SUPPLEMENT.
The recent correspondence between Mr. Seward and the Brazilian Chargé d’Affaires at Washington seems to bring the case of the Florida to a close. Our Government has distinctly recognized the inviolability of territorial sovereignty, and made reparation for the original act of violence, so much discussed. The vessel itself, out of which the question arose, was no longer in existence; so that the only important point not already settled by principle and precedent was eliminated from the case. There was no vessel to be claimed on the one side or refused on the other, and nothing was said of damages on account of its loss. Of course, had the Florida belonged to Brazil, any reparation would have been incomplete which did not embrace the vessel or its value.
But Mr. Seward has been careful to exclude the assumption that the Rebels have belligerent rights on the ocean, and also the other assumption that the Florida was anything but a pirate. It is clear that the position taken on these two points must have influenced any decision with regard to the vessel itself, or damages on account of its loss.
As the case is now settled, it is unnecessary to consider objections adduced against the view presented by me in the “Advertiser” some weeks ago. What is now certain was then uncertain. The Government has spoken, and the country accepts the result. But it may not be unprofitable to return for one moment to the original discussion.
My object at that time was to furnish materials for final judgment, and especially to repel British objurgations which befogged the whole question. It was important that our national conduct should be determined calmly, according to the best principles, and with perfect knowledge of the past. But it is difficult to deal with this or any kindred question without repairing to British history. There are precedents to be shunned as well as to be followed, and both should be studied. It is strange that such an attempt should have been misunderstood. Perhaps it is stranger still that anybody should have insisted on our humble submission to the most opprobrious epithets, without reminding the objurgators of the history of their own country, bristling with incidents having in them all that was indefensible in the Florida case without any of its exceptional circumstances. A Roman poet exclaims:—
“Quis tulerit Gracchos de seditione querentes?”[35]
And another authority, which will not be questioned, expressly enjoins on the censor to extract the beam from his own eye before he complains of the mote in the eye of another.
In the excess of dissent from what I said, it was even suggested that the vessel should be surrendered to Brazil,—of course as trustee of Rebel Slavery. But this was a very hasty suggestion, forgetting the piratical origin of the vessel, and forgetting the piratical slavemonger character of its pretended owners, having no ocean rights. Admitting the inviolability of neutral waters, it does not follow that such a vessel could be claimed, or, if Brazil were so ill-advised as to make such a claim, that our Government could hearken to it. It was because I saw this clearly that I sought to set up a breakwater against such claim, and to prepare public opinion on the subject. It is noble in a nation to acknowledge wrong; but it is weakness to sacrifice a great cause.
The Statute of Limitations has been set up against some of the historic instances adduced, and the very recent date of the Congress of Paris, at the close of the Crimean War in 1856, is declared to fix the line of demarcation, marking an altered policy in Great Britain. As a lover of peace and a student of International Law, anxious for its advancement,—yielding to nobody in this regard,—I wish that such an alteration could be shown. Joyfully should I welcome it, as one of the signs of a new order of ages. Unhappily, it cannot be shown, and I feel sure that it can be brought about only by a frank exhibition of transactions demonstrating its necessity. Truth is illustrated by error, health is maintained by knowledge of disease, and crime itself is made repulsive by bringing its perpetrators to judgment.
It is an old adage of the law, that no statute of limitations runs against the sovereign,—Nullum tempus occurrit regi. This, of course, is for the protection of his interests. But, assuming that such a statute may be pleaded against British responsibility for historic precedents more than eight years old, there is no question with regard to what has occurred since. Here the responsibility is admitted. Now, confining ourselves to the brief period since the Crimean Peace, there are instances identical in character with those which occurred previously; and these are the more remarkable as Great Britain had not the apology of war to disturb her equanimity.
A well-informed person, writing from Berlin, furnishes the following instance, which occurred as late as 1860. “Two British men-of-war took, or at least threatened to take, the Paraguayan war-steamer Tacuaril, in the port of Buenos Ayres. They laid themselves on each side of the Paraguayan war-steamer, in order to enforce a claim which proved afterwards to be fallacious.” The writer adds, that “this case, if looked into closely, will probably serve as a counter argument, should England have anything to say on the Florida-Bahia affair.” True enough; and such is the recent judgment of a German publicist.
There is also that other historic instance which has among its incidents the suspension of diplomatic relations between Brazil and Great Britain. It began with a demand by the latter power for reparation on account of a vessel pillaged after shipwreck on the coast of Brazil, in June, 1861. This was complicated soon after by a quarrel between certain officers of a British frigate in the harbor of Rio Janeiro and a sentry on shore, which ended in taking the officers into custody. The British minister demanded reparation for these two alleged wrongs; and the British admiral, who was at hand, seized five Brazilian merchant-vessels in the harbor of Rio Janeiro, declaring that he would not release them until £6,500 had been paid on account of the pillaged vessel, and satisfaction afforded for the detention of the officers. Thus, in time of peace, without any declaration of war, the British admiral performed an act of war, like that in the case of the Florida, but without the apology of the captors of the latter vessel. In short, he undertook, within the territorial jurisdiction of Brazil, to seize, not one vessel, but five vessels,—and all these innocent, neither piratical in origin nor belonging to people without ocean rights. Brazil, succumbing to superior force, paid the money demanded, and referred the question of reparation in the case of the officers to the arbitration of King Leopold of Belgium, who has since rendered judgment for the weaker power. The question of responsibility for the five innocent vessels seized within the territorial jurisdiction of Brazil was left unsettled. The mild and accomplished minister of Brazil in London, M. Carvalho Moreira, made a reclamation on this account, in a careful note, dated May 5, 1863, where he submitted, that “the English Government should express its regret at the acts which accompanied the reprisals, and declare that it had no intention to offend the dignity or to violate the territorial sovereignty of the empire,” and that it should consent to refer the question of damages to arbitration. Earl Russell declining to reopen any part of the questions between the two Governments, or to enter into any explanations, the Brazilian minister at once demanded his passports and left London. This case will be found at length in an authentic publication, which has only recently appeared.[36] I leave it, simply quoting from the work these pertinent words: “The question was with regard to the reparation and compensation which Brazil demanded from England for the seizure of her merchant-vessels and for the violation of her territorial waters.… It was, unhappily, easy to foresee the issue of this question,—England being always more disposed to demand reparation and indemnities than to accord them.”[37] Such is the recent judgment of a French publicist.
There is another case, which has not yet found its way into the books, nor did it occur after the Crimean War; but it is so very recent, and so curious, that I venture to adduce it. I am indebted for it to the Hon. John B. Alley, one of our Representatives in Congress, to whom it was communicated by one of his constituents.[38] The bark Home, of Boston, was on her way from Calcutta to Boston, when, on or about August 22, 1849, she fell in with a vessel, first supposed to be a pirate, but at last proved to be the Polka, prize to the British steamer Sharpshooter, with the crew in a starving condition. The prize-master, on coming aboard, said that the prize was taken in Port Macahé, near Cape Frio, in Brazil, for being engaged in the slave-trade; that, to escape the fire of the fort, which opened on the captors, they slipped the cable, and cut adrift the boat which was made fast astern; that at the time of the capture there was no person aboard, except a single negro; and that a midshipman with ten men was put aboard to take her to St. Helena. The famished crew were supplied by the American bark with bread, beef, water, and other small stores, for which the British Government paid, in 1852, the cost price, being all that was asked. On this case the master of the bark, in his communication to Mr. Alley, remarks: “This is another instance where a vessel was taken in a port by the British, and this in a time of profound peace; and as the fort fired on them, I presume the capture was not made by consent of the Brazilian Government.” Such is the mild conclusion of an American shipmaster, who seems to see the conduct of Great Britain in the same light as it is seen by the publicist of Germany and the publicist of France.
Such instances, so recent, show how little the injunction of International Law has been regarded by Great Britain, whether before or after the Crimean War; and yet British censors have not hesitated to arraign the United States in brutal terms. I do not admit their competency to sit in judgment on us; I plead to the jurisdiction. If they would teach correct principles, they must begin by a correct example. Meanwhile the abuses for which Great Britain is responsible cannot be forgotten by those who sincerely desire a new era in International Law. I say this in no spirit of reproach or controversy, but simply to serve the cause of my country and of truth.
Americanus.
RELATIONS WITH GREAT BRITAIN: THE ST. ALBANS RAID.
Speech in the Senate, on a Bill for Fortifications and Batteries on the Lakes, December 19, 1864.
December 19th, Mr. Doolittle, of Wisconsin, introduced a bill to enable the President to expend the sum of ten million dollars, or so much thereof as might be necessary, in his opinion, in building fortifications and floating-batteries to defend our northern frontier and the commerce of the Lakes against the attacks of piratical and hostile expeditions organized in the British provinces by the enemies of the United States; and he moved the reference of the bill to the Committee on Finance, which, at the suggestion of Mr. Sumner, he changed to the Committee on Foreign Relations. A debate ensued, involving what were called the troubles on the border, and especially the “St. Albans Raid,” when a hostile expedition crossed from Canada into Vermont, and committed acts of violence in that town. Mr. Sumner said:—
MR. PRESIDENT,—The question before the Senate is simply on the reference of this bill. It is a question of the order of business.
Looking at its character, it is plain that it concerns primarily and essentially our foreign relations. This circumstance gives it a peculiar interest. If it concerned only an additional levy of troops, or the building of new forts, or a change in our commercial policy, there would be no question with regard to its reference, nor would the Senator from Maryland [Mr. Reverdy Johnson] have followed it by remarks on the outrage at St. Albans. I assume, then, that it concerns our foreign relations, and therefore, according to the usages of the Senate, should be referred to the committee having that subject in charge.
This is all I have to say on the question of reference; but the Senate will pardon me, if I glance for one moment at the outrage to which the Senator referred. Only a few weeks ago, the village of St. Albans, in Vermont, was disturbed by a band of murderers, highwaymen, house-breakers, horse-thieves, and bank-robbers, from Canada. After breaking open the banks and obtaining a certain amount of spoil, attended by the murder of a citizen, they succeeded in making their way back to Canada, where they declared themselves agents of the Rebel Government. Such are the main facts. Now, Mr. President, does any one suppose that these agents of the Rebel Government were moved to this criminal enterprise merely by considerations of plunder?—that they risked life and everything merely to rob a bank? No such thing. Their object was much higher and more comprehensive. It was to embroil the Government of the United States with the Government of Great Britain. I cannot doubt that such was their object. To my mind it is plain as noonday.
These agents, or rather the men behind who set them on, knew the sensitiveness of our people, and how naturally they would be aroused against the foreign country where the enterprise had its origin. They saw that excitement, passion, anger on our part were inevitable, that out of these some complication or collision might ensue, and that any such complication or collision must necessarily help the Rebellion more than a victory on the field of battle. All this they saw, and acted accordingly. The whole proceeding was a trap in which to catch the Government of our country. It was hoped that in this way the Rebellion might gain that powerful British intervention which would restore its failing fortunes.
For myself, Sir, I am determined not to be caught in any such trap. There are many things Great Britain has done, since the outbreak of our Rebellion, which to my mind are most unfriendly; but I am unwilling that there should be anything on our side to furnish seeming apology for that foreign intervention so constantly menaced, and originally foreshadowed in the most hasty and utterly unjustifiable concession of ocean belligerence to Rebel Slavemongers who had not a single port or prize court. Nobody sees the wrongs we have suffered more clearly than I do; but I see other wrongs also. While never ceasing to claim all our just rights, and reminding this power always of duties plainly neglected, I cannot forget that we are engaged in a war for the suppression of a long-continued and most virulent Rebellion, which has thus far tasked our best energies. To this work let us dedicate ourselves, without arousing another enemy, through whose alliance the Rebellion may be encouraged and strengthened. Let us put down the Rebellion. Do this, and we shall do everything.
Meanwhile I trust the Senate will not be moved by passion into hasty action on any of the measures before it, but that each will be considered carefully and calmly on its merits, according to the usage of this body. This surely is the dictate of prudence, and I cannot doubt that it is the dictate of patriotism also.
Washington, in his Farewell Address, warns against “the insidious wiles of foreign influence”; but the “insidious wiles” of our Rebels, seeking to embroil us with foreign powers, are as deadly as any influence brought against us. Forewarned is forearmed. Let us be steadfast against them.
After further debate, in which Mr. Sumner considered the order of General Dix, authorizing our troops to pursue a hostile expedition into Canada, according to writers on International Law, the bill was referred to the Committee on Foreign Relations, where, with other similar measures, it was allowed to sleep.
TERMINATION OF THE CANADIAN RECIPROCITY TREATY.
Speeches in the Senate, on the Joint Resolution giving Notice for the Termination of the Canadian Reciprocity Treaty, December 21, 1864, January 11 and 12, 1865.
A joint resolution passed the House of Representatives, December 13, 1864, which, after an argumentative preamble, authorized and requested the President of the United States to give the British Government the notice required by the fifth article of the Reciprocity Treaty of the 5th June, 1854, for the termination of the same; and in the Senate the same was duly referred to the Committee on Foreign Relations.
December 20, 1864, Mr. Sumner reported from the Committee the House resolution, with the following substitute as an amendment.
“Joint Resolution providing for the termination of the Reciprocity Treaty of fifth June, eighteen hundred and fifty-four, between the United States and Great Britain.
“Whereas it is provided in the Reciprocity Treaty concluded at Washington the 5th of June, 1854, between the United States, of the one part, and the United Kingdom of Great Britain and Ireland, of the other part, that this treaty ‘shall remain in force for ten years from the date at which it may come into operation, and further until the expiration of twelve months after either of the high contracting parties shall give notice to the other of its wish to terminate the same’; and whereas it appears, by a proclamation of the President of the United States, bearing date 16th March, 1855, that the treaty came into operation on that day; and whereas, further, it is no longer for the interests of the United States to continue the same in force: Therefore
“Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, That notice be given of the termination of the Reciprocity Treaty, according to the provision therein contained for the termination of the same; and the President of the United States is hereby charged with the communication of such notice to the Government of the United Kingdom of Great Britain and Ireland.”
December 21st, the joint resolution was, on motion of Mr. Sumner, taken up for consideration, when the substitute was adopted as an amendment. The question occurring on the passage of the joint resolution as amended, Mr. Sumner said:—
MR. PRESIDENT,—I had originally intended, when this joint resolution came up, to review the whole subject, and to exhibit at length the history of the Reciprocity Treaty, and existing reasons for its termination. But, after the debate of a few days ago, and considering the apparent unanimity in the Senate, I feel unwilling to occupy time by any protracted remarks. They are not needed.
The people of the United States have been uneasy under the Reciprocity Treaty for several years,—I may almost say from its date. A feeling early showed itself that the treaty was more advantageous to Canada than to the United States,—that, in short, it was unilateral. This feeling has of late ripened into something like conviction. At the same time the exigencies of the present war, requiring so large an expenditure, make it unreasonable for us to continue a treaty by which the revenues of the country suffer. Such considerations have brought the public mind to its present position. The unamiable feelings manifested toward us by the people of Canada have had little influence on the question, unless, perhaps, they may conspire to make us look at it in the light of reason rather than of sentiment.
The subject of the fisheries is included in this treaty. But it is not doubted that before the termination of the treaty some arrangement can be made in regard to it, either by reciprocal legislation or by further negotiation.
The Committee, after careful consideration at a full meeting, was unanimous in its report. And as the Committee represents all parts of the country and all sentiments of the Senate, I have thought that perhaps there might be a similar unanimity among Senators. Therefore I forbear all further remarks, and ask for a vote.
On motion of Mr. Hale, of New Hampshire, the further consideration of the question was postponed.
January 11, 1865, it was resumed, when Mr. Hale spoke against the notice. He was followed by Mr. Sumner.
Mr. President,—The Reciprocity Treaty has a beautiful name. It suggests at once exchange, equality, equity; and it is because it was supposed to advance these ideas practically that this treaty was originally accepted by the people of the United States. If, however, it shall appear, that, while organizing an exchange, it forgets equality and equity in any essential respect, then must a modification be made in conformity with just principles.
I mean to be brief, but I hope, though brief, to make the proper conclusion apparent. It is a question for reason, and not for passion or sentiment, and in this spirit I enter upon the discussion.
The treaty may be seen under four different heads, as it concerns, first, the fisheries,—secondly, the navigation of the St. Lawrence,—thirdly, the commerce between the United States and the British provinces,—and, fourthly, the revenue of the United States.
1. The fisheries have been a source of anxiety throughout our history, even from the beginning, and for several years previous to the Reciprocity Treaty they had been the occasion of mutual irritation, verging at times on positive outbreak. The treaty was followed by entire tranquillity, which has not been for a moment disturbed. This is a plain advantage not to be denied. But, so far as I have been able to examine official returns, I do not find any further evidence showing the value of the treaty in this connection, while opinions, even among those most interested in the fisheries, are divided. There are partisans for it in Gloucester, and partisans against it in Maine.
If the treaty related exclusively to the fisheries, I should not be willing to touch it,—although the circumstance that representatives of these interests differ with regard to its value may leave it open to debate. But the practical question remains, whether any seeming advantage in this respect is sufficient to counterbalance the disadvantage in other respects.
2. Next comes the navigation of the St. Lawrence. This plausible concession has proved to be little more than a name. It appears that during the first six years of the treaty only forty American vessels, containing 12,550 tons, passed seaward through the St. Lawrence, and during the same time only nineteen vessels, containing 5,446 tons, returned by the same open highway.[39] These are very petty amounts, when we consider the commerce on the Lakes, which in 1856 was estimated at $587,197,320,[40] or when we, consider the carrying trade between the United States and the British provinces. Take the years 1857-62, and we find that during this period the shipping of the United States clearing for the British provinces was 10,707,329 tons, and the foreign shipping clearing during this same period was 7,391,399 tons, while the shipping of the United States entering at our custom-houses from the British provinces was 10,056,183 tons, and the foreign shipping entering was 6,453,520 tons.[41] I mention these things by way of contrast. In comparison with these grand movements of value, the business we have been able to do on the St. Lawrence is trivial. It need not be considered an element in the present discussion.
3. The treaty may be seen next in its bearing on the commerce between the two countries. This has increased immensely; but it is difficult to say how much of this increase is due to the treaty, and how much to the natural growth of population, and the facilities of transportation in both countries. If it could be traced exclusively or in any large measure to the treaty, it would be an element not to be disregarded. But it does not follow from the occurrence of this increase after the treaty that it was on account of the treaty. Post hoc, ergo propter hoc, is too loose a rule for our Government on the present occasion.
The census of the United States and of the British provinces shows an increase of population which must not be disregarded in determining the origin of this increase of commerce.
There are also the railroads, with prompt and constant means of intercommunication, which have come into successful operation only since the treaty. It would be difficult to exaggerate the influence they have exercised in quickening and extending commerce. I cannot doubt that the railroad system of the two countries has been in itself a Reciprocity Treaty more comprehensive and equal than any written on parchment.
The extent of trade before and after the treaty is seen in a few figures.
In the three years immediately preceding the treaty the total exports to Canada and the other British provinces were $48,216,518, and the total imports were $22,588,577,—being of exports to imports in the proportion of one hundred to forty-six.
In the ten years of the treaty the total exports to Canada and the other British provinces were $256,350,931, and the total imports were $200,399,786. According to these amounts the exports were to the imports in the proportion of one hundred to seventy-eight. Taking Canada alone, we find the change in this proportion greater still. The total exports to Canada in the three years immediately preceding the treaty were $31,846,865, and the total imports were $16,589,624, being in the proportion of one hundred to fifty-two,—while the total exports to Canada alone during the ten years of the treaty were $170,371,911, and the total imports were $161,474,349, being in the proportion of one hundred to ninety-four.
I present these tables simply to lay before you the extent and nature of the change in the commerce between the two countries. I forbear embarking on the much debated inquiry as to the effect of a difference between the amount of exports and of imports, involving, as it does, the most delicate question of the balance of trade. In the comparison I am making, it is not necessary to consider it. The Reciprocity Treaty cannot be maintained or overturned on any contested principle of political economy.
4. I come, in the last place, to the influence of the treaty on the revenue of our country; and here the custom-house is our principal witness. The means of determining this question are found in the authentic tables published from time to time in Reports of the Treasury, and especially in the report to Congress at this session, which I have in my hand.
Looking at these tables, we find certain unanswerable points. I begin with an estimate founded on the trade before the treaty. From this it appears, that, if no treaty had been made, and the trade had increased in the same ratio as before the treaty, Canada would have paid to the United States in the ten years of the treaty at least $16,373,880, from which she has been relieved. This sum is actually lost to the revenue of the United States. In return, Canada has given up $2,650,890, being the amount it would have collected, if no treaty had been made. This vast disproportion is to the detriment of the national revenue.
Here is another illustration, derived from the tables. During the ten years of the treaty the United States have actually paid in duties to Canada alone $16,802,962, while during this same period Canada has paid in duties to the United States the very moderate sum of $930,447. Here again is vast disproportion, to the detriment of the national revenue.
The same inequality is seen in another way. During the ten years of the treaty dutiable products of the United States have entered Canada and the other provinces to the amount of $84,347,019, while during this same period dutiable products of Canada and the other provinces have entered the United States only to the amount of $7,750,482. During this same period free products of the United States have entered Canada and the other provinces to the amount of $118,853,972, while free products of Canada and the other provinces have entered the United States to the amount of $178,500,184. Here, again, is vast disproportion to the detriment of the national revenue.
Add to these various results the statement of the Secretary of the Treasury, just laid on our tables, in the following words:—
“The treaty [during the eight fiscal years 1855-63] has released from duty a total sum of $42,333,257 in value of goods of Canada more than of goods the produce of the United States.”[42]
This conclusion is in substantial harmony with that reached from an independent examination of the tables.
These various illustrations show that the revenue of the United States has suffered by the treaty, and that in this important particular its advantages are not shared equally by the two countries. Here, at least, it loses title to its name.
But its onerous character has become manifest in other forms since the adoption of our system of internal revenue. I need not remind the Senate of the extent to which we have gone in seeking out objects of excise,—and there are pending propositions in the same direction, seeking new objects; but it is notorious that such taxation is always graduated with reference to the tariff on the same objects, when imported from abroad. But here the Reciprocity Treaty steps forward with imperative veto. Thus, for instance, the lumber of our country is left free from excise, though I am assured it might well bear it, simply because no countervailing tax can be imposed upon lumber from the British provinces. Had a tax of five per cent been imposed upon the lumber of our country, I am assured, by those familiar with the subject, that we should have received at least $5,000,000,—all of which is lost to our annual revenue. This is only a single illustration.
There are other ways in which the treaty and our excise system come into conflict. Practical difficulties, I am assured, have already occurred in the Bureau of Internal Revenue. This conflict is seen in the extent to which the business of the country, and even its agriculture, is taxed now. Everything is taxed. Even the farmer works now with taxed tools. These considerations, with the increased value of labor among us, must give new advantages to the productive interests of Canada as compared with ours, and tend still further to the unequal operation of the treaty. Even admitting its original equality, you cannot deny that the vicissitudes of war, in these latter days, have worked changes requiring new arrangements and adaptations.
Mr. President, such is the result of a candid inquiry into the operation of this treaty, as it concerns the fisheries, the navigation of the St. Lawrence, the commerce of the two countries, and the revenue of the United States. I have kept back nothing favorable to the treaty that could be adequately stated in the brief space I have allowed myself, nor have I exaggerated its unequal operation.
And now the question is, Shall this condition of things be readjusted? The treaty itself, as if anticipating this exigency, furnishes the opportunity, by expressly providing for its termination at the expiration of ten years, on notice of one year from either party. Great Britain is free to give this notice; so are the United States. Considering the present state of the country, it would seem improvident not to give the notice. We must husband our resources; nor can a foreign Government justly expect us to continue a treaty which is a drain upon our revenue. We are turning in all directions for subjects of taxation. Our own people are contributing largely in every way. Commerce, manufactures in every form, come to the assistance of the country. I know no reason why the large amounts enfranchised by this treaty should enjoy the immunity thus far conceded. An inequality which in ordinary times might escape observation becomes too apparent in the blaze of present responsibilities.
Something has been said about accompanying the proposed notice with instructions to negotiate a new treaty. This is unnecessary. A new treaty may not be advisable. It is possible that the whole matter may be settled by Congress under general laws. At all events, there is a full year from the 16th of March next in which to provide a substitute, either by diplomacy or by legislation. And this remark is applicable to the fisheries, as well as to every other interest touched by the treaty. I cannot doubt that the two contracting parties will approach the whole business in the determination to settle it on the permanent foundations of justice and equity; but the first step in this direction is the notice to terminate the existing treaty.
