SPEECH.
MR. PRESIDENT,—If I can simplify this discussion, I shall feel that I have done something towards establishing the truth. The chief difficulty springs from confusion with regard to different sources of power. This I shall try to remove.
There is a saying, often repeated by statesmen and often recorded by publicists, which embodies the direct object of the war we are now unhappily compelled to wage,—an object sometimes avowed in European wars, and more than once made a watchword in our own country: “Indemnity for the past, and Security for the future.” Such should be our comprehensive aim,—nor more, nor less. Without indemnity for the past, this war will have been waged at our cost; without security for the future, this war will have been waged in vain, treasure and blood will have been lavished for nothing. But indemnity and security are both means to an end, and that end is the National Unity under the Constitution of the United States. It is not enough, if we preserve the Constitution at the expense of the National Unity. Nor is it enough, if we enforce the National Unity at the expense of the Constitution. Both must be maintained. Both will be maintained, if we do not fail to take counsel of that prudent courage which is never so much needed as at a moment like the present.
Two things we seek as means to an end: Indemnity for the past, and Security for the future.
Two things we seek as the end itself: National Unity, under the Constitution of the United States.
In these objects all must concur. But how shall they be best accomplished?
The Constitution and International Law are each involved in this discussion. Even if the question itself were minute, it would be important from such relations. But it concerns vast masses of property, and, what is more than property, it concerns the liberty of men, while it opens for decision the means to be employed in bringing this great war to a close. In every aspect the question is transcendent; nor is it easy to pass upon it without the various lights of jurisprudence, of history, and of policy.
Sometimes it is called a constitutional question exclusively. This is a mistake. In every Government bound by written Constitution nothing is done except in conformity with the Constitution. But in the present debate there need be no difficulty or doubt under the Constitution. Its provisions are plain and explicit, so that they need only to be recited. The Senator from Pennsylvania [Mr. Cowan] and the Senator from Vermont [Mr. Collamer] have stated them strongly; but I complain less of their statement than of its application. Of course, any proposition really inconsistent with these provisions must be abandoned. But if, on the other hand, it be consistent, then is the way open to its consideration in the lights of history and policy.
If there be any difficulty now, it is not from the question, but simply from the facts,—as often in judicial proceedings it is less embarrassing to determine the law than the facts. If things are seen as they really are and not as Senators fancy or desire, if the facts are admitted in their natural character, then must the constitutional power of the Government be admitted also, for this power comes into being on the occurrence of certain facts. Only by denying the facts can the power itself be drawn in question. But not even the Senator from Pennsylvania or the Senator from Vermont denies the facts.
The facts are simple and obvious. They are all expressed or embodied in the double idea of Rebellion and War. Both of these are facts patent to common observation and common sense. It would be an insult to the understanding to say that at the present moment there is no Rebellion or that there is no War. Whatever the doubts of Senators, or their fine-spun constitutional theories, nobody questions that we are in the midst of de facto Rebellion and in the midst of de facto War. We are in the midst of each and of both. It is not enough to say that there is Rebellion; nor is it enough to say that there is War. The whole truth is not told in either alternative. Our case is double, and you may call it Rebellion or War, as you please, or you may call it both. It is Rebellion swollen to all the proportions of war, and it is War deriving its life from rebellion. It is not less Rebellion because of its present full-blown grandeur, nor is it less War because of the traitorous source whence it draws its life.
The Rebellion is manifest,—is it not? An extensive territory, once occupied by Governments rejoicing in allegiance to the Union, and sharing largely in its counsels, has undertaken to overthrow the National Constitution within its borders. Its Senators and Representatives have withdrawn from Congress. The old State Governments, solemnly bound by the oaths of their functionaries to support the National Constitution, have vanished; and in their place appear pretended Governments, which, adopting the further pretension of a Confederacy, have proceeded to issue letters of marque and to levy war against the United States. So far has displacement of the National Government prevailed, that at this moment, throughout this whole territory, there are no functionaries acting under the United States, but all are pretending to act under the newly established Usurpation. Instead of the oath to support the Constitution of the United States, required of all officials by the Constitution, another oath is substituted, to support the Constitution of the Confederacy; and thus the Rebellion assumes a completeness of organization under the most solemn sanctions. In point of fact, throughout this territory the National Government is ousted, while the old State Governments have ceased to exist, lifeless now from Rebel hands. Call it suicide, if you will, or suspended animation, or abeyance,—they have practically ceased to exist. Such is the plain and palpable fact. If all this is not rebellion, complete in triumphant treason, then is rebellion nothing but a name.
But the War is not less manifest. Assuming all the functions of an independent government, the Confederacy has undertaken to declare war against the United States. In support of this declaration it has raised armies, organized a navy, issued letters of marque, borrowed money, imposed taxes, and otherwise done all that it could in waging war. Its armies are among the largest ever marshalled by a single people, and at different places throughout a wide-spread territory they have encountered the armies of the United States. Battles are fought with the varying vicissitudes of war. Sieges are laid. Fortresses and cities are captured. On the sea, ships bearing the commission of the Rebellion, sometimes as privateers and sometimes as ships of the navy, seize, sink, or burn merchant vessels of the United States; and only lately an iron-clad steamer, with the flag of the Rebellion, destroyed two frigates of the United States. On each side prisoners are made, who are treated as prisoners of war, and as such exchanged. Flags of truce pass from camp to camp, and almost daily during the winter this white flag has afforded its belligerent protection to communications between Norfolk and Fortress Monroe, while the whole Rebel coast is by proclamation of the President declared in a state of blockade, and ships of foreign countries, as well as of our own, are condemned by courts in Washington, Philadelphia, New York, and Boston, as prize of war. Thus do all things attest the existence of war, which is manifest now in the blockade, upheld by judicial tribunals, and now in the bugle, which after night sounds truce, indubitably as in mighty armies face to face on the battle-field. It is war in all its criminal eminence, challenging all the pains and penalties of war, enlisting all its terrible prerogatives, and awaking all its dormant thunder.
Further effort is needless to show that we are in the midst of a Rebellion and in the midst of a War,—or, in yet other words, that unquestionable war is now waged to put down unquestionable rebellion. But a single illustration out of many in history will exhibit this double character in unmistakable relief. The disturbances which convulsed England in the middle of the seventeenth century were occasioned by the resistance of Parliament to the arbitrary power of the Crown. This resistance, prolonged for years and maintained by force, triumphed at last in the execution of King Charles and the elevation of Oliver Cromwell. The historian whose classical work was for a long time the chief authority relative to this event styles it “The Rebellion,” and under this name it passed into the memory of men. But it was none the less war, with all the incidents of war. The fields of Naseby, Marston Moor, Dunbar, and Worcester, where Cavaliers and Puritans met in bloody shock, attest that it was war. Clarendon called it Rebellion, and the title of one of his works makes it “The Grand Rebellion,”—how small by the side of ours! But a greater than Clarendon—John Milton—called it War, when, in unsurpassed verses, after commemorating the victories of Cromwell, he uses words so often quoted without knowing their original application:—
“Yet much remains
To conquer still: Peace hath her victories
No less renowned than War.”[8]
The death of Cromwell was followed by the restoration of King Charles the Second; but the royal fugitive from the field of Worcester, where Cromwell triumphed in war, did not fail to put forth the full prerogatives of sovereignty in the suppression of rebellion; and all who sat in judgment on the king, his father, were saved from the fearful penalties of treason only by exile. Hugh Peters, the Puritan preacher, and Harry Vane, the Puritan senator, were executed as traitors for the part they performed in what was at once rebellion and war, while the body of the great commander who defeated his king in battle, and then sat upon his throne, was hung in chains, as a warning against treason.
Other instances might be given to illustrate the double character of present events. But enough is done. My simple object is to exhibit this important point in such light that it will be at once recognized. And I present the Rebellion and the War as obvious facts. Let them be seen in their true character, and it is easy to apply the law. Because Senators see the facts only imperfectly, they hesitate with regard to the powers we are to employ,—or perhaps it is because they insist upon seeing the fact of Rebellion exclusively, and not the fact of War. Let them open their eyes, and they must see both. If I seem to dwell on this point, it is because of its practical importance in the present debate. For myself, I assume it as an undeniable postulate.
The persons arrayed for the overthrow of the Government of the United States are unquestionably criminals, subject to all the penalties of rebellion, which is of course treason under the Constitution of the United States.
The same persons arrayed in war against the Government of the United States are unquestionably enemies, exposed to all the incidents of war, with its penalties, seizures, contributions, confiscations, captures, and prizes.
They are criminals, because they set themselves traitorously against the Government of their country.
They are enemies, because their combination assumes the front and proportions of war.
It is idle to say that they are not criminals. It is idle to say that they are not enemies. They are both, and they are either; and it is for the Government of the United States to proceed against them in either character, according to controlling considerations of policy. This right is so obvious, on grounds of reason, that it seems superfluous to sustain it by authority. But since its recognition is essential to the complete comprehension of our present position, I shall not hesitate to illustrate it by judicial decisions, and also by an earlier voice.
A judgment of the Supreme Court of the United States cannot bind the Senate on this question; but it is an important guide, to which we all bow with respect. In the best days of this eminent tribunal, when Marshall was Chief Justice, in a case arising out of the efforts of France to suppress insurrection in the colony of San Domingo, it was affirmed by the Court that in such a case there were two distinct sources of power open to exercise by a government,—one found in the rights of a sovereign, the other in the rights of a belligerent, or, in other words, one under Municipal Law, and the other under International Law,—and the exercise of one did not prevent the exercise of the other. Belligerent rights, it was admitted, might be superadded to the rights of sovereignty. Here are the actual words of Chief-Justice Marshall:—
“It is not intended to say that belligerent rights may not be superadded to those of sovereignty. But admitting a sovereign, who is endeavoring to reduce his revolted subjects to obedience, to possess both sovereign and belligerent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If as a legislator he publishes a law ordaining punishments for certain offences, which law is to be applied by courts, the nature of the law and of the proceedings under it will decide whether it is an exercise of belligerent rights or exclusively of his sovereign power.”[9]
Here are the words of another eminent judge, Mr. Justice Johnson, in the same case:—
“But there existed a war between the parent state and her colony. It was not only a fact of the most universal notoriety, but officially notified in the gazettes of the United States.… Here, then, was notice of the existence of war, and an assertion of the rights consequent upon it. The object of the measure was … solely the reduction of an enemy. It was, therefore, not merely municipal, but belligerent, in its nature and object.”[10]
Although the conclusion of the Court in this case was afterwards reversed, yet nothing occurred to modify the judgment on the principles now in question; so that the case remains authority for double proceedings, municipal and belligerent.
On a similar state of facts, arising from the efforts of France to suppress the insurrection in San Domingo, the Supreme Court of Pennsylvania asserted the same principle; and here we find the eminent Chief-Justice Tilghman—one of the best authorities of the American bench—giving to it the weight of his enlightened judgment. These are his words:—
“We are not at liberty to consider the island in any other light than as part of the dominions of the French Republic. But supposing it to be so, the Republic is possessed of belligerent rights.…
“Although the French Government, from motives of policy, might not choose to make mention of war, yet it does not follow that it might not avail itself of all rights to which by the Law of Nations it was entitled in the existing circumstances.… This was the course pursued by Great Britain in the Revolutionary War with the United States.… Considering the words of the arrêté, and the circumstances under which it was made, it ought not to be understood simply as a municipal regulation, but a municipal regulation connected with a state of war with revolted subjects.”[11]
The principle embodied in these cases is accurately stated by a recent text-writer as follows.
“A sovereign nation, engaged in the duty of suppressing an insurrection of its citizens, may, with entire consistency, act in the twofold capacity of sovereign and belligerent, according to the several measures resorted to for the accomplishment of its purpose. By inflicting, through its agent, the judiciary, the penalty which the law affixes to the capital crimes of treason and piracy, … it acts in its capacity as a sovereign, and its courts are but enforcing its municipal regulations. By instituting a blockade of the ports of its rebellious subjects, … the nation is exercising the right of a belligerent, and its courts, in their adjudications upon the captures made in the enforcement of this measure, are organized as Courts of Prize, governed by and administering the Law of Nations.”[12]
The same principle has received most authentic declaration in the recent judgment of an able magistrate in a case of Prize for a violation of the blockade. I refer to the case of the Amy Warwick, tried in Boston, where Judge Sprague, of the District Court, expressed himself as follows.
“The United States, as a nation, have full and complete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance, and have superadded the guilt of treason to that of unjust war.”[13]
Among all the judges called to consider judicially the character of this Rebellion, I know of none whose opinion is entitled to more consideration. Long experience has increased his original aptitude for such questions, and made him an authority.
There is an earlier voice, which, even if all judicial tribunals had been silent, would be decisive. I refer to Hugo Grotius, who, by his work “De Jure Belli ac Pacis,” became the lawgiver of nations. Original in conception, vast in plan, various in learning, and humane in sentiment, this effort created the science of International Law, which, since that early day, has been softened and refined, without essential change in the principles then enunciated. His master mind anticipated the true distinction, when, in definition of War, he wrote as follows.
“The first and most necessary partition of war is this: that war is private, public, or mixed. Public war is that which is carried on under the authority of him who has jurisdiction; private, that which is otherwise; mixed, that which is public on one side and private on the other.”[14]
In these few words of this great authority is found the very discrimination which enters into the present discussion. The war in which we are now engaged is not precisely “public,” because on one side there is no Government; nor is it “private,” because on one side there is a Government; but it is “mixed,”—that is, public on one side and private on the other. On the side of the United States, it is under authority of the Government, and therefore “public”; on the other side, it is without the sanction of any recognized Government, and therefore “private.” In other words, the Government of the United States may claim for itself all belligerent rights, while it refuses them to the other side. And Grotius, in his reasoning, sustains his definition by showing that war becomes the essential agency, where public justice ends,—that it is the justifiable mode of dealing with those who are not kept in order by judicial proceedings,—and that, as a natural consequence, where war prevails, the Municipal Law is silent. And here, with that largess of quotation which is one of his peculiarities, he adduces the weighty words of Demosthenes: “Against enemies, who cannot be coerced by our laws, it is proper and necessary to maintain armies, to send out fleets, and to pay taxes; but against our own citizens, a decree, an indictment, the state vessel are sufficient.”[15] But when citizens array themselves in multitudes, they come within the declared condition of enemies. There is so much intrinsic reason in this distinction that I am ashamed to take time upon it. And yet it has been constantly neglected in this debate. Let it be accepted, and the constitutional scruples which play such a part will be out of place.
Senators seem to feel the importance of being able to treat the Rebels as “alien enemies,” on account of penalties which would then attach. The Senator from Kentucky [Mr. Davis], in his bill, proposes to declare them so, and the Senator from Wisconsin [Mr. Doolittle] has made a similar proposition with regard to a particular class. But all this is superfluous. Rebels in arms are “enemies,” exposed to all the penalties of war, as much as if they were alien enemies. No legislation is required to make them so. They are so in fact. It only remains that they should be treated so, or, according to the Declaration of Independence, that we “hold them, as we hold the rest of mankind, enemies in war, in peace friends.”
Mark now the stages of the discussion. We have seen, first, that, in point of fact, we are in the midst of rebellion and in the midst of a war,—and, secondly, that, in point of law, we are at liberty to act under powers incident to either or both of these conditions, treat the people engaged against us as criminals, or as enemies, or, if we please, as both. Pardon me, if I repeat these propositions; but it is essential that they should not be forgotten.
Therefore, Sir, in determining our course, we may banish all question of power. The power is ample and indubitable, being regulated in the one case by the Constitution, and in the other case by the Rights of War. Treating them as criminals, then are we under the restraints of the Constitution; treating them as enemies, we have all the latitude sanctioned by the Rights of War; treating them as both, then may we combine our penalties from the double source. What is done against them merely as criminals will naturally be in conformity with the Constitution; but what is done against them as enemies will have no limitation except the Rights of War.
The difference between these two systems, represented by two opposite propositions now pending, may be seen in the motive which is the starting-point of each. Treating those arrayed in arms against us as criminals, we assume sovereignty, and seek to punish for violation of existing law. Treating them as enemies, we assume no sovereignty, but simply employ the means known to war in overcoming an enemy, and in obtaining security against him. In the one case our cause is founded in Municipal Law under the Constitution, and in the other case in the Rights of War under International Law. In the one case our object is simply punishment; in the other case it is assured victory.
Having determined the existence of these two sources of power, we are next led to consider the character and extent of each under the National Government: first, Rights against Criminals, founded on sovereignty, with their limitations under the Constitution; and, secondly, Rights against Enemies, founded on war, which are absolutely without constitutional limitation. Having passed these in review, the way will then be open to consider which class of rights Congress shall exercise.
I.
I begin, of course, with Rights against Criminals, founded on sovereignty, with their limitations under the Constitution.
Rebellion is in itself the crime of treason, which is usually called the greatest crime known to the law, containing all other crimes, as the greater contains the less. But neither the magnitude of the crime nor the detestation it inspires can properly move us from duty to the Constitution. Howsoever important it may be to punish rebels, this must not be done at the expense of the Constitution. On that point I agree with the Senator from Pennsylvania [Mr. Cowan], and the Senator from Vermont [Mr. Collamer]; nor will I yield to either in determination to uphold the Constitution, which is the shield of the citizen. Show me that any proposition is without support in the Constitution, or that it offends against any constitutional safeguard, and it cannot receive my vote. Sir, I shall not allow Senators to be more careful on this head than myself. They shall not have a monopoly of this proper caution.
In proceedings against criminals there are provisions or principles of the Constitution which cannot be disregarded. I will enumerate them, and endeavor to explain their true character.
1. Congress, it is said, has no power under the Constitution over Slavery in the States. This popular principle of Constitutional Law, which is without foundation in the positive text of the Constitution, is adduced against all propositions to free the slaves of Rebels. But this is an obvious misapplication of the alleged principle, which simply means that Congress has no direct power over Slavery in the States, so as to abolish or limit it. For no careful person, whose opinion is of any value, ever attributed to the pretended property in slaves an immunity from forfeiture or confiscation not accorded to other property; and this is a complete answer to the argument on this head. Even in prohibiting Slavery, as in the Jeffersonian ordinance, there is a declared exception of the penalty of crime; and so in upholding Slavery in the States, there must be a tacit, but unquestionable, exception of this penalty.
2. There must be no ex post facto law; which means that there can be no law against crime retrospective in its effect. This is clear.
3. There must be no bill of attainder; which means that there can be no special legislation, where Congress, undertaking the double function of legislature and judge, shall inflict the punishment of death without conviction by due process of law. And there is authority for assuming that this prohibition includes a bill of pains and penalties, which is a milder form of legislative attainder, where the punishment inflicted is less than death.[16] And surely no constitutional principle is more worthy of recognition.
4. No person shall be deprived of life, liberty, or property, without due process of law; which means, without presentment, or other judicial proceeding. This provision, borrowed from Magna Charta, constitutes a safeguard for all: nor can it be invoked by the criminal more than by the slave; for in our Constitution it is applicable to every “person,” without distinction of condition or color. But the criminal is entitled to its protection.
5. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which District shall have been previously ascertained by law. This is the sixth amendment to the Constitution, and is not to be lost sight of now. The accused, whoever he may be, though his guilt be open as noonday, can be reached criminally only in the way described. When we consider the deep and wide-spread prejudices which must exist throughout the whole Rebel territory, it is difficult to suppose that any jury could be found within the State and District where the treason was committed who would unite in the necessary verdict of Guilty. For myself, I do not expect it; and I renounce the idea of justice in this way. Jefferson Davis himself, whose crime has culminated in Virginia, could not be convicted by a jury of that State. But it is the duty of the statesman to consider how justice, impossible in one way, may be made possible in another way.
6. No attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. Perhaps no provision of the Constitution, supposed pertinent to the present debate, has been more considered; nor is there any with regard to which there is greater difference of opinion. Learned lawyers in this body insist broadly that it forbids forfeiture of real estate, although not of personal, as a penalty of treason; while others insist that all the real as well as personal estate belonging to the offender may be forfeited. The words of the Constitution are technical, so as to require interpretation; and as they are derived from the Common Law, we must look to this law for their meaning. By “attainder of treason” is meant judgment of death for treason,—that is, the judgment of court on conviction of treason. “Upon judgment of death for treason or felony,” says Blackstone, “a man shall be said to be attainted.”[17] Such judgment, which is, of course, a criminal proceeding, cannot, under our Constitution, work corruption of blood; which means that it cannot create obstruction or incapacity in the blood to prevent an innocent heir from tracing title through the criminal, as was cruelly done by the Common Law.
Nor shall such attainder work “forfeiture except during the life of the person attainted.” If there be any question, it arises under these words, which, it will be observed, are peculiarly technical. As the term “attainder” is confined to “judgment of death,” this prohibition is limited precisely to where that judgment is awarded; so that, if the person is not adjudged to death, there is nothing in the Constitution to forbid absolute forfeiture. This conclusion is irresistible. If accepted, it disposes of the objection in all cases where there is no judgment of death.
Even where the traitor is adjudged to death, there is good reason to doubt if his estate in fee-simple, which is absolutely his own, and alienable at his mere pleasure, may not be forfeited. It is admitted by Senators that the words of the Constitution do not forbid the forfeiture of the personal estate, which in the present days of commerce is usually much larger than the real estate, although to an unprofessional mind these words are as applicable to one as to the other; so that a person attainted of treason would forfeit all his personal estate, of every name and nature, no matter what its amount, even if he did not forfeit his real estate. But since an estate in fee-simple belongs absolutely to the owner, and is in all respects subject to his disposition, there seems no reason for its exemption which is not equally applicable to personal property. The claim of the family is as strong in one case as in the other. And if we take counsel of analogy, we find ourselves led in the same direction. It is difficult to say, that, in a case of treason, there can be any limitation to the amount of fine imposed; so that in sweeping extent it may take from the criminal all his estate, real and personal. And, secondly, it is very clear that the prohibition in the Constitution, whatever it be, is confined to “attainder of treason,” and not, therefore, applicable to a judgment for felony, which at the Common Law worked forfeiture of all estate, real and personal; so that under the Constitution such forfeiture for felony can be now maintained. But assuming the Constitution applicable to treason where there is no judgment of death, it is only reasonable to suppose that this prohibition is applicable exclusively to that posthumous forfeiture depending upon corruption of blood; and here the rule is sustained by intrinsic justice. But all present estate, real as well as personal, actually belonging to the traitor, is forfeited.
Not doubting the intrinsic justice of this rule, I am sustained by the authority of Mr. Hallam, who, in a note to his invaluable History of Literature, after declaring, that, according to the principle of Grotius, the English law of forfeiture in high treason is just, being part of the direct punishment of the guilty, but that of attainder or corruption of blood is unjust, being an infliction on the innocent alone, stops to say:—
“I incline to concur in this distinction, and think it at least plausible, though it was seldom or never taken in the discussions concerning those two laws. Confiscation is no more unjust towards the posterity of an offender than fine, from which, of course, it only differs in degree.”[18]
An opinion from such an authority is entitled to much weight in determining the proper signification of doubtful words.
This interpretation is helped by another suggestion, which supposes the comma in the text of the Constitution misplaced, and that, instead of being after “corruption of blood,” it should be after “forfeiture,” separating it from the words “except during the life of the person attainted,” and making them refer to the time when the attainder takes place, rather than to the length of time for which the estate is forfeited. Thus does this much debated clause simply operate to forbid forfeiture when not pronounced “during the life of the person attainted.” In other words, the forfeiture cannot be pronounced against a dead man, or the children of a dead man, and this is all.
Amidst the confusion in which this clause is involved, you cannot expect that it will be a strong restraint upon any exercise of power under the Constitution which otherwise seems rational and just. But, whatever its signification, it has no bearing on our rights against enemies. Bear this in mind. Criminals only, and not enemies, can take advantage of it.
Such, Mr. President, are the provisions or principles of Constitutional Law controlling us in the exercise of rights against criminals. If any bill or proposition, penal in character, having for its object simply punishment, and ancillary to the administration of justice, violates any of these safeguards, it is not constitutional. Therefore do I admit that the bill of the Committee, and every other bill now before the Senate, so far as they assume to exercise the Rights of Sovereignty in contradistinction to the Rights of War, must be in conformity with these provisions or principles.
But the Senator from Vermont [Mr. Collamer], in his ingenious speech, to which we all listened with so much interest, was truly festive in allusion to certain proceedings much discussed in this debate. The Senator did not like proceedings in rem, although I do not know that he positively objected to them as unconstitutional. It is difficult to imagine any such objection. Assuming that criminals cannot be reached to be punished personally, or that they have fled, the Senator from Illinois [Mr. Trumbull], and also the Senator from New York [Mr. Harris], propose to reach them through their property,—or, adopting technical language, instead of proceedings in personam, which must fail from want of jurisdiction, propose proceedings in rem. Such proceedings may not be of familiar resort, since, happily, an occasion like the present has never before occurred among us; but they are strictly in conformity with established precedents, and also with the principles by which these precedents are sustained.
Nobody can forget that smuggled goods are liable to confiscation by proceedings in rem. This is a familiar instance. The calendar of our District Courts is crowded with these cases, where the United States are plaintiff, and some inanimate thing, an article of property, is defendant. Such, also, are proceedings against a ship engaged in the slave-trade. Of course, by principles of the Common Law, a conviction is necessary to divest the offender’s title; but this rule is never applied to forfeitures created by statute. It is clear that the same sovereignty which creates the forfeiture may determine the proceedings by which it shall be ascertained. If, therefore, it be constitutional to direct the forfeiture of rebel property, it is constitutional to authorize proceedings in rem against it, according to established practice. Such proceedings constitute “due process of law,” well known in our courts, familiar to the English Exchequer, and having the sanction of the ancient Roman jurisprudence. If any authority were needed for this statement, it is found in the judgment of the Supreme Court of the United States in the case of the Palmyra, where it is said:—
“Many cases exist where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other; but the practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by, any criminal proceeding in personam.”[19]
The reason for proceedings in rem is, doubtless, that the thing is in a certain sense an offender, or at least has coöperated with the offender,—as a ship in the slave-trade. But the same reason prevails, although perhaps to less extent, in proceedings against rebel property, which, if not an offender, has at least coöperated with the offender hardly less than the ship in the slave-trade. Through his property the traitor is enabled to devote himself to treason, and to follow its accursed trade, waging war against his country; so that his property may be considered guilty also. But the condemnation of the property cannot be a bar to proceedings against the traitor himself, should he fall within our power. The two are distinct, although identical in their primary object, which is punishment.
Pardon me, Sir, if, dwelling on these things, I feel humbled that the course of the debate imposes such necessity. Standing, as we do, face to face with enemies striking at the life of the Republic, it is painful to find ourselves subjected to all the embarrassments of a criminal proceeding, as if this war were an indictment, and the army and navy of the United States, now mustered on land and sea, were only a posse comitatus. It should not be so. The Rebels have gone outside of the Constitution to make war upon their country. It is for us to pursue them as enemies outside of the Constitution, where they wickedly place themselves, and where the Constitution concurs in placing them also. So doing, we simply obey the Constitution, and act in all respects constitutionally.
