APPENDIX.
This speech was made at a crisis in our foreign relations when they were watched with more than the wonted anxiety, which began with the hasty concession of belligerent rights, as early as May 13, 1861. Among painful incidents may be mentioned the affair of the Trent, with the attendant menace, the escape of the Florida, and then of the Alabama, the damage to our commerce by these British vessels, the report of other vessels building for the Rebels, the swarm of British blockade-runners with arms and powerful cannon, adverse speeches of British statesmen, offensive articles of the British press, and movements for the recognition of the Rebels as an independent power.
As early as March 4, 1861, Mr. Gregory gave notice in the House of Commons that on an early day he would call the attention of her Majesty’s Government to the expediency of a prompt recognition of the Southern Confederacy of America. April 16, Mr. Gregory renewed his notice, and added a call for papers. This motion was afterward deferred from April 30 to May 13, and on May 16 until June 7, when it was finally postponed sine die. After that frequent debates occurred in both Houses of Parliament, involving the course of England to the United States. As late as June 30, 1863, in the summer before Mr. Sumner’s speech, a long debate was started in the House of Commons by Mr. Roebuck, on presenting a petition praying the House to enter into negotiations with the great powers of Europe with the object of recognizing the independence of the Confederate States. To all these things was now superadded the open construction at Birkenhead of two powerful iron-clad war-vessels, known as the Rebel rams.
The country was alarmed, for the contribution of these powerful vessels to the Rebel navy was felt to be an open participation in the Rebellion. Foreign war seemed to menace. Mr. Sumner, in private correspondence with England during the summer, did not hesitate to say, that, in his judgment, the sailing of these Rebel rams from an English port, after the ample notice given, would be equivalent to a declaration of war by England, not unlike the seizure of the Spanish galleons or the bombardment of Copenhagen. Our diplomatic correspondence shows a similar sentiment in important official quarters. July 11, Mr. Adams, our minister at London, after setting forth “a systematic plan of warfare upon the people of the United States carried on from the port of Liverpool, as well as in less degree from other ports in the kingdom,” called the attention of Earl Russell to “the construction and equipment of a steam vessel of war of the most formidable kind now known,” and intimated that such a proceeding would “be regarded by the Government and people of the United States with the greatest alarm, as virtually tantamount to a participation in the war by the people of Great Britain.”[161] At different times he transmitted additional papers, showing the character of these vessels. Meanwhile one iron-clad ram, being launched, received her engines, and was engaged in receiving her coal, ready to depart, when, September 4, Mr. Adams, transmitting further testimony, begged permission to record, in the name of his Government, “this last solemn protest against the commission of such an act of hostility against a friendly nation.”[162] On the same day he received a communication from Earl Russell, bearing date September 1, where, after setting forth the alleged insufficiency of the testimony against the vessels, he says: “Her Majesty’s Government are advised that they cannot interfere in any way with these vessels.”[163] The next day Mr. Adams replied: “I trust I need not express how profound is my regret at the conclusion to which her Majesty’s Government have arrived.… It would be superfluous in me to point out to your Lordship that this is war. No matter what may be the theory adopted of neutrality in a struggle, when this process is carried on, in the manner indicated, from a territory and with the aid of the subjects of a third party, that third party, to all intents and purposes, ceases to be neutral. Neither is it necessary to show that any government which suffers it to be done fails in enforcing the essential conditions of international amity towards the country against whom the hostility is directed.”[164] On the very day of this reply, Mr. Seward, at Washington, addressed Mr. Adams as follows: “Can the British Government suppose for a moment that such an assault as is thus meditated can be made upon us by British built, armed, and manned vessels, without at once arousing the whole nation and making a retaliatory war inevitable?… For the interest of both countries, and of civilization, I hope they will not let a blow fall from under their hands that will render peace impossible.”[165] Mr. Beaman, in his essay on the Alabama Claims, after examining this correspondence, says, it “shows, that, if these rams had been allowed to escape, peace between Great Britain and the United States would have been no longer possible.”[166]
It is easy to see that the two countries were on the verge of war. Happily, this was avoided by a tardy act, made known to Mr. Adams by a note, under date of September 8: “Lord Russell presents his compliments to Mr. Adams, and has the honor to inform him that instructions have been issued which will prevent the departure of the two iron-clad vessels from Liverpool.”[167] The Rebel rams were stopped.
Meanwhile Mr. Sumner had accepted an invitation to speak in New York on our foreign relations, at a time to be fixed by himself. Watching the course of events, and seeing clearly the alternative that presented itself to Mr. Adams and Mr. Seward, he wrote at the close of August, fixing September 10th for his speech; and here his purpose was twofold. Anxious to arrest the fatal tendency, he was not without hope that he might obtain a hearing in England, especially from the Cabinet, to most of whom he was personally known; but, if unsuccessful in this last frank effort for peace, then he trusted that his speech would be a vindication of his country on the issue forced by England, and an appeal to the moral sentiments of the civilized world. On this account he dwelt especially on Slavery, and the impossibility in a civilized age of recognizing a new power openly proclaiming this Barbarism as its corner-stone.
The reception of this speech at home was cordial and sympathetic; in England it was the reverse, although there were friendly exceptions. A few extracts from the American press will show the unison with Mr. Sumner, which becomes important in illustrating his position, and also the divergence of sentiment in the two countries.
The New York press was outspoken.
The Herald said:—
“The very voluminous speech of Mr. Senator Sumner at the Cooper Institute, the other evening, in two or three points is a remarkable production. His exposure and denunciations of the hypocritical pleadings and false pretences of the British Government, in justification of its sneaking and perfidious neutrality in this war, are well administered, and, considering the rapidly dissolving Davis Confederacy, these views of the learned Senator at this time can hardly fail to make a decided sensation, not only upon the public mind of England, but upon the rhinoceros hides of the British Cabinet.…
“But the whole of this exhaustive and exhausting discourse of the inexhaustible Senator is spoiled by his venomous and rabid denunciations of African Slavery. In view of this peculiar Southern institution he becomes as fierce and remorseless as a vicious bull, when a piece of red flannel is flaunted before his eyes.”
The Times said:—
“We give up one half of the entire surface of to-day’s issue of the Times to the important speech upon our Foreign Relations delivered by Senator Sumner in this city last night. The subject at the present moment is one of such deep public interest, and of such overshadowing national importance, that we believe we cannot do a greater service than by giving in full the views of one who, by his official position as Chairman of the Senate Committee on Foreign Affairs, by his relations with some of the foremost publicists of England and France, and by his intimate knowledge of the whole subject, is capable of speaking with intelligence, if not with authority.
“We can give no analysis or estimate of the discourse at this moment, as it was a late hour of the night before he concluded its delivery; but every intelligent citizen will doubtless give due study to its views and statements, which, we need not say, are set forth in a style highly ornate, yet lucid, and distinguished by all the characteristics of a professed orator.”
The Evening Post said:—
“It is a very important subject, treated by him with great ability and knowledge, and in a manner which must leave little to be added by the diligence of others. It was listened to with profound attention and frequent expressions of interest and approbation by one of the most closely packed audiences which the hall at Cooper Institute ever contained.”
Horace Greeley, in a contribution to the Independent, said:—
“Mr. Sumner’s speech is not, therefore, a mere rehearsal and arraignment of national wrongs already endured. It is a protest and a warning against those which are imminently threatened. In showing how deeply, flagrantly, France and England have already sinned against us, he admonishes them against persistence in the evil course on which they have entered, against aggravating beyond endurance the indignities and outrages they have already heaped upon us.… Mr. Sumner’s is the authentic voice, not of the mob, but of the people. He utters the sentiments of the conscientious, the intelligent, the peace-loving. His inoffensive protest against the wrongs to which we have been subjected is utterly devoid of swagger or menace. It is a simple, but most cogent demonstration, by the application thereto of the established principles of International Law, of the systematic injustice to which we as a people have been subjected. A miracle of historical and statesmanlike erudition, his address is severe without being harsh,—an indictment judicial in its calmness, its candor, its resistless cogency.”
The Boston Journal said:—
“We trust no one will be deterred by its length from reading Mr. Sumner’s speech on our Foreign Relations; and we are sure that no one will be, who fairly enters upon the subject.… The speech is the most able and elaborate ever delivered by Mr. Sumner, and will be read with great interest abroad as well as in this country. Let us hope that it will help to open the eyes of the people of England and France to the treachery of their rulers to the progress of civilization and the spirit of the age.”
Then, in another article, the same journal said:—
“The recent speech of Mr. Sumner meets with the warmest expressions of commendation from all quarters, excepting, of course, the journals which are wedded to the interests of Slavery.… The speech was, in fact, timely, and, while it was designed primarily to communicate facts of the gravest interest to the people of the loyal States, it will have the secondary and not less important effect of making an impression upon the Cabinets of England and France. The fairness, candor, earnestness, and ability with which great questions of international rights are discussed by a statesman so well known abroad and so much respected as Mr. Sumner must secure for the speech an attentive perusal by those who shape public opinion in the Old World.”
A correspondent of the Boston Journal, calling himself “An European Democrat,” wrote:—
“The speech of Senator Sumner at the Cooper Institute will produce a startling effect in Europe. It may safely be asserted that the opinions of that gentleman upon international politics are received with greater favor in England and France than those of perhaps any other American statesman. He is regarded as most liberal and cosmopolitan in his views; his acquaintance with leading public men in both countries is known to be alike extended and intimate; and such declarations, therefore, as those to which he gave utterance last Thursday evening will necessarily have extraordinary weight in political and commercial circles.”
The Transcript, of Boston, said:—
“The great speech of Senator Sumner upon the Foreign Relations of the United States will command the attention of all intelligent men in Europe and America. It is a thorough and exhaustive discussion of English and French diplomacy, so far as either bears upon the present war. The effect of the complete exposition of the policy of Great Britain with regard to Slavery since 1807, proving, by clear and irrefragable historical instances, the apostasy of the existing ministry to the high principles so long maintained, must be great among all reflective Englishmen.… Mr. Sumner’s comprehensive views of International Law, the extensive learning with which he enriches the discussion of it, his convincing logic and kindling eloquence, together with the results he reaches, make this address one of great importance, and cannot but exert the most beneficial influence in this country and in Europe.”
The Independent, of New York, in a leading article entitled “Sumner and Burke,” presented an elaborate parallel between the recent speech and that against Warren Hastings.
“The trial of Hastings was really a trial of England herself. So Burke evidently felt it. The bill of charges and the speech upon them was more of an appeal against the rulers of England than the despot of India.… As he arraigned England against herself, so does Sumner. As he sought to flatter her to the right by appeals to her highest professions and practices against the swift current of her ruling passions and purposes, so does Sumner. As he failed in his attempt, so, we fear, will Sumner.… Grander is his position, as well as his appeal, than those of Burke. He stood before a House of British nobles: Sumner stands before the Congress of Nations. Burke impeached the conduct of a satrap: Sumner the heads of powerful nations. Burke denounced him in the name of justice and law outraged by his abuse of subject provinces: Sumner denounces England in the interests of outraged internationality and humanity, for her conduct toward a free and equal nation engaged in casting out the devils that Britain’s lust of gold and power had forced upon her in the days of her helplessness. He has constrained the haughty powers to appear at the bar of the Nations. The world will hear his plea, and give him the verdict.”
Zion’s Herald, of Boston, an able religious journal, said:—
“This speech is not hostile in its tone, unless our transatlantic friends see fit to make it so. It is a grand effort in behalf of those principles which are to underlie our renovated nationality; it is a noble assertion of our rights against wrongs which are emphatically condemned by the best minds of England and France themselves. If our sister nations will heed this appeal, and cease to give the support hitherto accorded to our foes, it is not too late for them to gain thereby the friendship of our people and the praise of mankind; but if any European power should now directly espouse the cause of the Rebellion, the responsibility of war will rest with them and not with us; and even if they continue to grant the Rebels their sympathy and moral support, the severe words of Mr. Sumner will be but a faint expression of the infamy to which an indignant posterity will consign them.”
The New York correspondent of The Congregationalist, at Boston, wrote:—
“The whole country owes Mr. Sumner a debt of gratitude for this timely, thorough, and weighty exposition of our Foreign Relations. Its facts and arguments must produce a strong impression upon the popular mind in England; and every American who has friends abroad should hasten to put in circulation in Great Britain as many copies of the speech as he can command. Its tone, at once dignified, firm, and conciliatory, will help our cause wherever it is read, while it cannot fail to ally to us all who really value truth and honor between nations, and who abhor Slavery and its abettors.”
Numerous letters, in harmony with the press of the country, attested the extent to which Mr. Sumner was sustained, being spontaneous testimony to the prevailing sentiment. Written as they were for the purpose of sympathy and encouragement, they show the general conscience and intelligence. Prompted by the speech, and relating exclusively to it, they may be considered among its incidents. The warm appreciation of Mr. Sumner’s service was less important than the aspiration for country and for mankind which they disclosed.
Mr. Seward wrote from the Department of State:—
“I have read your address on Foreign Relations without once stopping.
“You have performed a very important public service in a most able manner, and in a conjuncture when I hope that it will be useful abroad and at home.…
“You are on the right track. Rouse the nationality of the American people. It is an instinct upon which you can always rely, even when the conscience that ought never to slumber is drugged to death.”
Mr. Chase wrote from the Treasury Department:—
“In spite of finest print almost illegible, I have read your great speech from beginning to end. It is a noble effort, quite worthy of you. It exhausts the whole subject, leaving nothing even for a gleaner. I shall await with curiosity, not unmixed with anxiety, the rebound from Europe.”
Hon. Thomas Corwin, Minister Plenipotentiary in Mexico, wrote:—
“I cannot withhold my mite of praise for the truly masterly manner and matter of the whole pamphlet. Your country, Europe, all Christendom, and Heathendom too, are your debtors.”
Hon. Christopher Robinson, Minister Plenipotentiary in Peru, wrote:—
“I have read it with great attention, and with the highest pleasure, for the principles it announces, the facts it narrates, and the firm and manly discussion of them. As an explanation of the great principles of International Law applicable to the nefarious Rebellion, it will open the eyes of the American people to the important fact, that, in all its disguises, English and French policy has wilfully ignored the principles of justice and liberty which the Government of the United States are struggling to maintain.”
Hon. Horatio J. Perry, Secretary of Legation at Madrid, wrote:—
“Your noble effort was well timed. I have had portions of it reproduced in the Spanish press with the best effect. Another part will reappear here in a more durable form, which I shall take pains to send you.
“These admonitions of yours to the European powers have always been of the highest possible service. Whatever necessity there may have been (and there has been necessity) for our diplomatic representatives to act with consummate prudence in our direct intercourse with the courts hostile to us, it was no less necessary that the voice from home, the utterances of our Houses of Congress, of our leading Senators, should be bold and unsubdued,—confidence in ourselves and in our cause, above all, the consciousness of right, and the evidence that we were not afraid.”
Professor Charles D. Cleveland, Consul at Cardiff, wrote from his consulate:—
“I need hardly say with what pleasure I read your recent speech at New York. Though Earl Russell did not like some things in it, it evidently did him much good. I think I saw clearly that he felt the force of your arguments; for, if you will notice, it was not till after your speech had reached this country, and after quotations were made from it in papers friendly to us, that the more decided orders were given to stop the Rebel rams in the Mersey.”
The latter statement is confirmed by a despatch of Mr. Adams to Mr. Seward, dated October 16, where he says: “The Government has, within the past week, adopted measures of a much more positive character than heretofore to stop the steam-rams.”[168]
Hon. T. O. Howe, Senator of the United States, wrote from Wisconsin:—
“Stopping here, where I am to speak this evening, I cannot refrain from telling you that I approve it. How much I approve it I am utterly unable to tell you.
“Such conciseness of statement, such fulness of research, such wealth of illustration, such iron logic, heated, but unmalleable, I really do not think are to be found in any other oration, ancient or modern.
“To me it seems bursting with new and most inspiring ideas. But even when you deal with ideas which are not new, but old and familiar, you present them in words so marvellously chosen that they are themselves giant forces.…
“No single man has ever so grandly struggled against the barbaric tendencies of a frightfully debauched generation. I cannot certainly foresee the future; you may be worsted in this encounter; but I know the world will be the better for it.”
Hon. Henry B. Anthony, Senator of the United States, wrote from Providence:—
“I suppose you are tired of compliments about your great speech. Everybody says it is one of the best things that even you have done. It must have a large and beneficial effect, not only here, but in Europe, where your reputation will secure for it the consideration of those who control public affairs and mould public opinion.”
Hon. Samuel S. Blair, a Representative in Congress from Pennsylvania, wrote:—
“I have just read your New York speech on our Foreign Relations, and most cordially thank you for a statement of our cause which ought to give us the verdict of the civilized world.”
Hon. Joshua R. Giddings, for so many years eminent as Antislavery champion in Congress, and then Consul-General at Montreal, wrote:—
“I have just read your lecture at Cooper Institute. That production excites in my heart the deepest gratitude and the highest pleasure.”
Hon. Simon Cameron, who had recently returned from Russia, where he had been Minister, wrote:—
“It is a masterly production of a master mind, and if you had never made a single mental effort before, or if you should cease from this moment to enjoy the power of speech, it would stand as a monument unrivalled among the many great productions of American and British statesmen. It is unanswerable. Its influence, like all great ideas founded on truth, may be comparatively slow, but it is already acting over the world, and in a brief period it will be so potent that men and nations will be ashamed to avow a belief in any other code of morals.”
Rev. William H. Furness, the accomplished Unitarian preacher of Philadelphia, wrote:—
“I have no words to express my sense of the large familiarity with human affairs, and of the conscientious fidelity which it shows. If you had done nothing else for the past year but prepare that, I should hold you to be a miracle of work. It is impossible it should not tell. It indicates a statesmanship fitting the grandeur of our unequalled cause.”
Dr. Henry I. Bowditch, of Boston, eminent in the medical profession and as an Abolitionist, wrote:—
“Allow me to express to you my most hearty thanks for your noble, and, as it seems to me, unanswerable, speech at New York. It is truly statesmanlike, and I regard it in that light as one that will last longer and have more effect than any delivered by any one in this country since the war began. It must have a wide influence in Europe. I thank you, therefore, most heartily for it. It will aid mightily public sentiment in England, and tend to force the Government of that country, for consistency’s sake, at least, to deal more fairly.”
Parker Pillsbury, the earnest Abolitionist, wrote from Concord, New Hampshire:—
“When a nation is expressing its admiring gratitude for your recent masterly oration on our Foreign Relations, what place or what need for my feeble utterance remains? And all the nations will thank you, as they shall read, in present and coming time, this chapter in the new political dispensation. It is a scripture for the ages.”
Hon. Amasa Walker, formerly a Representative in Congress, a Vice-President of the American Peace Society, devoted to the cause of peace, and a writer on political economy and finance, wrote:—
“It is the grandest thing you have yet done, if I am qualified to judge. I think it cannot fail to exert a great influence at home and abroad. I am quite anxious to find out how it is received in England, and am much mistaken, if it does not produce a great impression.
“The friends of our Government will be greatly delighted at it, our enemies greatly annoyed by it.
“I have the impression that there is no speech of any American statesman, that has ever been printed, that will secure such a lasting reputation, and be so often referred to in the future, as this.”
Hon. George R. Russell, of various experience, who had recently returned from Europe, wrote:—
“I have often thought of writing you about your speech on our Foreign Relations, which I read with much attention, and decided that it was the best that could be said. I met a friend of ours a few evenings since, and he told me that he had said to you that you made a great mistake in assailing England as you had done. I met him with the rejoinder, that you had hit the nail on the head, that the proofs of change we see daily are in consequence of your attacks, and that, instead of upbraiding you, we owed you our heartfelt thanks for the good you had done.”
Brigadier-General Saxton, of the United States army, wrote from his station at Beaufort, South Carolina:—
“I can hardly express to you the intense satisfaction and delight with which I read your great oration delivered in New York. In my humble opinion you have rendered a great service to our country and to humanity. The words of truth and wisdom which you have spoken cannot fail to command the attention and respect of the statesmen of England as well as of this country.”
Captain George Ward Nichols, of the United States army, wrote from his station at Milwaukee:—
“I hardly know what to say of this eloquent exposition, so full of righteous indignation, terrible denunciation, exhaustive research, unanswerable argument,—so abundant, so powerful, and so eloquent in the cause of humanity. It seems to me like a timepiece, which, with unfailing faith, I consult to mark the hour in a stormy day, unmindful of the wondrous art and wit which combine this perfect whole. I thank you more than I can say for this noble speech. It is already a part of the history of this momentous time. It is as much a fact as is Gettysburg or Vicksburg.”
George Baty Blake, Esq., a banker of Boston, wrote:—
“I have read attentively your speech made in New York, and, let me say, I think it exactly suited to the occasion; and if it finds circulation in Great Britain, it cannot fail to do us much good in our foreign relations. Plain speech with John Bull, and to the point frankly, is what always proves most effective with him, in my experience.”
The late James A. Dix, editor of the Boston Journal, declared his sympathies:—
“I cannot resist the temptation to express the pleasure which the perusal of your speech on our Foreign Relations has afforded me. I do not think it extravagant to say that it is the ablest speech ever delivered in this country. Certainly it is the ablest of any with which it could appropriately be compared. In the number, value, interest, and importance of its historical facts and precedents, in the apt use of materials derived from laborious research, and in the lucid treatment of the topics discussed, it is unsurpassed.”
Major B. Perley Poore, for a long period connected with the press, wrote from his country home:—
“If human gratitude be among the number of our national virtues, the highest honors should contribute to reward you for your address on Foreign Relations, so replete with patriotism, learning, and practical knowledge, knowledge of public law and the practice of nations, a thorough acquaintance with civil government and the great question of Freedom which underlies and overtops everything else. I have read it twice in the small type of the Journal.”
Pliny Miles, the writer on Postal Affairs, wrote from London to President Lincoln, who forwarded the letter to Mr. Sumner:—
“Mr. Sumner’s late speech in New York has arrived here in the journals, and is attracting a great deal of attention. Quotations and extracts are made from it in the leading liberal papers; but really the whole speech ought to be printed here, and circulated in pamphlet form. If sent to all the members of both Houses of Parliament and to the press, I think it would do great good.”
Daniel R. Goodloe, for a long time connected with the press, then of Washington and afterwards of North Carolina, wrote:—
“I regard Lord Russell’s speech at Blairgowrie as a reply to yours; and the country is indebted to you for the important concessions he makes, and for the greatly modified tone in which he speaks of our affairs.”
Hon. A. C. Barstow, formerly Mayor of Providence, wrote:—
“I returned from Washington this morning. Have read your speech with great satisfaction. I think you have touched the public pulse more widely than ever before.”
The speech had a different reception in England, being criticized by the press, and by Earl Russell in a public speech.
The New York correspondent of the London Standard called Mr. Sumner “the mouthpiece of the President,” and said that the speech “had been carefully examined by the President, and was analyzed by the confidential members of the Cabinet, before being let off to the public in this great city.” This was a mistake. Neither the President nor any of his Cabinet had seen a line of the speech.
Its delivery was reported by the London Times of September 22d, in a telegraphic despatch from Greencastle, in Ireland:—
“He denounced the conduct of the British Government in permitting the building of war steamers in British ports for the Confederates and recognizing on the part of the South any belligerent rights upon the ocean. He disbelieved that either France or England would intervene in favor of a state that based itself upon Negro Slavery, and asserted that all intervention in the internal affairs of another nation was contrary to law and reason, unless such intervention were obviously on the side of human rights.”
The Times followed with an elaborate leader, undertaking to correct statements of law and fact, dwelling especially on the allegation, that, without the concession of belligerent rights, the supply of munitions of war to rebels would have been a violation of English law. Here Mr. Sumner had the authority of the English Law Lords in Parliament, openly declaring that without such concession the building of a Rebel ship in England would have been under the penalties of piracy, and it is difficult to see why a corresponding penalty would not have followed the supply of munitions of war. In each case the article is supplied for offence against a friendly power. Sir George Cornewall Lewis, remarkable for learning and good sense, has said: “The law of England recognizes the principle of protecting a foreign government by its own municipal regulations”[169]; and he refers to the trials for libels on foreign sovereigns, and also to the proceedings in 1858 against Simon Bernard, the Frenchman, indicted for a plot to assassinate the Emperor Louis Napoleon, in supplying the grenades used by Orsini in his attempt. In the latter case, Lord Chief Justice Campbell said to the jury: “If you believe that he, as there is strong evidence to show, being acquainted with Allsop’s views, and knowing that Allsop had got these grenades, assisted in having them, transported to Brussels,—if you believe that he bought in this country the materials for making the fulminating powder with which these grenades were charged,—if you believe, that, living in this country, and owing a temporary allegiance to the sovereign of this country, he sent over the revolvers with the view that they should be used in the plot against the Emperor of the French, … it will be a fair inference, I think, to draw, that he had a guilty knowledge of that plot.”[170] Though this judgment was in the case of a conspiracy to take the life of a foreign sovereign, it is not easy to see why the same principle is not applicable to a conspiracy against a friendly power. To this case may be added the authority of Lord Lyndhurst, who laid it down in debate, with the concurrence of other Law Lords, that a conspiracy in the United Kingdom, either by native subjects or aliens, to do any act, either at home or abroad, tending to embroil the Government with that of any foreign country, is a misdemeanor.[171] Is a rebellion without belligerent rights different from a conspiracy? Its nature was changed by the Queen’s Proclamation, which not only helped the Rebels, but created a new set of customers.
The character of the leader in the Times appears in its conclusion:—
“We believe our readers have by this time had enough of the logic of Mr. Sumner. It is based neither on law nor on fact, but upon his own sympathies and antipathies, which he is pleased to assume must also be ours, on the supposition, which we do not admit, that the North are obviously in the right, and on the inference, which we refuse to draw, that, even if the North are in the right, we are bound to violate the laws of neutrality in order to assist them.”
The Daily News, of London, in its first notice, said:—
“He spoke under the impression that the English Government was about to permit the Confederate iron-clads to leave this country, and he interpreted their previous policy by this supposed breach of neutrality. Every candid man will make allowance for words spoken under provocation, and distinguish them from the utterances of settled malevolence, such as we were accustomed to hear from the American statesmen now at Richmond, and still hear from their allies in the Northern States.”
In a second article, the same journal criticized the speech at length, saying:—
“It is a strange delusion. It makes one wonder whether it is still possible that a republican legislator, now blinded by panic and perplexed by jealousy, should even yet recover his sense and temper, and see the case as others see it.… Instead of using his influence, as the friend of many Englishmen, to bring the two peoples to a clear understanding, and the calm temper which arises out of it, he has nourished and propagated a delusion, and has applied all his powers of influence and eloquence to raise and kindle the passions of his countrymen against a nation which, if not accustomed to flatter, is capable of a sound and durable friendship with a people exhibiting such qualities as the citizens of the Free States are manifesting now. The American people have nothing to fear from us, while they treat us justly. We believe that Mr. Sumner knows this as well as we do, however he may be for the hour beguiled into passion and error.”
The Scotsman, of Edinburgh, said:—
“The splendid oration which he delivered at New York on the 10th inst., though full of a strange injustice towards ourselves, ought not to lessen our love for the man, and will increase our admiration of the orator and philanthropist; but, if there was any idea that Mr. Sumner could reason clearly as well as feel rightly and speak eloquently, that idea will be dissipated. All the multitude of eloquent and burning words which he pours forth against Slavery will here find ready echo; and even when he enters on accusations against this country, as having ‘intermeddled on the side of Slavery,’ it will be felt that he speaks in the spirit, not of a mean and jealous enemy, but of a high-minded, though mistaken friend. But no non-American man can fail to perceive that there is a grand mistake lying at the root of all the complaints he makes against us: he would have Great Britain in her national capacity to deal with American affairs according to moral sentiments as distinguished from political rules, and he condemns her for doing what he did himself and is doing still.… He tries, indeed, to make a difference between the hypothetical Confederate States and all other Slave States, including the late United States. They will, he says, form a ‘new’ Slave Power. He forgets, that, though the Power may be new, the Slavery will be old.”
The Manchester Guardian said:—
“We receive by the last steamer from New York the report of a speech recently delivered by a person of great consideration in the councils of the present Government at Washington, who maintains that the favor already given to the Confederacy by England deserves the execration of humanity, and supplies, if necessary, abundant cause for war. The speaker to whom we allude is Mr. Charles Sumner, the President of the Committee of the Senate on Foreign Affairs. He denounced, we are told, as ‘a betrayal of civilization,’ England’s recognition of the Confederate States as belligerents, and her proclamation of neutrality. The absurd injustice of this often repeated complaint is sufficiently shown by the simple observation, that, in recognizing the belligerent rights of the South, we did exactly what the Federal Government itself did, and has continued to do from the commencement of the war. We did, moreover, what no power could have avoided, without absolutely intending to take a direct part in the subjugation of the seceding States. But Mr. Sumner correctly appreciates the consequences of this course, as adopted by ourselves and France, in perceiving that it insured to the South the free exercise of all the power of making war from its own resources which an independent state could possess.”
The Economist, of London, a weekly journal, in an article entitled “Mr. Sumner’s Speech at New York,” among many remarks of bad temper and doubtful candor, said:—
“Mr. Charles Sumner has been delivering a speech before a crowded audience in New York which will cause much pain and disappointment to all friends and well-wishers of the Federal United States. It is weak in argument, unfair and unjust in its representations, and bitter in tone and temper. If men of Mr. Sumner’s education and position in America really believe the things they say and indulge the feelings to which they give utterance, it is clearly hopeless to attempt either to enlighten their understanding or to allay their irritation.…
“Two other considerations will fully justify us in describing Mr. Sumner’s address as marked by the most distinctly unfair and unfriendly animus toward this country. The first is, that he has carefully avoided doing the slightest justice to the strong Antislavery feeling which prevails among us, and even insinuates a disposition to favor the slave empire of the South.…
“Finally, what construction is to be placed upon the remarkable circumstance, that, throughout his whole address, while endeavoring to rouse the wrath of his countrymen by a vicious enumeration of the supposed offences of Great Britain, he says not a word against France, which has participated in nearly all, and added others of her own? He charges us with hostile designs, because we recognized belligerent rights in the Confederates; but he utters no word of complaint against France, who recognized these at the same date and in the same terms.”
Referring to Mr. Sumner’s speech, it will be seen how untrue is the statement that he said “not a word against France”; nor is it true that he was unjust to “the strong Antislavery feeling” which had done so much honor to English history, although he lamented that it was impotent to save England from fatal concession to Rebel Slavery.
There was a critical spirit in the provincial press. The Halifax Reporter, in Nova Scotia, said:—
“Mr. Sumner, whose judgment is evidently warped by his abhorrence of Slavery, seems to expect that England should look upon the North as waging the war on behalf of human liberty. It is obvious he considers, that, in recognizing the Confederates as belligerents, her statesmen have exhibited a sympathy with slaveholders which is unjustifiable.…
“Mr. Sumner is peculiarly wrathy that any portion of the British people should have been allowed to give aid and comfort to the Rebels by affording them supplies of various kinds.”
The Globe, at Toronto, said:—
“He reviews the whole transactions between England and the United States since the commencement of the civil war with great warmth, beginning with the proclamation of neutrality and ending with Mr. Laird’s rams, and tortures every action of the British Government into a manifestation of unfriendliness towards the Republic. We expected from Mr. Sumner more enlightened consideration for the circumstances in which the English people have been placed, and some acknowledgment of the provocation they have received from this side of the Atlantic.…
“There is only one excuse for Mr. Sumner. As an Abolitionist, he has been accustomed to look to England for sympathy and aid, and he is disappointed to find so many enemies where he supposed he would see none but friends. This feeling should not prevent him, however, from doing justice as a publicist, nor, as a statesman, from pursuing the course most wise and expedient at the moment.”