In the debate which ensued, Mr. Sherman, of Ohio, Mr. Collamer, of Vermont, Mr. Morrill, of Maine, Mr. Chandler, of Michigan, Mr. Foot, of Vermont, Mr. Doolittle, of Wisconsin, Mr. Farwell, of Maine, Mr. Conness, of California, Mr. Wilson, of Massachusetts, Mr. Cowan, of Pennsylvania, Mr. Riddle, of Delaware, and Mr. Richardson, of Illinois, spoke in favor of the notice; Mr. Ramsey, of Minnesota, Mr. Howe, of Wisconsin, Mr. Hale, of New Hampshire, and Mr. Hendricks, of Indiana, spoke against it.
January 12th, Mr. Sumner spoke again.
Mr. President,—The proposition to terminate the Reciprocity Treaty has been mystified in various ways. There has been mystification because it came from the Committee on Foreign Relations, as if that committee, to which are referred all treaties and questions with foreign powers, was not the proper committee to consider it, according to the usages and traditions of the Senate. Pray, what other committee could so justly deal with it?
There has also been illusiveness in argument, by accumulation of statistics and figures without end. We have been treated to calculations, showing the increase of commerce since the treaty, and also the relative increase of exports and imports. To these calculations I am no stranger; but, after careful study, I am satisfied that it is impossible to find in them any terra firma on which to stand. They are little better than quicksand, or a deceptive mirage.
In the remarks which I submitted to the Senate yesterday I declined to dwell on these calculations, for I saw, that, while involving large amounts, they were uncertain, inconclusive, and inapplicable. With one theory of political economy they seemed to point one way, and with another to point another way. If, for instance, you accept the early theory that commerce is disadvantageous where imports exceed exports, they tell against the treaty; but if you accept the opposite theory of later writers, they tell the other way. All this assumes that they are applicable. But nobody is able to show that the general increase of commerce since the treaty has been caused by the treaty. Other agencies have had their influence; and it is difficult to say what is due to them, and what to the treaty.
In this uncertainty, I prefer to rest the proposition on the simple ground that the national revenue is impaired by this treaty. Authentic figures place this beyond controversy.
I forbear now all details, and content myself with stating the indubitable conclusion. The national revenue is impaired in two ways: first, at the custom-house on our frontier, which, under the operation of the treaty, yields little or nothing, when it might yield much; and, secondly, it is impaired through the check and embarrassment the treaty causes in our internal taxation. There is failure of duties and of excise. It is not enough to say that there is a countervailing advantage in the increase of our commerce. The conclusion is none the less exact, that the national revenue is impaired. And the question is distinctly presented, whether, at this critical moment, in a period of war, when the whole country in its wealth and labor is contributing to the support of Government, any good reason can be assigned why the commerce of Canada should be exempt from contribution. Commerce elsewhere, manufactures, business, income, tea, coffee, books, all pay tribute. The tax-gatherer is everywhere except on the Canadian frontier. At home there is not an interest, hardly a sentiment, free from taxation. Surely there is nothing in the recent conduct of Canadians to make us treat them better than we treat ourselves.
There is another consideration which is decisive, even if others fail. In view of existing Public Opinion, and considering the criticisms of the treaty, it is important that our relations with Canada should be carefully revised in the light of experience. The treaty, in authorizing its termination at the end of ten years, has anticipated this very exigency. But such revision cannot be made advantageously without the proposed notice. In the case of a lease, with a right to terminate it at the end of ten years on a year’s notice, the landlord, if the character of the lease had been called in question, would not hesitate to give the notice, if for no other reason, that he might revise the terms anew on a footing of equality. For like reason we must give the notice to Great Britain. We must untie ourselves now, even if we would tie ourselves again for the future. The notice will leave us “master of the situation” to this extent at least, that we shall be free to act according to the requirements of the public good. Without this notice there will be no foothold for diplomacy or legislation; but the notice will be a foothold from which we may accomplish whatever is proper and just. The treaty may be reconsidered and then adopted anew, or it may be entirely changed, and we shall have a year for this purpose,—so that, when the Old expires, the New may begin.
The joint resolution directing the notice was adopted in the Senate,—Yeas 33, Nays 8,—and was at once adopted by the House of Representatives, and approved by the President January 18, 1865. It was then communicated by Mr. Seward to Mr. Adams, our minister at London, who, under date of March 17th, addressed a note to Earl Russell, “giving formal notice of the termination of the Reciprocity Treaty, and inclosing at the same time a certified copy of the resolution expressing the sense of both Houses of Congress on that subject.” Mr. Adams adds, in his letter to Mr. Seward: “This note was delivered by the messenger of this Legation at the Foreign Office at 2 P. M., notice of which was entered by him on the envelope, and also reported to me on his return. Not long afterwards I received from his Lordship his own acknowledgment of the reception of it.”[43]
THE EMANCIPATION PROCLAMATION AND EQUAL RIGHTS.
Letter to a Public Meeting in Philadelphia, December 26, 1864.
Senate Chamber, December 26, 1864.
DEAR SIR,—It will not be in my power to be present at the celebration of the Emancipation Proclamation by the Banneker Institute. But, wherever I may be, I shall not forget this great and good deed.
That proclamation has done more than any military success to save the country. It has already saved the national character. The future historian will confess that it saved everything.
It remains for us to uphold it faithfully, so that it may not be impaired a single jot or tittle.
In the spirit of the Proclamation, and taught by its example, we must press forward in the work of justice to the colored race, until abuse and outrage have ceased, and all are equal before the law.
The astronomer, Banneker, whose honored name you bear, would be shut out of the street cars in some of our cities; but such petty meanness cannot last long.
Accept my best wishes, and believe me, dear Sir, faithfully yours,
Charles Sumner.
The Committee, &c.
FREEDOM OF WIVES AND CHILDREN OF COLORED SOLDIERS.
Speech in the Senate, on a Joint Resolution for this Purpose, January 5, 1865.
As early as January 8, 1864, Mr. Wilson, of Massachusetts, embodied in a bill to promote enlistments a clause declaring, that, when any man or boy of African descent, owing service or labor in any State, under its laws, shall be mustered into the military or naval service of the United States, he and his mother, wife, and children shall be forever free. This bill was considered from time to time. March 18th, Mr. Sherman, of Ohio, moved to postpone the bill, “with a view that we may act upon the main proposition, the Amendment to the Constitution to abolish Slavery in the United States.” Mr. Sumner replied: “The Senator speaks about acting on ‘the main proposition.’ The main proposition, Sir, is to strike Slavery wherever you can hit it.” That session closed without final action on the question.
December 13, 1864, Mr. Wilson brought it forward again, in a joint resolution to encourage enlistments and promote the efficiency of the military and naval forces, by making free the wives and children of persons who had been or might be mustered into the service of the United States.
January 5, 1865, in the debate which ensued, Mr. Sumner said:—
MR. PRESIDENT,—Only a few days ago there was a call for three hundred thousand more troops. The country needs them, and it is the duty of Congress to supply them. To this end there must be no difficulty, impediment, or embarrassment in the way. All these must be removed. This is not all. There must be encouragement of every kind; and such is the character of the present proposition.
There can be no delay. The country cannot wait the slow action of Constitutional Amendment, as proposed by the Senator from Wisconsin [Mr. Doolittle]. Congress must act to the extent of its power, and any neglect of power on this question would be injurious to the public interests.
All will confess the humanity of the proposition to enfranchise the families of colored persons who have borne arms for their country. All will confess the hardship of continuing them in Slavery.
But the question is asked by many, and even by the Senator from Wisconsin, What power has Congress to set the families free?
Mr. Doolittle. I did not ask that question.
Mr. Sumner. The question has been put again and again, and the purport of the speech of the Senator was in that sense. He argued that we were about to have a Constitutional Amendment which would supersede everything; that therefore this proposition was unnecessary, if not injurious. I so understood the argument of the Senator, and that it pointed directly to the question of power,—because I know the patriotism of the Senator too well to suppose, that, if in his opinion the power of Congress was beyond doubt, he would hesitate. I do not do the Senator injustice. I say, then, the question is asked, What power has Congress to set the families free? This is the single point on which I shall express an opinion.
My answer is, that Congress has precisely the same power to enfranchise the families that it has to enfranchise the colored soldier. The two powers are coincident, and from the same source.
It is assumed that Congress may enfranchise the colored soldier. This has been done by solemn statute, without reference to the conduct of his pretended owner. If we are asked the reason for such enfranchisement, it must be found, first, in its practical necessity, that we may secure the best service of the slaves, and, secondly, in its intrinsic justice and humanity. In brief, Government cannot be so improvident and so foolish as to seek the service of the slave at the hazard of life, without securing to him the boon of freedom. Nor, if Government were so bereft of common sense as to forego this temptation to enlistment and efficient service, can it be guilty of the unutterable meanness of using the slave in the national defence and then returning him to bondage. Therefore the slave who fights is enfranchised.
But every argument, every consideration, which pleads for the enfranchisement of the slave, pleads also for the enfranchisement of the family. There is the same practical necessity for doing it, and the same unspeakable shabbiness in not doing it.
There is no principle of law better established than this, that an acknowledged right carries with it all incidents essential to its exercise. I do not employ technical language; but I give the idea, founded in reason and the nature of things. It would be vain to confer a right or a power, if the means for its enjoyment were denied. From this simple statement the conclusion is irresistible.
In conferring upon Congress the power to create an army, the Constitution conferred therewith all the powers essential to the exercise of the principal power. If Congress can authorize the enlistment of slaves, as it indubitably can, it may at the same time authorize their enfranchisement, and by the same reason it may authorize the enfranchisement of their families,—and all this from the necessity of the case, and to prevent an intolerable baseness.
A Scottish patriot, nearly two centuries ago, exclaimed in memorable words, which I am always glad to quote, that he would give his life to serve his country, but would not do a base thing to save it.[44] If there be any value in this declaration, it may be invoked, when it is deliberately argued that the National Government can create an army, and in this service can enfranchise the slave it enlists, but is impotent to enfranchise his family. I know not how we can use his right arm and ask him to shed his blood in our defence, and then hand over his wife and child to bondage. The thought is too vile. The human heart rejects the insufferable wrong.
But it is said the slave has no family. Such is the argument of Slavery. For all that he has, as well as all that he is, even wife and child, belong to another. Surely this unrighteous pretension will not be made the apology for a denial of rights. If the family of the slave be not designated by law, or by the forms of legal marriage, then it must be ascertained by the next best evidence possible,—that is, by cohabitation and mutual recognition as man and wife. And any uncertainty in this evidence can only be regarded as a natural incident of Slavery. As men cannot take advantage of their own wrong, so slave-masters cannot take advantage of Slavery. Any other rule would practically unite with Slavery in denying to the slave wife and child.
There is a well-known French maxim, that “it is only the first step which costs”; and here permit me to say, it is only the first stage of the argument which merits attention. Concede that the soldier may be enfranchised, and then by the same constitutional power his family may be admitted to an equal liberty. Any other conclusion would be illogical as inhuman, discreditable alike to head and heart. There is no argument, whether of reason or humanity, for the enfranchisement of the soldier, which does not plead equally for that of his family. Nay, more,—I know not how we can expect a blessing on our arms while we fail to perform this duty.
I cannot close without declaring again my opinion, that Congress at this moment is complete master of the whole subject of Slavery everywhere in the United States, even without any Constitutional Amendment. It can sweep all out of existence, precisely as it can remove any other obstruction to the national defence, and all this by virtue of a power as indisputable as the power to raise armies or to suspend the Habeas Corpus. Future generations will read with amazement, that a great people, when national life was assailed, hesitated to exercise a power so simple and beneficent; and this amazement will know no bounds, as they learn that Congress higgled for months on the question whether the wives and children of our colored soldiers should be admitted to freedom.
January 9th, after further debate, the joint resolution passed the Senate,—Yeas 27, Nays 10. February 22d, it passed the House of Representatives,—Yeas 74, Nays 63; and March 3d, it was approved by the President.
MASSACRE OF THE CHEYENNE INDIANS.
Remarks in the Senate, on a Joint Resolution relating thereto, January 13, 1865.
January 13th, the Senate considered a joint resolution reported by Mr. Harlan, from the Committee on Indian Affairs, in relation to the massacre of the Cheyenne Indians. It proposed to direct the Secretary of War to cause the suspension of all pay and allowances to each of the members of the Third Colorado Regiment, officers, privates, and employees, and all others engaged in the recent attack made on the Cheyenne Indians in their village near Fort Lyon, in the Territory of Colorado, under the command of Colonel Chivington, until the conduct of the colonel and the regiment, and all others engaged in that attack, should receive the approval of the Secretary of War; and he was to cause all ponies, blankets, money, jewels, furs, and other property captured from the Indians, to be seized and held for the use of the United States, or for restitution to the Indians, if it should hereafter appear that the attack was unjustifiable.
In the debate which ensued, Mr. Sumner said:—
MR. PRESIDENT,—Exceptional crimes require exceptional remedies. Here is an exceptional crime,—one of the most atrocious in the history of any country. There must be a remedy commensurate with the crime. And, Sir, the remedy, in order to be anything but a name, should be swift. It cannot wait the slow ceremony of ordinary proceedings. It must have promptitude such as can be imparted by the proposition now under consideration. I thank the Senator from Iowa for bringing it forward. Let us vote upon it, put it on its passage, speed it on its way; for only by doing so can we wash our hands of this blood.
The resolution was adopted without a division.
THE LATE HON. EDWARD EVERETT.
Telegraphic Despatch to Joint Committee of the Legislature of Massachusetts, January 16, 1865.
Boston, January 16, 1865.
To Hon. Charles Sumner.
A Joint Committee of the Legislature invoke you to deliver a Eulogy upon Hon. Edward Everett before the State authorities at such time as meets your convenience during the session of the Legislature. Please answer at once by telegraph.
Moses Kimball.
Mr. Sumner answered by telegraph as follows.
Sharing the general grief in the loss of a rare and pure patriot, I regret that public duties here seem to prevent me from uniting with the Legislature in the honors they propose to his memory. I am grateful to the Joint Committee for the opportunity they offer me of commemorating a great example of genius, learning, and eloquence, consecrated to patriotic service; but the probable session of the Senate and the exigencies of public business (which are always my first duty) make me fear that I cannot respond to their summons. I mention with hesitation, but to explain the rule which is with me obligatory, that, during my long term in the Senate, I have never left my seat for a single day, except while an invalid. Be good enough to accept my thanks and sympathies.
Charles Sumner.
TERMINATION OF TREATIES BY NOTICE.
Remarks in the Senate, on a Joint Resolution to Terminate the Treaty of 1817 regulating the Naval Force on the Lakes, January 18, 1865.
January 18th, the Senate considered a joint resolution passed by the House of Representatives, for the termination of the treaty between the United States and Great Britain regulating the naval force on the Lakes.
The resolution, as it was passed by the House of Representatives, recited, that the Treaty of 1817, as to the naval force upon the Lakes, was designed as a temporary arrangement only, and, although equal and just at the time it was made, has become greatly unequal through the construction by Great Britain of sundry ship-canals,—that the vast interests of commerce upon the Northwestern Lakes, and the security of cities and towns situated on their American borders, manifestly require the establishment of one or more navy-yards wherein ships may be fitted and prepared for naval warfare,—and that the United States Government, unlike that of Great Britain, is destitute of ship-canals for the transmission of gunboats from the Atlantic Ocean to the Western Lakes,—and therefore proposed to direct the President of the United States to give notice to the Government of Great Britain that it is the wish and intention of the Government of the United States to terminate the arrangement of 1817, in respect to the naval force upon the Lakes, at the end of six months from and after giving the notice.
Mr. Sumner, from the Committee on Foreign Relations, reported the following substitute.
“Joint Resolution to terminate the Treaty of 1817, regulating the Naval Force on the Lakes.
“Whereas the United States, of the one part, and the United Kingdom of Great Britain and Ireland, of the other part, by a treaty bearing date April, 1817, have regulated the naval force upon the Lakes, and it was further provided, that, ‘if either party should hereafter be desirous of annulling this stipulation, and should give notice to that effect to the other party, it shall cease to be binding after the expiration of six months from the date of such notice’; and whereas the peace of our frontier is now endangered by hostile expeditions against the commerce of the Lakes, and by other acts of lawless persons, which the naval force of the two countries allowed by the existing treaty may be insufficient to prevent; and whereas, further, the President of the United States has proceeded to give the notice required for the termination of the treaty by a communication which took effect on the 23d November, 1864: Therefore,
“Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the notice given by the President of the United States to the Government of Great Britain and Ireland to terminate the Treaty of 1817, regulating the naval force upon the Lakes, is hereby adopted and ratified, as if the same had been authorized by Congress.”
The substitute was adopted, and the question was on the passage of the resolution as amended.
As appears from the amended resolution, the President had already given the notice for the termination of the treaty.
Mr. Davis, of Kentucky, opposed the resolution, on the ground that the notice to terminate a treaty can be given only by Congress,—that the President had no more power to give the notice than the Judiciary,—and that his interference with the legislative power ought to be condemned, instead of approved by adopting it.
Mr. Sumner replied, that the difference between the Senator and the Committee was of form; and he proceeded to read a communication, bearing date November 23, 1864, from Mr. Adams to Earl Russell, setting forth the grievances on our northern frontier, and giving formal notice, that, “in conformity with the treaty reservation of the right, at the expiration of six months from the date of this note the United States will deem themselves at liberty to increase the naval armament upon the Lakes, if in their judgment the condition of affairs in that quarter shall then require it.” On this note was minuted: “Delivered at the Foreign Office at fifteen minutes past six o’clock, P. M.” In considering the validity of the notice by the President, he referred to authorities, showing that a treaty, like a law, could be repealed only by the legislative power,[45] and argued that notice to terminate it must be given by the same power. Mr. Sumner further said:—
But the Senator from Kentucky tells us that the original defect in the notice by the President is of such a character that it cannot be cured by any subsequent ratification; and he proceeds to present what he will excuse me if I call imaginary cases, which I think could hardly occur, and are widely different from that under consideration. I express no opinion on the cases he does present,—as, for instance, if the President, during the recess of Congress, should undertake to involve the country in war. Let that case take care of itself, when it arises for judgment. The case before us is more simple, and is one with regard to which there are no private rights or interests. It is a domestic question between Congress and the President. He has given the notice. As regards the Government of Great Britain, that notice, I cannot doubt, is perfectly valid. That Government will never call it in question. For our own security, and that our precedents may conform to just principles, we now propose by formal Act of Congress to throw over this notice of the President the shield of Congressional sanction; and the question is, Can this be done? Can Congress, by an act of ratification, impart to the original notice of the President that power and character which, without subsequent ratification, it would not have? On that point I content myself with reading the authoritative words of the Supreme Court of the United States in the decisions known as the Prize Cases. There the Court express themselves as follows.
“Without admitting that such an act was necessary under the circumstances, it is plain, that, if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that, on the well-known principle of law, ‘Omnis ratihabitio retrotrahitur et mandato æquiparatur,’ this ratification has operated to perfectly cure the defect. In the case of Brown v. United States, (8 Cranch, 131, 132, 133,) Mr. Justice Story treats of this subject, and cites numerous authorities, to which we may refer, to prove this position, and concludes: ‘I am perfectly satisfied that no subject can legally commit hostilities or capture property of an enemy, when, either expressly or constructively, the sovereign has prohibited it. But suppose he does, I would ask if the sovereign may not ratify his proceedings, and thus, by a retroactive operation, give validity to them?’”[46]
All now proposed is that Congress shall ratify the notice to the British Government, and by retroactive operation give validity to it.
…
Mr. President, if this concerned private rights,—if, according to the language of the Senator from Kentucky, there were any question of meum and tuum,—there might be force in his argument. But no private rights are involved, and there are no private individuals affected in any way by the proposed ratification of the notice already given. Therefore I put out of view that suggestion. It is, then, simply a question of power on the part of Congress, with no question of private rights.
I conclude that Congress has the power, and I put my conclusion on two distinct grounds. The first is the reason of the case, its common sense; for without this power I can imagine difficulties or embarrassments in the administration of government. I say the power must exist in Congress of ratifying, if it sees fit, certain executive acts. The second ground is judicial authority. The Supreme Court of the United States, after careful consideration in recent cases which the country knows received the amplest attention and were most fully argued, has affirmed the power of Congress to ratify an executive act which without such ratification might otherwise be invalid. But I do not content myself with referring to that single decision, recent and authoritative as it is; I recall attention also to that earlier decision which is adduced in the Prize Cases, the case of Brown v. The United States, which is well known to all lawyers as one of the best-reasoned judgments in our books, and in that case you will find the same power attributed to Congress.
Therefore, on grounds of reason and of authority, I am not permitted to doubt that Congress may exercise this power.
The resolution was adopted without a division, and communicated to Mr. Adams in a despatch of Mr. Seward, under date of February 13, 1865.[47]
RETALIATION, AND TREATMENT OF PRISONERS OF WAR.
Speeches in the Senate, on a Joint Resolution advising Retaliation, January 24 and 29, 1865.
January 18th, Mr. Howard, of Michigan, from the Committee on Military Affairs, reported the following joint resolution.
“Joint Resolution, advising Retaliation for the Cruel Treatment of Prisoners by the Insurgents.
“Whereas it has come to the knowledge of Congress that great numbers of our soldiers, who have fallen as prisoners of war into the hands of the insurgents, have been subjected to treatment unexampled for cruelty in the history of civilized war, and finding its parallels only in the conduct of savage tribes,—a treatment resulting in the death of multitudes by the slow, but designed, process of starvation, and by mortal diseases occasioned by insufficient and unhealthy food, by wanton exposure of their persons to the inclemency of the weather, and by deliberate assassination of innocent and unoffending men, and the murder in cold blood of prisoners after surrender; and whereas a continuance of these barbarities, in contempt of the laws of war, and in disregard of the remonstrances of the national authorities, has presented to us the alternative of suffering our brave soldiers thus to be destroyed, or to apply the principle of retaliation for their protection; Therefore,
“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That in the judgment of Congress it has become justifiable and necessary that the President should, in order to prevent the continuance and recurrence of such barbarities, and to insure the observance by the insurgents of the laws of civilized war, resort at once to measures of retaliation; that in our opinion such retaliation ought to be inflicted upon the insurgent officers now in our hands, or hereafter to fall into our hands, as prisoners; that such officers ought to be subjected to like treatment practised towards our officers or soldiers in the hands of the insurgents, in respect to quantity and quality of food, clothing, fuel, medicine, medical attendance, personal exposure, or other mode of dealing with them; that, with a view to the same ends, the insurgent prisoners in our hands ought to be placed under the control and in the keeping of officers and men who have themselves been prisoners in the hands of the insurgents, and have thus acquired a knowledge of their mode of treating Union prisoners; that explicit instructions ought to be given to the forces having the charge of such insurgent prisoners, requiring them to carry out strictly and promptly the principles of this resolution in every case, until the President, having received satisfactory information of the abandonment by the insurgents of such barbarous practices, shall revoke or modify said instructions. Congress do not, however, intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion.”
January 23d, Mr. Wade, of Ohio, moved to proceed with its consideration, when the following passage occurred.
Mr. Wade. I move to take up Senate resolution No. 97
Mr. Sumner. What is it about?
Mr. Wade. About retaliation.
Mr. Sumner. I would not go on with that to-day.
Mr. Wade. You would, if you were in prison. [Laughter.]
The resolution was taken up and debated.
January 24th, Mr. Sumner moved the following resolutions as a substitute.
“Resolved, That retaliation is harsh always, even in the simplest cases, and is permissible only where, in the first place, it may be reasonably expected to effect its object, and where, in the second place, it is consistent with the usages of civilized society; and in the absence of these essential conditions, it is a useless barbarism, having no other end than vengeance, which is forbidden alike to nations and to men.
“Resolved, That the treatment of our officers and soldiers in Rebel prisons is cruel, savage, and heart-rending beyond precedent; that it is shocking to morals; that it is an offence against human nature itself; that it adds new guilt to the crime of the Rebellion, and constitutes an example from which history will turn with sorrow and disgust.