II.
And this brings me to the second chief head of inquiry, not less important than the first: What are the Rights against Enemies which Congress may exercise in War?
Clearly the United States may exercise all the Rights of War which according to International Law belong to independent states. In affirming this proposition, I waive for the present all question whether these rights are to be exercised by Congress or by the President. It is sufficient that every nation has in this respect perfect equality; nor can any Rights of War accorded to other nations be denied to the United States. Harsh and repulsive as these rights unquestionably are, they are derived from the overruling, instinctive laws of self-defence, common to nations as to individuals. Every community having the form and character of sovereignty has a right to national life, and in defence of such life may put forth all its energies. Any other principle would leave it the wretched prey of wicked men, abroad or at home. In vain you accord the rights of sovereignty, if you despoil it of other rights without which sovereignty is only a name. “I think, therefore I am,” was the sententious utterance by which the first of modern philosophers demonstrated personal existence. “I am, therefore I have rights,” is the declaration of every sovereignty, when its existence is assailed.
Pardon me, if I interpose again to remind you of the essential difference between these rights and those others just considered. Though incident to sovereignty, they are not to be confounded with those peaceful rights which are all exhausted in a penal statute within the limitations of the Constitution. The difference between a judge and a general, between the halter of the executioner and the sword of the soldier, between the open palm and the clenched fist, is not greater than that between these two classes of rights. They are different in origin, different in extent, and different in object.
I rejoice to believe that civilization has already done much to mitigate the Rights of War; and it is among long cherished visions, which present events cannot make me renounce, that the time is coming when all these rights will be further softened to the mood of permanent peace. Though in the lapse of generations changed in many things, especially as regards non-combatants and private property on land, these rights still exist under the sanction of the Law of Nations, to be claimed whenever war prevails. It is absurd to accord the right to do a thing without according the means necessary to the end. And since war, which is nothing less than organized force, is permitted, all the means to its effective prosecution are permitted also, tempered always by that humanity which strengthens while it charms.
I begin this inquiry by putting aside all Rights of War against persons. In battle, persons are slain or captured, and, if captured, detained as prisoners till the close of the war, unless previously released by exchange or clemency. But these rights do not enter into the present discussion, which concerns property only, and not persons. From the nature of the case, it is only against property, or what is claimed as such, that confiscation is directed. Therefore I say nothing of persons, nor shall I consider any question of personal rights. According to the Rights of War, property, although inanimate, shares the guilt of its owner. Like him, it is criminal, and may be prosecuted to condemnation in tribunals constituted for the purpose, without any of those immunities claimed by persons accused of crime. It is Rights of War against the property of an enemy which I now consider.
If we resort to the earlier authorities, not excepting Grotius himself, we find these rights stated most austerely. I shall not go back to any such statement, but content myself with one of later date. You may find it harsh; but here it is.
“Since this is the very condition of war, that enemies are despoiled of all right and proscribed, it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury. It is customary, moreover, in almost every declaration of war, to ordain that goods of the enemy, as well those found among us as those taken in war, be confiscated.… Pursuant to the mere Right of War, even immovables could be sold and their price turned into the treasury, as is the practice in regard to movables; but throughout almost all Europe only a register is made of immovables, in order that during the war the treasury may receive their rents and profits, but at the termination of the war the immovables themselves are by treaty restored to the former owners.”[20]
These are the words of the eminent Dutch publicist, Bynkershoek, in the first half of the last century. In adducing them now I present them as adopted by Mr. Jefferson, in his remarkable answer to the note of the British minister at Philadelphia on the confiscations of the American Revolution. There are no words of greater weight in any writer on the Law of Nations. But Mr. Jefferson did not content himself with quotation. In the same state paper he thus declares unquestionable rights:—
“It cannot be denied that the state of war strictly permits a nation to seize the property of its enemies found within its own limits or taken in war, and in whatever form it exists, whether in action or possession.”[21]
This sententious statement is under date of 1792, and, when we consider the circumstances which called it forth, may be accepted as American doctrine. But even in our own day, since the beginning of the present war, the same principle has been stated yet more sententiously in another quarter. The Lord Advocate of Scotland, in the British House of Commons, as late as 17th March of the present year, declared:—
“The honorable gentleman spoke as if it was no principle of war that private rights should suffer at the hands of the adverse belligerent. But that was the true principle of war. If war was not to be defined—as it very nearly might be—as a denial of the rights of private property to the enemy, that denial was certainly one of the essential ingredients in it.”[22]
In quoting these authorities, which are general in their bearing, I do not stop to consider their modification according to the discretion of the belligerent power. I accept them as the starting-point in the present inquiry, and assume that by the Rights of War enemy property may be taken. But rights with regard to such property are modified by the locality of the property; and this consideration makes it proper to consider them under two heads: first, rights with regard to enemy property actually within the national jurisdiction; and, secondly, rights with regard to enemy property actually outside the national jurisdiction. It is easy to see, that, in the present war, rights against enemy property actually outside the national jurisdiction must exist a fortiori against such property actually within the jurisdiction. But, for the sake of clearness, I shall speak of them separately.
First. I begin with the Rights of War over enemy property actually within the national jurisdiction. In stating the general rule, I adopt the language of a recent English authority.
“Although there have been so many conventions granting exemption from the liabilities resulting from a state of war, the right to seize the property of enemies found in our territory when war breaks out remains indisputable, according to the Law of Nations, wherever there is no such special convention. All jurists, including the most recent, such as De Martens and Klüber, agree in this decision.”[23]
This statement is general, but unquestionable even in its rigor. For the sake of clearness and accuracy it must be considered in its application to different kinds of property.
1. It is undeniable, that, in generality, the rule must embrace real property, or, as termed by the Roman Law and the Continental systems of jurisprudence, immovables; but so important an authority as Vattel excepts this species of property, for the reason, that, being acquired by consent of the sovereign, it is as if it belonged to his own subjects.[24] But personal property is also under the same safeguard, and yet it is not embraced within the exception. If such, indeed, be the reason for the exception of real property, it loses all applicability where the property belongs to an enemy who began by breaking faith on his side. Surely, whatever the immunity of an ordinary enemy, it is difficult to see how a rebel enemy, whose hostility is bad faith in arms, can plead any safeguard. Cessante ratione, cessat et ipsa lex, is an approved maxim of the law; and since with us the reason of Vattel does not exist, the exception which he propounds need not be recognized, to the disparagement of the general rule.
2. The rule is necessarily applicable to all personal property, or, as it is otherwise called, movables. On this head there is hardly a dissenting voice, while the Supreme Court of the United States, in a case constantly cited in this debate, has solemnly affirmed it. I refer to Brown v. United States,[25] where the broad principle is assumed that war gives to the sovereign full right to confiscate the property of the enemy, wherever found, and that the mitigations of the rule, derived from modern civilization, may affect the exercise of the right, but cannot impair the right itself. Goods of the enemy actually in the country, and all vessels and cargoes afloat in our ports, at the commencement of hostilities, were declared liable to confiscation. In England, it is the constant usage, under the name of “Droits of Admiralty,” to seize and condemn property of an enemy in its ports at the breaking out of hostilities.[26] But this was not followed in the Crimean War, although the claim itself has never been abandoned.
3. The rule, in strictness, also embraces private debts due to an enemy. Although justly obnoxious to the charge of harshness, and uncongenial with an age of universal commerce, this application is recognized by the judicial authorities of the United States. Between debts contracted under faith of laws and property acquired under faith of the same laws reason draws no distinction; and the right of the sovereign to confiscate debts is precisely the same with the right to confiscate other property within the country on the breaking out of war. Both, it is said, require some special act expressing the sovereign will, and both depend less on any flexible rule of International Law than on paramount political considerations, which International Law will not control. Of course, just so far as slaves are regarded as property, or as bound to service or labor, they cannot constitute an exception to this rule, while the political considerations entering so largely into its application have with regard to them commanding force. In their case, by natural metamorphosis, confiscation becomes emancipation.
Such are recognized Rights of War touching enemy property within the national jurisdiction.
Secondly. The same broad rule with which I began may be stated touching enemy property beyond the national jurisdiction, subject, of course, to mitigation from usage, policy, and humanity, but still existing, to be employed in the discretion of the belligerent power. It may be illustrated by different classes of cases.
1. Public property of all kinds belonging to an enemy,—that is, property of the government or prince,—including lands, forests, fortresses, munitions of war, movables,—is all subject to seizure and appropriation by the conqueror, who may transfer the same by valid title, substituting himself, in this respect, for the displaced government or prince. It is obvious that in the case of immovables the title is finally assured only by the establishment of peace, while in the case of movables it is complete from the moment the property comes within the firm possession of the captor so as to be alienated indefeasibly. In harmony with the military prepossessions of ancient Rome, such title was considered the best to be had, and its symbol was a spear.
2. Private property of an enemy at sea, or afloat in port, is indiscriminately liable to capture and confiscation; but the title is assured only by condemnation in a competent court of prize.
3. While private property of an enemy on land, according to modern practice, is exempt from seizure simply as private property, yet it is exposed to seizure in certain specified cases. Indeed, it is more correct to say, with the excellent Manning, that it “is still considered as liable to seizure,” under circumstances constituting in themselves a necessity, of which the conqueror is judge.[27] It need not be added that this extraordinary power must be so used as not to assume the character of spoliation. It must have an object essential to the conduct of the war. But, with such object, it cannot be questioned. The obvious reason for exemption is, that a private individual is not personally responsible, as the government or prince. But every rebel is personally responsible.
4. Private property of an enemy on land may be taken as a penalty for the illegal acts of individuals, or of the community to which they belong. The exercise of this right is vindicated only by peculiar circumstances; but it is clearly among the recognized agencies of war, and it is easy to imagine that at times it may be important, especially in dealing with a dishonest rebellion.
5. Private property of an enemy on land may be taken for contributions to support the war. This has been done in times past on a large scale. Napoleon adopted the rule that war should support itself. Upon the invasion of Mexico by the armies of the United States, in 1846, the commanding generals were at first instructed to abstain from taking private property without purchase at a fair price; but subsequent instructions were of a severer character. It was declared by Mr. Marcy, at the time Secretary of War, that an invading army had the unquestionable right to draw supplies from the enemy without paying for them, and to require contributions for its support, and to make the enemy feel the weight of the war.[28] Such contributions are sometimes called “requisitions,” and a German writer on the Law of Nations says that it was Washington who “invented the expression and the thing.”[29] Possibly the expression; but the thing is as old as war.
6. Private property of an enemy on land may be taken on the field of battle, in operations of siege, or the storming of a place refusing to capitulate. This passes under the offensive name of “booty” or “loot.” In the late capture of the imperial palace of Pekin by the allied forces of France and England, this right was illustrated by the surrender of its contents, including silks, porcelain, and furniture, to the lawless cupidity of an excited soldiery.
7. Pretended property of an enemy in slaves may unquestionably be taken, and, when taken, will of course be at the disposal of the captor. If slaves are regarded as property, then will their confiscation come precisely within the rule already stated. But, since slaves are men, there is still another rule of public law applicable to them. It is clear, that, where there is an intestine division in an enemy country, we may take advantage of it, according to Halleck, in his recent work on International Law, “without scruple.”[30] But Slavery is more than an intestine division; it is a constant state of war. The ancient Scythians said to Alexander: “Between the master and slave no friendship exists; even in peace the Rights of War are still preserved.”[31] Giving freedom to slaves, a nation in war simply takes advantage of the actual condition of things. But there is another vindication of this right, which I prefer to present in the language of Vattel. After declaring that “in conscience and by the laws of equity” we may be obliged to restore “booty” recovered from an enemy who had taken it in unjust war, this humane publicist proceeds as follows.
“The obligation is more certain and more extensive with regard to a people whom our enemy has unjustly oppressed. For a people thus spoiled of their liberty never renounce the hope of recovering it. If they have not voluntarily incorporated themselves with the state by which they have been subdued, if they have not freely aided her in the war against us, we ought certainly so to use our victory as not merely to give them a new master, but to break their chains. To deliver an oppressed people is a noble fruit of victory; it is a valuable advantage gained thus to acquire a faithful friend.”[32]
These are not the words of a visionary, or of a speculator, or of an agitator, but of a publicist, an acknowledged authority on the Law of Nations.
Therefore, according to the Rights of War, slaves, if regarded as property, may be declared free; or if regarded as men, they may be declared free, under two acknowledged rules: first, of self-interest, to procure an ally; and, secondly, of conscience and equity, to do an act of justice ennobling victory.
Such, Sir, are acknowledged Rights of War with regard to enemy property, whether within or beyond our territorial jurisdiction. I do little more than state these rights, without stopping to comment. If they seem harsh, it is because war in essential character is harsh. It is sufficient for our present purpose that they exist.
Of course, all these rights belong to the United States. There is not one of them which can be denied. They are ours under that great title of Independence by which our place was assured in the Family of Nations. Dormant in peace, they are aroused into activity only by the breath of war, when they all place themselves at our bidding, to be employed at our own time, in our own way, and according to our own discretion, subject only to that enlightened public opinion which now rules the civilized world.
Belonging to the United States by virtue of International Law, and being essential to self-defence, they are naturally deposited with the supreme power, which holds the issues of peace and war. Doubtless there are Rights of War, embracing confiscation, contribution, and liberation, to be exercised by any commanding general in the field, or to be ordered by the President, according to the exigency. Mr. Marcy was not ignorant of his duty, when, by instructions from Washington, in the name of the President, he directed the levy of contributions in Mexico. In European countries all these Rights of War which I have reviewed to-day are deposited with the executive alone,—as in England with the Queen in Council, and in France and Russia with the Emperor; but in the United States they are deposited with the legislative branch, being the President, Senate, and House of Representatives, whose joint action becomes the supreme law of the land. The Constitution is not silent on this question. It expressly provides that Congress shall have power, first, “to declare war,” and thus set in motion all the Rights of War; secondly, “to grant letters of marque and reprisal,” being two special agencies of war; thirdly, “to make rules concerning captures on land and water,” which power of itself embraces the whole field of confiscation, contribution, and liberation; fourthly, “to raise and support armies,” which power, of course, comprehends all means for this purpose known to the Rights of War; fifthly, “to provide and maintain a navy,” plainly according to the Rights of War; sixthly, “to make rules for the government and regulation of the land and naval forces,” another power involving confiscation, contribution, and liberation; and, seventhly, “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” a power which again sets in motion all the Rights of War. But, as if to leave nothing undone, the Constitution further empowers Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” In pursuance of these powers, Congress has already enacted upwards of one hundred articles of war for the government of the army, one of which provides for the security of public stores taken from the enemy. It has also sanctioned the blockade of the Rebel ports according to International Law. And only at the present session we have enacted an additional article to regulate the conduct of officers and men towards slaves seeking shelter in camp. Proceeding further on the present occasion, it will act in harmony with its own precedents, as well as with its declared powers, according to the very words of the Constitution. Language cannot be broader. Under its comprehensive scope there is nothing essential to the prosecution of the war, its conduct, its support, or its success,—yes, Sir, there can be nothing essential to its success, which is not positively within the province of Congress. There is not one of the Rights of War which Congress may not invoke. There is not a single weapon in its terrible arsenal which Congress may not grasp.
Such are indubitable powers of Congress. It is not questioned that these may all be employed against a public enemy; but there are Senators who strangely hesitate to employ them against that worst enemy of all, who to hostility adds treason, and teaches his country
“How sharper than a serpent’s tooth it is
To have a thankless child.”
The rebel in arms is an enemy, and something more; nor is there any Right of War which may not be employed against him in its extremest rigor. In appealing to war, he has voluntarily renounced all safeguards of the Constitution, and put himself beyond its pale. In ranging himself among enemies, he has broken faith so as to lose completely all immunity from the strictest penalties of war. As an enemy, he must be encountered; nor can our army be delayed in the exercise of the Rights of War by any misapplied questions of ex post facto, bills of attainder, attainder of treason, due process of law, or exemption from forfeiture. If we may shoot rebel enemies in battle, if we may shut them up in fortresses or prisons, if we may bombard their forts, if we may occupy their fields, if we may appropriate their crops, if we may blockade their ports, if we may seize their vessels, if we may capture their cities, it is vain to say that we may not exercise against them the other associate prerogatives of war. Nor can any technical question of constitutional rights be interposed in one case more than another. Every prerogative of confiscation, requisition, or liberation known in war may be exercised against rebels in arms precisely as against public enemies. Ours are belligerent rights to the fullest extent.
Sir, the case is strong. The Rebels are not only criminals, they are also enemies, whose property is actually within the territorial jurisdiction of the United States; so that, according to the Supreme Court, it only remains for Congress to declare the Rights of War to be exercised against them. The case of Brown,[33] so often cited in this debate, affirms that enemy property actually within our territorial jurisdiction can be seized only by virtue of an Act of Congress, and recognizes the complete liability of all such property, when actually within such territorial jurisdiction. It is therefore, in all respects, a binding authority, precisely applicable; so that Senators who would impair its force must deny either that the Rebels are enemies or that their property is actually within the territorial jurisdiction of the United States. Assuming that they are enemies, and that their property is actually within our territorial jurisdiction, the power of Congress is complete; and it is not to be confounded with that of a commanding general in the field, or of the President as commander-in-chief of the armies.
Pardon me, if I dwell on one point with regard to the property of rebels in arms by which it is distinguishable from the private property of enemies in international war. Every rebel in arms is directly responsible for his conduct, as in international war the government or prince is directly responsible; so that on principle he can claim no exemption from any penalty of war. And since Public Law is founded on reason, it follows that the rule subjecting to seizure and forfeiture all property, real as well as personal, of the hostile government or prince should be applied to all property, real and personal, of the rebel in arms. It is impossible for him to claim the immunity conceded generally to private property of an enemy in international war, and also conceded generally to land of an enemy within our territorial jurisdiction. For the rebel in arms there is no just exemption.
When claiming these powers for Congress, it must also be stated that there is a limitation of time with regard to their exercise. Whatever is done against the Rebels in our character as belligerents under the Rights of War must be done during war, and not after its close. Naturally the Rights of War end with the war, except in those consequences which have become fixed during the war. With the establishment of peace the Rights of Peace resume sway, and all proceedings are according to the prescribed forms of the Constitution. Instead of laws silenced by arms, there are arms submissive to laws. Instead of courts martial or military proceedings, there are the ordinary courts of justice with all constitutional safeguards. If this change needed illustration, it would be found in a memorable passage of French history. Marshal Ney, who had deserted Louis the Eighteenth to welcome Napoleon from Elba, was, after the capitulation of Paris, handed over to a council of war for trial; but the council, composed of marshals of France, declared itself incompetent, since the case involved treason, and the accused was carried before the Chamber of Peers, of which he was a member, according to the requirements of the French Charter. His condemnation and execution have been indignantly criticized, but the form of trial was a homage to the pacification which had been proclaimed. Therefore let it be borne in mind that all proceedings founded on the Rights of War will expire, when the Constitution is again established throughout the country. They are temporary and incidental, in order to secure that blessed peace which we all seek.
So completely are these rights distinguished from ordinary municipal proceedings against crime, that they are administered by tribunals constituted for the purpose, with well-known proceedings of their own. Courts of Prize have a fixed place in the judicial system of the United States, and their jurisdiction excludes that of municipal tribunals, so that no action can be brought in a court of Common Law on account of a seizure jure belli. It is their province to hear all cases of prize or capture,—in short, every case of property arising under the Rights of War; and although practically these cases are chiefly maritime, yet the jurisdiction of such courts is held to embrace hostile seizures on shore.[34] The hearing is by the court alone, without a jury, substantially according to forms derived from the Roman Law; and the ordinary judgment is against the thing captured, or in rem, pronouncing its condemnation and distribution. In every case of prize or capture, involving a question of property, and not of crime, these proceedings constitute “due process of law,” so as to be completely effective under the Constitution, and, according to acknowledged principles, they supersede the jurisdiction of all mere municipal tribunals.
Among the few cases illustrating this exclusive jurisdiction in matters of capture and prize on land is one which arose from the exercise of military power in a conquered province in India, and was at last considered and decided by the Privy Council in England, after most elaborate argument by the most eminent barristers of the time. The facts are few. Upon the conquest of Poonah, in 1817, Mr. Mountstuart Elphinstone, perhaps the most finished man, and of completest gentleness, who ever exercised power in British India, was appointed “sole commissioner for the settlement of the territory conquered, with authority over all the civil and military officers employed in it.” In the discharge of his dictatorial functions, he proceeded to appoint a “provisional collector and magistrate of the city of Poonah and the adjacent country,” whom he instructed “to deprive the enemy of his resources, and in this and all other points to make everything subservient to the conduct of the war.” After indicating certain crimes to be treated with summary punishment, he proceeded to confer plenary powers, saying: “All other crimes you will investigate according to the forms of justice usual in the country, modified as you may think expedient; and in all cases you will endeavor to enforce the existing laws and customs, unless where they are clearly repugnant to reason and natural equity.” Under these instructions the provisional collector seized several bags of gold, in the house of a prominent enemy. In an action before the Supreme Court of Bombay for the value of this treasure, and of a quantity of jewels and shawls taken by the military, judgment was given for the claimant. But this was overruled by the Court of Appeals in England, on the ground, that, in the actual state of warfare at that time, there was no jurisdiction over a question of prize and capture in an ordinary municipal court. At the bar it was argued:—
“No country can ever be thoroughly brought under subjection, if it is to be held, that, where there has been a conquest and no capitulation, the mere publication of a proclamation, desiring the people to be quiet, and telling them what means would be resorted to, if they were not so, so far reduces the country under the civil rule, that the army loses its control, and the municipal courts acquire altogether jurisdiction, so that every action of the officers in the direction of military affairs is liable to their cognizance.”[35]
In giving judgment, Lord Tenterden, at the time Chief Justice of England, stated the conclusion, as follows.
“We think the proper character of the transaction was that of hostile seizure, made, if not flagrante, yet nondum cessante bello, regard being had both to the time, the place, and the person, and consequently that the municipal court had no jurisdiction to adjudge upon the subject, but that, if anything was done amiss, recourse could only be had to the Government for redress.”[36]
This is an important and leading authority, interesting in all respects; but I adduce it now only to show that municipal courts cannot properly take cognizance of questions of property arising under the Rights of War. This established principle testifies to the essential difference between rights against criminals and rights against enemies. There is a different tribunal for each claim.
I have said what I have to say on the law of this matter, bringing it to the standard of the Constitution and of International Law, and I have exhibited the powers of Congress in their two fountains. It is for you to determine out of which you will draw, or, indeed, if you will not draw from both. Regarding the Rebels as criminals, you may so pursue and punish them. Regarding them as enemies, you may blast them with that summary vengeance which is among the dread agencies of war, while, by an act of beneficent justice, you elevate a race, and change this national calamity into a sacred triumph. Or, regarding them both as criminals and as enemies, you may marshal against them all the double penalties of rebellion and war, or, better still, the penalties of rebellion and the triumphs of war.
It now remains to borrow such instruction as we can from the history of kindred measures. And here I am not tempted to depart from that frankness which is with me an instinct and a study. If there be anything in the past to serve as warning, I shall not keep it back, although I ask you to consider carefully the true value of these instances, and how far they are a lesson to us. If there be any course to which I incline, it will be abandoned at once, when shown not to be for the highest good. I have no theories to maintain at the expense of my country or of truth.
Confiscation is hardly less ancient than national life. It began with history. It appears in the Scriptures, where Ahab took the vineyard of Naboth, and David gave away the goods of a confederate of Absalom. The Senator from Wisconsin [Mr. Doolittle] reminded us that it prevailed among the Persians and Macedonians. In the better days of the Roman Republic it was little known; but it appeared with the vengeful proscriptions of Sylla; and Cæsar himself, always forbearing, yet, while striving to mitigate the penalties of the Catilinarian conspirators, moved a confiscation of all their property to the public treasury. It flourished under the Emperors, who made it alternately the instrument of tyranny and of cupidity. But there were virtuous Emperors, like Antoninus Pius, under whom the goods of a convict were abandoned to his children, and like Trajan, under whom confiscation was unknown. Among the reforms of Justinian, in his immortal revision of the law, this penalty disappeared, except in cases of treason.[37] But these instances illustrate confiscation only as punishment. Throughout Roman history it had been inseparable from war. The auction was an incident of the camp. It was a distribution of bounty lands among the soldiers of Octavius, after the establishment of his power, that drove Virgil from his paternal acres to seek imperial favor at Rome.
In modern times confiscation became a constant instrument of government, both in punishment and in war. It was an essential incident to the feudal system, which was in itself a form of government. Ruthlessly exercised, sometimes against individuals and sometimes against whole classes, it was converted into an engine of vengeance and robbery, which spared neither genius nor numbers. In Florence it was directed against Dante, and in Holland against Grotius, while in early England it was the power by which William of Normandy despoiled the Saxons of their lands and parcelled them among his followers. In Germany, during the period of theological conflict which darkened that great country, it was often used against Protestants, and was at one time menaced on a gigantic scale. The Papal Nuncio sought nothing less than the confiscation of all the goods of heretics. Spain was not less intolerant than Germany, and the story of the Moors and the Jews, stripped of their possessions and sent forth as wanderers, protests against such injustice. In early France confiscation was not idle, although in one instance it received an application which modern criticism will not reject, when, by special ordinance, rebels were declared to be enemies, and their property was subjected to confiscation as Prize of War.
By the law of England, it was the inseparable incident of treason, flourishing always in Ireland, where rebellion was chronic, and showing itself in Great Britain whenever rebellion occurred. But it was simply as part of punishment, precisely as the traitor was drawn and quartered and his blood corrupted, all according to law. The scaffold turned over to the Government all the estate of its victims. But there is another instance in English history entirely different in character, where Henry the Eighth, in warfare with the Catholic Church, did not hesitate to despoil the monasteries of their great possessions, with a clear annual revenue of one hundred and thirty-one thousand six hundred and seven pounds, or, according to Bishop Burnet, ten times that sum “in true value.”[38] This property, so enormous in those days, wrested at once from the mortmain of the Church, testifies to the boldness, if not the policy, with which the power was wielded.
It is in modern France that confiscation has played its greatest part, and been the most formidable weapon, whether of punishment or of war. At first abolished by the Revolution, as a relic of royal oppression, it was at length adopted by the Revolution. Amidst the dangers menacing the country, this sacrifice was pronounced essential to save it, and successive laws were passed, beginning as early as November, 1789, by which it was authorized. Never before in history was confiscation so sweeping. It aroused at the time the eloquent indignation of Burke, and still causes a sigh among all who think less of principles than of privileges. From an official report to the First Consul, it appears that before 1801 sales were authorized by the Government to the fabulous amount of two thousand five hundred and fifty-five millions of francs, or above five hundred millions of dollars, while still a large mass, estimated at seven hundred million francs, of confiscated property remained unsold.[39] The whole vast possessions of the Church disappeared in this chasm.