In a different tone, the Morning Star, of London, the constant friend of the national cause, said:—
“The Hon. Charles Sumner has not belied the confidence inspired by a long and illustrious career. He is as firmly as ever the friend of peace, and especially of peace between Great Britain and America. The eloquent voice which has so often employed the stores of a richly furnished mind in persuasives to international amity has not, as the telegrams suggested, been inflamed by the heat of domestic conflict to the diffusion of discord between kindred peoples. His speech at New York on the 10th of September is, indeed, heavy with charges against France and England. But it is an appeal for justice, not an incentive to strife. It is a complaint of hopes disappointed, of friendship withheld, of errors hastily adopted and obstinately maintained. It is, however, an argument which does honor even to those against whom it is urged, and which aims to establish future relations of the closest alliance. Senator Sumner’s chief reproach is this,—that we have acted unworthily of ourselves, unfaithfully to our deepest convictions and best memories.…
“There runs through the whole of Mr. Sumner’s gigantic oration—far too long to have been spoken as printed, but yet without a word of superfluous argument or declamation—an idea on which we can now only touch. From the first sentence to the last, Slavery is present to his mind. It colors all his reasoning. It inspires him to prodigious eloquence. Not merely as the Senator for Massachusetts, the honored chieftain of the political Abolitionists, but as Chairman of the Committee on Foreign Relations, he sees everywhere the presence of the Slave Power. Against it he invokes, in periods of classic beauty and of fervid strength, all the moral forces of the mother country. To England he makes a passionate and pathetic appeal—more for her own sake than that of the slave, more for the sake of the future than of present effects—that she withdraw all favor and succor from Rebel slave-owners.”
The Northern Whig, of Belfast, Ireland, noticed especially the statement on ocean belligerence:—
“One point, however, on which Mr. Sumner dwells, is of such urgent present importance as to make the reproduction of his remarks, at such length as our space allows, desirable. We refer to his criticism of the claims of the Confederates to belligerent rights at sea. Whether the ground which Mr. Sumner takes on this question be or be not tenable, whether the authorities and examples by which he supports it really make out his case, is a matter not to be decided summarily. His argument is, beyond dispute, a most masterly one, and deserves the careful attention of the English Government and its legal advisers, and will, no doubt, engage the ingenuity of writers upon International Law.”
These expressions of opinion show something of the extent to which Mr. Sumner was sustained, and also the British criticism he encountered. To the latter must be added an unexpected episode.
Earl Russell was on a visit to Scotland when Mr. Sumner’s speech arrived. Being entertained at a public dinner in the Town-Hall of Blairgowrie, September 26th, he took that occasion to review the questions of the war, and especially to answer Mr. Sumner, thus making a new precedent. It is not known that any European statesman ever before made a speech criticizing a speech in another country. The part relating to us was approached by the remark, “I am speaking of what has occurred in what a few years ago were the United States of America”; and then, towards the end, he says, “The people of what were the United States, whether they are called Federals or Confederates.”
The following passages belong to this answer.
“It was impossible to look on the uprising of a community of five million people as a mere petty insurrection [‘Hear! hear!’], or as not having the rights which at all times are given to those who, by their numbers and importance, or by the extent of the territory they possess, are entitled to these rights. [Cheers.] Well, it was said we ought not to have done that, because they were a community of Slaveholders.
“Gentlemen, I trust that our abhorrence of Slavery is not in the least abated or diminished. [Loud and prolonged cheers.] For my own part, I consider it one of the most horrible crimes that yet disgrace humanity. [Cheers.] But then, when we are treating of the relations which we bear to a community of men, I doubt whether it would be expedient or useful for humanity that we should introduce that new element of declaring that we will have no relations with a people who permit Slavery to exist among them. We have never adopted it yet, we have not adopted it in the case of Spain or Brazil, and I do not believe that the cause of humanity would be served by our adoption of it. [‘Hear! hear!’]
“Well, then it was said that these Confederate States were Rebels,—Rebels against the Union. Perhaps, Gentlemen, I am not so nice as I ought to be on the subject. But I recollect that we rebelled against Charles the First [a laugh], we rebelled against James the Second, and the people of New England, not content with these two rebellions, rebelled against George the Third. [‘Hear!’ and laughter.] … But, certainly, if I look to the declarations of those New England orators,—and I have been reading lately, if not the whole, yet a very great part, of the very long speech by Mr. Sumner on the subject, delivered at New York,—I own, I cannot but wonder to see these men, the offspring, as it were, of three rebellions, as we are the offspring of two rebellions, really speaking, like the Czar of Russia, the Sultan of Turkey, or Louis the Fourteenth himself, of the dreadful crime and guilt of rebellion. [Loud laughter and cheers.] …
“I said, that in America, although there were some of the local courts which had not the authority of such men as Lord Stowell and Sir William Grant, yet there was a Court of Appeal, there was a Supreme Court, in the United States, which contained, and had for many years contained, men as learned and of as high reputation in the law and of as unsullied reputation for integrity as any that have sat in our English courts of justice, and that we ought to wait patiently for the decision of those tribunals. Now what is my surprise to find, and what would be your surprise to find, that Mr. Sumner is so prejudiced that he brings these declarations of mine against me, saying that I have diminished the reputation of the American Courts, and that I showed myself biased against the Federal States, by the declaration I then made in Parliament! [A gentleman from the Southern States among the company here ejaculated, ‘He is not to be believed.’]
“I will not detain you further on these subjects; but one remark I must make on the general tendency of these speeches and writings in America. The Government of America discusses these matters very fairly with the English Government. Sometimes we think them quite in the wrong; sometimes they say we are quite in the wrong; but we discuss them fairly, and with regard to the Secretary of State I see no complaint to make. I think he weighs the disadvantages and difficulties of our situation in a very fair and equal balance. But there are others, and Mr. Sumner is one of them, his speech being an epitome almost of all that has been contained in the American press, by whom our conduct is very differently judged.”
In defending the concession of belligerent rights to Rebel Slavery, Earl Russell forgot two things: first, that the Rebels, whatever their numbers, were without ports or Prize Courts, and therefore unable to administer justice on the ocean, which was essential to the protection of neutrals, and, in the nature of things, the condition precedent of any such concession; and, secondly, he forgot, that, whatever might be the traditional relations with existing nations “permitting Slavery to exist among them,” it was now proposed, for the first time in history, to recognize a rebel community seeking to found a new nation whose declared corner-stone was Slavery, which Mr. Sumner insisted was contrary to good morals and the Antislavery principles so constantly and loftily avowed by England.
On another occasion Earl Russell seems to have laid down a rule requiring Prize Courts, as will be seen in Mr. Sumner’s speech.[172] He insisted that vessels seized should be tried in a Prize Court. If this rule is correct, how vindicate the award of belligerent rights to a community without Prize Courts? Another question may also be asked: If Slavery be, as Earl Russell declared, “one of the most horrible crimes that yet disgrace humanity,” how could England make any concession to Rebels whose single declared object of separate existence was this very crime?
The answer to Mr. Sumner on Prize Courts will be appreciated after reading the report in the London Times, June 16, 1863,[173] of what Earl Russell actually said in the House of Lords.
“With regard to the decisions in Prize Courts, I must say I lament that the Constitution of the United States is such, that, instead of being brought at once before the Court of Admiralty, where generally you have a very eminent judge to preside, perfectly well acquainted with the Law of Nations, such cases go in the first instance before the District Courts, then, I think, before a Circuit Court, and it is only after a considerable delay that they come before the Supreme Court of the United States. I say this, because I believe we should all very much respect a decision of the Supreme Court of the United States, and it is to be lamented that there should be a considerable delay before the judgment of that tribunal can be obtained.”
The compliment to the Supreme Court of the United States, which, like the House of Lords and the Privy Council, is not a court of original jurisdiction in prize cases, will hardly excuse the reflection upon the District Courts, which are the Admiralty Courts of the United States,—especially when it is considered that those at Boston and New York, where the prize cases chiefly occurred, were administered at the time by judges who would compare favorably with the contemporary judge of the English Admiralty. Judge Sprague, of Boston, and Judge Betts, of New York, were “very eminent” and “perfectly well acquainted with the Law of Nations,” although only judges of District Courts.
The speech of Earl Russell was noticed by Mr. Adams, in a despatch to Mr. Seward, under date of October 1, 1863:—
“The event of the week has been the speech of Earl Russell at Blairgowrie, evidently drawn forth by the report of Mr. Sumner’s address at New York.”[174]
It was the subject of comment by the press of England and the United States. The sympathetic Morning Star said:—
“Mr. Sumner’s oration has had an unexpected effect. It has stirred the phlegmatic nature of Earl Russell. The Foreign Secretary has replied from his Scottish retreat to the complaints and reproaches of the New England Senator. Absurdly contemptuous in his personal allusions to the distinguished Senator, Lord Russell confesses the force of his accusations by taking the trouble to reply to them.…
“It would also have been well, if our Foreign Secretary had included in his reply some notice of one of the most distinct and gravest of Mr. Sumner’s complaints. The defence of our recognition of the Confederates as belligerents is without novelty. It is a simple repetition of the old statement, that our naval commanders required to be instructed whether they should respect the new flag or treat it as that of a pirate. Lord Russell does not touch the objection raised by Mr. Sumner, that the Confederates had no ocean navy, and could provide one only from neutral ports. Neither does his Lordship explain why the resolution to recognize the Confederates as belligerents was taken in the absence from this country of a Federal minister.
“But, notwithstanding these defects, Lord Russell’s speech at Blairgowrie is an immense advance upon his previous utterances on the American Question. It is evident that he begins to perceive the real issue of the conflict, and rightly estimates the direction of British sentiment.”
The Boston Traveller said:—
“Earl Russell has fallen into several grave errors in the course of his remarks. He has utterly misconceived the whole temper of Mr. Sumner’s speech, when he says that ‘it weighs the difficulties of the English Government in an unequal balance,’ and that it is ‘an epitome of almost all that has been contained by the press of America’ on the subject of the ill-feeling against Great Britain and her neutrality, so generally prevalent among us. The feeling evoked by the belligerent articles of the New York Herald is one of far different character from that produced by Mr. Sumner’s remarks. Lord Russell charges him with injustice to the English people. Had he read the speech to which he professes to reply with more care, there would have been found no ground to sustain such a charge.”
In France the speech of Mr. Sumner was published in an abridged form, under the following title:—
“Les Relations Extérieures des États-Unis. Préface et Traduction abrégée par A. Malespine [of the Opinion Nationale]. Paris, 1863.” 31 pp. 8vo.
The eminent historian, Henri Martin, writing in the Siècle on American affairs, alluded to the speech.
“We will not close these considerations without recommending to the readers of the Siècle the eloquent appeal addressed to public opinion by one of the greatest citizens of the United States, Charles Sumner, Chairman of the Committee of Foreign Relations in the American Senate. The French translation of this discourse on the Foreign Relations of the United States has just appeared. He treats here the question of foreign intervention in fact and in right, demonstrates in a victorious manner, according to our opinion, that the South had not the title to be admitted as a belligerent, and considers it impossible that France and England can recognize a political society founded on Slavery. We think to-day the cause gained. Neither the sons of ’89 nor the country of Wilberforce will have this stain on their history.”
These various testimonies at home and abroad, where criticism is not wanting, show that Mr. Sumner did not speak in vain. Evidently he obtained a hearing for the national cause.
OUR DOMESTIC RELATIONS: POWER OF CONGRESS OVER THE REBEL STATES.
Article in the Atlantic Monthly, October, 1863.
This argument was prepared as a speech on the resolutions of February 11, 1862, entitled “State Rebellion State Suicide, Emancipation and Reconstruction”; but the tardy success of our arms and the press of business caused its postponement, until, during the recess of Congress, it was thought best to print it as an article in the Atlantic Monthly. It was much discussed. Hon. Montgomery Blair, at the time a member of the Cabinet, in a speech at Rockville, Maryland, October 3d, replied to it at length, insisting that it was “the keynote of the revolution,”—“the programme of the movement,”—presenting “the issue on which the Abolition party has resolved to rest its hopes of setting up its domination in this country”; and in opposition to this “programme” he placed “that which is presented by President Lincoln,” alleging that Mr. Sumner had directly arrayed himself against the President on a question of fundamental policy in the conduct of the war. The National Intelligencer, at Washington, in an elaborate leader, sustained the position of Mr. Blair.
From this time forward, the discussion proceeded in the press, in public meetings, and in Congress, followed by the measures of Reconstruction, including especially the requirement by Congress of the colored suffrage in the reorganization of the Rebels and in their new Constitutions,[175] all of which assumed the power of Congress.
At this moment our domestic relations all hinge upon one question,—How to treat the Rebel States. No patriot citizen doubts the triumph of our arms in the suppression of the Rebellion. Early or late triumph is inevitable,—perhaps by sudden collapse of the bloody imposture, or perhaps by slower and more gradual surrender. For ourselves, we are prepared for either alternative, and shall not be disappointed, if constrained to wait yet a little longer; but when the day of triumph comes, political duties will take the place of military. The victory won by our soldiers must be assured by wise counsels, so that its hard-earned fruits shall not be lost.
The relations of the States to the National Government must be carefully considered,—not too boldly, not too timidly,—that we may understand in what way or by what process the transition from Rebel forms may be most surely accomplished. If I do not greatly err, it will be found that the powers of Congress, thus far so effective in raising armies and supplying moneys, will be important, if not essential, in fixing the conditions of perpetual peace. But there is one point on which there can be no question. The dogma and delusion of State Rights, as mischievously interpreted, which did so much for the Rebellion, must not be allowed to neutralize all that our arms have gained.
Already, in a remarkable instance, the President has treated the pretension of State Rights with proper indifference. Quietly and without much discussion, he has constituted military governments in the Rebel States, with governors nominated by himself: all of which testifies against the old delusion. Strange will it be, if this extraordinary power, amply conceded to the President, is denied to Congress. Practically, the whole question is opened here. Therefore to this aspect of it I ask your first attention.
Already four military governors have been appointed: one for Tennessee, one for South Carolina, one for North Carolina, and the other for Louisiana. So far as known, the appointment of each was by simple letter from the Secretary of War. But if this can be done in four States, where is the limit? It may be done in every Rebel State; and if not in every other State of the Union, it will be simply because the existence of a valid State government excludes the exercise of this extraordinary power. Assuming, that, as our arms prevail, it will be done in every Rebel State, we shall then have eleven military governors, all deriving authority from one source, ruling a population amounting to upwards of nine millions. And this imperatorial dominion, indefinite in extent, will also be indefinite in duration; for, if, under the Constitution and laws, it be proper to constitute such governors, it is clear that they may be continued without regard to time,—for years, if you please, as well as for weeks; and the whole region they are called to sway will be a military empire, with all powers, executive, legislative, and even judicial, derived from one man in Washington. Talk of “the one-man power!” Here it is with a vengeance. Talk of military rule! Here it is, in the name of a republic.
The bare statement of this case may put us on our guard. We may well hesitate to organize a single State under military government, when we see where such step leads. If you approve one, you must approve eleven, and the National Government may crystallize into military despotism.
In appointing military governors of States, we follow an approved example in certain cases beyond the jurisdiction of the National Constitution,—as in California and Mexico, after their conquest, and before peace. It is evident that in these cases there was no constraint from the Constitution, and we were perfectly free to act according to the assumed exigency. It may be proper to set up military governors for a conquered country beyond our civil jurisdiction, and yet it may be questionable if we should undertake to set up such governors in States that we all claim to be within our civil jurisdiction. At all events, the two cases are different, so that it is not easy to argue from one to the other.
In Jefferson’s Inaugural Address, where he develops what he calls “the essential principles of our Government, and consequently those which ought to shape its administration,” he mentions “the supremacy of the civil over the military authority” as one of these “essential principles,” and then says:—
“These should be the creed of our political faith, the text of civil instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps, and to regain the road which alone leads to peace, liberty, and safety.”[176]
Undertaking to create military governors of States, we reverse the policy of the Republic, as solemnly declared by Jefferson, and subject the civil to the military authority. If this has been done in patriotic ardor, without due consideration, in a moment of error or alarm, it only remains, that, according to Jefferson, we should “hasten to retrace our steps, and to regain the road which alone leads to peace, liberty, and safety.”
There is nothing new under the sun, and the military governors we are beginning to appoint find a prototype in the Protectorate of Oliver Cromwell. After the execution of the King and the establishment of the Commonwealth, the Protector conceived the idea of parcelling the kingdom into military districts, of which there were eleven, being precisely the number now proposed, under favor of success, among us. Of this system a great authority, Mr. Hallam, speaks thus:—
“To govern according to law may sometimes be an usurper’s wish, but can seldom be in his power. The Protector abandoned all thought of it. Dividing the kingdom into districts, he placed at the head of each a major-general, as a sort of military magistrate, responsible for the subjection of his prefecture. These were eleven in number, men bitterly hostile to the royalist party, and insolent towards all civil authority.”[177]
Carlyle, in his Life of Cromwell, gives a glimpse of this military government.
“The beginning of a universal scheme of Major-Generals, the Lord Protector and his Council of State having well considered and found it the feasiblest,—‘if not good, yet best.’ … ‘It is an arbitrary government,’ murmur many. Yes, arbitrary, but beneficial. These are powers unknown to the English Constitution, I believe; but they are very necessary for the Puritan English nation at this time.”[178]
Perhaps no better words could be found in explanation of the Cromwellian policy adopted by our President.
A contemporary republican, Lieutenant-General Ludlow, whose “Memoirs” add to the authentic history of those interesting times, characterizes these military magistrates as so many “bashaws.” Here are some of his words:—
“The major-generals carried things with unheard-of insolence in their several precincts, decimating to extremity whom they pleased, and interrupting the proceedings at law upon petitions of those who pretended themselves aggrieved; threatening such as would not yield a ready submission to their orders with transportation to Jamaica, or some other plantations in the West Indies.”[179]
Again, says the same contemporary writer,—
“There were sometimes bitter reflections cast upon the proceedings of the major-generals by the lawyers and country gentlemen, who accused them to have done many things oppressive to the people, in interrupting the course of the law, and threatening such as would not submit to their arbitrary orders with transportation beyond the seas.”[180]
At last, even Cromwell, at the height of his power, found it necessary to abandon the policy of military governors. He authorized his son-in-law, Mr. Claypole, to announce in Parliament, “that he had formerly thought it necessary, in respect to the condition in which the nation had been, that the major-generals should be intrusted with the authority which they had exercised; but, in the present state of affairs, he conceived it inconsistent with the laws of England and liberties of the people to continue their power any longer.”[181]
The conduct of at least one of our military magistrates seems to have been a counterpart to that of these “bashaws” of Cromwell; and there is no argument against that early military despotism which may not be urged against any attempt to revive it in our day. Some of the acts of Governor Stanly in North Carolina are in themselves an argument against the whole system.
It is clear that these military magistrates are without direct sanction in the Constitution or existing laws. They are not even “major-generals,” or other military officers, charged with the duty of enforcing martial law, but special creations of the Secretary of War, acting under the President, and charged with universal powers. As governors within the limits of a State, they obviously assume the extinction of the old State governments for which they are substituted, and the President, in appointing them, assumes a power over these States kindred to his acknowledged power over Territories of the Union; but, in appointing governors for Territories, he acts in pursuance of the Constitution and laws, by and with the advice and consent of the Senate.
That the President should assume the vacation of the State governments is of itself no argument against the creation of military governors, for it is simply the assumption of an unquestionable fact; but if it be true that the State governments have ceased to exist, then the way is prepared for the establishment of provisional governments by Congress. In short, if a new government is to be supplied, it should be by Congress rather than by the President, and it should be according to established law rather than according to the mere will of any functionary, to the end that ours may be “a government of laws, and not of men.”
There is no argument for military governors which is not equally strong for Congressional governments, while the latter have in their favor two controlling considerations: first, that they proceed from the civil rather than the military power; and, secondly, that they are created by law. Therefore, in considering whether Congressional governments should be constituted, I begin by assuming everything in their favor that is already accorded to the other system. I should not do this, if the system of military dictators were not now recognized; so that the question is sharply presented, which of the two to choose. Even if provisional governments by Congress are unconstitutional, it does not follow that military governments, without the sanction of Congress, can be constitutional. But, on the other hand, I cannot doubt, that, if military governments are constitutional, then surely the provisional governments by Congress must be so also. In truth, there can be no opening for military governments which is not also an opening for Congressional governments, with this great advantage for the latter, that they are in harmony with our institutions, which favor the civil rather than the military power.
Thus declaring deliberate preference for Congressional governments, I am sustained by obvious reason. But there is positive authority on this identical question. I refer to the recorded opinion of Chancellor Kent.
“Though the Constitution vests the executive power in the President, and declares him to be commander-in-chief of the army and navy of the United States, these powers must necessarily be subordinate to the legislative power in Congress. It would appear to me to be the policy or true construction of this simple and general grant of executive power to the President, not to suffer it to interfere with those specific powers of Congress which are more safely deposited in the legislative department, and that the powers thus assumed by the President do not belong to him, but to Congress.”[182]
Such is the weighty testimony of this esteemed master on the assumption of power by the President, in 1847, over Mexican ports in our possession. It is found in the latest edition of his “Commentaries” that enjoyed the supervision of the author. Of course, it is equally applicable to the recent assumptions within our own territory. His judgment is clear in favor of Congressional governments.
In ordinary times, and under ordinary circumstances, neither system of government would be valid. A State in the full enjoyment of its rights would spurn a military governor or a Congressional governor. It would insist that its governor should be neither military nor Congressional, but such as its own people chose to elect; and nobody would question this right. The President does not think of sending a military governor to New York; nor does Congress think of establishing a provisional government in that State. It is only with regard to the Rebel States that this question arises. The occasion, then, for the exercise of this extraordinary power is found in the Rebellion. Without the Rebellion there would be no talk of any governor, whether military or Congressional.
Here it becomes important to consider the operation of the Rebellion in opening the way to this question. To this end we must understand the relations between the States and the National Government, under the Constitution of the United States. As I approach this question of singular delicacy, let me say on the threshold, that for all those rights of the States which are consistent with the peace, security, and permanence of the Union, according to the objects grandly announced in the Preamble of the Constitution, I am the strenuous advocate at all times and places. Never, through any word or act of mine, shall those rights be impaired; nor shall any of those other rights be called in question by which the States are held in harmonious relations as well with each other as with the Union. But, while thus strenuous for all that justly belongs to the States, I cannot concede to them immunities inconsistent with that Constitution which is the supreme law of the land; nor can I admit the impeccability of a State.
From a period even anterior to the National Constitution, there has been a perverse pretension of State Rights, which has perpetually interfered with the unity of our Government. Throughout the Revolution this pretension was a check upon the powers of Congress, whether in respect to armies or finances, so that it was too often constrained to content itself with the language of advice or persuasion rather than of command. By the Declaration of Independence it was solemnly declared that “these United Colonies are, and of right ought to be, free and independent States” and that, as such, “they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.” Thus, by this original charter, the early Colonies were changed into independent States, under whose protection the liberties of the country were placed.
Early steps were taken to supply the deficiencies of this government, which was effective only through the generous patriotism of the people. In July, 1778, two years after the Declaration, Articles of Confederation were ratified by nine States, but the assent of all was not obtained till March, 1781. The character of this new government, which assumed the style of “The United States of America,” appears in the title of these Articles, which was as follows: “Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode-Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.” By the second article it was declared that “each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled.” By the third article it was further declared that “the said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare.” By another article, a “committee of the States, or any nine of them,” was authorized, in the recess, to execute the powers of Congress. The government thus constituted was a compact between sovereign States, or, according to its precise language, “a firm league of friendship” between these States, administered, in the recess of Congress, by a “committee of the States.” Thus did State Rights triumph.
But the imbecility of the Confederation, from this pretension, soon became apparent. As early as December, 1782, a committee of Congress made an elaborate report on the refusal of Rhode Island, one of the States, to confer certain powers on Congress with regard to revenue and commerce. In April, 1783, an Address of Congress to the States was put forth, appealing to their justice and plighted faith, and representing the consequence of failure on their part to sustain the Government and provide for its wants. In April, 1784, a similar appeal was made to what were called “the several States,” whose Legislatures were recommended to vest “the United States in Congress assembled” with certain powers. In July, 1785, a committee of Congress made another elaborate report on the reason why the States should confer upon Congress powers therein enumerated, in the course of which it was urged, that, “unless the States act together, there is no plan of policy into which they can separately enter which they will not be separately interested to defeat, and of course all their measures must prove vain and abortive.” In February and March, 1786, there were three other reports of committees of Congress, exhibiting the failure of the States to comply with the requisitions of Congress, and the necessity for a complete accession of all the States to the revenue system. In October, 1786, there was still another report, most earnestly renewing the former appeals to the States. Nothing could be more urgent.
As early as July, 1782, even before the first report to Congress, resolutions were adopted by the State of New York, declaring “that the situation of these States is in a peculiar manner critical,” and that “the radical source of most of our embarrassments is the want of sufficient power in Congress to effectuate that ready and perfect coöperation of the different States on which their immediate safety and future happiness depend.”[183] Finally, in September, 1786, at Annapolis, commissioners from several States, after declaring “the situation of the United States delicate and critical, calling for an exertion of the united virtue and wisdom of all the members of the Confederacy,” recommended the meeting of a Convention “to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union.” In accord with this recommendation, the Congress of the Confederation proposed a Convention “for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union.”
In pursuance of the call, delegates to the proposed Convention were duly appointed by the Legislatures of the several States, and the Convention assembled at Philadelphia in May, 1787. The present Constitution was the well-ripened fruit of their deliberations. In transmitting it to Congress, General Washington, who was the President of the Convention, in a letter, bearing date September 17, 1787, uses this instructive language:—
“It is obviously impracticable, in the Federal Government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests. In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.”
These famous words were in harmony with the constant sentiments of Washington. Here is additional evidence, from a letter to John Jay, during the summer of 1786:—
“We have errors to correct. We have probably had too good an opinion of human nature, in forming our Confederation. Experience has taught us that men will not adopt and carry into execution measures the best calculated for their own good, without the intervention of a coercive power. I do not conceive we can exist long as a nation without having lodged somewhere a power which will pervade the whole Union in as energetic a manner as the authority of the State governments extends over the several States.”
These are the words of Washington; and he then proceeds:—
“To be fearful of investing Congress, constituted as that body is, with ample authorities for national purposes, appears to me the very climax of popular absurdity and madness.”[184]
The Constitution was duly transmitted by Congress to the several Legislatures, by which it was submitted to Conventions of delegates “chosen in each State by the people thereof,” who ratified the same. Afterwards, Congress, by resolution, dated September 13, 1788, setting forth that the Convention had reported “a Constitution for the people of the United States,” which had been duly ratified, proceeded to authorize the necessary elections under the new government.
The Constitution, it will be seen, was framed to remove difficulties arising from State Rights. So paramount was this purpose, that, according to the letter of Washington, it was kept steadily in view in all the deliberations of the Convention, which did not hesitate to declare the consolidation of our Union essential to prosperity, felicity, safety, and perhaps national existence.
The unity of the Government was expressed in the term “Constitution,” instead of “Articles of Confederation and Perpetual Union between the States,” and in the idea of “a more perfect union,” instead of “a firm league of friendship.” It was also announced emphatically in the Preamble:—
“We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Not “we, the States,” but “we, the people of the United States.” Such is the beginning and origin of our Constitution. Here is no compact or league between States, involving the recognition of State Rights, but a government ordained and established by the people of the United States for themselves and their posterity. This government is not established by the States, nor is it established for the States; but it is established by the people, for themselves and their posterity. It is true, that, in the organization of the government, the existence of the States is recognized, and the original name of “United States” is preserved; but the sovereignty of the States is absorbed in that more perfect union which was then established. There is but one sovereignty recognized, and this is the sovereignty of the United States. To the several States is left that specific local control which is essential to the convenience and business of life, while to the United States, as Plural Unit, is allotted that commanding sovereignty which embraces and holds the whole country within its perpetual and irreversible jurisdiction.
This obvious character of the Constitution did not pass unobserved at the time of its adoption. Indeed, the Constitution was most strenuously opposed on the ground that the States were absorbed in the Nation. In the debates of the Virginia Convention, Patrick Henry protested against consolidated power.
“And here I would make this inquiry of those worthy characters who composed a part of the late Federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated Government, instead of a Confederation. That this is a consolidated Government is demonstrable clear; and the danger of such a Government is to my mind very striking. I have the highest veneration for those gentlemen; but, Sir, give me leave to demand, What right had they to say, ‘We, the people’?… Who authorized them to speak the language of ‘We, the people,’ instead of ‘We, the States’?”[185]
And again, at another stage of the debate, the same patriotic opponent of the Constitution declared succinctly,—
“The question turns, Sir, on that poor little thing, the expression, ‘We, the people,’ instead of the States, of America.”[186]
In the same Convention, another patriotic opponent of the Constitution, George Mason, following Patrick Henry, said:—
“Whether the Constitution be good or bad, the present clause clearly discovers that it is a National Government, and no longer a Confederation.”[187]
But against all this opposition, and in face of this exposure, the Constitution was adopted, in the name of the people of the United States. Much, indeed, was left to the States; but it was no longer in their name that the government was organized, while the miserable pretension of State “sovereignty” was discarded. Even in the discussions of the National Convention Mr. Madison spoke thus plainly:—
“Some contend that States are sovereign, when, in fact, they are only political societies. The States never possessed the essential rights of sovereignty. These were always vested in Congress.”[188]
Grave words, especially when we consider the position of their author. They were substantially echoed by Elbridge Gerry, of Massachusetts, afterwards Vice-President, who said:—
“It appears to me that the States never were independent. They had only corporate rights.”[189]
On another occasion, Mr. Madison said,—
“I hold it for a fundamental point, that an individual independence of the States is utterly irreconcilable with the idea of an aggregate sovereignty.”[190]
Better words still fell from Mr. Wilson, of Pennsylvania, known afterwards as a learned judge of the Supreme Court, and also for his “Lectures on Law”:—
“Will a regard to State Rights justify the sacrifice of the rights of men? If we proceed on any other foundation than the last, our building will neither be solid nor lasting.”[191]
The argument was unanswerable then. It is unanswerable now. You cannot elevate the sovereignty of the States over the Constitution of the United States. It would be even more odious than the early pretension of sovereign power over Magna Charta, according to the memorable words of Lord Coke, as recorded by Rushworth:—
“Sovereign power is no Parliamentary word. In my opinion, it weakens Magna Charta and all our statutes; for they are absolute, without any saving of sovereign power; and shall we now add it, we shall weaken the foundation of law, and then the building must needs fall. Take we heed what we yield unto. Magna Charta is such a fellow that he will have no sovereign.”[192]
But the Constitution is our Magna Charta, which can bear no sovereign but itself, as you will see at once, if you consider its character. And this practical truth was recognized at its formation, as may be seen in the writings of our Rushworth: I refer to Nathan Dane, who was a member of Congress under the Confederation. He tells us plainly, that the terms “sovereign States,” “State sovereignty,” “State rights,” “rights of States,” are “not constitutional expressions.”[193]
In the exercise of its sovereignty, Congress is intrusted with large and peculiar powers. Take notice of them, and you will see how little of “sovereignty” is left to the States. Their simple enumeration is an argument against this pretension. Congress may “lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States”; it may “borrow money on the credit of the United States”; “regulate commerce with foreign nations, and among the several States, and with the Indian tribes”; “establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States”; “coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures”; “provide for the punishment of counterfeiting the securities and current coin of the United States”; “establish post-offices and post-roads”; “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”; “constitute tribunals inferior to the Supreme Court”; “define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations”; “declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water”; “raise and support armies”; “provide and maintain a navy”; “make rules for the government and regulation of the land and naval forces”; “provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions”; “provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress”; “exercise exclusive legislation, in all cases whatsoever, over the seat of the government of the United States, and like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings”; and “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.”