“Resolved, That any attempted imitation of Rebel barbarism in the treatment of prisoners is plainly impracticable, on account of its inconsistency with the prevailing sentiments of humanity among us; that it would be injurious at home, for it would barbarize the whole community; that it would be utterly useless, for it could not affect the cruel authors of the revolting conduct we seek to overcome; that it would be immoral, inasmuch as it proceeded from vengeance alone; that it could have no other result than to degrade the national character and the national name, and to bring down upon our country the reprobation of history; and that, being thus impracticable, useless, immoral, and degrading, it must be rejected as a measure of retaliation, precisely as the barbarism of roasting or eating prisoners is always rejected by civilized powers.
“Resolved, That the United States, filled with grief and sympathy for cherished fellow-citizens who, as officers and soldiers, have become the victims of Heaven-defying outrage, hereby declare their solemn determination to end this great iniquity by ending the Rebellion of which it is the natural fruit; that, to secure this humane and righteous consummation, they pledge anew their best energies and the resources of the whole people; and they call upon all to bear witness that in this necessary warfare with barbarism they renounce all vengeance and every evil example, and plant themselves firmly on the sacred landmarks of Christian civilization, under the protection of that God who is present with every prisoner, and enables heroic souls to suffer for their country.”
Mr. Sumner addressed the Senate in support of his resolutions. After analyzing the resolution of the Committee, and exhibiting its character, he proceeded:—
Now, Sir, I believe that the Senate will not venture, in this age of Christian light, under any inducement, under any provocation, to counsel the Executive Government to enter into such open competition with barbarism. Sir, the thing is impossible; it must not be entertained. We cannot be cruel, or barbarous, or savage, because the Rebels we now meet in warfare are cruel, barbarous, and savage. We cannot imitate the detested example. We find no precedent for such retaliation in our own history nor in the history of other nations. We find no precedent, I say, in our own history. This question was one of the earliest presented to General Washington after taking command of the American forces at Cambridge. From his headquarters there, under date of August 11, 1775, he addressed a letter to General Gage, commander of the British forces in Boston, which, as I believe, contains the full extent to which a nation can honorably go; and I must say, that, as I read it, I felt new pride in that commander who thus early in the discharge of his great duties showed such insight into their proper limits and responsibilities. Addressing General Gage, he said:—
“Sir,—I understand that the officers engaged in the cause of Liberty and their country, who by the fortune of war have fallen into your hands, have been thrown indiscriminately into a common jail appropriated for felons; that no consideration has been had for those of the most respectable rank, when languishing with wounds and sickness; and that some have been even amputated in this unworthy situation.”
Then, reminding the British commander of the cause in which he was engaged, Washington continued:—
“My duty now makes it necessary to apprise you that for the future I shall regulate all my conduct towards those gentlemen who are or may be in our possession exactly by the rule you shall observe towards those of ours now in your custody. If severity and hardship mark the line of your conduct, painful as it may be to me, your prisoners will feel its effects; but if kindness and humanity are shown to ours, I shall with pleasure consider those in our hands only as unfortunate, and they shall receive from me that treatment to which the unfortunate are ever entitled.”[48]
Senators about me say, “That is sound.” I am glad they say so; and if they can find in this correspondence any sanction of the savage system now inaugurated in Rebel prisons, let them point it out. The correspondence has its own limitations in the statement of facts on which it proceeds, which you will please observe. Prisoners had been thrown indiscriminately into a common jail for felons, and with no consideration for those of the most respectable rank, even when languishing with wounds and sickness; and some of them had limbs amputated in this unworthy situation. But there is, Sir, no such painful suggestion as that in our resolution: they had not “been subjected to treatment unexampled for cruelty in the history of civilized war, and finding its parallels only in the conduct of savage tribes,—a treatment resulting in the death of multitudes by the slow, but designed, process of starvation”: no such thing appears in the case; and the judgment of Washington was applied strictly to the facts before him.
This is not all. Search the history of our country, and you find that the practice is fixed, while the rule has received an accuracy of statement from which there can be no escape. I have before me the words of Chancellor Kent, in his valuable Commentaries:—
“Instances of resolutions to retaliate on innocent prisoners of war occurred in this country during the Revolutionary War, as well as during the War of 1812; but there was no instance in which retaliation, beyond the measure of severe confinement, took place in respect to prisoners of war.”[49]
There you have the authoritative testimony of that great expounder of our history and of our jurisprudence, the late Chancellor Kent. I add also the testimony of another American writer, whom I have quoted more than once in this Chamber, General Halleck, who, in his work on International Law, thus expresses himself:—
“Retaliation should be limited to such punishments as may be requisite for our own safety and the good of society; beyond this it cannot be justified. We have no right to mutilate the ambassador of a barbarous power because his sovereign has treated our ambassador in that manner, nor to put prisoners and hostages to death, and to destroy private property, merely because our enemy has done this to us; for no individual is justly chargeable with the guilt of a personal crime for the acts of the community of which he is a member.”[50]
I said, Sir, the practice proposed was without precedent in the history of other nations. I believe that I am right. I am confident that no authentic record can be shown where such savage treatment has been imitated in retaliation by a Christian power. One of the most learned writers on the Law of Nations, Vattel, dealing with this very subject, aptly puts the following question:—
“By what right will you cause the nose and ears of the ambassador of a barbarian to be cut off who shall have treated your ambassador in this manner?”[51]
That question strikes at the heart of this whole subject. What right have you to adopt any barbarous conduct because the barbarous enemy with whom you deal has set the example? This same eminent publicist, in another place, says:—
“The Roman Senate held it as a maxim, that war was to be carried on with arms, and not with poison.… The Senate, and Tiberius himself, thought it not permissible to employ poison, even against a perfidious enemy, and as a kind of retortion or reprisal.”[52]
That statement covers the whole case. Why is it unlawful in retaliation to adopt poison? Because it is barbarous. And for the same reason it is unlawful for us to adopt starvation, to adopt all that cruel system of treatment so emphatically set forth in the preamble to this resolution. And while, Sir, I concede that by the Laws of War retaliation is permissible, yet it has its limits; and those limits, as I venture to say in the resolutions sent to the Chair as a substitute, are at least twofold: first, the retaliation must be useful, it must reasonably promise some practical result; and, in the second place, it must be in harmony with the usages of civilized nations. The retaliation now proposed is useless, for it can have no practical result; and it is not in harmony with the usages of civilized nations.
I have said that the Laws of War recognize retaliation, as appears in the recent most formal and explicit declaration to be found in the very elaborate “Instructions for the Government of Armies of the United States in the Field,”[53] prepared since this war began, under the direction of a learned commission, and by the pen of one of the ablest and most accomplished publicists of our age. I refer to Dr. Lieber, for many years professor in South Carolina College, and now professor in Columbia College, New York. In these Instructions the general law of retaliation is affirmed.
“The Law of War can no more wholly dispense with retaliation than can the Law of Nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.”[54]
Such is the general principle, officially declared. And now, Sir, I shall read the commentary of this same learned publicist on these very Instructions in a private letter which I have received from him this morning. Bear in mind, Sir, that the writer is a student of the Laws of War, that he vindicates their exercise, and that in proper cases he asserts the right of retaliation; and now allow me to present his criticism on the retaliation proposed.
“I am unqualifiedly against the retaliation resolutions concerning prisoners of war. The provision that the Southerners in our hands shall be watched over by national soldiers who have been in Southern pens is unworthy of any great people or high-minded statesman. I am not opposed to retaliation because it strikes those who are not or may not be guilty of the outrage we wish to put an end to. That is the terrible character of almost all retaliation in war. I abhor this revenge on prisoners of war, because we would sink thereby to the level of the enemy’s shame and dishonor. All retaliation has some limit. If we fight with Indians who slowly roast their prisoners, we cannot roast in turn the Indians whom we may capture. And what is more, I defy Congress or Government to make the Northern people treat captured Southerners as our sons are treated by them. God be thanked, you could not do it; and if you could, how it would brutalize our own people! I feel the cruelty as keenly as any one; I grieve most bitterly that people whom we and all the world have taken to possess the common attributes of humanity, and who, after all, are our kin, have sunk so loathsomely low; I feel the hardship of seeing no immediate and direct remedy, except conquering and trampling out the vile Rebellion; but I maintain that the proposed (yet unfeasible) retaliation is not the remedy. Indeed, calmly to maintain our ground would do us in the end far more good. Revenge is passion, and ought never to enter the sphere of public action. Passion always detracts from power.
“I believe that the ineffable cruelty practised against our men has been equalled in the history of our race by the Spanish treatment of the Indians, and by the Inquisition; but counter cruelty would not mend matters. Those who can allow such crimes would not be moved by cruelties inflicted upon their soldiers in our hands. These cruelties, therefore, would be simply revenge, not retaliation; for retaliation, as an element of the Law of War, and of Nations in general, implies the idea of thereby stopping a certain evil. But no mortal shall indulge in revenge.
“I am, indeed, against all dainty treatment of the prisoners in our hands; but, for the love of our country and the great destiny of our people, do not sink, even in single cases, to the level of our unhappy, shameless enemy.”
I have read this letter, and I quote it as authority, because it is by the very pen which embodied retaliation in the Instructions to the Armies of the United States.
There is another authority which I quote. It is Phillimore, the accomplished publicist, whose elaborate work on the Law of Nations has a learning second only to that of Grotius in treating the same subject. Recording excesses of war by the French, this Englishman says:—
“At the beginning of the wars of the first French Revolution, the French general announced his intention of giving no quarter to English prisoners. The English did not retaliate, and the Laws of War upon this subject were soon restored.”[55]
In other words, the Laws of War are essentially humane, and not to be changed by any spasm of barbarism in an enemy.
A debate of several days ensued, in which Mr. Wade and Mr. Howard argued earnestly for the resolution of the Committee, and they were sustained by Mr. Gratz Brown, of Missouri, Mr. Howe, of Wisconsin, Mr. Harlan, of Iowa, Mr. Clark, of New Hampshire, Mr. Wilkinson, of Minnesota, Mr. Chandler, of Michigan, and Mr. Lane, of Indiana. On the other side were Mr. Cowan, of Pennsylvania, Mr. Hendricks, of Indiana, Mr. Henderson, of Missouri, Mr. Foster, of Connecticut, Mr. Davis, of Kentucky, Mr. Reverdy Johnson, of Maryland, Mr. Richardson, of Illinois, Mr. McDougall, of California, and Mr. Doolittle, of Wisconsin. Mr. Chandler especially condemned the position of Mr. Sumner. Here he said:—
“Sir, the Senator from Massachusetts [Mr. Sumner] has brought in a sublimated specimen of humanitarianism that does not apply to these accursed Rebels at this time. They do not appreciate that kind of humanitarianism. I expected those men who desire that the Rebellion should succeed to oppose retaliation, and to oppose it to the bitter end; but I did not expect the Senator from Massachusetts to come in here and say that it was inexpedient to protect our suffering prisoners.”
Mr. Sumner. “I have not said so.”
Mr. Wilson, of Massachusetts, moved as a substitute for Mr. Sumner’s amendment a simple resolution requiring the President “to appoint two commissioners to confer with the Confederate authorities, with a view of devising some practicable plan for the relief and better treatment of our prisoners of war.” Mr. Clark, of New Hampshire, offered still another substitute, to be considered when in order:—
“That Congress earnestly calls the attention of the President to the condition and treatment of our prisoners of war in Rebel prisons and camps; and if, for reasons satisfactory to or controlling the Executive, they cannot be exchanged, desires that he should employ every means in his power, embracing retaliation to such a degree as may be proper and effectual, to prevent the continuance and recurrence of such barbarities, and to compel the insurgents to observe the laws of civilized warfare.”
Mr. Wade, who was urging the original resolution, also gave notice of an amendment, to strike out all after the word “retaliation,” and insert as follows:—
“That the executive and military authorities of the United States are hereby directed to retaliate upon the prisoners of the enemy in such manner and kind as shall be effective in deterring him from the perpetration in future of cruel and barbarous treatment of our soldiers.”
Mr. Wade recognized the change so far as to say, “Now, if a Senator is for retaliation, if he is for the principle of it, he cannot have it in a milder form than it is there.” Mr. Morrill proposed to strike out the words “and kind,” and insert, instead, “in conformity to the Laws of Nations,” which amendment was accepted by Mr. Wade.
January 28th, in the course of the debate, Mr. Sumner said:—
Mr. President,—Listening with interest to this debate, and noting the various propositions to modify the original resolution of the Committee, especially that of the Senator [Mr. Wade] who has urged it so vehemently, and then again the modification even of this modification, I have been reminded of the story told by Byron[56] of Mr. Fox, afterwards British minister at Washington, and now sleeping in our Congressional burial-ground, who said of himself, after an illness in Naples, that he was “so changed that his oldest creditors would hardly know him.” But no illness could work a greater change than is promised in the resolution of the Committee. In the form it is about to assume, its oldest supporter will hardly know it. The ancient legend of the ship of Theseus is revived. That famous ship, which bore the Athenian hero on his adventurous expedition to Crete, was piously preserved in the arsenal of Athens, where its decaying timbers were renewed, until, in the lapse of time, every part of the original ship had disappeared, and nothing but the name remained. Are we not witnessing a similar process, to end, I trust, in a similar disappearance?
In its original form, the resolution so earnestly maintained by my friends from Ohio and Michigan called for retaliation in kind,—eye for eye, tooth for tooth, cruelty for cruelty, freezing for freezing, starvation for starvation, death for death. The President was commanded to imitate Rebel barbarism in all respects, point by point. This command I felt it my duty to resist. I said nothing against retaliation according to the laws and usages of civilized nations, for that I know is one of the terrible incidents of war; but I resisted a principle which civilization disowns. The resolutions I offered as a substitute were intended as a sort of “earthwork” in support of this resistance. Perhaps they have already accomplished their purpose, inasmuch as Senators have evacuated their original position.
The question is solemn enough, and yet, as I recall the original resolution, I am reminded of an incident, more comic than serious, which occurred at Paris, while occupied by the conquering Prussians, in 1814. A Prussian soldier was brought before the Governor, charged with unmercifully beating a Frenchman, at whose house he was billeted, for not supplying a bottle of Berlin weissbier, which the Prussian insisted upon drinking. The Governor spoke of unreasonableness in the demand, and declared that he should be obliged to inflict severe punishment, when the Prussian soldier set up the Law of Retaliation. “I was a little boy,” said he, “when a French dragoon beat my father because he was unable to find a bottle of claret in our whole village, and I then swore, that, if ever I reached France, I would beat a Frenchman for not getting me a bottle of weissbier. Am I not right?” This was retaliation in kind, and retrospective in operation, like that of the original resolution.
Much as this resolution is changed, so that it no longer requires retaliation in kind, I think it might be changed still further. It is not enough, on such an occasion, and especially after avowals made in this Chamber, to say that retaliation shall be according to the principles of Public Law. Montesquieu, in his “Spirit of Laws,” exhibits the uncertainty of this language. These are his words:—
“All nations have a Law of Nations,—even the Iroquois, who eat their prisoners. They send and receive ambassadors; they know the Laws of War and Peace. The evil is, that their Law of Nations is not founded on true principles.”[57]
The resolution, therefore, for the sake of certainty, and to give double assurance that humanity shall not suffer, ought to be still further amended, by limiting the retaliation to the usages of civilized society. This amendment becomes the more needful since Senators argue that by the principles of public law the intolerable cruelties of the Rebellion may be retaliated.
I desire to repeat my unalterable conviction that these cruelties cannot be retaliated in kind. And here I call attention to the opinions of an illustrious citizen, only recently removed from the duties of this world. I refer to the late Edward Everett, who, in a speech at Faneuil Hall, a few days before his lamented death, thus testifies in what may be called his dying words:—
“I believe the best way in which we can retaliate upon the South for the cruel treatment of our prisoners is for us to continue to treat their prisoners with entire humanity and all reasonable kindness,—and not only so, but to seize every opportunity like the present to go beyond this. Indeed, it is no more than our duty to treat the prisoner well. The Law of Nations requires it. The Government that refuses or neglects it does not deserve the name of civilized. Even inability is no justification. If you are yourself so exhausted that you cannot supply your prisoner with a sufficient quantity of wholesome food, you are bound, with or without exchange, to set him free. You have no more right to starve than to poison him. It will, however, be borne in mind, that, while the hard fare of our prisoners is defended by the Southern leaders, on the ground that it is as good as that of their own soldiers, at the same time they maintain that their harvests are abundant and their armies well fed. There is no merit in treating a prisoner with common humanity; it is simply infamous and wicked to treat him otherwise.”[58]
You will not fail to observe how positive is his opinion on the limits of retaliation, and its character when carried beyond proper limits. And here it is proper to remark, that Mr. Everett was not only a patriot, who, in the latter trials of the Republic, devoted himself ably, purely, and successfully to the vindication and advancement of the national cause, but he was a publicist, who had profoundly studied the Law of Nations. Few in our history have understood it better. His last labors were devoted to this important subject. At the time of his death he was preparing a course of lectures upon it. Therefore, when, in the name of Public Law, he speaks against any imitation of Rebel barbarism, it is with the voice of authority.
From one eminent publicist I pass to another. On a former occasion I took the liberty of introducing a familiar letter from Professor Lieber, once of South Carolina, now of New York. The Senator from Michigan [Mr. Howard], not content with attempting an answer to the learned professor, proceeded to language with regard to him which I am sure his careful judgment cannot approve. The friend whose letter I read needs no praise as a practical writer and thinker on questions of International Law. On account of his acknowledged fitness as a master of this science, he was selected as commissioner to prepare instructions for the armies of the United States, constituting a most important chapter of the Law of Nations. Those instructions are the evidence of his ability and judgment. So long as they are followed by our Government, it will be difficult for the Senator, learned as he unquestionably is, to impeach their distinguished author. There is no Senator, not excepting the Senator from Michigan, who might not be proud to have such a monument of fame. But he is no mere theorist. It was on the field of battle, where, as a youthful soldier, he was left for dead, that he began a practical acquaintance with those Laws of War which he has done so much to expound.
And now let me read a commentary on the Law of Retaliation by this authority. I quote from an article which has already appeared in the New York “Times.”
“No mawkish sentimentality has induced the writer to express his views. He has had dear friends in those Southern pens, which have become the very symbols of revolting barbarity; but he desires, for this very reason, that the subject be weighed without passion, which never counsels well,—especially without the passion of mere vengeance. Let us bring down this general call for retaliation to practical and detailed measures. It is supposed, then, that retaliation is resolved upon; what next? The order is given to harass, starve, expose, and torture, say twenty thousand prisoners in our hands, until their bones pierce the skin, and they die idiots in their filth. Why should things be demanded which every one knows the Northern man is incapable of doing?
“If, however, by retaliation he meant that captured Rebels in our hands should be cut off from the pleasant comforts of life which Northerners subservient to the South love to extend to them, then, indeed, we fully agree. This treasonable over-kindness ought never to have been permitted. It has had the worst effect on the arrogance of our enemy; but prohibiting it is not, and cannot be called, retaliation.
“Let us not be driven from the position of manly calmness and moral dignity; and let us, on the other hand, be stern, so stern that our severity shall impress the prisoners that they are such. But let us not follow Rebel examples. It is too sickening, too vile.”
Such is the testimony of Francis Lieber, in entire, but independent, harmony with the testimony of Edward Everett. As authority, nothing further can be desired. And yet the question is still debated, and grave Senators take counsel of their indignation rather than of the law.
The earnestness which has characterized this discussion attests the interest of the subject, and the interest here is only a reflection of that throughout the country. When you speak of our brave officers and soldiers suffering, languishing, pining, dying in Rebel prisons, you touch a chord which vibrates in every patriot bosom. He must be cold, sluggish, and inhuman,—so cold “that nought can warm his blood, Sir, but a fever,”[59]—who is not moved to every possible effort for their redemption.
I am happy to see that the Secretary of War is not insensible to this commanding duty. Here is an extract from a communication which he sent to the House of Representatives as late as January 21st:—
“On the 15th October the subject of exchanges was placed under the direction of Lieutenant-General Grant, with full authority to take any steps he might deem proper to effect the release and exchange of our soldiers, and of loyal persons, held as prisoners by the Rebel authorities. He was instructed that it was the desire of the President that no efforts consistent with national safety and honor should be spared to effect the prompt release of all soldiers and loyal persons in captivity to the Rebels as prisoners of war, or on any other grounds, and the subject was committed to him with full authority to act in the premises as he should deem right and proper. Under this authority the subject of exchanges has from that time continued in his charge, and such efforts have been made as he deemed proper to obtain the release of our prisoners.
“An arrangement was made for the supply of our prisoners,—the articles to be distributed under the direction of our own officers, paroled for that purpose; and the corresponding privilege was extended to the Rebel authorities. In order to afford every facility for relief, special exchanges have been offered, whenever desired on behalf of our prisoners. Such exchanges have in a few instances been permitted by the Rebel authorities, but in many others they have been denied.
“A large number of exchanges, including all the sick, has been effected within a recent period. The Commissary General of Prisoners has been directed to make a detailed report of all the exchanges that have been accomplished since the general exchange ceased. It will be furnished to the House of Representatives as soon as completed.
“The last communication of General Grant gives reason to believe that a full and complete exchange of all prisoners will speedily be made. It also appears from his statement that weekly supplies are furnished to our prisoners, and distributed by officers of our own selection.”[60]
Let these instructions be followed, and it is difficult to see what remains to be done. Exchange, retaliation, and every other agency “right and proper,” are fully authorized in the discretion of the commanding general. There is nothing in the arsenal of war he may not employ. What more is needed? But this brings me again to the proposition before the Senate.
The Committee, not content with what has been done,—distrustful, perhaps, of the commanding general,—propose that Congress shall instruct the President to enter upon a system of retaliation, where we shall imitate as precisely as possible Rebel barbarism, and make our prisons the scenes of torments we here denounce. Why, Sir, to state the case is to answer it. The Senator from Michigan, who advocates so eloquently this unprecedented retaliation, attempted a description of the torments making the Rebel prisons horrible, but language failed him. After speaking of their “immeasurable criminality,” and “the horrors of those scenes,” which he said were “absolutely indescribable,” beggaring even his affluence of language and of passion, he proceeded to ask that we should do these same things,—that we should take the lives of prisoners, even by freezing and starvation, or turn them into living skeletons,—by Act of Congress.
Sir, the Law of Retaliation, which he invokes, has its limits, and these are found in the laws of civilized society. Admit the Law of Retaliation; yet you cannot escape from its circumscription. As well escape from the planet on which we live. What civilization forbids cannot be done. Your enemy may be barbarous and cruel, but you cannot be barbarous and cruel. The rule is clear and unquestionable. Perhaps the true principle of law on this precise point was never better expressed than by one of our masters, William Shakespeare, natural jurist as well as poet, when he makes Macbeth exclaim,—
“I dare do all that may become a man;
Who dares do more is none.”
So with us now. We are permitted to do all that may become men, but nothing more.
Surely nobody will argue that the “barbarities of Andersonville,” and all those tortures we deplore, can behoove men. As well undertake, by way of retaliation, to revive the boot and thumb-screw of the Inquisition, the fires of Smithfield, “Luke’s iron crown and Damien’s bed of steel,” or to repeat that execrable crime pictured by Dante, in one of his most admired passages, where Ugolino and his children were shut up in a tower, without food or water, and left to die slowly, cruelly, wickedly, by starvation:—
“Thou modern Thebes! what though, as Fame hath said,
Count Ugolino did thy forts betray?
His sons deserved not punishment so dread.”[61]
Thanks to the immortal poet who has blasted forever this sickening enormity, and rendered its imitation impossible! Thanks to that mighty voice which has given new sanction to the mandate of Public Law. And yet in this terrible case there was retaliation, and the famished victim is revealed as ferociously gnawing the skull of his tormentor. But this was not on earth.
It is when we consider precisely the conduct of the Rebels, as represented,—when we read the stories of their atrocities,—when we call to mind the sufferings of our men in their hands,—when we look on the pictures introduced into this discussion, where photographic art has sought to exhibit the living skeletons,—when the whole scene in all its horror is before us, and our souls are filled with unutterable anguish, that we confess how difficult, how absolutely impossible, it is for us to follow this savage example. And just in proportion as this treatment of our soldiers transcends the usages of civilized society must the example be rejected. Such is the law you cannot disobey.
Nor am I to be considered indifferent to the condition of those unhappy prisoners. I do not yield to the Committee, or to any Senator, in ardor or anxiety for their protection. Whatever can be done I am ready to do. But, as American citizens, they have an interest that we should do nothing by which our country shall forfeit the great place belonging to it in the vanguard of nations. It cannot be best for them that our country should do an unworthy thing. It cannot be best for them that the national destiny should be thus darkened. Duties are in proportion to destinies, and from the very heights of our example I argue again that we cannot allow ourselves, under any passing passion or resentment, to accept a policy which history must condemn. There is not a patriot soldier who would not cry out, “Let me suffer, but save my country!”
