by imagined change of sentiment in her favor. Thus far the Republic of Hayti has been left without sympathy or support from our country. That it is able to sustain itself so well gives assurance of still greater strength, when surrounded by more auspicious circumstances. Nor is the influence of Hayti to be neglected in adjusting that balance of power which is daily becoming of increased importance in the West Indies. It may be of value to us that this republic should be among our friends, while it cannot be doubted that our friendship will contribute to Haytien security against danger from any quarter whatsoever. It will be remembered that Mr. Canning boasted, somewhat grandly, that he called a new world into existence to redress the balance of the old,—alluding in this way to the acknowledgment of the Spanish colonies. In the same spirit, and without any exaggeration, may it be said that by the acknowledgment of Hayti we shall provide a check to distant schemes of ambition, which have latterly menaced an undue predominance in the West Indies. In this view, the present proposition has a political importance which it is difficult to measure. It becomes a pledge of permanent peace, as well as of commerce; but it can have this character only if made effective, sincerely and honestly, according to the usage of nations.
Of the many colonies following our example and independence Hayti was the first, and yet, by strange perversity, is not even now recognized by our Government. We are told that the last shall be first and the first shall be last. This, surely, is a case where the first is last. It remains to be seen, if, under the genial influence of such recognition, Hayti may not become, among all independent colonies, first in importance to us, as it was first in accepting our example.
In acknowledging the independence of Hayti, we follow too tardily the lead of other nations. France for a long time hesitated, as Spain hesitated, to acknowledge the independence of her colonies. This concession was made in 1825, under Charles the Tenth, while Hayti stipulated by treaty to pay one hundred and fifty million francs, as well for the recognition as for indemnification to colonial proprietors. It was natural that the mother country should hesitate; but when France abandoned all claim, every objection to recognition by other nations ceased. Accordingly, this republic has been recognized, if not cordially welcomed, by Great Britain, France, Spain, Prussia, Denmark, Holland, Belgium, Portugal, Sweden, Hanover, Italy, and even by Austria, all of whom have representatives there, duly chronicled in the Almanach de Gotha.
Thus far I have confined myself to the case of Hayti. But Liberia has claims of its own. If our commercial relations with this interesting country are less important, they are nevertheless of such consequence as to require protection, while this republic may properly look to us for parental care.
The commercial tables by which I have illustrated so completely the relative importance of Hayti are less precise with regard to Liberia, inasmuch as this republic, owing to unhappy prejudices in recent Administrations, was not allowed a separate place in the tables, but was concealed under the head of “Other Ports in Africa.” From authentic sources I learn that the exports from the single port of Monrovia for the year 1860 amounted to near $200,000, while those from the whole republic amounted to as much as $400,000.
I forbear details with regard to the commerce of Liberia. It is enough that it is already considerable, and is increasing in value, although Great Britain, by a treaty, and the cultivation of friendly relations, has done something to divert this commerce from the United States. But it is not too late for us to enter into a treaty, and to establish similar friendly relations. If, beyond the impulse of self-interest, we need anything to quicken us, we shall find it in the judgment of Henry Clay, who, in a letter dated Ashland, October 18, 1851, uses these positive words:—
“I have thought for years that the independence of Liberia ought to be recognized by our Government, and I have frequently urged it upon persons connected with the Administration,—and I shall continue to do so, if I have suitable opportunities.”
In taking this step, and entering into a treaty with Liberia, we only follow the example of commercial nations. Nor can I doubt that we must in this way essentially promote our own commercial interests. Liberia is so situated, that, with the favor of the National Government, it may become the metropolitan power on the whole African coast, so that the growing commerce of that continent will be to a great degree in its hands.
I do not dwell at length on the general advantages from the recognition of these two powers, nor do I enlarge on the motives of justice. I mean to state the case simply, without introducing any topic which can justly cause debate in this body. It is enough that the acknowledgment is required for our own good. Happily, in benefiting ourselves we shall promote the interests of others.
There is one consequence which I cannot forbear to specify. Emigrants to these Republics will be multiplied by such recognition, while every emigrant, when happily established, will create an additional demand for the productions of our commerce, and contribute to the number of American keels which plough the ocean.
And there is yet one other consequence, which ought to be presented expressly. Our commerce will be put at once under the solemn safeguard of treaty, so that it will enjoy that security which is essential to its perfect prosperity, and can no longer suffer from discriminating duties or hostile legislation, aroused by a just sensibility at our persevering illiberality. If you would have such treaties, you must begin by an acknowledgment of independence.
Sir, there is one business only which can suffer by this measure: I mean that of counterfeit money. You know, Sir, that, by a familiar rule of International Law, declared by the Supreme Court of the United States,[286] it belongs exclusively to the political department of the Government to determine our relations with a foreign country. And since our Government refuses to acknowledge Hayti, our courts of justice are obliged to do so likewise; so that, when criminals are arraigned for counterfeiting the money of Hayti, they decline all jurisdiction of the offence. As Hayti is not a nation, it cannot have money. Such is the reasoning, and the counterfeiters go free. It is said that during the past thirty years millions of false dollars have in this way been put in circulation. A case has occurred only recently, where the counterfeiter was promptly discharged, while the witness alone seemed to be in danger. It is time that such an outrage should be stopped.
It may be said that the same objects can be obtained by consuls, instead of commissioners. It is clear that it is not the habit of the United States to enter upon negotiations and open friendly relations with foreign states through consuls. And it is also clear, that, according to the usage of nations, consuls are not entitled to the same consideration with diplomatic representatives. Their influence is less, whether in dealing with the Government to which they are accredited, or with the representatives of other powers at the same place. On this point I content myself with reading the words of Mr. Wheaton.
“Consuls are not public ministers. Whatever protection they may be entitled to in the discharge of their official duties, and whatever special privileges may be conferred upon them by the local laws and usages, or by international compact, they are not entitled by the general Law of Nations to the peculiar immunities of ambassadors. No state is bound to permit the residence of foreign consuls, unless it has stipulated by convention to receive them. They are to be approved and admitted by the local sovereign, and, if guilty of illegal or improper conduct, are liable to have the exequatur which is granted them withdrawn, and may be punished by the laws of the state where they reside, or sent back to their own country, at the discretion of the Government which they have offended. In civil and criminal cases they are subject to the local law, in the same manner with other foreign residents owing a temporary allegiance to the state.”[287]
It may be true that negotiations are sometimes conducted by consuls, but very rarely; and the exceptions testify to the prevailing policy. Ministers are the received agents of diplomacy. Any other agent must be inferior in weight and character. If this be true,—and it is undeniable,—then obviously the objects now proposed can be most fitly and effectively accomplished only by diplomatic representatives. And since what is worth doing is worth well doing, I hope there will be no hesitation. Here again the example of the great European powers may properly influence us. England, France, and Spain have diplomatic representatives at Hayti, who are reputed to discharge their responsible duties with activity and ability. All these have the advantage of subsisting treaties. Our treaty remains to be negotiated. To do this in such a way as to secure for our various interests all proper advantages must be our special aim. Any further neglect on our part can be nothing less than open abandonment of these various interests. Too long already has this sacrifice been made.
Mr. President, a full generation has passed since the acknowledgment of Hayti was urged upon Congress. As an act of justice too long deferred, it aroused even then the active sympathy of multitudes, while as an act for the benefit of our commerce it was ably commended by eminent merchants of Boston and New York without distinction of party. It received the authoritative support of John Quincy Adams, whose vindication of Hayti was associated with his best labors in the other House. The right of petition, which he steadfastly maintained, was long ago established. Slavery in the national capital is now abolished. It remains that this other triumph shall be achieved. Petitioners, who years ago united in this prayer, and statesmen who presented the petitions, are dead. But they will all live again in the good work they generously began.
Mr. President, this is the statement I have to make on this important question. As I know that the Senator from Kentucky [Mr. Davis] desires to move an amendment, I shall not ask a vote to-day; but I propose that the further consideration of the bill be postponed until to-morrow at half past twelve o’clock, when I hope we may have a vote upon it.
The motion was agreed to.
April 24th, the Senate, as in Committee of the Whole, resumed the consideration of the bill to authorize the President of the United States to appoint diplomatic representatives to the Republics of Hayti and Liberia respectively. Mr. Davis, of Kentucky, moved to strike out all after the enacting clause, and insert:—
“That the President of the United States be, and hereby is, authorized, by and with the advice and consent of the Senate, to appoint a consul to the Republic of Liberia, and a consul-general to the Republic of Hayti, respectively, with powers to negotiate treaties of amity, friendship, and commerce between the United States and those Republics.”
In the course of his remarks, Mr. Davis expressed himself as follows.
“Mr. President,—I am weary, sick, disgusted, despondent with the introduction of the subject of Slaves and Slavery into the Chamber; and if I had not happened to be a member of the committee from which this bill was reported, I should not have opened my mouth upon the subject.… I oppose the sending of ambassadors of any class from our Government to theirs upon this consideration: it would establish diplomatically terms of mutual and equal reciprocity between the two countries and us. If, after such a measure should take effect, the Republic of Hayti and the Republic of Liberia were to send their ministers plenipotentiary or their chargés d’affaires to our Government, they would have to be received by the President, and by all the functionaries of the Government, upon the same terms of equality with similar representatives from other powers. If a full-blooded negro were sent in that capacity from either of those countries, by the Laws of Nations he could demand that he be received precisely on the same terms of equality with the white representatives from the powers of the earth composed of white people. When the President opened his saloons to the reception of the diplomatic corps, when he gave his entertainments to such diplomats, the representatives, of whatever color, from those countries, would have the right to demand admission upon terms of equality with all other diplomats; and if they had families consisting of negro wives and negro daughters, they would have the right to ask that their families also be invited to such occasions, and that they go there and mingle with the whites of our own country and of other countries that happened to be present. We recollect that a few years ago the refined French court admitted and received the representative of Soulouque, who then denominated himself, or was called, the Emperor of Dominica, I think.”