Such are the ample and diversified powers of Congress, embracing all those agencies which enter into sovereignty. With this concession to the United States, there seems to be little for the several States. In the power to “declare war” and to “raise and support armies” Congress possesses an exclusive power, in itself immense and infinite, over persons and property in the several States, while, by the power to “regulate commerce,” it may put limits round about the business of the several States; and even in the case of the militia, which is the original military organization of the people, nothing is left to the States except “the appointment of the officers,” and the authority to train it “according to the discipline prescribed by Congress.” Thus these great functions are all intrusted to the United States, while the several States are subordinated to their exercise.
Constantly, and in everything, we behold the constitutional subordination of the States. But there are other provisions by which the States are expressly deprived of important powers. For instance: “No State shall enter into any treaty, alliance, or confederation; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts.” Or, if the States may exercise certain powers, it is only with the consent of Congress. For instance: “No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power.” Here is a magistral power accorded to Congress utterly inconsistent with the pretensions of State Rights. Then again: “No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.” Here, again, is a similar magistral power accorded to Congress; and as if still further to deprive the States of their much vaunted sovereignty, the laws which they make with the consent of Congress are expressly declared to be subject “to the revision and control of the Congress.” There is still another instance. According to the Constitution, “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State”; but here mark the controlling power of Congress, which is authorized to “prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
There are five other provisions of the Constitution by which its supremacy is positively established. (1.) “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” As Congress has the exclusive power to establish “an uniform rule of naturalization,” it may, under these words of the Constitution, secure for its newly entitled citizens “all privileges and immunities of citizens in the several States,” in defiance of State Rights. (2.) “New States may be admitted by the Congress into this Union.” According to these words, the States cannot even determine their associates, but are dependent in this respect upon the will of Congress. (3.) Not content with taking from the States these important functions of sovereignty, it is solemnly declared that the Constitution, and the laws of the United States made in pursuance thereof, and all treaties under the authority of the United States, “shall be the supreme law of the land,—anything in the Constitution or laws of any State to the contrary notwithstanding.” Thus are State Rights again subordinated to the National Constitution, which is erected into the paramount authority. (4.) This is done again by another provision, which declares that “the members of the several State Legislatures, and all executive and judicial officers both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution”; so that not only State laws are subordinated to the National Constitution, but the makers of State laws and all other State officers are constrained to declare allegiance to this Constitution, thus placing the State, alike through its acts and its agents, in complete subordination to the sovereignty of the United States. (5.) This sovereignty is further proclaimed in the solemn injunction, that “the United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion.” Here are duties of guaranty and protection imposed upon the United States, by which their position is fixed as the supreme power. There can be no such guaranty without the implied right to examine and consider the governments of the several States, and there can be no such protection without a similar right to examine and consider the condition of the several States, subjecting them to the rightful supervision and superintendence of the National Government.
Thus, whether we regard the large powers vested in Congress, the powers denied to the States absolutely, the powers denied to the States without the consent of Congress, or those other provisions which accord supremacy to the United States, we find the pretension of State sovereignty without foundation, except in the imagination of its partisans. Before the Constitution such sovereignty may have existed; it was declared in the Articles of Confederation; but since then it has ceased. It has disappeared and been lost in the supremacy of the National Government, so that it can no longer be recognized. Perverse men, insisting that it still existed, and weak men, mistaking the shadow of former power for the reality, have made arrogant claims in its behalf. When the Constitution was proclaimed, and George Washington took his oath to support it as President, our career as a nation began, with all the unity of a nation. The States remained as living parts of the body, important to the national strength, and essential to those currents which maintain national life, but plainly subordinate to the United States, which then and there stood forth a nation, one and indivisible.
The new Government had hardly been inaugurated before it was disturbed by the pestilent pretension of State Rights, which has never ceased to disturb it since. Discontent with the treaty between the United States and Great Britain, negotiated by that purest patriot, John Jay, under instructions from Washington, in 1794, led Virginia, even at that early day, to commence an opposition to its ratification, in the name of State Rights. Shortly afterwards appeared the famous resolutions of Virginia and of Kentucky, usually known as the “Resolutions of ’98,” declaring that the National Government was founded on compact between the States, and claiming for the States the right to sit in judgment on the National Government, and to interpose, if they thought fit: all this, as you will see, in the name of State Rights. This pretension increased, till, at last, on the mild proposition to attach a prospective prohibition of Slavery as a condition to the admission of Missouri into the Union as a new State, the opposition raged furiously, even to the extent of menacing the existence of the Union; and this, too, was done in the name of State Rights. Ten years later the pretension took the famous form of Nullification, insisting that the National Government was only a compact of States, any one of which was free to annul an Act of Congress at its own pleasure; and all this in the name of State Rights. For a succession of years afterwards,—at the presentation of petitions against Slavery, petitions for the recognition of Hayti, at the question of Texas, at the Wilmot Proviso, at the admission of California as a Free State, at the discussion of the Compromises of 1850, at the Kansas Question,—the Union was menaced; and always in the name of State Rights. The menace was constant; and it sometimes showed itself on small as well as great occasions, but always in the name of State Rights. When it was supposed that Fremont was about to be chosen President the menace became louder, and mingling with it was the hoarse mutter of war; and all this audacity was in the name of State Rights.
But in the autumn of 1860, on the election of Abraham Lincoln, the case became much worse. Scarcely was the result known by telegraph, before the country was startled by other intelligence, to the effect that certain States at the South were about to put in execution the long pending threat of Secession, of course in the name of State Rights. First came South Carolina, which, by Ordinance adopted in a State Convention, undertook to repeal the original Act by which the Constitution was adopted in this State, and to declare that South Carolina had ceased to be one of the States of the Union. At the same time a Declaration of Independence was put forth by the State, which proceeded to organize as an independent community. This example was followed successively by other States, which, by formal Acts of Secession, undertook to dissolve relations with the Union, always, be it understood, in the name of State Rights. A new Confederation was formed by these States, with a new Constitution, and Jefferson Davis at its head; and the same oaths of loyalty by which the local functionaries of all these States had been bound to the Union were now transferred to this new Confederation, of course in utter violation of the Constitution of the United States, but always in the name of State Rights. The Ordinances of Secession were next maintained by war, which, beginning with the assault upon Fort Sumter, convulsed the whole country, till, at last, all the States of the new Confederation were in open rebellion, which the Government of the United States is now exerting its energies, mustering its forces, and taxing its people to suppress. The original claim, in the name of State Rights, has swollen to all the proportions of an unparalleled war, which, in the name of State Rights, now menaces the national life.
The pretensions in the name of State Rights are not all told. While the Ordinances of Secession were maturing, and before they were yet consummated, Mr. Buchanan, who was then President, declined to interfere, on the ground that what had been done was by States, and that it was contrary to the theory of our Government “to coerce a State,” thus making the pretension of State Rights the apology for imbecility. Had the President then interfered promptly and loyally, it cannot be doubted that this whole intolerable crime might have been trampled out forever. And now, when it is proposed that Congress shall organize governments in these States, which are absolutely without loyal governments, we are met by the objection founded on State Rights. The same disastrous voice which from the beginning of our history has sounded in our ears still makes itself heard; but, alas! it is now on the lips of friends. Just in proportion as it prevails, it is impossible to establish the Constitution again throughout the Rebel States. State Rights are fully triumphant, if, first, in their name Rebel governments can be organized, and then again in their name Congressional governments to replace the Rebel governments can be resisted. If they can be employed, first to sever the States from the Union, and then to prevent the Union from extending its power over them, State Rights are at once sword and buckler to the Rebellion. It was through the imbecility of Mr. Buchanan that the States were allowed to use the sword: God forbid that now, through any similar imbecility of Congress, they shall be allowed to use the buckler!
And here we are brought to the practical question destined to occupy so much of public attention. It is proposed to bring the action of Congress to bear directly upon the Rebel States. This may be by the establishment of provisional governments under authority of Congress, or simply by making the admission or recognition of the States depend upon the action of Congress. The essential feature of the proposition is, that Congress shall assume jurisdiction of the Rebel States. A bill authorizing provisional governments in these States was introduced into the Senate by Mr. Harris, of the State of New York, and was afterwards reported from the Judiciary Committee of that body; but it was left with unfinished business, when the late Congress expired on the fourth of March. The opposition to this proposition, so far as I understand it, assumes two forms: first, that these States are always to be regarded as States, with much vaunted State Rights, and therefore cannot be governed by Congress; and, secondly, that, if any government is to be established over them, it must be simply a military government, with a military governor appointed by the President, as is the case with Tennessee and North Carolina. But State Rights are as much disturbed by a military government as by a Congressional government. The local government is as much set aside in one case as in the other. If the President, within State limits, can proceed to organize a military government to exercise all the powers of the State, surely Congress can proceed to organize a civil government within the same limits for the same purpose; nor can any pretension of State Rights be effective against Congress more than against President. Indeed, the power belongs to Congress by a higher title than it belongs to President: first, because a civil government is more in harmony with our institutions, and, wherever possible, is required; and, secondly, because there are provisions of the Constitution under which this power is clearly derived.
Assuming, then, that the pretension of State Rights is as valid against one form of government as against the other, and still further assuming, that, in the case of military governments, this pretension is practically overruled by the President at least, we are brought again to consider its efficacy when advanced against Congressional governments.
It is argued, that the Acts of Secession are all inoperative and void, and therefore the States continue precisely as before, with their local constitutions, laws, and institutions in the hands of traitors, but totally unchanged, and ready to be quickened into life by returning loyalty. Such, I believe, is a candid statement of the pretension for State Rights against Congressional governments, which, it is argued, cannot be substituted for the State governments.
To prove that the Rebel States continue precisely as before, we are reminded that Andrew Johnson continued to occupy his seat in the Senate after Tennessee had adopted its Act of Secession and embarked in rebellion, and that his presence testified to the fact that rebel Tennessee was still a State of the Union. No such conclusion is authorized by this incident. There are two principles of Parliamentary Law long ago fixed: first, that the power once conferred by an election to Parliament is irrevocable, so that it is not affected by any subsequent change in the constituency; and, secondly, that a member, when once chosen, is a member for the whole kingdom, becoming thereby, according to the words of an early author, not merely knight, citizen, or burgess of the county, city, or borough which elected him, but knight, citizen, or burgess of England.[194] If these two principles are not entirely inapplicable to our political system, then the seat of Andrew Johnson was not in any respect affected by the subsequent madness of his State, nor can the legality of his seat be any argument for his State.
We are also reminded, that, during the last session of Congress, two Senators from Virginia represented that State in the Senate, and the argument is pressed that no such representation would be valid, if the State government of Virginia was vacated. This is a mistake. Two things are established by the presence of these Senators in the National Senate: first, that the old State government of Virginia is extinct; and, secondly, that a new government has been set up in its place. It was my fortune to hear one of these Senators, while earnestly denouncing the idea that a State government could disappear. I could not but think that he strangely forgot the principle to which he owed his seat in the Senate, as men sometimes forget a benefactor.
It is true beyond question that the Acts of Secession are all inoperative and void against the Constitution of the United States. Though matured in successive conventions, sanctioned in various forms, and maintained ever since by bloody war, these Acts, no matter by what name they may be called, are all equally impotent to withdraw an acre of territory or a single inhabitant from the rightful jurisdiction of the nation. But while thus impotent against the United States, it does not follow that they were equally impotent in the work of self-destruction. Clearly, the Rebels, by utmost effort, could not impair the national jurisdiction; but it remains to be seen if their enmity did not act back with fatal rebound upon those very State Rights in behalf of which they commenced their treason.
It is sometimes said that the States themselves committed suicide, so that, as States, they ceased to exist, leaving their whole jurisdiction open to the occupation of the United States under the Constitution. This assumption is founded on the fact, that, whatever the existing governments in these States, they are in no respect constitutional; and since the State itself is known by the government with which its life is intertwined, it must cease to exist constitutionally when its government no longer exists constitutionally. It were better, perhaps, to avoid the whole question of life or death in the State, and content ourselves with inquiry into the condition of its government. It is not easy to say what constitutes that entity we call a State; nor is the discussion much advanced by any theory. To my mind it seems a topic fit for the old schoolmen or a modern debating society; and yet, considering the part it has already played, I shall be pardoned for a brief allusion to it.
There are well-known words which ask and answer the question, “What constitutes a State?” But the scholarly poet[195] was not thinking of a “State” of the American Union. Indeed, this term is various in use. Sometimes it stands for civil society itself. Sometimes it is the general name for a political community, not unlike “nation” or “country,”—as when our fathers, in the Resolution of Independence which preceded the Declaration, spoke of “the State of Great Britain.” Sometimes it stands for the government,—as when Louis the Fourteenth, at the height of his power, exclaimed, “The State, it is I,”—or when Sir Christopher Hatton, in the famous farce of “The Critic,” ejaculated,—
“I cannot but surmise,—forgive, my friend,
If the conjecture’s rash,—I cannot but
Surmise the State some danger apprehends.”[196]
Among us the term is most known as the technical name for one of the political societies composing our Union. When used in this restricted sense, it must not be confounded with the same term when used in a different and broader sense. But it is obvious that some persons attribute to the one something of the qualities which can belong only to the other. Nobody has suggested, I presume, that any “State” of our Union has, through rebellion, ceased to exist as a civil society, or even as a political community. It is only as a State of the Union, armed with State Rights, or at least as a local government, annually renewing itself, as the snake its skin, that it can be called in question. But it is vain to challenge for the technical “State,” or for the annual government, that immortality which belongs to civil society. The one is an artificial body, the other is a natural body; and while the former, overwhelmed by insurrection or war, may change or die, the latter can change or die only with the extinction of the community itself, whatever its name or its form.
It is because of confusion in the use of this term that there has been so much confusion in the political controversies where it has been employed. But nowhere has this confusion led to greater absurdity than in the pretension recently made in the name of State Rights,—as if it were reasonable to claim for a technical “State” of the Union that immortality belonging to civil society.
From approved authorities it appears that a “State,” even in a broader signification, may lose its life. Dr. Phillimore, in his recent work on International Law, says: “A State, like an individual, may die,” and among the various ways, he says, “by its submission, and the donation of itself, as it were, to another country.”[197] But in the case of our Rebel States there has been a plain submission and donation of themselves, effective, at least, to break the continuity of government, if not to destroy that immortality which is claimed. Nor can it make any difference, in breaking this continuity, that the submission and donation, constituting a species of attornment, are to enemies at home rather than to enemies abroad,—to Jefferson Davis rather than to Louis Napoleon. The thread is snapped in one case as much as in the other.
But change of form in the actual government may be equally effective. Cicero speaks of change so complete as “to leave no image of a State behind.” This is precisely what has been done throughout the whole Rebel region: no image of a constitutional State is left behind. Another authority, Aristotle, whose words are always weighty, says, that, the form of the State being changed, the State is no longer the same, as the harmony is not the same when we modulate out of the Dorian mood into the Phrygian. But, if ever an unlucky people modulated out of one mood into another, it was our Rebels, when they undertook to modulate out of the harmonies of the Constitution into their bloody discords.
Without stopping further for these diversions, I content myself with the testimony of Edmund Burke, who, in a striking passage, which seems to have been written for us, portrays the extinction of a political community; but I quote his eloquent words rather for suggestion than authority.
“In a state of rude Nature there is no such thing as a people. A number of men in themselves have no collective capacity. The idea of a people is the idea of a corporation. It is wholly artificial, and made, like all other legal fictions, by common agreement. What the particular nature of that agreement was is collected from the form into which the particular society has been cast. Any other is not their covenant. When men, therefore, break up the original compact or agreement which gives its corporate form and capacity to a state, they are no longer a people, they have no longer a corporate existence, they have no longer a legal coactive force to bind within, nor a claim to be recognized abroad. They are a number of vague, loose individuals, and nothing more. With them all is to begin again. Alas! they little know how many a weary step is to be taken before they can form themselves into a mass which has a true politic personality.”[198]
If that great master of eloquence could be heard, who can doubt that he would stamp our Rebel States as senseless communities who have sacrificed that corporate existence which makes them living, component members of our Union of States?
Again, it is sometimes said that the States, by flagrant treason, have forfeited their rights as States, so as to be civilly dead. It is a patent and indisputable fact, that this gigantic treason was inaugurated with all the forms of law known to the States; that it was carried forward not only by individuals, but also by States, so far as States can perpetrate treason; that the States pretended to withdraw bodily, in their corporate capacities; that the Rebellion, as it showed itself, was by States, as well as in States; that it was by the governments of States, as well as by the people of States; and that, to the common observer, the crime was consummated by the several corporations, as well as by the individuals of whom they were composed. From this fact, obvious to all, it is argued, that, since, according to Blackstone, a traitor “hath abandoned his connections with society, and hath no longer any right to those advantages which before belonged to him purely as a member of the community,”[199] by the same principle the traitor State is no longer to be regarded as a member of the Union. But it is not necessary, on the present occasion, to insist on the application of any such principle to States.
Again, it is said that the States by their treason and rebellion, levying war upon the National Government, have abdicated their places in the Union; and here the argument is upheld by the historic example of England at the Revolution of 1688, when, on the flight of James and the abandonment of his kingly duties, the two Houses of Parliament voted, that the monarch, “having violated the fundamental laws, and having withdrawn himself out of this kingdom, has abdicated the government, and that the throne is thereby vacant.”[200] But it is not necessary for us to rely on any allegation of abdication, applicable as it may be.
It only remains that we should see things as they are, and not seek to substitute theory for fact. On this important question I discard all theory, whether of State suicide, or State forfeiture, or State abdication, on the one side, or of State Rights, immortal and unimpeachable, on the other side. Such discussions are only endless mazes, in which a whole Senate may be lost. And discarding all theory, I discard also the jural question, whether, for instance, the Rebel States, while the Rebellion is flagrant, are de jure States of the Union, with all the rights of States. It is enough, that, for the time being, and in the absence of a loyal government, they can take no part and perform no function in the Union, so that they cannot be recognized by the National Government. The reason is plain. Since there are in these States no local functionaries bound by constitutional oaths, there are, in fact, no constitutional functionaries; and as the State Government is necessarily composed of such functionaries, there can be no State Government. Thus, for instance, in South Carolina, Pickens and his associates may call themselves Governor and Legislature, and in Virginia Letcher and his associates may call themselves Governor and Legislature; but we cannot recognize them as such. Therefore to all pretensions in behalf of State governments in the Rebel States I oppose the simple FACT, that, for the time being, no such governments exist. The broad spaces once occupied by those governments are now abandoned and vacated.
That loyal Senator, Andrew Johnson,—faithful among the faithless, the Abdiel of the South,—began his attempt to reorganize Tennessee by an address, as early as the 18th of March, 1862, in which he made use of these words:—
“I find most, if not all, of the offices, both State and Federal, vacated, either by actual abandonment or by the action of the incumbents, in attempting to subordinate their functions to a power in hostility to the fundamental law of the State and subversive of her national allegiance.”[201]
In employing the word “vacated” Mr. Johnson hit upon the very term which, in the famous Resolution of 1688, was held most effective in dethroning King James. After declaring that he had abdicated the government, it was added, “that the throne is thereby vacant”; on which Macaulay happily remarks:—
“The word abdication conciliated politicians of a more timid school.… To the real statesman the simple important clause was that which declared the throne vacant; and if that clause could be carried, he cared little by what preamble it might be introduced.”[202]
The same simple principle is now in issue. It is enough that the Rebel States be declared vacated, as in fact they are, by all local government which we are bound to recognize: so that the way is open to the exercise of a rightful jurisdiction.
Here the question occurs, How shall this rightful jurisdiction be established in the vacated State? Some there are, so impassioned for State Rights, and so anxious for forms, even at the expense of substance, that they insist upon the instant restoration of the old State governments in all their parts, through the agency of loyal citizens, who, meanwhile, must be protected in this work of restoration. But, assuming that all this is practicable, as it clearly is not, it attributes to the loyal citizens of a Rebel State, however few in numbers,—it may be an insignificant minority,—a power clearly inconsistent with the received principle of popular government, that the majority must rule. The thirteen voters of Old Sarum were allowed to return two members of Parliament, because this place,—once a Roman fort, and afterwards a sheep-walk,—many generations before, at the early constitution of the House of Commons, had been entitled to this representation; but the argument for State Rights assumes that all these rights may be lodged in voters as few in number as ever controlled a rotten borough of England.
Pray, admitting that an insignificant minority is to organize the new government, how shall it be done, and by whom shall it be set in motion? In putting these questions, I open the difficulties. As the original government has ceased to exist, and there are none who can be its legal successors so as to administer the requisite oaths, it is not easy to see how the new government can be set in motion, without resort to some revolutionary proceeding, instituted either by the citizens or by the military power,—unless Congress, in the exercise of its plenary authority, should undertake to organize the new jurisdiction.
But every revolutionary proceeding is to be avoided. It is within the recollection of all familiar with our history, that our fathers, while regulating the separation of the Colonies from the parent country, were careful that all should be done according to forms of law, so that the thread of legality should continue unbroken. To this end the Continental Congress interfered by supervising direction. But the Tory argument denied the power of Congress then as earnestly as now. Mr. Duane, of the Continental Congress, made himself its mouthpiece.
“Congress ought not to determine a point of this sort, about instituting government. What is it to Congress how justice is administered? You have no right to pass the resolution, any more than Parliament has. How does it appear that no favorable answer is likely to be given to our petitions?”[203]
In spite of this argument, the Congress of that day undertook, by formal resolutions, to indicate the process by which the new governments should be constituted.[204]
If we seek for the principle which entered into this proceeding of the Continental Congress, we find it in the idea that nothing can be left to illegal or informal action, but that all must be done according to rules of constitution and law previously ordained. Perhaps this principle has never been more distinctly or powerfully enunciated than by Mr. Webster, in his speech against the Dorr Constitution in Rhode Island. According to him, this principle is a fundamental part of what he calls our American system, under which the right of suffrage is prescribed by previous law, including its qualifications, the time and place of its exercise, and the manner of its exercise; and then, again, the results are certified to the central power by some certain rule, by some known public officers, in some clear and definite form, thus accomplishing two things: first, that every man entitled to vote may vote; secondly, that his vote may be sent forward and counted, so that practically he may exercise his part of sovereignty in common with his fellow-citizens. Such, according to Mr. Webster, are minute forms which must be followed, if we would impart to the result the crowning character of law. And here are other positive words from him on this important point.
“We are not to take the will of the people from public meetings, nor from tumultuous assemblies, by which the timid are terrified, the prudent are alarmed, and by which society is disturbed. These are not American modes of signifying the will of the people, and they never were.”
“Is it not obvious enough, that men cannot get together and count themselves, and say they are so many hundreds and so many thousands, and judge of their own qualifications, and call themselves the people, and set up a government? Why, another set of men, forty miles off, on the same day, with the same propriety, with as good qualifications, and in as large numbers, may meet and set up another government.”
“When, in the course of events, it becomes necessary to ascertain the will of the people on a new exigency or a new state of things or of opinion, the legislative power provides for that ascertainment by an ordinary act of legislation.”
“What do I contend for? I say that the will of the people must prevail, when it is ascertained; but there must be some legal and authentic mode of ascertaining that will, and then the people may make what government they please.”
“All that is necessary here is, that the will of the people should be ascertained by some regular rule of proceeding, prescribed by previous law.”
“But the law and the Constitution, the whole system of American institutions, do not contemplate a case in which a resort will be necessary to proceedings aliunde, or outside of the law and the Constitution, for the purpose of amending the frame of government.”[205]
Happily, we are not constrained to any such revolutionary proceeding. The new governments can all be organized by Congress, which is the natural guardian of the people, without any immediate government, and within the jurisdiction of the National Constitution. Indeed, with the State governments already vacated by Rebellion, the Constitution becomes, for the time, the supreme and only law, binding alike on President and Congress, so that neither can establish any law or institution incompatible with it; and the whole Rebel region, deprived of all local government, lapses under the exclusive jurisdiction of Congress, precisely as any other territory,—or, in other words, the negation of the local government leaves the whole vast region without any other government than Congress, unless the President should undertake to govern it by military power. Startling as this proposition may seem, especially to all who believe that there is a “divinity doth hedge” a State hardly less than a king, it will appear, on careful consideration, to be as well founded in the Constitution as it is simple and natural, while it affords easy and constitutional solution to all present embarrassments.
I have no theory to maintain, but only the truth; and in presenting this argument for Congressional government I simply follow teachings which I cannot control. The wisdom of Socrates, in the words of Plato, has aptly described these teachings, when he says,—
“These things, as I affirm, are held and bound (though it is somewhat rude to say so) in reasons of iron and adamant, as would really appear to be the case,—so that, unless you, or some one stronger than you, can break them, it is not possible that any one who says otherwise than as I now say can speak correctly; for my statement is always the same,—that I know not how these things are, but that of all the persons with whom I have ever conversed, as now with you, no one who says otherwise can avoid being ridiculous.”[206]
Show me that I am wrong, that this conclusion is not founded in the Constitution, and is not sustained by reason, and I shall at once renounce it; for, in the present condition of affairs, there can be no pride of opinion which must not fall at once before the sacred demands of country. Not as partisan, not as advocate, do I make this appeal, but simply as citizen, seeking, in all sincerity, to offer my contribution to the establishment of that policy by which Union and Peace may be restored.
Looking at the origin of this power in Congress, we find that it comes from three distinct fountains, any one of which is ample to supply it. Three fountains, generous and hospitable, are found in the Constitution ready for this occasion.
First. From the necessity of the case, ex necessitate rei, Congress must have jurisdiction over every portion of the United States where there is no other government; and since in the present case there is no other government, the whole region falls within the jurisdiction of Congress. This jurisdiction is incident, if you please, to that guardianship and eminent domain belonging to the United States over all its territory and the people thereof, and springing into activity when the local government ceases. It can be questioned only in the name of the local government; but since this government has disappeared in the Rebel States, the jurisdiction of Congress is uninterrupted there. The whole broad Rebel region is tabula rasa, or “a clean slate,” where Congress, under the Constitution of the United States, may write the laws. In adopting this principle, I follow the authority of the Supreme Court of the United States in determining the jurisdiction of Congress over the Territories. Here are the words of Chief-Justice Marshall:—
“Perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory.”[207]
If the right to govern may be the inevitable consequence of the right to acquire territory, surely, and by much stronger reason, this right must be the inevitable consequence of the sovereignty of the United States, wherever there is no local government.
Secondly. The jurisdiction may also be derived from the Rights of War, which surely are not less abundant for Congress than for President. If the President, disregarding the pretension of State Rights, can appoint military governors within the Rebel States to serve a temporary purpose, who can doubt that Congress can exercise a similar jurisdiction? That of the President is derived from the war powers; but these are not sealed to Congress. If it be asked, where in the Constitution such powers are bestowed upon Congress, I reply, that they are found precisely where the President now finds his powers. But it is clear that the powers to “declare war,” to “suppress insurrections,” and to “support armies” are all ample for this purpose. It is Congress that conquers, and the same authority that conquers must govern. Nor is this authority derived from any strained construction; it springs from the very heart of the Constitution. It is among those powers, latent in peace, which war and insurrection call into being, but as intrinsically constitutional as any other power.
Even if not conceded to the President, these powers must be conceded to Congress. Would you know their extent? They are found in the authoritative texts of Public Law,—in the works of Grotius, Vattel, and Wheaton. They are the powers conceded by civilized society to nations at war, known as Rights of War,—at once multitudinous and minute, vast and various. It would be strange, if Congress could organize armies and navies to conquer, and could not also organize governments to protect.
De Tocqueville, who saw our institutions with so keen an eye, remarked, that, since, in spite of all political fictions, the preponderating power resided in the States and not in the nation, a civil war here would be “nothing but foreign war in disguise.”[208] Of course the natural consequence would be to give the nation, in such a civil war, all the rights it would have in a foreign war. And this conclusion from the observation of the ingenious publicist has been practically adopted by the Supreme Court of the United States, in those recent cases where this tribunal, after most learned argument, followed by most careful consideration, adjudged, that, since the Act of Congress of July 13, 1861, the nation has been waging “a territorial civil war,” in which all property afloat, belonging to a resident of the belligerent territory, is liable to capture and condemnation as lawful prize. But, surely, if the nation may stamp upon all residents in this belligerent territory the character of foreign enemies, so as to subject ships and cargoes to the penalties of confiscation, it may perform the milder service of making all needful rules and regulations for the government of this territory under the Constitution, so long as requisite for the sake of peace and order; and since the object of war is “indemnity for the past and security for the future,” it may do everything necessary to make these effectual. But it will not be enough to crush the Rebellion; its terrible root must be exterminated, so that it may no more flourish in blood.
Thirdly. There is another source for this jurisdiction common alike to Congress and the President. It is found in the constitutional provision, that “the United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion.” Here, be it observed, are words of guaranty and an obligation of protection. In the original concession to the United States of this twofold power there was open recognition of the ultimate responsibility and duty of the National Government, conferring jurisdiction above all pretended State Rights; and now the occasion has come for the exercise of this twofold power thus solemnly conceded. The words of twofold power and corresponding obligation are plain, and beyond question. If there be any ambiguity, it is only in what constitutes a republican form of government. But for the present this question does not arise. It is enough that a wicked rebellion has undertaken to detach certain States from the Union, and to take them beyond its protection and sovereignty, with the menace of seeking foreign alliance and support, even at the cost of every distinctive institution. It is well known that Mr. Madison anticipated this precise danger from Slavery, and upheld this precise grant of power in order to counteract the danger. His words, which will be found in a yet unpublished document produced by Mr. Collamer in the Senate, seem prophetic.
Among the defects he remarked in the old Confederation was what he called “want of guaranty to the States of their constitutions and laws against internal violence.” In showing why this guaranty was needed, he says, that, “according to republican theory, right and power, being both vested in the majority, are held to be synonymous; according to fact and experience, a minority may, in an appeal to force, be an overmatch for the majority”; and he then adds, in words of wonderful prescience, “Where Slavery exists, the republican theory becomes still more fallacious.”[209] This was written in April, 1787, before the meeting of the Convention that formed the National Constitution. Here is the origin of the very clause in question. The danger which this statesman foresaw is now upon us. When a State fails to maintain a republican government, with officers sworn according to requirement of the Constitution, it ceases to be a constitutional State. The very case contemplated by the Constitution has arrived, and the National Government is invested with plenary powers, whether of peace or war. There is nothing in the storehouse of peace, and there is nothing in the arsenal of war, it may not employ in the maintenance of this solemn guaranty, and in the extension of that protection against invasion to which it is pledged. But this extraordinary power carries with it corresponding duty. Whatever shows itself dangerous to a republican form of government must be removed without delay or hesitation; and if the evil be Slavery, our action will be bolder when it is known that the danger was foreseen.
In reviewing these three sources of power, I know not which is most complete. Either is ample alone; but the three together are three times ample. Thus out of this triple fountain, or, if you please, by this triple cord, do I educe the power of Congress over the vacated States.