Even if you make up your minds to do this thing, you cannot. The whole idea is impracticable. The attempt must fail, because human nature is against you. “Nemo repente turpissimus.” A humane and civilized people cannot suddenly become inhuman and uncivilized. Conscience, heart, soul and body, will all rise against you. From every side will be repeated that generous cry which comes to us from the darkest day of French history, when the courageous governor said to the monarch who ordered the massacre of St. Bartholomew, “Sire, I have under me good citizens and brave soldiers, but not a single executioner”; or that other later cry, when the French Convention, under the lead of Barère, decreed that all English prisoners should be shot,—“We will not shoot them,” said a stout-hearted sergeant; “if the Convention takes pleasure in killing prisoners, let members kill them and eat them, like savages as they are.” But the citizens and soldiers of the armies of the United States are not less generous. They, too, would cry out, “Let members of Congress do this work, if it is to be done; but do not impose it upon a fellow-man.”
Mr. President, with pain I differ from valued friends whose friendship is among the treasures of my life. But I cannot help it. I cannot do otherwise. It is long since I first raised my voice in this Chamber against the “Barbarism of Slavery,” and I have never ceased to denounce it in season and out of season. But the Rebellion is nothing but that very barbarism armed for battle. Plainly it is our duty to overcome it, not to imitate it. Here I stand.
January 31st, on motion of Mr. Sumner, it was still further amended so as to read, “in conformity with the laws and usages of war among civilized nations,”—Yeas 27, Nays 13. Mr. Sumner then withdrew his substitute, remarking that he did so because the original resolution had undergone such modification as to be in substantial harmony with the resolutions introduced by him. After other amendments, the original resolution was passed by the Senate; but it was never acted on in the House of Representatives.
This effort against Retaliation attracted attention and sympathy at the time.
Hon. Israel Washburn, formerly a Representative in Congress from Maine, being in Washington, wrote:—
“I shall not see you again before leaving the city, but I will not go without thanking you from my heart’s heart for the glorious resolutions upon Retaliation which you offered in the Senate yesterday. Our country must live in the atmosphere of those resolutions, or bear no life worth having.”
John B. Kettell wrote from Boston:—
“I have read in the papers of this morning a telegraphic report of the proceedings of the Senate on the resolution in relation to retaliation upon Rebel prisoners for cruel treatment to Union prisoners, and especially the resolutions offered by you as a substitute for the resolution before the Senate. Although not approving the policy of the Administration, and therefore conscientiously opposed to most of its measures, allow me to thank you from the bottom of my heart for the manly tone and lofty Christian sentiment which pervade the resolutions offered and so ably defended by yourself.”
Hon. Daniel W. Alvord wrote from Greenfield, Massachusetts:—
“I wish also to thank you for your resolutions on Retaliation. I am the more impelled to do this because I think it probable that some of our friends in the State will remonstrate with you for having offered them. I have heard retaliation in kind vehemently advocated by good men in Boston. But it seems to me that it would be an indelible blot upon our fame, if, in a war with savages, we should imitate their savage cruelties. I know that retaliation by inflicting death for death may sometimes be necessary in war. But the torture of prisoners nothing can justify. If they may be tortured by hunger or cold, so they may, as well, by fire, or by the rack.”
M. T. Johnstone, of the United States Coast Survey, wrote from Washington:—
“A copy of your speech on the treatment of prisoners of war has just fallen into my hands. I think the country under deep obligations to you for that speech, and for saving it from either acknowledging or practising the principle of retaliation.”
The following communication from General Robert Anderson, of the Army of the United States, who commanded at Fort Sumter when South Carolina madly fired upon that national stronghold, contains the testimony of a soldier.
“New York City, January 25, 1865.
“Hon. Charles Sumner, U. S. Senate.
“Honored Sir,—The approbation of strangers is sometimes, I know, not unacceptable. I trust, therefore, that you will pardon me for giving vent to the promptings of my heart, in offering you my thanks for the noble, manly, and Christian sentiments which characterize your resolutions introduced in the Senate yesterday, in reference to the subject of Retaliation. No one would go farther than I would, to put down, with a vigorous and resolute hand, this most accursed Rebellion. But, in God’s name, Sir, let it be done in such a manner that those who live after us may be able to say, that, in all this time of trial, not one act was sanctioned or permitted by our Government which was not becoming us as a civilized and Christian nation. And God will bless and prosper us only as we do so act. My earnest prayer is, that He will endue our rulers with wisdom, and soon give peace and prosperity and happiness to our bleeding land.
“With the renewal of my thanks for your having so beautifully, so ably, so nobly advocated the cause of humanity, which is the cause of Christ,
“I am, Sir, with high respect, your obedient servant,
“Robert Anderson.”
In a later letter General Anderson returned to the subject:—
“The sentiments you express in your speech are such as become a Christian and a patriot. We, as a nation, are not at liberty to follow the example of men who claim to owe allegiance to a Government not recognized among nations,—the self-assumed name of which will, by God’s blessing, soon sink into oblivion.”
General Donaldson, of the Army of the Cumberland, and of the staff of the distinguished General Thomas, wrote from Nashville:—
“Though but slightly acquainted with Mr. Sumner, I trust he will allow me to tender my thanks as an American for his noble resolutions on the subject of Retaliation. They are greater than any speech, and such as a Howard might have written, had he lived in the days of the mighty crime.”
Such were some of the voices, not only from citizens, but from the Army.
ADMISSION OF A COLORED LAWYER TO THE BAR OF THE SUPREME COURT OF THE UNITED STATES.
Motion in the Supreme Court, February 1, 1865.
John S. Rock, Esq., was a colored lawyer in Boston, who, after studying medicine, accomplished himself in the law, and visited Europe. In the hope of advancing his race and of overturning an obnoxious precedent, he formed the idea of being admitted to the bar of the Supreme Court of the United States, even during the life of Chief Justice Taney; but Mr. Sumner, to whom he applied, could not encourage him, while the author of the Dred Scott decision presided over the Court. With Mr. Chase as Chief Justice it was otherwise. Before presenting him, Mr. Sumner communicated with the Chief Justice, who undertook to sound his brethren and smooth the way. After some delay he let Mr. Sumner know that the motion might be made. It seems, that, by usage of the Court, the Chief Justice acted on the admission of counsellors without consulting the rest of the bench, and it was understood that the usage would be recognized in this case.
As only a citizen could be a counsellor of the Supreme Court, and, according to the Dred Scott decision, a colored person was not a citizen, the admission of Mr. Rock was regarded by the country as tantamount to a reversal of that decision.
An informal and intimate correspondence between Mr. Sumner and the Chief Justice belongs to the history of this case.
On the receipt of a letter from Mr. Rock, saying, “We now have a great and good man for our Chief Justice, and with him I think my color will not be a bar to my admission,” Mr. Sumner wrote to the Chief Justice, inclosing the letter.
“Senate Chamber, 21st December, 1864.
“My Dear Chase,—Please read the inclosed letter, and let me know what I shall do with regard to it.
“Mr. Rock is an estimable colored lawyer, who, as you will see, is cordially recommended by Governor Andrew and others in the public service. He is one of several colored lawyers in Massachusetts, who practise in all our courts, and are always received with courtesy.
“Before I came into the Senate, now several years ago, I was counsel in a case before our Massachusetts Supreme Court,[62] where one of these colored lawyers was my associate, and I remember well the very great kindness and attention with which he was received by Chief Justice Shaw and all the bench.
“I mention these things that you may see something of Mr. Rock’s title to admission to the Supreme Court of the United States.
“I know not how far the Dred Scott decision may stand in the way.
“Of course, the admission of a colored lawyer to the bar of the Supreme Court would make it difficult for any restriction on account of color to be maintained anywhere. Street cars would be open afterwards.[63]
“Ever yours,
“Charles Sumner.”
The following note, written in pencil, and sent to Mr. Sumner at his seat in the Senate, was the prompt answer:—
“Supreme Court Room, December 21, 1864.
“Dear Sumner,—I will confer with the Judges on Saturday, which is consultation day. It is not likely that any, or any serious, objection will be made.
“Yours faithfully,
“S. P. Chase.”
Not hearing from the Chief Justice, Mr. Sumner sent the following reminder:—
“In re John S. Rock, Counsellor at Law, Massachusetts.
“What say you?
“C. S.”
“Senate Chamber, Thursday, 15th January, 1865.”
This was returned with the following reply, written in pencil on the same paper:—
“Nothing at present,—except not forgotten.
“S. P. C.”
Another note, written also in pencil, opened the door.
“January 23, 1865.
“Dear Sumner,—You can make your motion for Mr. Rock’s admission at any time which suits your convenience.
“Yours ever,
“S. P. Chase.”
Mr. Rock, who was waiting in Boston, appeared February 1st, and was at once presented by Mr. Sumner. The few formal words which passed on this occasion are not without interest.
As soon as the judges had taken their seats, Mr. Sumner rose, and, with Mr. Rock standing by his side, said:—
May it please the Court,—
I ask leave to present John S. Rock, Esq., a Counsellor at Law of the Supreme Court of Massachusetts, and now move that he be admitted as a Counsellor of this Court.
The Chief Justice bowed, and said:—
“Let him come forward and take the oath.”
The oath was then administered by Mr. Middleton, Clerk of the Court. At the same time, on motion of Mr. Sumner, Francis V. Balch, Esq., of Boston, his private secretary, was also admitted.
This incident, marking a stage in the battle for Equal Rights, was extensively noticed at home and abroad. It occurred on the day after the final passage in the House of Representatives of the Constitutional Amendment abolishing Slavery, and the correspondent of the Boston Journal remarked the association of the two events.
“The Slave Power, which received its constitutional death-blow yesterday in Congress, writhes this morning on account of the admission of a colored lawyer, John S. Rock, of Boston, as a member of the bar of the Supreme Court of the United States.… The rage depicted in the countenances of some of the old Hunkers present at this invasion of their citadel beggars description.”
The correspondent of the New York Tribune announced the event as “The Dred Scott Decision buried in the Supreme Court,” and then broke forth enthusiastically:—
“O augustly simple funeral cortège! O dead, wrapped in the cerements that the divine hand of Revolution folds its victims with, augustly exciting in your stormy birth, transcendently mischievous in your little life!—Senator Charles Sumner and Negro Lawyer John S. Rock the pall-bearers,—the room of the Supreme Court of the United States the Potter’s Field,—the corpse the Dred Scott decision!
“Through the door that was too narrow to freely let out the bearers that bore Charles Sumner’s inanimate form from the Senate Chamber, where he had been stricken down by the assassins of the Slave Power, Charles Sumner to-day marched back, leading a negro by the hand, and, standing upon the very spot that had been stained with his blood for demanding freedom and equality for the blacks in America, demanded of the Supreme Court of the United States to enroll among its members an African lawyer, and to license him to practise at its bar. The black man was admitted.”
Then mentioning the motion of Mr. Sumner, the same correspondent says:—
“The grave to bury the Dred Scott decision was in that one sentence dug, and it yawned there, wide open, under the very eyes of some of the judges who had participated in the juridical crime against Democracy and Humanity. The assenting nod of the great head of the Chief Justice tumbled in the corse and filled up the pit, and the black counsellor of the Supreme Court got on to it and stamped it down, and smoothed the earth for his walk to the rolls of the Court.
“… A few lawyers of the old régime looked on, stunned somewhat, but rapidly growing in wisdom, and mixing deference to destiny with their instinctive reluctance to this revolutionary intrusion.”
Mr. Cobden, writing from England, also associated this event with the Constitutional Amendment. In a letter shortly before his much lamented death, he said:—
“I feel it a pleasant duty to give you my best congratulations on the recent proceedings within and without your Halls of Congress. The vote on the Amendment of the Constitution was a memorable and glorious event in your history. Another incident—that of your introduction of a colored man to the Supreme Court—was hardly less interesting. In all these proceedings at Washington you ought to be allowed to indulge the feelings of a triumphant general. You served as a volunteer in the forlorn hope, when the battle of Emancipation seemed a hopeless struggle. Your position within the Halls of Congress was very different from that of the agitators out of doors, meritorious as were their labors. I have served in both capacities, and know the difference between addressing an audience of partisans at a public meeting and a hostile parliamentary assembly.… I heartily congratulate you.”
Doubtless the admission of a colored lawyer to the Supreme Court helped prepare the way for admission of his race to the rights of citizenship, and especially the right to vote.
PARTICIPATION OF REBEL STATES NOT NECESSARY IN RATIFICATION OF CONSTITUTIONAL AMENDMENTS.
Declaratory Resolutions in the Senate, February 4, 1865.
Concurrent Resolutions declaring the rule in ascertaining the three fourths of the several States required in the ratification of a Constitutional Amendment.
Whereas Congress, by a vote of two thirds of both Houses, has proposed an Amendment to the Constitution, prohibiting Slavery throughout the United States, which, according to existing requirement of the Constitution, will be valid, to all intents and purposes, as part of the Constitution, when ratified by the Legislatures of three fourths of the several States; and
Whereas, in the present condition of the country, with certain States in arms against the National Government, it becomes necessary to determine what number of States constitutes the three fourths required by the Constitution: Therefore,
Resolved by the Senate (the House of Representatives concurring), That the rule followed in ascertaining the two thirds of both Houses proposing the Amendment to the Constitution should be followed in ascertaining the three fourths of the several States ratifying the Amendment; that, as in the first case the two thirds are founded on the simple fact of representation in the two Houses, so in the second case the three fourths must be founded on the simple fact of representation in the Government of the country and the support thereof; and that any other rule establishes one basis for the proposition of amendment and another for its ratification, placing one on a simple fact and the other on a claim of right, while it also recognizes the power of Rebels in arms to interpose a veto upon the National Government in one of its highest functions.
Resolved, That all acts, executive and legislative, in pursuance of the Constitution, and all treaties made under the authority of the United States, are valid to all intents and purposes throughout the United States, although certain Rebel States fail to participate therein, and that the same rule is equally applicable to an Amendment of the Constitution.
Resolved, That the Amendment of the Constitution prohibiting Slavery throughout the United States will be valid to all intents and purposes as part of the Constitution, whenever ratified by three fourths of the States de facto, exercising the powers and prerogatives of the United States under the Constitution thereof.
Resolved, That any other rule, requiring the participation of the Rebel States, while illogical and unreasonable, is dangerous in its consequences, inasmuch as all recent Presidential proclamations, including that of Emancipation, also all recent Acts of Congress, including those creating the national debt and establishing a national currency, and also all recent treaties, including the treaty with Great Britain for the extinction of the slave-trade, have been made, enacted, or ratified, respectively, without any participation of the Rebel States.
Resolved, That any other rule must tend to postpone the great day when the prohibition of Slavery will be valid to all intents and purposes as part of the Constitution of the United States; but the rule herewith declared will assure the immediate ratification of the prohibition, and the consummation of the national desires.
On motion of Mr. Sumner, these resolutions were printed and laid on the table. Besides hastening the adoption of the Constitutional Amendment, it was hoped that they would help prepare the way for Reconstruction.
APPORTIONMENT OF REPRESENTATIVES ACCORDING TO VOTERS.
Proposed Amendment to the Constitution of the United States, February 6, 1865.
In the Senate, February 6, 1865, Mr. Sumner submitted the following Amendment to the Constitution, which, on his motion, was referred to the Committee on the Judiciary.
Representatives shall be apportioned among the several States which may be included within this Union according to the number of male citizens of age having in each State the qualifications requisite for electors of the most numerous branch of the State Legislature. The actual enumeration of such citizens shall be made by the census of the United States.
This Amendment was a first attempt to meet the new exigency from the abolition of Slavery. One of two alternatives was open: the extension of suffrage to the new-made freedmen by the action of Congress, which Mr. Sumner insisted was the just course; or the apportionment of Representatives according to voters, which would make it for the interest of a State to extend the franchise. Without one of these measures the political power of the former slave-masters would be enlarged by Emancipation.
This subject occupied much attention at the next session of Congress.
RAILROAD USURPATION IN NEW JERSEY.
Speech in the Senate, on a Bill to Regulate Commerce among the Several States, February 14, 1865.
April 25, 1864, Mr. Sumner asked, and by unanimous consent obtained, leave to bring in the following joint resolution, which was read twice, and referred to the Committee on Military Affairs.
“A Joint Resolution to facilitate commercial, postal, and military communication among the several States.
“Whereas the Constitution of the United States confers upon Congress, in express terms, the power to regulate commerce among the several States, to establish post-roads, and to raise and support armies: Therefore,
“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That every railroad company in the United States, whose road is operated by steam, its successors and assigns, be, and is hereby, authorized to carry upon and over its road, connections, boats, bridges, and ferries, all freight, property, mails, passengers, troops, and Government supplies, on their way from any State to any other State, and to receive compensation therefor.”
May 12th, Mr. Wilson, of Massachusetts, from the Committee, reported it without amendment.
Meanwhile the House of Representatives had under consideration a bill to declare certain roads military roads and post-roads, and to regulate commerce, which was much debated, when, on motion of Mr. Wilson, of Iowa, Mr. Sumner’s joint resolution, without the preamble, and with the title, “A Bill to regulate commerce among the several States,” was adopted as a substitute, and the bill thus amended passed the House,—Yeas 63, Nays 58.
In the Senate the bill was elaborately discussed, especially by Mr. Reverdy Johnson, of Maryland; but its friends were never able to press it to a vote, and it expired with the session. In one of these efforts Mr. Sumner said: “There are two ways of killing a measure: one is by voting it down; the other is by postponing it until you lose an opportunity of voting on it; and the latter is the policy of certain Senators now.”
March 3, 1865, failing to obtain a vote on the bill, Mr. Sumner moved it as an amendment to the Post-Route Bill, but without success.
February 14th, while the bill was under consideration, Mr. Sumner spoke.
MR. PRESIDENT,—The question before us concerns the public convenience to a remarkable degree. But it concerns also the unity of this Republic. Look at it in its simplest form, and you will confess its importance. Look at it in its political aspect, and you will recognize how vital it is to the integrity of the Union itself. On one side we encounter a formidable Usurpation with all the pretensions of State Rights, hardly less flagrant and pernicious than those which ripened in bloody rebellion. On the other side are the simple and legitimate claims of the Union under the Constitution of the United States.
Thus stands the question at the outset: public convenience and the Union itself in its beneficent powers on the one side; public inconvenience and all the discord of intolerable State pretensions on the other side.
The proposition on its face is applicable to all the States throughout the Union, and in its vital principle concerns every lover of his country. But it cannot be disguised that the interest it has excited in the other House, and also in the Senate, must be referred to its bearing on the railroads of New Jersey. Out of this circumstance springs the ardor of opposition,—perhaps, also, something of the ardor of support. Therefore pardon me, if I glance one moment at the geographical position of this State, and its Railroad Usurpation in the name of State Rights.
Look on the map, or, better still, consult your own personal experience in the journey from Washington to New York, and you will find that New Jersey lies on the great line of travel between the two capitals of the country, political and commercial. There it is, directly in the path. It cannot be avoided, except by circuitous journey. On this single line commerce, passengers, mails, troops, all must move. In the chain of communication by which capital is bound to capital,—nay, more, by which the Union itself is bound together,—there is no single link of equal importance. Strike it out, and where are you? Your capitals will be separated, and the Union itself loosened. But the evil sure to follow, if this link were struck out, must follow also in proportionate extent from every interference with that perfect freedom of transit through New Jersey which I now ask in behalf of commerce, passengers, mails, and troops.
Such is the geographical position of New Jersey. And on this highway pernicious pretensions are set up which can be overthrown only by the power of Congress. The case is plain.
New Jersey, in the exercise of pretended State rights, has undertaken to invest the Delaware and Raritan Canal and the Camden and Amboy Railroad and Transportation Companies with unprecedented prerogatives. These are the words of the Legislature: “It shall not be lawful, at any time during the said railroad charter, to construct any other railroad or railroads in this State, without the consent of the said companies, which shall be intended or used for the transportation of passengers or merchandise between the cities of New York and Philadelphia, or to compete in business with the railroad authorized by the Act to which this supplement is relative.”[64] Here, in barefaced terms, is the grant of monopoly in all railroad transportation, whether of commerce, passengers, mails, or troops, between New York, a city outside of New Jersey, and Philadelphia, another city outside of New Jersey. Or, looking at this grant of monopoly again, we find, that, while leaving the local transportation of New Jersey untouched, it undertakes to regulate and appropriate the transportation between two great cities outside of New Jersey, constituting, from geographical position, the gates through which the whole immense movement, north and south, must pass.
If this monopoly is offensive on its face, it becomes still more offensive, when we consider the motive in which it had its origin. By confession of its supporters, it was granted in order to raise a revenue for the State out of men and business not of the State. It was an ingenious device to tax commerce, passengers, mails, and troops in transit across New Jersey, from State to State. I quote a confession from the Legislative Journal of New Jersey, as long ago as 1841, in a document by the executive committee of the coalesced railroads, represented by the Camden and Amboy Company.
“It seems plain, from the acts incorporating these companies, and the testimony of those best conversant with the history of their incorporations, that it was the policy of the State, taking advantage of the geographical position of New Jersey, between the two largest States and cities of the Union, to create a revenue by imposing a tax or transit duty upon every person who should pass on the railroad across the State between these cities from the Delaware River to the Raritan Bay; but that it was not their design to impose any tax upon citizens of their own State for travelling between intermediate places.… Here, again, the policy and intention of the State is most clearly indicated in exempting her own citizens from the operation of this system of taxation.”[65]
I quote the words of another functionary, equally frank, belonging to the same railroad connection.
“The Company believe that a careful consideration of the whole matter, as well from the provisions of the charter as from a recurrence to the period when it was granted, will produce the conviction that the transit duty was intended to be levied only on citizens of other States passing through New Jersey.”[66]
The spirit in which this tax has been laid appears from another incident, not without interest to the Senators from New York. The Erie Railroad, so important to transportation in the great State which they represent, has been compelled, in addition to the usual tax on that part of the road in New Jersey, to pay an extra tax in the shape of “a transit duty of three cents on every passenger and two cents on every ton of goods, wares, and merchandise, except passengers and freight transported exclusively within this State.” This imposition was as late as 1862, and is part of that same system which constitutes the Railroad Usurpation of New Jersey to this day.
This Usurpation becomes still more apparent in the conduct adopted toward another railroad in New Jersey. It appears that a succession of railroads has been constructed, under charters of this State, from Raritan Bay, opposite New York, to Camden, opposite Philadelphia, constituting a continuous line, suitable for transportation, across New Jersey and between the two great cities of New York and Philadelphia. The continuous line is known as the Raritan and Delaware Bay Railroad. On the breaking out of the Rebellion, when Washington was menaced by a wicked enemy, and the patriots of the land were aroused to sudden effort, the Quartermaster General of the United States directed the transportation of troops, horses, baggage, and munitions of war from New York to Philadelphia over this line. The other railroad, claiming a monopoly, filed a bill in equity, praying that the Raritan and Delaware Bay Railroad “be decreed to desist and refrain” from such transportation, and also praying “that an account may be taken to ascertain the amount of damages.” The counsel of the monopoly openly insisted that by this transportation the State was “robbed of her ten cents a passenger,” and then cried out: “I say it is no defence whatever, if they have succeeded in obtaining an order of the Secretary of War, when we call upon them to give us the money they made by it; and that is one of our calls. They have no right to get an order to deprive the State of New Jersey of the right of transit duty, which is her adopted policy.” Such was the argument of Mr. Stockton, counsel for the monopoly, November 12, 1863. The transit duty is vindicated as the adopted policy of New Jersey.
Nor is it modern in time. It may be traced to the beginning of the National Government, under the administration of Washington, when it awakened the indignant comment of Timothy Pickering, Postmaster General. This patriot citizen, in a communication to the House of Representatives, under date of February 9, 1793, and entitled “Tax on Mail Stages in New Jersey,” says, “The avowed design is to increase the revenues of that State,” precisely as now; and he adds, what may be repeated: “And thus the citizens of the United States have to purchase permission to travel on the highways of New Jersey.” Then, calling the tax “an annual tribute,” which the United States are to pay, he says: “And from the example of New Jersey they may erelong become tributary to all the States from Virginia to New Hampshire, inclusively; for so far the mail is carried in stage-wagons.”[67] But our “stage-wagons” are on railroads now.