Mr. Sumner. “Of Hayti.”
Mr. Davis. “Well, a great big negro fellow, dressed out with his silver or gold lace clothes in the most fantastic and gaudy style, presented himself in the court of Louis Napoleon, and, I admit, was received. Now, Sir, I want no such exhibition as that in our capital and in our Government. The American minister, Mr. Mason, was present on that occasion, and he was sleeved by some Englishman—I have forgotten his name—who was present, who pointed him to the ambassador of Soulouque, and said, ‘What do you think of him?’ Mr. Mason turned round and said, ‘I think, clothes and all, he is worth a thousand dollars.’ [Laughter.]
…
“Mr. President, I regret to have felt myself forced to speak the words upon this subject I have. I do begin to nauseate the subject of Slaves and Slavery in debate in this Chamber; and it was only because this measure has been perseveringly and uniformly opposed from the Slave States heretofore, and I know is distasteful, to a very considerable extent, to the people of those States, and because the measure, in the form in which it has been reported, would have the effect, in my opinion, to increase this feeling, that I have thought it incumbent on me to say a word.”
Mr. Sumner. Mr. President, the Senate will bear me witness, that, in presenting this important question yesterday, I made no allusion to the character of the population in the two Republics. I made no appeal on account of color. I did not allude to the unhappy circumstance in their history, that they had once been slaves. It is the Senator from Kentucky who introduces this topic. And not only this, Sir, he follows it by alluding to some possible difficulties—I hardly know how to characterize them—which may occur in social life, should the Congress of the United States undertake at this late day, simply in harmony with the Law of Nations, and following the policy of civilized communities, to pass this bill. I shall not follow the Senator on those sensitive topics. I content myself with a single remark. More than once I have had the opportunity of meeting citizens of these Republics, and I say nothing beyond the truth when I add that I have found them so refined and so full of self-respect as to satisfy me that no one of them charged with a mission from his Government can seek any society where he will be not entirely welcome. Sir, the Senator from Kentucky may banish all personal anxiety. No representative from Hayti or Liberia will trouble him.
But the proposition of the Senator makes a precise objection to the bill, which I am ready to meet. He insists that we shall be represented by consuls only, and not by diplomatic agents. Yesterday, in the remarks I had the honor of addressing to the Senate, I anticipated this very objection. I quoted then the authoritative words of Mr. Wheaton in his work on the Law of Nations, where he sets forth the distinction between ministers and consuls, and shows the greater advantage from a representation by one than by the other. I follow up that quotation now by reading from another work. It is a treatise on International Law and the Laws of War by General Halleck; and as I quote this authority, which is not yet much known, I venture to remark that I doubt if there is any recent contribution to the literature of the Law of Nations of more practical value. In a few words he states the character of consuls. I quote from him as follows.
“Consuls have neither the representative nor diplomatic character of public ministers. They have no right of ex-territoriality, and therefore cannot claim, either for themselves, their families, houses, or property, the privileges of exemption which by this fiction of law are accorded to diplomatic agents, who are considered as representing, in a greater or less degree, the sovereignty of the state which appoints them. They, however, are officers of a foreign state, and, when recognized as such by the exequatur of the state in which they exercise their functions, they are under the special protection of the Law of Nations. Consuls are sometimes made also chargés d’affaires, in which cases they are furnished with credentials, and enjoy diplomatic privileges; but these result only from their character as chargés, and not as consuls.”[288]
The Committee who had the subject in charge, taking it into careful consideration,—as I believe the Senator from Kentucky, who is a member of the Committee, will confess,—deliberately reached the conclusion that it was advisable for the United States at present to be represented at each of those Republics by a person of diplomatic character. The Committee put aside the proposition that we should be represented merely by a consul. It was felt that such an officer would not adequately do all that our country might justly expect to have done. Nor is this all. We were guided also by the precedents of our Government. There are eighteen different states lower down in the scale of commerce and navigation with the United States, where we are now represented by diplomatic representatives. One of these, as I explained yesterday, is the Sandwich Islands, with a population of only seventy thousand, and with a commerce and navigation vastly inferior to that between the United States and Hayti.
Mr. Davis. I think we have too many.
Mr. Sumner. Possibly. I go into no inquiry on that point. Suffice it to say we already have these eighteen diplomatic representatives, and one of these is at the Sandwich Islands, with a population, a commerce, and navigation inferior to those of Hayti. Besides, at the Sandwich Islands we have three consuls highly paid. If we have too many, let us reduce the list, but do not commence our economies on Hayti and Liberia.
The Committee in their conclusion followed the usage of nations, and also the example of the great powers at Hayti. In presenting this measure, I make no appeal on account of an oppressed race. I urge it simply as an act for our own good. We go about the world hunting up the smaller powers, where to make treaties and to place diplomatic representatives, under the temptation of petty commercial advantage. Thus far we have stood aloof from two important opportunities of extending and strengthening our influence. It is time to change.
The proposition of Mr. Davis was rejected,—Yeas 8, Nays 30.
Mr. Saulsbury, of Delaware, then said:—
“After the vote just taken in the Senate, I shall not trespass upon their attention, as I intended to do,—only for a brief period, however. It is evident that this bill is going to pass. I want the country, however, to know that according to the rules of the Senate foreign ministers have a right upon this floor, and we have set apart a portion of the gallery for the ministers and their families. If this bill should pass both Houses of Congress and become a law, I predict that in twelve months some negro will walk upon the floor of the Senate of the United States and carry his family into that gallery which is set apart for foreign ministers. If that is agreeable to the taste and feeling of the people of this country, it is not to mine; and I only say that I will not be responsible for any such act. With this I will content myself.”
The question, on the passage by yeas and nays, resulted, Yeas 32, Nays 7.
So the bill was passed.
June 3d, the bill passed the House,—Yeas 86, Nays 37.
The passage of this bill was felt to be an important stage in the warfare with Slavery. Governor Andrew saw it so, and wrote:—
“The triumphant and exemplary majority which the Hayti bill obtained in the Senate is most gratifying. I am greatly rejoiced. The law, when passed, will be a recognition of the Colored Man, not merely of Hayti. It is a jewel in your crown.”
Joshua Leavitt, of New York, the tried Abolitionist, also saw it so, and wrote:—
“Allow me to congratulate you on the splendid vote in the Senate on Haytien recognition. I think it shows the benefit of waiting for the right time, and then striking. This action is final in regard to the supremacy of the Slave Power. How can they administer a government that is in amity with a nation of insurgent negro slaves?”
The joy in Hayti was reported by Seth Webb, Jr., our Commercial Agent at Port-au-Prince.
“We all admire the way you steered the recognition through the Senate, and can only hope for as good a pilot in the House.
“The news of the passage of the Recognition Bill through the Senate was received here about the same time with that of the taking of Yorktown and Williamsburg, and diffused real joy among all classes. The American residents illuminated their houses, and had a good time generally.
“Your speech on the passage of the Recognition Bill attracts great attention here, and, when printed in full, will be extensively read.”[289]
Hon. Benjamin C. Clark, an eminent merchant, acting as Consul of Hayti at Boston, wrote with the feelings of an American citizen, as well as of a Haytien representative.
“The passage of the bill under your thorough exposition of the subject will be a big white stone in our pathway as a nation, and a gravestone to the vampires and Vandals who have left nothing by the wayside but works of treason leading to bloodshed and desolation.”
The feelings of the Haytien people were communicated by the following letter.
“Consulate of Hayti, New York, 26 April, 1862.
“Sir,—I have the honor to express my high appreciation of the important services you have so untiringly rendered to Hayti, for which you receive the gratitude of all liberal and benevolent persons who desire justice and political equality accorded to all men, and especially, in the present instance, to a people who, under many embarrassments, have nobly maintained their position, and are daily advancing in intellectual culture and in the refinements of civilized life.…
“My despatches announcing the recognition were forwarded yesterday by a vessel sailing directly for the Bay of Port-au-Prince, and duplicates of my despatches will be sent on Monday by a fast vessel for Port-au-Prince.
“I know the character of the Haytiens thoroughly, having lived among them some fifteen years, eight years of the time as Commercial Agent of the United States, and I can imagine their hearts swelling with pleasure and gratitude on the reception of the good news; and your name, Sir, will be held in kind remembrance as long as Hayti exists.
“Be pleased, Sir, to accept assurance of my distinguished consideration.
“George F. Usher, Hayti Commercial Agent.
“Hon. Charles Sumner, United States Senator, &c., &c., &c., Washington.”
The sentiments of Liberia were conveyed in the following.
“Washington, D. C., 10th June, 1862.
“Dear Sir,—The children of Africa all over the globe owe you the deepest gratefulness and lasting honor, for you have been most prompt and punctual in vindicating their cause, in advancing their interests, and even in suffering in their behalf. But recently you have participated in an act which touches with benignant power upon the great home of this race, and which, combining with the generous and beneficent policy of other great nations, will, without doubt, serve to stir to unusual activity and to move with a civilizing and saving power millions of human beings throughout the entire continent of Africa.
“To you, Sir, to a very considerable degree, we owe the recognition of the Republic of Liberia by the Government of the United States.
“Had it not been for your masterly policy and your wise discretion, allied to a most persistent determination, we have reason to doubt whether the Bill of Recognition would not have met with a miscarriage during the present session of Congress.
“Thanks to your fast friendship, it has not failed, and the Republic of Liberia has been brought, through wise and cordial legislation, into brotherhood with the great Republic of America. And believe us, Sir, your name and memory will never be forgotten by us. Your virtues and excellencies shall be recited to our children’s children, your philanthropic course and painful labors shall be held up for imitation to our aspiring youth, and your effigy shall adorn the halls of legislation, of letters, and of art in Liberia, with all the other great benefactors of our country and our race, as advancing civilization shall rear stately structures and noble courts.