Cruel as were many of the consequences, this confiscation must be judged as part of the Revolution whose temper it shared; nor is it easy to condemn anything but its excesses, unless you are ready to say that the safety of France, torn by domestic foes and invaded from abroad, was not worth securing, or that equality before the law, which is now the most assured possession of that great nation, was not worth obtaining. It was part of the broad scheme of Napoleon, moved by politic generosity, to mitigate as far as possible the operation of this promiscuous spoliation, especially by restraining it, according to the principle of the bill which I have introduced, to the most obnoxious persons,—although this sharp ruler knew too well what was due to titles once fixed by Government to contemplate any restoration of landed property already alienated. “There are,” he exclaimed, in the Council of State, “above one hundred thousand names on these unhappy lists: it is enough to turn one’s head.… The list must be reduced by three fourths of its number, to the names of such as are known to be hostile to the Government.”[40] Hostility to the Government constituted with him sufficient reason for continued denial of all rights of property or citizenship. And so jealous was he on this point, that, when he heard that some who were allowed to enter upon their yet unalienated lands had proceeded to cut down the forests, partly from necessity and partly to transfer funds abroad, he interfered peremptorily, in words applicable to our present condition: “We cannot allow the greatest enemies of the Republic, the defenders of old prejudices, to recover their fortunes and despoil France.”[41] This episode of history, so suggestive to us, will not be complete, if I do not mention, that, through this policy of confiscation, France passed from the hands of dominant proprietors, with extended possessions, into the hands of those small farmers now constituting so important a feature in its social and political life. Nor can I neglect to add, that kindred in character, though involving no loss of property, was the entire obliteration at the same time of the historic Provinces of France, and the substitution of new divisions into Departments, with new landmarks and new names, so that ancient landmarks and ancient names, quickening so many prejudices, no longer served to separate the people.
But this story is not yet ended. Accustomed to confiscation at home, France did not hesitate to exercise it abroad, under the name of contributions; nor was there anything her strong hand did not appropriate,—sometimes, it might be, the precious treasures of Art, paintings of Raffaelle, Titian, or Paul Potter, enshrined in foreign museums, and sometimes the ornaments of churches, palaces, and streets. Often in hard money were these contributions levied. For instance, in 1807, Napoleon exacted from Prussia, with little more than five million inhabitants, a war contribution of more than one hundred and twenty millions of dollars; and in 1809, the same conqueror exacted from Austria a like contribution of about fifty millions of dollars. In kindred spirit, Davoust, one of his marshals, stationed at Hamburg, levied upon that single commercial city, during the short term of twelve months, contributions amounting to more than fifteen, or, according to other accounts, twenty-five, millions of dollars. But the day of reckoning came, when France, humbled at last, was constrained to accept peace from the victorious allies encamped at Paris. The paintings, the marbles, and the ornaments ravished from foreign capitals were all taken back, while immense sums were exacted for expenses of the war, and also for spoliations during the Revolution, amounting in all to three hundred million dollars. Such is the lesson of France.
And still later, actually in our day, the large possessions of the late king, Louis Philippe, were confiscated by Louis Napoleon, while every member of the Orléans family was compelled to dispose of his property before the expiration of a year, under penalty of forfeiture and confiscation. This harsh act had its origin in the assumed necessities of self-defence, that this powerful family might be excluded from France, not only in person, but in property also, and have no foothold or influence there.
While it is easy to see that these interesting instances are only slightly applicable to our country, yet I do not disown any suggestion of caution or clemency they inculcate. Other instances in our own history are more applicable. All are aware that during the Revolution the property of Tories, loyalists, and refugees was confiscated; but I doubt if Senators know the extent to which this was done, or the animosity by which it was impelled. Out of many illustrations, I select the early language of the patriot Hawley, of Massachusetts, in a letter to Elbridge Gerry, under date of July 17, 1776. “Can we subsist,” said this patriot, “did any state ever subsist, without exterminating traitors?… It is amazingly wonderful, that, having no capital punishment for our intestine enemies, we have not been utterly ruined before now.”[42] The statutes of the time are most authentic testimony. I hold in my hand a list, amounting to eighty-eight in number, which I have arranged according to States. Some are very severe, as may be imagined from the titles, which I proceed to give; but they show, beyond assertion or argument, how, under the exigencies of war for National Independence, the power of confiscation was recognized and employed. Each title is a witness.
1. New Hampshire.—To confiscate estates of sundry persons therein named. November 28, 1778.
2. Massachusetts.—To prevent the return of certain persons therein named, and others who had left that State, or either of the United States, and joined the enemies thereof. 1778.
3. To confiscate the estates of certain notorious conspirators against the government and liberties of the inhabitants of the late Province, now State, of Massachusetts Bay. 1779.
4. For repealing two laws of the State, and for asserting the rights of that free and sovereign Commonwealth to expel such aliens as may be dangerous to the peace and good order of government. March 24, 1784.
5. In addition to an Act made and passed March 24, 1784, repealing two laws of this State. November 10, 1784.
6. Rhode Island.—To confiscate and sequester estates, and banish persons of certain descriptions. October, 1775.
7-13. To confiscate and sequester estates, and banish persons of certain descriptions. February, March, May, June, July, August, October, 1776.
14, 15. To confiscate and sequester estates, and banish persons of certain descriptions. February, October, 1778.
16-20. To confiscate and sequester estates, and banish persons of certain descriptions. February, May, August, September, October, 1779.
21-23. To confiscate and sequester estates, and banish persons of certain descriptions. July, September, October, 1780.
24, 25. To confiscate and sequester estates, and banish persons of certain descriptions. January, May, 1781.
26-28. To confiscate and sequester estates, and banish persons of certain descriptions. June, October, November, 1782.
29-32. To confiscate and sequester estates, and banish persons of certain descriptions. February, May, June, October, 1783.
33. To send out of the State N. Spink and John Underwood, who had formerly joined the enemy, and were returned into Rhode Island. May 27, 1783.
34. To send William Young, theretofore banished, out of the State, and forbidden to return at his peril. June 8, 1783.
35. Allowing William Brenton, late an absentee, to visit his family for one week, then sent away, not to return. June 12, 1783.
36. To banish S. Knowles (whose estate had been forfeited), on pain of death, if he return. October, 1783.
37. Connecticut.—Directing certain confiscated estates to be sold.
38. New York.—For the forfeiture and sales of the estates of persons who have adhered to the enemies of the State. October 22, 1779.
39. For the immediate sale of part of the confiscated estates. March 10, 1780.
40. Approving the Act of Congress relative to the finances of the United States, and making provision for redeeming that State’s proportion of bills of credit to be emitted. June 15, 1780.
41. To procure a sum in specie, for the purpose of redeeming a portion of the bills emitted, &c. October 7, 1780.
42. For granting a more effectual relief in cases of certain trespasses. March 17, 1783.
43. For suspending the prosecutions therein mentioned. March 21, 1783.
44. To amend and extend certain Acts. May 4, 1784.
45. To preserve the freedom and independence of the State, &c. May 12, 1784.
46. New Jersey.—To punish traitors and disaffected persons. October 4, 1776.
47. For taking charge of and leasing the real estates, and for forfeiting personal estates, of certain fugitives and offenders. April 18, 1778.
48. For forfeiting to and vesting in the State the real estates of certain fugitives and offenders. December 11, 1778.
49. Supplemental to the Act to punish traitors and disaffected persons. October 3, 1782.
50. To appropriate a certain forfeited estate. December 23, 1783.
51. Pennsylvania.—For the attainder of divers traitors, and for vesting their estates in the Commonwealth, if they render not themselves by a certain day. March 6, 1778.
52. To attaint Henry Gordon, unless he surrender himself by a given day, and the seizure of his estates by the agents of forfeited estates confirmed. January 31, 1783.
53. Delaware.—Declaring estates of certain persons forfeited, and themselves incapable of being elected to any office. February 5, 1778.
54. Maryland.—For calling out of circulation the quota of the State of the bills of credit issued by Congress. October, 1780.
55. To seize, confiscate, and appropriate all British property within the State. October, 1780.
56. To appoint commissioners to preserve confiscated British property. October, 1780.
57. To procure a loan, and for the sale of escheat lands and the confiscated British property therein mentioned. October, 1780.
58. For the benefit of the children of Major Andrew Leitch. June 15, 1782.
59. To vest certain powers in the Governor and Council. November, 1785.
60. To empower the Governor and Council to compound with the discoverers of British property, and for other purposes. November, 1788.
61. Virginia.—For sequestering British property, enabling those indebted to British subjects to pay off such debts, &c. October, 1777.
62. Concerning escheats and forfeitures from British subjects. May, 1779.
63. For removal of seat of government. May, 1779.
64, 65. To amend the Act concerning escheats and forfeitures. May, October, 1779.
66. To adjust and regulate pay and accounts of officers of Virginia line. November, 1781.
67. For providing more effectual funds for redemption of certificates. May, 1782.
68. Prohibiting the migration of certain persons to that Commonwealth, &c. October, 1783.
69. To explain, amend, &c., the several Acts for the admission of emigrants to the rights of citizenship, and prohibiting the migration of certain persons to that Commonwealth. October, 1786.
70. North Carolina.—For confiscating the property of all such persons as are inimical to the United States, &c. November, 1777.
71. To carry into effect the last mentioned act. January, 1779.
72. Directing the sale of confiscated property. October, 1784.
73. To describe and ascertain such persons as owed allegiance to the State, and to impose certain disqualifications on certain persons therein named. October, 1784.
74. To amend the last mentioned Act. November, 1785.
75. To secure and quiet in their possessions all such as have or may purchase lands, goods, &c., sold or hereafter to be sold by the commissioners of forfeited estates. December 29, 1785.
76. Act of pardon and oblivion. April, 1788.
77. South Carolina.—For disposing of certain estates and banishing certain persons therein mentioned. February 26, 1782.
78. To amend the last mentioned Act. March 16, 1783.
79. To vest land, late property of James Holmes, in certain persons in trust for the benefit of a public school. August 15, 1783.
80. For restoring to certain persons their estates, and for permitting the said persons to return, &c. March 26, 1784.
81. For amending and explaining the Confiscation Act. March 26, 1784.
82. To amend the Confiscation Act, and for other purposes therein mentioned. March 22, 1786.
83. Georgia.—For inflicting penalties on, and confiscating the estates of, such persons as are therein declared guilty of treason, &c. May 4, 1782.
84. To point out the mode for the recovery of property unlawfully acquired under the British usurpation, and withheld from the rightful owners, &c. February 17, 1783.
85. Releasing certain persons from their bargains, &c. July 29, 1783.
86. For ascertaining the rights of aliens, and pointing out a mode for the admission of citizens. February 7, 1785.
87. To authorize the auditor to liquidate the demands of such persons as have claims against the confiscated estates. February 22, 1785.
88. To compel the settlement of public accounts, for inflicting penalties, and for vesting auditor with certain powers. February 10, 1787.[43]
Such is the array which illustrates the terrible earnestness of those times. In their struggle for National Independence, our fathers did not hesitate to employ all the acknowledged Rights of War; nor did they higgle over questions of form with regard to enemies in arms against them. To this extent, at least, we may be instructed by their example, even if we discard their precedents.
In the negotiations for the acknowledgment of National Independence these Acts were much considered. It does not appear, however, that their legality was drawn into question, although, as is seen, they exercised the double rights of sovereignty and of war. The British Commissioner, Mr. Oswald, expresses himself, under date of November 4, 1782, as follows.
“You may remember, that, from the very first beginning of our negotiation for settling a peace between Great Britain and America, I insisted that you should positively stipulate for the restoration of the property of all those persons, under the denomination of the Loyalists or Refugees, who have taken part with Great Britain in the present war: or, if the property had been resold, and passed into such a variety of hands as to render the restoration impracticable, (which you asserted to be the case in many instances,) you should stipulate for a compensation or indemnification to those persons adequate to their losses.”[44]
The American Commissioners, John Adams, Benjamin Franklin, and John Jay, declared in reply, that “the restoration of such of the estates of the refugees as have been confiscated is impracticable, because they were confiscated by laws of particular States, and in many instances have passed by legal titles through several hands.” As to the demand of compensation for these persons, the Commissioners said: “We forbear enumerating our reasons for thinking it ill-founded.”[45] In the course of the conference, and by way of reply or set-off, gross instances were adduced of outrages by the British troops in “the carrying off of goods from Boston, Philadelphia, and the Carolinas, Georgia, Virginia, &c., and the burning of the towns.” Franklin mentioned “the case of Philadelphia, and the carrying off of effects there, even his own library.” Laurens added “the plunders in Carolina of negroes, plate, &c.”[46] In a letter from Franklin to the British Commissioner, under date of November 26, 1782, the pretension of the loyalists was finally repelled in the plainest words.
“You may well remember, that, in the beginning of our conferences, before the other Commissioners arrived, on your mentioning to me a retribution for the loyalists whose estates had been forfeited, … I gave it as my opinion and advice, honestly and cordially, that, if a reconciliation was intended, no mention should be made in our negotiations of those people; for, they having done infinite mischief to our properties, by wantonly burning and destroying farm-houses, villages, and towns, if compensation for their losses were insisted on, we should certainly exhibit against it an account of all the ravages they had committed, which would necessarily recall to view scenes of barbarity that must inflame, instead of conciliating, and tend to perpetuate an enmity that we all profess a desire of extinguishing.…
“Your ministers require that we should receive again into our bosom those who have been our bitterest enemies, and restore their properties who have destroyed ours,—and this while the wounds they have given us are still bleeding. It is many years since your nation expelled the Stuarts and their adherents, and confiscated their estates. Much of your resentment against them may by this time be abated; yet, if we should propose it, and insist on it, as an article of our treaty with you, that that family should be recalled and the forfeited estates of its friends restored, would you think us serious in our professions of earnestly desiring peace?
“I must repeat my opinion, that it is best for you to drop all mention of the refugees.”[47]
But on this occasion there was a compromise. Instead of positive stipulations in behalf of the loyalists, it was agreed in the treaty, “that the Congress shall earnestly recommend it to the Legislatures of the respective States to provide for the restitution of all estates, rights, and properties which have been confiscated, belonging to real British subjects, and also of the estates, rights, and properties of persons resident in districts in the possession of his Majesty’s arms, and who have not borne arms against the said United States.”[48] Thus, while in every other article of the treaty it was agreed that certain things shall be done, here it was only agreed to recommend that they shall be done; and even the recommendation of restitution was confined to what are called “real British subjects,” and others “who have not borne arms against the United States,”—thus evidently recognizing the liability of those who did not come within these two exceptions.
After the adoption of our Constitution, this article came under discussion between the United States and Great Britain, when Mr. Jefferson, in the most elaborate diplomatic paper of his life, ably vindicated the conduct of our Government. It was on this occasion that he quoted the words of Bynkershoek, that “it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury, … even immovables, as is the practice in regard to movables.”[49] And in the course of his argument he distinctly asserts that “an Act of the Legislature confiscating lands stands in place of an office found in ordinary cases,—and that, on the passage of the Act, as on the finding of the office, the State stands ipso facto possessed of the lands without a formal entry. The confiscation, then, is complete by the passage of the Act, both the title and possession being divested out of the former proprietor and vested in the State.”[50]
This is strong language. Not only in our diplomacy, but also in our courts, was the validity of these Acts upheld. Mr. Jefferson was sustained by the Supreme Court of the United States in an early case on the confiscation of British debts by Virginia,[51] where it was declared that “a State may make what rules it pleases, and those rules must necessarily have place within itself,”[52]—that “the right to confiscate the property of enemies during war is derived from a state of war, and is called the Rights of War,”[53]—and that “the right acquired by war depends on the power of seizing the enemy’s effects.”[54] The last remark has a subtle significance. But the whole case was stated at the bar by John Marshall, afterwards our honored Chief Justice, in words applicable to our own times.
“It has been conceded that independent nations have in general the right of confiscation, and that Virginia at the time of passing her law was an independent nation. But it is contended, that, from the peculiar circumstances of the war, the citizens of each of the contending nations having been members of the same government, the general right of confiscation did not apply, and ought not to be exercised. It is not, however, necessary to show a parallel case in history, since it is incumbent on those who wish to impair the sovereignty of Virginia to establish on principle or precedent the justice of their exception. That State, being engaged in a war, necessarily possessed the powers of war, and confiscation is one of those powers, weakening the party against whom it is employed, and strengthening the party that employs it.”[55]
In closing what I have to say of the confiscation bills of the Revolution, I cannot disguise that they have been thought severe in some cases beyond the acknowledged exigencies of the times; but, admitting their severity, they testify none the less to those Rights of War in which they had their origin.
Such, Sir, are examples of history, so far as I can gather them, to guide on the present occasion. The embarrassment of Hercules is constantly repeated. There are paths to avoid, as well as paths to take; and it is for you to determine, under the lights of the past, how your course shall be directed.
There are considerations of policy, and, I rejoice to believe, of justice also, which furnish illumination such as cannot be found in any other instances of history. If we go astray, it must be from blindness.
In determining what powers to exercise, you will be guided to a certain extent by the object you seek to accomplish. Do you seek really to put down the Rebellion, and to tread it out forever, or do you seek only the passage of a penal statute? Do you seek a new and decisive weapon in the war our country is compelled to wage, or do you seek nothing more than to punish a few rebels? Or, if the object you seek is simply punishment, do you wish it to be sure and effective, or only in name? Are you in earnest to strike this rebellion with all the force sanctioned by the Rights of War, or do you refuse to use anything beyond the peaceful process of Municipal Law? I put these questions sincerely and kindly. You will answer them by your votes. If you are not in earnest against the rebellion now arrayed in war, if you are content to seem without acting, to seem without striking, in short, to seem rather than to be, you will pass a new penal statute, and nothing more.
It is clear that such a statute will be of perfect inefficiency. It will not produce even a moderate intimidation,—not so much as a Quaker gun. With the provision in our Constitution applicable to jury trials in criminal cases, it is obvious that throughout the whole Rebel country there can be no conviction under such statute. Proceedings would fail through the disagreement of the jury, while the efforts of counsel would make every case an occasion of irritation. People talk flippantly of the gallows as the certain doom of the Rebels. This is a mistake. For weal or woe, the gallows is out of the question. It is not possible as a punishment for this rebellion.[56] Nor would any forfeiture or confiscation whatever be sanctioned by a jury in the Rebel country. I think that in this judgment I do not err. But if this be correct, surely we should take all proper steps to avoid such failure of justice. Let Senators see things as they are; let us not deceive ourselves or deceive others. A new statute against treason will be simply a few more illusive pages on the statute-book, and that is all.
I cannot doubt that Senators are in earnest, that they mean what they say, and that they intend to do all in their power, by all proper legislation, to bring the war to a final close. But if this be their purpose, they will not hesitate to employ all the acknowledged Rights of War calculated to promote this end. Two transcendent powers have been exercised without a murmur: first, to raise armies, and, secondly, to raise money. These were essential to the end. But there is another power, without which, I fear, the end will escape us. It is that of confiscation and liberation; and this power is just as constitutional as the other two. The occasion for its exercise is found in the same terrible necessity. An army is not a posse comitatus; nor is it, when in actual war, face to face with the enemy, amenable to the ordinary provisions of the Constitution. It takes life without a jury trial, or any other process of law; and we have already seen, it is by virtue of the same Right of War that the property of enemies may be taken, and freedom given to their slaves. On the exercise of these rights there can be no check or limitation in the Constitution. Any such check or limitation would be irrational. War cannot be conducted in vinculis. Seeking to fasten upon it the restraints of the Constitution, you repeat the ancient tyranny which compelled its victims to fight in chains. Glorious as it is that the citizen is surrounded by the safeguards of the Constitution, yet this rule is superseded by war, bringing into being other rights which know no master. An Italian publicist has said that there is no right which does not, in some measure, impinge upon some other right. But this is not correct. The Rights of War can never impinge upon any rights under the Constitution, nor can any rights under the Constitution impinge upon the Rights of War. Rights, when properly understood, harmonize with each other.
Assuming, then, what is so amply demonstrated, that the Rights of War are ours without abridgment, and assuming also that you will not allow the national cause, which has enlisted such mighty energies, to be thwarted through any failure on your part, I ask you to exercise these rights in such way as to insure promptly and surely that permanent peace in which is contained all we desire. But to this end mere victory will not be enough. The Rebellion must be so completely crushed that it cannot again break forth, while its authors have penalties to bear, all of which may be accomplished only by such a bill as I have proposed. The reasons of policy, as well as of duty, are controlling.
But while all desire to see the Rebellion completely crushed, there may be difference with regard to the Rights of War to be exercised. Some may be for part; others may be for all. Some may reject the examples of the past; others may insist upon them. It is for you to choose; but, in making election, you will not forget the object in view. At another point I have leaned on the authority of Grotius. Turning now to Vattel, a writer of masculine understanding, who has done much to popularize the Law of Nations, I am influenced by the consideration, that, less austere than others, he seems always inspired by the free air of his native Switzerland, and filled with the desire of doing good, so that what he sanctions cannot be regarded as illiberal or harsh. In grouping the details entering into the object proposed, this benevolent master teaches that we may seek these things:—
1. Possession of what belongs to us;
2. Expenses and charges of the war, with reparation of damages;
3. Reduction of the enemy, so that he shall be incapable of unjust violence;
4. Punishment of the enemy.[57]
And in order to arrive at these results, the Rights of War are ours, to be employed in our discretion. Nor is it to be forgotten that these rights are without any of those limitations which modern times have adopted with regard to the private property of enemies in international war, and that, on reason and principle, which are the foundations of all Public Law, every rebel who voluntarily becomes an enemy is as completely responsible in all his property, whether real or personal, as a hostile Government or Prince, whose responsibility to this extent is unquestioned.
Such in detail is the object that is all contained in the idea of peace. In this work it is needless to say there is no place for any sentiment of hate or any suggestion of vengeance. There can be no exaction and no punishment beyond the necessity of the case,—nothing harsh, nothing excessive. Lenity and pardon become the conqueror more even than victory. “Do in time of peace the most good, and in time of war the least evil possible: such is the Law of Nations.” These are the admirable words of an eminent French magistrate and statesman.[58] In this spirit it is our duty to assuage the calamities of war, and especially to spare an inoffensive population.
But not so should we deal with conspirators. For those who organized this great crime and let slip the dogs of war there can be no penalty too great. They should be not only punished to the extent of our power, but stripped of all means of influence, so that, should their lives be spared, they may be doomed to wear them out in poverty, if not in exile. To this end their property must be taken. Their poor deluded followers may be safely pardoned. Left to all the privileges of citizenship in a regenerated land, they will unite in judgment of leaders who have been to them such cruel taskmasters.
The property of the leaders consists largely of land, owned in extensive plantations. It is just that these should be broken up, so that never again can they be nurseries of conspiracy or disaffection. Partitioned into small estates, they will afford homes to many now homeless, while their peculiar and overbearing social influence will be destroyed. Poor neighbors, so long dupes and victims, will become independent possessors of the soil. Brave soldiers, who have left their Northern skies to fight the battles of their country, resting at last from their victories, and changing their swords for ploughshares, will fill the land with Northern industry and Northern principles.
I say little of personal property, because, although justly liable to confiscation, yet it is easy to see that it is of much less importance than the land, except so far as slaves are falsely classed under that head.
Vattel says that in our day a soldier would not dare to boast of having killed the enemy’s king; and there seems to be similar timidity on our part towards Slavery, which is our enemy’s king. If this king were removed, tranquillity would reign. Charles the Twelfth, of Sweden, did not hesitate to say that the cannoneers were perfectly right in directing their shots at him; for the war would instantly end, if they could kill him; whereas they would reap little from killing his principal officers. There is no shot in this war so effective as one against Slavery, which is king above all officers; nor is there any better augury of complete success than the willingness, at last, to fire upon this wicked king. The illusions through which Slavery has become strong must be abandoned.
The slaves of Rebels cannot be regarded as property, real or personal. Though claimed as property by their masters, and though too often recognized as such by individuals in the National Government, it is the glory of our Constitution that it treats slaves always as “persons.” At home, beneath the lash and local law, they may be chattels; but they are known to our Constitution only as men. In this simple and indisputable fact there is a distinction, clear as justice itself, between the pretended property in slaves and all other property, real or personal. Being men, they are bound to allegiance, and entitled to reciprocal protection. It only remains that a proper appeal should be made to their natural and instinctive loyalty. Nor can any pretended property of their masters supersede this claim, I will not say of eminent domain, but of eminent power, inherent in the National Government, which at all times has a right to the services of all. Declaring the slaves free, you will at once do more than in any other way, whether to conquer, to pacify, to punish, or to bless. You will take from the Rebellion its mainspring of activity and strength; you will stop its chief source of provisions and supplies; you will remove a motive and temptation to prolonged resistance; and you will destroy forever that disturbing influence, which, so long as allowed, will keep this land a volcano ever ready to break forth anew. While accomplishing this work, you will at the same time do an act of wise economy, giving new value to all the lands of Slavery, and opening untold springs of wealth; and you will also do an act of justice, destined to raise our national name more than any triumph of war or any skill in peace. God, in His beneficence, offers to nations, as to individuals, opportunity, opportunity, opportunity, which, of all things, is most to be desired. Never before in history has He offered such as is ours here. Do not fail to seize it. The blow with which we smite an accursed Rebellion will at the same time enrich and bless; nor is there any prosperity or happiness it will not scatter abundantly throughout the land. Such an act will be an epoch, marking the change from Barbarism to Civilization. By old Rights of War, still prevalent in Africa, freemen were made slaves; but by the Rights of War which I ask you to exercise slaves will be made freemen.
Mr. President, if you seek Indemnity for the Past and Security for the Future, if you seek the national unity under the Constitution of the United States, here is the way. Strike down the leaders of the Rebellion, and lift up the slaves.
“To tame the proud, the fettered slave to free,—
These are imperial arts, and worthy thee.”
Then will there be Indemnity for the Past such as no nation ever before was able to win, and there will be Security for the Future such as no nation ever before enjoyed, while the Republic, strengthened and glorified, will be assured forever, one and indivisible.
NO SURRENDER OF FUGITIVE SLAVES IN WASHINGTON.
Resolution and Remarks in the Senate, May 23, 1862.
May 23d, the Senate proceeded to consider a resolution offered the preceding day by Mr. Sumner:—
“Resolved, That the Committee on the District of Columbia be directed to consider what legislation, if any, is needed to protect persons of African descent in Washington from unconstitutional seizure as fugitive slaves, or from seizure by disloyal persons.”
Mr. Sumner said:—
MR. PRESIDENT,—The question presented in this resolution has a practical value to-day, when, here in Washington, we are shocked by efforts of slave-hunters, coming from an adjoining State, to carry off human beings as slaves. This is menaced on a large scale. Whole hecatombs are to be sacrificed. A Philadelphia paper of this morning, “The Press,” which I find on my table, contains, under the telegraphic head, an account of certain proceedings instituted by persons called Commissioners, who have undertaken gravely to decide, that, in a case of human freedom, “it was discretionary with them to allow cross-examination as to identity and ownership.” According to these wise Daniels, a person may be doomed to Slavery, even without any cross-examination of witnesses against him. The statement of this assumption shows the outrage which offends justice and common sense, and, I am happy to believe, the Constitution also, even if it be assumed that anybody now can be treated as a slave in the District.