There are yet other words of the Constitution which cannot be forgotten. “New States may be admitted by the Congress into this Union.” Assuming that the Rebel States are no longer de facto States of this Union, but that the territory occupied by them is within the jurisdiction of Congress, then these words become completely applicable. It is for Congress, in such way as it shall think best, to regulate their return to the Union, whether in time or manner. No special form is prescribed. But the vital act must proceed from Congress. Here again is another testimony to that Congressional power, which, under the Constitution, will restore the Republic.
Against this power I have heard nothing which can be called argument. There are objections, originating chiefly in the baneful pretension of State Rights; but these objections are animated by prejudice rather than reason. Assuming the impeccability of a State, and openly declaring that States, like kings, can do no wrong, while, like kings, they wear “the round and top of sovereignty,” politicians treat them with most mistaken forbearance and tenderness, as if these Rebel corporations could be dandled into loyalty. At every suggestion of rigor, State Rights are invoked; and we are vehemently told not to destroy the States, when all that Congress proposes is simply to recognize the actual condition of the States, and undertake their temporary government by providing for the condition of political syncope into which they have fallen, and during this interval substitute its own constitutional powers for the unconstitutional powers of the Rebellion. Congress will blot no star from the flag, nor will it obliterate any State liabilities; but it will seek, according to its duty, in the best way, to maintain the great and real sovereignty of the Union, by upholding the flag unsullied, and by enforcing everywhere within its jurisdiction the supreme law of the Constitution.
At the close of an argument already too long drawn out, I shall not stop to array the considerations of reason and expediency in behalf of this jurisdiction; nor shall I dwell on the inevitable influence it must exercise over Slavery, which is the motive of the Rebellion. To my mind nothing can be clearer, as a proposition of Constitutional Law, than that everywhere within the exclusive jurisdiction of the National Government Slavery is impossible. The argument is as brief as it is unanswerable. Slavery is so odious that it can exist only by virtue of positive law, plain and unequivocal; but no such words can be found in the Constitution; therefore Slavery is impossible within the exclusive jurisdiction of the National Government. For many years I have had this conviction, and have constantly maintained it. I am glad to believe that it is implied, if not expressed, in the Chicago Platform. Mr. Chase, among our public men, is known to accept it sincerely. Thus Slavery in the Territories is unconstitutional; but if the Rebel territory falls under the exclusive jurisdiction of the National Government, then Slavery becomes impossible there. In a legal and constitutional sense, it must die at once. The air is too pure for a slave. I cannot doubt that this great triumph has been already won. The moment that the States fell, Slavery fell also; so that, even without any proclamation of the President, Slavery ceased to have legal and constitutional existence in every Rebel State.
Even if we hesitate to accept this important conclusion, which treats Slavery within the Rebel States as already dead in law and Constitution, it cannot be doubted that by the extension of Congressional jurisdiction, as now proposed, many difficulties will be removed. Holding every acre of soil and every inhabitant within its jurisdiction, Congress can easily do whatever is needful within Rebel limits to assure freedom and save society. The soil may be divided among patriot soldiers, poor whites, and freedmen; but above all things the inhabitants may be saved from harm. Those citizens in the Rebel States who throughout the darkness of the Rebellion have kept their faith will be protected, and the freedmen rescued from hands that threaten to cast them back into Slavery.
This jurisdiction, which is so completely practical, is grandly conservative also. Had it been early recognized that Slavery depends exclusively upon the local government, and falls with that government, who can doubt that every Rebel movement would have been checked? Tennessee and Virginia would never have stirred; Maryland and Kentucky would never have thought of stirring; there would have been no talk of neutrality between the Constitution and the Rebellion; and every Border State would have been fixed in loyalty. Let it be established in advance, as an inseparable incident to every Act of Secession, that it is not only impotent against the National Constitution, but that, on its occurrence, both soil and inhabitants lapse beneath the jurisdiction of Congress, and no State will ever again pretend to secede. The word “territory,” according to old and quaint etymology, is said to come from terreo, to terrify, because it was a bulwark against the enemy: Territorium est quidquid hostis terrendi causâ constitutum est,[210]—“A territory is anything established for the purpose of terrifying an enemy”; but I know of no way in which our Rebel enemy would have been more terrified than by being told that his course would inevitably precipitate his State into a territorial condition. Let this principle be adopted, and it will contribute essentially to that consolidation of the Union which was so near the heart of Washington.
The necessity of this principle is apparent as a restraint upon the lawless vindictiveness and inhumanity of the Rebel States, whether against Union men or against freedmen. Union men in Virginia already tremble at the thought of being delivered over to a State government wielded by original Rebels pretending to be patriots; but the freedmen, who have only recently gained their birthright, are justified in keener anxiety, lest it should be lost as soon as won. Mr. Saulsbury, a Senator from Delaware, with most instructive frankness, has announced in public debate what the restored State governments will do. Assuming that the local governments will be preserved, he predicts that in 1870 there will be more slaves in the United States than there were in 1860, and then unfolds the reason as follows, all of which will be found in the “Congressional Globe.”
“By your Acts you attempt to free the slaves. You will not have them among you. You leave them where they are. Then what is to be the result? I presume that local State governments will be preserved. If they are, if the people have a right to make their own laws and to govern themselves, they will not only reënslave every person that you attempt to set free, but they will reënslave the whole race.”[211]
Nor has the horrid menace of reënslavement proceeded from the Senator from Delaware alone. It has been uttered even by Mr. Willey, the mild Senator from Virginia, speaking in the name of State Rights. Newspapers have taken up and repeated the revolting strain. That is to say, no matter what may be done for Emancipation, whether by proclamation of the President, or by Congress even, the State, resuming its place in the Union, will, in the exercise of its sovereign power, reënslave every colored person within its jurisdiction; and this is the menace from Delaware, and even from regenerated Western Virginia! I am obliged to Senators for their frankness. If additional motive were needed for the urgency with which I assert the power of Congress, it would be found in the pretensions thus savagely proclaimed. In the name of Heaven, let us spare no effort to save the country from such shame, and an oppressed people from the additional outrage.
As I quote Mr. Willey, I desire his precise words should be understood, that the country may see the necessity of Congressional action. In opposing Emancipation in the District of Columbia, he depicted the unhappy fate of the freedman.
“Suppose they are emancipated, what then? Are they freemen in fact? Will they have the rights of freemen? Sir, such an idea is utterly fallacious. It will practically amount to nothing. You cannot enact the slave into a freeman by bill in Congress. A charter of his liberty may be engrossed, enrolled, and passed into a law, with all the formalities of legislation, and still he must remain virtually a slave.”[212]
Pursuing this same strain in a later debate on the Confiscation Bill, which provided for Emancipation in certain cases, the Senator said:—
“Sir, what will be the necessary and inevitable result of this policy, if it be carried into effect? It will be that Virginia, by this increase of the free negro population under the operation of this bill, will be driven not only to reënslave those who may be manumitted under the operation of the present bill, but also to reënslave the sixty thousand free negroes already there.… Sir, the evil will be unendurable, and the result will be the reënslavement of the slaves thus manumitted, as well as those already free in our State.”[213]
I quote these words with extreme pain. Their author is not known as a fanatic of Slavery. Therefore do they reveal the terrible peril against which Congress must provide.
“Once free, always free.” This is a rule of law and an instinct of humanity. It is a self-evident axiom, which only tyrants and slave-traders have denied. The brutal pretension thus flamingly advanced already puts us all on our guard. There must be no chance or loophole for such intolerable, Heaven-defying iniquity. Alas! there have been crimes in human history, but I know of none blacker than this. There have been acts of baseness, but I know of none more utterly vile. Against the possibility of such a sacrifice we must take a bond which cannot be set aside; and this can be found only in the powers of Congress.
Congress has already done much. Besides its noble Act of Emancipation, it has provided that every person guilty of treason, or of inciting or assisting the Rebellion, shall be “disqualified to hold any office under the United States”[214]; and by another Act it has provided, that every person, elected or appointed to any office of honor or profit under the Government of the United States, shall, before entering upon its duties, take and subscribe an oath or affirmation that he has “never voluntarily borne arms against the United States since he has been a citizen thereof,” or “voluntarily given aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto,” or “sought, or accepted, or attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States.”[215] This oath is a bar against return to national office of any taking part with the Rebels. It shuts out in advance the whole criminal company. But these same persons, rejected by the National Government, are left free to hold office in the States; and here is another motive to further action by Congress. The oath is well as far as it goes; more must be done in the same spirit.
But enough. The case is clear. Behold the Rebel States in arms against that paternal government to which, as the supreme condition of constitutional existence, they owe duty and love; and behold all legitimate powers, executive, legislative, and judicial, in these States, abandoned and vacated. It only remains that Congress should enter and assume the proper jurisdiction. If we are not ready to exclaim with Burke, speaking of revolutionary France, “It is but an empty space on the political map,” we may at least adopt the response hurled back by Mirabeau, that this empty space is a volcano red with flames and overflowing with lava-floods. But whether we deal with it as “empty space” or as “volcano,” the jurisdiction, civil and military, centres in Congress, to be employed for the happiness, welfare, and renown of the American people,—changing Slavery into Freedom, and present Chaos into a Cosmos of perpetual beauty and power.
BENJAMIN FRANKLIN AND JOHN SLIDELL AT PARIS.
Article in the Atlantic Monthly, November, 1863.
This article appeared originally under the title, “Monograph from an Old Note-Book.” Beyond the curiosity of the discussion was the object, at a critical moment, of contrasting the diplomatic representative of our fathers at Paris and that of Rebel Slavery, with a new appeal to France. It was in the same vein with the recent speech on Our Foreign Relations.[216]
In a famous speech, made in the House of Lords, March 6, 1838, against the Eastern slave-trade, Lord Brougham arrests the current of his eloquence by the following illustrative diversion.
“I have often heard it disputed among critics, which of all quotations was the most appropriate, the most closely applicable to the subject-matter illustrated; and the palm is generally awarded to that which applied to Dr. Franklin the line in Claudian,—
‘Eripuit fulmen cœlo, mox sceptra tyrannis’;
yet still there is a difference of opinion, and even that citation, admirably close as it is, has rivals.”[217]
The British orator errs in attributing this remarkable verse to Claudian, misled, perhaps, by reminiscence of like-sounding words by that poet,—
“Rapiat fulmen sceptrumque Typhœus.”[218]
And he errs also in the quotation of the verse itself, which he fails to give with entire accuracy. And this double mistake becomes more noticeable, when it appears in the carefully prepared collection of speeches, revised at leisure, and preserved in permanent volumes.
The beauty of this verse, even in its least accurate form, will not be questioned, especially as applied to Franklin, who, before the American Revolution, in which he performed so illustrious a part, had already awakened the world’s admiration by drawing the lightning from the skies. But, beyond its acknowledged beauty, this verse has an historic interest which has never been adequately appreciated. Appearing at the moment it did, it is closely associated with the acknowledgment of American Independence. Plainly interpreted, it calls George the Third “tyrant,” and announces that the sceptre has been snatched from his hands. It was a happy ally to Franklin in France, and has ever since been an inspiring voice. Latterly it has been adopted by the city of Boston, and engraved on granite in letters of gold, in honor of its greatest son and citizen. It may not be entirely superfluous to recount the history of a verse which has justly attracted so much attention, and in the history of Civilization has been of more value than the whole State of South Carolina.
From its first application to Franklin, this verse has excited something more than curiosity. Lord Brougham tells us that it is often discussed in private circles. There is other evidence of the interest it has created. For instance, in an early number of “Notes and Queries,” is the following inquiry:—
“Can you inform me who wrote the line on Franklin,
‘Eripuit cœlo fulmen, sceptrumque tyrannis’?
“Henry H. Breen.
“St. Lucia.”[219]
A subsequent writer in this same work, after calling the verse “a parody” of a certain line of Antiquity, says: “I am unable, however, to say who adapted these words to Franklin’s career. Was it Condorcet?”[220] Another writer in the same work says: “The inscription was written by Mirabeau.”[221]
I remember well a social entertainment in Boston, where a distinguished scholar of our country,[222] in reply to an inquiry at the table, said that the verse was founded on a line from the “Astronomicon” of Manilius, which he repeated:—
“Eripuitque Jovi fulmen, viresque tonandi.”[223]
John Quincy Adams, who was present, seemed to concur. Mr. Sparks, in his notes to the correspondence of Franklin, attributes to it the same origin.[224] But there are other places where its origin is traced with more precision. One of the correspondents of “Notes and Queries” says that he has read, but does not remember where, “that this line was immediately taken from one in the ‘Anti-Lucretius’ of Cardinal Polignac.”[225] Another correspondent shows the intermediate authority.[226] My own notes were made without any knowledge of these studies, which, while fixing its literary origin, fail to exhibit its important character, especially as illustrating an historical epoch.
The verse cannot be found in any ancient writer,—not Claudian or anybody else. It is clear that it does not come from Antiquity, unless indirectly; nor does it appear that at the time of its first production it was referred to any ancient writer. Manilius was not mentioned. It is of modern invention, and was composed after the arrival of Franklin in Paris on his eventful mission. At first it was anonymous, but was attributed sometimes to D’Alembert and sometimes to Turgot. Beyond question, it was not the production of D’Alembert, while it is found in the Works of Turgot, published after his death, in the following form:—
“Eripuit cœlo fulmen, sceptrumque tyrannis.”[227]
There is no explanation by the editor of the circumstances under which the verse was written; but it is given among poetical miscellanies of the author, immediately after a translation into French of Pope’s “Essay on Man,” in connection with the following French composition, entitled “Verses beneath the Portrait of Benjamin Franklin”:—
“Le voilà ce mortel dont l’heureuse industrie
Sut enchaîner la Foudre et lui donner des loix,
Dont la sagesse active et l’éloquente voix
D’un pouvoir oppresseur affranchit sa Patrie,
Qui désarma les Dieux, qui réprime les Rois.”
The single Latin verse is a marvellous substitute for these diffuse and feeble lines.
If there were any doubt upon its authorship, it would be removed by the positive statement of Condorcet, who, in his Life of Turgot, written shortly after the death of this great man, says: “There is known from Turgot but one Latin verse, designed for the portrait of Franklin”; and he gives the verse in this form:—
“Eripuit cœlo fulmen, mox sceptra tyrannis.”[228]
But Sparks and Mignet,[229] and so also both the biographical dictionaries of France,—that of Michaud and that of Didot,—while ascribing it to Turgot, concur in the form already quoted from Turgot’s Works, which was likewise adopted by Ginguené, the scholar who has done so much to illustrate Italian literature, on the title-page of his “Science du Bon-Homme Richard,” with an abridged Life of Franklin, in 1794, and by Cabanis, who lived in such intimacy with Franklin.[230] It cannot be doubted that this was the final form the verse assumed,—as it is unquestionably the best.
This verse was no common event. It was a new expression of the French alliance, and an assurance of independence. After its appearance and general adoption, there was no retreat for France.
To appreciate its importance in marking and helping a great epoch, certain dates must be borne in mind. Franklin reached Paris on his mission towards the close of 1776. He had already signed the Declaration of Independence, and his present duty was to obtain the recognition of France for the new power. The very clever Madame du Deffand, in her amusing correspondence with Horace Walpole, describes him in a visit to her “with a fur cap on his head and spectacles on his nose,” in the same small circle with Madame de Luxembourg, a great lady of the time, the Abbé Barthélemy, and the Duc de Choiseul, late Prime-Minister. This was on the 31st of December, 1776.[231] A pretty good beginning. More than a year of effort and anxiety ensued, brightened at last by the Burgoyne surrender at Saratoga. On the 6th of February, 1778, the work of the American Plenipotentiary was crowned by the signature of the two Treaties of Alliance and Commerce, by which France acknowledged our independence and pledged her belligerent support. On the 13th of March, one of these treaties, with a diplomatic note announcing that the Colonies were free and independent States, was communicated to the British Government, at London, which promptly encountered it by a declaration of war. On the 20th of March, Franklin was received by the King at Versailles, and this remarkable scene is described by the same feminine pen to which we are indebted for the early glimpse of him on his arrival in Paris.[232] But throughout this intervening period he had not lived unknown. Indeed, he had become at once a celebrity. Lacretelle, the eminent French historian, says: “By the effect which Franklin produced in France he might have been said to have fulfilled his mission, not to a court, but to a free people.… His virtues and renown negotiated for him.”[233]
Condorcet, who was part of that intellectual society which welcomed the new Plenipotentiary, has left a record of his reception. “The celebrity of Franklin in the sciences,” he says, “gave him the friendship of all who love or cultivate them, that is, of all who exert a real and durable influence upon public opinion. At his arrival he became an object of veneration to all enlightened men, and of curiosity to others. He submitted to this curiosity with the natural facility of his character, and with the conviction that he thereby served the cause of his country. It was an honor to have seen him. People repeated what they had heard him say. Every fête which he was willing to receive, every house where he consented to go, spread in society new admirers, who became so many partisans of the American Revolution.… Men whom the reading of philosophical books had secretly disposed to the love of Liberty became enthusiastic for that of a strange people.… A general cry was soon raised in favor of the American War, and the friends of peace dared not even complain that peace was sacrificed to the cause of Liberty.”[234] This is an animated picture by an eye-witness. But all authorities concur in its truthfulness. Even Capefigue, whose business is to belittle all that is truly great, and especially to efface the names associated with human liberty, while, like another Old Mortality, he furbishes the tombstones of royal mistresses, is yet constrained to attest the popularity and influence which Franklin achieved. The critic dwells on what he styles his “Quaker garb,” his “linen so white under his brown clothes,” and also the elaborate art of the philosopher, who understood France and knew well “that a popular man became soon more powerful than power itself”; but he cannot deny that the philosopher “fulfilled his duties with great superiority,” or that he became at once famous.[235] The rosewater biographer of Diane de Poitiers, Madame de Pompadour, and Madame du Barry would naturally disparage the representative of Science and Revolution.
From other quarters proceeds concurring testimony. A correspondent at Paris wrote: “He now engrosses the whole attention of the public. People of all ranks pay their court to him. His affability and complaisant behavior have gained him the esteem of the greatest people in this kingdom.”[236] Another wrote a little later: “When Dr. Franklin appears abroad, it is more like a public than a private gentleman, and the curiosity of the people to see him is so great that he may be said to be followed by a genteel mob.”[237] His mysterious power was asserted by an American newspaper, in announcing his intention “shortly to produce an electrical machine of such wonderful force, that, instead of giving a slight stroke to the elbows of fifty or a hundred thousand men who are joined hand in hand, it will give a violent shock even to Nature herself, so as to disunite kingdoms, join islands to continents, and render men of the same nation strangers and enemies to each other.”[238] The London paper which spoke of him as “the old fox” acknowledged his power.[239]
The influence of Franklin was great beyond that of any American in Europe since. His presence gave character to the cause he represented, and was a standing recommendation of our country. Jefferson, who served two years with him at Paris, describes his influence there, and, in reply to the charge of subservience, says, in pregnant words: “He possessed the confidence of that Government in the highest degree, insomuch that it may truly be said that they were more under his influence than he under theirs. The fact is, that his temper was so amiable and conciliatory, his conduct so rational, never urging impossibilities, or even things unreasonably inconvenient to them, in short, so moderate and attentive to their difficulties, as well as our own, that what his enemies called subserviency I saw was only that reasonable disposition which, sensible that advantages are not all to be on one side, yielding what is just and liberal, is the more certain of obtaining liberality and justice.”[240] It is easy to see how such a character obtained from the French people the fame of snatching the sceptre from the tyrant.
The arrival of Franklin was followed very soon by the departure of the youthful Lafayette, who crossed the sea to offer his inspired sword to the service of American Liberty. Our cause was now widely known. In the thronged cafés and the places of public resort it was discussed with sympathy and admiration.[241] And so completely was Franklin recognized as the representative of new ideas, that the Emperor Joseph the Second of Austria, professed reformer as he was, visiting France under the travelling name of Count Falkenstein, is reported to have remarked, when asked to see him, “My business is to be a royalist,”—thus doing homage to the real character of him in whom the Republic was personified.
Franklin became at once, by natural attraction, the welcome guest of that brilliant company of philosophers who exercised such influence over the eighteenth century. The “Encyclopédie” was their work, and they were masters at the Academy. He was received into their guild. At the famous table of the Baron D’Holbach, where twice a week, Sunday and Thursday, at dinner, lasting from two till seven o’clock, were gathered the wits of the time, he found a hospitable chair. But he was most at home with Madame Helvétius, the widow of the rich and handsome philosopher, whose name, derived from Switzerland, is now almost unknown. At her house he met in social familiarity D’Alembert, Diderot, D’Holbach, Morellet, Cabanis, and Condorcet, with their compeers. There, also, was Turgot, greatest of all. There was another, famous in some respects as any of these, but leading a different life, whom Franklin saw often,—Caron Beaumarchais, author already of the “Barbier de Séville,” as he was afterwards of the “Mariage de Figaro,” who, turning aside from an unsurpassed success at the theatre, exerted his peculiar genius to enlist the French Government on the side of the struggling Colonies, predicted their triumph, and at last, under the assumed name of a mercantile house, became the agent of the Comte de Vergennes in furnishing clandestine supplies of arms before the recognition of independence. It is supposed that through this popular dramatist Franklin maintained communications with the French Government until the mask was thrown aside.[242]
Beyond all doubt, Turgot is one of the most remarkable intelligences that France has produced. He was by nature a philosopher and a reformer; but he was also a statesman, with a seat in the Cabinet of Louis the Sixteenth, first as Minister of the Marine, and then as Comptroller-General of the Finances. Perhaps no minister ever studied more completely the good of the people. His administration was one constant benefaction. But he was too good for the age,—or, rather, the age was not good enough for him. The King was induced to part with him, forgetting his earlier words, “You and I are the only two persons who really love the people.” This was some time in May, 1776; so that Franklin, on his arrival, found this eminent Frenchman free from all constraints of ministerial position. The character of Turgot shows how naturally he sympathized with the Colonies struggling for independence, especially when represented by a person like Franklin. In a prize essay of his youth, written in 1750, when he was only twenty-three years of age, he foretold the American Revolution. These are his remarkable words:—
“Colonies are like fruits, which hold to the tree only till their maturity. Having become sufficient to themselves, they do that which Carthage did, that which America will one day do.”[243]
One of his last acts before leaving the Ministry was to prepare a memoir on the American War, for the information and at the request of the King, where he says, that “the idea of the absolute separation of the Colonies and the mother country seems infinitely probable,—that, when the independence of the Colonies shall be entire and acknowledged by the English themselves, there will be a total revolution in the political and commercial relations of Europe and America,—and that all the parent states will be forced to abandon all empire over their colonies, to leave them entire liberty of commerce with all nations, and to be content in sharing with others this liberty, and in preserving with their colonies the bonds of amity and fraternity.”[244] This memoir of the French statesman bears date the 6th of April, 1776, nearly three months before the Declaration of Independence.
Leaving the Ministry, Turgot devoted himself to literature, science, and charity, translating Odes of Horace and portions of Virgil, studying geometry with Bossut, chemistry with Lavoisier, astronomy with Rochon, and interesting himself in everything by which human welfare is advanced. Such a character, with such experience of government, and the prophet of American independence, was naturally prepared to welcome Franklin, not only as philosopher, but also as statesman.
The classical welcome was partially anticipated,—at least in an unsuccessful attempt. Baron Grimm, in that interesting and instructive “Correspondance,” prepared originally for the advantage of distant courts, but now constituting a literary and social monument of the period, mentions, under date of October, 1777, that the following French verses were made for the portrait of Franklin by Cochin, engraved by St. Aubin:—
“C’est l’honneur et l’appui du nouvel hémisphère;
Les flots de l’Océan s’abaissent à sa voix;
Il réprime ou dirige à son gré le tonnerre:
Qui désarme les dieux, peut-il craindre les rois?”[245]
These lines seem to contain the very idea in the verse of Turgot. But they were suppressed at the time by the censor, on the ground that they were “blasphemous,” although it is added in a note that “they concerned only the King of England.” Was it that the negotiations with Franklin were not yet sufficiently advanced? And here mark the dates.
It was only after the communication to Great Britain of the Treaty of Alliance and the reception of Franklin at Versailles, that the seal seems to have been broken. Baron Grimm, in his “Correspondance,” under date of April, 1778, makes the following entry.
“A very beautiful Latin verse has been made for the portrait of Dr. Franklin,—
‘Eripuit cœlo fulmen, sceptrumque tyrannis.’
It is a happy imitation of a verse of the ‘Anti-Lucretius,’—
‘Eripuitque Jovi fulmen, Phœboque sagittas.’”[246]
Here is the earliest notice of this verse, authenticating its origin. Nothing further is said of the “Anti-Lucretius”; for in that day it was familiar to every lettered person. But I shall speak of it before I close.
Only a few days later the verse appears in the correspondence of Madame D’Épinay, whose intimate relations with Baron Grimm—the subject of curiosity and scandal—will explain her early knowledge of it. She records it in a letter to the very remarkable Italian Abbé Galiani, under date of May 3, 1778. And she proceeds to give a translation in French verse, which she says “D’Alembert made the other morning on waking.”[247] Galiani, who was himself a master of Latin versification, and followed closely the fortunes of America, must have enjoyed the tribute. In a letter written shortly afterwards, he enters into all the grandeur of the occasion. “You have,” says he, “at this hour decided the greatest revolution of the globe,—the question whether America shall rule Europe, or Europe shall continue to rule America. I would wager in favor of America.”[248] In these words the Neapolitan said as much as Turgot.
I cannot quote Galiani without adding that nobody saw America with more prophetic eye than this inspired Pulcinello of Naples. As far back as May 18, 1776, several weeks even before the Declaration of Independence, and much longer before it was known in Europe, he wrote: “The epoch is come for the total fall of Europe and for transmigration to America.… Do not, then, buy your house in the Chaussée d’Antin, but at Philadelphia. The misfortune for me is that there are no abbeys in America.”[249] Once a favorite in the very circle where Franklin was welcomed, he left Paris for Italy before the arrival of the negotiator, so that he knew the tribute only through a faithful correspondence.
Shortly afterwards the verse appears in a different scene. It had reached the salons of Madame Doublet, whence it was transferred to the “Mémoires Secrets” of Bachaumont, under date of June 8, 1778, as “a very beautiful verse, quite proper to characterize M. Franklin and to serve as an inscription for his portrait.”[250] These Memoirs, as is well known, are the record of news and town-talk gathered in the circle of that venerable Egeria of gossip;[251] and here is evidence of the publicity this welcome had promptly obtained.
The verse was now fairly launched. War was flagrant between France and Great Britain. No longer was there any reason why the new alliance between France and the United States should not be placed under the auspices of genius, and why the same hand that had snatched the lightning from the skies should not have the fame of snatching the sceptre from King George the Third. The time for free speech had come. It was no longer “blasphemous.”
It will be observed that these records of this verse fail to mention the immediate author. Was he unknown at the time? or did the fact that he was recently a Cabinet Minister induce him to hide behind a mask? Turgot was a master of epigram,—as witness the terrible lines on Frederick of Prussia;[252] but he was very prudent in conduct. “Nobody,” said Voltaire, “so skilful to launch the shaft without showing the hand.” There is a letter from no less a person than D’Alembert, which reveals something of the “filing” which the verse underwent, and something of the persons consulted. Unhappily, the letter is without date; nor does it appear to whom it was addressed, except that the “cher confrère” seems to imply that it was to a brother of the Academy. This letter is found in a work now known to have been the compilation of the Marquis Gaëtan de la Rochefoucauld,[253] entitled “Mémoires de Condorcet sur la Révolution Française, extraits de sa Correspondance et de celles de ses Amis,” and is introduced by the following words from the Marquis:—
“It is known how Franklin was fêted when he came to Paris, because he was the representative of a republic. The philosophers, especially, received him with enthusiasm. It may be said, among other things, that D’Alembert lost his sleep; and we are going to prove it by a letter which he wrote, while racking his brain to versify in honor of Franklin.”
The letter is then given as follows:—
“Friday Morning.
“My dear Colleague,— … You are acquainted with the Franklin verse,—
‘Eripuit cœlo fulmen, mox sceptra tyrannis.’
You should surely cause it to be put in the Paris paper, if it is not there already.
“I am inclined to agree with La Harpe that sceptrumque is better: first, because mox sceptra is a little hard, and then because mox, according to the dictionary of Gesner, who adduces examples, signifies equally statim or deinde, which makes an ambiguity, mox eripuit or mox eripiet.
“Be that as it may, here is how I have attempted to translate this verse for the portrait of Franklin:—
‘Tu vois le sage courageux
Dont l’heureux et mâle génie
Arracha le tonnerre aux dieux
Et le sceptre à la tyrannie.’
If you find these verses sufficiently tolerable, so that people will not laugh at me, you can have them put into the Paris paper, even with my name. I shall honor myself in rendering this homage to Franklin, but on condition once more that you find the verses printable. As I make little pretension on account of them, I shall be perfectly content, if you reject them as bad.
“The third verse might be put, A ravi le tonnerre aux cieux or aux dieux. I should prefer the other; but you shall choose.”[254]
From this letter it appears that the critical judgment of La Harpe, confirmed by D’Alembert, sided for sceptrumque as better than mox sceptra.
The verse of Turgot was not alone in its testimony. An incident precisely contemporaneous shows how completely France had fallen under the fascination of the American cause. Voltaire, the acknowledged chief of French literature in the brilliant eighteenth century, after many years of busy exile at Ferney, in the neighborhood of Geneva, where he had wielded his far-reaching sceptre, was induced in old age to visit Paris once again before he died. He left his Swiss retreat on the 6th of February, 1778, the very day on which Franklin signed the alliance with France, and, after a journey which resembled the progress of a sovereign, reached Paris on the 10th of February. He was at once surrounded by the homage of all most illustrious in literature and science, while the Theatre, grateful for his contributions, vied with the Academy. There were two characters on whom the patriarch, as he was fondly called, lavished a homage of his own. He had already addressed to Turgot a most remarkable epistle in verse, the mood of which may be seen in its title, “Épître à un Homme”; but on seeing the discarded statesman, who had been so true to benevolent ideas, he came forward to meet him, saying, with his whole soul, “Let me kiss the hand which signed the salvation of the people.” The scene with Franklin was more touching still. Voltaire began in English, which he had spoken early in life, but, having lost the habit, soon changed to French, saying that he “could not resist the desire of speaking for one moment the language of Franklin.” The latter had brought with him his grandson, for whom he asked a benediction. “God and Liberty,” said Voltaire, putting his hands upon the head of the child; “this is the only benediction proper for the grandson of Franklin.” A few weeks afterward, at a public session of the Academy, they were placed side by side, when, amidst the applause of the enlightened company, the two old men rose and embraced. The political triumphs of Franklin and the dramatic triumphs of Voltaire caused the exclamation, “Solon and Sophocles embrace!” It was more than this. It was France and America embracing beneath the benediction of “God and Liberty.” Only a month later Voltaire died. But the alliance with France had received new assurance, and the cause of American independence an immutable impulse.