“In our own behalf, and in behalf of the young nation we represent, we tender you cordial congratulations and our sincerest thanks, and we are, Sir,
“Your obedient servants,
“Alex. Crummell,
“Edward W. Blyden,
“J. D. Johnson,
“Commissioners from Liberia, &c., &c.
“Hon. Charles Summer.”
In the summer of 1871, the memory of this effort was revived by a beautiful medal offered to Mr. Sumner in the name of the Haytien people, as an expression of gratitude for his defence of their independence on two different occasions,—the first being the present speech, and the other a later effort, growing out of the attempt to annex Dominica, with menace to Hayti. As Mr. Sumner felt it his duty to decline the medal, the Haytien Minister placed it in the hands of the Governor of Massachusetts, who deposited it in the Library of the State-House.
FINAL SUPPRESSION OF THE SLAVE-TRADE.
Speech in the Senate, on the Treaty with Great Britain, April 24, 1862.
Early in the spring of 1862, Mr. Seward conferred with Mr. Sumner on a treaty with Great Britain for a mutual and restricted right of search and mixed courts, with a view to the suppression of the slave-trade. The negotiation was opened and proceeded successfully. April 7th, Mr. Sumner, being at the State Department, had the happiness of witnessing the signature of this treaty by Mr. Seward and Lord Lyons. April 11th, it was communicated to the Senate in Executive Session, and referred to the Committee on Foreign Relations. April 15th, it was reported to the Senate by Mr. Sumner, with the recommendation that the Senate advise and consent thereto. April 22d, it was brought up in the Senate, when Mr. Sumner moved the usual resolution of ratification. April 24th, on motion of Mr. Sumner, the Senate proceeded to consider the resolution of ratification. The yeas and nays were dispensed with by unanimous consent, and the resolution was agreed to without a dissenting vote.
MR. PRESIDENT,—Already a slave-trader has been executed at New York, being the first in our history to suffer for this immeasurable crime.[290] English lawyers dwell much upon treason to the king, which they denounce in a term borrowed from ancient Rome as lese-majesty; but the slave-trade is treason to man, being nothing less than lese-humanity. Much as I incline against capital punishment, little as I am disposed to continue this barbarous penalty, unworthy of a civilized age, I see so much of good in this example at the present moment, that I reconcile myself to it without a pang. Clearly it will be a warning to slave-traders, and also notice to the civilized world that at last we are in earnest, while it helps make the slave-trade detestable. Crime is seen in the punishment, and the gallows sheds upon it that infamy which nothing short of martyrdom in a good cause can overcome.
The important treaty now before the Senate is to enforce on a large scale final judgment against the slave-trade. It is to do with many what has just been done with an individual. Our flag is desecrated by this hateful commerce; ships equipped in New York are tempted by its cruel gains. To stop this has been impossible, while Slavery prevailed in the National Government. How could our courts judge the slave-trader, how could the National Government set itself against the hateful commerce, while Slavery occupied all the places of power? But this is changed. If Emancipation is yet longer delayed, Slavery is at least dislodged from its predominant influence. Therefore is the way free for action against the slave-trade.
The treaty proceeds on the idea of earnest work, and it recognizes two especial agencies, each of which has been discussed between the two Governments in former years, but has always failed of adoption. The first is a mutual and restricted right of search, and the second is the well-known system of mixed courts, for the enforcement of the treaty.
The treaty has just been read, so that I need not recite in detail the terms of these two provisions. I pass at once to the consideration of their origin and necessity.
There was a time when our country was open and earnest against the slave-trade. A well-known provision of the Constitution, classed among original compromises, restrained Congress from prohibiting it prior to the year 1808; but, just so soon as it had the power, Congress acted. Its promptitude justified the enthusiasm with which Judge Story in his Commentaries remarks: “It is to the honor of America that she should have set the first example of interdicting and abolishing the slave-trade in modern times.”[291] By Act of Congress, bearing date as early as March 2, 1807, and to take effect January 1, 1808, the importation of slaves into the United States was prohibited, under penalties of imprisonment, fine, and forfeiture. These were increased by Act of Congress of April 20, 1818. But mild and moderate enactments were not enough; and at length, by Act of May 15, 1820, Congress was constrained to declare the slave-trade piracy, and to punish it with death. Since then this offence has stood in the catalogue of capital crimes.
Already this immense subject had occupied the attention of the great European powers. In the Treaty of Paris in 1814, Great Britain and France united against what was denounced as “a species of commerce equally repugnant to the principles of natural justice and the lights of the times.”[292] This was followed by the Treaty of Ghent, at the close of the same year, in which the United States and Great Britain denounced the traffic in slaves as “irreconcilable with the principles of humanity and justice,” and promised their best endeavors for its suppression.[293] Then came the Treaty of Vienna, where the great powers joined in declaring it “repugnant to the principles of humanity and of universal morality.”[294] These were declarations only. The next attempt was to find a system of action, which should be effective against the Protean monster in the many metamorphoses it was able to assume, and here England nobly took the lead.
Lord Castlereagh instructed the Duke of Wellington, the British ambassador at Paris, to obtain from France the concession of a mutual right of search for the enforcement of the denunciation in which they were agreed; but this was found unwelcome to the French Government, and therefore not pressed at the time. Such was the beginning of the proposition, which, after various fortunes, is at last recognized in the treaty now before us.
Meanwhile negotiations were opened on our side particularly with Great Britain. These seem for a time to have had the sanction not only of the Executive, but of Congress, or at least of the House of Representatives. Messages from the President, calling attention to the slave-trade, were answered by reports from special committees of the House of Representatives. One of these, made February 9, 1821, concluded with a resolution, “That the President of the United States be requested to enter into such arrangements as he may deem suitable and proper with one or more of the maritime powers of Europe for the effectual abolition of the African slave-trade.” The report, while declaring that “to efface this reproachful stain from the character of civilized mankind would be the proudest triumph that could be achieved in the cause of humanity,” proceeds to announce, in words applicable to the present moment, that “this happy result, experience has demonstrated, cannot be realized by any system, except a concession by the maritime powers to each other’s ships of war of a qualified right of search.”[295] Another report, by a select committee of the House, April 12, 1822, adopted the resolution of the previous committee, and also the recommendation of a mutual right of search, adding, that it could not be doubted “that the people of America have the intelligence to distinguish between the right of searching a neutral on the high seas in time of war, claimed by some belligerents, and that mutual, restricted, and peaceful concession by treaty, suggested by your Committee, and which is demanded in the name of suffering humanity.”[296]
Then came the devoted efforts of Charles Fenton Mercer, an admirable representative of Virginia, who exposed this terrible traffic with a pathos not to be forgotten. On his motion, another resolution was adopted, February 28, 1823, by a vote of one hundred and thirty-one yeas to only nine nays, calling upon the President to enter into negotiations “for the effectual abolition of the African slave-trade, and its ultimate denunciation as piracy, under the Law of Nations, by the consent of the civilized world.”[297] The character of this resolution was impaired by the rejection of an amendment, “and that we agree to a qualified right of search,”[298] which was a falling off from the recommendations of the two committees.
The Executive responded to Congress, and, under instructions from John Quincy Adams, Secretary of State, a treaty was negotiated with Great Britain, bearing date March 13, 1824, in which it was stipulated that the ships of the two powers might “cruise on the coasts of Africa, of America, and of the West Indies, for the suppression of the slave-trade,” and empowering them under certain restrictions to detain and capture vessels engaged in this traffic.[299] Important in substance, this treaty became important historically. Although the clause quoted appeared in the original draught sent out from Washington, yet the treaty was ratified by the Senate only on the condition that the words “of America” were struck out, thus excluding operations of British cruisers along the whole extent of American coast.[300] This was fatal to the treaty, as the British Government would not accept the condition. The case is memorable, not only as a check to negotiations for the suppression of the slave-trade, but as a conspicuous instance, where the Senate, in dealing with a power like Great Britain, did not shrink from asserting its prerogative under the Constitution, not less decisive than the tribunitial veto.
Thus it stood. Our own Government had proposed a modified search on the coast of America, but this was point-blank refused by the Senate. It appears that the proposition was made contrary to the judgment of Mr. Adams. His sense of wrong from the long-continued search exercised by British cruisers was so keen that he would not willingly furnish any excuse for its revival; and such, it was feared, might be the concession. Afterwards, in the revelations which he sometimes made to the House of Representatives, he declared his repugnance to this negotiation, and the way it was overcome. The same repugnance, doubtless, influenced Senators in the vote on the treaty, increased by a growing sentiment for Slavery, which the debates on the Missouri Compromise had quickened.
Mr. Adams’s statement made in debate at a later day lets us behind the scenes at an important period. After describing the proposition for a mutual right of search, the veteran said:—
“It was utterly against my judgment and wishes; but I was obliged to submit, and I prepared the requisite despatches to Mr. Rush, then our minister at the court of London. When he made his proposal to Mr. Canning, Mr. Canning’s reply was, ‘Draw up your convention, and I will sign it.’ Mr. Rush did so, and Mr. Canning, without the slightest alteration whatever, without varying the dot of an i or the crossing of a t, did affix to it his signature,—thus assenting to our own terms in our own language. The convention came back here for ratification; but in the mean while another spirit came over the feelings of this House, as well as of the Senate. A party had been formed against the Administration of Mr. Monroe; the course of the Administration was no longer favored, and the House came out in opposition to a convention drawn in conformity to its own previous views.… The Senate ratified the treaty, giving the right of search in the fullest manner to Great Britain, with the exception, I think, of one article, which extended the right to the coast of the United States: that was rejected.”[301]
This statement from an eminent quarter shows how at another time the opposition to a mutual right of search became manifest. It is for the Senate to determine if the time has not come for this opposition to cease.