The much discussed clause of the Constitution bearing on this question provides that “no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor.” It will be observed that this is limited to escape from one State into another State. Nothing is said of escape into Territories, or into the District of Columbia. If made applicable to Territories or the District, it is only by inference and deduction, and not by virtue of any express words.
Notwithstanding this omission in the Constitution, the Act of 1793, providing for the surrender of fugitives from service, was made applicable to escape into Territories, and this questionable precedent was followed in the terrible Act of 1850. But neither of these Acts was made applicable to escape into the District of Columbia. While Slavery prevailed in the District, it was difficult to raise a question with regard to the surrender of fugitive slaves. But since Freedom has happily become the law here, the case is materially changed. Slaves at last are beginning to have rights. And the question arises, whether, in the absence of express power in the Constitution, and also in the absence of express words in any statute, commissioners can undertake to surrender men into Slavery. Even if there were express words in the statute, we should be obliged to find express words also in the Constitution, which is the source of the power. But there are no words applicable to this pretension either in statute or Constitution.
Sir, I have always understood, that, in the interpretation of statutes, and especially of the Constitution, every word is to be interpreted in favor of life and liberty,—in favorem vitæ ac libertatis. Indeed, one of the received maxims of the Common Law says strongly, “Impious and cruel is he to be adjudged who does not favor Liberty.”[59] If these maxims are not entirely rejected, it is impossible to find, either in statute or Constitution, any power to gratify the hunters now thronging this District in quest of human prey. It is casus omissus in our texts legislative or constitutional, and no commissioner, in the plenitude of petty power, can undertake to supply words which do not appear in statute or Constitution. It is for them only to administer the law as it is, and not to make it, especially against Freedom. They are not greater than the Constitution; and they should know that human freedom, in the estimation of every civilized jurisprudence, is priceless.
The question which I now raise, if I may employ the language of lawyers, is proper for the courts. A court in Washington, properly inspired, could not hesitate in its conclusion. It would deny any such offensive prerogative, unless sanctioned by clear and positive words. In the absence of such words, it would rejoice to set aside the whole pretension. It would not hesitate or halt, but it would do it gladly, generously, justly, and make a new precedent by which civilization should be advanced. Yet this is too much to expect from the courts of Washington, whose sense of justice has been enfeebled by the atmosphere of Slavery.
This pretension is aggravated by the fact that many of these hunters are notoriously disloyal. Sir, it is hard that our Constitution should be violated, and men hurried into Slavery, at the trumpery process of such offensive characters. I think the Committee will find a remedy.
On motion of Mr. Grimes, the resolution was amended by substituting the Committee on the Judiciary for the Committee on the District of Columbia, and then agreed to.
INFORMATION IN REGARD TO FREEING SLAVES BY OUR ADVANCING ARMIES.
Resolution in the Senate, May 26, 1862.
Mr. Sumner submitted the following resolution for consideration.
RESOLVED, That the Secretary of War be requested to communicate to the Senate copies of any instructions to commanding generals, in pursuance of the Act of Congress, approved August 6, 1861, setting free slaves who have been employed by the consent of their masters against the Government and lawful authority of the United States; and also to inform the Senate if any steps have been taken to make this statute effective, and to insure its due execution by our advancing armies, for the benefit of slaves who have been so employed.
June 4th, the resolution was considered and agreed to.
July 10th, a report was received from the Secretary of War, entitled “Instructions to commanding generals in regard to the freeing of slaves,” which, besides the instructions, contained communications from General Phelps and General Butler.[60]
HELP FROM SLAVES, WITH RECIPROCAL PROTECTION IN THEIR RIGHTS AS MEN.
Resolution in the Senate, May 26, 1862.
The following resolution was introduced, as an expression of opinion, and an appeal to the country.
RESOLVED, That, in the prosecution of the present war for the suppression of a wicked Rebellion, the time has come for the Government of the United States to appeal to the loyalty of the whole people everywhere, but especially in the Rebel districts, and to invite all, without distinction of color, to make their loyalty manifest by ceasing to fight or labor for the Rebels, and also by rendering every assistance in their power to the cause of the Constitution and the Union, according to their ability, whether by arms, or labor, or information, or in any other way; and since protection and allegiance are reciprocal duties, dependent upon each other, it is the further duty of the Government of the United States to maintain all such loyal people, without distinction of color, in their rights as men, according to the principles of the Declaration of Independence.
TAX ON COTTON.
Speeches in the Senate, May 27 and June 4, 1862.
In the consideration of the Internal Tax Bill Mr. Sumner took an active part, as the Congressional Globe attests.
When this bill came from the House of Representatives, it contained a tax of one cent a pound on cotton. The Finance Committee of the Senate reported against this tax. Mr. Sumner, though never disposed to spare Slavery, was unwilling to bear hard on an interest so important as cotton to the whole country, especially to the South when redeemed, as well as to the manufactures of the North, and therefore exerted himself against the tax. May 27th, he spoke as follows.
MR. PRESIDENT,—I am in favor of the proposition of the Committee, which seems to me sound in principle and policy.
There are reasons against taxing cotton,—first, from the character of the product itself, and, secondly, from the effect of the tax on manufactures.
If we look at the character of the product, we find, in the first place, that it is agricultural,—peculiar, indeed, to one section of the country, but as much an agricultural product as grain, hemp, and flax, which are left untouched by this bill. There should be reason for adopting the tax in one case and not in the other. No such reason exists.
But cotton is not only an agricultural product, it is also a leading export. Now I raise no constitutional question on the power to tax exports, although it may not be entirely easy to reconcile such tax with the language of the Constitution: “No tax or duty shall be laid on articles exported from any State.” The object of this clause was to prevent discrimination among States through the taxing power. But not questioning the power in the present case, it seems to me that its exercise is of doubtful policy, according to principles of political economy. I do not think that it is the policy of civilized nations to tax exports, which play an important part, first, in quickening commerce, and, secondly, in furnishing the equivalent of imports.
Then there is difficulty arising from the condition of the country. Until the Cotton States are restored to the Union, little or no revenue can be expected from any such tax. But if their representatives were once more here, can anybody suppose it possible to tax this great staple of the South, while the great staples of the West—grain, provisions, and wool—are free? It seems to me unadvisable to attempt, in the absence of these representatives, what we would not attempt, if they were present,—in other words, to do what is of doubtful equity, simply because we have the votes. Our tax, at best, can be little more than prospective. Is it not better to wait till it may be a reality?
Even if at another time the tax on cotton seemed politic, I doubt if it can be so regarded for some time to come. Considering the peculiar condition of things, there is small doubt that the country for the next five years will have greater interest in encouraging the production of cotton than in taxing it.
Sometimes it is said, that, if cotton is not taxed, the Cotton States will escape taxation, which would be a practical injustice to other parts of the country. But I am not satisfied that we cannot tax their slaves. Besides, the $200,000,000 of cotton exported assures the importation of $200,000,000 of foreign products, which, with twenty-five per cent duty, gives a revenue of $50,000,000 annually.
But if cotton must be taxed, it should not be by a specific tax, but by a tax ad valorem, and for obvious reason. Cotton is sold in the market under seven different grades, varying materially in value. These grades are classified as follows, beginning with the lowest or least valuable, and ending with the highest or most valuable: (1.) ordinary, (2.) good ordinary, (3.) low middling, (4.) middling, (5.) good middling, (6.) middling fair, (7.) Sea Island. For ten years, from 1850 to 1860, the average price of ordinary cotton was six and five eighths cents a pound, while middling fair, the highest grade except Sea Island, averaged twelve cents a pound. A tax of one cent a pound on ordinary cotton would be over fifteen per cent on its value, while one cent a pound on middling fair cotton would be eight and one third per cent, and the same tax on Sea Island cotton, commanding the highest price of all, would be less than five per cent.
The tax on cotton, if any is imposed, ought not to exceed five per cent ad valorem. In the natural course of events, without interruption of war, the cotton exported would have amounted in value for a year to $200,000,000. If to this we add the value of cotton used in the United States, $35,000,000, we shall have the sum-total of $235,000,000. A tax of five per cent ad valorem on this would be $11,750,000.
The proposed tax of one cent a pound is much larger. During the year ending the 30th of June, 1860, the value of the cotton exported was $191,806,555, and the number of pounds exported was 1,767,686,338. A tax of one cent a pound would be $17,676,863,—a very large sum, which I should be glad to pour into our Treasury. But, assuming the value of this cotton at ten and eight tenths cents a pound, the tax of one cent a pound will be above nine and one fourth per cent,—nearly double what the tax ought to be.
Consider now, if you please, the effect of this tax on cotton manufactures. It appears that we manufacture annually about seven hundred thousand bales of cotton, one half of which is of the three lower grades, and is worked into what is called by manufacturers coarse goods. Of these one pound of cotton will make about two and a half yards, worth twenty cents. Now a tax of three per cent on this cloth would be six mills. Add the tax of one cent a pound on cotton, and you have a total of sixteen mills, making a tax of eight per cent on the value of the cloth,—a higher tax than is imposed by the Tax Bill on anything except dogs, whiskey, and tobacco.
The rest of the cotton manufactured in our country is worked into what are called fine goods, of which one pound will make from four to eight yards, valued at thirty to forty cents, or, on an average, thirty-five cents. The tax of three per cent on these goods at thirty-five cents would be ten and a half mills. Add the tax of one cent on the cotton, which is ten mills, and you have the total of twenty and a half mills, making a tax on this article of more than five and eight tenths per cent.
Of the finest goods, a pound of cotton would make cloth worth seventy-five cents. The tax upon this class would be four and one third per cent.
Thus the cheap goods used by the poorer people will be taxed much higher than the finer goods used by the rich. Are you ready to set up this discrimination?
There is an important export trade of cotton manufactures, which must not be forgotten. But these are entirely of the class known as coarse goods. For instance, during the year ending June 30, 1860, cotton goods exported amounted to $10,934,796. This commerce is conducted under difficulties. Necessarily it encounters strong competition in the foreign markets, and must have failed, but for the anomalous opportunities it enjoyed in China and the East Indies, where these goods were often sent as remittances instead of bills of exchange, it being cheaper to pay for them in Boston even more than they will bring at their destination than to pay the premium of exchange. But this business, having such anomalous support, cannot bear additional burden. It will be annihilated,—at least I am so assured by those who ought to know.
The proposed tax upon coarse goods used in our country is found, on calculation, equal to seven per cent on the capital invested in their manufacture, and on exported goods it is equal to five per cent. If cotton must be taxed, it ought not to be higher than five per cent, and I have already shown that it ought to be ad valorem. On goods exported there should be a drawback in favor of the manufacturer, not only of the three per cent on the goods, but also of the five per cent on the cotton. If the three per cent tax on all goods used in this country were reduced to one and one half per cent ad valorem, this, with the five per cent tax on the cotton, would be equal to three and one sixth per cent ad valorem on coarse goods, and to three and one third per cent on fine goods. But I prefer the proposition of the Committee, leaving the bill otherwise as it is.
In conclusion, I have to say that the cotton cloths manufactured in our country are nearly as much a necessary as breadstuffs, entering into the daily life of all, whether rich or poor, like daily bread.
In the debate which ensued, Mr. Davis, of Kentucky, alluded to Mr. Sumner.
“I have been very strongly arrested by the debate to-day, and I very much approve of its spirit and its tenor. I am glad to see gentlemen quitting visionary subjects”—
Mr. Clark. Do not lug them in.
—“and coming to questions of legitimate political economy; and especially I am glad that the Senators from Massachusetts have shown a disposition to come to such legitimate ground of legislation.”
In the same speech the Kentucky Senator indulged in prophecy.
“And if the slaves were liberated, if the theory of the gentlemen from Massachusetts and other Senators were carried into operation, I believe, as certainly as I believe that I am now addressing the Senate of the United States, that there would not be one fifth as much cotton raised in any year in the next five years as has been raised, according to the estimate of the Senator from Rhode Island, for the past year. I do not believe that the man lives, that the child lives, who will ever see, after the universal emancipation of the slaves, under any state of labor, or of care, or of application of labor, either the labor of men or of machinery, that the production of cotton in the United States will reach one half of five millions of bags.”[61]
The amendment striking out the tax was adopted,—Yeas 20, Nays 16.
June 3d, at the next stage of the bill, the question was presented again, when Mr. Sumner renewed his opposition to the tax. In the course of his remarks the following passages occurred.
Mr. Sumner. Then, Sir, as I had the honor of saying in the former debate, suppose the vacant seats on the other side of the Chamber were filled, suppose Senators here from the Cotton States, would you think of imposing a tax on cotton without in the same bill imposing a tax on the agricultural products of the North? You would not, I am sure; and, Sir, in their absence, I will not do what I would not do, if I could, were they here.
Mr. Grimes. Would you not abolish Slavery in the District of Columbia?
Mr. Sumner. I would do that, were they here, and propose it to their faces, and be too happy in the opportunity.
June 4th, the debate was continued, when Mr. Sumner spoke as follows.
I am admonished by my friend, the Senator from Maine [Mr. Fessenden], not to say anything. I shall say very little. I am in favor of reducing the tax from one cent to half a cent, and I am also in favor of striking out the whole tax. If there must be a tax, I wish the smallest; and if I can have the attention of the Senator from Wisconsin [Mr. Howe], whose remarks were so candid, I should like to put him a question. You heard him say that he would not impose any tax which he knew would really be burdensome on the manufacturers. Other Senators have repeated the same thing.
Now, Sir, on whom will he rely, in determining whether the tax will be burdensome? I take it that the manufacturers are competent witnesses, if not the best witnesses; and Senators from manufacturing States, when they express themselves on the question, are to be heard. But it is the clear opinion of the manufacturers that the proposed tax will be burdensome, that it will almost annihilate a certain branch of trade with China and the East Indies, and that it will be most oppressive on the coarser fabrics at home. The tax on the latter will swell to as much as seven per cent, which is a very large tax, larger than is imposed on anything else in the bill, unless it be whiskey and dogs.
I put it to the Senator from Wisconsin, who so candidly said that he would not impose a tax that he knew to be burdensome, whose testimony will he accept? On what will he rely? Is it his own knowledge, his own impressions, his own imagination, if you please? In answer to all these I present the positive testimony of those really familiar with the subject.
Here, then, is the question in a nutshell. In imposing this tax, you have on one side the certainty of undue burden on a special interest; and what have you on the other side? An uncertainty. Who here can say that the proposed tax will be productive? Sir, we have not the cotton in our hands. Through the machinations of wicked men, it has ceased to be within our possession. I remember in my childhood being much amused with a little poem entitled “Oxen in the Skies,” which pleasantly described a contest between two senseless persons as to who should own certain imagined oxen in the skies,—that is, a contest about something not within reach. The cotton you propose to tax is not within reach. I trust that it may soon be. Should we not act on existing facts, rather than on hopes?
There is a larger view of the question. While you begin to tax the agricultural products of the country, you open the door to that great experiment. If the Senate is ready to march in that direction, I will not say whether I am not ready to march also; but the Senate should not commence the experiment without considering where it leads. In this whole bill you do not tax a single agricultural product. Why, therefore, make an exception of cotton? If you begin with cotton, where will you stop? Must you not also tax hemp, flax, and corn? Why not? Not that I am in favor of such taxation; but where in principle are you to stop? Sir, I put these questions as a warning to Senators.
The original proposition from the House of Representatives was amended by substituting “one half cent” a pound, instead of “one cent,”—Yeas 30, Nays 10.
TAX ON SLAVE-MASTERS.
Speeches in the Senate, on Amendment to the Internal Tax Bill, May 28 and June 6, 1862.
While voting and speaking against a tax on cotton, Mr. Sumner was anxious to tax Slavery, and this he sought to accomplish by a tax on those who pretended to hold slaves.
May 28th, he moved the following amendment:—
“And be it further enacted, That any person who shall claim the service or labor for life of any other person, under the laws of any State, shall pay, on account of such person so claimed, the sum of ten dollars.”
And then said:—
MR. PRESIDENT,—A tax of ten dollars on account of each slave will give $40,000,000. And in putting the tax at ten dollars I follow the precedent of the Constitution, which taxes slaves imported at ten dollars. I do not disguise that on this question I have shared the doubts of others. Of course, no tax would be tolerable which gave any sanction to property in man; and it has been feared that a tax on slaves might be interpreted into such sanction. This fear is not unnatural to persons shocked by the idea of Slavery. It was early avowed by Roger Sherman, of Connecticut, whose sensibility is recorded by Madison in his report of the debates in the Federal Convention.
“He was opposed to a tax on slaves imported, as making the matter worse, because it implied they were property.”[62]
Again, a few days later, when the same clause of the Constitution was under discussion, Mr. Sherman repeated his objection, and the following debate occurred, which seems to exhaust the argument on both sides.
“Mr. Sherman was against this second part, as acknowledging men to be property, by taxing them as such under the character of slaves.
“Colonel Mason. Not to tax will be equivalent to a bounty on the importation of slaves.
“Mr. Gorham thought that Mr. Sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them.
“Mr. Gouverneur Morris remarked, that, as the clause now stands, it implies that the Legislature may tax freemen imported.
“Mr. Sherman, in answer to Mr. Gorham, observed, that the smallness of the duty showed revenue to be the object, not the discouragement of the importation.
“Mr. Madison thought it wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not, like merchandise, consumed, &c.
“Colonel Mason, in answer to Mr. Gouverneur Morris. The provision, as it stands, was necessary for the case of convicts, in order to prevent the introduction of them.”[63]
After this discussion, the clause as found in the Constitution, laying “a tax or duty on such importation, not exceeding ten dollars for each person,” was adopted, nem. con. Thus it appears that Sherman, Morris, Franklin, and Gerry, to say nothing of Madison, all known for opposition to Slavery, and determination to give it no sanction, concurred in this proposition. They felt that a tax or duty, thus arranged, was not a sanction of Slavery.
The same question is now presented to us. Clearly there can be no such thing as property in man. The whole idea is offensive and odious. There is no revenue, whatever be its amount, to compensate for this recognition. Better be poor, better be pinched in means, better forego much needed supplies, than obtain help through any such sacrifice. But the same considerations which induced our fathers, with all their avowed scruples, to sustain such a tax or duty, may properly influence us.
It is the boast of the Constitution that it knows nobody as a slave. All are “persons.” But at the same time it does not assume to interfere with a well-known State institution by which “persons” are degraded to be property. The condition of the slave is anomalous. He is property by local law; he is a “person” by the Constitution. But nobody questions the existence of Slavery. It is a monstrous fact, beyond reach in the States, except through the War Power, and yet none the less a fact, which taxation will only recognize, and not sanction. It is an intolerable nuisance intrenched in State lines; but we shall not treat it otherwise than as nuisance, when we tax it. In taxing it we do not assume its rightfulness; we only assume its undeniable existence as a fact, and nothing else.
If our tax were an encouragement, it would be clearly immoral. But it is a discouragement. Exemption from taxation is encouragement. Taxation is discouragement just in proportion to its extent, until, in the progress of events, it becomes destructive. Regarding the present question in this light, our course is plain. It is not permissible to encourage Slavery, while every principle of economy and every sentiment of justice and humanity urge its discouragement.
But it is said that the Constitution prohibits a capitation tax, “unless in proportion to the census.” The tax I propose is not a capitation tax, any more than the tax on auctioneers, or lawyers, or jugglers, or peddlers, or slaughterers of cattle is a capitation tax. According to lexicographers, a capitation tax is a poll tax, a tax on each individual. Now this tax makes no pretension to be a poll tax, or a tax on each individual. It is a tax on a person who claims the service or labor of another for life, proportioned to the extent of his claim. In other words, it is a tax on a claim of property; and when I tax this claim, surely I do not recognize its morality, nor do I accord to it any sanction.
If it be said, that at one time I insist the slave shall have all the rights of “persons” under the Constitution, while I now insist that his master shall pay a tax on his claim of property, I reply, that there is no inconsistency, but perfect harmony. By an unquestionable rule of interpretation, applicable to the Constitution, every word must be construed in favor of Liberty, so as most to promote Liberty. According to this rule, every presumption is in favor of Liberty. But, while insisting upon every such presumption, it does not follow that the counter claim shall not be taxed. Indeed, the same principle which inclines in favor of the slave must incline also to tax the claim of his master, so long as this claim exists in fact. Freedom is to be enlarged in every way possible, whether by encouraging the slave or discouraging the master. Therefore do I say fearlessly, that the slave, whenever he appears within the national jurisdiction or before national tribunals, is entitled to all the rights of “persons”; but the master, who asserts this odious property, cannot claim any immunity for it on this account. The indulgence is all for the slave, and not at all for the master. For the slave Congress must do everything in its power; for the master Congress must have nothing but disapprobation and discouragement.
These are reasons that influence me, and I present them now in order to influence those who hesitate to impose this tax, on the old idea of Roger Sherman, that it will be a recognition of property in man. Of course, where Senators have no such scruple, the argument for this tax is unanswerable.
It is easy to levy.
It is profitable.
And so far as it exerts an influence, it must be a discouragement to an offensive wrong, which is the parent of our present troubles, and the occasion of all this taxation. It would be strange, if Slavery, after causing our national calamity, should escape from all its consequences. It would be strange, if Slavery, which has played the tyrant thus far in our history, should now, like the tyrant, be so far indulged as to escape burdens of all kinds. It shall not be by my vote.
Subsequently Mr. Sumner modified his amendment, by accepting a substitute drawn by Mr. Simmons, of Rhode Island, in behalf of the Finance Committee, who suggested, that “the section, as presented by the Senator from Massachusetts, might leave the slave liable to be sold to pay the tax, and that conflicts about as much with the Senator’s notions as he could well have drawn any provision to do so.” Mr. Sumner had no anxiety on this head, and said at once:—
Perhaps the Senator and myself start from different points. I do not think the United States can own a slave. I cannot doubt, that, if a slave should be seized under process of the United States, he would be taken to Freedom, and not to Slavery, for the simple reason that the nation cannot own a slave. Therefore any special provision for this emergency is superfluous. I rest in the conviction, that, when a slave passes into the hands of the United States, he at once becomes free.
Mr. Sumner added, that the proposition he had presented was “in the plainest form and fewest words,” and on this account had merits of its own.
Mr. Collamer hoped Mr. Sumner would accept the substitute, and thought “ten dollars a head on all ages and conditions an unreasonable tax.”
The substitute accepted by Mr. Sumner was as follows.
“Sec.—And be it further enacted, That an annual tax of five dollars shall be paid by every person or persons, corporation, or society, for and on account of the service or labor of every other person between the ages of ten and sixty-five years, whose service or labor, for a term of years or for life, is claimed to be owned by such first mentioned person or persons, corporation, or society, whether in a fiduciary capacity or otherwise, under and by virtue of the laws or customs of any State; and said annual tax shall be levied and collected of the person or persons, corporation, or society, making such claim, and of their goods, chattels, or lands, as is herein before provided; but in no case shall the person or persons whose service or labor is so claimed, or their service or labor, be sold for the purpose of collecting said tax: Provided, That this tax shall not apply to service due to parents.”[64]
Mr. Sherman, of Ohio, took the lead in answer to Mr. Sumner, and in opposition to his amendment. After insisting that slaves are “persons,” and that, if the amendment be adopted, “they will be the only persons taxed under this bill,” he said:—
“If the Senator had made his argument yesterday, when we proposed to tax cotton, a production which goes into manufactures, what he has said would apply with great force. Cotton is a production of slave labor solely.… All his arguments apply to cotton as a subject of taxation; but he convinced a majority of the Senate yesterday that it was not expedient to tax cotton; and now he proposes to tax slaves, and how?… With all our immense resources, we cannot now collect it, except from the loyal people who live in the Border States, who now recognize our flag and are subject to our law. I am not willing to select them as the first to bear a heavy and peculiar taxation. I believe that the true course is to insist upon the tax on cotton.”[65]
The special points of Mr. Sherman’s opposition appear in Mr. Sumner’s reply.
Mr. President,—I will make one remark in reply to the Senator from Ohio. He objects to my proposition as in the nature of a direct tax, or poll tax. How is this? Has not the Senator voted to tax auctioneers, lawyers, jugglers, and slaughterers of cattle, all being classes of persons in the community?
Mr. Sherman. To tax their employments.
Mr. Sumner. And I propose to tax the employment of the slave-master,—that is all. It is the business of the slave-master to make the slave work. This is his high vocation. In other words, his business consists in using the service and labor of another. And to this class of persons he belongs. Is it not plain? Can there be any doubt? Look at it. He is an auctioneer of human rights, a broker of human labor, a juggler of human sufferings and human sympathies,—I might say a slaughterer of human hopes; and, Sir, if the Senator from Ohio can tax auctioneer, broker, juggler, or slaughterer of cattle, I am at a loss to understand why he cannot tax the peculiar form of these vocations all concurring in the slave-master. He is swift to tax the less, but hesitates to tax the greater. He can tax the petty employment, which is not immoral or cruel; but he will not tax the larger multiform employment, in which immorality and cruelty commingle.
But the Senator says it is a capitation or poll tax. Not, Sir, in the sense of the Constitution. On this I stand. It is simply a tax on a productive claim of property, or, to borrow the language of the Senator a moment ago, on an “employment.” It is nothing but that.
The Senator thinks it improper to tax slave-masters, especially when we have cotton for taxation; and he almost chides me, because yesterday I was against the cotton tax, which in his judgment is most proper. Sir, I am at a loss to find the parallel between the two cases implied in supposing that one can be a substitute for the other. They are unlike in every respect. Slaves and cotton belong to the same section of country, precisely as alligators and cotton; and that is all the parallel between them. Cotton is an agricultural product, entering into commerce and manufactures, while the manufactures made from it are important to all classes, but especially the poor. The question of its taxation involves considerations of economy and policy utterly unlike those arising on the motion to tax the claim of the slave-master. It is difficult to see how the two taxes can be confounded. One is a tax on an agricultural product; the other is a tax on an odious claim. The Senator will not say that it is an acceptable claim under the Constitution. Even if there, it is disguised under ambiguous words. Indeed, he knows well that it is offensive and repugnant to the conscience of good people. Shall not such a claim be taxed? Shall such a claim be permitted to go scot-free? Shall we run about the country, seeking class after class to visit with oppressive taxation, and, under the lead of the Senator, excuse this largest and most offensive class of all? I am at a loss to understand on what ground of principle the Senator can proceed, when he proposes this special immunity. If I use strong terms in describing slave-masters, it is because the very language of the bill suggests them, and they are in essential conformity with truth.
I believe I have answered the two objections made by the Senator from Ohio. If he made any other, it has escaped my recollection.