Turgot did not live to enjoy the final triumph to which he had given such remarkable expression. He died March 20, 1781, several months before that “crowning mercy,” the capture of Cornwallis, and nearly two years before the Provisional Articles of Peace, by which the Colonies were recognized as free and independent States. But his attachment to Franklin was one of the enjoyments of his latter years.[255] Besides the verse to which so much reference has been made, there is an interesting incident attesting the communion of ideas between them, if not the direct influence of Turgot. Captain Cook, the eminent navigator, who “steered Britain’s oak into a world unknown,” was in distant seas on a voyage of discovery. Such an enterprise naturally interested Franklin, and, in the spirit of a refined humanity, he sought to save it from the chances of war. Accordingly, he issued a passport, addressed “To all captains and commanders of armed ships acting by commission from the Congress of the United States of America, now in war with Great Britain,” where, after setting forth the nature of the voyage of the English navigator, he proceeded to say: “This is most earnestly to recommend to every one of you, that, in case the said ship, which is now expected to be soon in the European seas on her return, should happen to fall into your hands, you would not consider her as an enemy, nor suffer any plunder to be made of the effects contained in her, nor obstruct her immediate return to England by detaining her or sending her into any other part of Europe or to America, but that you would treat the said Captain Cook and his people with all civility and kindness, affording them, as common friends to mankind, all the assistance in your power which they may happen to stand in need of.”[256] This document bears date March 10, 1779. But Turgot had anticipated Franklin. At the first menace of war he had submitted a memoir to the French Government, on which it was ordered that Captain Cook should not be treated as an enemy, but as a benefactor of all European nations.[257] Here was a triumph of Civilization by which we, too, have been gainers; for such an example is universal and immortal in influence.
There is yet another circumstance which should be mentioned as revealing an identity of sympathies in these two eminent persons. Each sought to marry Madame Helvétius: Turgot early in life, while she was still Mademoiselle Ligniville, belonging to a family of twenty-one children, from a château in Lorraine, and a niece of Madame de Graffigny, author of the “Peruvian Letters”; Franklin in his old age, while a welcome guest in the intellectual company which this widowed lady continued to gather about her at Auteuil, in the neighborhood of Paris, and not far from his own house at Passy. Throughout his stay in France he continued in unbroken relations with this circle, dining with it very often, and adding much to its gayety, while Madame Helvétius, with her friends, dined with him once a week. It was with tears in his eyes that he parted from her, whom he never expected to see again in this life; and on reaching his American home he addressed her in words of touching tenderness: “I stretch out my arms towards you, notwithstanding the immensity of the seas which separate us, while I wait the heavenly kiss which I firmly trust one day to give you.”[258]
In the permanent group about Madame Helvétius were Cabanis and Morellet, both living for many years under her hospitable roof. To the former we are indebted for the interesting extract last quoted. The intimacy with Franklin is attested in other ways. Nobody who has visited the Imperial[259] Library at Paris can forget his very pleasant autograph note in French concerning Madame Helvétius, exhibited in the same case with an autograph note of Henry the Fourth to Gabrielle d’Estrées.
Another glimpse is furnished by Mrs. Adams, who, in her family correspondence, reports a scene at the house of Franklin. “The Doctor entered at one door, she [Madame Helvétius] at the other; upon which she ran forward to him, caught him by the hand, ‘Hélas, Franklin!’—then gave him a double kiss, one upon each cheek, and another upon his forehead.… She carried on the chief of the conversation at dinner, frequently locking her hand into the Doctor’s.” Franklin spoke of her as “a genuine Frenchwoman, wholly free from affectation or stiffness of behavior, and one of the best women in the world.”[260] Madame Helvétius died at Auteuil, August 12, 1800, aged eighty-one, and, according to her desire, was buried in her garden. A few years later the same house became the home of Benjamin Thompson, Count Rumford, who died there, and was buried in the neighboring cemetery.
But the story of the verse is not yet finished. And here it mingles with the history of Franklin in Paris, constituting an episode of the American Revolution. The verse was written for a portrait. And now that the costly first step had been taken, the portrait of Franklin was seen everywhere,—in painting, in sculpture, and in engraving. I have counted in the superb collection of the Bibliothèque Impériale, at Paris, forty-seven engraved heads of him. At the royal exhibition of pictures the republican portrait found place, and the name of Franklin was printed at length in the catalogue,—a circumstance which did not pass unobserved at the time; for the “Espion Anglais,” in recording it, treats it as “announcing that he began to come out of his obscurity.”[261] The same curious authority, describing a festival at Marseilles, says, under date of March 20, 1779, “I was struck, on entering the hall, to observe a crowd of portraits representing the insurgents; but that of M. Franklin especially drew my attention, on account of the device, ‘Eripuit cœlo fulmen, sceptrumque tyrannis.’ This was inscribed recently, and every one admired the sublime truth.”[262] Thus completely was France, not merely in its social centre, where fashion gives the law, but in its distant borders, pledged to the cause of which Franklin was the representative.
As in halls of science and popular resorts, so was our Plenipotentiary even in the palace of princes. The biographer of the Prince de Condé dwells with admiration upon the illustrious character, who, during the great debate and the negotiations that ensued, had fixed the regards of Paris, of Versailles, of the whole kingdom indeed,—although in simple and farmer-like exterior, so unlike those gilded plenipotentiaries to whom France was accustomed,—and he recounts, most sympathetically, that the Prince, after an interview of two hours, declared that “Franklin appeared to him above even his reputation.”[263] And here we encounter again the unwilling testimony of Capefigue, who says that he was followed everywhere, taking possession of “hearts and minds,” and that “his picture, in his simple Quaker dress, was suspended at the hearth of the poor and in the boudoir of the fashionable,”[264]—all of which is in harmony with the more sympathetic record of Lacretelle, who says that “portraits of Franklin were to be seen everywhere, with this inscription, which the Court itself found just and sublime, ‘Eripuit cœlo fulmen, sceptrumque tyrannis.’”[265]
Fragonard, the King’s painter, united in this adulation. A French paper describes the artist as displaying his utmost efforts “in an elegant picture dedicated to the genius of Franklin, who is represented with one hand opposing the ægis of Minerva to the thunderbolt, which he first knew how to fix by his conductors, and with the other commanding the God of War to fight against Avarice and Tyranny, whilst America, nobly reclining upon him, and holding in her hand the fasces, true emblem of the union of the American States, looks down with tranquillity on her defeated enemies.” It is then said, that “the painter, in this picture, most beautifully expressed the idea of the Latin verse which has been so justly applied to M. Franklin.” The enthusiastic journalist, not content with the picture and the verse, proceeded to claim him as of French ancestry. “Franklin appears rather to be of French than of English origin. It is certain that the name of Franklin, or Franquelin, is very common in Picardy, especially in the districts of Vimeux and Ponthieu. It is very probable that one of the Doctor’s ancestors was an inhabitant of this country, and went over to England with the fleet of Jean de Biencourt, or that which was fitted out by the nobility of this province.”[266] The story of Homer seems revived.
The tribute of Madame d’Houdetot was most peculiar. This lady, one of the riddles of French society in the eighteenth century, whom Rousseau depicted in a passage of surpassing fervor and made the inspiration of his “Nouvelle Éloïse,” received Franklin at her château, near Paris, in a brilliant circle, with banquet and verses in his honor. The famous guest, at his arrival, and then at dinner, with every glass of wine was saluted by a new verse, the whole ending with the ascription of Turgot.[267] Whether to admire or pity the philosopher on this occasion is the question.
In the minds of Frenchmen Franklin was associated always with this verse; but such association was no common fame. The Marquis de Chastellux, while on board the French frigate in the Chesapeake Bay, on which he was about to leave, after those travels which did so much to make our country known in Europe, addressed a communication to Professor Madison, of Virginia, on the fine arts in America, where he recommends for all the great towns a portrait of Franklin, “with the Latin verse inscribed in France below his portrait.”[268] Thus, while teaching our fathers the homage due to the great citizen, the generous Frenchman did not forget the testimony of his countryman.
French invention stopped not with Turgot. Other verses were pitched on the same key. An engraving of Franklin by Chevillet, after a portrait by Duplessis, has this tribute:—
“Honneur du Nouveau Monde et de l’Humanité,
Ce Sage aimable et vrai les guide et les éclaire;
Comme un autre Mentor, il cache à l’œil vulgaire,
Sous les traits d’un mortel, une Divinité.”
Under another engraving, by F. N. Martinet, where Franklin is seated in a chair, are these lines:—
“Il a ravi le feu des cieux,
Il fait fleurir les arts en des climats sauvages;
L’Amérique le place à la tête des sages,
La Grèce l’auroit mis au nombre de ses Dieux.”
It was at Court, even in the palatial precincts of Versailles, that the portrait and its famous inscription had their most remarkable experience. Of this there is authentic account in the Memoirs of Marie Antoinette by her attendant, Madame Campan. This feminine chronicler relates that Franklin appeared at court in the dress of an American farmer. His flat hair without powder, his round hat, his coat of brown cloth contrasted with the bespangled and embroidered dresses, the powdered and perfumed coiffures of the courtiers. The novelty charmed the lively imagination of the French ladies. Elegant fêtes were given to the man who was said to unite in himself the renown of one of the greatest of natural philosophers with “those patriotic virtues which had made him embrace the noble part of Apostle of Liberty.” Madame Campan records that she assisted at one of these fêtes, where the most beautiful among three hundred ladies was designated to place a crown of laurel upon the white head of the American philosopher, and two kisses upon the cheeks of the old man. Even in the palace, at the exposition of the Sèvres porcelain, the medallion of Franklin, with the legend, “Eripuit cœlo,” etc., was sold directly under the eyes of the King. Madame Campan adds, however, that the King avoided expressing himself on this enthusiasm, which, “without doubt, his sound sense led him to blame.” But an incident, called “a pleasantry,” which has remained quite unknown, goes beyond speech in explaining the secret sentiments of Louis the Sixteenth. The Comtesse Diane de Polignac, devoted to Marie Antoinette, shared warmly the “infatuation” with regard to Franklin. The King observed it. But here the story shall be told in the language of the eminent lady who records it: “Il fit faire à la manufacture de Sèvres un vase de nuit, au fond duquel était placé le médaillon avec la légende si fort en vogue, et l’envoya en présent d’étrennes à la Comtesse Diane.”[269] Such was the exceptional treatment of Franklin, and of the inscription in his honor which was “so much in vogue.” Giving to this incident its natural interpretation, it is impossible to resist the conclusion, that the French people, and not the King, sanctioned American independence.
The conduct of the Queen on this occasion is not recorded, although we are told by the same communicative chronicler, who had been her Majesty’s companion, that she did not hesitate to express herself more openly than the King on the part taken by France in favor of American independence, to which she was constantly opposed. A letter from Marie Antoinette, addressed to Madame de Polignac, under date of April 9, 1787, declares unavailing regret in memorable words: “The time of illusions is past, and to-day we pay dear on account of our infatuation and enthusiasm for the American War.”[270] Evidently, Marie Antoinette, like her brother Joseph, thought that her “business was to be a royalist.”
But the name of Franklin triumphed in France. So long as his residence continued there he was received with honor; and when, after the achievement of independence, and the final fulfilment of all that was declared in the verse of Turgot, he undertook to return home, the Queen—who had looked with so little favor upon the cause he so grandly represented—sent a litter to receive his sick body and carry him gently to the sea. As the great Revolution began to show itself, his name was hailed with new honor; and this was natural; for the French Revolution was an outbreak of the spirit that had risen to welcome him. In snatching the sceptre from a tyrant he had given a lesson to France. His death, when at last it occurred, was the occasion of a magnificent eulogy from Mirabeau, who, borrowing the idea of Turgot, exclaimed from the tribune of the National Assembly, “Antiquity would have raised altars to the powerful genius, who, to the benefit of mankind, embracing in his thought both heaven and earth, could subdue lightning and tyrants.” On his motion, France went into mourning for Franklin.[271] His bust became a favorite ornament, and, during the festival of Liberty, it was carried, with the busts of Sidney, Rousseau, and Voltaire, before the people to receive their veneration.[272] A little later, the eminent medical character, Cabanis, who had lived in intimate association with Franklin, added his testimony, saying, that the enfranchisement of the United States was in many respects his work, and that the Revolution, the most important to the happiness of men which had then been accomplished on earth, united with one of the most brilliant discoveries of physical science to consecrate his memory; and he concludes by quoting the verse of Turgot.[273] Long afterwards, his last surviving companion in the cheerful circle of Madame Helvétius, still loyal to the idea of Turgot, hailed him as “that great man who placed his country in the number of independent states, and made one of the most important discoveries of the age.”[274]
It is time to look at this verse in its literary relations, from which I have been diverted by its commanding import as a political event; but this naturally enhances the interest in its origin.
The poem which furnished the prototype of the famous verse was “Anti-Lucretius, sive de Deo et Natura,” by the Cardinal Melchior de Polignac. Its author was of that patrician house associated so closely with Marie Antoinette in the earlier Revolution, and with Charles the Tenth in the later Revolution, having its cradle in the mountains of Auvergne, near the cradle of Lafayette, and its present tomb in the historic cemetery of Picpus, near the tomb of Lafayette, so that these two great names, representing opposite ideas, begin and end side by side. He was not merely author, but statesman and diplomatist also, under Louis the Fourteenth and Fifteenth. Through his diplomacy a French prince was elected King of Poland. He represented France at the Peace of Utrecht, where he bore himself very proudly towards the Dutch. By the nomination of the Pretender, at that time in France, he obtained the hat of a cardinal. At Rome he was a favorite, and also at Versailles, with some interruptions. His personal appearance, his distinguished manners, his genius, and his accomplishments, all commended him. Literary honors were superadded to political and ecclesiastical. He succeeded to the chair of Bossuet at the Academy. But he was not without the vicissitudes of political life. Falling into disgrace at court, he was banished to the abbacy of Bonport. There the lettered Prince of the Church occupied himself with a refutation of Lucretius, in Latin verse.
The origin of the poem is not without interest. Meeting Bayle in Holland, the Frenchman found the indefatigable skeptic most persistently citing Lucretius, in whose elaborate verse the atheistic materialism of Epicurus is developed and exalted. Others had answered the philosopher directly; but the indignant Christian was moved to answer the poet through whom the dangerous system was proclaimed. His poem was, therefore, a vindication of God and religion, in direct response to a master-poem of antiquity in which these are assailed. The attempt was lofty, especially when the champion adopted the language of Lucretius. Perhaps no writer of Latin verse since the admired Sannazaro, found equal success. Even before its publication, in 1747, it was read at court, and was admired in the princely circle of Sceaux. It appeared in elegant editions, was translated into French prose by Bougainville, and into French verse by Jeanty-Laurans, also most successfully into Italian verse by Ricci. At the latter part of the last century, when Franklin reached Paris, it was hardly less known in literary circles than a volume of Grote’s History in our own day. Voltaire, the contemporary arbiter of literary fame, regarding the author only on the side of literature, said of him, in his “Temple du Goût”:—
“Le Cardinal, oracle de la France,
…
Réunissant Virgile avec Platon,
Vengeur du Ciel et vainqueur de Lucrèce.”[275]
The last line of this remarkable eulogy has a movement and balance not unlike the Latin verse of Turgot, or that which suggested it in the poem of Polignac; but the praise it so pointedly offers attests the fame of the author. Nor was this praise limited to the “fine frenzy” of verse. The “Anti-Lucretius” was gravely pronounced the “rival of one of the greatest poems of ancient Rome,”—“with verses as flowing as Ovid, sometimes approaching the elegant simplicity of Horace and sometimes the nobleness of Virgil,”—and then again, with a philosophy and a poetry combined which “would not be disavowed either by Descartes or by Virgil.”[276]
Turning now to the poem itself, we see how completely the verse of Turgot finds its prototype. Epicurus is indignantly described as denying to the gods all power, and declaring man independent, so as to act for himself; and here the poet says: “Assailing the thundering temples of heaven, he snatched the lightning from Jove and the arrows from Apollo, and, liberating the human race, bade it dare all things”:—
“Cœli et tonitralia templa lacessens,
Eripuit fulmenque Jovi, Phœboque sagittas;
Et mortale manumittens genus, omnia jussit
Audere.”[277]
To deny the power of God, and to declare independence of His commands, which the poet here holds up to judgment, is very unlike the life of Franklin, all whose service was in obedience to God’s laws, whether in snatching the lightning from the skies or the sceptre from tyrants; and yet it is evident that the verse picturing Epicurus in his impiety suggested the image of the American plenipotentiary in his double labors of science and statesmanship.
The present story will not be complete without further reference to the poem of Antiquity supposed to have suggested the verse of Turgot, and which doubtless did suggest the verse of the “Anti-Lucretius.” Manilius is a poet little known. It is difficult to say when he lived or what he was. He is sometimes imagined to have lived under Augustus, and sometimes under Theodosius. He is sometimes imagined to have been a Roman slave, and sometimes a Roman senator. His poem, under the name of “Astronomicon,” is a treatise on astronomy in verse, recounting the origin of the material universe, exhibiting the relations of the heavenly bodies, and vindicating this ancient science. While describing the growth of knowledge, gradually mastering Nature, the poet says,—
“Eripuitque Jovi fulmen, viresque tonandi.”[278]
The meaning of this line is seen in the context, which, for plainness as well as curiosity, I quote from a metrical version of the first book, entitled “The Sphere of Marcus Manilius made an English Poem, by Edward Sherburne, Esquire,” and dedicated to Charles the Second:—
“Nor put they to their curious search an end,
Till reason had scaled heaven, thence viewed this round,
And Nature latent in its causes found:
Why thunder does the suffering clouds assail;
Why winter’s snow’s more soft than summer’s hail;
Whence earthquakes come, and subterranean fires;
Why showers descend; what force the wind inspires:
From error thus she wondering minds uncharmed,
Unsceptred Jove, the Thunderer disarmed.”
Enough has been said on the question of origin; but there is yet one other aspect of the story.
The verse was hardly divulged when it became the occasion of various efforts in the way of translation. Turgot had already done it into French; so had D’Alembert. M. Nogaret wrote to Franklin, inclosing an attempted translation, and says in his letter: “The French have done their best to translate this Latin verse, where justice is done you in so few words. They have appeared as jealous of transporting this eulogy into their language as they are of possessing you. But nobody has succeeded, and I think nobody will succeed.” He then quotes a translation which he thinks defective, although it appeared in the “Almanach des Muses” as the best:—
“Cet homme que tu vois, sublime en tous les tems,
Dérobe aux dieux la foudre et le sceptre aux tyrans.”[279]
To this communication Dr. Franklin made the following reply.
“Passy, 8 March, 1781.
“Sir,—I received the letter you have done me the honor of writing to me the 2d instant, wherein, after overwhelming me with a flood of compliments, which I can never hope to merit, you request my opinion of your translation of a Latin verse that has been applied to me. If I were, which I really am not, sufficiently skilled in your excellent language to be a proper judge of its poesy, the supposition of my being the subject must restrain me from giving any opinion on that line, except that it ascribes too much to me, especially in what relates to the tyrant,—the Revolution having been the work of many able and brave men, wherein it is sufficient honor for me, if I am allowed a small share. I am much obliged by the favorable sentiments you are pleased to entertain of me.…
“With regard, I have the honor to be, Sir, &c.,
“B. Franklin.”[280]
In acknowledgment, M. Nogaret says: “Paris is pleased with the translation of your ‘Eripuit,’ and your portrait, as I had foreseen, makes the fortune of the engraver.”[281] But it does not appear to which translation he refers.
Here is an attempt preserved in the Works of Turgot:—
“Il a, par ses travaux toujours plus étonnans,
Ravi la foudre aux Dieux et le sceptre aux Tyrans.”[282]
Mr. Sparks found among Franklin’s papers the following paraphrastic version:—
“Franklin sut arrêter la foudre dans les airs,
Et c’est le moindre bien qu’il fit à sa patrie;
Au milieu de climats divers,
Où dominait la tyrannie,
Il fit régner les arts, les mœurs, et le génie;
Et voilà le héros que j’offre à l’univers.”[283]
Nor should I omit a translation into English by Mr. Elphinston:—
“He snatched the bolt from Heaven’s avenging hand,
Disarmed and drove the tyrant from the land.”[284]
A song, by the Abbé Morellet, written for one of the dinners of Madame Helvétius, adopts, in some of its verses, the idea of Turgot.
“Comme un aigle audacieux,
Il a volé jusqu’aux cieux,
Et dérobé le tonnerre
Dont ils effrayaient la terre,
Heureux larcin
De l’habile Benjamin.
“L’Américain indompté
Recouvre sa liberté;
Autre exploit de notre sage,
Est mis à fin
Par Louis et Benjamin.”
These verses are characteristic of that intimate circle. L’habile Benjamin!
Nothing with regard to Franklin is more curious than the Memoirs of the long-lived Abbé,[285] including especially the humorous engraving illustrating the benevolence of Nature in the construction of the elbow, from a design by the lightning-and-sceptre-seizer. In some copies this engraving is wanting. Franklin is represented as fond especially of Scottish airs and chansons à boire, which he accompanied sometimes on the harmonica, “an instrument, as is known, of his invention.” The scandalous whispers with regard to him, strangely adopted by a German traveller in our country,[286] had no better authority, probably, than these hilarities and the well-known “infatuation” of the court ladies. But the good Abbé, who saw him so freely with the friends he loved, dwells on his exquisite social qualities, his perfect good-nature, his simplicity of manners, his uprightness of soul, which made itself felt in the smallest things, his extreme tolerance, and, above all, his sweet serenity, changing easily into gayety; and he describes the great void made in that circle when he left for America.
In concluding this sketch, I wish to say that the literary associations of the subject did not tempt me; but I could not resist the inducement to present in proper light an interesting incident, which is truly comprehended only when seen in its political relations. Its history, even in details, becomes important, so that the verse which occupied so much attention should be recognized not only in its scholarly fascination, but in its wide-spread influence among the learned and even the fashionable in Paris and throughout France, binding this great nation by an unchangeable vow to the support of American Liberty. Words are sometimes deeds; but never were words so completely deeds as those with which Turgot welcomed Franklin. The memory of that welcome cannot be forgotten in America. Can it ever be forgotten in France?
And now the country is amazed by the report that the original welcome of France to America, and the inspired welcome of Turgot to Franklin, are forgotten by the France of this day, or, rather let me say, forgotten by the Emperor, whose memory for the time is the memory of France. It is said that Louis Napoleon is concerting alliance with the Rebel Slavemongers of our country, founded on the recognition of their independence, so that they may take their place as a new power in the Family of Nations. Indeed, we have been told, through the columns of the official organ, the “Moniteur,” that he wishes to do this thing. Can he imagine that he follows the great example of the last century?
What madness!
The two cases are in conspicuous contrast,—as opposite as the poles, as unlike as Liberty and Slavery.
The struggle for American independence was for Liberty, and was elevated throughout by this holy cause. But the struggle for Slavemonger independence is necessarily and plainly for Slavery, and is degraded throughout by the unutterable vileness of its undisguised pretensions.
The earlier struggle, adopted by the enlightened genius of France, was solemnly placed under the benediction of “God and Liberty.” The present struggle, happily thus far discarded by that same enlightened genius, can have no other benediction than “Satan and Slavery.”
The earlier struggle was to snatch the sceptre from a kingly tyrant. The present struggle is to put whips in the hands of Rebel Slavemongers with which to compel work without wages, thus giving wicked power to vulgar tyrants without number.
The earlier struggle was fitly pictured by the welcome of Turgot to Franklin. But another feeling must be found, and other words invented, to portray the struggle now seeking the protection of France.
The earlier struggle was grandly represented by Benjamin Franklin, who was already known by a sublime discovery in science. The present struggle is characteristically represented by John Slidell,[287] whose great fame is from electioneering frauds to control a Presidential election; so that his character is fitly drawn, when it is said that he thrust fraudulent votes into the ballot-box, and whips into the hands of taskmasters.
The earlier struggle was predicted by Turgot, who said, that, in the course of Nature, colonies must drop from the parent stem, like ripe fruit. But where is the Turgot who has predicted, that, in the course of Nature, the great Republic must be broken to found a new power on the corner-stone of Slavery?
The earlier struggle gathered about it the sympathy of the learned, the good, and the wise, while the people of France rose up to call it blessed. The present struggle can expect nothing but detestation from all not lost to duty and honor, while the people of France must cover it with curses.
The earlier struggle enjoyed the favor of France, whether in assemblies of learning or of fashion, in spite of its King. It remains to be seen if the present struggle must not ignobly fail in France, still mindful of its early vows, in spite of its Emperor.
Where duty and honor are so plain, it is painful to think that even for a moment there can be hesitation.
Alas for France!
VICTORY AND PEACE THROUGH EMANCIPATION.
Letter to Colored Citizens in New York, celebrating the Anniversary of the Proclamation, December 18, 1863.
Washington, December 18, 1863.
GENTLEMEN,—It is not in my power to be present at your festival in honor of the Proclamation of Emancipation. But, wherever I may be, I shall celebrate it in my heart.
That Proclamation was the key to open the gates of victory and peace. Without it victory would have been doubtful, and peace impossible. And now both are certain.
Accept my best wishes, and believe me, Gentlemen,
Faithfully yours,
Charles Sumner.
The Committee, &c.
THE MAYFLOWER AND THE SLAVE SHIP.
Letter to the New England Society at New York, December 21, 1863.
At the anniversary of the Society speeches were made by Rev. Dr. Hitchcock, Mayor Opdyke, General Dix, General Burnside, General Sickles, Senator Hale, Rev. Henry Ward Beecher, and James T. Brady, Esq. Among the letters read was one from Mr. Sumner.
Senate Chamber, December 21, 1863.
MY DEAR SIR,—I had counted on partaking of your patriotic, invigorating, and gratifying festival, where New-Englanders away from home annually meet for fellowship; but the Senate is in session, and you know it is not a habit with me to leave my post. I must put off to another occasion the pleasure I had promised myself.
Never before, since the Mayflower landed its precious cargo, have New-Englanders had more reason for pride and gratulation than now. We are told that a little leaven shall leaven the whole lump, and that saying is verified. The principles and ideas which constitute the strength and glory of New England have spread against opposition and contumely, till at last their influence is visible in a regenerated country,—tried, it may be, by murderous conspiracy and rebellion, but aroused and stimulated to the manly support of Human Rights.
Amid all the sorrows of a conflict without precedent, let us hold fast to the consolation that it is in simple obedience to the spirit in which New England was founded that we are now resisting the bloody efforts to raise a wicked power on the corner-stone of Human Slavery, and that as New-Englanders we could not do otherwise.
If such a wicked power can be raised on this continent, the Mayflower traversed its wintry sea in vain.
We remember, too, that another ship crossed at the same time, buffeting the same sea. It was a Dutch ship, with twenty slaves, who were landed at Jamestown, in Virginia, and became the fatal seed of that Slavery which has threatened to overshadow the land. Thus the same ocean, in the same year, bore to the Western Continent the Pilgrim Fathers, consecrated to Human Liberty, and also a cargo of slaves. In the holds of those two ships were the germs of the present direful war, and the simple question now is between the Mayflower and the slave ship. Who that has not forgotten God can doubt the result? The Mayflower must prevail.
Believe me, with much regard, my dear Sir,
Very faithfully yours,
Charles Sumner.
Elliot C. Cowdin, Esq.
COMMUTATION FOR THE DRAFT: DIFFERENCE BETWEEN RICH AND POOR.
Remarks in the Senate, on an Amendment moved to the Enrolment Bill, January 8, 12, and June 20, 1864, and February 7, 1865.
January 8, 1864, the Senate having under consideration a bill to amend an act entitled “An Act for enrolling and calling out the national forces and for other purposes,” approved March 3, 1863, Mr. Sumner moved an amendment, afterwards modified as follows.
“That, in addition to the substitute furnished by a drafted person, or, where no substitute is furnished, then in addition to the sum fixed by the Secretary of War for the procuration of a substitute, every such drafted person shall, before his discharge from the draft, be held to contribute a certain proportion, in the nature of a tithe, of his annual gains, profits, or income, whether derived from any kind of property, dividends, salary, or from any profession, trade, or employment whatever, according to the following rates, to wit: on all income over one thousand dollars and not over two thousand dollars, five per centum; over two thousand dollars and not over five thousand dollars, ten per centum; and on all income over five thousand dollars, twenty per centum. And it shall be the duty of every such person, seeking to be discharged, to make return, either by himself or his guardian, to the provost-marshal of his district, of the amount of his income, according to the requirements of the Act to provide internal revenue, of July 1, 1862. And it is further provided, That the contribution thus made shall be employed by the Secretary of War, in his discretion, to promote enlistments, or for the benefit of enlisted men.”
January 8th, Mr. Sumner explained his amendment, remarking as follows.
MR. PRESIDENT,—I presume that I do not exaggerate, if I say, that, of all the questions connected with this bill, that relating to commutation for service is the most difficult and the most sensitive. It is the question which has most occupied the attention of the country. It has been most discussed in the newspapers, and also in conversation. I presume it is the ground of objection most often made against the draft.
Now I think all Senators will unite in any proposition that promises in any way to smooth these difficulties,—in short, to popularize a part of the bill which has been open to so much objection among the people.
January 12th, in the course of debate, Mr. Sumner replied to Mr. Sherman, of Ohio.
The Senator from Ohio, not contenting himself with opposing the amendment, introduced other and extraneous matter, which has been under discussion since, diverting our minds from the original proposition. But if I can have his attention for a few minutes, it seems to me—I do not know—- I may even satisfy him that his argument was not well founded.
If I understand the Senator, he objects to my proposition on the ground, in the first place, that it is an unusual tax. Sir, what is the draft but a tax? The draft compels all persons drafted to contribute strength, muscle, life, to the defence of the Republic. That, if I am not mistaken, is the highest tax the country can impose. But, still further, what is the commutation which the statute positively requires but a tax? If, then, there be anything in the argument of the Senator, both the draft itself and the commutation of three hundred dollars are a tax, and both are therefore objectionable. But neither the one nor the other is a tax in a received sense, because neither the one nor the other is an imposition for revenue; and I ask the attention of the Senator to the distinction, neither the one nor the other is an imposition for revenue. Not on any such ground do I present this amendment, but simply and distinctly on the duty of equalizing this burden, that it shall bear, so far as we can make it, with something like equality upon the rich and the poor. Now I have to say that at present the burden is not equalized, and that it does not bear with anything like equality upon the rich and the poor. You make the poor man pay three hundred dollars; but the rich man pays no more. Is this equality?
But the Senator went further. Not satisfied with objecting to the amendment on the ground that it was a tax, he complained that it was an exorbitant tax, and asked me whether in all history I could point to any instance of a tax of thirty per cent on income. It seems to me that it should be the pride of our country, at this moment and on an occasion like this, that it is not to be deterred by history from an endeavor to equalize a burden upon the rich and the poor. Because other nations have not undertaken to equalize this burden, is that a reason why we should not set the example? But is the tax exorbitant? I will read it.
“On all income over six hundred dollars and not over two thousand dollars, ten per cent; over two thousand dollars and not over five thousand dollars, twenty per cent; and on all income over five thousand dollars, thirty per cent.”[288]
Now the Senator complains of the thirty per cent, that is, thirty per cent on an income over five thousand dollars. Suppose a person drafted with an income over five thousand dollars, I put it to the Senator, what sum would be too great for him to pay for exemption, carrying with it, as the draft does, exposure to death, disease, wounds, with the absolute consumption of time during the period of one, two, or three years, according to the duration of the service? Is thirty per cent on an income above five thousand dollars too much for the exemption? Is it exorbitant? Is that the estimate the Senator puts upon such exposure? He requires three hundred dollars from the poor man who has no income, but he thinks it exorbitant to require thirty per cent on an income over five thousand dollars. Sir, I do not think that even in the requirement of this amendment there is equality. If any objection can be brought forward, it is that it is too lenient, that it does not go far enough.
I am sure, eminent as the Senator is, and justly representing his own State, that he does not represent on this question every citizen of that State. I have in my hand a letter, received since this amendment was first mentioned, from a most respectable citizen of Cincinnati, and with your permission I will read three or four sentences from it. I read simply to show how this proposition strikes citizens at a distance, yet having the same interest in it that we have.