Not disheartened by failure with the United States, Great Britain pursued her honorable policy, enlisting Government after Government, until nearly all the maritime powers of Europe, moved by a common sentiment of humanity, had conceded a mutual and restricted right of search, with the single object of suppressing the slave-trade. The famous Quintuple Treaty of 1841 between the great powers consecrated the same principle on a wider theatre; but, owing to the extraordinary efforts of General Cass, our Minister at Paris, France was induced to withhold her assent, yielding, I fear, to an irritated Anglophobia and to the growing pretensions of Slavery. The treaty was duly ratified by Great Britain, Russia, Prussia, and Austria. As a substitute, stipulations for naval coöperation were adopted between Great Britain and France,—also between Great Britain and the United States. And still Great Britain persevered in this glorious championship, until, in 1850, it was her boast that she stood party to no less than twenty-four treaties denouncing the slave-trade, of which ten conceded a mutual right of search and mixed courts, twelve conceded search with trial only before home tribunals, and two provided for naval coöperation.[302]
This summary brings us to the present treaty, where we find a mutual and restricted right of search and mixed courts for certain purposes, but with the trial of criminals only before home tribunals.
If at an earlier day there was reason to be sensitive about any concession of the right of search, especially to Great Britain, always so exacting on the ocean, that day has happily passed. The reason ceasing, so also should the opposition cease. Even if the acknowledged power of the United States and the enlightened opinion of the civilized world did not remove the liability to abuse, making it so absolutely impossible as not to be an element in the case, we cannot forget a recent signal event, when Great Britain openly renounced that tyrannous pretension which so stirred the soul of the whole American people, never again to assert it. This was done in solemn demand for the rendition of Mason and Slidell, who had been taken by a national cruiser, acting in precise conformity with early and constant British practice. Therefore on this account there need be no solicitude. Conceding search for the suppression of the slave-trade, we furnish no excuse and open no door for that other search, always so justly offensive, which finally brought war in its train. Such a concession now is only an addition to international policy demanded by the civilization of the age.
Nor need there be any jealousy on account of Slavery; for this power is disappearing. If, unhappily, it is not yet extinct, if it still lingers in prolonged malignant existence, it has ceased to sway the National Government. Therefore I see no reason why the sensibilities of its partisans should be consulted.
Another possible objection to the treaty is more technical. This also was presented by John Quincy Adams, when he spoke of mixed courts “as inconsistent with our Constitution,”[303] because the judges are not appointed, nor do they hold office, according to its well-known requirements. But this objection, if entitled to any consideration, is mitigated in the present treaty, which hands over the slave-trader for trial in the home courts of the captor, leaving to the mixed courts only the condemnation and destruction of the slave-ship. But whatever doubts might have prevailed at an earlier period, when the question was less understood, it is plain now that this objection is wholly superficial and untenable. Besides courts known to the Constitution and subject to its requirements, there are others extra-constitutional, like courts in the Territories, where the judges hold for four years instead of during good behavior, and yet are recognized by the Supreme Court of the United States.[304] Like Territorial courts, mixed courts are plainly extra-constitutional, standing on the treaty power and the practice of nations,—as courts martial are also extra-constitutional, standing on the war power and the practice of nations.
Among frequent means for the determination of international questions are mixed courts or mixed commissions in various forms, where different nations are represented. Such tribunals are the natural incident of treaties, and were recognized as such at the beginning of our history. Nor is it easy to see how treaties can be consummated without their ancillary help. A mixed commission, where our country was represented, sat at London under Jay’s Treaty, deciding numerous cases; and similar commissions have been sitting ever since. The Jay Commission was originally criticized on the ground that judicial power cannot be vested except according to the Constitution,[305]—being the very objection to mixed courts in anti-slave-trade treaties, that occupied so much attention at a later day, and to which I am now replying. But nobody now doubts that this commission was proper. The proposed tribunal, though differing in purpose, proceeds from the same fountain of power. It is kindred in character and origin. Now, without considering if the objection to mixed courts is not equally strong against a crowned head as arbitrator, as when the French Emperor sat in judgment on the long-pending litigation between the United States and Portugal in the General Armstrong case, it is obvious that all the international tribunals constituted by treaty, whether an emperor or a commissioner, are sustained by unbroken usage as well as by reason. To insist that the restrictions of the Constitution, evidently intended for the national judicature, are applicable to these outlying tribunals, is to limit the treaty power and to curtail the means of justice beyond the national jurisdiction. Mixed courts are familiar to International Law, and our country cannot afford to reject them, least of all on a discarded technicality which would leave us isolated among nations.
It remains only that we make haste to ratify the treaty, nor miss the great opportunity. A moment lost is a concession to crime. Therefore must we be prompt.
Foreign nations will not fail to recognize this open pledge to Human Rights, and the Rebels will discern a new sign of the national purpose. Abroad and at home we shall be strengthened. The Rebellion itself will feel the blow, and ambitious Slavery foresee its doom.
As soon as the vote was announced in the Senate, Mr. Sumner hastened to Mr. Seward at the State Department. It was five o’clock in the afternoon, and the Secretary was reposing on a sofa. On hearing the words, “The treaty is ratified unanimously,” he exclaimed, “Where —— were the Democrats?” His joy was great, and Lord Lyons, on learning the result, was not less happy. It is much in a diplomatic career to sign any treaty, but it was an event to have signed a treaty promising the final extinction of an infinite scandal and curse to humanity.
Subsequent action was prompt. The treaty was ratified by the Senate April 24th; ratifications were exchanged in London May 25th; the treaty was proclaimed by the President June 7th, 1862.
June 10th, a message of the President, transmitting a copy of the treaty, with correspondence between Mr. Seward and Lord Lyons in relation to it, was laid before the Senate, and on motion of Mr. Sumner referred to the Committee on Foreign Relations, and ordered to be printed.
June 13th, Mr. Sumner reported from the Committee a bill to carry the treaty into effect, providing for the appointment, with the advice and consent of the Senate, of a judge and also an arbitrator on the part of the United States to reside at New York, a judge and also an arbitrator to reside at Sierra Leone, and a judge and also an arbitrator to reside at the Cape of Good Hope,—all the judges to be paid $2,500 annually, the arbitrator at New York $1,000, and the arbitrators at Sierra Leone and the Cape of Good Hope $2,000 respectively.
Owing to the pressure of business incident to the latter days of a very crowded session, Mr. Sumner was not able to call it up immediately. June 26th, on his motion, it was considered and passed: Yeas, 34; Nays, only 4.
Among the nays was Mr. Saulsbury, of Delaware, who remarked:—
“I do not object to the suppression of the African slave-trade, but I do not believe that this Government has the constitutional right to establish any such court. I think the treaty ought not to have been adopted.”
July 7th the bill passed the House, and July 11th was approved by the President.
The importance of this treaty had not been exaggerated. The Journal des Débats, organ of French intelligence at Paris, in its enunciation, June 15, 1862, of the objects accomplished by the National Government, says: “There is a treaty with England, which, loyally executed, must soon render the slave-trade almost impossible.”
The slave-trade became almost impossible, so that practically it ceased to exist. The terror of the law, with these provisions for its enforcement, sufficed at last to deter the perpetrators of this inhuman crime, and the ocean, so often traversed by slave-ships, became like a peaceful metropolis with a well-ordered police.
This great result was without the capture of a single vessel. It was enough that at last we were in earnest. Judges and arbitrators found themselves without employment, when, in an appropriation bill, of March 3, 1869, Congress called on the President, with the consent of Great Britain, to terminate that part of the treaty requiring mixed courts and their annual outlay.[306] This was done by treaty between the two powers, signed at Washington, June 3, 1870; so that the mutual right of search for the suppression of the slave-trade alone remained.
ENFORCEMENT OF EMANCIPATION IN THE DISTRICT.
Resolution and Remarks in the Senate, April 28, 1862.
April 18th, Mr. Sumner offered the following resolution, which was considered by unanimous consent, and adopted.
“Resolved, That the Secretary of the Interior be requested to furnish, for the use of the Senate, a list of all persons residing in the District of Columbia who appear in the returns of the last census as owners of slaves, indicating the number claimed to be owned by each person, with the classification of their ages according to the returns.”
April 28th, the Secretary of the Interior accompanied the return with the suggestion, that, as it exposed the private affairs of individuals, it was questionable “whether it would be proper to print it for circulation.” On hearing this communication read at the desk, Mr. Sumner moved its reference to the Committee on the District of Columbia, and remarked:—
MR. PRESIDENT,—In offering the resolution, I felt that I was doing good service to the Commissioners appointed to carry out our recent measure of Emancipation, and I felt also that I was helping to correct possible abuses in anticipation of its operation.
I have been sorry to hear of efforts during the last few weeks to run able-bodied slaves out of the District. Slavery is often called a patriarchal institution, and I am anxious to see how many of the patriarchs, in avoidance of the action of Congress, have transported slaves beyond the reach of its beneficent power. Such an outrage ought to be exposed. I confess that I find no good reason for delicacy towards persons so guilty. I am sure that freedom and truth will be gainers, when such conduct is laid bare. I cannot doubt that the object proposed is important.
These statistics should be brought before the Senate, if not before the country. They will be needed by the Commissioners, and I am sure they will do something to illustrate the character of Slavery.
The motion was agreed to.
THE CONDUCT OF OUR GENERALS TOWARDS FUGITIVE SLAVES.
Speech in the Senate, on a Resolution of Inquiry, May 1, 1862.
May 1st, on motion of Mr. Wilson, of Massachusetts, the Senate resumed the consideration of the following resolution, submitted by him on the 3d of April.