Such, Sir, are the pretensions of New Jersey to interfere with commerce, passengers, mails, and troops from other States, on the way, it may be, to the National Capital, even with necessary succors at a moment of national peril. Such pretensions, persistently maintained and vindicated, constitute a Usurpation, not only hostile to the public interests, but menacing to the Union itself. Here is no question of local taxation or local immunity under State laws, but an open assumption by a State to tax the commerce of the United States on the way from State to State.
From the nature of the case, and according to every rule of reason, there ought to be a remedy for such a grievance. No usurping monopoly should be allowed to establish itself in any State across the national highway, and, like a baron of the Middle Ages perched in his rocky fastness, levy toll and tribute from the wayfarers of business, pleasure, or duty. The Usurpation should be overthrown. The nuisance should be abated. And, happily, the powers are ample under the National Constitution. Following unquestionable principles and authentic precedents, the Committee propose a remedy which I proceed to discuss.
The measure under consideration was originally introduced by me into the Senate. It was afterward adopted and passed by the other House as the substitute for a kindred bill pending there. Beyond the general interest which I take in the public business, this is my special reason for entering into this discussion.
The bill is arraigned as unconstitutional. But this objection is a commonplace of opposition. When all other reasons fail, then is the Constitution invoked. Such an attempt, on such an occasion, attests the weakness of the cause. It is little better than the assertion of an alias in a criminal case.
The entire and unimpeachable constitutionality of the present measure is apparent in certain familiar precepts of the Constitution, brought to view in the title and preamble of the measure as introduced by me, but omitted in the bill now before us. The title, as introduced by me, was, “A joint resolution to facilitate commercial, postal, and military communication among the several States.” This opens the whole constitutional question. Then came the preamble:—
“Whereas the Constitution of the United States confers upon Congress, in express terms, the power to regulate commerce among the several States, to establish post-roads, and to raise and support armies: Therefore, Resolved,” &c.
In these few words three sources of power are clearly indicated, either of which is ample; but the three together constitute an overrunning fountain.
First. There is the power “to regulate commerce among the several States.” Look at the Constitution and you find these identical words. From the great sensitiveness of States, this power is always exercised by Congress with peculiar caution; but it still lives to be employed by an enfranchised Government.
Asserting this power, I follow not only the text of the Constitution, but also authoritative decisions of the Supreme Court. Perhaps there is no question in our constitutional history more clearly interpreted by our greatest authority, Chief Justice Marshall. In the well-known case where the State of New York undertook to grant an exclusive right to navigate the waters of New York by vessels propelled by steam, the illustrious Chief Justice, speaking for the Court, declared the restriction illegal, because it interfered with commerce between the States, precisely as is now done by New Jersey. In his opinion commerce was something more than traffic or the transportation of property. It was also “the commercial intercourse between nations and parts of nations in all its branches”; and it embraced, by necessary inference, all inter-State communications, and the whole subject of intercourse between the people of the several States. It was declared that the power of Congress over the subject was not limited by State lines, but was coëxtensive with commerce itself, according to the enlarged signification of the term. Here are the words of Chief Justice Marshall:—
“But in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power, if it could not pass those lines.… Every district has a right to participate in it. The deep streams which penetrate our country in every direction pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State.”[68]
This important decision was before railroads. It grew out of an attempt to appropriate certain navigable thoroughfares of the Union. But it is equally applicable to those other thoroughfares of the Union where the railroad is the substitute for water. According to the genius of jurisprudence, a rule once established governs all cases within the original reason on which it was founded. Therefore I conclude that the power of Congress over internal commerce by railroad is identical with that over internal commerce by water. But this decision does not stand alone.
Mr. Justice Story, a member of the Supreme Court at that time, in a later decision explained the extent of the power.
“It does not stop at the mere boundary-line of a State; nor is it confined to acts done on the water, or in the necessary course of the navigation thereof. It extends to such acts done on land which interfere with, obstruct, or prevent the due exercise of the power to regulate commerce and navigation with foreign nations and among the States.”[69]
From various cases illustrating this power I call attention to those known as the Passenger Cases, where the Supreme Court declared that the statutes of New York and Massachusetts, imposing taxes upon alien passengers arriving at the ports of those States, were in derogation of the Constitution. On this occasion Mr. Justice McLean said:—
“Shall passengers, admitted by Act of Congress without a tax, be taxed by a State? The supposition of such a power in a State is utterly inconsistent with a commercial power, either paramount or exclusive, in Congress.”[70]
Mr. Justice Grier said, with great point:—
“To what purpose commit to Congress the power of regulating our intercourse with foreign nations and among the States, if these regulations may be changed at the discretion of each State?… It is, therefore, not left to the discretion of each State in the Union either to refuse a right of passage to persons or property through her territory, or to exact a duty for permission to exercise it.”[71]
But this is the very thing now done by New Jersey, which “exacts a duty” from passengers across the State.
I call attention also to the case of the Wheeling Bridge, where Congress, under peculiar circumstances, exercised this identical power. In this case the State of Pennsylvania denied the power of Virginia to authorize a bridge across the Ohio River obstructing navigation; but, under the pressure of public demand, and in the exercise of the very powers now invoked, Congress declared the Wheeling Bridge a lawful structure, anything in any State law to the contrary notwithstanding. The Supreme Court, after the passage of this Act, denied a motion to punish the owners of the bridge for contempt in rebuilding it, and affirmed that the Act declaring the Wheeling Bridge a lawful structure was within the legitimate exercise by Congress of its constitutional power to regulate commerce.[72] This very power is here invoked in a case more important and far more urgent than that of the Wheeling Bridge.
There is also another case. I refer to the Steubenville Bridge and Holliday’s Cove Railroad across the Ohio, in what is called the Panhandle of Virginia. This bridge was first attempted under a charter granted by Ohio; but Congress at last interfered, and enacted,—
“That the bridge partly constructed across the Ohio River at Steubenville, in the State of Ohio, abutting on the Virginia shore of said river, is hereby declared to be a lawful structure.”
“That the said bridge and Holliday’s Cove Railroad are hereby declared a public highway, and established a post-road for the purpose of transmission of mails of the United States.”[73]
Such are precedents of courts and of statutes, showing how completely this power belongs to Congress in the regulation of internal commerce. The authorities are plain and explicit. They cannot be denied. They cannot be explained away. It would be superfluous to dwell on them. There they stand like so many granite columns, fit supports of that internal commerce, in itself a chief support of the Union.
Secondly. There is also the power “to establish post-roads,” which is equally explicit. Here, too, the words are plain, and they have received authoritative exposition. It is with reference to these words that Mr. Justice Story remarks that “constitutions of government do not turn upon ingenious subtleties, but are adapted to the business and exigencies of human society; and the powers given are understood in a large sense, in order to secure the public interests. Common sense becomes the guide, and prevents men from dealing with mere logical abstractions.”[74] The same learned authority, in considering the text of the Constitution, seems to have anticipated the very question before us. Here is a passage which may fitly close the argument on this head:—
“Let a case be taken when State policy”—
as, for instance, in New Jersey at this time,—
“or State hostility shall lead the Legislature to close up or discontinue a road, the nearest and the best between two great States, rivals, perhaps, for the trade and intercourse of a third State; shall it be said that Congress has no right to make or repair a road for keeping open for the mail the best means of communication between those States? May the National Government be compelled to take the most inconvenient and indirect routes for the mail? In other words, have the States a power to say how and upon what roads the mails shall and shall not travel? If so, then, in relation to post-roads, the States, and not the Union, are supreme.”[75]
Thirdly. Then comes the power “to raise and support armies,”—an unquestionable power lodged in Congress. But this grant carries with it, of course, all incidental powers necessary to the execution of the principal power. It would be absurd to suppose that Congress was empowered to raise an army, but could not authorize the agencies required for its transportation from place to place. Congress has not been guilty of any such absurdity of abnegation. Already by formal Act it has proceeded “to authorize the President of the United States in certain cases to take possession of railroad and telegraph lines.” By this Act the President is empowered “to take possession of any or all the railroad lines in the United States, their rolling stock, their offices, shops, buildings, and all their appendages and appurtenances,” and it is declared that any such railroad “shall be considered as a post-road and a part of the military establishment of the United States.”[76] Here is the exercise of a broader power than any now proposed. The less must be contained in the greater.
Such are the three sources of power in the Constitution, each and all applicable to the present case. Each is indisputable. Therefore the conclusion, sustained by each, is threefold indisputable.
So plain is this power, that it has been admitted by New Jersey in a legislative act, as follows:—
“That, when any other rail road or roads for the transportation of passengers and property between New York and Philadelphia across this State shall be constructed and used for that purpose, under or by virtue of any law of this State or the United States authorizing or recognizing said road, that then and in that case the said dividends shall be no longer payable to the State, and the said stock shall be re-transferred to the Company by the Treasurer of this State.”[77]
Thus, in formal words, has New Jersey actually anticipated the very measure under consideration. All that is now proposed, so far as concerns New Jersey, is simply to recognize other railroads for the transportation of passengers and property between New York and Philadelphia across this State.
Such is the argument in brief for the constitutionality of the present bill, whether regarded as a general measure applicable to all railroads, or only applicable to the railroads of New Jersey. The case is so plain and absolutely unassailable that I should leave it on this simple exhibition, if the Senator from Maryland [Mr. Reverdy Johnson], who always brings to these questions the authority of professional reputation, had not most zealously argued the other way. According to him the bill is unconstitutional. Let me say, however, that the conclusion of the learned Senator is only slightly sustained by the reasons he assigns. Indeed, his whole elaborate argument, if brought to the touchstone, is found inconclusive and unsatisfactory.
The Senator opened with the proposition, that the internal commerce of a State is within the exclusive jurisdiction of the State, and from this he argued that the present bill is unconstitutional. But the Senator will allow me to say that his proposition is not sufficiently broad for his conclusion. The present bill does not touch the internal commerce of a State, except so far as it is a link in the chain of “commerce among States,” committed by the Constitution to the jurisdiction of Congress. This distinction must be made; for it is essential to a right understanding of the case.
From this inapplicable proposition the Senator passed to another equally inapplicable. He asserted that the jurisdiction of a State over all territory within its limits was exclusive, so that the United States cannot obtain jurisdiction over any portion thereof, except by assent of the State; and from this again he argued the unconstitutionality of the present bill. But this very illustration seems to have been anticipated by Mr. Justice Story in his excellent Commentaries, where he shows conclusively, first, that it is inapplicable, and, secondly, that, if it were applicable, it would be favorable to the power. Here are his words:—
“The clause respecting cessions of territory for the seat of Government, and for forts, arsenals, dock-yards, &c., has nothing to do with the point. But if it had, it is favorable to the power.… But surely it will not be pretended that Congress could not erect a fort or magazine in a place within a State, unless the State should cede the territory. The only effect would be that the jurisdiction in such a case would not be exclusive. Suppose a State should prohibit a sale of any of the lands within its boundaries by its own citizens, for any public purposes indispensable for the Union, either military or civil; would not Congress possess a constitutional right to demand and appropriate land within the State for such purposes, making a just compensation? Exclusive jurisdiction over a road is one thing; the right to make it is quite another. A turnpike company may be authorized to make a road, and yet may have no jurisdiction, or at least no exclusive jurisdiction, over it.”[78]
Had the distinguished Commentator anticipated the argument of the Senator, he could not have answered it more completely.
Passing from these constitutional generalities, the Senator came at once to an assumption, which, if sustained, would limit essentially the national power with regard to post-roads. According to him, the words of the Constitution authorizing Congress “to establish post-roads” mean only that it shall “designate roads already existing”; and in support of this assumption he relied upon the message of Mr. Monroe, in 1822, on the Cumberland Road. The learned Senator adds, that this is “the received opinion, uniformly acted upon, and since recognized as the correct opinion by the judiciary.” Of course his testimony on this head is important; but it is overruled at once by the authority I have already cited, which says that “the power to establish post-offices and post-roads has never been understood to include no more than the power to point out and designate post-offices and post-roads.”[79] In the face of Mr. Justice Story’s dissent, expressed in his authoritative Commentaries, it is impossible to say that it is “the received opinion,” as asserted by the Senator. But the much quoted Commentator insists that “the Constitution itself uniformly uses the word ‘established’ in the general sense, and never in this peculiar and narrow sense,” and, after enumerating various places where it occurs, says, “It is plain that to construe the word in any of these cases as equivalent to designate or point out would be absolutely absurd. The clear import of the word is to create, and form, and fix in a settled manner.… To establish post-offices and post-roads is to frame and pass laws to erect, make, form, regulate, and preserve them. Whatever is necessary, whatever is appropriate to this purpose, is within the power.”[80] I might quote other words from the same authority; but this is enough to vindicate the power the Senator has denied.
Here it is my duty to remind the Senate that the argument of the Senator on this head is not only false in assumption, but that the assumption, even if correct, is entirely inapplicable. The bill before the Senate does not undertake to create, but simply to designate or point out, certain roads. Therefore it does not fall under the objection the Senator makes. Even by his own admission it is constitutional.
But, not content with an erroneous assumption concerning post-roads, which, even if correct, is entirely inapplicable, the Senator makes another assumption concerning another clause of the Constitution, equally erroneous and inapplicable. He argues that the railroad charters in New Jersey were grants in the nature of a contract, and were protected by “the constitutional inhibition upon the States interfering with contracts”; and here he refers to several decisions of the Supreme Court of the United States. I do not trouble you with the decisions. It is enough, if I call attention to the precise text of the Constitution, which is, “No State shall pass any law impairing the obligation of contracts.”
Look at these words, and it appears, in the first place, that this inhibition is addressed to the States, and not to Congress, whose powers are not touched by it. Look still further at the railroad charters, and, even admitting that they were grants in the nature of contract, you cannot deny that the contract must be interpreted with reference to the Constitution of the United States. Learned judges have held that the law of the place where a contract is made not only regulates and governs it, but constitutes part of the contract itself. But if the law constitutes part of the contract, still more must the Constitution. Apply this principle and the case is clear. Every railroad charter has been framed subject to the exercise of the acknowledged powers of Congress, all of which are implied in the grant as essential conditions, not less than if set forth expressly. The Supreme Court has decided that all contracts are made subject to the right of eminent domain, so that they cannot be considered as violated by the exercise of this right.[81] But the powers of Congress, invoked to regulate commerce among the several States, to establish post-roads, and to raise and equip armies, are in the nature of eminent domain, to which all local charters are subject. Therefore, I repeat, nothing is proposed “impairing the obligation of contracts,” even if that well-known inhibition were applicable to Congress.
From these details of criticism the Senator jumped to a broader proposition. He asserted that the pending measure destroyed what he called the sovereignty of the States, and he even went so far as to say that it was the same as if you said that all State legislation is null and void. These, Sir, were his exact words. How the Senator, even in any ardor of advocacy, could venture on such assertion, it is difficult to comprehend. Here is a measure, founded, as I have already demonstrated, on three different texts of the Constitution, upheld by three unassailable supports, and also in essential harmony with the Union itself; and yet we are told that it destroys the sovereignty of the States. Such an assumption seems uttered in the very wantonness of unhesitating championship. If anything but a phrase, it must be condemned, not only as without foundation, but as hostile to the best interests of the country.
Sir, the pending measure is in no respect destructive of any rights of the States; nor does it in any sense say that all State legislation is null and void. On the contrary, it simply asserts a plain and unquestionable power under the National Constitution. If in any way it seems to touch what is invoked as State sovereignty, or to set aside any State legislation, it is only in pursuance of the Constitution. It is simply because the Constitution, and the laws made in pursuance thereof, are the supreme law of the land.
The assumptions of the Senator bring me back to the vital principle with which I began. After exhibiting the public convenience involved in the present question, I said that it concerned still more the unity of the Republic. It is, in short, that identical question which has so often entered this Chamber, and is now convulsing the land with bloody war. It is the question of the Union itself. In his ardor for that vampire monopoly, which, brooding over New Jersey, sucks the life-blood of the whole country, the Senator from Maryland sets up most dangerous pretensions in the name of State Rights. Sir, the Senator flings into one scale the pretensions of State Rights: into the other scale I fling the Union itself.
Sir, the Senator from Maryland is a practised lawyer, and he cannot have forgotten that Nathan Dane, whose name is an authority in our courts, tells us plainly that the terms “sovereign States,” “State sovereignty,” “State rights,” and “rights of States” are “not constitutional expressions.”[82] Others of equal weight in the early history of the country have said the same thing. Mr. Madison, in the Convention which framed the Constitution, said: “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.”[83] Elbridge Gerry, of Massachusetts, in the same Convention, said: “It appears to me that the States never were independent. They had only corporate rights.”[84] Gouverneur Morris, of Pennsylvania, with the same distinct language he used in denouncing Slavery, said of the States: “They were originally nothing more than colonial corporations.”[85] Both Patrick Henry and George Mason, in the Virginia Convention, opposed the Constitution on the very ground that it superseded State rights. But perhaps the true intention of the authors of the Constitution may be best found in the letter of General Washington, as President of the Convention, transmitting it to Congress. Here are his words:—
“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.… In all our deliberations on this subject we kept steadily in our view that which appeared 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.”[86]
I am content, when I find myself with the support of this great name.
By the adoption of the Constitution the people of the United States constituted themselves a Nation, one and indivisible, with all the unity and power of a nation. They were no longer a confederation, subject to the disturbing pretensions, prejudices, and whims of component parts; but they became a body politic, where every part was subordinate to the Constitution, as every part of the natural body is subordinate to the principle of life. The sovereignty of the United States, where all are but parts of one vivifying whole, was the controlling unit. The powers then and there conferred upon the nation were supreme. And those very powers I now invoke, in the name of the Union, and to the end that pretensions in the name of State Rights may be overthrown.
I have thus presented a picture of these intolerable pretensions. But they must be examined more minutely. They may be seen, first, in their character as a monopoly, and, secondly, in their character as a Usurpation under the Constitution of the United States. I need not say that in each they are equally indefensible.
If you go back to the earliest days of English history, you find that monopolies have from the beginning been odious, as contrary to the ancient and fundamental laws of the realm. A writer who is often quoted in the courts says: “All grants of this kind relating to any known trade are made void by the Common Law, as being against the freedom of trade, and discouraging labor and industry, and restraining persons from getting an honest livelihood by a lawful employment, and putting it in the power of particular persons to set what prices they please on a commodity.”[87] But, without claiming that the present monopoly is void at Common Law, it is enough to show its inconsistency with the Constitution. Here I borrow Mr. Webster’s language in his famous argument against the monopoly of steam navigation granted by the State of New York:—
“Now I think it very reasonable to say that the Constitution never intended to leave with the States the power of granting monopolies either of trade or of navigation,—and therefore, that, as to this, the commercial power is exclusive in Congress.”[88]
Then again he says:—
“I insist that the nature of the case and of the power did imperiously require that such important authority as that of granting monopolies of trade and navigation should not be considered as still retained by the States.”[89]
And, yet again, he adduces an authority which ought to be conclusive on the present occasion: it is that of New Jersey, on the formation of the Constitution:—
“The New Jersey resolutions complain that the regulation of trade was in the power of the several States, within their separate jurisdiction, to such a degree as to involve many difficulties and embarrassments; and they express an earnest opinion that the sole and exclusive power of regulating trade with foreign states ought to be in Congress.”[90]
But the power of regulating trade “among the States” stands on the same reason, and also on the same text of the Constitution.
And yet, in face of these principles, we have a gigantic monopoly organized by New Jersey, composed of several confederate corporations, whose capital massed together is said to reach upwards of $27,537,977,—a capital not much inferior to that of the United States Bank, which once seemed to hold “divided empire” with the National Government itself. And this transcendent monopoly, thus vast in resources, undertakes to levy a toll on the commerce, the passengers, the mails, and the troops of the Union in transit between two great cities, both outside New Jersey. In attitude and pretension the grasping monopoly is not unlike Apollyon, in Bunyan’s “Pilgrim’s Progress,” whose usurpation is thus described:—
“But now in this Valley of Humiliation poor Christian was hard put to it; for he had gone but a little way before he espied a foul fiend coming over the field to meet him: his name is Apollyon. Then did Christian begin to be afraid, and to cast in his mind whether to go back or to stand his ground.…
“Now the monster was hideous to behold: he was clothed with scales like a fish, and they are his pride; he had wings like a dragon, feet like a bear, and out of his belly came fire and smoke, and his mouth was as the mouth of a lion. When he was come up to Christian, he beheld him with a disdainful countenance, and thus began to question with him.
“Apollyon. Whence come you, and whither are you bound?
“Christian. I am come from the City of Destruction, which is the place of all evil, and am going to the City of Zion.
“Apollyon. By this I perceive thou art one of my subjects; for all that country is mine, and I am the prince and god of it.”
New Jersey is the Valley of Humiliation through which all travellers north and south from the city of New York to the city of Washington must pass; and the monopoly, like Apollyon, claims them all as “subjects,” saying, “For all that country is mine, and I am the prince and god of it.”
The enormity of the Usurpation is seen in its natural consequences. New Jersey claims the right to levy a tax for State revenue on passengers and freight in transit across her territory from State to State,—in other words, to levy a tax on “commerce among the several States.” Of course the right to tax is the right to prohibit. The same power which can exact “ten cents from every passenger,” according to the cry of the Camden and Amboy Railroad, by the voice of its counsel, may exact ten dollars, or any other sum, and thus effectively close this great avenue of communication.
Again, if New Jersey can successfully play this game of taxation, and compel tribute from the domestic commerce of the Union traversing her territory on the way from State to State, then may every other State do likewise. New York, with her central power, may build up an overshadowing monopoly and a boundless revenue, while all the products and population of the West traversing her territory on the way to the sea, and all the products and population of the East, with the contributions of foreign commerce, traversing her territory on the way to the West, are compelled to pay tribute. Pennsylvania, holding a great highway of the Union,—Maryland, constituting an essential link in the chain of communication with the national capital,—Ohio, spanning from lake to river, and forming a mighty ligament of States, east and west,—Indiana, enjoying the same unsurpassed opportunities,—Illinois, girdled by States with all of which it is dovetailed by railroads, east and west, north and south,—Kentucky, guarding the gates of the Southwest,—and, finally, any one of the States on the long line of the Pacific Railroad,—may enter upon a similar career of unscrupulous exaction, until anarchy sits supreme, and there are as many different tributes as there are States. If the Union should continue to exist, it would be only as a name. The national unity would be destroyed.
The taste of revenue is to a government like the taste of blood to a wild beast, exciting and maddening the energies, so that it becomes deaf to suggestions of justice; and the difficulties must increase, where this taxation is enforced by a comprehensive monopoly. The State, once tasting this blood, sees only an easy way of obtaining the means it desires; and other States will yield to the same temptation. The poet, after picturing vice as a monster of frightful mien, tells us in familiar words,—
“Yet seen too oft, familiar with her face,
We first endure, then pity, then embrace.”
A profitable Usurpation, like that of New Jersey, would be a tempting example to other States. “It is only the first step that costs.” Let this Usurpation be sanctioned by Congress, and you hand over the domestic commerce of the Union to a succession of local imposts. Each State will be a tax-gatherer at the expense of the Union. Each State will play the part of Don Quixote, and the Union will be Sancho Panza, not only bound to contributions, but driven to receive on bare back the lashes which were the penance of the knightly adventurer. If there be any single fruit of our national unity, if there be any single element of the Union, if there be any single triumph of the Constitution to be placed above all others, it is the freedom of commerce between the States, under which free trade, the aspiration of philosophy, is assured to all citizens of the Union, as they circulate through our whole broad country, without hindrance from any State. But this vital principle is now in jeopardy.
Keep in mind that it is the tax imposed on commerce between New York and Philadelphia, two cities outside the State of New Jersey, which I denounce. I have denounced it as hostile to the Union. I also denounce it as hostile to the spirit of the age, which is everywhere overturning the barriers of commerce. The robber castles, once compelling payment of toll on the Rhine, were long ago dismantled, and exist now only as monuments of picturesque beauty. Kindred pretensions in other places have been overthrown or trampled out. Duties levied by Denmark on all vessels passing through the Sound and the Belts, duties levied by Hanover on the goods of all nations at Stade on the Elbe, tolls exacted on the Danube in its protracted course, tolls exacted by Holland on the busy waters of the Scheldt, and transit imposts within the great Zollverein of Germany, have all been abolished; and in this work of enfranchisement the Government of the United States led the way, insisting, in the words of President Pierce, in his Annual Message, “on the right of free transit into and from the Baltic.”[91] But the right of free transit across the States of the Union is now assailed. Can you who reached so far to secure free transit in the Baltic now hesitate in its defence here at home?