“Permit a stranger to address a few words to you, expressive of approbation of your bill”—
He calls it a bill, when it is only an amendment.
—“providing for a revision of the Enrolment Act, so as to afford a sliding scale of commutation for the draft, the object being to rate commutation according to the means of the drafted individual. I quote from telegrams of this morning’s news. In my humble opinion you have hit the nail on the head. I think this is the only method to equalize the burden, and satisfy all claims for justice and equitable dealing. When any fixed sum is indicated as the commutation fee to exempt from actual military duty, it needs but little reflection to see that it indirectly imposes a premium upon property while it taxes the poor.”
Then he goes on to suppose a case, somewhat at length, quite elaborately indeed, between two citizens of Cincinnati, neighbors, whom he minutely describes, and finally winds up that part of his communication by saying,—
“Suppose the latter person [whom he calls John Smith] is drafted. Why, three hundred dollars is no more to him than a three-penny loaf to the other person. Am I not right, that a fixed sum for exemption imposes a tax upon honest poverty and a premium upon wealth?”
This intelligent constituent of the Senator objects to his whole theory as a tax upon honest poverty and a premium upon wealth. The Senator opposes my amendment as a tax upon wealth. Call it, if you please, a tax upon wealth. The time has come when it should be levied. But I put aside such language. I put aside the idea, except in the general sense, that the draft itself is a tax, and the amendment simply aims to equalize that tax.
The amendment was lost,—Yeas 15, Nays 25.
January 15th, Mr. Sumner moved his amendment as an additional section. Again it was lost,—Yeas 16, Nays 28.
June 20th, the Senate having under consideration a bill to prohibit the discharge of persons from liability to military duty by reason of the payment of money, Mr. Sumner moved again the former amendment, with the further proviso:—
“That the contributions thus made shall be employed by the Secretary of War as a fund for bounties to be paid to the men actually drafted and mustered into the service under any call subsequent to the date of this Act, whenever they shall be honorably discharged, or, in the case of death, to the widow and minor children of any such man, according to rules and regulations established by the War Department.”
Mr. Sumner again vindicated his amendment. In the course of his remarks, he said:—
When a citizen is drafted as a soldier, and the question arises of his ransom by a pecuniary contribution, there is no element of equity which is not shocked, so my conscience tells me, if you fail to regulate the requirement of money according to the wealth of the individual. What is there which a man will not give for his life? What is there which a man, having the means, and indisposed to military exposure, will not pay for his exemption? And yet, Sir, by the law as it now stands, you compel the poor to pay the same as the rich. The rich man is drafted, and he pays three hundred dollars, which to him is nothing; he puts his hand into his purse, as you put yours into your pocket to find the change for a newspaper; whereas the poor man, perhaps, is driven to sell all that he has to save himself for his family. Sir, is that just? To my mind it is not.
…
Suppose the Senator himself were drafted; indisposed, as he probably would be, to the toils of war, what is there that he would not consent to pay for exemption? To him, under such circumstances, the required amount would be nothing; and yet to the poor man it is everything. In short, there are many who have it not; and there are many, who, by calling upon their friends, and exhausting every resource within their reach, are not able to command that small sum; others, perhaps, just able to command it, are compelled to burden their families and deny comfort to wife and child.
Now, Sir, the rich man is under no such obligation. If he be drafted under existing laws, he finds his substitute, or he tosses into the Treasury the required amount; he draws his check, and it is all over. Sir, there is no equity in the law as it stands. The proposition I present has in it two elements: the first is that it seeks justice; the second is that it provides a fund out of which bounties may be distributed by the Secretary of War among the men drafted and mustered into service. Here is another attraction to the service,—or, if it be not another attraction, it is something which will mitigate its hardships. The soldier, while on the field of battle, or on his weary march, will bear in mind, that, when the time of honorable discharge at last arrives, or should he be taken away by death, then, for the benefit of his wife and minor children, he may look to the fund from these contributions for a bounty which shall be to him or to them something in the way of support. Therefore in the pending amendment is an inducement which all confess is needed to carry forward our enrolments, and also something more to mitigate them.
On motion of Mr. Grimes, of Iowa, the bill was recommitted to the Committee on Military Affairs, who reported it without amendment.
February 7, 1865, the Senate having under consideration another bill in addition to the several acts for enrolling and calling out the national forces and for other purposes, Mr. Sumner seized the occasion to renew his amendment, and again vindicated it. In reply to Mr. Cowan, of Pennsylvania, he said:—
The Senator from Pennsylvania opposes my proposition, and treats the Senate to a very elaborate disquisition on political economy in general, on the depreciation of the currency in particular, also on taxation, and still further on salaries.
Now, Sir, admitting all the honorable Senator has so ably said as perfectly true, that it is according to just principles of political economy and the experience of the world (for I am not disposed to go at this moment into that discussion with the learned Senator), the proposition that I have the honor to make is not touched by a hair’s breadth. My proposition involves no question of political economy, no question of the currency, or of taxation, or of salaries. It has nothing to do with any of these matters. Its single and exclusive object is to equalize the burden of the draft. There is no political economy in it. There is nothing but justice. Therefore I propose that every drafted person, before discharge from the draft, shall be held to contribute not merely a substitute, but a certain tithe of his annual gains.
I am not tenacious with regard to the percentage. If Senators suggest a different rate, I shall be perfectly willing to yield. The proposition is the best that, under the circumstances, I can devise. Other Senators may improve it; it is open to improvement; but I submit that the criticism of the Senator from Pennsylvania does not touch it in the least. The proposition still stands, in its original character, as a measure which, if adopted, would equalize this burden of the draft. It would, if I may so express myself, temper this terrible draft to the poor of the country. It would make them see that legislators here, while imposing it, thought of the poor, and took such steps as they could to the end that this burden should not press upon them with undue severity,—so that it might, to a certain extent, be equalized upon them and upon the rich. I know full well that this cannot be accomplished completely; but, Sir, an endeavor in such direction is something. I think that the Senate must make the endeavor. In the name of the poor, who are liable to be enrolled, I ask it. Let it appear to the country, that, while requiring this draft, we recognize inequalities of condition,—that some are poor and some rich, and that the same sum ought not to be exacted from all alike.
The proposition was again lost,—Yeas 8, Nays 30. The war was near its close, and the Senate was not disposed at that late day to enter upon a change.
SPECIAL COMMITTEE ON SLAVERY AND FREEDMEN.
Resolution in the Senate, January 13, 1864.
Mr. Sumner submitted the following resolution, which was considered by unanimous consent and adopted.
RESOLVED, That a Special Committee of seven be appointed by the Chair to take into consideration all propositions and papers concerning Slavery and the treatment of Freedmen, with leave to report by bill or otherwise.
January 14th, the Vice-President appointed on this Special Committee, Mr. Sumner, Mr. Howard of Michigan, Mr. Carlile of Virginia, Mr. Pomeroy of Kansas, Mr. Buckalew of Pennsylvania, Mr. Brown of Missouri, and Mr. Conness of California. Reports from this Committee will appear in subsequent pages.
FOUNDATION OF THE FREE PUBLIC LIBRARY IN BOSTON.
Letter to a Committee in Boston, January 20, 1864.
In 1850, Hon. John P. Bigelow, Mayor of Boston, declined to receive a costly vase as a tribute to the faithful discharge of official duty, and suggested that the funds obtained for that purpose be devoted to founding a Free Public Library in Boston. Accordingly, one thousand dollars was paid to the city in the name of Mr. Bigelow, and this was the first contribution to this important object. There was a dinner at the Tremont House to commemorate this benefaction, with speeches and letters. Among the latter was the following.
Senate Chamber, January 20, 1864.
MY DEAR SIR,—It is too late for me to send anything for your meeting to-morrow evening; but it is not too late for me to express the gratitude and admiration with which at the time I witnessed the appropriation of that first thousand dollars to a Free Public Library in Boston. The money collected as a testimony to a favorite mayor became the corner-stone of a favorite institution, destined to be cherished with pride so long as our beloved city endures.
Believe me, dear Sir, faithfully yours,
Charles Sumner.
Dr. David K. Hitchcock.
LOYALTY IN THE SENATE: THE IRON-CLAD OATH FOR SENATORS.
Speech in the Senate, on a New Rule requiring the Oath of Loyalty for Senators, January 25, 1864.
By an Act of Congress of July 2, 1862, a new oath of office was prescribed in the following terms:—
“That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation.”
Then follows the oath or affirmation, as follows:—
“I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution, within the United States, hostile or inimical thereto. And I do further swear (or affirm) that to the best of my knowledge and ability I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
The Act then provides:—
“Which said oath, so taken and signed, shall be preserved among the files of the Court, House of Congress, or Department to which the said office may appertain.”[289]
This oath was popularly known as “the Iron-Clad Oath.”
On the organization of the Senate, March 4, 1863, being the first organization after the statute requiring the oath, it became necessary to consider its applicability to the Senate. Debate ensued, which can be understood only by a preliminary explanation.
The Senate was organized, in the absence of the Vice-President, by the choice of Hon. Solomon Foot, of Vermont, as President pro tempore. The oath to support the Constitution was administered to him by Mr. Foster, of Connecticut, but the additional oath was omitted. The President pro tempore then proceeded to say:—
“Senators elect and Senators whose term commences under a reëlection at this time will receive the oath of office in the order in which their names will be called by the Secretary.”
The Secretary then called the names of a long list of Senators, who came forward and took the customary oath. But the President pro tempore did not offer to administer the additional oath; nor, at the time of qualification, was anything said with regard to it. After the conclusion of the ceremony, Mr. Trumbull, of Illinois, said:—
“I desire to call the attention of the President of the Senate, and of the Senate itself, to an Act of Congress approved 2d July, 1862.”
Then, reading the Act, he added:—
“I do not know that any motion in regard to it is necessary, further than calling the attention of the presiding officer and of the Senate to the law.”
The President pro tempore said:—
“The Chair presumes it is sufficient to call the attention of Senators to that duty, and that that duty will be performed as required by law.”
Nothing, however, was done by the Chair or by Senators.
The next day, 5th March, two other Senators, Mr. Hendricks and Mr. Sprague, came forward to be qualified. The Chair proceeded to administer to these Senators the usual oath to support the Constitution, but did not administer the additional oath, and these Senators took their seats. Shortly afterwards, during the session of that day, on a call of the yeas and nays, all these Senators were called, and answered to their names.
Immediately after this call, Mr. Sumner moved an additional rule of the Senate, requiring that the oath or affirmation prescribed by Act of Congress of July 2, 1862, should be taken and subscribed by every Senator in open Senate before entering upon his duties.
On the next day, 6th of March, Mr. Bayard, of Delaware, who had been absent before, came forward to be qualified. The Chair, as in the other cases, administered the oath to support the Constitution, but omitted the additional oath, and Mr. Bayard took his seat. Afterwards, on this day, Mr. Sumner called up the proposed rule for consideration, and objected to an executive session until the question of the rule was settled, as follows.
“Here is a statute of Congress, and the question is, whether the Senate is going to set an example of obedience to it or of disobedience; that is all.… If the Senate now choose to go into executive session, they choose to enter upon most important duties in disregard of an Act of Congress which they have assisted in putting upon the statute-book.”
On coming out of executive session, which was ordered, the Senate proceeded with the consideration of the proposed rule, when Mr. Sumner spoke in vindication of it, concluding as follows.
“And now, Sir, as I conclude, let me say that I desire to take and subscribe the new oath in open Senate, that I may in all respects qualify myself for the discharge of my duties as a Senator. Others will do as they please, or as the Senate shall require. But I hope that I may appeal to the Chair to administer that oath to myself, or to direct that it shall be administered. With the expression of this desire I take my seat.”
The President pro tempore made no offer to administer the oath, but said simply:—
“The subject is under debate.”
The debate was continued until the Senator from Illinois [Mr. Trumbull] proposed that the Chair should proceed to administer the oath, while Mr. Sumner expressed a hope that the Chair would consent to administer the oath to him.
Shortly afterwards the President pro tempore said:—
“The Chair proposes now to take and subscribe this oath, in pursuance of the law of 2d July last, and, that being done, the Chair will administer the oath to such members as will voluntarily take it.”
The oath was then administered to Mr. Foot by Mr. Foster. Resuming the chair, the President pro tempore then said:—
“The Chair will now direct the Clerk to call, in alphabetical order, the names of all Senators who have been elected or reëlected since the 2d July, 1862, that being the day of the approval of the Act; and such Senators present, whose names shall be called, as choose to do so, will come forward to the Secretary’s desk and receive the oath of office administered by the Chair, after which they will have an opportunity to subscribe the oath.”
The Senators present, whose names were called, some of them after delay, came forward and took the oath; and then, at the suggestion of the Chair, Mr. Sumner withdrew the resolution. The Senator from Delaware [Mr. Bayard] was not then present.
Before withdrawing the resolution, Mr. Sumner, in reply to Mr. Reverdy Johnson, of Maryland, again vindicated the proposed rule, insisting that the statute was applicable to Senators as “civil officers,” concluding as follows.
It is our duty to guard the loyalty of this Chamber. In requiring that a person shall purge himself with regard to the past, we simply take a new assurance of fidelity for the present. Others may think that Jefferson Davis, Robert Toombs, or Judah Benjamin may resume his seat in this body, on taking a simple oath to support the Constitution. I do not think so; and I gladly seize the earliest opportunity, since the commentary of the Senator from Maryland, to declare my conviction that no person, whose loyalty is not manifest to the Senate, can be allowed to approach your desk and take the oath of a Senator. The Senate must shut the door upon him. This is not the first time that I have made this declaration: nor have I contented myself with making the declaration; I have argued it. Nothing is clearer than this: a traitor cannot be a member of the Senate. But a person who cannot take this oath, retroactive though it be, must have been a traitor. Once a traitor, always a traitor, unless where changed by pardon or amnesty.
I know not what changes may be required by changing events. For myself, I shall always welcome every act of just clemency or condonation. But for the present the statute is wise and conservative. It only remains that we should stand by it.
At the next session of Congress Mr. Sumner returned to this question. December 17, 1863, he submitted a resolution proposing a new rule.
“Resolved, That the following be added to the rules of the Senate:—
“The oath or affirmation prescribed by Act of Congress of July 2, 1862, to be taken and subscribed before entering upon the duties of office, shall be taken and subscribed by every Senator in open Senate before entering upon his duties. It shall also be taken and subscribed in the same way by the Secretary of the Senate; but the other officers of the Senate may take and subscribe it in the office of the Secretary.”
December 18th, the resolution came up for consideration, when Mr. Saulsbury, of Delaware, moved as a substitute that the Judiciary Committee be directed to inquire whether Senators and Representatives are included within the provisions of the Act prescribing the oath, and whether the Act is constitutional. Subsequently, he moved that the whole subject, including the resolution and the substitute, be referred to the Judiciary Committee, which, after debate, was rejected,—Yeas 15, Nays 26. The debate was continued, in the course of which Mr. Bayard, of Delaware, Mr. Reverdy Johnson, of Maryland, and Mr. Collamer, of Vermont, spoke at length.
January 25, 1864, Mr. Sumner spoke as follows.
MR. PRESIDENT,—There is a time for all things; but there are times when certain things are out of place; and this principle is especially applicable to the present debate. The question is on the adoption of a rule of the Senate to carry out an existing statute. It is not on the passage of the statute, or on its proposed repeal, but it is simply on its recognition as an existing statute, and the enforcement of its plain requirement. Considering the simplicity of the question, well may we be astonished at much that has been intruded into this debate.
The Senate is a branch of the legislative power, in conjunction with the House of Representatives and the President. Neither alone can make or unmake a law. The concurrence of all three is essential, whether in making or unmaking. So long as the law exists, there is no difference between the obligations of the Senate and the obligations of the humblest citizen, except, perhaps, that the Senate, which helped to make the law, is bound to set an example of obedience beyond any citizen.
Therefore I put aside, as entirely irrelevant, much that we have heard against the proposed rule. This is not the time to say that the oath is unconstitutional, or that it is ex post facto. These are considerations properly arising on the passage of the statute, or on a proposition for its repeal. The Senator from Delaware [Mr. Bayard] and the Senator from Maryland [Mr. Johnson], who have argued these topics so exhaustively, were either too late or too early. The statute is already the law of the land, and there is no bill pending for its repeal.
On a former occasion I vindicated the constitutionality of the statute, and I now willingly leave that topic to the judgment of Senators, enlightened by the wisdom of the Senator from Vermont [Mr. Collamer], whose argument has not been answered. But I repeat that this objection is utterly out of place at this moment.
A Senator over the way [Mr. Hendricks] has gone so far as to introduce my course on a former occasion as an apology for not taking the oath.[290] Because I denounced an infamous statute, which was a scandal to civilization, as unconstitutional and utterly unworthy the support of virtuous citizens, it is argued that the Slave-Drivers, then in power, were more lenient to me than we are now to them. In other words, the Slave-Drivers required of me an oath to support a statute which I abhorred, and therefore we are wrong in requiring the proposed oath. But this argument confounds two cases which are wide apart as the poles. While denouncing an outrageous statute, and refusing to play the part of slave-hunter, I never joined in rebellion against my country, or uttered one word except in loyalty. But here are persons with bloody hands, in battle array, striking at all we hold dear,—or others who have acted with them. Such persons will be justly brought to the test of an oath, and they can claim no immunity from the example of those patriot citizens who, recognizing the crime of Slavery, refused to become in any way its tools.
And another Senator [Mr. Johnson] has taken this occasion to arraign me for certain opinions on another question, and he complained that I place them under the protection of a judgment of the Supreme Court. This is not the time for the discussion of “Reconstruction.” It has nothing to do with the matter before the Senate. I may think that the Government of the United States has belligerent rights, as well as the right of sovereignty, over the Rebel States,—that it is especially the duty of Congress to take care that these rights are so exercised as to crush the Rebellion, and to prevent its breaking out again,—and that, to this end, Congress must take all possible bonds for the future. These opinions, which the Senator chose to characterize harshly, may be wrong, but they have nothing to do with the business in hand. At a proper time I shall be ready to defend them. At present I choose not to be diverted from the issue before us.
Putting aside irrelevant questions, and presenting the single point in issue, the case becomes too plain for argument. It is simply this: Will the Senate obey an existing statute? But here we must consider the meaning of the statute.
That the Senate will openly refuse obedience to an existing statute, recently enacted, in support of loyalty, is not to be supposed without impeachment of the loyalty of the Senate. Only because the question of obedience has been complicated with other questions has there been for a moment any doubt on this head. Clearly, the Senate will not disobey an existing statute. It is, then, on the statute alone, and nothing else, that any question can arise.
And here I ask leave to recall the Senate from the learned commentary and elaborate diversion of the Senator from Delaware. The actual question is one which may be treated without learning and without effort. It arises on the following words of the statute:—
“Hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation [here follows the oath]; which said oath, so taken and signed, shall be preserved among the files of the Court, House of Congress, or Department to which the said office may appertain.”[291]
It cannot fail to be observed here that the language is plain rather than technical. Every person “elected” or “appointed” to any “office” in the “civil, military, or naval departments of the public service” must take the oath. What words could be broader than “departments” and “public service”?
Obviously, and beyond all question, a Senator is “elected.” Therefore on this point there is no question.
The inquiry recurs, Is a Senator an “officer” in the “civil department of the public service”?
Is he an “officer”?
Is he in the “civil department”?
To raise these questions seems absurd. But I have not raised them. This is done by others. You might as well raise the question, if a man is a creature, and belongs to the human family.
Look now at these questions in their order.
1. Is a Senator an “officer”? Here please to consult the dictionary. I turn to Webster.
“Office.—Offices are civil, judicial, ministerial, executive, legislative, political, municipal, diplomatic, military, ecclesiastical, &c.”
Thus, plainly, offices are legislative. But why summon the dictionary? And yet the zeal of the other side leaves no alternative.
Not content with the dictionary, I call attention to the use of the word in other authoritative places,—and pardon me, if I begin with the Constitution of Massachusetts, written originally by John Adams.
In the Bill of Rights of this Constitution it is declared:—
“All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.”[292]
Members of the Legislature are classed among officers, and thus this word received its interpretation.
In another part of the same Constitution it is provided:—
“Any person chosen Governor, Lieutenant-Governor, Councillor, Senator, or Representative, and accepting the trust, shall, before he proceed to execute the duties of his place or office, make and subscribe the following declaration.”[293]
Here the place or trust of a Senator or Representative is called an office. And this same use of these terms, as synonymous, and applicable to the post of Senator or Representative, is continued:—
“Every person chosen to either of the places or offices aforesaid [meaning the offices of Governor, Lieutenant-Governor, Councillor, Senator, or Representative] … shall, before he enters on the discharge of the business of his place or office, take and subscribe,”[294] &c.
The authority of New Hampshire is like that of Massachusetts. Her Constitution declares:—
“All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them.”[295]
Here the word “officers” obviously means the substitutes and agents of the people. But who are substitutes and agents of the people more than Senators?
Then again, in the same Constitution, it is declared:—
“No office or place whatsoever in government shall be hereditary.”[296]
Here the word “office” is made synonymous with “place.”
The Constitution of Vermont testifies:—
“All power being originally inherent in, and consequently derived from, the people, therefore all officers of government, whether legislative or executive, are their trustees and servants.”[297]
Thus, in Vermont, members of the Legislature are “officers.”
The old Constitution of New Jersey testifies also, in the clause prescribing the qualifications entitling a person to vote:—
“For representatives in Council and Assembly, and also for all other public officers that shall be elected by the people of the county at large.”[298]
Here again members of the Legislature are treated as “public officers.”
The Constitution of Pennsylvania testifies:—
“Members of the General Assembly, and all officers, executive and judicial, shall be bound by oath or affirmation to support the Constitution of this Commonwealth, and to perform the duties of their respective offices with fidelity.”[299]
Here members of the General Assembly are classed with those holding “offices.”
The original Constitution of New York is more positive:—
“The chancellor and judges of the Supreme Court shall not at the same time hold any other office, excepting that of Delegate to the General Congress upon special occasions; and the first judges of the county courts in the several counties shall not at the same time hold any other office, excepting that of Senator or Delegate to the General Congress.”[300]
Here the post of Delegate to the General Congress, and also of “Senator,” is treated as an “office.”
Surely this is enough. The post of Senator is an office of honor or profit, and a “Senator” is an “officer.”
2. But, assuming that the post of Senator is an “office,” and that a Senator is an “officer,” the question occurs, To what “department of the public service” does he belong?
Clearly he is not of the “military” or “naval” department. But if not “military” or “naval,” he must be “civil.” Here again consult the dictionary. I cite Webster.
“Civil. It is distinguished from ecclesiastical, which respects the Church, and from military, which respects the army and navy.—This term is often employed in contrast with military: as, a civil hospital, the civil service, &c.”
“Civil List. In England, formerly, a list of the entire expenses of the civil government; hence the officers of civil government, who are paid from the public treasury; also, the revenue appropriated to support the civil government.”
“Civil State. The whole body of the laity or citizens, not included under the military, maritime, and ecclesiastical states.”
To say that a Senator is not included under this comprehensive, but distinctive term, is simply an absurdity.
It is evident that Congress adopted the words of the statute because they were comprehensive and distinctive. They obviously comprehended all “officers” in the “public service,” whether “elected,” like a Senator, or “appointed,” like a judge. But, beyond their plainness, these words had this added advantage, that already for more than a generation they had received a practical interpretation from Congress.
Here is the familiar Blue Book. Its title-page begins:—
“Register of officers and agents, civil, military, and naval, in the service of the United States.”
Turning to the contents, we find in this list Members of Congress, including Senators and Representatives, with the “officers and agents” of the two Houses.
If we go back to the Blue Book for 1820, which is now in my hands, we find the same title, and the same enumeration of Senators and Representatives.
This Blue Book is still published, in pursuance of a joint resolution by Congress, originally adopted as long ago as 27th April, 1816, with the following title:—
“Resolution requiring the Secretary of State to compile and print, once in every two years, a register of all officers and agents, civil, military, and naval, in the service of the United States.”
If Senators are properly included in such a register, it is only as belonging to the “civil department of the public service,” which is precisely where they have been placed by the recent Act of Congress.
The only apology for the objection urged from the beginning of this debate with so much pertinacity is founded on the case of Mr. Blount, the Senator expelled and afterwards impeached, at the close of the last century. I shall not take time to consider this case. It has been amply done by others. On former occasions I have done it at length. And yet I will not leave it without protesting again that it is absolutely inapplicable to the present occasion. If that case were out of the way, nobody would have suggested that a “Senator” was not an “officer in the civil department of the public service.” Now what did this case decide? Let another give the summary. I quote the words of Mr. Wharton, in the notes to his edition of the State Trials.
“In a legal point of view, all that this case decides is, that a Senator of the United States, who has been expelled from his seat, is not, after such expulsion, subject to impeachment; and perhaps from this the broader proposition may be drawn, that none are liable to impeachment except officers of the government, in the technical sense, excluding thereby members of the National Legislature.”[301]
The case of Mr. Blount has no application to the present question. It is not an interpretation of the statute, and so far as it illustrates the Constitution it simply concerns the liability to impeachment. But even this case has often been drawn into doubt. And if we look into the proceedings of the time, we find that the decision, such as it was, encountered an able and earnest opposition.
Among those who took a distinguished part on that occasion was James A. Bayard,[302] of Delaware, the eminent Representative who conducted the impeachment as Manager on the part of the House of Representatives. In his effective argument he has set forth the true signification of the Constitution. From the argument of the Senator from Delaware [Mr. Bayard] in the present debate I confidently appeal to that of the earlier Mr. Bayard. Here is a passage.
“I have submitted, in the course of my argument, that the sound principle of construction to be adopted, in relation to the construction of an instrument having in view the vast object of settling the powers of the Government and the rights of the people, is to give it such an interpretation as is best calculated to give effect generally to all its parts according to its true design. If I am supported in this principle, I shall be able to show, by strong cases under the Constitution, that its undeniable intention must be frustrated, if a Senator be not considered an officer of the United States.
“I find it provided in the seventh clause of the third section of the first article, that conviction on impeachment disqualifies the party convicted from holding any office of honor, trust, or profit under the United States. If a seat in the Senate be not an office, the disqualification does not extend to it. And yet can it reasonably be contended that the policy which incapacitates a citizen, if convicted on impeachment, from holding an office the most mean and humble, does not apply to the case of a Senator? The wisdom of the Constitution, Sir, has considered a conviction as an evidence of moral unfitness for public trust. It never can happen but in the case of a great national offence. And shall such an offender, degraded from the capacity of even being doorkeeper of this Chamber, yet retain the capacity of being a member of a body of the most dignity, trust, and power in the country? This is a solecism in politics, an absurdity in reason, which I trust this honorable court will not willingly by their act attach to an instrument so highly and justly revered as the Constitution of our Government.
“I find also a provision in the seventh [eighth] clause of the ninth section of the first article, that ‘no person holding any office of profit or trust under the United States shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.’ If a Senator holds no office of profit or trust under the United States, it is lawful for him to accept a present, title, or office from any king or foreign state. Can it be possible that a public functionary, of all others the peculiar object of this jealous restriction, is, in fact, the sole object of exemption from its operation? Can it be imagined that a Senator, upon whom the Constitution has heaped the powers and trusts of legislator, judge, and executive magistrate, is the only person who is left exposed to the seductions of foreign influence? It can never be admitted that a situation which from its trust and importance most invites corruption is the only one which the Constitution has not guarded against. If, Sir, a Senator be not an officer under this clause, it might happen that the Senate of the United States might become a House of Lords. It would be in the power of any king in Europe to change our free government, and to convert one branch, at least, from a republican into an aristocratic form. You will not suffer an ensign in your army to accept the humble title of Chevalier, and yet you will allow an integral part of the Government to be composed of earls and dukes. And let me pray the honorable Court to remember, at the same time, that the Constitution has provided that a member of either House shall not be allowed to retain his seat and hold any commission, civil or military, under the United States. The President has no titles to grant, nor offices of great emolument to confer; and yet the chaste republicanism of the Constitution will not allow a Senator to feel the influence of his patronage; and yet, at the same time, he may lawfully be the pensioner or the titular noble of a foreign power. Such a doctrine is not simply absurd, but infinitely dangerous.”[303]
In view of these emphatic words, it is difficult to see how any person can insist that a “Senator” is not a “civil officer,” even according to the text of the Constitution. Conceding to the judgment on the trial of impeachment all the authority which can belong to it, you cannot properly deduce from it any conclusion, except that a Senator already expelled is not a “civil officer” liable to impeachment: nothing beyond this.
But whatever the signification of this word in the Constitution, even conceding all that is claimed for it there, the instance is entirely inapplicable to the interpretation of the statute in question. If there be doubt on the Constitution, there is none on the statute. The latter is plain, and there are no associate words to interfere with its natural and unequivocal signification.
I conclude this branch of the subject as I began, by putting aside all irrelevant matter, all superfluous questions, all surplusage, all topics not properly germane to the debate. There is no question of the Constitution, no question of ex post facto, but a simple question on the meaning of a statute.
The oath is prescribed by Congress. It is too late to debate its constitutionality thus incidentally. It only remains for us to take it, promptly, patriotically. The procrastination of this debate is of evil example. How can we expect the alacrity of loyalty among the people, if the Senate hesitates?
Another objection to the proposed rule has been brought forward by the Senator from Vermont [Mr. Foot]. According to him, the statute is obligatory, and the oath must be taken by Senators, but a rule requiring the oath is superfluous and without precedent. The argument of the Senator is plausible, but it is answered by a simple statement of facts, in which, as presiding officer of the Senate, he bore a conspicuous part.
From this statement it will appear that the rule, or some equivalent action of the Senate, is not superfluous.
Here Mr. Sumner set forth the facts substantially as presented in the Introduction, showing the necessity of the proposed rule, and then proceeded.
The language of the Chair, when inviting Senators to take the oath, left a loophole through which they might avoid the oath. It was, “Such Senators present as choose to do so will come forward,” and then “they will have an opportunity to subscribe the oath.” In such terms Senators were invited to do as they pleased, thus making a discrimination between the earlier oath, which they were obliged to take in order to be qualified, and the additional oath, which they were free to neglect.
Such is a plain statement of facts, which I make in no spirit of personal criticism, but simply that you may see the occasion for the proposed rule.
Had the Chair at the beginning proceeded to administer the additional oath, as the earlier oath, there would have been no occasion for a rule. Or had the Chair afterwards, when attention was called to the omission, administered the additional oath according to the requirement of the statute, there would have been no occasion for a rule.
The Chair did no such thing, but left the taking of the oath to the conscience or will of each Senator. And though the statute solemnly declares that “every person elected or appointed to any office of honor or profit under the Government of the United States … shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe” the oath in question, yet the Senator from Delaware [Mr. Bayard] has not only “entered upon the duties” of his office as Senator, but he has continued to discharge these duties, and to draw his salary, although he has never taken and subscribed the oath.
Evidently something must be done to correct this incongruity, and to rehabilitate, if I may so say, the Act of Congress. I know no better way than by the proposed rule. But I have no partiality for this mode. I am ready for any other proposition which will lift the statute from the desuetude and neglect into which it was allowed to fall, and will secure its enforcement. In the events at hand this statute will be a safeguard of the Republic, and its enforcement here will secure its enforcement everywhere. To the traitor seeking office it will be a touchstone, while, with guardian force, it thrusts away from these Chambers all those brutal enemies, who, for the sake of Slavery, have helped to fill our land with mourning.
On the Yeas and Nays, the vote stood, Yeas 28, Nays 11. So the resolution was adopted.
January 26th Mr. Bayard took the prescribed oath, and on the 29th resigned his seat in the Senate.