“Resolved, That the Committee on Military Affairs and the Militia be directed to consider and report whether any further legislation is necessary to prevent persons employed in the military service of the United States from aiding in the return of or control over persons claimed as fugitive slaves, and to punish them therefor.”
MR. PRESIDENT,—Some time has elapsed since we listened to the persuasive speech of the Senator from Iowa [Mr. Grimes], but, unhappily, the subject is fresh still. The character, if not the efficiency, of our armies is concerned in the complete enforcement of the late legislation with regard to slaves. If this legislation be set at defiance, or evaded, I think that our military strength will be impaired, and I am sure that our good name must suffer.
I am grateful to the Senator from Iowa for the frankness with which he exposed and condemned the recent orders of several of our generals.
One of these officers, though last from California, was originally of Massachusetts. He served honorably in the Mexican War, and, I believe, is an excellent soldier. His present position as a general is due partly to my exertions. I pressed his appointment. But, had I for a moment imagined he could do what he has just perpetrated, he would never have had my support. When an officer falls bravely in defence of his country, honest pride mingles with the regret that we feel. But when an officer falls as General Hooker has now fallen, there is nothing but regret. He has fallen, although not dead. I say this with pain; but I cannot say less.
The order of General Hooker has been quoted by the Senator from Iowa [Mr. Grimes]. I ask leave to read part of a letter which I have received from his camp.
“I take the liberty of forwarding to you the enclosed order of General Hooker, with a report of its results, thinking that you will be interested to know how the late Act of Congress forbidding the rendition of slaves by army officers is violated, and hoping that some effort may be made to prevent such unjust and outrageous measures on the part of superior officers.
“Our moral and humane feelings have been violated by having been compelled to witness the attempts of slave-holders, known to be of Secession proclivities, coming into our camps and searching our private quarters for their slaves, under the cover of a protecting order from a general who exceeds his authority.”
This letter expresses feelings natural to a humane bosom. In contrast with General Hooker, I call attention to the course of General Doubleday, whose head-quarters are here in Washington. I read his order.
“Headquarters, Military Defences north of the Potomac,
Washington, April 6, 1862.
“Sir,—I am directed by General Doubleday to say, in answer to your letter of the 2d instant, that all negroes coming into the lines of any of the camps or forts under his command are to be treated as persons, and not as chattels.
“Under no circumstances has the commander of a fort or camp the power of surrendering persons claimed as fugitive slaves, as it cannot be done without determining their character.
“The additional article of war recently passed by Congress positively prohibits this.
“The question has been asked, whether it would not be better to exclude negroes altogether from the lines. The General is of the opinion that they bring much valuable information which cannot be obtained from any other source. They are acquainted with all the roads, paths, fords, and other natural features of the country, and they make excellent guides. They also know, and frequently have exposed, the haunts of Secession spies and traitors and the existence of Rebel organizations. They will not, therefore, be excluded.
“The General also directs me to say that civil process cannot be served directly in the camps or forts of his command, without full authority be obtained from the commanding officer for that purpose.
“I am, very respectfully, your obedient servant,
“E. P. Halsted, Assistant Adjutant-General.
“Lieutenant-Colonel John D. Shaul,
Commanding Seventy-Sixth Regiment New York Volunteers.”
General Doubleday acted bravely at Fort Sumter; but he did not render a truer service to his country on that occasion than he has now done in this order. If this example were followed everywhere in our camps, we should at least save ourselves from shame, if we did not secure victory.
Other generals at the West think they do their duty best, when they serve Slavery. There is General McCook, of whom we have the following sad report, on the authority of a paper at Nashville, recounting the visit of a slave-hunter to his camp.
“He visited the camp of General McCook, in Maury County, in quest of a fugitive, and that officer, instead of throwing obstacles in the way, afforded him every facility for the successful prosecution of his search. That General treated him in the most courteous and gentlemanly manner, as also did General Johnson, and Captain Blake, the brigade provost-marshal. Their conduct toward him was in all respects that of high-toned gentlemen desirous of discharging their duties promptly and honorably. It is impossible for the army to prevent slaves from following them; but whenever the fugitives come into the lines of General McCook, they are secured, and a record made of their names and the names of their owners. All the owner has to do is to apply either in person or through an agent, examine the record or look at the slaves, and, if he finds any that belong to him, take them away.”
Can we listen to such a statement and not feel indignant at the levity with which human freedom is treated?
Yet similar cases multiply. There is the provost-marshal of Louisville, who seems to be a disgrace to our army, if we may believe the following report.
Here Mr. Sumner quoted at length the description of his conduct: making colored people “his subjects of oppression and inhuman treatment”; “ordering his provost guards to flog all colored persons out after dark”; “now being revenged on the colored people for their faithfulness to the Union cause.”[307]
But, Sir, an incident has occurred under General Buell’s command which cannot be read without a blush. Here it is, as described in the letter of a soldier who was more than a witness, even a party to it. I find this letter in a newspaper, but it has been furnished to me in manuscript by the person to whom it is addressed.
“Camp Andy Johnson, near Nashville,
Tennessee, March 8, 1862.
“My dear Parents,— … A great outrage was perpetrated in our camp yesterday, as follows.
“A black boy, named Henry, has been at work for the Colonel for some days. His owner came after him while we were camped on the other side of the river, but the boys hooted him out of camp. The negro said he would sooner be killed on the spot than go back with his master, even if he knew he would not be punished. His master, he said, was a Secessionist, and had kept him (the boy) on some fortifications down the river at work for four mouths.
“Nothing more transpired concerning his return until yesterday. While the greater part of the regiment were out on picket, the boy’s owner came with two sentinels of the provost guard from the city, and, after chasing the poor frightened boy through the camp several times,—he drawing a knife once, and the sentinel knocking him down with his musket,—they captured and delivered him to his owner, who stood waiting outside the lines. The latter paid the catching sentries fifteen dollars each, and led Henry away with him unmolested, flourishing a pistol at his head as he went. They had no order—at least, showed none—for the boy from head-quarters, and the Lieutenant-Colonel of our regiment, who was in command, need not have delivered him up without such an order, yet allowed him to be caught, and the Major forbade our boys from giving him any assistance. One of the sentinels was from a Kentucky, and one from an Indiana regiment.…
“The former master of our boy will not get him without an order, and an imperative one, I believe; and if one is given for him,—his master having been a strong and active Secessionist, a quartermaster for the Southern army, in fact,—I have about concluded to follow it by immediate resignation, and this, whether the order be for him or any other negro. The order would make it an official act. What do you think my duty would be in the premises?”
Of General Buell I know nothing personally; but such an incident must fill us with distrust. He may possess military talent, he may be a thunderbolt of war; but it is clear that he wants that just comprehension of the times and that sympathy with humanity without which no officer can do his complete duty.
But General Buell may, perhaps, shelter himself behind the instructions of his superior officer; and this brings me to the famous Order No. 3 of Major-General Halleck. I have it in my hands, and quote these words:—
“We will prove to them that we come to restore, not to violate, the Constitution and the laws.… The orders heretofore issued from this department in regard to pillaging, marauding, and the destruction of private property, and stealing and the concealment of slaves, must be strictly enforced. It does not belong to the military to decide upon the relation of master and slave: such questions must be settled by the civil courts. No fugitive slaves will, therefore, be admitted within our lines or camps, except when specially ordered by the General commanding.”[308]
In this order, so strangely inconsistent, absurd, unconstitutional, and inhuman, the General perversely perseveres. In every aspect it is bad. It wants common sense, as well as common humanity. It is unworthy a man of honor and a soldier.
It is inconsistent with itself, inasmuch as the General proclaims that he “comes to restore, not to violate, the Constitution and the laws,” and then proceeds to a direct violation of them. In the same order he says: “It does not belong to the military to decide upon the relation of master and slave: such questions must be settled by the civil courts.” And then, in the face of this declaration, he proceeds to say that “no fugitive slaves will be admitted within our lines or camps.” But pray, Sir, how can such persons be excluded from lines or camps without deciding that they are fugitive slaves? This flat and discreditable inconsistency is in harmony with the whole order.
But worse than its inconsistency is its absurdity. This watchful, prudent General proposes to exclude all fugitive slaves from his camps. In other words, he shuts out all opportunities of information with regard to the enemy naturally afforded by this class of deserters. They may come charged with knowledge of movements and plans; but the General will not receive them, because they are slaves. They may be able to disclose the secret of a campaign; but the General will not have it, because they are slaves. If we have failed thus far in knowledge of the enemy’s designs, it is because this absurd policy has prevailed.
General Halleck may be instructed by General McDowell, whose opposite conduct shines in a despatch published in the papers.
“Catlettsville Station, Virginia,
Fifteen Miles south of Manassas Junction, April 13.
“Hon. Edwin M. Stanton, Secretary of War:—
“An intelligent negro has just come in from Stafford County, and says his master returned this morning from Fredericksburg to his home, and told his wife, in this negro’s presence, that all the enemy’s troops had left Fredericksburg for Richmond and Yorktown, the last of them leaving on Saturday morning. This last has just been confirmed by another negro.
“Irvin McDowell, Major-General.”
Here are two negroes coming into camp with important information, both of whom General Halleck’s order would repel and drive back to bondage. And he may be instructed by the despatch of General Wool, just received, announcing our success at New Orleans, the news of which came by a “fugitive black.” The General adds: “The negro bringing the above reports that the Rebels have two iron-clad steamers nearly completed, and that it is believed that the Merrimac will be out to-morrow.” But all this information would be shut out by General Halleck. Can absurdity be more complete?