Thank God, within the bounds of the Union, under the National Constitution, commerce is made free. As the open sea is the highway of nations, so is this Union made the highway of the States, with all their commerce, and no State can claim any exclusive property therein. The Union is a mare liberum, beyond the power of any State, and not a mare clausum, subject to as many tyrannies as there are States. And yet the State of New Jersey asserts the power of closing a highway of the Union.
Such a pretension, so irrational and destructive, cannot be dealt with tenderly. Like the serpent, it must be bruised on the head. Nor can there be wise delay. Every moment of life yielded to such a Usurpation is like the concession once in an evil hour yielded to Nullification, kindred in origin and character. The present pretension of New Jersey belongs to the same school with that abhorred and blood-bespattered pretension of South Carolina.
Perhaps, Sir, it is not unnatural that the doctrines of South Carolina on State Rights should obtain shelter in New Jersey. Like sees like. There is a common bond among the sciences, among the virtues, among the vices,—and so, also, among the monopolies. The monopoly founded on the hideous pretension of property in man obtained responsive sympathy in that other monopoly founded on the greed of unjust taxation, and both were naturally upheld in the name of State Rights. Both must be overthrown in the name of the Union. South Carolina must cease to be a Slave State, and New Jersey must also cease her disturbing pretension. All hail to the genius of Universal Emancipation! All hail to the Union, victorious over the Rebellion,—victorious, also, over a Usurpation which menaces the unity of the Republic!
REPRESENTATION OF VIRGINIA IN THE SENATE.
Remarks in the Senate, on the Credentials of Hon. Joseph Segar, of Virginia, February 17, 1865.
February 17th, Mr. Willey, of West Virginia, presented the credentials of Hon. Joseph Segar, appointed Senator by a State Government of Virginia, sitting at Alexandria. Mr. Sumner moved their reference to the Committee on the Judiciary, and during the discussion that ensued said:—
I regret that a question of this magnitude has been precipitated upon the Senate at this late period of the session, when there is so much public business which has not yet received the attention of either House of Congress. The Senator from Michigan [Mr. Howard] does not exaggerate its magnitude. Sir, it is much to be a Senator of the United States, with all the powers and privileges pertaining to that office, legislative, diplomatic, and executive; and the question is, whether all these shall be recognized in the gentleman whose certificate has been sent to the Chair. I thought it my duty, on hearing the certificate read as I entered the Chamber, to move its reference to the Committee on the Judiciary. I am astonished that there can be any hesitation in that reference. Senators who hesitate show insensibility to the character of the question. Will the Senate act blindfold, or with eyes open? I insist that on such a question it shall act with eyes open, wide open; and I know no way in which this can be accomplished, except through the intervention of a responsible Committee. Therefore, Sir, I proposed that the credentials should be referred. It will be the duty of the Committee, as my friend from Michigan suggests, to consider, in the first place, whether a State in armed rebellion, like Virginia, can have Senators on this floor. That is a great question, constitutional, political, practical. It will be their duty then to consider whether the gentleman whose credentials are before us is the legal choice of any State under the National Constitution. Now, Sir, I do not intend to prejudge either of these questions. I simply open them for consideration.
I say, Sir, I do not mean to prejudge these questions; but I do insist that a measure of this importance shall not be acted on without due consideration, and in absolute indifference to facts staring us in the face, glaring upon us every day in every newspaper that we read. Sir, you cannot be insensible to facts. It is in vain that Senators say that Virginia, now in war against the Union, is entitled to representation on this floor, when you have before you the inexorable fact that the greater part of the State is at this moment in the possession of an armed Rebellion, and that other fact, repeated by the newspapers of the land, that the body of men who have undertaken to send a Senator to Congress are little more than the Common Council of Alexandria. The question is distinctly presented, whether a representative of the Common Council of Alexandria is to enter this Chamber, and share the powers and privileges of my honorable friend near me, the Senator from New York [Mr. Morgan], or my friend farther from me, the Senator from Pennsylvania [Mr. Cowan]. I merely open these points, without undertaking to decide them, but simply as an unanswerable argument in favor of the reference.
Afterwards, in reply to Mr. Foster, of Connecticut, Mr. Sumner said:—
Suppose it was matter of public notoriety that I came into this Chamber with a certificate from a body of men in Boston, little more in number and character than the Common Council of that city, not in fact supposed to represent the State; suppose this fact much received in the country; then I submit to the Senator whether it would not be the duty of the Senate, before receiving my credentials, to inquire into their origin.
The debate continued, when Mr. Sherman, of Ohio, moved that the credentials lie on the table. The motion was adopted,—Yeas 29, Nays 13. Mr. Segar’s claim to a seat was never prosecuted.
REPUDIATION OF THE REBEL DEBT.
Concurrent Resolution in the Senate, February 17, 1865.
February 17th, Mr. Sumner introduced the following concurrent resolution, and asked its immediate consideration.
Whereas certain persons have put in circulation the report, that, on the suppression of the Rebellion, the Rebel debt or loan may be recognized in whole or in part by the United States; and
Whereas such a report is calculated to give a false value to such Rebel debt or loan: Therefore,
Resolved by the Senate (the House of Representatives concurring), That Congress hereby declares that the Rebel debt or loan is simply an agency of the Rebellion, which the United States can never, under any circumstances, recognize in any part or in any way.
Mr. Saulsbury and Mr. McDougall objecting, its consideration was postponed. In the evening of the same day the resolution was taken up, on motion of Mr. Sumner, and adopted without a division.
March 3d, the resolution was concurred in by the House of Representatives without a division.
This resolution was a direct answer to a pretension set up in England.
NO BUST FOR AUTHOR OF DRED SCOTT DECISION.
Speech in the Senate, on a Bill Providing for a Bust of the late Chief Justice Taney, February 23, 1865.
February 23d, Mr. Trumbull moved to proceed with the consideration of a bill from the House of Representatives requiring the Joint Committee of the two Houses on the Library to contract with a suitable artist for the execution in marble, and delivery in the Supreme Court Room of the United States, in the Capitol, of a bust of the late Chief Justice Taney, and appropriating one thousand dollars for this purpose. On the question of taking it up, Mr. Sumner said: “I object. An emancipated country should not make a bust of the author of the Dred Scott decision.” The motion to take up prevailed, when Mr. Sumner said:—
MR. PRESIDENT,—I objected to this joint resolution, when it was reported by the Senator from Illinois [Mr. Trumbull], and he was disposed to hurry it upon the Senate, to the exclusion of important business. I objected to it again to-day; but it was from no indisposition to discuss it.
I know well the trivial apology which may be made for this proposition, and the Senator from Maryland [Mr. Johnson] has already shown something of the hardihood with which it may be defended. In the performance of public duty I am indifferent to both.
The apology is too obvious. “Nothing but good of the dead.” This is a familiar saying, which, to a certain extent, is acknowledged. But it is entirely inapplicable, when statues and busts are proposed in honor of the dead. Then, at least, truth must prevail.
If a man has done evil during life, he must not be complimented in marble. And if indiscreetly it is proposed to decree this signal honor, then the evil he has done must be exposed; nor shall any false delicacy seal my lips. It is not enough that he held high place, that he enjoyed worldly honors, or was endowed with intellectual gifts.
“Who wickedly is wise, or madly brave,
Is but the more a fool, the more a knave.”
What is the office of Chief Justice, if it has been used to betray Human Rights? The crime is great according to the position of the criminal.
If asked, Sir, to mention the incident of our history, previous to the Rebellion, most worthy of condemnation, most calculated to cause the blush of shame, and most deadly in its consequences, I do not doubt that you would name the Dred Scott decision, and especially the unhallowed assertion of the Chief Justice. I say this with pain. I do not seek this debate. But when a proposition is made to honor the author of this enormity with a commemorative bust, at the expense of the country, I am obliged to speak plainly.
I am not aware that the English judges who decided contrary to Liberty in the case of ship-money, sustaining the king in those pretensions which ended in Civil War, have ever been commemorated in marble. I am not aware that Jeffreys, Chief Justice and Chancellor of England, famous for talents as for crimes, has found any niche in Westminster Hall. No, Sir. They have been left to the judgment of history; and there I insist that Taney shall be left in sympathetic companionship. Each was the tool of unjust power. But the power Taney served was none other than that Slave Power which has involved the country in hideous war.
I speak what cannot be denied, when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Then and there judicial baseness reached its lowest point. You have not forgotten that terrible decision, where an unrighteous judgment was sustained by falsification of history. Of course the Constitution of the United States and every principle of Liberty were falsified; but historical truth was falsified also. I have here the authentic report of the case, where it appears that the Chief Justice, while enforcing his unjust conclusion, blasting a whole race, used the following language.
“It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations,—and so far inferior, that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute.”[92]
In these words, solemnly and authoritatively uttered by the Chief Justice of the United States, humanity and truth were set at nought, and the whole country was humbled. “Then I and you and all of us fell down, whilst bloody Slavery flourished over us.”
I quote his words fully, so that there can be no mistake. Here, then, is his expressed assertion, that at the Declaration of Independence in 1776, and the adoption of the National Constitution in 1789, in Europe as well as in our own country, colored men were regarded as having “no rights which the white man was bound to respect.” Now, Sir, this is false,—terribly false. It is notorious that there were States of the Union, where, at the adoption of the Constitution, colored persons were free, and even in the enjoyment of the electoral franchise, while in England the Somerset case had already decided that there could be no distinction of persons on account of color, and Scotland, France, and Holland had all declared the same rule. Even Spain had spoken by the voice of some of her best children. So had Portugal. So also had Italy, and the Catholic Church. On this point there is no question. And yet this Chief Justice, whom you would honor with a marble bust, had the strange effrontery to declare that at that time, as well abroad as at home, colored men were regarded as having “no rights which the white man was bound to respect”; and this he said to justify a brutal interpretation of the Constitution. Search judicial annals and you find no perversion of truth more flagrant.
Sir, it is not fit, it is not decent, that such a person should be commemorated by a vote of Congress,—especially at this time, when Liberty is at last recognized. If you have money to commemorate the dead, let it be in honor of the defenders of Liberty gathered to their fathers. There was John Quincy Adams. There, also, was Joshua R. Giddings. Let their busts be placed in the Court-Room, where with marble lips they can plead always for human rights, teaching judge and advocate the glory and the beauty of justice. Then will you do something not entirely unworthy of a regenerated land, something to be an example for future times, something to help fix the standard of history.
I know that in the Court-Room there are busts of the other Chief Justices. Very well. So in the Hall of the Doges, at Venice, there are pictures of all who filled that high office in unbroken succession, with the exception of Marino Falieri, who, although as venerable from years as Taney, was deemed unworthy of a place in the historic line. Where his picture should have been is a vacant space, testifying always to the justice of the Republic. Let such a vacant space in our Court-Room testify to the justice of our Republic, and may it speak in warning to every one who would betray Liberty!
The appropriation was vindicated by Mr. Trumbull, Mr. Reverdy Johnson, of Maryland, and Mr. Carlile, of West Virginia. It was opposed by Mr. Hale, of New Hampshire, Mr. Wilson, of Massachusetts, and Mr. Wade, of Ohio. Mr. Sumner then obtained the floor.
At last I have the floor again. I rose at once to reply to the Senator from Maryland [Mr. Johnson], when he made his objurgatory vindication of the proposed bust; but the floor was given to others. And now, as I look at the clock, I see that I can only begin what I have to say.
Again let me declare that I am sorry to be drawn into this debate. But they who seek to canonize one of the tools of Slavery are responsible. Taney shall not be recognized as a saint by any vote of Congress, if I can help it.
The Senator has a bad cause, and I inferred that he thought so himself,—first, because he talked so loud, and, secondly, because he became personal. A good cause would have been discussed in softer voice, and without personality. The Senator becomes personal easily. In the sweep of his movement, he brushed against my distinguished friend from New Hampshire [Mr. Hale], and also against my colleague and myself, simply because we could not join in this oblation to the author of the Dred Scott decision. The Senator from New Hampshire and my colleague have already answered him in proper terms. But I say for my colleague what he could not say for himself. He can bear gibes for not being a lawyer. He is not, like the Senator, a counsellor of the Supreme Court of the United States, but in all the duties of Senator he is in every respect the equal of the Senator from Maryland.——
Here Mr. Sumner was arrested by the Vice-President announcing that the hour fixed for a recess had arrived. The consideration of the bill was never resumed, and it expired with the session. Had opportunity occurred, Mr. Sumner would have continued:—
I have already said that Chief Justice Taney, in pronouncing that fatal judgment, falsified history. Judicial error is aggravated by such a falsification; and here the evidence is complete. His statement is precise, that for more than a century before the Declaration of Independence and the adoption of our Constitution people of the African race had “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations”; and this unhappy asseveration culminates in the words, “and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” And he adds: “This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals, as well as in politics, which no one thought of disputing or supposed to be open to dispute.” This is plain, though failing in the precision which belongs to the bench. But how untrue! All this naturally ends in shutting out the unhappy African from citizenship, involving the right to sue in the courts of the United States.
Unhappily, at that time Slavery prevailed extensively; but it had already received many blows, while the rights of the African were asserted not only by individuals, but by communities. Nay, more, from the beginning, the axiom of the Chief Justice, which, according to him, no one supposed open to dispute, had been assailed. Great authorities, great names, together with legislative and judicial bodies, stood forth against it.
There is Massachusetts, my own honored Commonwealth. From the earliest days of her history Slavery found little favor with her Legislature or her people. As early as 1645 the Legislature sent back two negroes brought from Guinea in a Boston ship, and the next year repeated its testimony against “the heinous and crying sin of man-stealing.”[93] In the same spirit, John Eliot, the apostle to the Indians, presented a memorial to the Governor and Council against selling captured Indians into slavery, saying, “To sell souls for money seemeth to me a dangerous merchandise.”[94] In 1701, Boston desired her Representatives in the General Court “to promote the encouraging the bringing of white servants, and to put a period to negroes being slaves.”[95] At the same time Chief Justice Sewall, of a family constant in warfare with Slavery, published a tract entitled “The Selling of Joseph a Memorial,” where he maintained that “originally and naturally there is no such thing as Slavery,” and that “these Ethiopians, as black as they are, seeing they are the sons and daughters of the first Adam, the brethren and sisters of the last Adam, and the offspring of God, they ought to be treated with a respect agreeable.”[96] In this spirit, the judicature of Massachusetts, in 1770, made haste against Slavery, by declaring the principle of Emancipation,—according to one authority, two years before the famous Somerset case in England.[97] This was followed, in 1780, by the Declaration of Rights, announcing that “all men are born free and equal,” which the same judicature interpreted as abolishing Slavery; so that at the adoption of the National Constitution Slavery did not exist in Massachusetts. That this undoubted history should have been disregarded by the Chief Justice is more astonishing, when it is considered that the conclusion belonged to the jurisprudence of our country. In a case well known to all interested in the history of Slavery, and especially to lawyers, decided in 1836, Chief Justice Shaw said: “How, or by what act particularly, Slavery was abolished in Massachusetts, whether by the adoption of the opinion in Somerset’s case, as a declaration and modification of the Common Law, or by the Declaration of Independence, or by the [State] Constitution of 1780, it is not now very easy to determine; and it is rather a matter of curiosity than of utility, it being agreed on all hands, that, if not abolished before, it was so by the Declaration of Rights.”[98] And yet even these words are forgotten in this fatal decision.
Here we must mention Rhode Island with honor. This State, planted by Roger Williams, may point with pride to her early record on Slavery. At a General Court held May 19, 1652, after setting forth, that “there is a common course practised amongst Englishmen to buy negroes, to that end they may have them for service or slaves forever,” it was ordered, “that no black mankind, or white, being forced by covenant bond, or otherwise, to serve any man or his assigns longer than ten years, or until they come to be twenty-four years of age, if they be taken in under fourteen, from the time of their coming within the liberties of this colony.”[99] If Rhode Island afterwards departed from this law, it existed, nevertheless, as an example not to be forgotten by the Chief Justice. Nor should he have forgotten that Pennsylvania, as early as 1712, passed an act to prevent the increase of slaves, although it was annulled by the Crown,[100] and that this same State enacted, March 1, 1780, that all persons born in that State after that day were free at the age of twenty-eight years.[101] But all this is inconsistent with the famous “axiom” on which the Chief Justice founded his fearful superstructure.
I need go no further than the dissenting opinion of Mr. Justice Curtis, on this very occasion, to find, that, “at the time of the ratification of the Articles of Confederation, all free native-born inhabitants of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors on equal terms with other citizens.”[102] Was all this forgotten by the Chief Justice? But how could he forget the decision of the admirable Judge Gaston, of North Carolina, who, describing the State Constitution of 1776, says, that it “extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution”?[103]
Strangely, he forgets also an important passage of history, being nothing less than the point-blank refusal of the Continental Congress to insert the word “white” in the Articles of Confederation. The question came up June 25, 1778, on these words: “The Free Inhabitants of each of these States (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of free citizens in the several States.” The delegates from South Carolina, acting in the spirit of the Dred Scott decision, moved, in behalf of their State, to limit this guaranty to “free white inhabitants.” On the question of inserting the word “white,” eleven States voted, two in favor of the insertion, one was divided, and eight were against it. South Carolina, not disheartened, made another attempt, by moving to add, after the words “the several States,” the further clause, “according to the law of such States respectively for the government of their own free white inhabitants,” thus seeking again to limit the operation of this guaranty. This proposition was also voted down by the same decisive majority of eight to three.[104] Such was the authoritative testimony of our fathers. And in harmony with this action was the Resolution for the Temporary Government of the Western Territory “ceded or to be ceded by individual States to the United States,” dated April 23, 1784, and drawn by Jefferson, and also the famous Ordinance for the Government of the Northwestern Territory, drawn by Nathan Dane, of Massachusetts, adopted by the Confederation July 13, 1787, in both of which the voters were without distinction of color.
Still more incomprehensible is the assertion of the Chief Justice, when we glance at the political literature of our country. Not only in Massachusetts, but elsewhere, the “axiom” of the Chief Justice, “which no one thought of disputing, or supposed to be open to dispute,” was denied. Nobody did this in more energetic terms than General Oglethorpe, the founder of Georgia, who, in a letter to Granville Sharp, wrote, under date of October 13, 1776: “My friends and I settled the colony of Georgia, and by charter were established trustees, to make laws, &c. We determined not to suffer Slavery there.… We would not suffer Slavery (which is against the Gospel, as well as the fundamental law of England) to be authorized under our authority; we refused, as trustees, to make a law permitting such a horrid crime.”[105] In the same spirit, John Wesley, the founder of Methodism, who had witnessed the workings of Slavery on our continent and in the West Indies, declared “American Slavery the vilest that ever saw the sun,” and the “execrable sum of all villanies.” “Men-buyers” he stigmatizes as “exactly on a level with men-stealers,” the slaveholder as “partaker with a thief, and not a jot honester,” and the means whereby slaves are procured as “nothing near so innocent as picking of pockets, housebreaking, or robbery upon the highway.”[106] So also spoke James Otis, in his famous pamphlet entitled “The Rights of the British Colonists Asserted and Proved,” first published in 1764, and reprinted in London, when he said: “The Colonists are, by the Law of Nature, free-born, as, indeed, all men are, white or black.… Does it follow that it is right to enslave a man because he is black? Will short curled hair, like wool, instead of Christian hair, as it is called by those whose hearts are as hard as the nether millstone, help the argument? Can any logical inference in favor of Slavery be drawn from a flat nose, a long or a short face?”[107] And so spoke Benjamin Rush, the patriot physician of Philadelphia, in “An Address to the Inhabitants of the British Settlements on the Slavery of the Negroes in America,” where Slavery is exhibited as “repugnant to the genius of Christianity” and inconsistent with “the justice and goodness of the Supreme Being,” and “a Christian slave” is called “a contradiction in terms.”[108] To these testimonies add the familiar words of statesmen, especially of Patrick Henry, “It is a debt that we owe to the purity of our religion, to show that it is at variance with that law that warrants Slavery,”[109]—and of Jefferson, in that memorable utterance, prompted by Slavery, “I tremble for my country, when I reflect that God is just, that His justice cannot sleep forever.”[110] All these sayings, directly repellent to the allegation of the Chief Justice, have often been cited in public speech, and most of them appear in a work entitled “Slavery and Antislavery,” by that devoted Abolitionist, William Goodell, published several years before the opinion of the Chief Justice.
Forgetting laws, judicial decisions, history, and political literature, it was easy for the Chief Justice to forget how the religious sects of the country testified for the rights of the African, sometimes by individuals, and sometimes by corporate acts. Here the Quakers took the lead. As far back as 1688, a small body of German Quakers at Germantown, Pennsylvania, presented a protest to the Yearly Meeting against “buying, selling, and holding men in slavery,”[111] which was followed in 1696 by formal advice from this body that the members should “be careful not to encourage the bringing in of any more negroes, and that such that have negroes be careful of them.”[112] One of their number, George Keith, denounced Slavery with especial vigor, as “contrary to the religion of Christ, the rights of man, and sound reason and policy.”[113] At the beginning of the last century the Quakers of New England were agitated. In 1716, they sent forth a declaration from Nantucket, that “it is not agreeable to truth for Friends to purchase slaves and keep them term of life;”[114] and in 1730, Elihu Coleman, of Nantucket, wrote a tract in reprobation of Slavery as “anti-Christian,” and “very opposite both to Grace and Nature.”[115] In 1729, at Philadelphia, Ralph Sandiford exposed it in a pamphlet entitled “The Mystery of Iniquity”; and in 1737, Benjamin Lay gave to the world his work with the expressive title, “All Slave-Keepers, that keep the Innocent in Bondage, Apostates,”—and this was printed by Benjamin Franklin.[116] Then came the extraordinary labors of John Woolman, who, from 1746 to 1768, travelled through the Middle and Southern Colonies, an avowed Abolitionist, testifying against Slavery,—and of Anthony Benezet, who, by various writings, and by gratuitous instruction of negroes at an evening school, showed his sense of their common humanity. Meanwhile at their Yearly Meetings Slavery was condemned. In 1754, there was a recommendation “to advise and deal with such as engage” in the traffic, with the declared desire to guard against “promoting the bondage of such unhappy people.”[117] In 1776, it was declared “that the owners of slaves who refused to execute proper instruments for giving them their freedom were to be disowned.”[118] There are also reports of meetings,—in Rhode Island, in 1717, 1727, 1760, 1769, and thence, nearly every year, to 1787,—in New York, previous to 1759, and in 1767, 1771, 1772, 1774, 1775, 1776, 1777, 1781, 1782, 1784, 1785, 1787,—and in Virginia, in 1757, 1764, 1766, 1767, 1768, 1773, 1780, and thence annually, with but one intermission, to 1787,—where the rights of the African were recognized, and in most of them Slavery was condemned.[119] The meeting of 1782, in Rhode Island, spoke of “that iniquitous practice of holding or dealing with mankind as slaves.”[120] The meeting of 1776, in New York, refused “to employ or accept the services in the church, or receive the collections,” of those “who continue these poor people in bondage.”[121] The meeting of 1773, in Virginia, earnestly recommended manumissions, and quoted the words of the Prophet, “The people of the land have used oppression and exercised robbery.”[122] These are only illustrations of the extent to which the pretension of the Chief Justice was disowned.
More tardily, but with equal force, the Methodists declared against Slavery, speaking by such great preachers as George Whitefield and John Wesley. From the historian Hildreth, whose work appeared some time before the Dred Scott decision, we learn that the Methodist Episcopal Church, just before the adoption of the Constitution, disqualified slaveholders from being members, and that Coke, the first bishop, was exceedingly jealous on this subject, although, unhappily, the rule was afterwards relaxed.[123] The Presbyterians of the United Synod of New York and Philadelphia, in 1787, proposed nothing less than “to procure eventually the final Abolition of Slavery in America.”[124] The Baptists of Virginia, in 1789, declared Slavery “a violent deprivation of the rights of Nature, and inconsistent with republican government.”[125] The Congregationalists of New England testified most brilliantly by the celebrated theologian, Samuel Hopkins, who brought his church at Newport to declare “the slave-trade and the slavery of the Africans, as it has taken place among us, is a gross violation of the righteousness and benevolence which are so much inculcated in the Gospel, and therefore we will not tolerate it in this church.”[126] Already, in 1776, he had put forth a tract, showing it to be the duty and interest of the American Colonies to emancipate all their African slaves, and declaring that Slavery is “in every instance wrong, unrighteousness, and oppression, a very great and crying sin, there being nothing of the kind equal to it on the face of the earth”;[127] and in 1791, soon after the adoption of the National Constitution, the second Jonathan Edwards, a twice-honored name, joined in this testimony.[128] But all this was forgotten by the Chief Justice.