January 25th, Mr. Sumner asked, and by unanimous consent obtained, leave to bring in a bill supplementary to an Act entitled “An Act to prescribe an oath of office and for other purposes,” approved July 2, 1862, which was read the first and second times by unanimous consent, and referred to the Committee on the Judiciary. It provided that no person should be admitted to the bar of the Supreme Court of the United States, or of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or should be allowed to appear and be heard in any such court, by virtue of any previous admission or any special power of attorney, unless he should have first taken the oath prescribed by the Act of July 2, 1862.
June 28th, Mr. Trumbull, from the Judiciary Committee, reported adversely on this bill.
December 22d, on motion of Mr. Sumner, the Senate proceeded to consider this bill, and it was passed,—Yeas 27, Nays 4. January 23, 1865, it passed the House of Representatives, and January 24th was approved by the President.
THE LATE HON. JOHN W. NOELL, REPRESENTATIVE OF MISSOURI.
Remarks in the Senate, on his Death, February 1, 1864.
MR. PRESIDENT,—The personal acquaintance which I had with Mr. Noell was very slight; but I honored him much, as a public servant who at a critical moment discerned clearly the path of duty and had the courage to tread it.
Born among slaves and living always under the shadow of Slavery, his character was not corrupted, nor was his judgment obscured. All of us, although born among freemen, and living far away from that influence so unhappily disturbing our country, might take counsel from his intelligent alacrity. While others hesitated, he was prompt. While others surrendered to procrastination, he grappled at once with the giant evil. Such a man was exceptional, and now that he is dead he deserves exceptional honors.
There are men in history who by a single effort fix public attention. A member of Parliament in the last century was known as “Single-Speech Hamilton.” Others have become famous from the support of a single measure. Perhaps Mr. Noell may find place in this class. But no “Single-Speech Hamilton” could claim the homage which belongs to him.
There have been many in Congress from the Slave States, but he was the first in our history inspired to bring in a bill for the abolition of Slavery in a State. Rejecting the palpable sophistries by which it was sought to postpone an act of unquestionable justice, and discarding the idea that wrong was to be dealt with tardily, gradually, or prospectively, he proposed Immediate Emancipation. Let it be spoken in his praise. Let it be carved on his tombstone. His bill passed the House. It was lost in the Senate.[304] But it was not lost to his fame. He died without beholding the fulfilment of his desires, but the cause with which his name is associated cannot die.
Among the human benefactors of Missouri, so rich in natural resources, he must always be numbered; and his memory will be appreciated there just in proportion as men discern what contributes most to the wealth, the character, and the true nobility of a State. Hereafter, when the present conflict is ended and peace once more blesses our wide-spread land, he will be mentioned gratefully with those who saw truly how this blessing was to be secured, and bravely strove for it. Better in that day to have been a doorkeeper in the house of Freedom than a dweller in the tents of the ungodly: and what ungodliness can compare with the ungodliness of Slavery, whether in the lash of the taskmaster or in the speech of its apologist?
RECONSTRUCTION AGAIN: GUARANTIES AND SAFEGUARDS AGAINST SLAVERY AND FOR PROTECTION OF FREEDMEN.
Resolutions in the Senate, February 8, 1864.
In the Senate, February 8, 1864, the following resolutions, submitted by Mr. Sumner, were read and ordered to be printed.
Resolutions defining the character of the national contest, and protesting against any premature restoration of Rebel States, without proper guaranties and safeguards against Slavery and for the protection of Freedmen.
RESOLVED, That, in determining the duties of the National Government, it is of first importance that we should see and understand the real character of the contest forced upon the United States, for failure to appreciate this contest must end in failure of those proper efforts essential to the reëstablishment of unity and concord; that, recognizing the contest in its real character, as it must be recorded by history, it is apparent that it is not an ordinary rebellion or an ordinary war, but that it is absolutely without precedent, differing from every other rebellion and every other war, inasmuch as it is an audacious attempt, for the first time in history, to found a wicked power on the corner-stone of Slavery; and that such an attempt, having this single object,—whether regarded as rebellion or war,—is so completely penetrated and absorbed, so entirely filled and possessed by Slavery, that it can be regarded as nothing else than the huge impersonation of this crime, at once rebel and belligerent, or, in other words, as Slavery in arms.
2. That, recognizing the identity of the Rebellion and Slavery, so that each is to the other as another self, it becomes plain that the Rebellion cannot be crushed without crushing Slavery, as Slavery cannot be crushed without crushing the Rebellion; that every forbearance to the one is forbearance to the other, and every blow at the one is a blow at the other; that all who tolerate Slavery tolerate the Rebellion, and all who strike at Slavery strike at the Rebellion; and that, therefore, it is our supreme duty, in which all other present duties are contained, to take care that the barbarism of Slavery, in which alone the Rebellion has its origin and life, is so utterly trampled out that it can never spring up again anywhere in the Rebel and belligerent region; for, leaving this duty undone, nothing is done, and all our blood and treasure are lavished in vain.
3. That, in dealing with the Rebel War, the National Government is invested with two classes of rights,—one the Rights of Sovereignty, inherent and indefeasible everywhere within the national limits, and the other the Rights of War, or belligerent rights, superinduced by the nature and extent of the contest; that, by virtue of the Rights of Sovereignty, the Rebel and belligerent region is now subject to the nation as its only rightful government, bound under the Constitution to all the duties of sovereignty, and by special mandate bound also to guaranty to every State a republican form of government, and to protect it against invasion; that, by virtue of the Rights of War, this same region is subject to all the conditions and incidents of war, according to the established usages of Christian nations, out of which is derived the familiar maxim of public duty, “Indemnity for the past and security for the future.”
4. That, in seeking restoration of the States to their proper places as members of the Republic, so that every State shall enjoy again its constitutional functions, and every star on the national flag shall represent a State in reality as well as in name, care must be taken that the Rebellion is not allowed, through any negligence or mistaken concession, to retain the least foothold for future activity, or the least germ of future life; that, whether proceeding by the exercise of sovereign rights or of belligerent rights, the same precautions must be exacted against future peril; that, therefore, any system of “Reconstruction” must be rejected which does not provide by irreversible guaranties against the continued existence or possible revival of Slavery, and that such guaranties can be primarily obtained only through the agency of the National Government, which to this end must assert a temporary supremacy, military or civil, throughout the Rebel and belligerent region, of sufficient duration to stamp upon this region the character of Freedom.
5. That, in the exercise of this essential supremacy of the nation, a solemn duty is cast upon Congress to see that no Rebel State is prematurely restored to its constitutional functions until within its borders all proper safeguards are established, so that loyal citizens, including the new-made freedmen, cannot at any time be molested by evil-disposed persons, and especially that no man there may be made a slave; that this solemn duty belongs to Congress under the Constitution, whether in the exercise of Rights of Sovereignty or Rights of War, and that in its performance that system of “Reconstruction” will be best, howsoever named, which promises most surely to accomplish the desired end, so that Slavery, which is the synonym of the Rebellion, shall absolutely cease throughout the whole Rebel and belligerent region, and the land it has maddened, impoverished, and degraded shall become safe, fertile, and glorious from assured Emancipation.
6. That, in the process of “Reconstruction,” it is not enough to secure the death of Slavery throughout the Rebel and belligerent region only; that experience testifies against Slavery wherever it exists, not only as crime against humanity, but as disturber of the public peace and spoiler of the public liberties, including liberty of the press, liberty of speech, and liberty of travel and transit; that, in the progress of civilization, it has become incompatible with good government, and especially with that “republican form of government” which the United States are bound to guaranty to every State; that from the outbreak of this Rebel war, even in States professing loyalty, it has been an open check upon patriotic duty and an open accessory to the Rebellion, so as to be a source of unquestionable weakness to the national cause; that the defiant pretensions of the master claiming control of his slave are in direct conflict with paramount rights of the nation; and that, therefore, it is the further duty of Congress, in the exercise of its double powers under the Constitution, as guardian of the national safety, to take all needful steps for the extinction of Slavery, even in States professing loyalty, so that this crime against humanity, this disturber of the public peace, and this spoiler of the public liberties shall no longer exist anywhere to menace the general harmony, that civilization may be no longer shocked, that the constitutional guaranty of a republican form of government to every State may be fulfilled, that the Rebellion may be deprived of the traitorous aid and comfort Slavery has instinctively volunteered, and that the master claiming an unnatural property in human flesh may no longer defy the nation.
7. That, in addition to the guaranties stipulated by Congress, and as the cap-stone to its work of restoration and reconciliation, the Constitution itself must be so amended as to prohibit Slavery everywhere within the limits of the Republic; that such prohibition, leaving all personal claims, whether of slave or master, to the legislation of Congress and of the States, will be a sacred and inviolable guaranty, representing the collective will of the people of the United States, and placing Universal Emancipation under sanction of the Constitution, so that Freedom shall be engraved on every foot of the national soil and be woven into every star of the national flag, while it elevates and inspires our whole national existence, and the Constitution, so often invoked for Slavery, but at last in harmony with the Declaration of Independence, will become, according to the aspirations of its founders, sublime guardian of the inalienable right of every human being to life, liberty, and the pursuit of happiness: all of which must be done in the name of the Union, in duty to humanity, and for the sake of permanent peace.
PRAYER OF ONE HUNDRED THOUSAND.
Speech in the Senate, on presenting a Petition of the Women’s National League, praying Universal Emancipation by Act of Congress, February 9, 1864.
MR. PRESIDENT,—I offer the petition now on the desk before me. It is too bulky for me to take up. I need not add that it is too bulky for any of our pages to carry.
This petition marks a stage of public opinion in the history of Slavery, and also in the suppression of the Rebellion. As it is short, I will read it.
“To the Senate and House of Representatives of the United States:—
“The undersigned, women of the United States above the age of eighteen years, earnestly pray that your honorable body will pass, at the earliest practicable day, an act emancipating all persons of African descent held to involuntary service or labor in the United States.”
There is also a duplicate of the petition, signed by “men above the age of eighteen years.”
It will be perceived that the petition is in rolls. Each roll represents a State. For instance, here is New York with a list of seventeen thousand seven hundred and six names, Illinois with fifteen thousand three hundred and eighty, and Massachusetts with eleven thousand six hundred and forty-one. But I will read the abstract with which I have been furnished.
| State. | Men. | Women. | Total. |
|---|---|---|---|
| New York | 6,519 | 11,187 | 17,706 |
| Illinois | 6,382 | 8,998 | 15,380 |
| Massachusetts | 4,249 | 7,392 | 11,641 |
| Pennsylvania | 2,259 | 6,366 | 8,625 |
| Ohio | 3,676 | 4,654 | 8,330 |
| Michigan | 1,741 | 4,441 | 6,182 |
| Iowa | 2,025 | 4,014 | 6,039 |
| Maine | 1,225 | 4,362 | 5,587 |
| Wisconsin | 1,639 | 2,391 | 4,030 |
| Indiana | 1,075 | 2,591 | 3,666 |
| New Hampshire | 393 | 2,261 | 2,654 |
| New Jersey | 824 | 1,709 | 2,533 |
| Rhode Island | 827 | 1,451 | 2,278 |
| Vermont | 375 | 1,183 | 1,558 |
| Connecticut | 393 | 1,162 | 1,555 |
| Minnesota | 396 | 1,094 | 1,490 |
| West Virginia | 82 | 100 | 182 |
| Maryland | 115 | 50 | 165 |
| Kansas | 84 | 74 | 158 |
| Delaware | 67 | 70 | 137 |
| Nebraska | 13 | 20 | 33 |
| Kentucky | 21 | .. | 21 |
| Louisiana | .. | 14 | 14 |
| Citizens of the United States living in New Brunswick | 19 | 17 | 36 |
| ——— | ——— | ——— | |
| 34,399 | 65,601 | 100,000 |
These several petitions are consolidated into one, being another illustration of the motto on our coin,—E pluribus unum.
This unprecedented petition is signed by one hundred thousand men and women, who unite in this unparalleled number to support its prayer. They are from all parts of the country, and from every condition of life: from the seaboard, fanned by the free airs of the ocean, and from the Mississippi and the prairies of the West, fanned by the free airs which vitalize that extensive region; from the families of the educated and uneducated, rich and poor, of every profession, business, and calling in life, representing every sentiment, thought, hope, passion, activity, intelligence, that inspires, strengthens, and adorns our social system. Here they are, a mighty army, one hundred thousand strong, without arms or banners, the advance-guard of a yet larger army.
Though memorable for numbers, these petitioners are more memorable for the prayer in which they unite. They ask nothing less than Universal Emancipation; and this they ask directly at the hands of Congress. No reason is assigned. The prayer speaks. It is simple, positive. So far as it proceeds from the women of the country, it is naturally a petition and not an argument. But I need not remind the Senate that there is no reason so strong as the reason of the heart. Do not all great thoughts come from the heart?
It is not for me at this moment to offer reasons which the one hundred thousand petitioners have forborne. But I may properly add, that, naturally and obviously, they all feel in their hearts, what reason and knowledge confirm, not only that Slavery as a Unit, one and indivisible, is the guilty origin of the Rebellion, but that its influence everywhere, even outside the Rebel States, is hostile to the Union, always impairing loyalty, and sometimes openly menacing the national cause. It requires no difficult logic to conclude that such a monster, wherever it shows its head, is a National Enemy, to be pursued and destroyed as such, or at least a nuisance to the national cause, to be abated as such.
The petitioners know well that Congress is the depository of those supreme powers by which rebellion, alike in its root and distant offshoots, may be surely crushed, while unity and peace are permanently assured. They know well that the action of Congress may be with the coöperation of the Slave-Masters, or even without their coöperation, under the overruling law of military necessity, or the commanding precept of the Constitution to guaranty a republican form of government. Above all, they know well that to save the country from peril, especially to save the national life, there is no power in the ample arsenal of self-defence which Congress may not grasp; for to Congress, under the Constitution, belongs the prerogative of the Roman Dictator, to see that the Republic receives no detriment. Therefore to Congress these petitioners appeal.
I ask the reference of the petition to the Select Committee on Slavery and Freedmen.
An earnest debate ensued, which ended in the reference of the petition.
EQUAL PAY OF COLORED SOLDIERS.
Remarks in the Senate, on different Propositions, February 10, 29, and June 11, 1864.
February 3d, Mr. Wilson, of Massachusetts, reported a joint resolution to equalize the pay of soldiers in the United States army, which provided that all persons of color, who have been or may be mustered into the military service of the United States, shall receive the same uniform, clothing, arms, equipments, camp equipage, rations, medical and hospital attendance, pay and emoluments, other than bounty, as other soldiers of the regular or volunteer forces of the United States of like arm of service, during the whole term in which they shall be or shall have been in such service, and every person of color who shall hereafter be mustered into the service shall receive such sums in bounty as the President shall order in the different States and parts of the United States, not exceeding one hundred dollars.
February 4th, the Senate considered the joint resolution. Mr. Fessenden, of Maine, “wished to inquire what propriety there is in our going back and paying them this increase for services already rendered.” Mr. Wilson thought, “as an act of justice, the bill should be retrospective,”—that “the gross injustice done by the country toward these men ought to be corrected.” Mr. Fessenden was in favor, and had ever been in favor, of putting colored soldiers on a level with white, but he was opposed to paying men for services already rendered, unless the men were promised full pay by orders emanating from the War Department. Mr. Sumner, after stating that there were two classes of enlistments, first, under the statute of 1861, and, secondly, under the statute of 1862, insisted that under the former statute any person of African descent might be enlisted and entitled to the same pay as a white soldier. “There was no limitation in the statute. There was no color there. There was nothing against the enlistment of colored men under that statute, except a blind prejudice which we ought to forget.” He concluded: “I wish to see our colored troops treated like white troops in every respect. But I would not press this first principle by any retroactive proposition, unless where the faith of the Government is committed, and there I would not hesitate. The Treasury can bear any additional burden better than the country can bear to do an injustice.”
February 10th, the subject being still under consideration, Mr. Sumner said:—
MR. PRESIDENT,—I am grateful to the Senator from Connecticut [Mr. Foster] for his admirable argument on this question; and yet it seems to me, if he will pardon me, that even in point of law he has not stated the case as strongly in favor of this obligation as it might be stated. It may be remembered, that, when this discussion was closing, the other day, I ventured to throw out the remark, that there were evidently two classes of cases: the first, where enlistments in good faith were made under the statute of 1861; and the second, where they were made under the statute of 1862.
In point of law, it seems obvious, if enlistments were made in good faith under the statute of 1861, and there was no legal objection to those enlistments, then the United States are bound. If, on the contrary, they were made under the subsequent statute, then it is simply a question of policy and expediency whether we shall make this payment. The whole subject is open to discussion,—first, in the light of sentiment, which may involve expediency and policy, and, secondly, in the light of law. I shall not say anything upon it in the first aspect, except to make one remark,—that our country at this moment can ill afford to take the responsibility of refusing justice to colored soldiers whom it has allowed to shed their blood in its cause. The soul repudiates any such sacrifice,—for sacrifice it will be, at once of honor and of interest. I do not follow out this idea, but pass at once to the second aspect, which I called the question of law; and there I differ from my learned friend from Connecticut, when I say that there are certain colored regiments in the field who in point of law are entitled to the full wages of thirteen dollars a month.
Mr. Foster. If the Senator will pardon me, I insisted on that fact, and said they were enlisted, not under the law, but under instructions from the Department, authorizing the officers to enlist them on the same terms that white troops were enlisted, which would be thirteen dollars per month.
Mr. Sumner. Very well. I still understood the Senator to imply that perhaps in point of law there might be some doubt whether the Government was liable for the thirteen dollars a month. I propose to carry the argument a little further, and show, by calling attention for one moment to the statutes,—not at any great length,—that, under the statutes themselves, the Government is obliged to pay certain regiments thirteen dollars a month.
I begin with the Massachusetts fifty-fourth and fifty-fifth regiments; and these may be taken as examples. I have before me the actual order under which those two regiments were raised.
“War Department, Washington City,
January 26, 1863.
“Ordered, That Governor Andrew, of Massachusetts, is authorized, until further orders, to raise such number of volunteer companies of artillery for duty in the forts of Massachusetts and elsewhere, and such corps of infantry for the volunteer military service, as he may find convenient; such volunteers to be enlisted for three years,”—
Mark, Sir, if you please, the period of service,—“for three years,”—
“or until sooner discharged, and may include persons of African descent, organized into separate corps. He will make the usual needful requisitions on the appropriate staff bureaus and officers for the proper transportation, organization, supplies, subsistence, arms, and equipments, of such volunteers.
“Edwin M. Stanton, Secretary of War.”
Now, on the face of this order, the Governor of Massachusetts is empowered to raise certain regiments in the volunteer service of the United States for three years. Under what statute? Under no other, surely, than the statute of 1861, for it was under that statute that the organization for three years was authorized. If you come to the later statute—and to that I ask particular attention—of July 17, 1862, which contains a special provision with reference to African troops, you will find that it is to raise troops for nine months.
“Sec. 3. And be it further enacted, That the President be, and he is hereby, authorized, in addition to the volunteer forces which he is now authorized by law to raise, to accept the services of any number of volunteers, not exceeding one hundred thousand, as infantry, for a period of nine months, unless sooner discharged.”
And then, Sir, in section twelve of this same statute, the President is further empowered to employ persons of African descent. In section fifteen we come to the question of pay.
“And be it further enacted, That all persons who have been or shall be hereafter enrolled in the service of the United States under this Act”—
“Under this Act,”—an Act authorizing enrolments for nine months, not for three years—
“shall receive the pay and rations now allowed by law to soldiers, according to their respective grades: Provided, That persons of African descent, who under this law shall be employed, shall receive ten dollars per month and one ration, three dollars of which monthly pay may be in clothing.”
Now, Sir, you have the question precisely: Under what statute were these enlistments made? Were they under the nine months’ statute, or under the three years’ statute? To answer that question, look at the order of the War Department:—
“Ordered, That Governor Andrew, of Massachusetts, is authorized, until further orders, to raise such number of volunteer companies of artillery for duty in the forts of Massachusetts and elsewhere, and such corps of infantry for the volunteer military service, as he may find convenient; such volunteers to be enlisted for three years, or until sooner discharged.”
Here are no nine months’ men. There is nobody under the second statute, but all are clearly under the first by the plain language of the order. And this is none the less so, even if the second statute, so far as Africans are concerned, may be interpreted to sanction a longer term of enlistment.
Mark well, that “all persons who have been or shall be hereafter enrolled in the service of the United States under this Act shall receive the pay and rations now allowed by law to soldiers.” (§ 15.) But were not the soldiers of the fifty-fourth and fifty-fifth Massachusetts regiments “enrolled in the service of the United States”? Unquestionably, if troops ever were enrolled.
But it is the proviso that follows which causes the mischief. “Persons of African descent, who under this law shall be employed, shall receive ten dollars,” &c.
It is said that these colored soldiers were “employed,”—that is all,—not “enrolled,” but “employed”; and on this distinction the promise of Governor Andrew in the name of the National Government, and the honest expectations of the soldiers, are set aside.
The order of the Secretary of War is for “volunteer companies of artillery,” also for “corps of infantry,” “to be enlisted for three years,” “and may include persons of African descent.” The persons of African descent are to be included in the artillery or infantry “enlisted.” Such persons are in advance declared men to be enlisted. And yet the argument which denies them their well-earned wages asserts that they are only “employed,” and not enlisted. But if they are “employed,” then are the “corps of infantry” in which they are included “employed” also.
To me the conclusion seems irresistible, on the face of these facts, that these troops were enrolled or enlisted under the earlier statute. It is clear that Governor Andrew thought so at the time, and it is equally clear that the troops themselves thought so at the time.
But there remains behind another question. Is there anything in existing legislation to prevent the enlistment of a colored person under the statute of 1861? To this I answer positively in the negative, and I challenge contradiction. There is no color in that statute. There is no color in any statute raising troops for the army of the United States, nor any color in any statute raising sailors for the navy of the United States. Only in our militia statutes do you find the word “white.” In all our army and navy statutes there is no such limitation. The statute of 1861, therefore, in point of law embraced all persons, whether black or white, and it was entirely at the option of the President, before the passage of the statute of 1862, to organize or receive colored troops under that statute. He hesitated. I regretted at the time his hesitation. I thought it an error by which the country suffered. We endeavored to repair that error by the amendment introduced by the brave Senator from New York, who is no longer here [Mr. King], which you will find in the statutes of 1862. But I doubt if any person at the time, who had given attention to the subject, supposed this amendment necessary, except as an encouragement to a policy which the Government was too slow to adopt. For myself, I remember well my own feelings in voting for it. I accepted it as notice to the Administration that in the opinion of Congress the time had come when colored troops must be used. In point of law it was plain that it could not stand in the way of an enrolment under the earlier statute.
And the Secretary of War seems to have acted on this interpretation; for, in undertaking to raise colored troops, no allusion was made to the statute of 1862, but the language of his order in every particular pointed to the statute of 1861. Am I wrong, then, if I say that in point of law these colored troops have just the same right to the full pay of a soldier that any Senator on this floor has to his compensation? It is by just as good title, and as firm in the statute-book, as your own pay, Sir.
I suggested, the other day, that there were two classes of cases,—one where the enlistments had been made in good faith under the earlier statute, and a second class where they had been made under the later statute; and I suggested, that, if we were disposed to recognize the difference between these two classes, it might afford a solution to our present difficulties. I am not disposed, on any ground of sentiment, to impose an unnecessary tax upon the burdened treasury of my country, although there is no tax required by justice that I would hesitate to impose. If there are colored troops in our service, who, at the time they were mustered, had no reason to suppose that they were enlisted under the statute of 1861, who were led to believe that they came under the statute of 1862, that is, for the pay of ten dollars, I am not disposed to press for them any claim on ground of sentiment,—that is, for the past. I take the past as it is; but for the future I insist that they shall be put upon an equality. True equality in the past is for the National Government to redeem its pledges, whether direct or only implied,—whether there is an absolute promise, of which you have a record, or only an inference or understanding, founded, it may be, in misconception, but still embraced in good faith by innocent parties. On this ground, at a proper moment, I shall be ready to propose an amendment something like the following, to come in immediately after the word “service”:—
“Provided, That, with regard to all past service, it shall appear to the satisfaction of the Secretary of War that such persons, at the time of being mustered into service, were led to suppose that they were enlisted under the Act of Congress approved July 22, 1861, as volunteers in the army of the United States.”
Mr. Fessenden could not concur in Mr. Sumner’s construction of the Act of 1862. Mr. Lane, of Indiana, thought, “if we place colored troops hereafter on an equality with the white troops, it is surely as much as they can ask, either from the justice or the generosity of this Senate; for no man, in his sober senses, will say that their services are worth as much, or that they are as good soldiers.” Mr. Sumner replied:—
Mr. President,—I hope the Senator from Indiana will pardon me, if I refer to him for one minute. He is so uniformly generous and just that I was the more surprised, when I listened to his remarks just now. I was surprised at his lack of generosity and his lack of justice—he will pardon me—toward these colored soldiers. I was surprised—he will pardon me—at his injustice to the State of Massachusetts. He spoke disparagingly of the colored soldiers. He thought they had been paid enough. He thought that the gallant blood shed on the parapets of Fort Wagner had been paid enough; and he failed to see that the men who died for us on that bloody night, and were buried in the same grave with the devoted colonel who led them, now stood alive in this presence to plead for the equality of their race. How can I help regret that the Senator was led into such remark?
Also, in the ardor of his utterance,—he will pardon me still further,—the Senator undertook to say, that, if we entered on this payment, we should charge the Treasury with some one or two hundred millions in addition to its present burden. Why, Sir, that is an entire mistake. Even if we pay everything contemplated by the resolution, I am told that the whole will be little more than a million: much, I admit, to charge unnecessarily upon the Treasury, but not the very large sum which seemed to fill the patriotic vision of the Senator.
Mr. Lane, of Indiana. The Senator misunderstood my statement altogether. My statement was, that, if we were called upon now to go back and increase the pay of the colored troops three dollars a month more than the law provided, with the same propriety we might be called upon to go back and increase the pay of our white soldiers because they thought that their pay had not been enough; and that would add to the burdens of the Treasury to a very large amount.
Mr. Sumner. I accept the correction gladly. Certainly I have no disposition to press anything beyond the meaning of the Senator. But he will allow me to say that I was hardly mistaken in his argument. It was, that we should charge the Treasury with a burden it could ill bear. Now, if this money is due, let us charge the Treasury with the burden; and that brings me again to the direct question, Is not the money due? The Senator denies it; but he will pardon me again, if I say he hardly went into an argument on that head. I repeat, then, is the money due? I dislike to trouble the Senate by going over topics already too much discussed; but I trust they will excuse me, if I state the case yet once more. On many accounts I confess a special interest in it; not the least is that I would have my country above doing injustice, least of all injustice to people of a race too long crushed by injustice.
The argument need not be long. In the first place, the statute of 1861 contains no words which can be interpreted in any way to exclude the enrolment of persons of color under it. I challenge any Senator to mention a single word in that statute authorizing any such exclusion. You have, then, the statute in the case. That is the first point. Then you have the order from the Secretary of War to Governor Andrew, authorizing an enrolment for three years, making no discrimination between persons of African descent and white soldiers. That is the second point. You have, in the third place, the open promises and pledges of Governor Andrew, under that order, and for the time being the agent of the United States, solemnly promising the full pay of thirteen dollars a month to these colored persons as soldiers of the United States. And, in the last place, you have the very terms of enlistment subscribed by these soldiers at the time of enlistment, which I read the other day, where it is expressly stated that they entered into service under the statute of 1861.
These four points,—the statute of 1861, the order of the Secretary, the promise of Governor Andrew in behalf of the United States, and the terms of enlistment,—all these make a case by which, as it seems to me, the Government is bound. In face of these, how can it be said that these colored troops were “employed” under the statute of 1862? There is no ingenuity of interpretation which can place them there.
That I am not mistaken in the facts on which I found this argument is apparent from a letter which I hold in my hand, written by one of these soldiers, now on Morris Island. I content myself with a brief extract.
“In the month of February, 1863, Governor John A. Andrew announced that he had permission from the War Department to raise a regiment of infantry to be composed of men of color. Enlisting began immediately, and the fifty-fourth regiment was filled to overflowing in three months. The only inducement he offered to these men was an acknowledgment of their manhood; for he promised that the United States Government would treat them, in every particular, the same as other volunteer regiments from the State of Massachusetts.”
Mr. Lane. Will the Senator pardon me a moment just there?
Mr. Sumner. Certainly.
Mr. Lane. They were to be treated in every respect as the volunteer troops from Massachusetts. Will the Senator contend that the commissioned officers of colored regiments might be drawn from the colored troops themselves, after the passage of the law of 1862? Was not that a disparity? Was that treating them like other troops?
Mr. Sumner. Of course the order is applicable simply to the enlisted men. It is not applicable to the officers.
The letter goes on to say,—
“The enlistment rolls signed by these men bound them to obey the President,” &c.
How?
“In pursuance of the law passed in July, 1861, calling for volunteers.”
Such was the understanding. By this lure you won these men to the field of sacrifice.
I have already said too much, but before I sit down I cannot forget that the Senator from Indiana, in his impetuous movement, brushed against the Commonwealth of Massachusetts. I do not remember his precise words, nor do I care to remember them. But he more than intimated that there was on the part of this State something else than a patriotic motive in pressing this obligation. I think he said this whole effort is to save the payment of this extra money. Does not the Senator know that Massachusetts has already provided for the payment of this sum, so far as its own two regiments are concerned, and that those regiments have refused to receive it? These colored troops declare that they were enlisted as soldiers of the United States, and as such are entitled to the pay of soldiers of the United States from the Government of the United States. If it be wrong to maintain their claim, then is Massachusetts wrong, then am I wrong. If the claim is maintained earnestly, it is because, both in law and in sentiment, and on every ground of policy or expediency, it commends itself to those who represent Massachusetts. And now, since this State has been called in question, I shall not content myself with merely giving my own opinions and arguments, but I ask you to listen to her honored Governor.
In an official communication to the Legislature of Massachusetts, Governor Andrew has discussed this whole question with his accustomed lucidity and thoroughness. Here is something of what he says.
“To my own mind, the right of these men, under the existing statutes, to the lawful pay and allowances of volunteers is demonstrably clear. But if it is doubtful, it is agreed, I believe, in all quarters, that it will be the duty and the pleasure of Congress to embrace an early opportunity to prevent by positive legislation the continuance of that doubt. Meantime I must embrace the earliest occasion to invoke the Legislature of Massachusetts to render justice to the men of these regiments beyond the possibility of a doubt, by the appropriation of the needful means out of our own treasury until the National Congress or the Executive Department shall correct the error.”[305]
The Governor, after considering some details of the argument, proceeds as follows.
“I think there can be no proposition of law more clear than this, namely, that colored men are competent to be enlisted into the regular army of the United States, into the volunteer army of the United States, into the navy of the United States, and to be employed in any arm of either service.
“The Military Enlistment Law of 1814 required only that the recruit shall be a ‘free, effective, able-bodied man, between the ages of eighteen and fifty years.’ (See Act of December 10, 1814.) It did not require a man to be under forty-five, nor a citizen, nor white, in which three respects it differs from the old Militia Act. The Naval Act of 1813 is not less clear.”[306]
Such is the statement of the Governor on this question in point of law. At the time these regiments were mustered into the service he believed that he was acting legally under the statutes of the United States. He so instructed these men; and these men naturally believed him, and gave themselves, generously, nobly, beautifully, to the public service. Will the country now disown them? Will the country now fasten a ban upon them, and lead them to say in their hearts that they have been duped?