But worse than inconsistency or absurdity is its positive unconstitutionality. What right, under the Constitution, has this General to set himself up as judge in cases of human freedom? Where does he find his power? By whom has he been invested with this attribute? It is the boast of the National Constitution that all are “persons.” The National Constitution so regards everybody, and surrounds everybody with the safeguards of “persons,” even to the extent of declaring that “no person shall be deprived of liberty without due process of law.” And yet the army is gravely told to treat certain persons as slaves. Of course this cannot be without sitting in judgment most summarily on human freedom. How does the General know that they are slaves? On what evidence? Because they are black? Why may they not be free blacks? General Halleck would reverse the true presumption. He assumes Slavery, when he ought to assume Freedom. In the eye of the Constitution all are freemen until proved to be slaves, no matter of what color. The only question to be asked concerns loyalty. Are you loyal or rebel? If loyal, then welcome to the hospitality and protection of our camps. If rebel, then surrender to our arms. Be these the inquiries, with this rule, and the Union we seek to restore will not be indefinitely postponed.
But worse than its unconstitutionality is the inhumanity of this order, so shocking to the moral sense. This General, professing to fight the battle of the Constitution with the commission of the Republic, speaks of “the concealment of slaves” in the same class with “pillaging, marauding, and stealing.” I complain of this confusion of language, showing an insensibility to human rights. It is like those shameful advertisements which garnish Southern newspapers, where “the boy Tom” and “the girl Sally” are to be sold in the same lot with “horses, mules, cattle, and swine.” That such an order should be put forth in the name of our country may justly excite indignation.
On these various grounds I object to this order. In this criticism, which I make with sincere sorrow, I confine myself to the order. General Halleck is reputed an able officer, and I am sure he is an able lawyer. I do not intend to question his various capacity. But I do protest against his perverse violation of the Constitution to carry out a miserable and disgraceful proslavery policy; and I protest against his being allowed to degrade the character of our country. Sir, we are making history. Every victory adds something to that history; but such an order is worse for us than defeat. More than any defeat it will discredit us with posterity, and with the friends of liberal institutions in foreign lands. I have said that General Halleck is reputed an able officer; but, most perversely, he undoes with one hand what he does with the other. He undoes by his orders the good he does as a general. While professing to make war upon the Rebellion, he sustains its chief and most active power, and degrades his gallant army to be the constables of Slavery.
How often must I repeat that Slavery is the constant Rebel and universal enemy? It is traitor and belligerent together, and is always to be treated accordingly. Tenderness to Slavery now is practical disloyalty and practical alliance with the enemy.
Believe me, Sir, against the officers named to-day I have no personal unkindness. I should much prefer to speak in their praise; but I am in earnest. While I have the honor of a seat in the Senate, no success, no victory, shall be apology or shield for a general who insults human nature. From the midst of his triumphs I will drag him forward to receive the condemnation which such conduct deserves.
This movement ended in the Bill for Confiscation and Liberation, approved July 17th, which provided for the freedom of the slaves of Rebels. The enactments on this subject were embodied by the President in the first Proclamation of Emancipation, September 22, 1862.
NO NAMES OF VICTORIES OVER FELLOW-CITIZENS ON REGIMENTAL COLORS.
Resolution in the Senate, May 8, 1862.
In a despatch announcing the capture of Williamsburg, May 6th, General McClellan inquired whether he was “authorized to follow the example of other generals and direct the names of battles to be placed on the colors of regiments.” This gave occasion to the following resolution, moved by Mr. Sumner.
RESOLVED, That, in the efforts now making for the restoration of the Union and the establishment of peace throughout the country, it is inexpedient that the names of victories obtained over our fellow-citizens should be placed on the regimental colors of the United States.
Mr. Hale objected to its consideration; so it was postponed.
May 13th, Mr. Wilson introduced a joint resolution to authorize the President to permit regiments of the volunteer forces to inscribe on their flags the names of battles in which such regiments have been engaged; but no further action was had upon it.
Mr. Sumner’s resolution excited comment at the time. The National Intelligencer remarked:—
“Now that public attention has for the first time been called to the subject, we presume there will be on the part of many an instinctive approval of the grounds on which Senator Sumner condemns the custom thus originated and practised by ‘other generals.’ … When the Union is restored and peace has been reëstablished, we take it that the regimental colors of the United States will preserve no trace either of Union victories or Union defeats. The name of ‘Springfield,’ in Missouri, would otherwise perpetually remind us of the unhappy fall of Lexington in that State.”
An excellent citizen of New York, Alfred Pell, wrote that “exactly what Congress should do with base Secession standards and flags was pointed out by Mrs. Brownrigg, who
“‘whipped two female ’prentices to death,
And hid them in the coal-hole.’”
Other testimony was from an undoubted authority, being none other than Lieutenant-General Winfield Scott, in his autobiography. After quoting the famous resolution which Rufus King laid upon the table of the Senate, February 18, 1825, fifteen days before he finally left that body, which he calls “a benign resolution,” to the effect, that, as soon as the remnant of the national debt should be discharged, the net proceeds of the whole of the public lands should constitute a fund for Emancipation, the Lieutenant-General proceeds:—
“The resolution stands a national record. Here is statesmanship, farsightedness.… Here is magnanimity, considering the hostility of the South on account of Mr. King’s powerful resistance to the admission of Missouri into the Union with Slavery. Here is a Christian’s revenge, returning good for evil. All honor to a great deed and a great name!.…
“I place in juxtaposition with the foregoing a kindred sentiment that gleamed in the same body on a more recent occasion.
“It had been proposed, without due reflection, by one of our gallant commanders engaged in the suppression of the existing Rebellion, to place on the banners of his victorious troops the names of their battles. The proposition was rebuked by the subjoined resolution, submitted by the Hon. Mr. Sumner, May 8, 1862.”
Then quoting the resolution, the Lieutenant-General adds:—
“This was noble, and from the right quarter.”[309]
BOUNTY LANDS FOR SOLDIERS OUT OF REAL ESTATE OF REBELS.
Resolution in the Senate, May 12, 1862.
RESOLVED, That the Select Committee on the confiscation of Rebel property be directed to consider the expediency of providing that our soldiers engaged in the suppression of the Rebellion may be entitled to bounty lands out of the real estate of the Rebels.
This was objected to by Mr. Powell, of Kentucky, but on the next day it was agreed to.
TESTIMONY OF COLORED PERSONS IN JUDICIAL PROCEEDINGS FOR CONFISCATION AND EMANCIPATION.
Resolution in the Senate, May 12, and Remarks, June 28, 1862.
RESOLVED, That the Select Committee on the confiscation of Rebel property be directed to consider the expediency of providing, that, in all judicial proceedings to confiscate the property and free the slaves of Rebels, there shall be no exclusion of any witness on account of color.
This was objected to by Mr. Saulsbury, of Delaware, but on the next day it was agreed to.
The Select Committee failing to adopt this provision in the bill reported by them, entitled “A bill to suppress insurrection, punish treason and rebellion, and for other purposes,” Mr. Sumner sought to engraft it on the bill by motion in the Senate.
June 28th, Mr. Sumner moved the following amendment:—
“And in all proceedings under this Act there shall be no exclusion of any witness on account of color.”
Mr. Clark, of New Hampshire, Chairman of the Select Committee, said, that, “while they had no hostility to the general principle of the amendment, they thought it was better not to engraft it upon this bill.”
Mr. Sumner replied:—
This bill is to operate in the Slave States. But, with the rule of evidence prevailing there, I see insuperable difficulties in the way of conviction. If Congress choose to authorize criminal proceedings against Rebels, as is done by this bill, then in good faith they must see that the proceedings are not entirely nugatory, through failure of evidence, under the operation of an irrational rule of exclusion.
Mr. Clark said, that the Committee was influenced by the consideration, that under the bill slaves would become free on the conviction of their masters for treason; and the Committee “thought it would look a little like inducing the slave to come forward and swear against the master, … if we put such a provision in the bill; and we rejected it on that ground.”
Mr. Sumner replied:—
But the Senator will not forget that there are other slaves besides those of the master under trial, as well as colored persons who are not slaves. Whether slaves or not, even if freemen, the Senator knows well that there is one cruel rule of evidence everywhere in the Rebel States, which excludes the testimony of colored persons.
The amendment was rejected: Yeas 14, Nays 25.
This was the third move against exclusion of witnesses on account of color.[310]
THE LATE HON. GOLDSMITH F. BAILEY, REPRESENTATIVE FROM MASSACHUSETTS.
Speech in the Senate, on his Death, May 15, 1862.
MR. PRESIDENT,—The last Representative of Massachusetts snatched away by death during the session of Congress was Robert Rantoul, Jr. Ripe in years and brilliant in powers, this distinguished person tardily entered these Halls, and he entered them not to stay, but simply to go. Congress was to him only the antechamber to another world. Since then ten years have passed, and we are now called to commemorate another Representative of Massachusetts snatched away by death during the session of Congress. Less ripe in years and less brilliant in powers, Mr. Bailey occupied less space in the eyes of the country; but he had a soul of perfect purity, a calm intelligence, and a character of his own which inspired respect and created attachment; and he, too, was here for so brief a term that he seems only to have passed through these Halls on his way, without, alas! the privilege of health as he passed.
Born in 1823, Mr. Bailey had not reached that stage of life, when, according to a foreign proverb, a man has given to the world his full measure;[311] and yet he had given such measure of himself as justified largely the confidence of his fellow-citizens. This was the more remarkable, as he commenced life without those advantages which assure early education and open the way to success. At two years of age he was an orphan, of humble parentage and scanty means. From school he followed the example of Franklin, and became a printer. There is no calling, not professional, which to an intelligent mind affords better opportunities of culture. The daily duties of the young printer are daily lessons. The printing-office is a school, and he is a scholar. As he sets types, he studies, and becomes familiar at least with language and the mystery of grammar, orthography, and punctuation, which, in early education, is much; and if he reads proofs, he becomes a critic. At the age of twenty-two our young printer changed to a student of law, and in 1848 was admitted to the bar.