Mr. Sherman followed Mr. Sumner, beginning with these words:—
“I will not reply to that part of the speech of the honorable Senator from Massachusetts in which he denounced slaveholders. My opinions on this subject are well known. I think that slaveholders have certain rights under the Constitution of the United States; and while I never could be one myself, and have as deep a repugnance to any law which authorizes the holding of slaves as any other man, yet, while I am here under oath, I will respect their constitutional rights to the fullest extent. We are bound to legislate for them, and they are entitled to the protection of the Constitution of the United States as fully as if they were here, all of them, to speak for themselves; and especially I do not think it proper or courteous to use such language, applied to a whole class of people, when Senators on this floor are with us, associating with us, who are included by the appellation ‘slaveholder,’ so obnoxious to the Senator from Massachusetts. Certainly I cannot characterize so harshly any one who is a member of the same body with myself.”[66]
He then said that he intended “to put the proposition to tax cotton and the proposition to tax slaves against each other,” and that he would “propose to amend the amendment of the Senator from Massachusetts by substituting a modified tax on cotton,”—that “they are connected together, and the Senator cannot disconnect them.” He then spoke of slave-masters again.
“The slaveholders of the Revolution were men of the highest purity, of the greatest patriotism. At that time Slavery was admitted to be an evil. They were men of gentleness, of courtesy, of kindness, good hearts and good heads, nearly all of them; and so are the great body of the slaveholders with whom you are brought in contact in the Border States, men of gentleness and kindness and courtesy.… Many of the most gentlemanly, courteous, kind, and patriotic men that I ever met in the world were slaveholders; and I think, that, taken as a class, the slaveholders of the Border States are men who are deserving of our commiseration, of our kindness, rather than of our reproaches.… I do not choose to select that class of men from among all the population of the Southern States and tax them, and then to apply to them opprobrious epithets.”[67]
Mr. Sumner felt called to speak again in reply, and said:—
The Senator from Ohio says that I propose a tax on “slaves,” and then carefully reminds me that “slaves” are persons, and therefore not, according to the Constitution, to be taxed, except by a capitation tax. Now, Sir, I have to say, in the first place, that the tax which I propose is not to be regarded as a tax on slaves. If applicable to persons, it is to the masters, and not to the slaves. It is a tax on slave-masters, as I have already said,—precisely like the tax on auctioneers, which is sustained by the Senator. It is a tax on a claim of property made by slave-masters. The Senator may call such a claim property or not, as he pleases. It is at least a claim of property, and as such I propose to tax it. Why not? The Senator admits that at other times slaves have been expressly taxed,—actually taxed in name. In the tax of 1815 there was a tax on “land and slaves.” The Senator does not doubt the constitutionality of such tax. Sir, I am content with this authority, which goes beyond anything that I propose, and I am not troubled by any scruple, lest, in imposing a tax on the claim of the slave-master, I recognize property in man. At most, I recognize a profitable claim, and tax it.
The remarks of the Senator were occupied chiefly with two heads,—first, eulogy of slave-masters, and, secondly, vindication of his proposed tax on cotton. I have little to say of the Senator’s eulogy. There are two authorities on that head, which the Senator will pardon me, if I place above him: I mean Mr. Jefferson and Colonel Mason, both of our early Revolutionary days. Mr. Jefferson assures us that the whole commerce between master and slave is one of boisterous passion, tending to barbarism.[68] Colonel Mason exclaimed, in the Convention to frame the Constitution, that every slave-master is born a petty tyrant.[69] And yet, Sir, in the face of this authentic testimony, from persons who knew Slavery and all its influences, the Senator eulogizes slave-masters, and pleads for their exemption from taxation. Eulogy is for the dead. I would not add to the odium justly belonging to a tyrannical class, but I do insist that justice shall be done to their victims; and when the Senator interposes eulogy, I interpose against him the rights which have been violated. So long as men persist in such outrage, so long as they persevere in maintaining an institution which annuls the parental relation, the conjugal relation, the right to instruction, the right to the fruit of one’s own labor, and does all this merely to make men work without wages, so long as men support this unjust and irrational pretence, they must not expect soft words from me. If the Senator from Ohio finds it in his generosity to plead for slave-masters, he must excuse me, if I decline to follow him. He does not know them as well as I do, nor does he know their victims as well as I do.
The Senator dwells much on the importance of a tax on cotton. The subject was fully canvassed yesterday, and the vote of the Senate was against him. He now seeks a re-hearing out of the ordinary course. Would it not be better, if his proposition were postponed to the next stage of the bill, when it will be strictly in order? Meanwhile, in pursuance of my promise to be brief, I content myself with saying, that the desire of the Senate to tax cotton is no reason why they should refuse to tax the claim of the slave-master. The two are not in any way dependent upon each other. Let the Senator from Ohio carry his cotton tax, if the Senate agree with him. But, Sir, I insist, that, whether cotton is taxed or not, the claim of the slave-master shall not be permitted to escape. I do not say the property, but I say the claim. It ought to be taxed, not only for revenue, but also for the discouragement it will fasten upon an odious pretension, which has been to us the fountain of trouble and war.
Mr. Sherman’s motion to strike out the tax on slave-masters and insert the tax on cotton was then lost,—Yeas 15, Nays 22.
Mr. Henderson, of Missouri, then moved to amend the amendment of Mr. Sumner by adding,—
“And provided, further, That the tax herein prescribed shall not be levied or collected in any State where a system of gradual emancipation may have been adopted at the time of the collection.”
May 29th, this was lost,—Yeas 15, Nays 20.
Then, on motion of Mr. Fessenden, Mr. Sumner’s amendment was further modified by substituting a tax of “two” dollars, instead of “five,” on account of each slave. Before the vote was taken, Mr. Sumner assigned the reason for the higher rate.
The Senator from Maine [Mr. Fessenden] said that he had looked simply at the revenue to be obtained by a tax. But, pray, will not a larger revenue be obtained at the rate of five dollars than at the rate of two? There are the slaves,—count them, and tax them. The process is simple, with no chance of evasion. Besides, Sir, I cannot forget, nor can the Senator, that throughout our history we have heard constantly of “incidental protection.” But, if incidental protection is just and expedient, then is incidental discouragement, and the tax I propose may be sustained on this ground. We do not hesitate to tax whiskey and tobacco as luxuries, indulgences, vices. Why should we hesitate to tax the worst luxury, the worst indulgence, the worst vice of all, which is Slavery? Therefore, for a double reason, first, for the sake of revenue, and, secondly, for the sake of discouragement to Slavery, I am for the larger tax.
After further debate, the question was taken on the amendment of Mr. Sumner as modified, and resulted, Yeas 14, Nays 22. So the amendment was lost.
June 5th, at the next stage of the bill, Mr. Sumner moved his amendment in the following form:—
“And be it further enacted, That every person claiming the service or labor of any other person as a slave shall pay a tax of two dollars on account of every person so claimed: but in no case shall any person so claimed be sold for the purpose of collecting the tax.”
The yeas and nays were ordered, and, being taken, resulted, Yeas 19, Nays 16. So the amendment was agreed to.
June 6th, Mr. Anthony, of Rhode Island, who had voted for the tax on slaves, moved a reconsideration, not because he had changed his opinion, but, as he said, at the request of Senators. This was to give an opportunity for another vote.
In the debate which ensued the amendment was assailed by Mr. Doolittle, Mr. Browning, Mr. Cowan, and Mr. Hale. The latter quoted the words,—
“And if we cannot alter things,
Egad, we’ll change their names, Sir,”[70]—
and insisted, that, however it might be called, it was a tax on slaves; on which Mr. Wade remarked from his seat, “So much the better.” Mr. Sumner said in reply:—
MR. PRESIDENT,—I presume there is no difference among Senators in desire to follow the Constitution. The Senator from New Hampshire [Mr. Hale], on my right, cannot be more desirous to follow it than the Senator from Pennsylvania [Mr. Wilmot], on my left. In that respect they are equal. Nor do I believe that the Senator from Illinois [Mr. Browning], over the way, can claim any particular monopoly of such devotion. In that respect, Sir, we are all equal. Our difference is as to the meaning of the Constitution. But it is a poor argument which finds its chief force in asseverations of devotion to the Constitution. Conscious of my obligation to support it, and of my loyalty, I make no such asseverations.
Nor again, Sir, do I believe that the Senator from New Hampshire can take to himself any monopoly of praise for denying the whole offensive pretension of property in man. Is he more earnest in this denial than many other Senators? Is he more earnest than the Senator from Pennsylvania near me? Is he more earnest than myself? Has he denied it oftener in debate or public speech? To me the pretension is absurd as it is wicked. A man may as well claim property in a star as in his fellow-man. And yet, Sir, with this conviction, I cannot forget that I am here, as a Senator, to legislate with regard to existing institutions, and to see things as they are. I cannot be blind to the fact of Slavery. Slavery exists as a monstrous fact, an enormity, if you please, but still it exists; and as a legislator I am to act on its existence. Am I not right? Can I presume on this occasion to be guided by my inner conviction that there is no property in man, when, looking to the Slave States, I am compelled to see the great, unquestionable fact of pretended property? To my mind, it is more practical to recognize the fact, and to proceed accordingly.
The Senator from Illinois insists that this is a capitation tax, and he reads the text of the Constitution. What is a capitation tax? The precise definition in Webster’s Dictionary—if the Senator will excuse me for going to an authority which is not a law book—is “a tax or imposition upon each head or person, a poll tax.” Such is the tax with regard to which the provision of the Constitution read by the Senator was adopted. This provision is not applicable to any other tax, but simply to this special tax.
Already I have reminded the Senator that he has voted to tax auctioneers, to tax jugglers, to tax the slaughterers of cattle, and to tax lawyers. I might add other classes. I now propose that he should tax claimants of slaves, a class offensive to reason and humanity. That is all. If you look at the census of 1850,—that of 1860 is not yet published,—you will find among the different classes of our population the following: mariners, 70,000,—I will not give the hundreds; merchants, 100,000; planters, 27,000; wheelwrights, 30,000; teachers, 29,000; tailors, 52,000; overseers, 18,000; lawyers, 23,000; farmers, 2,363,000; slaveholders, 347,000.
Now, Sir, would any one say that a tax on the business of the mariner was a capitation tax? Would any one say that a tax on the business of merchants, of whom we have one hundred thousand, was a capitation tax? Would any one say that a tax on the business of the planter was a capitation tax? that a tax on the business of the wheelwright was a capitation tax? that a tax on the business of teachers was a capitation tax? that a tax on the business of tailors was a capitation tax? that a tax on the business of overseers of plantations, who apply the lash, of whom there are eighteen thousand, was a capitation tax? that a tax on lawyers, already voted by the Senator from Illinois, was a capitation tax? that a tax on farmers, if you will, of whom, happily, we have two million three hundred and sixty-three thousand, was a capitation tax? And will any one say that a tax on slave-masters, of whom, unhappily, we have three hundred and forty-seven thousand, is a capitation tax? Senators may imagine it a capitation tax, Senators may call it a capitation tax, but no imagination and no energy of assertion can make it so. It is not a capitation tax. It is a tax on the claim of the slave-master in the bones and muscles, the labor and service of his fellow-man, and, so far as the tax can have any influence, it must discredit and discourage such claim. Therefore, Sir, I say confidently that the tax is in every respect constitutional, and it is also a tax well worthy of adoption, because, at a moment when Slavery stands revealed as the very pest of our land, it will operate to discredit and discourage it.
In no other way can you obtain so much revenue so easily and so beneficently. But if you refuse to impose this tax, you concede a special immunity to a most offensive pretension, and leave those who profit by it to gather their profits without any of that burden so freely imposed upon the honest industry of the country, and upon so many classes of our citizens.
The motion to reconsider was carried,—Yeas 22, Nays 18.
The question then recurred on the amendment, and it was lost,—Yeas 17, Nays 23.
This narrative shows how the effort to tax Slavery finally failed, not on its merits, but from tenderness to slave-masters of the Border States.
PROPER DESPATCH OF BUSINESS.
Remarks in the Senate, on the Order of Business, May 30, 1862.
In the pressure of business before the Senate, it was proposed to sit into the night on the Internal Tax Bill. Mr. Sumner spoke against this proposition.
MR. PRESIDENT,—If I recollect aright, the Tax Bill was considered in the House of Representatives more than three weeks, and it is well known that there are rules for the limit of debate in that body which do not prevail in the Senate.
Mr. Hale. But which ought to prevail here.
Mr. Sumner. They do not prevail here, and we are to take things as they are. Now, Sir, shall we limit debate? Shall we cut it off more or less? In the absence of rules by which it may be done, we are asked to do it by protracting the daily session into the night, in other words, by night sessions, and so hurrying the bill to a final vote. I do not think this advisable. The matters in question are too important for such summary process. Each day has its debate on questions of detail, which multiply as we proceed; but there are two or three questions of principle not yet considered, though already before us, including that opened yesterday by the Senator from Rhode Island [Mr. Anthony], and another to be presented by the Senator from California [Mr. McDougall], involving a review of different systems of taxation. Is it supposed that such questions can be properly considered in a single day, or in two days, so that then we shall be ready to vote? To my mind it is not possible.
But if possible, I repeat, it is not advisable, and, believe me, Sir, I say this from no disposition to shirk business or duty here. I have not been out of my seat three minutes since this bill was taken up, nor, indeed, have I been out of my seat a half-hour since the session began. Therefore I do not fall under the judgment of the Senator from Maine [Mr. Fessenden] with regard to those who prefer that debate should be allowed to proceed, even at the expense of time. I am ready for work; but I think we shall all do best, if this important measure is considered without haste, if not entirely without rest, according to the customary order of business.
SHUTTING UP OF COLORED SCHOOLS BY THE PROVISIONAL GOVERNMENT OF NORTH CAROLINA.
Resolution and Remarks in the Senate, June 2, 1862.
Hon. Edward Stanly was appointed by the President Provisional Governor of North Carolina, and Andrew Johnson, of Tennessee. The former signalized his arrival at his post by an official movement against schools for colored children, as forbidden by “the laws of the State,” meaning the Black Code, before the war.
Mr. Vincent Colyer, who had opened a school for colored children at Newbern, came at once to Washington. Arriving at the close of the day, he reported immediately to Mr. Sumner, who without delay hurried to the Executive Mansion, and, not finding the President there, followed him to the War Department. Mr. Sumner related what had occurred, when the President, with an impatience which Mr. Sumner never encountered from him on any other occasion, exclaimed, “Do you take me for a School-Committee-man?” Mr. Sumner replied promptly: “Not at all; I take you for President of the United States; and I come with a case of wrong, in attending to which your predecessor, George Washington, if alive, might add to his renown.” The President changed his tone, and with perfect kindness proceeded to consider the case.
Mr. Sumner lost no time in laying it before the Senate.
June 2d, he offered the following resolution:—
“Resolved, That the Secretary of War be requested to communicate to the Senate copies of any commissions or orders from his Department undertaking to appoint Provisional Governors in Tennessee and North Carolina, with the instructions given to the Governors.”
By unanimous consent, the Senate proceeded to consider the resolution, when Mr. Sumner said:—
MR. PRESIDENT,—I shall not stop to consider any question touching the power to appoint Governors of States. My object is different. It is to expose a case of peculiar interest and importance, with regard to which I have a statement worthy of confidence. From this it appears that one of the first acts of Mr. Stanly, on arrival at Newbern, North Carolina, and assuming his responsible duties as Provisional Governor, was to announce that the school there for the education of colored children, recently opened by Northern charity, must be closed, being forbidden by the laws of North Carolina, which he was instructed by the authorities at Washington to maintain. I have here an official report of this extraordinary transaction.
“In a conversation between Governor Stanly and Mr. Colyer, the Governor stated that there was one thing in Mr. C.’s doings, as superintendent of the poor, a question would be raised about,—indeed, it had been already,—and that was his (C.’s) keeping school for the blacks. ‘Of course you are aware,’ said the Governor, ‘that the laws of the State make the opening of such schools a criminal offence. My instructions from Washington were, that I was to carry out the laws of North Carolina precisely as they were administered before the breaking out of this unhappy affair; so, if I were called upon for a decision in the matter of your schools for the blacks, I would have to decide against you; but at the same time I don’t want anything done abruptly. As a man, I might do, perhaps, as you have done; but as a Governor, I must act in my official capacity according to my instructions, and administer the laws as I find them.’
“A true copy.
“C. H. Mendell,
Clerk to Mr. Colyer.
“Newbern, May 28, 1862.”
Then follows a further statement.
“Mr. C. C. Leigh, who was with General Saxton in the Oriental, on his way to South Carolina, as confidential agent of the National Freedmen’s Relief Association, and who has just returned, asked Mr. Colyer what he should do. Mr. C. replied: ‘I must close the schools, as I cannot consent to continue to place myself in a situation where I am liable to be punished according to the laws of North Carolina.’
“Mr. Leigh is the Chairman of our Home Committee.”
If any person, in the name of the United States, has undertaken to close a school for little children, whether white or black, it is important that we should know the authority under which he assumes to act. Surely nobody here will be willing to take the responsibility for such an act. It is difficult to conceive that one of the first fruits of national victory and the reëstablishment of national power should be an enormity not easy to characterize in any terms of moderation. Jefferson tells us that in a certain contest there is no attribute of the Almighty “which can take side with us.”[71] And permit me to say, that, if, in the war unhappily existing, the military power of the United States is employed in closing schools, there is no attribute of the Almighty which must not be against us; nor can we expect any true success. Sir, in the name of the Constitution, of humanity, and of common sense, I protest against such impiety under sanction of the United States.
The proper rule of conduct is simple. It is found in the instructions, to which I referred the other day, from the British Commissioner in a conquered province of India. After indicating certain crimes to be treated with summary punishment, he proceeds to say: “All other crimes you will investigate according to the forms of justice usual in the country, modified as you may think expedient; and in all cases you will endeavor to enforce the existing laws and customs, unless where they are clearly repugnant to reason and natural equity.”[72] Here is the proper limitation. Anything else is unworthy of a civilized country. Whatever is clearly repugnant to reason and equity must be rejected. Surely such a thing cannot be enforced. But what can be more clearly repugnant to reason and equity than the barbarous law which an officer, in the name of the National Government, has threatened to enforce?
The resolution was agreed to.
June 4th, a report from the Secretary of War, in answer to this resolution, contained a letter of appointment, dated May 19, 1862, conferring “all and singular the powers, duties, and functions pertaining to the office of Military Governor, including the power to establish all necessary offices and tribunals, and suspend the writ of Habeas Corpus.” This was followed, May 20th, by instructions, wherein it is said: “Upon your wisdom and energetic action much will depend.… It is not deemed necessary to give any specific instruction, but rather to confide in your sound discretion to adopt such measures as circumstances may demand. Specific instructions will be given, when requested. You may rely upon the perfect confidence and full support of the Department in the performance of your duties.”[73]
STAND BY THE ADMINISTRATION.
Letter to ——, June 5, 1862.
This letter, after enjoying an extensive circulation in the newspapers, was preserved as a political document in McPherson’s “Political History of the Rebellion.”[74]
It first appeared in the Boston Journal,[75] with the caption, “Senator Sumner and the President,” and with these introductory words:—
“We are permitted to publish the following private letter from Hon. Charles Sumner, in reply to a letter addressed to him by a personal friend. Senator Sumner’s hearty indorsement will not be without its influence upon those who are impatient at what they term the Proslavery policy of the President. At the same time there is nothing in this indorsement which should shake the confidence of conservative men in his wisdom and prudence.… It is something to obtain from one who may be regarded as a representative of this class so handsome a tribute to the purity of the President’s motives, and so hearty an indorsement of the correctness of his convictions and sympathies.”
Senate Chamber, June 5, 1862.
MY DEAR SIR,—Your criticism of the President is hasty. I am confident, if you knew him as I do, you would not make it.
The President cannot be held responsible for the misfeasance of subordinates, unless adopted, or at least tolerated, by him. And I am sure nothing unjust or ungenerous will be tolerated, much less adopted, by him.
I am happy to let you know that he has no sympathy with Stanly in his absurd wickedness, closing the schools, nor, again, in his other act of turning our camps into a hunting-ground for slaves. He repudiates both, positively. The latter point has occupied much of his thought, and the newspapers do not go too far in recording his repeated declarations, which I have often heard from his own lips, that slaves finding their way within the national lines are never to be reënslaved. This is his conviction, expressed without reserve.
Could you—as has been my privilege often—have seen the President, while considering the great questions on which he has already acted, beginning with the invitation to Emancipation in the States, then Emancipation in the District of Columbia, and the acknowledgment of the Independence of Hayti and Liberia, even your zeal would be satisfied; for you would feel the sincerity of his purpose to do what he can to carry forward the principles of the Declaration of Independence. His whole soul was occupied, especially by the first proposition, so peculiarly his own. In familiar intercourse with him, I remember nothing more touching than the earnestness and completeness with which he embraced this idea. To his mind it was just and beneficent, while it promised the sure end of Slavery. To me, who had already proposed a Bridge of Gold for the retreating Fiend, it was most welcome. Proceeding from the President, it must take its place among the great events of history.
If disposed to be impatient at apparent short-comings, think, I pray you, what has been done in a brief period, and from the past discern the sure promise of the future. Knowing something of my convictions, and of the ardor with which I maintain them, you may, perhaps, derive assurance from my confidence. I say to you, therefore, Stand by the Administration. If need be, help it by word and act; but stand by it, and have faith in it.
I wish that you knew the President, and had heard the artless expression of his convictions on those questions which concern you so deeply. You might, perhaps, wish he were less cautious, but you would be grateful that he is so true to all you have at heart. Believe me, therefore, you are wrong; and I regret it the more because of my desire to see all our friends stand firm together.
If I write strongly, it is because I feel strongly; for my constant and intimate intercourse with the President, beginning with the fourth of March, not only binds me peculiarly to his Administration, but gives me a personal as well as a political interest in seeing that justice is done him.
Believe me, my dear Sir,
With much regard,
Ever faithfully yours,
Charles Sumner.
POWER OF CONGRESS vs. MILITARY GOVERNMENT OF STATES.
Resolutions in the Senate, June 6, 1862.
Further report from North Carolina induced Mr. Sumner again to bring the action of Mr. Stanly before the Senate, in the hope especially of reaching the country, and also the Administration.
Whereas Edward Stanly, assuming to act under a letter from the Secretary of War, calling him Military Governor of North Carolina, a post unknown to the Constitution and laws of the Union, has undertaken, by virtue of such military authority, to surrender fugitive slaves, contrary to the intent and meaning of an Act of Congress recently adopted; also to banish an American citizen, in violation of personal rights secured by the Constitution; and also to close and suppress schools maintained by the charity of good men for the education of colored children, in defiance of every principle of morals and religion, and to the discredit of our national character: Therefore,—
1. Resolved, That the President of the United States be requested to cancel the letter of the Secretary of War under which Edward Stanly now assumes to act.
2. Resolved, That any such letter, assuming to create any person Military Governor of a State, is without sanction in the Constitution and laws, and that its effect is to subordinate the civil to the military authority, contrary to the spirit of our institutions, and in derogation of the powers of Congress, which, where a State Government falls into the hands of traitors, can be the only legitimate authority, except martial law.
Mr. Carlile, of West Virginia, objected to the consideration of the resolutions, and they were postponed.
These resolutions presented again the question of the Power of Congress over the Rebel States, first opened by the resolutions of February 11, 1862.[76]
AIR-LINE RAILROAD BETWEEN WASHINGTON AND NEW YORK.
Resolution in the Senate, June 9, 1862.
RESOLVED, That the Committee on Post-Offices and Post-Roads be directed to consider the expediency of providing for an air-line railroad between Washington and New York, which shall carry the mails of the United States, and be free from all local impediments.
This resolution was objected to, and so was postponed; but its immediate object was accomplished. The existing roads were stimulated, and the attention of the country was called to the idea of better communication between the two capitals of politics and commerce. A French paper spoke of the proposed road as “atmospheric.”
The resolution was renewed at the next session of Congress, December 5, 1862, when it was agreed to.
ABOLITION AND PROHIBITION OF SLAVERY IN WEST VIRGINIA.
Remarks in the Senate, on the Bill for the Admission of West Virginia As a State, June 26, July 1 and 14, 1862.
The facts essential to the comprehension of this case appear in the debate.
MR. PRESIDENT,—The question is on the admission of West Virginia into the Union as a new State, and the following is one of the conditions, namely: “That from and after the fourth day of July, 1863, the children of all slaves born within the limits of said State shall be free.” Here is a condition which you undertake to impose. This is clear.
But, Sir, be good enough to observe that this condition recognizes Slavery during the present generation. Short as life may be, it is too long for Slavery. If it be adopted, and the bill becomes a law, a new Slave State will take its place in our Union,—it may be with but few slaves, and for the present generation only, but nevertheless a new Slave State. That, Sir, is too much.
How often have I said, and how painful that I must now repeat what all know, that it takes but little Slavery to make a Slave State with all the virus of Slavery! Now my vote shall help no new State to take a place in this Union, with Senators in this body, unless purged of this poison. Enough has our nation been disturbed, and enough has the Constitution been perverted. The time has come for the remedy. It is found in the policy of Thomas Jefferson, originally applied to the great Territory of the Northwest. Its application to a portion of his own Virginia, seeking to become a new State, will be politic, just, and conservative.
Mr. Sumner concluded by moving to strike out the words of the condition proposed, and insert an absolute abolition and prohibition, so that it should read, “From and after the fourth day of July, 1863, within the limits of the State there shall be neither slavery nor involuntary servitude, otherwise than in the punishment of crime whereof the party shall be duly convicted.”
July 1st, the Senate proceeded to the consideration of the bill, the pending question being the amendment of Mr. Sumner, who made the following remarks.
Time has elapsed since this measure was before the Senate, which meanwhile has been engaged in an important debate. Therefore I shall be pardoned, if, at the expense of repetition, I recall attention to the precise question.
The bill for the admission of West Virginia provides that from and after the 4th of July, 1863, all children born of slaves shall be free, leaving the existing generation in Slavery. From statistics furnished by the honorable Senator from Virginia [Mr. Willey], in his elaborate speech, it appears that in West Virginia twelve thousand human beings are held in Slavery.
Mr. Willey. That was in 1860; but it is not so now.
Mr. Sumner. There may be fewer now: call the number ten thousand. There are ten thousand slaves there, who, according to the bill, are to remain in bondage during life. Thus, for one whole generation, shall we be afflicted by another Slave State, with two slaveholding representatives in this body.
I mean to speak of this question with all possible respect for Senators on the other side. I am anxious not to introduce any topic otherwise than agreeable; but I must discharge my duty here. I cannot by my vote consent that there shall be two additional slaveholding Senators for another generation. I content myself with this declaration, without argument,—except what is found in a brief passage by Mr. Webster in this body. I refer to his speech of the 22d of December, 1845, on the admission of Texas, where he used this language:—
“In the next place, Sir, I have to say, that, while I hold, with as much integrity, I trust, and faithfulness, as any citizen of this country, to all the original arrangements and compromises under which the Constitution under which we now live was adopted, I never could, and never can, persuade myself to be in favor of the admission of other States into the Union as Slave States, with the inequalities which were allowed and accorded by the Constitution to the slaveholding States then in existence. I do not think that the Free States ever expected, or could expect, that they would be called on to admit more Slave States, having the unequal advantages arising to them from the mode of apportioning representation under the existing Constitution.…
“It will always be a question, whether the other States have not a right (and I think they have the clearest right) to require that the State coming into the Union should come in upon an equality; and if the existence of Slavery be an impediment to coming in on an equality, then the State proposing to come in should be required to remove that inequality by abolishing Slavery, or take the alternative of being excluded.”[77]
Afterwards, in his famous speech of the 7th of March, 1850, he reaffirmed these principles.