Nor did he remember how, before the National Constitution, the opposition to Slavery, and sympathy with the African, found expression in Abolition Societies. That of Pennsylvania was formed in 1775, and bore the honorable title, “Society for the Abolition of Slavery, the Relief of Free Negroes unlawfully held in Bondage, and for improving the African Race.” Its President at the very adoption of the Constitution was Benjamin Franklin, who, in this post, as elsewhere, bore his testimony that the African had rights which the white man was bound to respect. In 1785 began in New York a “Society for promoting the Manumission of Slaves, and protecting such of them as have been or may be liberated,” with John Jay as President, who, like Franklin, bore his testimony in this post, as elsewhere. In 1786, this distinguished individual drafted and signed a memorial to the Legislature of New York against Slavery, declaring that the men held as slaves by the laws of the State were free by the law of God; and this memorial was signed by Robert R. Livingston and Alexander Hamilton. In Maryland, the State of the Chief Justice, an Abolition Society was formed in 1789, and among its officers were Samuel Chase, a signer of the Declaration of Independence, and Luther Martin, a member of the Convention that framed the National Constitution. How active these societies were in petitioning Congress, shortly afterwards, belongs to the history of our country. A petition was headed by Franklin, which, after pleading for the rights of all, “without distinction of color,” entreated Congress that it would “step to the very verge of the power vested in it, for discouraging every species of traffic in the persons of our fellow-men.”[129] All this is found in so common a book as the history by William Goodell, already quoted; but the Chief Justice knew it not.
I call attention especially to Maryland, where, at the very date of the Constitution, and in the Legislature of the State, a generous voice was lifted against Slavery by no less a person than William Pinkney, so famous as diplomatist, Senator, and consummate lawyer. He did not spare words. According to him, Slavery was “iniquitous and most dishonorable,” “founded in a disgraceful traffic,” “its continuance as shameful as its origin,”—and he bravely declared, that, “by the eternal principles of natural justice, no master in the State has a right to hold his slave in bondage for a single hour.”[130] There also was the neighbor State of Delaware, where, at the beginning of our Revolution, under date of “Wilmington, Sixth Month 20th, 1775,” Daniel Byrnes put forth a broadside entitled “A Short Address to the English Colonies in North America,” where he exposes the wrong to the African, and inquires, “How can any have the confidence to put up their addresses to a God of impartial justice, and ask of Him success in a struggle for freedom, who at the same time are keeping others in a state of abject slavery?” But the Chief Justice, whose long life was passed near the home of Pinkney and of Byrnes, yet, in face of their unanswerable testimony, utters his strange extravagance.
Pass now to England, and here the falsification is kindred to that I have exposed with regard to our own country; and when we consider how English law, English history, and English literature are familiar to all educated lawyers among us, it is painful to observe the strange oblivion that overcame the Chief Justice with regard to their most brilliant chapters.
As early as 1569, in the reign of Queen Elizabeth, occurred the famous case of the slave brought from Russia, whose master sought to scourge him, when it was grandly resolved that “England was too pure an air for slaves to breathe in.”[131] This case was cited by the managers of the Commons, during the Long Parliament, on the impeachment of the judges for their proceedings against John Lilburn and John Wharton;[132] so that it took a conspicuous place, not only in English law, but also in political history. The same principle is also found in the Introduction to Holinshed’s Chronicles, written in 1586, where, describing England, it is said: “As for slaves and bondmen, we have none; nay, such is the privilege of our country, by the especial grace of God and bounty of our princes, that, if any come hither from other realms, so soon as they set foot on land they become so free of condition as their masters, whereby all note of servile bondage is utterly removed from them.”[133] Such was English law at that early day, according to great authorities. And in the reign of Charles the First the same humanity appeared in literature, when Fuller, describing “the Good Sea-Captain,” says, “In taking a prize, he most prizeth the men’s lives whom he takes, though some of them may chance to be negroes or savages”; and then, “But our captain counts the image of God nevertheless His image cut in ebony, as if done in ivory.”[134]
Other cases followed. In the time of Queen Anne, Lord Chief Justice Holt decided that “as soon as a negro comes into England he becomes free: one may be a villein in England, but not a slave”; and Mr. Justice Powell, his associate, said, “The law takes no notice of a negro,”[135]—in other words, recognizes no difference between him and a white man. As early as 1696, the same eminent Chief Justice, giving judgment in another case, said, “Trover will not lie for a negro.”[136] In 1706, in still another case, he said, “The Common Law takes no notice of negroes being different from other men.”[137] Lord Campbell, referring to some of these authorities, in his Life of the Chief Justice, says that he “was the first to lay down the doctrine, which was afterwards fully established in the case of Somerset the Negro, that the status of Slavery cannot exist in England, and that as soon as a slave breathes the air of England he is free.”[138] In 1762, Lord Northington, deciding a case in Chancery where the master claimed the benefit in donation to a negro, said: “As soon as a man puts foot on English ground he is free; a negro may maintain an action against his master for ill usage, and may have a Habeas Corpus, if restrained of his liberty.”[139] These cases were crowned by the immortal judgment of Lord Mansfield in the Somerset case, where, after elaborate argument at the bar, and protracted adjournments of the court, it was solemnly decided, in 1772, that Slavery “is so odious that nothing can be suffered to support it but positive law,”[140] and since no such law could be shown in England, Slavery was impossible there. This case, besides constituting an epoch in the history of Liberty, is memorable for the argument of that learned lawyer, Francis Hargrave, undoubtedly a masterpiece of the English bar. It has been cited so constantly since,[141] that nothing short of the waters of Lethe can account for the forgetfulness of the Chief Justice with regard to it.
Scotland, although having a different jurisprudence, asserted the same principle, side by side with England. Sir Thomas Craig, in his work on Feudal Law, one of the chief monuments of Scottish jurisprudence, testifies that Slavery was unknown in his country in the reign of Queen Elizabeth, when he also flourished, and that there were no laws to regulate it.[142] In 1778, the question was presented to the courts on the claim of a master over a negro and it was found, on appeal, “that the dominion assumed over this negro under the law of Jamaica, being unjust, could not be supported in this country to any extent; that, therefore, the defendant had no right to the negro’s service for any space of time, nor to send him out of the country against his consent.”[143]
The literature of both countries was in harmony with the jurisprudence. Here I give the words of two Englishmen, John Locke and Samuel Johnson, and two Scotchmen, Adam Smith and David Hume. John Locke portrayed Slavery as “so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an Englishman, much less a gentleman, should plead for it.”[144] Samuel Johnson exhibited “the planters of America” as “a race of mortals whom no other man wishes to resemble.”[145] Adam Smith wrote: “There is not a negro from the coast of Africa who does not, in respect to contempt of death and torture, possess a degree of magnanimity which the soul of his sordid master is too often scarce capable of conceiving.”[146] I quote David Hume at length, because his testimony is less known.
“The remains which are found of Domestic Slavery in the American colonies and among some European nations would never, surely, create a desire of rendering it more universal. The little humanity commonly observed in persons accustomed from their infancy to exercise so great authority over their fellow-creatures, and to trample upon human nature, were sufficient alone to disgust us with that unbounded dominion. Nor can a more probable reason be assigned for the severe, I might say barbarous, manners of ancient times than the practice of domestic slavery, by which every man of rank was rendered a petty tyrant, and educated amidst the flattery, submission, and low debasement of his slaves.”[147]
It is not improbable that this passage suggested to Colonel Mason, of Virginia, his condemnation of Slavery, as producing “the most pernicious effect on manners; every master of slaves is born a petty tyrant”;[148] and also the remarkable representation by Jefferson of the effect on “manners,” when he says, “The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submission on the other.”[149]
To this increasing testimony, where philosophy and literature unite, against the “axiom” of our Chief Justice, I add that of Granville Sharp, England’s earliest Abolitionist, who, more than any other person, was inspired to bear witness. Through his persistent purpose the case of Somerset was presented for hearing and pressed to judgment. The “axiom” was rejected by his life. In 1769, he wrote a tract entitled “A Representation of the Injustice and Dangerous Tendency of tolerating Slavery, or of admitting the least Claim of Private Property in the Persons of Men, in England.” Others followed. At the same time he was the watchful guardian of colored persons, offering them friendly protection.
Poetry and eloquence gave expression to the proud declaration of English law. Cowper’s “Task” appeared in 1785, with the exulting words,—
“Slaves cannot breathe in England; if their lungs
Receive our air, that moment they are free;
They touch our country and their shackles fall.”[150]
Sheridan took up the strain, and in one of his best utterances said:—
“Allegiance to that Power that gives us the forms of men commands us to maintain the rights of men; and never yet was this truth dismissed from the human heart,—never in any time, in any age,—never in any clime where rude man ever had any social feeling, or where corrupt refinement had subdued all feelings; never was this one unextinguishable truth destroyed from the heart of man, placed as it is in the core and centre of it by his Maker, that man was not made the property of man.”[151]
The same sentiment reappeared in the immortal outburst of Curran, which was the highest testimony to English law. And yet none of these are recognized by our Chief Justice.
In assertion of the general principle, France was not behind England. Schoell, in his “History of Treaties of Peace,” referring to this principle, says that in France “the beautiful maxim has always been followed, that whoever sets foot on French soil in Europe is free,—a maxim which, as we have said, the English tribunals did not adopt till 1772.”[152] Doubtless the general principle may be traced to an early period of French history. It was a frequent boast, and there are instances of its application. An edict of Louis the Tenth, called Le Hutin, or The Quarreller, in 1315, and another of Henry the Second, in 1553, are quoted as declaring the right of all men to liberty by the Law of Nature. At the siege of Metz, in 1552, the Spanish general of cavalry applied to the French commander for the return of a fugitive slave; but the latter replied, that the freedom acquired by the slave, according to the ancient and good custom of France, did not permit his rendition. In 1571, the same principle was maintained against an ambassador, although by the Law of Nations the persons an ambassador brings with him do not change their condition.[153]
These cases are mentioned in the “Causes Célèbres,” a well-known French collection of important trials; and the principle is attested by French authorities in jurisprudence, among which may be named Lebret, and also Loysel, whose works are found in the Library of Congress. I mention especially the “Institutes Coutumières” of Loysel, with the various notes of Laurière, Dupin, and Laboulaye, the last being the very loyal ally of our country, where this principle is stated and illustrated.[154]
The case of the slave at Metz deserves further mention. He had escaped from the besieging general, and taken with him a Spanish horse. The Duke of Guise, who commanded in the city, returned for answer to the application for his surrender, that he could not comply; that his hands were tied by the law of France from time immemorial; that, entirely free as it had been and is, it would not receive a slave: and so it would be, if he were the most barbarous and foreign in the world; having only set foot on the land of France, he is immediately at liberty and beyond all slavery and captivity, and is free as in his own country. The slave could not be returned; but the horse was sent back. The gay and lively Brantôme, who lived for pleasure, was struck by this incident, and, after repeating it “among other beautiful actions,” adds:—
“Truly, we must praise and admire that noble freedom, beautiful and Christian, in France, not to admit such servitudes and slaveries, too cruel, and which savor more of the Pagan and Turk than of the Christian.”[155]
Bodin, in his work on Government, which first appeared in French in 1576, must be quoted also. I copy from the old translation by Knolles, published in 1606.
“But in France, although there be some remembrance of old servitude, yet is it not lawful there to make any slave, or to buy any of others: insomuch that the slaves of strangers, so soon as they set their foot within France, become frank and free; as was by an old decree of the Court of Paris determined against an ambassador of Spain, who had brought a slave with him into France. And I remember that of late a Genoa merchant, having brought with him unto Toulouse a slave whom he had bought in Spain, the host of the house, understanding the matter, persuaded the slave to appeal unto his liberty. The matter being brought before the magistrates, the merchant was called for. The Attorney General out of the records showed certain ancient privileges given (as is said) unto them of Toulouse by Theodosius the Great, wherein he had granted, that slaves, so soon as they came into Toulouse, should be free: the merchant alleging for himself, that he had truly bought his slave in Spain, and so was afterward come to Toulouse, from thence to go home to Genoa, and so not to be bound to the laws of France. In the end, he requested, that, if they would needs deal so hardly with him as to set at liberty another man’s slave, yet they should at least restore unto him the money he cost him: whereunto the judges answered, that it was a matter to be considered of. In the mean time, the merchant, fearing lest he should lose both his dutiful slave and his money also, of himself set him at liberty, yet covenanting with him that he should serve him so long as he lived.”[156]
Nor was the principle restricted in application to persons of a white skin. The fugitive slave at Metz was a Moor or Turk. And there are other cases. In 1571, a merchant of Normandy brought to Bordeaux several Moors for sale; but the Parliament of Guienne, by a solemn decree, discharged them from slavery, “because France, the mother of Liberty, does not permit any slaves.” Another case occurred in the reign of Henry the Third, who, notwithstanding the remonstrances of the Spanish ambassador, refused to surrender two or three hundred “Turks, Moors, and Barbarians” who had escaped from a Spanish galley, but sent them all to Constantinople, each with a crown-piece in his pocket. These cases also appear in the authoritative pages to which I have already referred.[157]
That the African was no exception to the prevailing principle in its original vigor appears in subsequent cases. Unhappily, Slavery, exiled from France, found a home in the French colonies, and then succeeded in obtaining certain privileges even in France. By the Edict of 1716 and the supplementary Declaration of 1738, the rights of the master over his slave in France were recognized in certain cases. A slave escaping from the colonies was surrendered, and the officers of the Admiralty, and others whom it concerned, were enjoined to assist the master in his recovery; but where a master voluntarily brought or sent a slave into France, he was obliged first to obtain permission from the colonial governor, and register the same both at his place of residence and the port of disembarkation. With these considerable limitations the great rule of France prevailed. The master was not permitted to sell or exchange his slave in France; nor could he hold him, if he had failed to comply with the required formalities.[158]
In 1738, the liberty of a slave brought from San Domingo, and without compliance with prescribed formalities, was recognized after an elaborate hearing by the Admiralty. The general principle was presented with much force. One of the counsel exclaimed: “In France there are no slaves; and the custom is such that not only Frenchmen, but also foreigners entering a port of France, and crying, ‘France and Liberty!’ are out of the power of him who possessed them, who loses the purchase-money and the service of the slave, if the slave refuse to serve him.”[159] This case, which testifies against our Chief Justice, is found in a French collection of Celebrated Trials, and there is a full abstract of it in the notes to the case of Somerset in Howell’s edition of the State Trials.[160]
In 1776, there was a case, entitled “A Negro and a Negress who claimed their liberty against a Jew,”[161] where, after elaborate hearing, the Admiralty decreed the liberty of the claimants. Here also, while insisting upon failure to comply with the prescribed formalities, the original rule of France was eloquently declared. The counsel of the slaves began by saying: “Two slaves have had the happiness to land in France; they have heard that the air breathed here is that of Liberty.” Proceeding in his argument, the counsel refutes the Dred Scott decision. “Those,” said he, “who have thought to perceive a natural imprint of servitude on the countenances of certain people, instead of consulting reason, have taken for guide only the prejudices engendered by vanity and pride. Had they listened in silence to the powerful voice which cries at the bottom of the heart of all men, their own heart would have contradicted the error of the mind. They would then have recognized that daring to pretend that all men are not born free is to calumniate Nature.”[162]
In these cases there was an evident disposition to follow the teachings of Justice and Humanity. In another case, finally decided in 1759, it was suggested, that, even where the prescribed formalities had been complied with, the great rule of Liberty was not restricted, inasmuch as the Code Noir had never been registered in the Parliament of Paris. On appeal to this Parliament, the highest tribunal of France, the slave was ordered to be set free; upon which counsel, quoting the case, observed: “This decree attests that the jurisprudence of the Parliament of Paris is favorable to Liberty.”[163]
Thus far I have adduced only the jurisprudence of France. But French literature also cries out. The famous Encyclopædia, edited by those leaders of thought, Diderot and D’Alembert, in the middle of the last century, says at the end of an elaborate article on Slavery: “We conclude that Slavery, founded by force, by violence, and in certain climates by excess of servitude, cannot perpetuate itself in the universe but by the same means.”[164] Almost contemporaneously, Montesquieu, in his “Spirit of Laws,” exposed with admirable irony the wrongs of the African. “It is impossible,” says the philosopher, “that we should suppose that these people are men; because, if we supposed them men, people would begin to think that we ourselves were not Christians.”[165]
No Abolitionist of our day has denounced Slavery with more power, or vindicated the rights of the African with more sympathy, than Condorcet. In his notes to the “Pensées” of Pascal, which appeared in 1776, and gave such satisfaction to Voltaire, he steps aside to declare:—
“And let it not be said, that, in suppressing Slavery, Government would violate the property of the colonists. How could usage, or even a positive law, ever give a man a true right of property in the labor, in the liberty, in the entire being of another innocent man who had never consented to it? In declaring the negroes free, we should not take from the colonist his property,—we should prevent him from committing a crime; and the money paid for a crime has never given the right to commit it.”
Then, in reply to those who charge the negroes with vices, he says indignantly:—
“Make them free, and nearer Nature than yourselves, they will be superior to you.”[166]
So does the French philosopher testify against the Chief Justice.
Strange that the Chief Justice, forgetting the jurisprudence and literature of France, forgot also the brilliant testimony of Lafayette, who, communicating to Congress at Philadelphia the great news that the Treaty with England acknowledging our Independence was signed, wrote by the same packet, and under the same date, February 5, 1783,[167] to Washington, calling upon the commander of our armies to unite with him in the purchase of a small property, where they might make the experiment of emancipating the negroes, and of employing them simply as farm laborers. Although Washington failed to unite with his French friend, the appeal exists as testimony against the Chief Justice. There is also the letter of Lafayette to Hamilton, April 13, 1785, asking to be enrolled in what he calls the “Association against the Slavery of Negroes,” in New York, and declaring that he has ever been “partial to his brethren of that color.”[168] This should have been remembered by the Chief Justice.
From France I pass to Holland, including Belgium. Here an authority so familiar as Bynkershoek tells us that the Belgians, capturing Algerines, Tunisians, and Tripolitans, on the ocean or in the Mediterranean, are accustomed to sell them into Slavery in Spain; “for the Belgians themselves have no slaves except in Asia, Africa, and America.”[169] Like France, the country at home was free, and Slavery was exiled to the colonies. The efficacy of this rule is curiously attested by an incident recorded by Diderot, the Frenchman so eminent in science and literature, and of universal knowledge. It is in his Tour in Holland, made in 1773. It is well known that Peter of Russia, called the Great, served as a shipwright in the docks of Holland. Afterwards visiting the country as Czar, he was attracted by the apparatus for execution, but, not comprehending its operation clearly, he said, “It is only necessary to take one of my slaves, and try it on him.” It was represented, that, besides the revolting atrocity of this act, it would not be possible to allow it. “Ah! why not?” said the Czar. “Am I not master of my slave, and can I not dispose of him at my will?” “In your own country, perhaps,” replied the burgomaster, “but not here. Every slave who sets foot in Holland becomes free there, and belongs only to himself.”[170] This visit of the Czar was early in the last century, though recorded by Diderot later, and then Holland was already ranged with countries that would not tolerate Slavery; but the Chief Justice remembers not the testimony.
Spain also cries out against the Chief Justice. Her favorite monarch, Isabella, was aroused against the discoverer of the New World at the report that slaves from the Indies had been introduced into Spain with his sanction, and she exclaimed, “By what authority does Columbus venture thus to dispose of my subjects?” Instant proclamation was made by her order, that all who had Indian slaves in their possession, granted by the Admiral, should forthwith provide for their return to their own country, while the few held by the Crown were restored to freedom in like manner. Las Casas records, that, “so great was the Queen’s indignation at the Admiral’s misconduct in this particular, that nothing but the consideration of his great public services saved him from immediate disgrace.”[171] Whatever the legislation and jurisprudence of Spain, this historic incident must not be forgotten. It was the voice of the sovereign, and therefore, for the time, the voice of the nation.
There are other eminent Spaniards to be included in the cloud of witnesses, especially Las Casas, whose story I give on the authority of our own historian, just quoted, whose works were in every library of the country when the Chief Justice launched his decree: I mean my much valued friend, the late William H. Prescott. In his “History of the Conquest of Mexico” is a description of the good Bishop, who, to relieve the Indian natives from slavery in the islands of the West Indies, proposed the introduction of Africans, and in an evil hour his advice was followed. At a later period he regretted keenly the wrong he had done, since, to use his own words, “the same law applies equally to the Negro and the Indian.” Afterwards, at a hearing before the Emperor, Charles the Fifth, he denounced Slavery in words of fervid eloquence, worthy of any Abolitionist, saying: “The Christian religion is equal in its operation, and is accommodated to every nation on the globe. It robs no one of his freedom, violates none of his inherent rights, on the ground that he is a slave by nature, as pretended; and it well becomes your Majesty to banish so monstrous an oppression from your kingdoms in the beginning of your reign, that the Almighty may make it long and glorious.”[172] In an elaborate memorial prepared in 1542, the same upright churchman denounces Slavery, saying, “God forbids us to do evil that good may come of it”; and the historian adds, “The whole argument, which comprehends the sum of what has been since said more diffusely in defence of Abolition, is singularly acute and cogent.”[173] But the Chief Justice forgot all these things.
And he forgot also the dying testimony of Cortés, the conqueror of Mexico, who, in his testament, revealed his anxieties as a slave-master, in the following direction to his son: “It has long been a question, whether one can conscientiously hold property in Indian slaves. Since this point has not yet been determined, I enjoin it on my son Martin and his heirs, that they spare no pains to come to an exact knowledge of the truth, as a matter which deeply concerns the conscience of each of them, no less than mine.” The historian from whom I copy this passage adds: “The state of opinion in respect to the great question of Slavery in the sixteenth century, at the commencement of the system, bears some resemblance to that which exists in our time, when we may hope it is approaching its conclusion. Las Casas and the Dominicans of the former age, the Abolitionists of their day, thundered out their uncompromising invectives against the system, on the broad ground of natural equity and the rights of man.”[174] Thus in advance did the historian answer the Chief Justice.
Associated with Las Casas in lofty truth was the Dominican, Dominic Soto, the confessor of Charles the Fifth, and the oracle of the Council of Trent, to whom, it is said, that assembly was indebted for much of the precision, and even elegance, recognized in its doctrinal decrees. His Treatise on Justice and Law is not unknown to students of philosophy, and it has been commended by Sir James Mackintosh, who rejoices in bringing forward the remarkable testimony it furnishes against Slavery. “It is affirmed,” says the Dominican, “that the unhappy Ethiopians are by fraud or force carried away and sold as slaves. If this is true, neither those who have taken them, nor those who purchased them, nor those who hold them in bondage can ever have a quiet conscience, till they emancipate them, even if no compensation should be obtained.”[175] This testimony has not been left to slumber in the Latin text of the author. I take it from a favorite production in our own language. Not content with quoting it, Mackintosh adds: “As the work which contains this memorable condemnation of Man-Stealing and Slavery was the substance of lectures for many years delivered at Salamanca, Philosophy and Religion appear, by the hand of their faithful minister, to have thus smitten the monsters in their earliest infancy.”[176] But the Chief Justice ignored all this.
Nor is Portugal to be omitted in this catalogue; and here the testimony is from a familiar authority, being none other than the History of Brazil, by Robert Southey. In this elaborate work, the author, an English classic of the present century, dwells on the unsurpassed eloquence of the Father Vieyra, in the early settlement of Brazil, while he denounced Slavery. No modern Abolitionist has ever used stronger language. Born at Lisbon, in 1608, and dying at Bahia, in 1697, he was called by his countrymen “the last of the mediæval preachers,” and is the most celebrated of Portuguese divines. Thus he spoke: “Oh, what a market! a negro for a soul, and the soul the blacker of the two! ‘This negro shall be your slave for the few days that you may have to live, and your soul shall be my slave through all eternity, as long as God is God!’—this is the bargain which the Devil makes with you.” Then again the fierce orator said: “My brethren, if there be any who doubt upon this matter, here are the laws, here are the lawyers; let the question be asked.… Go to Turkey, go to Hell: for there can neither be Turk so beturked in Turkey, nor Devil so bedevilled in Hell, as to affirm that a free man may be a slave.… We ought to support ourselves with our own hands; for better is it to be supported by the sweat of one’s own brow than by another’s blood. O ye riches of Maranham! What if these mantles and cloaks were to be wrung? They would drop blood!”[177] Surely here is testimony worthy of memory; but our Chief Justice knew it not.