In the very year of his admission to the bar the question of Slavery assumed unprecedented proportions, from the efforts made to push it into the Territories of the United States. Although he took no active part in the prevailing controversy, it must have produced its impression on his mind. It was to maintain prohibition of Slavery in the Territories, and to represent this principle, that he was chosen to Congress.[312] In a speech at the time he upheld this cause against the open opposition of its enemies and the more subtle enmity of those who disparaged the importance of the principle. Never had Representative a truer or nobler constituency. It was of Worcester, that large central county of Massachusetts, and broad girdle of the Commonwealth, which, since this great controversy began, has been always firm and solid for Freedom. To represent a people so intelligent, honest, and virtuous was in itself no small honor.
But with this honor came those warnings which teach the futility of all honor on earth. What is honor to one whom death has already marked for his own? As life draws to its close, the consciousness of duty done, especially in softening the lot of others, must be more grateful than anything which the world alone can supply. Even the spoiler, Death, cannot touch such a possession. And this consciousness rightly belonged to the invalid who was now a wanderer in quest of health. Compelled to fly the frosts of his Massachusetts home during the disturbed winter of 1860, when these civil commotions were beginning to gather, he journeyed nearer to the sun, and in the soft air of the Mexican Gulf found respite, if not repose. There he was overtaken by that blast of war, which, like
“A violent cross wind from either coast,”
swept over the country. Escaping now from the menace of war in Florida, as he had already escaped from the menace of climate in Massachusetts, he traversed the valley of the Mississippi, and succeeded in reaching home. At the session of Congress called to sustain the Government he appeared to take his seat; but a hand was fastened upon him which could not be unloosed. Again he came to his duties here during the present session; for while the body was weak, his heart was strong. He often mourned his failing force, because it disabled him from speaking and acting at this crisis. He longed to be in the front rank. Yet he was not a cipher. He was a member of the Committee on Territories in the House of Representatives, and its Chairman[313] relates that this dying Representative was earnest to the last that his vote should be felt for Freedom. “Let me know when you wish my vote, and, though weak, I shall surely be with you,” said the faithful son of Massachusetts. This is something for his tombstone; and I should fail in just loyalty to the dead, if I did not mention it here.
As a member of this Committee, he put his name to a report which became at once a political event. In the uneventful life of an invalid, who was here for a few weeks only, it should not be passed over in silence. By a resolution adopted on the 23d of December, 1861,[314] the Committee on Territories was instructed “to inquire into the legality and expediency of establishing Territorial Governments within the limits of the disloyal States or districts.” After careful consideration of this momentous question, the Committee reported a bill to establish temporary provisional governments over the districts of country in rebellion against the United States.[315] This bill assumed two things, which, of course, cannot be called in question: first, that throughout the Rebel region the old loyal State Governments had ceased to exist, leaving no person in power there whom we could rightfully recognize; and, secondly, that the Constitution of the United States, notwithstanding all the efforts of Rebellion, was still the supreme law throughout this region, without a foot of earth or an inhabitant taken from its rightful jurisdiction. Assuming the absence of State Governments and the presence of the National Constitution, the bill undertook, through the exercise of Congressional jurisdiction, to supply a legitimate local government, with a governor, legislature, and court; but it expressly declared that “no act shall be passed, establishing, protecting, or recognizing the existence of Slavery; nor shall said temporary government, or any department thereof, sanction or declare the right of one man to property in another.” In a succeeding section it was made the duty of the authorities “to establish schools for the moral and intellectual culture of all the inhabitants, and to provide by law for the attendance of all children over seven and under fourteen years of age not less than three months in each year.” With a thrill of joyful assent Mr. Bailey united with the majority of the Committee in this bill. It was his last public act, almost his only public act in Congress, and certainly the most important of his public life. As a record of purpose and aspiration it will not be forgotten.
To such a measure he was instinctively moved by the strength of his convictions and his sense of the practical policy needed for the support of the Constitution. He had no indulgence for the Rebellion, and saw with clearness that it could be ended only by the removal of its single cause. His experience at the South added to his appreciation of the true character of Slavery, and increased his determination. He did not live to see this Rebellion subdued, but he has at least left his testimony behind. He has taught by what sign we are to conquer. He has shown the principle which must be enlisted. Better than an army is such a principle; for it is the breath of God.
Mr. Bailey was clear in understanding, as he was pure in heart. His life was simple, and his manners unaffected. His, too, were all the household virtues which make a heaven of home, and he was bound to this world by a loving wife and an only child. He was happy in being spared to reach his own fireside. Sensible that death was approaching, he was unwilling to continue here among strangers, and, though feeble and failing, he was conveyed to Fitchburg, where, after a brief period among kindred and friends, he closed his life. His public place here is vacant, and so also is his public place in Massachusetts. But there are other places also vacant: in his home, in his business, and in his daily life among his neighbors, in that beautiful town scooped out of the wooded hills, where he was carried back to die.
I offer resolutions identical with those offered by myself, and adopted by the Senate, on the death of Robert Rantoul.
Resolved, unanimously, That the Senate mourns the death of Hon. Goldsmith F. Bailey, late a member of the House of Representatives from Massachusetts, and tenders to his relatives a sincere sympathy in this afflicting bereavement.
Resolved, As a mark of respect to the memory of the deceased, that the Senate do now adjourn.
The resolutions were agreed to; and the Senate adjourned.
USE OF PARCHMENT IN LEGISLATIVE PROCEEDINGS.
Resolution and Speech in the Senate, on the Enrolment of Bills, May 16, 1862.
December 23, 1861, Mr. Sumner offered the following resolution, and said that he would call it up for consideration some day thereafter.
“Resolved, That the Committee on Enrolled Bills shall consider the expediency of changing the Joint Rules of the two Houses of Congress, so as no longer to require that bills which have passed both Houses shall be enrolled on parchment; but that they shall be simply copied in a fair hand on linen paper, and be thus preserved in the Department of State, instead of being preserved in cumbersome rolls of parchment.”
May 16, 1862, the resolution was taken up for consideration.
MR. PRESIDENT,—There is a usage of Congress which must strike all coming here for the first time, whether as members or spectators. It is the usage, after bills have passed both Houses, of copying them on rolls of parchment, when they receive the signatures of the Speaker of the House, the President of the Senate, and the President of the United States. Under our rules this is called enrolling, although in England, where it originated, it was known, down to its recent abolition there, as engrossing.
I have said that it is calculated to arrest attention. This is because to most persons it is a novelty, although old in itself. On inquiry, I do not learn that it is continued in any of our States except Massachusetts. In the new States of the West it has never been known. The question which I now submit is, Whether it is wise for Congress to continue this embarrassing form, already discontinued, or never adopted, by the State Legislatures?
Among the Joint Rules of the two Houses is the following, entitled “Enrolled Bills.”
“After a bill shall have passed both Houses, it shall be duly enrolled on parchment by the Clerk of the House of Representatives, or the Secretary of the Senate, as the bill may have originated in the one or the other House, before it shall be presented to the President of the United States.”
This was adopted as early as 6th August, 1789. Shortly before this date, at the recommendation of Senators Morris, Carroll, Langdon, Read, and Lee, a joint resolution was passed, requiring the Secretary of the Senate and the Clerk of the House, within ten days after the passing of every Act of Congress, to authenticate printed copies thereof, and lodge them with the President.[316] In September, 1789, a statute was passed to provide for the safe keeping of the acts, records, and seal of the United States, by the first section of which the Department of Foreign Affairs was changed to the Department of State. The Secretary of the Department thus remodelled was made custodian of all bills, orders, resolutions, or votes of Congress approved by the President, or having become laws or taken effect without his approval, with directions to publish the same in the newspapers, to cause one printed copy to be delivered to each Senator and Representative, and two printed copies, duly authenticated, to be sent to the Governor of each State, and to “carefully preserve the originals.”[317] This latter service has been executed by binding the enrolled copies of the acts of each session in separate volumes, without rolling or folding the skins of parchment, and depositing them in a fire-proof vault, under the immediate charge of an officer of the State Department, known as Clerk of the Rolls.
The enrolment of bills requires special care, and sometimes even delays legislation. From the haste with which the transcription is often made and the amendments are embodied, errors naturally occur. Perhaps these cannot be entirely avoided by copies on paper. Indeed, nothing can supersede the necessity of great vigilance, whether paper or parchment be employed.
The main reason for enrolment on parchment, when first adopted by Congress, was English example. Technical phrases, tautologous terms, absurdities of law Latin and law French, all these, together with our jurisprudence, were borrowed directly from England, and with them came parchment, the use of which antedated these peculiarities. Of course it was before the manufacture of paper in England, which was not earlier than the reign of Henry the Seventh, and it was continued long after the manufacture had rendered it unnecessary.
In Antiquity other substances were employed; but among European nations in modern times, previous to the invention of paper, parchment prevailed. In England, every manuscript, every book, every deed, every indenture, every contract, every record, judicial or other, was on parchment. So, also, was Magna Charta, wrung from King John in 1215, and still exhibited as a venerable curiosity in the British Museum. It must have been the case with the statutes and proceedings of Parliament; for, in fact, there was little else on which they could be written. These proceedings, together with the statutes, constituted what were called the Rolls of Parliament,—Rotuli Parliamentorum,—and they were preserved apart, with other parchment records. There is a verse of Scripture which has been quoted as describing the place where they were kept: “Darius the king made a decree, and search was made in the house of the rolls, where the treasures were laid up.”[318]
The durability of parchment is attested by the manuscripts which illumine the great libraries of Europe. Among the treasures of the Vatican is a Virgil of the fourth century, and in the National Library of Paris is a Prudentius of an early date, both in a condition to survive the structures in which they are preserved. Abbeys, convents, churches, built with pious skill, have crumbled to dust, while their parchments continue to defy the tooth of Time. But this peculiar durability, so important before the invention of printing, when copies were few, has played its part.