“It has happened that between 1837 and this time, on various occasions, I have expressed my entire opposition to the admission of Slave States, or the acquisition of new Slave Territories, to be added to the United States. I know, Sir, no change in my own sentiments or my own purposes in that respect.”[78]
I might quote more, but this is sufficient. Mr. Webster was against new Slave States.
I adduce these words as stating strongly at least one important ground of objection. The admission of West Virginia with a condition recognizing Slavery for a full generation will be an extension of the Slave Power and a new sanction of Slavery. I cannot consent to it, Sir; nor do I see any apology for hesitation. Our control of this matter is clear beyond reasonable doubt, and the present state of our country supplies a new motive for its exercise.
In the debate that ensued, Mr. Hale criticized Mr. Sumner, quoting the story of Abraham and his aged idolatrous guest, as given by Dr. Franklin.
“‘And God said to Abraham, Have I borne with you [him] these fourscore years, and canst thou not bear with him one night, who art thyself a sinner?’ Sir, in exactly the spirit inculcated by that fable I would deal with Slavery; and I would listen to-day as it were to the voice of God, who asks us, Have I borne with this thing so many generations, and cannot you bear with it dying, when it begins on the next Fourth of July?”[79]
Mr. Wade, in the same spirit, said:—
“My friend from Massachusetts, by his proposition, strikes this institution down at one dash. I should like to see it go; but I must look a little to see what its effect will be, after all.”[80]
Before the vote was taken, Mr. Carlile, of Virginia, remarked:—
“Mr. President, it is my sincere belief that this disposition to interfere with the rights of the States, exhibited by this Congress, has prolonged the war,—that, if persisted in, the war becomes a war of indefinite duration, and that the Constitutional Union our fathers formed will be lost to us and our posterity forever.”[81]
July 14th, the question was taken on Mr. Sumner’s amendment, which was rejected,—Yeas 11, Nays 24.
Mr. Lane, of Kansas, moved that all slaves in the State, July 4, 1863, and under the age of ten, shall be free when they arrive at the age of twenty-one, and all slaves over ten and under twenty-one shall be free when they arrive at the age of twenty-five; and the amendment was adopted,—Yeas 25, Nays 12.
The question then occurred on the passage of the bill, when Mr. Sumner remarked:—
I renounce the intention of presenting again the amendment you have already voted down; but it is none the less important in my judgment. I do not like to occupy the time of the Senate; but I cannot doubt that you have acted on the amendment hastily, and without full consideration. Why, Sir, it is simply the old Jeffersonian ordinance, which, when originally adopted for the great Territory of the Northwest, operated upon Slavery already there, and absolutely forbade this wrong from that time forward. In point of fact, slaves were freed by this ordinance.
I thought it well that this institute of Virginia’s son should help to redeem Virginia. It has been voted down; and now the question is presented, whether the Senate will recognize a new Slave State. True, Slavery will be for a short term only, for twenty-one years, if you please, but that is a long time for Slavery. I cannot consent to admit a new State with such a curse for twenty-one years. How little slavery it takes to make a Slave State is illustrated by Delaware, with less than eighteen hundred slaves, sending two Senators of Slavery to this Chamber. Shall we welcome two more from a State newly created by ourselves? Never, Sir, by my vote; and as the Senate sees fit to discard the effort I have made, I deem it my duty to vote against the bill.
The bill was passed,—Yeas 23, Nays 17,—Mr. Sumner voting in the negative.
WAR POWERS OF CONGRESS: CONFISCATION AND LIBERATION.
Speech in the Senate, on the House Bill for the Confiscation of Property and the Liberation of Slaves belonging to Rebels, June 27, 1862.
This speech is a supplement to that of May 19th, on the “Rights of Sovereignty and Rights of War.” Its occasion is explained in the Introduction to the latter speech.[82]
The New York Independent published it at length, and thus characterized it:—
“It is the most complete presentation of the question that can be found within the same compass, and, like all Mr. Sumner’s speeches, is distinguished for accuracy of statement, learning, and sound principle. It is a defence of the present position of our Government, as defined by Act of Congress, to which every citizen owes obedience. In efficacy, that Act will go with our armies, as they advance, and will clear up the perplexities of our Generals, and clear their minds of certain political superstitions by which they have been hampered and hindered, to the great injury of our military operations. Let the people of Massachusetts, in particular, exult, as they observe, in regard to this, as well as most other leading measures of Congress, how the views of their great Senator became, step by step, the recognized and settled policy of the Government; and let them thank God that the good old Bay State has such a representative, and furnishes such a leader in this great extremity.”
MR. PRESIDENT,—Too tardily the house of a Rebel General in Virginia[83] has been taken by the Government, and set apart as a military hospital for the reception of our soldiers, wounded and maimed in battle. At least three churches here in Washington have been seized and occupied for the same purpose. All applaud these acts, which make the house more historic and the churches more sacred than ever before. But pray, Sir, under what authority is all this? Not according to any contract or agreement; not according to any “due process of law”; not even according to any statute. And yet the language of the Constitution is positive: “No soldier shall in time of peace be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.” If it be time of peace now, then is the Constitution violated by quartering soldiers in these houses without the consent of the owner. If it be time of war now, then is the Constitution violated by quartering these soldiers in a manner not prescribed by law,—unless we are ready to admit that the provisions of the Constitution are entirely inapplicable to what is done under the military requirements of self-defence, which is a supreme law, above all other laws or constitutions devised by men. But if the Constitution, in a case where it is singularly explicit, can be disregarded without question in the exercise of the Rights of War, it is vain to invoke its provisions in other cases, where it is less explicit, in restraint of the Rights of War.
It is true that the Constitution ambiguously provides against certain forfeitures, as incident to an “attainder of treason”; it also positively prohibits “ex post facto laws”; and it nobly declares that “no person shall be deprived of life, liberty, or property, without due process of law.” But nothing in the House bills for the confiscation of property or the liberation of slaves is obnoxious to either of these provisions. There is no attainder of treason, no ex post facto law, and no taking of property without due process of law; for the judicial proceedings which these bills institute are competent for the purpose. The House bills are not criminal statutes, nor do they institute criminal proceedings. Therefore do I assert unhesitatingly that these bills are above constitutional objection. They are as constitutional as the Constitution itself. It was once said of a subtile spirit of criticism, that it would find a heresy in the Lord’s Prayer; and such a spirit, permit me to say, is needed to find anything unconstitutional in these bills.
Here I assume, as a cardinal principle of Constitutional Law, that, whatever may be the condition of slaves in the States and under State laws, they are, under the Constitution of the United States, persons, and not property; so that, in declaring their emancipation, Congress is not constrained by any constitutional requirements with regard to property. Whatever the claims of property, slaves are men; and I but repeat an unquestionable truth of morals, confirmed by the Declaration of Independence, when I say that there can be no property in men. Mr. Winter Davis,[84] of Baltimore, has reminded the country, that Congress, on the motion of Mr. Clay, once undertook to declare the freedom of slaves without any “due process of law”; and the present Congress, by a bill of the last session, setting free slaves actually employed in the Rebellion,[85] has done the same thing; so that the principle is completely established.
Even if the bills seemed obnoxious to certain constitutional provisions,—as they clearly are not,—this objection and every other objection will disappear, when it is understood that they are war measures, derived from the capacious War Powers of Congress, applicable only to public enemies, and limited in duration to the war. Considered in these aspects and with these qualifications, these bills are only an agency in the prosecution of the war, and the power to enact them is as clear as the power to raise armies or to levy taxes. An ancient historian, in words adopted by the greatest modern publicist, has told us that “war has its laws, no less than peace.”[86] These words are placed by Grotius at the head of his great work, and they embody a fundamental principle. The Rights of War are not less peculiar than the victories of war, which are so widely different from the victories of peace.
Pray, Sir, where in the Constitution is any limitation of the War Powers? Let Senators who would limit them mention a single section, line, or phrase, which even hints at any limitation. If it be constitutional to make war, to set armies in the field, to launch navies, to occupy fields and houses, to bombard cities, to kill in battle,—all without trial by jury, or any process of law, or judicial proceeding of any kind,—it is equally constitutional, as a war measure, to confiscate the property of the enemy and to liberate his slaves. Nor can it be doubted on principle, that, if the latter be unconstitutional, then are all other acts of war unconstitutional. You may condemn confiscation and liberation as impolitic, but you cannot condemn them as unconstitutional, unless, in the same breath, you condemn all other agencies of war, and resolve our present proceeding into the process of a criminal court, guarded at each step by the technicalities of the Common Law.
Sir, I speak frankly, according to my convictions, claiming nothing for myself which I do not freely accord to others. In this discussion there is no need of sharp words or of personal allusions; nor can anything be gained by misstatement of the position of another. It is easy to say that Senators who insist upon the War Powers of Congress are indifferent to the Constitution; but I do not admit that any Senator is more anxious for the Constitution than myself. The War Powers are derived from the Constitution, but, when once set in motion, are without any restraint from the Constitution; so that what is done in pursuance of them is at the same time under the Constitution and outside the Constitution. It is under the Constitution in its beginning and origin; it is outside the Constitution in the latitude with which it is conducted; but, whether under the Constitution or outside the Constitution, all that is done in pursuance of the War Powers is constitutional. It is easy to cry out against it; it is easy, by misapplication of the Constitution, to call it in question; but it is only by such misapplication, or by senseless cry, that its complete constitutionality can for a moment be drawn into doubt.
The language of the Constitution is plain and ample. It confers upon Congress all the specific powers incident to war, and then further authorizes it “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Here are the precise words:—
“The Congress shall have power … to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies; … to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; … to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”
Can language be clearer? Other parts of the Constitution may be open to question; but here is no room for question. The text is full and unequivocal. The powers are enumerated. Without stopping to consider them in detail, it will be seen that the most important are exclusively incident to a state of war, and not to a state of peace. A declaration of war is of course war, and “all laws necessary and proper for carrying into execution” this declaration are called into being by the war. Rules concerning captures on land and water are from necessity dormant, till aroused by war; but when aroused, they are, like other War Powers, without check from those constitutional provisions which, just so long as peace prevails, are the boast of the citizen.
The War Powers conferred upon Congress by the Constitution were well known; they had been conferred upon Congress by the earlier Articles of Confederation. The language of the latter was full and explicit with regard to captures.
“The United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, … of establishing rules for deciding in all cases what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated, … and establishing courts for receiving and determining finally appeals in all cases of captures.”[87]
The language subsequently employed in the Constitution is identical in substance. It is evident that the framers of the Constitution had the Articles of Confederation in mind, when they vested in Congress power to “make rules concerning captures on land and water.”
The bills now under consideration are obviously founded on the War Powers. The first section of the first bill begins as follows.
“That all the estate and property, money, stocks, credits, and effects of the persons hereafter named in this section are hereby forfeited to the Government of the United States, and are declared lawful subjects of seizure, and of prize and capture, wherever found, for the indemnity of the United States against the expenses of suppressing the present Rebellion.”
The Senator must be very hardy who denies the power of Congress, in the exercise of belligerent rights, to pass such a bill; and he must be equally hardy, when he insists that belligerent rights are impaired by any limitations of the Constitution.
If the enemies against whom we now wage war were not our own fellow-citizens, if they were aliens unhappily fastened for the time on our territory, there would be no fine-spun question of constitutional immunity. Such immunities are essentially municipal in character; but a public enemy can claim nothing merely municipal. The immunities he enjoys are such only as are conceded by the Rights of War,—nor more, nor less. As a public enemy, he seeks to subvert our Government, its laws and its Constitution; and in this warfare he proceeds according to the Rights of War, indifferent to any mere local law. But if the war on our part were in accordance with mere local law, and in subordination to provisions of the Constitution devised for peace, it is evident that the National Government would be unable to cope with its enemy. It would enter into battle with hands tied behind the back. Of course, in warfare with people of another country Senators would not require any such self-sacrifice.
But the Rights of War are fixed, whether against alien enemies or against enemies whose hostility is aggravated by the guilt of rebellion, with this single difference, that against rebel enemies these rights would seem to be more complete and unsparing. Show me any Right of War which may be employed against alien enemies, and now, in the name of the Constitution, I insist upon its employment against rebels arrayed as enemies. Because enemies are also rebels, they are not on this account any the less enemies. Because rebels are also enemies, they are not on this account any the less rebels. The double character which they bear increases their liabilities, subjecting them to all the penalties of war enhanced by those personal responsibilities which every partaker in rebellion necessarily assumes.
And yet, Sir, the Constitution is cited as a limitation upon these rights. As well cite the Constitution on the field of battle to check the bayonet charge of our armies, or at the bombardment of a fortress to stay the fiery rain of shells; or, to adopt the examples with which I began, as well cite the Constitution to prevent the occupation of churches here in Washington as hospitals for our soldiers, or to save the house of General Lee in Virginia from similar dedication. The Constitution is entirely inapplicable. Sacred and inviolable, the Constitution is made for friends who acknowledge it, and not for enemies who disavow it; and it is made for a state of peace, and not for the fearful exigencies of war, treading down within its sphere all rights except the Rights of War. Born of violence, and looking to violence for victory, war discards all limitations except such as are supplied by the Rights of War. Once begun, war is a law unto itself,—or, in other words, it has a law of its own, which is part of itself. And just in proportion as you seek to moderate it by constitutional limitations do you take from war something of its efficiency. In vain do you equip our soldiers with the best of weapons, or send into the field the most powerful batteries, the latest invention of consummate science, if you direct them all in full career to stand still for an indictment, or other “due process of law,” or, at least, for the reading of the Riot Act. Undertaking to limit the Rights of War by the Constitution, where are you to stop? If the Constitution can interfere with one, it can interfere with all. If the Constitution can wrest from Government the weapons of confiscation and liberation, there is no other weapon in the whole arsenal of war which it may not take also.
Sir, the Constitution is guilty of no such absurdity. It was made by practical men, familiar with public law, who, seeing clearly the difference between peace and war, established powers accordingly. While circumscribing the Peace Powers with constitutional checks, they left untouched the War Powers. They declared, that, in the administration of the Peace Powers, all should be able to invoke the Constitution as a constant safeguard. But in bestowing upon the Government War Powers without limitation, they embodied in the Constitution all the Rights of War as completely as if those rights had been severally set down and enumerated; and among the first of these is the right to disregard the Rights of Peace. In saying this I fail in no sympathy with peace, which I seek and reverence always, but simply exhibit war in some of its essential conditions. Sir, an alien enemy is not admitted even to sue in your courts.
There is a saying of Antiquity, already quoted in this debate, Silent leges inter arma,—“The laws are silent in the midst of arms.”[88] Handed down from distant ages, and repeated by successive generations, this saying may be accepted as the embodied result and very essence of human experience. Had it not been true, it would have been forgotten, or at least ceased to be repeated. But it declares a truth to which every war practically testifies, while it is founded in reason and the nature of things, confirmed by centuries as attesting witnesses. The Constitution itself is only a human law; nor can it claim to speak in time of war, and within the sphere of war, more than any other human law.
How vain, then, to adduce against confiscation and liberation, as war measures, an objection derived from the Constitution! and how vain, also, to offer a penal statute, under the Peace Powers of the Constitution, as a war measure! War is war. Better arrest it at once, if it is to be war on the one side and peace on the other,—if our enemies are to employ against us all the Rights of War, while we employ against them only the Rights of Peace. Penal statutes are good for peace, when laws prevail; but in the midst of war, and against enemies, when laws are proverbially silent, they are absurd. What enemy now arrayed in arms can be indicted, or, if indicted, convicted, under the most stringent of penal statutes? Not Jefferson Davis himself. Why, then, painfully construct legislative verbiage? Why new penalties for treason, which, from the nature of the case, cannot be enforced in this hour of need? Why not see things as they are, and do what the moment requires? The War Powers of Congress are ample; but in time of war a mere penal statute against a public enemy is not so much as a pop-gun.
There are Senators who claim these vast War Powers for the President, and deny them to Congress. The President, it is said, as commander-in-chief, may seize, confiscate, and liberate under the Rights of War, but Congress cannot direct these things to be done. Pray, Sir, where is the limitation upon Congress? Read the text of the Constitution, and you will find its powers vast as all the requirements of war. There is nothing that may be done anywhere under the Rights of War, which may not be done by Congress. I do not mean to question the powers of the President in his sphere, or of any military commander within his department; but I claim for Congress all that belongs to any Government in the exercise of the Rights of War. And when I speak of Congress, let it be understood that I mean an Act of Congress, passed, according to the requirements of the Constitution, by both Houses, and approved by the President. It seems strange to claim for the President alone, in the exercise of his single will, War Powers alleged to be denied to the President in association with Congress. If he can wield these powers alone, surely he can wield them in association with Congress; nor will their efficacy be impaired, when it is known that they proceed from this associate will, rather than from his single will alone. The Government of the United States appears most completely in an Act of Congress. Therefore war is declared, armies are raised, rules concerning captures are made, and all articles of war regulating the conduct of war are established by Act of Congress. It is by Act of Congress that the War Powers are all put in motion. When once put in motion, the President must execute them. But he is only the instrument of Congress, under the Constitution.
It is true, the President is commander-in-chief; but it is for Congress to make all laws necessary and proper for carrying into execution his powers, so that, according to the very words of the Constitution, his powers depend upon Congress, which may limit or enlarge them at its own pleasure. Thus, whether you regard Congress or regard the President, you will find that Congress is the arbiter and regulator of the War Powers.
Of the pretension that all these enormous powers belong to the President, and not to Congress, I try to speak calmly and within bounds. I mean always to be parliamentary. But a pretension so irrational and unconstitutional, so absurd and tyrannical, is not entitled to respect. The Senator from Ohio [Mr. Wade], in indignant words worthy of the Senate, has branded it as slavish, and handed it over to judgment. Born in ignorance, and pernicious in consequences, it ought to be received most sternly, and, just in proportion as it obtains acceptance, with execration. Such a pretension would change the National Government from a government of law to that of a military dictator. It would degrade our proud Constitutional Republic, where each department has its appointed place, to one of those short-lived, vulgar despotisms appearing occasionally as a warning to mankind. That this pretension should be put forward in the name of the Constitution is only another illustration of the effrontery with which the Constitution is made responsible for the ignorance, the conceit, and the passions of men. Sir, in the name of the Constitution, which I have sworn to support, and which, according to my ability, I mean to maintain, I protest against this new-fangled effort to foist into it a pretension abhorrent to liberty, reason, and common sense.
At the risk of repetition, but for the sake of clearness, I repeat the propositions on which I confidently rest.
1. Rights of Sovereignty are derived from the Constitution, and can be exercised only in conformity with the requirements of the Constitution; so that all penal statutes punishing treason must carefully comply with these requirements. This is the case of the bill introduced by the Senator from New Hampshire [Mr. Clark].
2. Rights of War are under the Constitution in their origin, but outside the Constitution in their execution. In other words, the Constitution confers Rights of War, but sets no limits to them; so that statutes to enforce them are not mere penal statutes, restricted by the Constitution. But these rights belong to a state of war, and necessarily cease with the war. This is the case of the House bill under discussion.
3. All rebels are criminals, liable to punishment according to penal statutes; and in all proceedings against them, as such, they are surrounded by the safeguards of the Constitution.
4. Rebels in arms are public enemies, who can claim no safeguard from the Constitution; and they may be pursued and conquered according to the Rights of War.
5. Rights of War may be enforced by Act of Congress, which is the highest form of the national will.
If these conclusions needed the support of authority, they would find it in John Quincy Adams. His words have been often quoted, without perhaps fully considering the great weight to which they are entitled. At an early day, when Minister at London, while Slavery prevailed in the Government, in the discharge of official duties, under instructions from the President, he claimed compensation for slaves liberated by the British armies, arguing against any such liberation under the Rights of War. In conversation with the British Prime-Minister, as reported by himself, after saying that proclamations inviting slaves to desert from their masters had been issued by British officers, he added: “We considered them as deviations from the usages of war.”[89] Afterwards, as Secretary of State under Mr. Monroe, of Virginia, he made a similar statement.[90] A full knowledge of his convictions on this occasion might, perhaps, disclose the repugnance, or, to borrow his own words on another occasion, “the bitterness of soul,” with which he discharged his duty. It is known, by avowals afterwards made, that on at least one occasion he acted as Secretary of State contrary to his convictions. “It was utterly against my judgment and wishes, but I was obliged to submit, and I prepared the requisite despatches.”[91] Such was his open declaration in the House of Representatives with regard to an important negotiation. So that it is easy to see how on this other occasion he may have represented the Government and not himself. But, whatever his actions at that time, it is beyond question, that afterwards, in his glorious career as Representative, when larger experience and still maturer years had added to his great authority, and he was called in Congress to express himself on his personal responsibility, we find him reconsidering his earlier diplomatic arguments, and, in the face of the world, defiantly claiming not only for Congress, but for the President, and every military commander within his department, full power to emancipate slaves under the Rights of War. If these words had been hastily uttered, or, if once uttered, had been afterwards abandoned, or if they could in any way be associated with the passions or ardors of controversy, as his earlier words were clearly associated with the duties of advocacy, they might be entitled to less consideration. But they are among the later and most memorable utterances of our great master of the Law of Nations, made under circumstances of peculiar solemnity, and repeated after intervals of time.[92]
…
The representatives of Slavery broke forth in characteristic outrage upon the venerable orator, but nobody answered him. And these words have stood ever since as a landmark of public law. You cannot deny the power of Congress to liberate the slaves, without removing this landmark. Vain work! It is not less firm than the Constitution itself.
Thus do I vindicate for Congress all the Rights of War. If, assuming the powers of Congress, any further question be raised as to the extent of these rights, I reply, briefly, that there is no right, according to received authorities, against a hostile sovereign or prince, embracing, of course, confiscation of property, real as well as personal, which may not in our discretion be exercised against a rebel enemy; and the reason is obvious. Whatever the mitigations of the Rights of War introduced by modern civilization, under which private property in certain cases is exempt from confiscation, this rule does not apply to cases where there is a direct personal responsibility for the war. And here is the precise difference between the responsibility of the sovereign or prince and the responsibility of the private citizen: the private citizen is excused; but the sovereign or prince is always held responsible to the full extent of his property, real as well as personal. Now every rebel who has voluntarily become a public enemy has assumed a personal responsibility, for which, according to acknowledged principles of public law, especially if he has taken high office in the rebel government, he is liable to the full extent of his property, real as well as personal. Every citizen who voluntarily aids in armed rebellion is a hostile sovereign or prince. A generous lenity may interfere to limit his liability, but on principles of public law he is in the very condition of Shylock, when his cruelty was arrested by the righteous judge:—
“If thou dost shed
One drop of Christian blood, thy lands and goods
Are by the laws of Venice confiscate
Unto the State of Venice.”
Such, Sir, is the extent of powers which may be exercised by Congress. Of course, it is for Congress to determine the degree of severity or lenity it will adopt. In claiming these powers to the full extent, I yield to no Senator in that spirit of clemency which, next to justice, is the grace and ornament of success.
Mr. President, these are the principles on which we must act. Announcing them and reducing them to practice, Congress will enlarge its accumulating claims to public gratitude.
The present Congress has already done much beyond any other Congress in our history. Measures, which for long years seemed attainable only to the most sanguine hope, have triumphed. Emancipation in the National Capital; freedom in all the National Territories; the offer of ransom to help emancipation in the States; the recognition of Hayti and Liberia; the treaty with Great Britain for the suppression of the slave-trade; the prohibition of the return of fugitive slaves by military officers; homesteads for actual settlers on the public lands; a Pacific railroad; endowments of agricultural colleges out of the public lands: such are some of the achievements by which the present Congress is already historic. There have been victories of war, won on hard-fought fields, but none comparable to the victories of peace. Besides these measures of unmixed beneficence, the present Congress has created an immense army and a considerable navy, and has provided the means for all our gigantic expenditures by a tax, which in itself is an epoch.
Thus, in the prosecution of the war, Congress has exercised two great powers,—first, to raise armies, and, secondly, to tax. Both bear directly upon loyal fellow-citizens everywhere throughout the country. Sons, brothers, and husbands are taken from happy homes and from the concerns of business, leaving vacant places, never, perhaps, to be filled again, and hurried away to wage a fearful war. But beyond this unequalled draft upon the loyal men of the country, summoning them to the hazards of battle, there is another unequalled draft upon the loyal property of the country, presenting a combined draft without precedent upon men and upon property. If you would find a parallel to the armies raised, you must go back to the forces marshalled under Napoleon in the indulgence of unbridled ambition. If you would find a parallel to the tax, you must go further back, to that early day of which the Gospel, in its simple narrative, speaks: “And it came to pass in those days that there went out a decree from Cæsar Augustus, that all the world should be taxed.” A similar decree is about to go out from you,—not, indeed, to tax all the world, but to tax a large and generous people: vast, it may be, even for the world. There have been taxes here before; and in other countries there have been taxes as enormous: but there has been no such tax here before; and in no other country has any such tax been levied at once, without the preparation and education of long-continued taxation.
Confiscation and liberation are other War Powers of Congress, incident to the general grant of such powers, which it remains for us to employ. So important are they, that without them I fear all the rest will be in vain. Yes, Sir, in vain do we gather mighty armies, and in vain do we tax our people, unless we are ready to grasp these other means, through which the war can be carried to the homes of the Rebellion: I mean especially the criminal homes of the authors and leaders of all this wickedness. By the confiscation of property, the large Rebel estates, where treason laid its eggs, will be broken up, while by the liberation of slaves the Rebels will be deprived of an invaluable ally, whether in labor or in battle. But I confess frankly that I look with more hope and confidence to liberation than to confiscation. To give freedom is nobler than to take property, and on this occasion it cannot fail to be more efficacious, for in this way the rear-guard of the Rebellion will be changed into the advance-guard of the Union. There is in confiscation, unless when directed against the criminal authors of the Rebellion, a harshness inconsistent with that mercy which it is always a sacred duty to cultivate, and which should be manifest in proportion to our triumphs, “mightiest in the mightiest.” But liberation is not harsh, and it is certain, if properly conducted, to carry with it the smiles of a benignant Providence.
The war began in Slavery, and it can end only with the end of Slavery. It was set in motion and organized by the Slave Oligarchy, and it cannot die except with this accursed Oligarchy. Therefore, for the sake of peace, and to restore the Union, every power should be enlisted by which Slavery, which is the soul of the war, can be reached. Are you in earnest? Then strike at Slavery. Liberation is usually known as a charity; but while none the less a charity, comprehending all other charities, it is now, in the course of events, a necessity of war. Through liberation alone can we obtain that complete triumph, bringing with it assured tranquillity, without which the war will stop merely to break forth anew, and peace will be nothing but an uneasy truce. Among all the powers of Congress incident to our unparalleled condition, there is none so far-reaching, as there is none so beneficent,—there is none so potent to beat down rebellion, as there is none other by which peace can be made truly secure. Powerful and beautiful prerogative! The language of Chatham is not misapplied, when I call it the “master feather of the eagle’s wing.”