February 13th, the subject being still before the Senate, Mr. Sumner offered the proviso of which he had already given notice at the close of his first remarks; but, after debate, he withdrew it at the request of Mr. Wilson, who, seeing the opposition to the joint resolution, proposed to abandon all that part making it retroactive. In withdrawing it, Mr. Sumner again vindicated it, saying, in conclusion: “I am unwilling to withdraw the proposition. I shall do it, if my colleague desires it. At any rate, I should rather, for my own satisfaction, have a vote upon it.”
In the debate that ensued, Mr. Reverdy Johnson said: “If the Governor of Massachusetts has made a promise which the law did not authorize, if he has created, as between the Massachusetts soldiers and the Governor of Massachusetts, an obligation which ought to be redeemed, let Massachusetts redeem it.” “They have passed a law to redeem it,” said Mr. Fessenden, “but these regiments refuse to receive it from Massachusetts.”
Mr. Wilson moved to insert words making the resolution applicable only “from and after the first day of January, 1864,” which was agreed to. After debate, Mr. Sumner again moved his proviso, which was lost,—Yeas 16, Nays 21. Other amendments were moved, and the debate continued for days.
February 23d, Mr. Davis moved as a substitute three resolutions,—that all negroes and mulattoes, by whatever term designated, in the military service of the United States, be discharged and disarmed, and also providing for payment to loyal owners on account of slaves taken into the service. Lost,—Yeas 7, Nays 30.
Mr. Collamer, of Vermont, having moved an amendment providing for a certain class of cases, Mr. Sumner, February 25th, brought forward his amendment in the following terms:—
“Provided, also, That all persons whose papers of enlistment shall show that they were enlisted under the Act of Congress of July, 1861, shall receive from the time of their enlistment the pay promised by that statute.”
In proposing this again, he said: “I believe, if any persons have enlisted in the national service, and, through any ambiguity or misinterpretation of legislation, their rights have been drawn in question, it belongs to Congress, as guardian and conservator of the rights of every citizen, to see that they have the proper remedy.” The amendment was adopted,—Yeas 19, Nays 18.
February 29th, Mr. Fessenden addressed the Senate in explanation of his position. He had been from the beginning in favor of placing colored soldiers on the same footing as white; but he objected to the attempt to provide for exceptional cases on this general bill, and he asked, “whether we should have had such an uproar throughout the country, if this amendment had been in regard to three or four or more white regiments, to go back and pay them an additional sum from the time of their enlistment, and the principle had been objected to.”
Mr. Sumner, in reply, reviewed the case, and in conclusion said:—
From the question of law I pass to that other question which occupied the attention of the Senator from Maine, as to when and where we should meet this obligation. He says, Bring in a separate bill. That was said the other day. I say, Meet it whenever it appears. It is in itself a case of such absolute and overwhelming justice that the Senate ought not to postpone it for a single day,—especially ought not to postpone it, when it has under consideration a bill so entirely germane as the present. If it were a bill concerning the Pacific Railroad or the sale of gold, it might be questionable whether the proposition should be ingrafted upon it; but, as it is a bill to put colored troops on an equality with other troops in the national service, I say that the pending proposition is perfectly germane, and, being in itself of commanding justice, ought not to be postponed. It is a common device of enemies to object to a measure on a particular bill. For myself, I wish it understood that I am for the proposition on any bill and at any time.
Then, on motion of Mr. Grimes, of Iowa, the joint resolution was recommitted to the Committee on Military Affairs.
March 2d, Mr. Wilson reported a new bill, in lieu of the original joint resolution so much discussed, which, besides the provision in the joint resolution, contained an additional section in substantial conformity with Mr. Sumner’s proviso, giving to all persons of color enlisted and mustered into the service of the United States the pay allowed by law to other volunteers in the service, from the date of their muster, if it had been pledged or promised to them by any officer or person, who, in making such pledge or promise, acted by authority of the War Department; and the Secretary of War was to determine any question of fact arising under this provision.
March 8th, the bill being under consideration, Mr. Davis moved an additional section, giving to loyal owners of slaves taken into service compensation to be determined by commissioners appointed by the Circuit Court of the United States.
March 9th, Mr. Davis made an elaborate speech vindicating property in slaves.
March 10th, after further debate, the additional section of Mr. Davis was rejected,—Yeas 6, Nays 31,—and also another amendment moved by him. The bill then passed the Senate,—Yeas 31, Nays 6. In the House of Representatives other matters were substituted for the provisions which had occupied the attention of the Senate, as the object was already accomplished in another way.
April 22d, the Army Appropriation Bill being under consideration, Mr. Wilson moved, as an amendment, the bill to equalize the pay of soldiers which had passed the Senate. Mr. Fessenden thought that “the measure ought to be passed, and passed at once.” If the Senate would waive the objection to putting it on the Appropriation Bill, he would not object. The amendment was agreed to,—Yeas 31, Nays 5.
Then followed another series of struggles. The House of Representatives made amendments which were disagreed to by the Senate. Then came no less than three different Committees of Conference. The report of the last Committee, which was made June 10th, contained the following substitute for the Senate amendment:—
“That all persons of color who were free on the nineteenth day of April, 1861, and who have been enlisted and mustered into the military service of the United States, shall, from the time of their enlistment, be entitled to receive the pay, bounty, and clothing allowed to such persons by the laws existing at the time of their enlistment. And the Attorney-General of the United States is hereby authorized to determine any question of law arising under this provision. And if the Attorney-General aforesaid shall determine that any of such enlisted persons are entitled to receive any pay, bounty, or clothing in addition to what they have already received, the Secretary of War shall make all necessary regulations to enable the pay department to make payment in accordance with such determination.”
Mr. Sumner observed that the report did not seem to settle the question in issue; that, if he were merely looking after the interests of his own constituents and the regiments organized in Massachusetts, he might rest satisfied; but that he was unwilling to sanction a settlement which did not embrace all the colored troops. The debate extended into the next day, when Mr. Sumner remarked:—
I stated last night that in my opinion this report undertook to conclude something, but did not conclude it. On further consideration, I am satisfied that I was not much mistaken. It is a conclusion in which nothing is concluded. I may say, too, that it is not entirely creditable to Congress, and, so far as I now accept the result, it will be with much reluctance. It would have better become Congress to recognize a solemn obligation toward those now baring their breasts for us in battle, and falling on the ramparts of the enemy, rather than question their title to pay as soldiers, which I believe as strong for them as for any white soldiers. I regret sincerely that their title has not been positively recognized in the text of a statute; but, after effort in both branches, and the appointment of several committees of conference, such recognition has failed. I despair of obtaining it, at least on the present bill. On that account I am induced to look critically at the proposition before us, to see whether this affords any measure of justice. In one sense it affords nothing; and I believe the Senator from Maine [Mr. Morrill], who was on the last committee, will not differ from me on that point; but it does distinctly and unequivocally refer the question to the judgment of the Attorney-General of the United States. Substantially Congress agrees to take his opinion. He has already given it. I have it in my hand, in a communication dated April 23, 1864, on a case submitted by the President.
“I do not know that any rule of law, constitutional or statutory, ever prohibited the acceptance, organization, and muster of ‘persons of African descent’ into the military service of the United States as enlisted men or volunteers. But whatever doubt might have existed on the subject had been fully resolved before this order was issued, by the 11th section of the Act of July 17, 1862, chap. 195, which authorized the President to employ as many persons of African descent as he might deem necessary and proper for the suppression of the Rebellion, and for that purpose to organize and use them in such manner as he might judge best for the public welfare.”
And then again he says:—
“I have already said that I knew of no provision of law, constitutional or statutory, which prohibited the acceptance of persons of African descent into the military service of the United States; and if they could be lawfully accepted as private soldiers, so also might they be lawfully accepted as commissioned officers, if otherwise qualified therefor. But the express power conferred on the President by the 11th section of the Act of July 17, 1862, chap. 195, before cited, to employ this class of persons for the suppression of the Rebellion as he may judge best for the public welfare, furnishes all needed sanction of law to the employment of a colored chaplain for a volunteer regiment of his own race.”[307]
By the report before the Senate, it is declared as follows: “And the Attorney-General is hereby authorized to determine any question of law arising under this provision.” In the full confidence that we shall at last, through the Attorney-General, obtain that justice which Congress has denied, I consent to give my vote for the report.
The report was concurred in.[308] The Attorney-General, Mr. Bates, as Mr. Sumner anticipated, affirmed the equal rights of the colored soldiers.[309]
OPENING OF THE STREET-CARS TO COLORED PERSONS.
Speeches in the Senate, on various Propositions, February 10, March 17, June 21, 1864.
The opening of the street-cars in Washington constitutes a special chapter of effort, which, beyond its local influence, was important as an example to the country.
February 27, 1863, the Senate having under consideration the bill to authorize the Alexandria and Washington Railroad Company to extend their road across the Potomac River and through the city of Washington to the Baltimore and Ohio Railroad station, Mr. Sumner moved an amendment in the following words:—
“And provided, also, That no person shall be excluded from the cars on account of color.”
In making this motion, he called attention to what seemed to him a new illustration of the barbarism of Slavery. An aged colored person had been excluded from the cars and dropped in the mud. He thought the incident discreditable, and that it was the duty of Congress to interfere. The following dialogue then ensued.
Mr. Howe (of Wisconsin). I should like to ask the Senator from Massachusetts, as a question of law, whether, if this railroad company, being common carriers, should drop any person or refuse to carry any person who offered them their fare, they would not be liable as the law now stands, without any express enactment?
Mr. Sumner. If you ask me the question as a lawyer, I should say they would be liable; but the experience here, as I believe, is, that this liability is not recognized. The Senator knows well, that, under the influence of Slavery, human rights are disregarded, and those principles of law which he recognizes are set aside. Therefore it becomes the duty of Congress to interfere and specially declare them.
Mr. Howe. Would the effect of the amendment be any more than a reënactment of the existing law?
Mr. Sumner. That was said of the Wilmot Proviso, as the Senator will remember.
The question being taken by yeas and nays, resulted, Yeas 19, Nays 18; so the amendment was agreed to. It was concurred in by the House, and approved by the President, March 3, 1863.
This provision, though applicable to a single road, seemed to decide the principle. But it was not so regarded by the other railroads in Washington, which continued to exclude colored persons, often under painful circumstances.
February 10, 1864, Mr. Sumner called attention to this subject by the following resolution:—
“Resolved, That the Committee on the District of Columbia be directed to consider the expediency of further providing by law against the exclusion of colored persons from the equal enjoyment of all railroad privileges in the District of Columbia.”
Mr. Sumner explained the resolution.
MR. PRESIDENT,—It is necessary that I should call attention to a recent outrage which has occurred in this District. I do it with great hesitation. At one moment I was inclined to keep silence, believing that the good name of our country required silence; but since it has already found its way into the journals, I cannot doubt that it ought to find its way into this Chamber.
An officer of the United States, with the commission of Major, with the national uniform, has been pushed from a car on Pennsylvania Avenue for no other offence than that he was black. Now, Sir, I desire to say openly that we had better give up railroads in the national capital, if we cannot have them without such an outrage upon humanity, and upon the national character. An incident like that, Sir, is worse at this moment than defeat in battle. It makes enemies for our cause abroad, and sows distrust. I hope, therefore, that the Committee on the District of Columbia,—I know the disposition of my honorable friend, the Chairman of that Committee,—in the bills we are to consider relative to the railroads in this District, will take care that such safeguards are established as will prevent the repetition of any such wrong.
In reply to Mr. Hendricks, of Indiana, Mr. Sumner spoke again.
Mr. President,—I am sure that the Senator from Indiana [Mr. Hendricks] is mistaken in regard to the provision for colored people. There may be here and there, now and then, once in a long interval of time, a car which colored people may enter; but any person traversing the avenue will see that those cars appear very rarely; and if any person takes the trouble to acquaint himself with the actual condition of things, he will learn that there are great abuses and hardships, particularly among women, growing out of this outrage. I use plain language, Sir, for it is an outrage. It is a disgrace to this city, and a disgrace also to the National Government, which permits it under its eyes. It is a mere offshoot of the Slavery which, happily, we have banished from Washington.
Now go back to the facts on which I predicated my motion. The Senator from Iowa [Mr. Grimes] has referred to the colored officer. I have in my hand his letter, addressed to his military superior, making a report of the case, and, as it is very brief, I will read it.
“Washington, D. C., February 1, 1864.
“Sir,—I have the honor to report that I have been obstructed in getting to the Court this morning by the conductor of car No. 32 of the Fourteenth Street line of the city railway.
“I started from my lodgings to go to the hospital I formerly had charge of, to get some notes of the case I was to give evidence in, and hailed the car at the corner of Fourteenth and I Streets. It was stopped for me, and, when I attempted to enter, the conductor pulled me back, and informed me that I must ride on the front with the driver, as it was against the rules for colored persons to ride inside. I told him I would not ride on the front, and he said I should not ride at all. He then ejected me from the platform, and at the same time gave orders to the driver to go on. I have, therefore, been compelled to walk the distance in the mud and rain, and have also been delayed in my attendance upon the Court.
“I therefore most respectfully request that the offender may be arrested and brought to punishment.
“I remain, Sir, your obedient servant,
“A. T. Augusta, M. B.,
“Surgeon Seventh U. S. Colored Troops.
“Captain C. W. Clippington, Judge Advocate.”
In my opinion, the writer of this letter had just as much right in that car as the Senator from Indiana, and it was as great an outrage to eject him as it would be to eject that Senator. I go further, and I say—pardon the illustration—that the ejection of that Senator would not bring upon this capital half the shame that the ejection of this colored officer necessarily brings upon the capital. I do not mean, of course, to make the remark personal; but, as the Senator from Indiana has entered into this discussion, and chooses to vindicate this inhumanity, I allude to him personally.
The resolution was adopted,—Yeas 30, Nays 10.
February 24th, Mr. Willey, of West Virginia, from the Committee on the District of Columbia, made a report in the following terms.
“That the Act entitled ‘An Act to incorporate the Washington and Georgetown Railroad Company,’ approved May 17, 1862, makes no distinction as to passengers over said road, or as to any of the privileges of said road, on account of the color of the passenger, and that, in the opinion of the Committee, colored persons are entitled to all the privileges of said road which any other persons have, and to all the remedies for any denial or breach of such privileges which belong to any other persons. The Committee, therefore, ask to be discharged from the further consideration of the premises.”
February 25th, Mr. Sumner called attention to this report, and moved to reconsider the vote accepting it. Mr. Grimes stated that “the Committee hold that every person has a right to ride in the cars, and that a colored person has the same remedies open to him for any infringement of his rights by the Company as anybody else.” Mr. Sumner then inquired, “whether it was the understanding of the Committee that the ejection of a colored person from a car was illegal.” Mr. Grimes replied, “As I understood it.” Mr. Sumner. “That the ejection was illegal?” Mr. Grimes. “Yes, Sir.” Mr. Reverdy Johnson united in this conclusion. Mr. Willey said: “The law is now full and perfect in all its provisions and adaptations to secure the colored persons in the enjoyment of the privileges of this railroad.” Mr. Wilson, of Massachusetts, said: “I think in law he is right, but in practice it is an undeniable fact that the spirit of the old law and the old practices still lingers to some extent here in the District.” Mr. Saulsbury, of Delaware, followed: “I most heartily approve of the action of the officer on board that railroad-car. I think he deserved the thanks of the community. When these negroes go about sticking their heads into railroad-cars, and among white people, and into the Supreme Court Room, I think an officer is perfectly right in telling them they have no business there.” Mr. Sumner remarked as follows.
After the declarations made to-day, I am, at least for the present, satisfied, and shall not proceed further with my motion. I was particularly grateful to the Senator from Maryland for his very explicit statement of the law. I do not doubt he is entirely right. It has always been my opinion. I am glad to have it confirmed by that distinguished Senator and lawyer. I am also grateful to the Senator from West Virginia, who made the report, and who has so explicitly stated his own convictions, and, as I understand him, also the unanimous opinion of the Committee, to the effect that these people have legal rights precisely as white persons to the full enjoyment of all the privileges of the railroad in this District. If they have such legal rights, they are at this moment unquestionably exposed to what I must call outrage. If a white person were ejected from the cars on account of his skin, we should all feel that it was an outrage. Is it any less an outrage because the person ejected is simply guilty of a different skin? I confess, that, to my mind, it is a greater outrage, because obligations are greater in proportion to the humility and weakness of those with whom we deal.
But, Sir, I have no desire to proceed further in this question. I am for the present satisfied. My hope, however, is, that the railroad corporation will at once take notice, and act according to law.
Mr. Sumner then withdrew his motion.
In the face of this report, the exclusion of colored persons continued, often attended by intolerable outrage. Aged persons were thrust into the street. At last an opportunity occurred of bringing this question to a vote in the Senate.
March 16, 1864, the Senate had under consideration a bill to incorporate the Metropolitan Railroad Company in the District of Columbia, sometimes known as the F Street Road, when Mr. Sumner moved the following amendment:—
“Provided, That there shall be no regulation excluding any person from any car on account of color.”
A debate ensued, in which Mr. Saulsbury, of Delaware, and Mr. Reverdy Johnson, of Maryland, earnestly opposed the amendment. March 17th, the latter, while acknowledging that there was nothing in the bill giving “authority to exclude passengers at all,” insisted that colored persons so excluded should be remitted to the courts, and he did not see “why it is necessary to provide more special guaranties for the black man than are provided for the white man”; “if the black man is improperly excluded from one of these cars, … he has the right to go to the courts and seek his remedy there, and the white man has no greater right”; that Mr. Sumner “might just as well propose to pass a law providing that these black men and black women shall have the same right to visit the Presidential mansion on public occasions as the white men and the white women”; and he then discussed the questions of social and political equality, insisting that those just escaped from Slavery “are not the people to exercise the elective franchise, and to mix in society with the educated classes, of which and from which the public councils of the country should always be composed and taken.”
Mr. Sumner replied:—
Mr. President,—The question before the Senate is very simple. It is plain as one of the Ten Commandments. But the Senator from Maryland, with that nimbleness of speech which belongs to him, while undertaking to discuss it, has ranged over a very extensive field. He has treated the Senate to a discourse on almost everything, and something else also,—the elective franchise, social privileges of the Presidential mansion, the equality of races, the intermarriage of races, the state of Slavery in Maryland, also in some other States, and then the state of Slavery generally. Now, Sir, I shall not follow him on any of those topics. My desire is to present the precise point in issue. The Senate will then be prepared to vote.
But the Senator from Maryland will allow me to remind him that he seems to exhibit a rare inconsistency,—first, in declaring the absolute right of colored people to a seat in the cars, and then arguing, that, on every consideration of social life and of principle, they ought not to be admitted to any such privilege. The two parts do not go together. If colored people have the legal right to enter these cars, why does the Senator argue that they ought not to have that right? I agree with the Senator in the first point. They have the legal right to enter these cars, and the proprietors are trespassers, when they exclude them. Here I agreed with the Senator the other day. To my mind it is clear, because any other conclusion authorizes a corporation to establish a caste offensive to religion and humanity, injurious to a whole race now dwelling among us, and bringing shame upon our country.
The Senator asks, why, as I accept this conclusion, do I bring forward the present proposition? To this there are two answers, either of which is sufficient. The first is, that in the last railroad statute passed by Congress this provision was introduced, and I have heard of no complaint or trouble from it. In that now before us let us introduce the same provision, and make the two uniform. That is one reason. But the better reason is, that, while, beyond all question, colored persons have the legal right, even without this amendment, yet that legal right has been drawn in question. In point of fact, they are excluded from the cars. The Senator from Maryland refers to one case, because it has become well known. I am familiar with many other cases. They are brought to my attention almost daily. There is, then, at this moment, an existing abuse. Colored persons are kept out of their rights. But we cannot afford, at this crisis of our history, to sanction injustice. Every such act rises in judgment against us, and hangs on the movements of our armies, checking even the currents of victory.
The Senator admits their rights, but he says, Let them go to the courts. Sir, what is that for a poor, humble person, without means and without consideration? The Senator knows something of the law’s delay and the law’s expense; and I ask him whether it is just to subject an oppressed people to this additional oppression, when, by a few words, Congress, now in session, can overturn the wrong.
Mr. Johnson. Will the Senator permit me to ask him a question by way of reply? Suppose the amendment is adopted; if it will not give them a greater right than they have now, and the Company refuse to let them enjoy the right, what is their remedy? They must go to the courts. I suppose there is no other remedy. You do not provide that the charter shall be forfeited at once.
Mr. Sumner. I know very well that they may, in the last resort, be obliged to go to the courts; but I know that it will be more difficult for the Company to exclude them in the face of a positive statute than when their rights are simply founded on inference. The positive words which I propose leave no loophole for doubt. They must be obeyed.
There is nothing more common in legislation than, in case of doubt as to the meaning of a statute, or of the Common Law, to remove it by what is well known as a “declaratory” statute. I have in my hands a work of authority, which the Senator knows well, Dwarris on Statutes, from which I read:—
“And first of declaratory acts. These are made where the old custom of the kingdom is almost fallen into disuse or become disputable, in which case the Parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the Common Law is and ever hath been.”[310]
Are not these words completely applicable to the case before us? What should be the custom is, according to these words, “almost fallen into disuse, or become disputable.” I say, therefore, again, following these words, “for avoiding all doubts and difficulties,” it is the duty of Congress “to declare” what the law of the land is.
Again, in another place, this same authority, speaking still further of declaratory statutes, says:—
“Acts to explain laws are properly acts of interpretation by legislative authority,—or, to borrow an expression from the writers on the Roman Law, they are acts of authentic interpretation.”[311]
I ask the attention of the Senator to the expression, “they are acts of authentic interpretation.” Now, Sir, what I desire is, that the Senate shall give an authentic interpretation to the law. To do this it is not needful to range over the whole field of history, of morals, or of politics, in imitation of the Senator, or to discuss the equality of races, or their fortunes in the future; but it is enough for us to become acquainted with the existing abuse, every day under our own eyes, in the streets of this capital, and then to apply the remedy. Beyond all question, there is an abuse. The remedy is simple, and I cannot doubt that it will be effective.
Listening to the objections which this measure has encountered, I am reminded of those so often brought against the Wilmot Proviso. Sometimes it was said that Slavery could not go into the Territories without positive statute, and that therefore the prohibition was unnecessary. But it generally happened that those who opposed the positive prohibition were indifferent to the great question. No, Sir; there can be but one true rule. It is this: the rights of colored persons must be placed under the protection of positive statute, warning their oppressors against continued outrage.
The question being taken on Mr. Sumner’s amendment, it was adopted,—Yeas 19, Nays 17. The House concurred, and the President approved the bill.
Thus was another road brought within the sphere of this prohibition. But the exclusion was continued on the main road in Pennsylvania Avenue.
June 21st, the Senate having under consideration a bill to amend the charter of the Washington and Georgetown Railroad Company, Mr. Sumner moved the following amendment:—
“And provided, further, That there shall be no exclusion of any person from any car on account of color.”
Debate ensued. Mr. Sherman, of Ohio, thought “the amendment ought not to be adopted.” Mr. Hendricks, of Indiana, thought it tended to depreciate the value of investments made on the faith of former legislation. Mr. Willey, of West Virginia, declared his opposition, saying, “It is a matter to be regulated by the interests of the Company, the convenience of the people, and especially the tastes of the people.” Mr. Powell, of Kentucky, said: “If the Senator from Massachusetts is such a vehement friend of this down-trodden race, as he is a lawyer, why did he not undertake their case, and propose to argue it for them before the courts? That would have indicated that he really felt for the negro.… The Senator shows his devotion to this down-trodden race here, and only in words.… The Senator’s staple is this fanatical idea. He wants this little hobby to ride through Massachusetts on, and to feed a fanatical flame there. He can fool nobody here with this kind of thing. Take the negro out of the Senator’s vocabulary, and, rich as it is, it would be exceedingly barren.” Mr. Trumbull, of Illinois, also opposed the amendment. In the course of the debate, Mr. Sumner spoke as follows, especially in reply to Mr. Trumbull.
Mr. President,—The Senator from Illinois [Mr. Trumbull], in former days, was a sincere, intelligent, devoted supporter of the Wilmot Proviso. As I understand that Proviso, it was simply a prohibition of Slavery in the Territories. Now I know not whether the Senator held, as I did, that, even without that prohibition, yet, by a strict interpretation of the Constitution, Slavery could not go into the Territories. I presume he did; most of us did. For myself, I held it resolutely and sincerely. I always regarded the Wilmot Proviso, if the Constitution were properly interpreted, as mere surplusage, sheer supererogation; and yet I never hesitated, in season or out of season, to vindicate it; and I believe the Senator never hesitated, in season or out of season, to do the same. I remember that my earliest admiration of that Senator was founded on his brave and able support of that very prohibition. Not then was he deterred from a humane provision because without it, according to his interpretation of the Constitution, Slavery could not enter the Territories. Nor was he deterred because the provision might be offensive to persons of weak nerves. No, Sir; openly and courageously he maintained the principle that Slavery must be prohibited. And on the same principle—if I may pass from great things to smaller, I admit, but not small—I insist that this proviso should also be adopted.
Our experience shows that the law as the Senator expounds it is not so accepted by this railroad corporation. He knows as well as I that colored persons are daily insulted. Some of these victims will compare in respectability of conduct with any whom I now have the honor to address. My colleague alluded to a colored clergyman whom he saw thrust out only the other day. We know of an officer of the United States, wearing the national uniform, thrust out; and the Senator from Illinois will allow all these things to be done, and not interfere. He tells us that it is contrary to law, and yet he allows it to proceed under the very eyes of the Senate. Sir, I insist that the Senate, when such outrage occurs, shall show that it has power, and is willing to exercise it on the side of justice.
But the Senator reminds us that in other days the Fugitive Act was passed here, and made especially offensive; and he pleads with us not to imitate that bad example, by introducing anything that may be offensive. I do not like the comparison of the Senator. Does he not know well that everything introduced into the Fugitive Slave Bill was in the interest of Slavery, and contrary to every sentiment of humanity, and that it was intended to give offence? The proposition now moved is opposite in character. It is to sustain the principles of humanity, to uphold human rights, to vindicate human equality, and with no purpose of offence,—none, not the least. The illustration of the Senator is entirely out of place. True it is that in those other days we were offended, and it was part of the hardships to which we were exposed. As, in the days which preceded our Revolution, the British officers said they would cram the stamps down the throats of the American people, so, in the same malignant spirit, the Slave-Masters insisted upon cramming Slavery down the throats of the Senate and the country. There was nothing but brutality then. Slavery in all its features is bad, but one of its most odious manifestations was the revolting insensibility to every sentiment of delicacy and humanity which it created in its supporters.
Sir, the Senator from Illinois knows well that it is in a very different spirit that propositions like the present are brought forward. It is always in the interest of human rights, and I need not say to that Senator, so far as I am concerned, with no other purpose than that patent in the proposition itself, and with no idea of offending any human being,—on the contrary, with a desire to avoid offence, if I possibly can. In that spirit I wish to do my duty on this floor. I would never give offence to any one, here or elsewhere, if I knew how to avoid it, while in all things I faithfully discharge my public duty.
The debate continued, when Mr. Grimes, of Iowa, said he should like to have Mr. Sumner answer one question. “Suppose we pass this amendment and put it into the law, and the Company goes on and does exactly as it has been doing, excluding these men, what are these colored men going to do? Have they not got to go to law then? Will they not be compelled to enforce their rights in court? Will they not be compelled to employ lawyers? If that be so, what advantage will it be to them to adopt this amendment under the present condition of things?”
Mr. Sumner. I will answer. Because the Company will not dare to continue this outrage in the face and eyes of a positive provision of statute. That is the answer.
On the Yeas and Nays, the amendment was lost,—Yeas 14, Nays 16,—several Republicans uniting with the Democrats against it.
At the next stage of the bill, Mr. Sumner renewed his amendment, when it was adopted,—Yeas 17, Nays 16. The bill passed the Senate, and was the subject of conference between the two Houses, but it never became a law.
January 17, 1865, the Senate having under consideration the bill to incorporate the Baltimore and Washington Depot and Potomac Ferry Railway Company, Mr. Sumner moved the same amendment, which was adopted,—Yeas 24, Nays 6. This bill was passed by the Senate, but it never became a law.
February 4, 1865, the Senate having under consideration a bill to amend the charter of the Metropolitan Railroad Company, Mr. Sumner moved the following amendment:—
“That the provision prohibiting any exclusion from any car on account of color, already applicable to the Metropolitan Railroad, is hereby extended to every other railroad in the District of Columbia.”
This amendment became necessary in order to reach the Washington and Georgetown Railroad Company. It was opposed by Mr. Dixon, of Connecticut, Mr. Conness, of California, and Mr. Hale, of New Hampshire, the last regarding it in the nature of general legislation on a private act. Mr. Sumner replied, that it was needed, in order to bring the Metropolitan Railroad on an equality with the other roads, inasmuch as Congress had already imposed the prohibition upon that road; and, secondly, that it was germane, inasmuch as the Senate might engraft upon any railroad charter any proposition, special or general, concerning the subject-matter.
The amendment was lost,—Yeas 19, Nays 20.
At the next stage of the bill, Mr. Sumner renewed his amendment. February 6th, Mr. Dixon, Chairman of the Committee on the District of Columbia, withdrew his opposition, saying: “I opposed it on the ground that it seemed to conflict with the rights of another Company, not now before the Senate [the Washington and Georgetown Railroad Company]; but since that time I have seen the managers and controllers of that Company, and find that they are unwilling to contend on this subject with what they consider to be the public opinion. They therefore make no objection to it, and I shall make none.”
The amendment was adopted,—Yeas 26, Nays 10. The bill as amended passed the House and was approved by the President, so that it became illegal for any railroad in the District of Columbia to exclude any person from any car on account of color.
The Washington and Georgetown Railroad did not promptly recognize the law. Colored persons were excluded from their cars, when Mr. Sumner addressed a letter to the President of the road, calling attention to the contumacy of the Company, and announcing his purpose, if it continued, to move, at the next session of Congress, the forfeiture of the charter. At the same time he addressed a communication to the District Attorney, asking him to proceed against the Company. At last the law was recognized, and from that date all the street-cars of Washington have been open to colored persons.
WRONG AND UNCONSTITUTIONALITY OF FUGITIVE SLAVE ACTS.
Report in the Senate of the Committee on Slavery and Freedmen, February 29, 1864.
February 29, 1864, Mr. Sumner reported from the Committee on Slavery and Freedmen a bill to repeal all acts for the rendition of fugitive slaves. Accompanying this bill was the following report, of which ten thousand extra copies were ordered to be printed for the use of the Senate, together with the views of the minority, by Mr. Buckalew.
The debate on this subject, and the final repeal of all Fugitive Slave Acts, appear at a later date.[312]
The Select Committee on Slavery and the Treatment of Freedmen, to whom were referred sundry petitions asking for the repeal of the Fugitive Slave Act of 1850, and also asking for the repeal of all acts for the rendition of fugitive slaves, have had the same under consideration, and ask leave to make the following report.
Two Fugitive Slave Acts still exist unrepealed on our statute-book. The first, dated as long ago as 1793, was preceded by an official correspondence, supposed to show necessity for legislation.[313] The second, belonging to the compromises of 1850, was introduced by a report from Mr. Butler, of South Carolina, at that time Chairman of the Judiciary Committee of the Senate.[314] In proposing the repeal of all legislation on the subject, it seems not improper to imitate the latter precedent by a report assigning briefly the reasons governing the Committee.