Parchment soon gave way to paper in judicial proceedings and records, probably from considerations of economy and convenience; but it continued longer in parliamentary proceedings. The Journals of the House of Lords, which have always been held to be public records, were formerly “recorded every day on rolls of parchment.”[319] The original usage with regard to the Journals of the other House seems to have been different; for we find in 1621, the year after the sailing of our Pilgrim Fathers, an express order that the Journals of the House of Commons “shall be reviewed and recorded on rolls of parchment.”[320] Notwithstanding the order, this usage does not appear to have prevailed with the Commons, and it was long ago discontinued by the Lords. But the statutes continued to be engrossed on parchment, and placed in the custody of the “Master of the Rolls.”
According to English practice, engrossment took place after the report. But at last, in 1848, it was thought advisable to make a change. The whole subject occupied committees of both Houses, and finally of Parliament itself. Even at the cost of details which may be wearisome, I present the history of these proceedings, which will be interesting, at least, as showing the care which presided over this transition, and also a possible guide to us.
On the 4th of September, 1848, the day before the prorogation of Parliament, it was ordered in the House of Lords,—
“That the Clerk Assistant be directed, in communication with the proper authorities of the House of Commons, to take such preliminary steps as may be necessary, so as to enable the House, if it shall so think fit, at the commencement of the next session, to dispense with the present form of engrossing bills, and to transmit and to receive printed copies of the same.”[321]
The Clerk Assistant, thus directed to report, was John George Shaw Lefevre, Esquire, brother of the accomplished Speaker of the House of Commons.
On the third day of the next session, February 6, 1849, the Lord Chancellor informed the House of Lords,—
“That the Clerk Assistant had prepared and laid on the table, in obedience to the resolutions of this House, a report of the result of his communication with the authorities of the House of Commons on the subject of dispensing with the present form of engrossing bills.”[322]
A select committee to consider the proposed change, was appointed, consisting of the Lord Chancellor, Lord Privy Seal, Duke of Richmond, Earl of Shaftesbury, Lord Beaumont, and Lord Monteagle of Brandon.
It is probable that they adopted at once the suggestions of the Clerk Assistant, as, within a few hours after their appointed meeting, their Chairman, the Lord Chancellor, reported to the House of Lords, February 8, 1849, that the Committee had met and considered the subject-matter referred to them, and united in recommending, “That it is expedient to discontinue the present system of engrossing, and to alter the present system of enrolling bills”; and they reported provisions, in lieu thereof, to which I shall refer.
The House of Lords adopted the report, passed the resolutions, and ordered that they be communicated to the Commons at a conference, and their concurrence desired.[323]
On the 9th of February, managers of the conference were appointed. Those representing the House of Lords were the Lord Privy Seal, Earl Waldegrave, Earl Saint Germans, Viscount Hawarden, Lord Bishop of Hereford, Lord Beaumont, and Lord Monteagle of Brandon. The managers representing the House of Commons were Sir George Grey, Sir Robert Peel, Sir Robert Harry Inglis, Mr. Herries, Mr. Wilson Patten, Mr. Bernal, Sir John Yarde Buller, the Earl of Lincoln, Mr. Attorney-General, the Earl of Arundel and Surrey, Mr. Thornely, Mr. Maitland, Mr. Hume, Mr. Mackenzie, the Judge Advocate, and Sir John Young.
Omitting other details, I come at once to the resolutions afterwards adopted in both Houses.
“1. That, in lieu of being engrossed, every bill shall be printed fair immediately after it shall have been passed in the House in which it originated, and that such fair printed bill shall be sent to the other House as the bill so passed, and shall be dealt with by that House and its officers in the same manner in which engrossed bills are now dealt with.
“2. That, when such bill shall have passed both Houses of Parliament, it shall be fair printed by the Queen’s printer, who shall furnish a fair print thereof on vellum to the House of Lords before the royal assent, and likewise a duplicate of such fair print, also on vellum.
“3. That one of such fair prints of each bill shall be duly authenticated by the Clerk of the Parliaments, or other proper officer of the House of Lords, as the bill to which both Houses have agreed.
“4. That the royal assent shall be indorsed in the usual form on such fair print so authenticated, which shall be deposited in the Record Tower, in lieu of the present engrossment.
“5. That the copies promulgated in the first instance by the Queen’s printer shall be impressions from the same form as the deposited copy.
“6. That for the present session this arrangement shall not apply to private bills, nor to local and personal bills, which last mentioned bills, intended to be brought in this session, have been for the most part already printed, in pursuance of the standing orders of the House of Commons.
“7. That the Master of the Rolls shall, upon being duly authorized in that behalf, receive, in lieu of the copies of public general acts as now enrolled, the herein before-mentioned duplicate fair print of each public general bill, to be held for the same purposes and subject to the same conditions for and upon which the enrolled acts are now received and held by him.
“8. That it is expedient, with a view to economy, convenience, and dispatch, and to the diminution of the chance of errors, that one printer should print the public general bills for both Houses; and that, inasmuch as the Queen’s printer is, by virtue of his office, bound to print the acts, it would be advisable, for the attainment of the before-mentioned objects, that the Queen’s printer should be employed by both Houses to print the public general bills.”[324]
Later in the same session of Parliament, the House of Commons passed the following resolution, which was agreed to by the House of Lords on the 31st of July, 1849.
“That the arrangement contained in the resolutions agreed to by both Houses of Parliament on the 12th day of February last, relative to the engrossing and enrolling of bills, (except so much thereof as relates to the expediency of one printer printing the bills for both Houses,) shall in future sessions apply to local, personal, and private, as well as to public bills.”[325]
Thus in England the old system of engrossing and enrolling has disappeared. It is true that the bill, in its last stage, is printed on vellum; but the ancient cumbersome proceeding is abolished.
I have referred especially to English practice, because ours was originally derived from it. But the example of a nation so truly enlightened as France may be properly adduced also. The ordinances of the kings of France were engrossed on parchment down to the reign of Louis the Fourteenth, when his great minister, Colbert, contented himself with having them copied in a fair hand on folio paper, and bound in large volumes. The voluminous ordinances of the Grand Monarch on the Government of Canada, and of the Mississippi Valley, then recently discovered, are still preserved in the Archives de la Marine at Paris, each one bearing the signature of the sovereign, and countersigned by his minister. Thus in France, even before the great changes of the Revolution, parchment was discarded, and I am not aware that it is now used either in judicial or legislative proceedings. The records and documents, all fairly copied on paper, are admirably preserved, untouched by time or damage of any kind, and in better condition than some of our own public documents written within the last ten years. I do not forget that the clerks of the last century wrote with carefully prepared ink on linen paper. Bad ink and cotton paper must, of course, be avoided, especially where metallic pens are employed to tear the surface and open the way for the deleterious fluid.
If disposed to follow the examples of England and France, and of our own States in their local Legislatures, we shall make a change. Nor is there any reason of utility or convenience in favor of parchment. I know that a vellum page is a luxury, coveted always by the refined book-collector; but it has long since ceased to be anything else. Paper is good enough and durable enough for all practical purposes. Volumes of the fifteenth century, among the first fruits of the newly discovered art of printing, are found now in as good condition as when their paper was first blackened by types; and there are manuscripts, not merely on parchment, but also on paper, older than the discovery of America, in as good condition as the Journals of the Senate.
Even if paper were less permanent than parchment, the latter becomes entirely superfluous since the practice was established of printing the statutes under the supervision of the Government. It is well known that public statutes require no proof besides the printed statute-book.[326] This was an original principle of English law, which has been adopted and fortified among us. Professor Greenleaf, who is such authority on the Law of Evidence, thus exhibits the value of the printed copy:—
“It is the invariable course of the Legislatures of the several States, as well as of the United States, to have the laws and resolutions of each session printed by authority. Confidential persons are selected to compare the copies with the original rolls, and superintend the printing. The very object of this provision is to furnish the people with authentic copies; and, from their nature, printed copies of this kind, either of public or private laws, are as much to be depended on as the exemplification verified by an officer who is a keeper of the record.”[327]
Summing up the whole case, we find that the present system has its origin in ancient usage, the reason of which has long since ceased; that there is no necessity for its continuance; that it is contrary to convenience; that it is contrary to the example of France, and even of England, whence it was derived; that it is contrary to the usage of our own States, in their legislative action; and that a change would do something, at least, to simplify our proceedings.
Paper is of all qualities, and of every degree of durability. Besides rags, there are many other substances out of which it is made, so that even the increasing demand meets a corresponding supply. It is always cheap, and entirely convenient. To reject it for parchment is as if we imitated the early Arabs, and inscribed our statutes on the shoulder-blades of sheep. The skin is less antediluvian than the bone, but both are out of place in our age.
Should the change be deemed advisable, it might be made by substituting the words “linen paper” for “parchment,” in the sixth Joint Rule. This would be simple enough: but the phrases “engrossed” and “enrolled” would still remain in the rules, although the occasion for them had passed. In the British Parliament, the old form of question, “That this bill be engrossed,” which always followed after the Committee of the Whole, is now dispensed with;[328] and it seems to me that we might do something to simplify our proceedings in this respect, also.
I have here a complete collection of bills, as printed, at their different stages in the two Houses of Parliament, as follows.
Bill as delivered to each member of the House of Commons.
House copy of bill originating in the Commons.
Bill as presented by the Commons to the Lords, after passing the Commons.
Bill as delivered to each peer.
House copy of bill originating in the Lords.
Bill as presented by the Lords to the Commons, after passing the Lords.
Bill on vellum, as passed both Houses, and ready for the royal assent.
All these I shall, if he will allow me, hand over to the Chairman of the Committee on Enrolled Bills, who will do something, I trust, for the improvement of our rules in this respect.
The resolution was adopted, but no report was ever made by the Committee.