PRIZE-MONEY AND ITS POLICY.
Remarks in the Senate, June 30, 1862.
The pending bill, providing that property taken by the Rebels and then retaken under national authority should be restored to the former loyal owner without salvage, was opposed by Mr. Grimes.
Mr. Sumner said:—
I take it that the policy of prize-money is always open to question. It has been handed down from other generations, but I cannot doubt, that, in proportion as nations advance in civilization and refinement, it is more and more drawn into doubt.
Mr. Grimes. I will ask the Senator, whether, under the law as it now exists, our officers and sailors have not certain vested rights? This bill is retrospective, as well as prospective.
Mr. Sumner. But these vested rights, according to existing law, are acquired in war with foreign enemies. And here is the precise point of principle. Certain property of fellow-citizens is taken, not by foreign enemies, but by rebels, and afterwards it is retaken. Several vessels are in this predicament. Even if the recapture were from a foreign enemy, English and American statutes treat it as a case of salvage, and not of prize. But the claim now made involves nothing less than the extension of the ancient rule of war to a new class. I am against such extension. I would have no amplification of such a rule.
I am disposed to go still further, and to reconsider the whole policy of prize-money in any case. Even if not ready for this larger question, the Senate will not hesitate to apply the limitation now proposed. Besides the hardship of prize-money at the expense of our own fellow-citizens, there is the uncivilized character of the whole system, which should make us pause.
The bill was passed,—Yeas 25, Nays 12.
THE RANK OF ADMIRAL.
Remarks in the Senate, on the Bill to establish the Grades of Navy Officers, July 2, 1862.
The bill under consideration was “to establish and equalize the grades of line officers of the United States Navy.” By this bill the rank of Admiral was established in the national navy. Mr. Hale moved to reduce the pay of admirals from five thousand seven hundred and eighteen to five thousand dollars.
Mr. Sumner said:—
I hope the amendment will prevail. For years we have been asked to make admirals. Congress has refused,—partly, perhaps, from motives of economy, and partly, also, from hesitation to create officers with that rank and title.
Now, Sir, I am willing, considering the increase of our navy and the exigency of the public service at this time, to create officers with that rank and title. So doing, we confer honor and consideration,—we bestow what officers, military and naval, naturally covet. Wherever they go, they will be addressed as Admiral; and, with naval men, that is much. Sir, I believe it more than money. But, while bestowing rank, I hesitate to increase emolument largely, particularly at this moment of our history. It costs nothing to confer rank; but it will be most expensive to the Treasury, if we enter upon a new scale of pay. Therefore I follow the Senator from New Hampshire in his proposition to reduce the salary. Create the admirals,—bestow this new title, this consideration, this introduction wherever the admiral goes, this equality, if you please, with the admirals of other nations and other fleets; but do not undertake to vie with those nations in salaries. To me it seems unwise.
The amendment was agreed to.
TESTIMONY OF COLORED PERSONS IN THE COURTS OF THE UNITED STATES.
Speeches in the Senate, on an Amendment to two different Bills, one relating to the Judiciary, and the other to the Competency of Witnesses, July 3 and 15, 1862.
The Senate having under consideration a bill “relating to the Judiciary,” in which provision was made for proceedings “in the courts of the United States,” Mr. Sumner made another attempt to overthrow the rule excluding colored witnesses by the following amendment:—
“And there shall be no exclusion of any witness on account of color.”
This was rejected,—Yeas 14, Nays 21.
At the next stage of the bill, Mr. Sumner said:—
MR. PRESIDENT,—This bill relates to the national judiciary. The Senate is making rules for the courts of the United States, and now by its vote sanctions the rule that a witness who happens to have a color different from ours is incompetent to testify, he cannot be heard in court. The practical effect of such exclusion is, that any outrage by a white man on a colored person, if no other white person is present, must go unpunished; and the Senate of the United States refuses to interfere against this cruelty. I must say, Sir, that I lose my interest in the bill, when it is associated with such wickedness,—for such I must call it. If there is any outrage at this moment in the form of law, and actually within our reach, it is what I now hold up to the indignation of the country and of mankind. It is hard to think that human beings can be placed thus defenceless by Act of Congress,—that masters or overseers, being white, may offer to colored persons any offence, any brutality, and the testimony of the witnesses, merely because they are colored, shall be excluded absolutely. And yet, Sir, that is what the Senate to-day declares.
The Senator from New Hampshire [Mr. Hale] has voted to sustain this cruelty. Other Senators have voted to sustain it. It is their privilege. Each Senator votes, I know, according to his conscience; but, Sir, I call attention to the vote, and remind you of what occurred on another occasion. Formerly, when I moved this proposition, it was opposed on the allegation that it was not pertinent to the bill under consideration. When I moved it, the other day, on what was known as the Confiscation Bill, the other Senator from New Hampshire [Mr. Clark] mildly suggested, that, at a proper occasion, on a proper bill, he would be ready to support it. I know that the motion must have the approbation of that excellent Senator. He is too just and too humane not to be in favor of it. And now, Sir, the time has come. Here is a bill regulating evidence in courts of the United States,—not in courts of the States, but in courts of the United States. The whole subject is directly before you. It is within your province now to decide. Yours the jurisdiction and power. And yet, Sir, you choose to continue the wrong. I shall vote for the bill on its final passage, because in other respects I think it ought to be a law; but I enter my protest against the conclusion of the Senate. It is melancholy, disastrous, discreditable.
Mr. Hale vindicated the vote of the Senate, and insisted that the proper object of attack was the Supreme Court.
Mr. Sumner replied:—
The Senator from New Hampshire severely criticizes the Supreme Court, which he reminds us has decided that the rights of citizenship, being rights that white men are bound to respect, and all the rights which make human life worth anything, are dead to colored persons; and he then proceeds forthwith to sustain a principle every way as bad. He condemns Chief-Justice Taney for declaring that colored persons are not citizens, and then, with marvellous logic, proceeds to say that he will not interfere to overturn the rule by which the testimony of colored persons is excluded from the national courts. Sir, I do not know which is most open to condemnation, the Supreme Court or the Senator. I am against the decision of the Supreme Court. The Senator knows it well. I am not one whit behind him in condemnation of that judgment, which must forever stand forth among the inhumanities of this generation. But permit me to remind the Senator that the rule he sustains is not less inhuman. There is not a word he can launch against the Court that must not rebound upon himself. To me it is unintelligible as painful that the Senator should interfere to save any such inhumanity. I use strong language, but it is only in this way that I can fitly characterize the doctrines of the Supreme Court and of the Senator. The Supreme Court has erred infinitely and wretchedly, but the Senator now errs in the same way.
The Senator is entirely mistaken, when he says that the rule which I seek to overturn proceeds from the Supreme Court. It is no such thing; and if I can have his attention one moment, I can make him understand it. The rule against the testimony of colored persons stands on the local law of the States, and not on any decision of the Supreme Court of the United States. The Court cannot interfere with it one way or the other. Congress alone, when legislating for its own courts, can interfere with it; and I entreat the Senate now, as it is about to legislate for the national courts, to interfere with it. The amendment of the Senator from Connecticut, which I have in my hand, is as follows:—
“That the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in all trials at Common Law in the courts of the United States, in cases where they apply.”
That is, the laws of the several States shall be rules of decision in the United States courts. That is what we declare. I simply propose to add, that those laws shall not be rules of decision in the United States courts, so far as they exclude witnesses on account of color. The Senator from New Hampshire opposes this just, humane, and irresistible proposition; and his argument is, that, instead of reaching the result by legislation, we must overturn the Supreme Court. Sir, permit me to say, his argument is entirely inapplicable, his whole philippic against the Supreme Court is out of place. Whether I agree with him or not, it is plain that this is not the time for it; and I must confess that I like to see things in their proper place. The question now is much more simple, more direct. Why enter upon the ample, illimitable debate which the Senator opens? Why review the Supreme Court and its relations to the country, and whether it shall be overturned, whether it shall be reformed, whether it shall be modified? All this has nothing to do with the question, and the Senator, when he introduced it, simply diverted attention from the business before us. I do not know that he did it purposely. Indeed, I rather suspect the ardor of his nature, which has led him into this strange diversion with its irrelevant amplification.
But the Senator says that the cases in which colored persons are interested arise in the State courts, and not in the United States courts, and that therefore my amendment is entirely inapplicable. The Senator is entirely mistaken again. The United States courts have jurisdiction of crimes without reference to color. They also have civil jurisdiction in other cases which do not depend upon citizenship. The Senator, as a lawyer, knows this well; and yet, deliberately, by vote, and now by speech, he upholds the barbarous rule of exclusion on account of color. Sir, I do not know which was worse, the vote or the speech, although the latter was in harmony with the former. I was astonished at the vote. I am now astonished at the speech, which, pardon me, is as illogical in argument as bad in principle. Most kindly, but most earnestly, do I dissent from it. Sir, I do not wish to take up time, but the subject is of transcendent importance. You will bear with my frankness, if I add, that sanctioning this exclusion can do no honor to Congress. I am sure it must be recorded in judgment against us, and deservedly too. Civilization will blush at the record. God save us!
Mr. Davis, of Kentucky, followed with the remark:—
“I do not think, Mr. President, there was any need for sticking the perpetual, the all-pervading, the everywhere-to-be-found, the ever-in-the-way negro to this bill. I hope and trust that the Senate and the Congress of the United States will be allowed to mature and perfect some few bills, in which the interests and the business of the white man are involved, without having this ever-present negro stuck upon them by the Senator from Massachusetts. If he desires to bring up this matter of the negro in connection with the rules of proceeding in the Federal courts, let him introduce a distinct bill, and not make everything odoriferous of his friend.”
Mr. Sumner then renewed his motion in the form of a proviso, and afterwards the Senate adjourned. The bill was never taken up again. But the same question was soon presented on another bill.
July 15th, the Senate had under consideration a bill concerning the competency of witnesses in courts of the United States, which provided that this should be regulated by “the laws of the State in which the court shall be held.” Mr. Sumner offered his amendment again. It was opposed by Mr. Foster, of Connecticut, who had reported the pending bill. In the course of his remarks he said: “It is competent for every State to fix its own rules for itself, and the independence of each State of every other State requires that they should be protected in that right of making their own laws.”
Mr. Sumner replied:—
Mr. President,—It may be well, as the Senate is called to enact a new national statute, to glance back at an early landmark, and contemplate the principles declared by our fathers. I hold in my hand the Declaration of Independence, with these words at the beginning: “We hold these truths to be self-evident, that all men are created equal,” &c. Now, Sir, the Senator from Connecticut [Mr. Foster], representing the Judiciary Committee, proposes to establish as a rule of evidence in the national courts that men are not equal.
Mr. Foster here interrupted to say that he proposed “no such rule of evidence”; that he simply proposed “to allow the laws of the several States of this Union to operate as rules to control the courts of the United States sitting within those several States, as it regards the competency of witnesses: that is all.”
Mr. Sumner resumed:—
I could not intentionally do the Senator injustice. Nor do I find that I did him injustice; and he will therefore pardon me, if I repeat what I said before,—that, representing the Judiciary Committee, the Senator comes forward, in defiance of the Declaration of Independence, to ingraft into the legislation of the United States the practical principle that all men are not equal. The Senator rises and denies that he is doing any such thing. He simply recognizes local laws in the States. That is all,—nothing else. But pray, Sir, is not this enough? Local laws which defy the Declaration of Independence cannot be recognized without defying the Declaration; nor can the Senator escape responsibility merely by saying that he follows the local laws. Does he not sanction injustice? The case is plain. He asks us to legislate on the competency of witnesses. He proposes to regulate this competency by Act of Congress, where, among other things, we are to provide that in the courts of the United States witnesses shall be incompetent on account of color. The proposition is not made openly, but in the covert words, that the local laws of States shall in all cases prevail in the national courts. The Senator cannot forget these local laws, how instinct with barbarism they are, nor the shame and scandal they bring upon our country and upon civilization itself; and yet he would give them new sanction and effect,—not in the courts of the States, within the local jurisdiction, but in the courts of the United States, under the Constitution of the United States, within the national jurisdiction, where you and I, Sir, are responsible for the barbarism. No matter in what form it is put, no matter how subtly the attempt is concealed, it is the adoption by Congress of an outrageous rule.
Offer any objection you please to the credibility of a witness, show that he is not intelligent, that he is not worthy of belief, that his character is bad, and make all proper deductions from his testimony on this account, but do not say that he is absolutely incompetent, that he cannot be heard in court, that, no matter how intelligent, truthful, or respectable, he cannot be admitted to testify, if he happens to be of another color than ourselves. Such exclusion is cruel to the witness, degrading to courts administering it, and destructive of justice, which seeks evidence from every quarter.
I listened closely to the ingenious argument of the Senator, going along with him in what he claimed for the States and for their courts. He said, each State is entitled, within its own jurisdiction, to have its rules of evidence. Granted. He thought it better to leave every State its own rule on this question. Granted again, Sir, so far as the courts of the States are concerned.
Mr. Foster. Why allow them barbarism?
Mr. Sumner. Because I have no right to interfere with them.
Mr. Foster. That answers the two questions.
Mr. Sumner. There is the mistake of the Senator. He confounds our duties in the two different cases of national courts, where we are responsible, and of State courts, where we have no responsibility and no right to interfere. In his remarks he said: “It is competent for each State to make these rules for itself.” Granted again,—within its own jurisdiction. But he would allow each State its sovereign will on this question. Sir, where I cannot constitutionally interfere to check a barbarism, of course I do not interfere; sorrowfully I allow the sovereign will to prevail. But when a barbarism seeks shelter under the jurisdiction of Congress, when it falls under the direct responsibility of my vote, I cannot be silent.
The Senator will pardon me, if I add, that he erred, when he undertook to transfer the rules of the State courts, without amendment or modification, to the National courts. The State courts have their rules of evidence,—they are beyond our control; but the United States courts are within our control, and the time has come to bring them at last within the pale of civilization. Why, Sir, has the good cause advanced thus far? to what end is it triumphant on this floor, if, in determining rules of evidence in the national courts, we take up and sanction this relic of barbarism?
If the rule is not justly within our reach, pray, Sir, why are we asked to vote on a bill concerning the competency of witnesses, and with a section expressly regulating the whole subject? Sir, I should feel untrue to myself, untrue to the principles I have at heart, and to the people I have the honor to represent, if I allowed a bill like this, with such a title, with such an object, to pass without earnest endeavor to exclude from it all support of the vileness which seeks shelter under its words. Within a few days the Senator has voted for a bill to punish the fraudulent counterfeiting of postage stamps; but suppose the counterfeiter does his work in the presence of colored persons and nobody else, where, under the proposed rule, will the Senator find the evidence required to carry the law into effect? As long as Congress undertakes to legislate criminally, as long as it has courts with a national jurisdiction in the Slave States, it is due to itself, and it is due to justice, that it should furnish the evidence by which such legislation may be made effective, and justice be administered, without a constant act of shame calculated to bring a blush upon the cheeks. I speak plainly, as is my habit, and perhaps with feeling, but I trust that I have said nothing that I ought not to say.
The amendment was rejected,—Yeas 14, Nays 23. The next volume will show how this effort of Mr. Sumner at last prevailed.
PROVISIONAL GOVERNMENTS AND RECONSTRUCTION.
Remarks in the Senate, on a Bill to establish Provisional Governments in certain Cases, July 7, 1862.
This was reported from the Judiciary Committee, by Mr. Harris, of New York, with certain amendments, one of which recognized “the laws and institutions” in a State before the Rebellion. On the latter amendment Mr. Sumner remarked:—
MR. PRESIDENT,—I cannot consent to the amendment. Plainly it is going too far. A government organized by Congress and appointed by the President is to enforce laws and institutions, some of which are abhorrent to civilization. Take, for instance, the Revised Code of North Carolina, which I have before me. Here is a provision which the Governor, under this Act, must enforce. I say must enforce. The amendment is, that there shall be “no interference with the laws and institutions existing in such State at the time its authorities assumed to array the same against the Government of the United States.” Therefore they must be enforced. And now, if you please, listen to one of them.
“Any free person, who shall teach, or attempt to teach, any slave to read or write, the use of figures excepted, or shall give or sell to such slave any book or pamphlet, shall be deemed guilty of a misdemeanor, and upon conviction thereof, if a white man or woman, shall be fined not less than one hundred nor more than two hundred dollars, or imprisoned, and if a free person of color, shall be fined, imprisoned, or whipped, not exceeding thirty-nine nor less than twenty lashes.”
That abomination, Sir, is set forth in the Revised Code of North Carolina, chap. 34, sec. 82. But lest it should fail by the employment of slaves as school-teachers, we have the following prohibition.
“It shall not be lawful for any slave to teach, or attempt to teach, any other slave or free negro to read or write, the use of figures excepted.”[93]
The punishment of slaves for this offence is whipping, repeated for every act. But, Sir, here is another specimen.
“If any person shall wilfully bring into the State, with an intent to circulate, or shall wilfully circulate or publish within the State, or shall aid or abet the bringing into, or the circulation or publication of within, the State, any written or printed pamphlet or paper, whether written or printed in or out of the State, the evident tendency whereof is to cause slaves to become discontented with the bondage in which they are held by their masters and the laws regulating the same, and free negroes to be dissatisfied with their social condition and the denial to them of political privileges, and thereby to excite among the said slaves and free negroes a disposition to make conspiracies, insurrections, or resistance against the peace and quiet of the public, such person so offending shall be deemed guilty of felony, and on conviction thereof shall, for the first offence, be imprisoned not less than one year, and be put in the pillory and whipped, at the discretion of the court, and for the second offence shall suffer death.”[94]
Here is yet another.
“If any free person of color shall preach or exhort in public, or in any manner officiate as a preacher or teacher in any prayer meeting, or other association for worship, where slaves of different families are collected together, he shall be deemed guilty of a misdemeanor, and, on conviction, shall, for each offence, receive not exceeding thirty-nine lashes on his bare back.”[95]
And now one more.
“If any person shall wilfully carry or convey any slave, the property of another, without the consent of the owner or the guardian of the owner, with the intent and for the purpose of enabling such slave to escape out of this State, from the service of his owner, or any one having an interest in such slave, present or future, vested or contingent, legal or equitable, or if any person shall wilfully conceal any slave, the property of another, with such intent and purpose, the person so offending shall suffer death.”[96]
I have read enough, Sir. These passages show you the statutes to be enforced in the name of the National Union, by its constituted authorities, in courts organized by Congress. And behind all these is Slavery itself to be enforced also.
Sir, such an exhibition is more than sufficient. You cannot consent to any such thing. In organizing these governments, all that we can do is to protect life and property, and generally to provide the machinery of administration. Further we cannot go, and protect institutions in themselves an outrage to civilization.
In the debate that ensued Mr. Sumner remarked:—
In this country there is but one “institution,” as all the world knows, and the phrase “and institutions,” when carefully introduced, means only one institution, which I need not name.
Mr. Trumbull united with Mr. Sumner in criticizing the bill.
“I was for it in the Committee; but since I have seen the operation of these laws in the Southern States, and the manner in which persons acting in behalf of the United States undertake to execute them, I have changed my opinion in regard to the propriety of such a clause as this, and I agree with the Senator from Massachusetts. I cannot consent by my vote, and I never will consent by my vote, to give sanction to a law that punishes a man for teaching another to read the word of God.”
The bill was allowed to drop. But this debate had its influence in showing how impossible it was to recognize “institutions” existing in a State before the Rebellion. Slavery and the Black Code were not to obtain license under any such terms. Here was a point in Reconstruction.
TAXES ON KNOWLEDGE.
Remarks in the Senate, on the Duties upon Imported Books and Rags, July 8, 1862.
MR. PRESIDENT,—I ask a moment’s attention to the tax on books, which is raised in this bill from fifteen to twenty per cent. Assuming that this is done to increase the revenue, I have to say, that, if we place reliance on the evidence before us, it will not have such effect.
The annual importation of books during the last four years shows that a duty of ten per cent is more productive than a higher rate. The increased importation is more than compensation for the diminished rate; but here it is with books as with other things.
If there were a tax on the manufacture of books in our country, there might be reason for a corresponding duty; but there is no such tax.
By the experience of the last tariff we are warned. The increase of this duty was disastrous to the book-trade, and I am assured that several booksellers who have imported largely are withdrawing from this branch of business, because the rate of fifteen per cent renders it unprofitable. And yet you propose to raise the rate to twenty per cent.
Nor is there any practical argument founded on protection. There are no interests requiring protection which will be promoted by an increased duty, as appears in last year’s memorial of publishers and importers, praying a reduction to ten per cent, and also in another and later memorial from New York importers, praying for the same reduction, and setting forth that their business seriously suffers from the existing rate.
And now I add, that this increased duty is a tax on knowledge, and as such to be discountenanced and opposed. But I rest my argument on the simple ground, that it will not increase the revenue. If at this exacting moment it would have any such consequence, much as I should regret the necessity, I could not oppose it. But it is easy to show that such will not be the consequence: at least, the statistics point this way. The total value of books imported in 1858, with a duty of eight per cent, amounted to five hundred and thirty thousand dollars: I do not give the odd figures. The total value in 1859, likewise with a duty of eight per cent, was seven hundred and seventy-seven thousand dollars; and in 1860, with the same rate, it was seven hundred and thirty-four thousand. In 1861, the total value, with a duty of fifteen per cent, sank as low as three hundred and forty-six thousand. These figures speak.
I do not err, when I infer from them that the higher duty has been an injury to the revenue, and also to the importer. Therefore it is open to a twofold objection. With a duty of ten per cent the revenue would gain, and the public with the importer would be benefited.
The case is stated in a few words. An increased duty on books will do nothing for the revenue; but it will interfere with a useful business, and at the same time impose a tax on knowledge.
Mr. Sumner moved to reduce the tax from twenty to ten per cent, but, at the suggestion of Mr. Fessenden, Chairman of the Finance Committee, consented to fifteen per cent, which was adopted. The amendment failed between the two Houses.
The bill as it came from the House had a proviso, “That all imported cotton and linen rags for the manufacture of paper shall be free of duty.” Mr. Sumner made an ineffectual effort to prevent this from being struck out. In the course of his remarks, he said:—
Here is another tax on knowledge. On the face it is a tax on rags; but rags are imported to make paper; so that a tax on rags is a tax on paper, and as such is a tax on knowledge.
CONSTITUTIONAL QUORUM OF THE SENATE.
Speech in the Senate, on a Resolution declaring the Constitutional Quorum, July 12, 1862.
According to long-continued usage, a quorum of the Senate was a majority of the whole number of Senators, assuming each State represented by two Senators. After the withdrawal of the Rebel Senators, business was often embarrassed from the failure of what was supposed to be the constitutional quorum. To remove this difficulty, Mr. Sherman, April 11th, introduced the following:—
“Resolved, That a majority of the Senators duly elected and entitled to seats in this body is a constitutional quorum.”
July 12th, Mr. Sumner said:—
MR. PRESIDENT,—What is a quorum depends upon the Constitution; but we approach its consideration with the knowledge that in England, the original home of our institutions, and especially of Parliamentary Law, the question, for a long period anterior to the National Constitution, was fixed by usage. Indeed, usage is authority for the larger part of the English Constitution. But in this case of a quorum the usage is liable to alteration. In his elaborate work on the Law and Practice of Legislative Assemblies, the Parliamentary Law on the subject is thus stated by Mr. Cushing:—
“In the British Parliament, according to the ancient and invariable usage of the two Houses, as evidenced by their rules, three is the number necessary to constitute a quorum of the Lords, and forty a quorum of the Commons. These numbers, respectively, although established by and dependent upon usage merely, and within the power of each House to abrogate or change at any time, have, nevertheless, the force of standing orders; that is, they are equally binding upon every succeeding Parliament until abrogated, and do not require to be specially adopted in order to be in force.”[97]
It will be observed that the quorum of the Commons, numbering six hundred and fifty-four persons, is only forty, and this number appears to have been recognized as long ago as 5th January, 1640. At an earlier day more than sixty was required, and as late as March 18, 1801, an attempt was made in the Commons to revive this ancient rule, but it failed. For a short time in 1833 and 1834 the quorum for private business was twenty.[98]
The quorum of the Lords, numbering four hundred and sixty-five, is only three. A spectator at the law sessions of the Upper House is struck by the appearance of the Lord Chancellor on the woolsack, in wig and gown, listening to arguments, with two lay lords, like two lay figures, on the side benches, merely to constitute a quorum so as to legalize the decision of the Chancellor. The origin of this quorum, having the sanction of unbroken usage, is lost in the night of Antiquity. It is probably founded on the ancient maxim of the Roman Law, Tres faciunt collegium,—“Three make a college,”—the latter word being equivalent, in some respects, to our word corporation.
Thus, according to Parliamentary Law, two things appear: first, the quorum of each House is within the control of the House; secondly, it is now, and always has been, in each House, much smaller than a majority.
With us the quorum, in general terms, is fixed by the Constitution. It is not left to usage, or the control of each House; but it is reasonable to infer that any question on the meaning of the Constitution, arising from generality of language, may be interpreted in the light of Parliamentary Law. Indeed, this is only according to the rule under which all technical words in the Constitution are interpreted. For instance, words known to the Common Law or to the English Chancery are interpreted according to the Common Law or the English Chancery. Mr. Wirt, in his admirable argument on the impeachment of Judge Peck, states the rule in these words:—
“The Constitution secures the trial by jury. Where do you get the meaning of a trial by jury? Certainly not from the Civil or Canon Law, or the Law of Nations. It is peculiar to the Common Law; and to the Common Law, therefore, the Constitution itself refers you for a description and explanation of this high privilege, the trial by jury, and the mode of proceeding in those trials.… I insist, that, the moment that a Court of Common Law or a Court of Equity is established under the authority of the Constitution, its modes of proceeding and its powers of self-protection arise with it, and that the very name by which it is called into being authorizes it to look at once to the English archetypes for its government in these particulars.”[99]
According to this rule, so clearly enunciated, the words “quorum” and “House,” which are derived from English Parliamentary Law, may be explained by that law; so that, in case of doubt, that law is for this purpose embodied in the Constitution. Now the Constitution declares that a majority of each House shall constitute a quorum to do business. The rule, it will be observed, is the same for each House. But the question arises, What is a majority of each House? or rather, putting aside all question with regard to the House of Representatives, which is perfectly free to determine for itself, What is a majority of the Senate?
In fixing the quorum at a majority rather than any smaller number, our Constitution followed the law of business corporations, where a majority always prevails, according to an old maxim of the Common Law,—Ubi major pars est, ibi est totum,—“Where the greater part is, there is the whole.” This rule is so reasonable, that it has been vindicated by an eminent authority as founded on the Law of Nature. Here are the words of the great jurist Savigny:—
“The will of a corporation is not merely the concurring will of all its members, but even that of the greater number. Therefore the will of a majority of all its existing members is to be regarded as being properly invested with the rights of the corporation. This rule is founded on the Law of Nature, inasmuch as, if unanimity were demanded, will and action on the part of a corporation would be quite impossible. It is also confirmed by the Roman Law.”[100]
Thomas Jefferson, a very different person from the German jurist, has also vindicated the rule.
“The Lex majoris partis is founded in Common Law as well as common right. It is the natural law of every assembly of men whose numbers are not fixed by any other law.”[101]
But the question still occurs, What is the major part of the Senate? Is it the major part of the abstract or theoretical Senate, or the major part of the real Senate? In other words, is it the major part of the Senate contemplated by the Constitution, with two Senators from each State, or the major part of the actual Senate, counting only those entitled to vote? At the present moment there is a wide difference between the two cases.
Several clauses of the Constitution are applicable to this question. I group them together.
“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six years.”
“A majority of each House shall constitute a quorum to do business.”
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution.”
“A quorum for the purpose [the election of Vice-President] shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.”
Probably “the whole number of Senators” is equivalent to the term “House.” But what is the “House”?
The Senate de jure consists of two Senators from each State.
The Senate de facto may consist of Senators actually elected and qualified, or of Senators actually elected.
Whether the “House” shall be the Senate de jure or the Senate de facto is now within our discretion. The question has been raised, and the way is open to adopt either interpretation, according to the meaning of the Constitution as seen in the light of Parliamentary Law, and, I add also, of convenience.
According to Parliamentary Law, the whole question is in our hands.
According to convenience, the quorum should be founded on the actual Senate, being the Senators actually elected and qualified.
If ever the argument of convenience was strong, peculiarly strong, it is now, when a wicked rebellion has undertaken to withdraw the Senators of eleven States, thus reducing our numbers. It is not necessary to assert that these States should be no longer counted among our stars. It is enough, if we declare that their vacant chairs shall no longer be counted in our quorum. As the language of the Constitution is drawn into debate, I cannot doubt, that, according to Parliamentary Law, the present question is within the control of the Senate, to be determined by the teachings of reason and convenience, so as to assure the public welfare. Any other interpretation must leave the Senate to all the hazards of disorganization by treason, or, it may be, by indifference. If the Senate declines to exercise this power, it will abandon an essential principle of self-defence.
An extreme case might be put, where, through defection, the actual Senators are reduced to a mere handful. But the rule is not to be tried by any such extreme case, which can occur only when the Government is broken up.
I rest confidently on the double conclusion: first, that the words of the Constitution with regard to the quorum of the Senate, so far as doubtful, are to be interpreted by Parliamentary Law; and, secondly, that, by Parliamentary Law, these words are within the control of the Senate, to be interpreted according to its own ample discretion under the exigency of the occasion.
PROTEST AGAINST FINAL ADJOURNMENT OF CONGRESS.
Remarks in the Senate, on a Resolution for the final Adjournment of the two Houses, July 12, 1862.
July 12th, the question being on the final adjournment for the Session, Mr. Sumner said:—
MR. PRESIDENT,—I do not think, in the present state of the country, the Senate ought to adjourn, and for one I enter my protest against it, and I ask for the yeas and nays that I may make it of record.
It is essential to proper legislation not only that the Senate should vote, but that it should consider measures on which it votes; and the consideration must be in proportion to their importance. Allusion is made to one measure on which the Senate has not voted,—that in charge of my friend the Senator from Ohio [Mr. Wade], the admission of West Virginia as a new State. Perhaps no question of greater importance has ever been presented. It concerns the whole question of Slavery; it concerns the pretension of State Rights; it concerns also the results of this war. Look at it, therefore, in any aspect you please, it is a great question. And yet the idea of Senators anxious to adjourn is, that it is to be hurried forward without any proper discussion.
There is another question, not less important. It is the bill of the Senator from New York [Mr. Harris], constituting Provisional Governments for the Rebel States,—a subject of transcendent importance, and I submit, also, of practical interest at this very moment; for it involves precisely this inquiry, Whether you are to allow a system of military governments or Congressional governments. It is a question between the military and the civil power.
Then we have the Army Bill, which my colleague has in charge. Few matters of greater importance have ever been laid before the Senate. It involves nothing less than the organization in our country of a system of conscription, so well known on the Continent of Europe, but thus far happily unknown to us; and yet, Sir, this great question, also, is to be hurried forward without any adequate discussion.
Then we have Executive business, to which I can only allude in a general way, but of vast moment, which cannot be adequately considered without days, and I might say weeks.
Then we have also the whole Calendar, to which the Senator from Illinois has referred, that ought to occupy us for weeks.
Here are at least five important matters,—West Virginia, the Provisional Governments, the Army Bill, Executive business, and the whole Calendar,—all open to consideration; and yet, Sir, Senators propose to go home,—Senators are weary,—Senators would like to find a retreat, away from these legislative cares. I can enter into that feeling. Sir, I should be glad to be at home. I suppose the gallant soldiers on the James River, on the Chickahominy, would also be glad to be at home. They are not excused, they have not a furlough,—and yet we Senators talk of our furlough.
Now it is known that formerly, when Congress was paid by the day, it never thought of adjourning at this time. One of the most important bills on your statute book bears date the 18th day of September, 1850;[102] and for some years immediately thereafter Congress did not adjourn until late in August. I think I have sat myself close upon September; but when I mentioned this fact the other day, the Senator from Ohio reminded me that then Congress was paid by the day, whereas now it is paid by the year. Has it come to this, that Congress could sit here content when paid by the day, and now that it is paid by the year it leaves its important business to be neglected entirely, or to be hurried forward without that discussion which it ought to receive?
Sir, I hope the Senate will not consent to fix any day of adjournment. I hope it will sit here, proceeding regularly with the business now on its Calendar, and meeting any contingencies which in the present state of the country may arise. A duty is cast upon Congress which ought not to be slighted. It is to see that the Republic receives no detriment. Solemnly now this duty addresses itself to all of us. Let us not neglect it. For the sake of the public business, and for the sake of those responsibilities which from their very uncertainty at this crisis are so vast, I ask the Senate to continue here.
The resolution, which was originally for adjournment on Monday, July 14th, was amended by substituting Wednesday, July 16th, and then, as amended, adopted,—Yeas 29, Nays 10.
July 14th, President Lincoln communicated to Congress the draught of a bill to compensate any State which might abolish Slavery within its limits, the passage of which as presented he earnestly recommended. On motion of Mr. Sumner, the Message with the accompanying draught was referred to the Committee on Finance. Immediately thereafter he offered the following resolution.
“Resolved, That, in order that the two Houses of Congress may have time for the proper consideration of the Message of the President and the accompanying bill for Emancipation in the States, and for the transaction of other public business, the resolution fixing Wednesday, the 16th of July, for adjournment, is hereby rescinded.”
The consideration of the resolution was objected to.
PATRIOTIC UNITY AND EMANCIPATION.
Letter to a Public Meeting at New York, July 14, 1862.
Washington, July 14, 1862.
DEAR SIR,—I welcome and honor your patriotic efforts to arouse the country to a generous, determined, irresistible unity in support of the National Government; but the Senate is still in session, and my post of duty is here. A Senator cannot leave his post, more than a soldier.
But, absent or present, the cause in which the people are to assemble has my God-speed, earnest, devoted, affectionate, and from the heart. What I can do let me do. There is no work I will not undertake, there is nothing I will not renounce, if so I may serve my country.
There must be unity of hands, and of hearts too, that the Republic may be elevated to the sublime idea of a true commonwealth, which we are told “ought to be but as one huge Christian personage, one mighty growth and stature of an honest man, as big and compact in virtue as in body.”[103] Oh, Sir, if my feeble voice could reach my fellow-countrymen, in workshops, streets, fields, and wherever they meet together, if for one moment I could take to my lips that silver trumpet with tones to sound and reverberate throughout the land, I would summon all, forgetting prejudice and turning away from error, to help unite, quicken, and invigorate our common country—most beloved now that it is most imperilled—to a compactness and bigness of virtue in just proportion to its extended dominion, so that it should be as one huge Christian personage, one mighty growth and stature of an honest man, instinct with all the concentration of unity. Thus inspired, the gates of Hell cannot prevail against us.
To this end the cries of faction must be silenced, and the wickedness of sedition, whether in print or public speech, must be suppressed. These are the Northern allies of the Rebellion. An aroused and indignant people, with iron heel, must tread them out forever, as men tread out the serpent so that it can neither hiss nor sting.
With such concord God will be pleased, and He will fight for us. He will give quickness to our armies, so that the hosts of the Rebellion will be broken and scattered as by the thunderbolt; and He will give to our beneficent government that blessed inspiration, better than newly raised levies, by which the Rebellion shall be struck in its single vulnerable part, by which that colossal abomination, its original mainspring and present motive power, shall be overthrown, while the cause of the Union is linked with that divine justice whose weapons are of celestial temper.
God bless our country! and God bless all who now serve it with singleness of heart!
I have the honor to be, dear Sir,
Your faithful servant,
Charles Sumner.
Charles Gould, Esq.,
Secretary of the Select Committee.
HARMONY WITH THE PRESIDENT AND EMANCIPATION.
Speech in the Senate, on the Joint Resolution explanatory of the Act for Confiscation and Liberation, July 16, 1862.
While the bill providing for Confiscation and Liberation was in the hands of the President, and before its signature, it was understood that he objected to it on certain grounds, one of which was that under it real estate was forfeited beyond life. In point of fact, the President had already drawn up a Message stating his objections to its becoming a law.[104] In anticipation of these objections, a joint resolution was adopted, containing the provision, “Nor shall any punishment or proceedings under said Act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.”[105]
Mr. Sumner did not sympathize with the objections, but, in his anxiety to secure the approval of the Act as a step to Emancipation, he did not hesitate to support the joint resolution.
July 16th, he said:—
MR. PRESIDENT,—Our country is in peril. This is much to say, but it must be said, and we must all govern ourselves accordingly. More than ever before, the time has come for an earnest, absolute, controlling patriotism. This is the lesson of the day. In presence of such peril, and under the weight of such duties, there is no pride of opinion which I would not freely sacrifice, nor can I stand on any order of proceeding. I ask no questions, and I make no terms. Show me how an important measure can be secured, which I think vital to the country, and I shall spare no effort to secure it.
Rules are for protection, for defence, and to facilitate business. If in any way they become an impediment, they cease to perform their natural office, and I can easily abandon them, especially when my country may suffer. Therefore, Sir, I am only slightly impressed by the argument that our information with regard to the President is informal. It is enough that a measure we all have at heart as essential to national life may fail to receive his constitutional approval, unless modified in advance by supplementary statute. Anxious for this measure, I think how it may be secured, rather than how the opinions of the President have become known to us.
Of course, Sir, I cannot share the doubts attributed to the President. To me they seem groundless and fallacious. Waiving all question of their accuracy as an interpretation of the Constitution, even in criminal proceedings, I cannot forbear saying that they proceed on the mistaken idea of a procedure by indictment and not by war, subjecting the country to all the constraint of a criminal trial when the exigency requires the ample latitude of war. If soldiers are sent forth to battle, if fields are occupied as camps, and houses are occupied as hospitals, without permission of the owners, it is under the War Powers of Congress, or, in other words, the belligerent rights of this Government. And it is by virtue of these same belligerent rights that the property of an enemy is taken. Now, if he be an enemy, is there in the Constitution any check upon these rights? Whether you choose to take property for life or beyond life, the Constitution is indifferent; for all constitutional limitations are entirely inapplicable to belligerent rights. There are express words ordaining that you must not “abridge the freedom of speech or of the press,” or “infringe the right of the people to keep and bear arms”; nor can you take “life, liberty, or property, without due process of law.” And yet, wherever your armies move, and elsewhere too, you do all these very things in the exercise of acknowledged belligerent rights. As plainly, the right of confiscation, whether for life or beyond life, is also yours.
Unhappily, Sir, our country is engaged in war,—terrible, relentless, unquestionable war,—and if we would not discard success, it must be prosecuted as war, in the full exercise of belligerent rights. If we were dealing with sporadic cases of treason, with simple sedition, or with a mere outbreak, our process would be limited by the Constitution; but with an enemy before us, lashed into fury and led on by “Até hot from Hell,” where is the limit to the powers to be employed? I remember that Burke, in his great effort on Conciliation with America, says: “It looks to me to be narrow and pedantic to apply the ordinary ideas of criminal justice to this great public contest; I do not know the method of drawing up an indictment against an whole people.”[106] But when, on account of a provision in the Constitution obviously intended only for the protection of the citizen, you refuse to take the property of an enemy in open war, then do you substitute the safeguards of criminal justice for war, thus voluntarily weakening your armies and diminishing your power. I am tempted to say, that, in devotion to the form of the Constitution, you sacrifice its substance. I might say, that, in misapplying the text of the Constitution, you sacrifice the Constitution itself.
Pardon me for seeming, even briefly, to argue this question. I do it only because I would not have my vote misunderstood. I shall support the proposition, not because I concur with it, but because its adoption will help secure the approval of the bill that has so much occupied the attention of Congress and the hopes of the country.
Mr. President, I have never, from the beginning, disguised my conviction that the most important part of the bill concerns Emancipation. To save this great part, to secure this transcendent ally, to establish this assurance of victory, and to obtain for my country this lofty crown of prosperity and glory, I willingly abandon all the rest. The navigator is called sometimes to save his ship by casting part of the cargo into the sea.
But whatever the difference between the President and Congress, there are two points on which there is no difference. Blacks are to be employed, and slaves are to be freed. In this legislative proclamation the President and Congress will unite. Together they will deliver it to the country and to the world.
It is an occasion of just congratulation, that the long debates of the session have at last ripened into a measure which I do not hesitate to declare more important than any victory achieved by our arms. Thank God, the new levies will be under an inspiration which cannot fail. It is the idea of Freedom, which, in spite of all discomfiture, past or present, must give new force to the embattled armies of the Republic, making their conflicts her own.
Sir, from this day forward the war will be waged with new hopes and new promises. A new power is enlisted, incalculable in influence, strengthening our armies, weakening the enemy, awakening the sympathies of mankind, and securing the favor of a benevolent God. The infamous Order No. 3, which has been such a scandal to the Republic, is rescinded. The slave everywhere can hope. Beginning to do justice, we shall at last deserve success.
The original bill and the explanatory joint resolution were returned to the Senate together, with the approval of the President, July 17th, being the last day of the session, and just before its close.
UNION OF GOOD CITIZENS FOR A FINAL SETTLEMENT.
Letter to the Republican State Committee, September 9, 1862.
At the Republican State Convention at Worcester, September 10th,[107] Mr. Claflin, Chairman of the State Committee, read the following letter from Mr. Sumner, which, according to the report, was received with great applause.
Boston, September 9, 1862.
MY DEAR SIR,—As a servant of the State, I have always recognized the right of my constituents in State Convention to expect from me such counsels on public affairs as I could offer, and I have accepted with gratitude the invitations with which they have honored me. If now, in these dark days, when danger thickens, I do not take advantage of the opportunity you present, believe me, it is not from indifference, nor is it because our duties at this moment are uncertain.
Eagerly do gallant soldiers (God bless them!) rush to the field of death for the sake of their country. Eagerly do good citizens at home (God bless them!) contribute of their abundance, or it may be of their poverty, to smooth the lot of our gallant soldiers. But there is another duty, hardly less commanding. It is union, without distinction of party, to uphold the Government, and also to uphold those who uphold the Government. Therefore do I recognize the just liberality of the call for our Convention, which is addressed not only to Republicans, but also to “all who support the present National and State Governments and are in favor of the use of all means necessary for the effectual suppression of the Rebellion.” Under such a call there is no patriot citizen of the Commonwealth who may not claim a place.
Is there a patriot citizen who hesitates to support the National Government, beleaguered by a rebel enemy?
Is there a patriot citizen who hesitates to support the State Government, now, under the inspiring activity and genius of John A. Andrew, so efficiently sustaining the National Government?
And is there a patriot citizen who is not for the use of all means necessary for the effectual suppression of the Rebellion?
Were I able to be at the Convention, according to the invitation with which you honor me, gladly would I appeal to all such citizens. This country must be saved; and among the omens of victory I hail confidently that unanimity of sentiment and trust with which all loyal citizens now look to the National Government, determined that nothing of energy or contribution or sacrifice shall be wanting, by which its supremacy may be reëstablished. Another omen is yet needed. It is that the people, forgetting the past, shall ascend to that plane of justice and truth where is the light of candor, and all shall frown indignantly upon the rancors and animosities of party, which even now are so disturbing in their influence, shall silence the senseless prejudices of personal hate, and stifle the falsehoods of calumny, so that here among ourselves there may be unity and concord, giving irresistible strength to our patriotic labors.
Beyond this appeal from heart to heart, I should rejoice to show clearly how to hamstring this Rebellion and to conquer a peace, all of which I am sure can be done. To this single practical purpose all theories, prepossessions, and aims must yield. So absorbing at the present moment is this question, that nothing is practical which does not directly tend to its final settlement. All else is blood-stained vanity. And the citizen soldiers you send forth to battle may justly complain, if you neglect any means by which they may be strengthened. Good Democrats, who have enjoyed the confidence of their party and also public trust,—Daniel S. Dickinson, of New York, and Robert Dale Owen, of Indiana,—bear their generous testimony. So also does Parson Brownlow, of Tennessee, in a letter which I have just read, where he says that the negroes “must be urged in every possible way to crush out this infernal Rebellion.” Butler bore his testimony, when, by virtue of an outstanding order of the Rebel Governor of Louisiana, he organized a regiment of colored persons in the national service. Banks also symbolized the idea, when, overtaking the little slave-girl on her way to Freedom, he lifted her upon the national cannon. In this act—the brightest, most touching, and most suggestive of the whole war, which Art will hereafter rejoice to commemorate—our Massachusetts general gave a lesson to his country. Who can doubt that the country will yet be saved?
I hope you will excuse me to my fellow-citizens of the Convention, and believe me, with much regard,
Very faithfully yours,
Charles Sumner.
To Hon. Wm. Claflin,
Chairman of State Committee.
THE PROCLAMATION OF EMANCIPATION:
ITS POLICY AND NECESSITY AS A WAR MEASURE FOR THE SUPPRESSION OF THE REBELLION.
Speech at Faneuil Hall, October 6, 1862. With Appendix, on the Nomination and Reëlection of Mr. Sumner as Senator.
A patriot’s blood,
Well spent in such a strife, may earn, indeed,
And for a time insure to his loved land,
The sweets of Liberty and Equal Laws.
Cowper, The Task, Book V. 714-717.
I assure you,
He that has once the Flower of the Sun,
The perfect ruby which we call Elixir,
Not only can do that, but by its virtue
Can confer Honor, Love, Respect, Long Life,
Give Safety, Valor,—yea, and Victory,—
To whom he will.
Ben Jonson, The Alchemist, Act II. Sc. 1.
Rendez-les libres,—et plus près que vous de la nature, ils vaudront beaucoup mieux que vous.—Condorcet, Note 109 aux Pensées de Pascal.
When a leak is to be stopped, or a fire extinguished, do not all hands coöperate without distinction of sect or party? Or if I am fallen into a ditch, shall I not suffer a man to help me out, until I have first examined his creed?—Bishop Berkeley, A Word to the Wise, or an Exhortation to the Roman Catholic Clergy of Ireland: Works (London, 1837), p. 360.
May Congress not say that every black man must fight? Did we not see a little of this last war?… Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of Slavery? May they not pronounce all slaves free? And will they not be warranted by that power? This is no ambiguous implication or logical deduction. The paper speaks to the point.—Patrick Henry. Debates in the Virginia Convention on the Adoption of the Federal Constitution: Elliot’s Debates, Vol. III. p. 590.
The natural strength of the country, in point of numbers, appears to me to consist much more in the blacks than in the whites. Could they be incorporated and employed for its defence, it would afford you double security. That they would make good soldiers I have not the least doubt.—Major-General Nathanael Greene, Letter to Governor Rutledge: Johnson’s Life of Greene, Vol. II. p. 274.
The anxiety which prevailed so extensively was restored by the Proclamation of Emancipation, at last put forth by the President, September 22, 1862. Besides enjoining obedience to the Acts of Congress already passed against Slavery, it declared:—
“That, on the first day of January in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.”[108]
The work was completed by the final proclamation of January 1, 1863.[109]
There was an echo to these proclamations throughout the country, and also from the Rebel States. The Richmond Whig said of the first: “It is a dash of the pen to destroy four millions of our property, and is as much as a bid for the slaves to rise in insurrection, with the assurance of aid from the whole military and naval power of the United States.” In another article, it spoke of “the fiends of the new programme.” These feelings, after debate in the Rebel Congress, found vent in the following terms.
“That, in the judgment of Congress, the proclamations of the President of the United States, dated respectively September twenty-second, eighteen hundred and sixty-two, and January first, eighteen hundred and sixty-three, and the other measures of the Government of the United States, and of its authorities, commanders, and forces, designed or tending to emancipate slaves in the Confederate States, or to abduct such slaves, or to incite them to insurrection, or to employ negroes in war against the Confederate States, or to overthrow the institution of African Slavery and bring on a servile war in these States, would, if successful, produce atrocious consequences, and they are inconsistent with the spirit of those usages which in modern warfare prevail among civilized nations; they may, therefore, be properly and lawfully repressed by retaliation.”[110]
The earlier proclamation caused a thrill in Massachusetts. Earnest people, who had longed for it, were rejoiced and comforted. At the invitation of his fellow-citizens, Mr. Sumner consented to address them at Faneuil Hall, in response to the proclamation.
The proceedings at this crowded meeting, which was held at noon, are copied from the newspapers of the day.
The meeting was called to order by George S. Hale, Esq., Chairman of the Ward and City Committee, who submitted the following list of names for the officers of the meeting.
President,—William Claflin, of Newton.
Vice-Presidents,—Francis B. Crowninshield, Alexander H. Bullock, Julius Rockwell, Peleg W. Chandler, Oakes Ames, John Gardner, Lee Claflin, Robert W. Hooper, James M. Barnard, Francis B. Fay, Jacob Sleeper, Edward S. Tobey, Stephen H. Phillips, Waldo Higginson, Samuel May, John Nesmith, William J. Rotch, Eliphalet Trask, Martin Brimmer, Henry I. Bowditch, Gerry W. Cochrane, Charles H. Parker, Charles O. Whitmore, John D. Baldwin, John R. Brewer, John M. S. Williams, James P. Thorndike, Samuel Hall, Artemas Lee, Robert B. Storer, Julius A. Palmer, John L. Emmons, William I. Bowditch, Abel G. Farwell, Alvah Crocker, Otis Norcross, John J. May, Phineas E. Gay, Nathan Cushing, Robert C. Pitman, Alexander H. Twombly, Warren Sawyer, James Adams, Moses Kimball, Theodore Otis, Alvah A. Burrage, David Snow, Edwin Lamson, John Demeritt, John M. Forbes, William Washburn, Arba Maynard, Joseph T. Bailey, Osborn Howes, Daniel Farrar, John Chandler, John Q. A. Griffin, Robert E. Apthorp, William Bellamy, Alexander Wadsworth, Edward Buffinton, Nehemiah Boynton, Phineas J. Stone, William B. Spooner, Frederick Nickerson, P. Emory Aldrich, Abijah W. Farrar, William Pope, Charles C. Barry, Timothy W. Hoxie, Avery Plumer, Ephraim Allen, J. Warren Merrill, Peter B. Brigham, George F. Williams, Pliny Nickerson, John A. Nowell, Arthur W. Tufts, Roland Worthington, John Bertram, Frank B. Fay, J. Ingersoll Bowditch, William Endicott, Jr., Edward Atkinson, Nathaniel C. Nash, Franklin Snow, J. Wingate Thornton, Samuel Johnson, Edward A. Raymond, Albert L. Lincoln, Francis E. Parker, Charles O. Rogers, William Fox Richardson, John G. Webster, Leister M. Clark, Chester Guild, Jr., Estes Howe, William Brigham.
Secretaries,—William S. Robinson, Delano A. Goddard, Stephen N. Stockwell, William W. Clapp, Jr., Hamlin R. Harding, H. Burr Crandall, Henry M. Burt, Ebenezer Nelson, George H. Monroe, Stephen N. Gifford.
On taking the chair, Mr. Claflin was received with great applause. He spoke as follows.
“Ladies and Gentlemen,—None of you can be more disappointed at the present time than myself, that I am called upon to occupy this position.
“At the last moment we were informed that his Excellency the Governor[111] was compelled by the duties of his position, and his desire ever to do for the interests of those brave men who have gone forth for our defence, to leave the State, and to leave us to-day in your hands. [Applause.]
“Under these circumstances, and at the last moment, by the desire of the Committee of Arrangements, I consented to occupy this position; but you will, of course, excuse me from making any remarks on this occasion. My heart is in the cause. This is a great era, and this is the time when every man should come up to the work and fight for this nation, doing everything which he can, whether by his purse or his sword, to sustain the Government. [Cheers.]
“Thanking you for the honor you have conferred upon me, I now await any motion which may be made.”
Resolutions sustaining Emancipation were then read by Charles W. Slack, and, amidst cries of “Good!” and great applause, were adopted.
The President then said:—
“I now introduce to you Massachusetts’—ay, Boston’s—honored son. I need not praise him, I need not eulogize him; but I will simply say, it is Charles Sumner.”
The enthusiasm that followed Senator Sumner’s stepping on the platform was not surpassed by anything that has been seen in the Hall since Senator Webster took the same place on his return from Washington years ago. The air below was dark with waving hats, and along the galleries white with fluttering kerchiefs. When the applause subsided, a colored man cried out, “God bless Charles Sumner!” in an earnest, trembling, “tearful” voice, and the applause was renewed.
The meeting is described as “of much enthusiasm on the part of the overflowing audience that gathered and tried to gather within the ancient walls.”
A few sentences from the London Morning Star will show how this effort was recognized at a distance.
“The Massachusetts Senator has lately had a meeting with his constituents. Fragments and summaries of his speech at Faneuil Hall have found their way into most English newspapers. Let the sympathizers with the South produce, if they can, from their side of Mason and Dixon’s line, any utterance to compare with it in all the qualities that should commend human speech to human audience.…
“This representative of a powerful community addresses to his fellow-citizens considerations upon the conduct of a war in which they and he are more deeply interested than any English constituency has been in any war which England has waged since the days of Cromwell. It is such a speech as Hampden might have spoken in Buckinghamshire, or Pym in the Guildhall. It treats both of principles and policy,—of the means of success, and of the ends which can alone sanctify the struggle or glorify success. It breathes throughout the spirit of justice and of freedom.…
“Throughout his public life, Mr. Sumner has held the same doctrines, expressed the same spirit.… He is the leader of a party, as well as the representative of the first New England State, and Chairman of the Foreign Affairs Committee of Congress. Too advanced a thinker and too pure a politician for office in a Cabinet undecided on the Slavery Question, he has pioneered its way and shaped its conclusions. Is he not a man whose name should check the blustering apologists of Slavery and Secession?… The Rebellion is just such a blow at the Union as Preston Brooks struck at Charles Sumner; and yet there are English hands and voices to applaud the deed, as worthy heroes of patriotism and civilization.”
In urging Emancipation, Mr. Sumner always felt, that, besides sustaining the cause of justice, he was helping our country with foreign nations.