Nor has he regarded official acts by which Portugal at an early day set herself against Slavery. The years 1570, 1587, 1595, 1661, and 1680 were marked by Portuguese to secure the liberty of native Indians. At a later day, but anterior to our Constitution, the African began to feel the same recognition. On the 19th September, 1761, it was enacted, that “all black slaves who should henceforward come to the ports of the kingdom of Portugal and Algarve from Africa or America should be free”; and this was followed by royal order of the 2d January, 1767, extending “this beneficent measure to mulattoes of both sexes who were not mentioned in preceding laws.” Then came the law of 16th January, 1773, which determined that “the children of male and female slaves, who might be born in the kingdom of Portugal after the above date, should be free, and capable of holding office, honors, and dignities, without the stigma of freedmen, which the superstition of the Romans established in their customs, and which Christian union and civil society now render intolerable in the kingdom.” These important facts I have from the Portuguese Legation at Washington. Note, if you please, the dates; yet the Chief Justice knew nothing of this important and honorable testimony.
The evidence may well be closed with Italy and the Catholic Church. Surely Bancroft’s History of the United States should have taught the Chief Justice at least to hesitate. In his learned chapter on Slavery the historian records, that, “by the Venetian law, no slave might enter a Venetian ship, and to tread the deck of an argosy of Venice became the privilege and the evidence of freedom.” Then, again, the Chief Justice might have learned from him, that in the twelfth century Pope Alexander the Third became the guardian of the oppressed, and wrote: “But since Nature created all free, no one by condition of Nature was subjected to slavery”; and he might have learned also how even Pope Leo the Tenth, in the midst of his luxurious life, making his pontificate a carnival, declared that “not the Christian religion only, but Nature herself, cries out against the state of Slavery.”[178]
But how could our Chief Justice, belonging and faithful to the Roman Church, forget the testimony of that Church as presented by Balmés, the remarkable Spanish writer, in his work entitled “Protestantism and Catholicity compared in their Effects on the Civilization of Europe”? Here is found an eloquent vindication of the Church, which, according to its defender, rejected the assumptions of the Chief Justice. The famous bull against the slave-trade by Gregory the Sixteenth, in 1839, sets forth what was done to this end by Paul the Third in 1537, by Urban the Eighth in 1639, and by Benedict the Fourteenth in 1741, casting “the most severe censures upon those who venture to reduce the inhabitants of the East or West Indies into slavery, buy, sell, give, or exchange them, separate them from their wives and children, strip them of their property, take or send them into strange places, or deprive them of their liberty in any way, to retain them in slavery, or aid, counsel, succor, or favor those who do these things under any color or pretence whatever, or preach or teach that this is lawful, and, in fine, coöperate therewith in any way whatever.”[179] But, in face of this arraignment by successive pontiffs, where is the Chief Justice? Thus does his own Church testify against him.
Here I suspend the testimony, leaving several famous countries unvisited. But there is enough for conviction; nor is argument needed. The witnesses are before you, excellent and unanswerable, in long array,—witnesses from our own country, witnesses from England, witnesses from Scotland, witnesses from France, witnesses from Holland, witnesses from Spain, witnesses from Portugal, witnesses from Italy, witnesses from the Catholic Church, all rising up to testify against that “opinion” which the Chief Justice announces as “fixed and universal in the civilized portion of the white race,”—against that “axiom in morals as well as in politics” which he says “no one thought of disputing, or supposed to be open to dispute.” They rejected his “opinion”; they disputed his “axiom.” Did he forget? or, for the sake of Slavery, did he pervert judgment? But such forgetfulness was akin to such perversion. And when it is considered that this was to put Slavery in the National Constitution, it was nothing less than a criminal falsification; nor should ignorance be an excuse.
Plainly, the Chief Justice who could do this deserves no marble bust by vote of Congress. His comprehensive office was Justice; his special duty was Liberty. But these he sacrificed, making Law and Constitution hideous. The old maxim of Law cries out against him: Impius et crudelis judicandus est, qui Libertati non favet. Such is the terrible judgment. Again the Law speaks: Execrandus est, qui Libertati non favet: “Accursed is he who does not favor Liberty.” This is the ancient voice of the Law, older than Constitution and Declaration of Independence, which must not be disobeyed.
NO RECONSTRUCTION WITHOUT THE VOTES OF THE BLACKS.
Remarks in the Senate, on the Resolution recognizing the new State Government of Louisiana, February 24, 25, and 27, 1865.
February 18th, Mr. Trumbull, of Illinois, Chairman of the Committee on the Judiciary, reported the following resolution, which, at the request of Mr. Sumner, was read:—
“Resolved, &c., That the United States do hereby recognize the Government of the State of Louisiana, inaugurated under and by the Convention which assembled on the 6th day of April, A. D. 1864, at the city of New Orleans, as the legitimate Government of the said State, and entitled to the guaranties and all other rights of a State Government under the Constitution of the United States.”
The admission of the State, as here proposed, had the favor of President Lincoln. It was earnestly opposed by Mr. Sumner, as not republican in origin or form, and furnishing no security for the rights of colored persons.
February 23d, on motion of Mr. Trumbull, the Senate proceeded to consider the resolution, when Mr. Sumner moved the following substitute:—
“That neither the people nor the Legislature of any State, the people of which were declared to be in insurrection against the United States by the Proclamation of the President, dated August 16, 1861, shall hereafter elect Representatives or Senators to the Congress of the United States, until the President, by proclamation, shall have declared that armed hostility to the Government of the United States within such State has ceased, nor until the people of such State shall have adopted a Constitution of Government not repugnant to the Constitution and laws of the United States, nor until, by a law of Congress, such State shall have been declared to be entitled to representation in the Congress of the United States of America.”
This was lost,—Yeas 8, Nays 29.
February 24th, Mr. Lane, of Kansas, moved that the resolution be made the special order for the next day at one o’clock. In the debate on this motion the following colloquy occurred.
Mr. Sumner. If we are to make any special order for to-morrow, I think it should be the bill which the Senate has most maturely considered, and on which it is most prepared to vote, known as the Railroad Bill, in charge of my friend from Michigan [Mr. Chandler]. The Senator from Illinois [Mr. Trumbull] came forward with his measure——
Mr. Conness. Will my friend permit me—I know he will—to appeal to him not to waste the fifteen minutes we have left in discussing the order of business, but let us take a vote?…
Several Senators (to Mr. Sumner). Give up.
Mr. Sumner. Senators say, “Give up.” That is not my habit.
Mr. Conness. We know that. [Laughter.]
Mr. Lane (of Kansas). Will the Senator from Massachusetts permit me to withdraw my motion?
Mr. Sumner. If the motion is withdrawn, I have nothing further to say.
Mr. Lane. I withdraw the motion.
The motion to postpone was not pressed, and the resolution came up in regular order. After an elaborate speech against it by Mr. Powell, of Kentucky, Mr. Howard, of Michigan, obtained the floor, when his colleague, Mr. Chandler, moved to proceed with the bill to regulate commerce among the States, known as the Railroad Bill. In the debate that ensued, Mr. Sumner spoke of the latter bill as “a reality,” and called the resolution “a shadow.” Mr. Doolittle, of Wisconsin, vindicated the resolution as “the great measure of this Congress,” and said, “It is not for the Senator from Massachusetts, with all his boastful friendship for Freedom and free States, to join hands with the Senator from Kentucky, and undertake to prevent the recognition of the free State of Louisiana.” In reply, Mr. Sumner said:—
This measure, I say, Sir, is a shadow. So far as it is calculated to exercise any influence, it is to bring disaster. Sir, I do not stand here as a prophet, and I will not at this moment, on this incidental question, be carried into debate; but I warn the Senator from Wisconsin, as he loves Human Freedom, ay, Sir, as he represents a State dedicated to Freedom, to hesitate, before he throws his influence on the side of such a proposition, opening the way to an ominous future.
Sir, I am not disposed to go on, and yet there is one other remark of the Senator to which I must reply. The Senator insists constantly upon foisting an unconstitutional idea in the way of establishing Emancipation throughout this country. He says the vote of Louisiana is needed to the Constitutional Amendment. Sir, the vote of Louisiana is not needed; and when the Senator makes the assertion, he interposes an obstacle to the Amendment. Is he a friend to it? Why, then, interpose an obstacle by an untenable and erroneous interpretation of the Constitution? The Constitution declares that an Amendment shall become to all intents and purposes a part of the Constitution, when ratified by the Legislatures of three fourths of the States.
Mr. Doolittle. “When ratified by the Legislatures of three fourths of the several States.”
Mr. Sumner. Very well,—“when ratified by the Legislatures of three fourths of the several States”; but if no Legislatures exist in States, will the Senator make that an excuse for avoiding the establishment of the Amendment? I will not recognize the Rebellion to such extent; I will not recognize the independence of the Rebel States, as the Senator does. I insist, Sir, that these States shall not control the National Government at this moment, in this great period of our history, and thwart the establishment of human freedom throughout the land.
After remarks from other Senators, the motion to take up the Railroad Bill was lost,—Yeas 10, Nays 25. Mr. Henderson, of Missouri, made an elaborate speech in favor of the admission, claiming that its Constitution was republican in form, in the course of which the following colloquy occurred.
Mr. Henderson. The Senator from Kentucky thinks the Constitution of Louisiana is the offspring of military usurpation, but he does not say that the Constitution itself is antirepublican.
Mr. Sumner. I do.
Mr. Henderson. You do?
Mr. Sumner. Certainly.
Mr. Henderson. In what particular? Mr. President, I have been in the Senate for nearly four years, and I believe now candidly that the Rebellion is about at an end, and, if there were no other evidence of it, that evidence would be presented to-night in the close alliance and affiliation of my friend from Massachusetts and my friend from Kentucky. Truly, the lion and the lamb have lain down together.
Mr. Johnson (of Maryland). Who is the lion, and who is the lamb?
Mr. Henderson. That is for the gentlemen themselves to settle. [Laughter.] The Senator from Massachusetts says that these State Constitutions are not republican in form. Will he tell me in what respect?
Mr. Sumner. Because they do not follow out the principles of the Constitution of the United States.
Mr. Henderson. I should like to know in what particular. The answer is a very general one, indeed. He refuses, then, to specify. The Senator can answer more particularly hereafter, if he chooses. He says these Constitutions do not follow the Constitution of the United States. I have looked over them, and I find no objection to them.… The Senator from Massachusetts says the act of secession took the States out. In the name of sense, cannot the act of the loyal men bring them back?…
Mr. Sumner. Does the Senator refer to me as having ever said that the act of secession took a State out?
Mr. Henderson. I understand the Senator to claim that these States are in a territorial condition,—that they are not States,—that, by losing their State Governments in the act of secession, they lose their specific identity as States.
Mr. Sumner. I would rather the Senator should use my language than his own, when he undertakes to state my position. I have never said that any act of secession took a State out. I have always said just the contrary. No act of secession can take a State out of this Union. Whatever may be attempted, the State continues under the Constitution of the United States, subject to all its requirements and behests. The Government of the State is subverted by secession; the Senator does not recognize the existing Government as legal or constitutional, any more than I do. Where, then, is the difference between us? There is no Government which he or I recognize; but we do hold that the whole region, the whole territory, is under the Constitution, to be protected and governed by it.
Mr. Henderson. The Senator, then, admits that the States are in the Union. Now I ask him if we can restore the Union without restoring State Governments in the seceded States.
Mr. Sumner. That is the desire I have most at heart. I wish to restore State Governments in those States.
Mr. Henderson. Then I desire to ask the Senator, if the loyal men in one of those States acquiesce in the Constitution presented here, are they not entitled to govern the State under it?
Mr. Sumner. If the loyal men, white and black, recognize it, then it will be republican in form. Unless that is done, it will not be.
Mr. Henderson. Now, Mr. President, I desire to ask the Senator if the Congress of the United States can interfere with the right of suffrage in one of the American States of this Union. I put the question to him as a constitutional lawyer.
Mr. Sumner. I answer at once, as a constitutional lawyer, that at the present time, under the words of the Constitution of the United States, declaring that the United States shall guaranty to every State a republican form of government, it is the bounden duty of the United States by Act of Congress to guaranty complete freedom to every citizen, immunity from all oppression, and absolute equality before the law. No Government failing to guaranty these things can be recognized as republican in form, when the United States are called to enforce the constitutional guaranty.
In the course of the speech of Mr. Henderson, this further colloquy occurred.
Mr. Henderson. To secure national supremacy, you must have the aid of State authority. For legitimate State authority you must rely upon the loyal voters.
Mr. Sumner. There is where I agree precisely with the Senator; and I should like to hold him to it. He says the loyal men must form the Government, and we should recognize that Government; and yet he insists upon a mere oligarchy forming it, and an oligarchy of the skin.
Mr. Henderson. The Senator says he agrees with me in my position, but insists that I am in favor of an oligarchy. If I am in favor of an oligarchy, and he agrees with me, then he also wants an oligarchy. [Laughter.]
Mr. Sumner. The Senator plays upon words.
Mr. Henderson continued at length, answering various objections to the Louisiana State Government on account of irregularity in the proceedings. Upon his statement that the failure of the Rebels to vote did not harm the great principles of Republicanism, the following passage occurred.
Mr. Sumner. It was the failure of loyal citizens to vote that did the damage.
Mr. Henderson. I answer that by asking, What loyal men did General Banks prevent from voting?
Mr. Sumner. All the colored race.
At a late hour Mr. Henderson concluded, and the Senate adjourned.
February 25th, the Senate proceeded with the resolution, when Mr. Sumner sent to the Chair resolutions which he proposed to offer as a substitute, declaring the duty of the States to guaranty republican governments in the Rebel States on the basis of the Declaration of Independence,—being the next article in this volume.
Mr. Howard, of Michigan, made an elaborate speech against the resolution, and Mr. Reverdy Johnson, of Maryland, for it. The latter asked: “Are these States to be governed as provinces? That is the idea of the honorable member from Massachusetts.… Will the honorable member deny that it would be in the power of Massachusetts now to exclude the black? I suppose not; and yet, if by an Act of Congress you place it out of the power of the seceded States, when they come back, under the authority of that Act, to change the qualifications of electors, they will not come back as the equals of Massachusetts.” Then ensued a colloquy.
Mr. Sumner. Allow me to ask the Senator, whether, in his opinion, the Ordinance governing the Northwest Territory, prohibiting Slavery, and declared to be a perpetual compact, could be set aside by any one of the States formed out of the Territory now.
Mr. Johnson. I certainly think they can, except so far as rights are vested.
Mr. Sumner. The Senator, then, thinks Ohio can enslave a fellow-man?
Mr. Johnson. Just as much as Massachusetts can.
Mr. Sumner. Massachusetts cannot.
Mr. Johnson. Why not?
Mr. Sumner. Massachusetts cannot do an act of injustice.
Mr. Johnson. Oh, indeed! I did not know that. [Laughter.]
Mr. Sumner. The Senator ought to know it.
Mr. Johnson. I do not think that is in the Constitution.
Mr. Sumner. I beg the Senator’s pardon; it is in the Constitution.
Mr. Johnson. The United States Constitution, or your State Constitution?
Mr. Sumner. Yes, Sir,—in our State Constitution.
Mr. Johnson. But it is not in the constitution of your people. You sometimes do, or have done, acts of injustice. What I mean to say is this,—and I am sure the honorable member will not be able successfully to controvert it, certainly not by authority,—that there is no difference between the State of Massachusetts and any other State in the Union with reference to its State powers. That is what I mean to say.
Mr. Sumner. I mean to say that the State of Massachusetts has no power to do an act of wrong,—no power constitutionally, morally, politically, or in any way.
Mr. Johnson. What is an act of wrong? Who is to judge of it?
Mr. Sumner. To enslave a fellow-man.
Mr. Johnson. You had them there.
Mr. Sumner. Not since the Constitution.
Afterwards came the following question and answer.
Mr. Sumner. Does the Senator from Maryland, who now calls in question the validity of the Proclamation of Emancipation, question that the Supreme Court of the United States, with its present Chief Justice, would affirm the complete validity of that Proclamation everywhere within the Rebel States strictly according to its letter?
Mr. Johnson. If I am perfectly satisfied, as I am, that the Chief Justice is abundantly capable of filling the high office he has, I do not think he would; but whether he would or not does not settle the question, what the Court would do. He is but one of ten.
At the close of Mr. Johnson’s speech, Mr. Sumner offered the following proviso, to come at the end of the resolution:—
“Provided, That this shall not take effect, except upon the fundamental condition that within the State there shall be no denial of the electoral franchise, or of any other rights, on account of color or race, but all persons shall be equal before the law. And the Legislature of the State, by a solemn public act, shall declare the assent of the State to this fundamental condition, and shall transmit to the President of the United States an authentic copy of such assent, whenever the same shall be adopted; upon the receipt whereof, he shall, by proclamation, announce the fact; whereupon, without any further proceedings on the part of Congress, this joint resolution shall take effect.”
Mr. Sumner remarked, that he desired to call attention to the precedent on which this proviso was modelled, and he was induced to do so from the very elaborate way in which Mr. Johnson had seemed to anticipate it. He has announced that it would be futile; but those who preceded us did not think so; and Mr. Sumner then read the resolution for the admission of Missouri into the Union on a certain condition, where is a proviso, as he insisted, similar in character.
Mr. Henderson moved to amend the proviso by inserting after the word “race” the words “or sex.” Meanwhile occurred a desultory debate, in which the proviso was opposed by Mr. Henderson and Mr. Johnson,—also by Mr. Pomeroy, of Kansas. The latter said: “I usually vote for everything that the Senator from Massachusetts brings forward on the Antislavery question; but I am opposed to this amendment,—in the first place, because I do not suppose that we have the right to say what shall be the qualifications of voters in any State in the Union.… I shall vote against all amendments that look like dictation on the part of Congress to any State, whether they will let the right of suffrage be enjoyed by a whole or a part of the people.”
After some time, Mr. Wade, of Ohio, remarked, that it had “got now to be pretty late in the evening,” and he moved that the resolution be postponed till the first Monday in December next. While this was pending, Mr. Wilson, of Massachusetts, moved an adjournment, which was lost,—Yeas 11, Nays not counted. After debate, the question was put on the motion of Mr. Wade, which was lost,—Yeas 12, Nays 17. Mr. Howard, of Michigan, then moved an adjournment, which was lost,—Yeas 12, Nays 19. Mr. Howard then moved that the whole subject be laid on the table, which was lost,—Yeas 12, Nays 18.
Mr. Sumner. I agree with the Senator from Michigan in the impropriety of pressing a measure of this importance. Perhaps it is the most important measure we have had before us. I shall regard its passage as a national calamity. It will be the political Bull Run of this Administration, sacrificing a great cause and the great destinies of the Republic. I will not go into debate at this time. I think the Senate is not in a condition to vote finally upon it. There are many who would unquestionably like to record their names upon it who are not here. We ought to give them an opportunity. We ought also to give an opportunity for further discussion. It never has been the habit of the Senate, except in those days which we ought not to imitate,——
Mr. Foster (of Connecticut). Will the honorable Senator allow me to ask him a question?
Mr. Sumner. Certainly.
Mr. Foster. I will ask the honorable Senator if he is not fully prepared to vote on the question.
Mr. Sumner. I certainly am prepared to vote on it.
Mr. Foster. I will merely say I am.
Mr. Sumner. … I think, on his account, it would be well that the question should be postponed for another day. It is never too late to mend; and it is not impossible that even the Senator, coming from New England, representing, as I doubt not he does, liberal ideas, devoted as he must be to the cause of Human Freedom and of his country, may think there is something in this question to justify the most mature consideration,—something on which the Senate ought to deliberate carefully, without rushing precipitately to a vote. Sir, this question ought not to be closed to-night, and I therefore move an adjournment; and on that I ask for the yeas and nays.
The motion was lost,—Yeas 11, Nays 18.
Mr. Trumbull then appealed for a vote, saying: “The Senator from Massachusetts has fought it day after day to prevent it coming up; and when a large majority of the Senate has overruled him time and again, and decided that it should come up, he stands here, at half after ten o’clock on Saturday night, making dilatory motions.” He also protested against what he called “manifestations of a determination to browbeat the Senate on the part of a minority.” Mr. Sumner followed.
The Senator from Illinois draws upon his imagination, which, on this occasion, is peculiarly lively. I know not that anybody has undertaken to browbeat. Certainly nobody on the side with which I am associated has done any such thing, or, I believe, imagined doing it.
Mr. Trumbull. I heard it said that there should be no vote to-night.
Mr. Sumner. Well, Sir, is that browbeating?
Mr. Trumbull. I think it is undertaking to decide for the Senate.
Mr. Sumner. Is that browbeating? No, Sir; it is only undertaking to decide the conduct of an individual Senator with regard to an important public measure. The question between the Senator from Illinois and myself is simply this: he wishes to pass the measure, and I do not wish to pass it. He thinks the measure innocent; I think it dangerous, and, thinking it dangerous, I am justified in opposing it, and in employing all the means to be found in our arsenal. But, Sir, I mean to employ them properly and in a parliamentary way. In no other way can I act in this Chamber.
The Senator is entirely mistaken, if he supposes that this measure can be passed to-night. I tell him it cannot. Parliamentary Law is against him; and the importance of the question justifies a resort to every instrument that Parliamentary Law supplies. The Senator knows it well. I need not even suggest it.
And now, Sir, I have to counsel the Senator,—perhaps he would say that I am taking too great a liberty, and even dictating,—but I would first advise the Senator to look at the clock. He will see that on this evening of Saturday it is twenty-five minutes of eleven,—that it is approaching Sunday. Then let him remember that we have been here all day, and ask himself whether, all things considered, it is advisable to press such a revolutionary measure after this protracted session, and at this late hour. I think his better judgment will come to the conclusion that it is not. At any rate, should he not come to that conclusion, I think he will make a mistake, and all his efforts will be fruitless. There is a certain character of Antiquity who was found sowing salt in the sand by the sea-shore, and ploughing it in. The Senator will be engaged in an occupation just about as profitable.
Mr. Davis, of Kentucky, then moved a call of the Senate, which being ruled out of order, as never entertained by the Senate, Mr. Sumner moved an adjournment, which was lost,—Yeas 8, Nays 19. In the desultory debate that ensued, Mr. Doolittle, of Wisconsin, criticized Mr. Sumner, who replied. Mr. Hendricks, of Indiana, followed, and, in the course of his remarks, said: “The question is, What is to be done with the four million negroes, when they are set free? There are Senators upon the Republican side who feel that it is a very troublesome question. That is the trouble here to-night.… The Senator from Massachusetts is determined that none of these States shall ever be heard in the Halls of Congress, until the men who speak from those States speak the voice of the negroes as well as of the white men. Other Senators say that shall not be. We Democrats are a unit upon that question.” On motion of Mr. Lane, of Kansas, the Senate adjourned shortly before midnight, leaving the resolution pending.
February 27th, the resolution came up in regular order, when Mr. Sherman moved to proceed with the Internal Revenue Bill, and then called attention to the Indian Appropriation Bill, the Civil Appropriation Bill, the Tariff Bill, also the Army and Navy Appropriation Bills, all of which must be considered before March 4th, when the session closed. In the debate that followed, Mr. Sumner said:—
Mr. President,—I remember that good fortune last summer threw me in the path of a distinguished gentleman just returned from Louisiana. I think he had been present at the sittings of the Convention whose work finds such an advocate in my friend from Illinois; at any rate, he had been in New Orleans at the time, in the discharge of important public duties. In reply to an inquiry with regard to that Convention, he said compendiously, that it was “nothing but a stupendous hoax,”—yes, Sir, nothing but a stupendous hoax, and the product of that Convention——
Here Mr. Sumner was called to order by Mr. Sherman, for discussing the merits of the measure, when only the order of business was in question. He was also interrupted by Mr. Grimes, of Iowa, who said, that, if the Senate would give him a committee, he would show fraudulent voting.
Mr. Sumner. I doubt not that my friend from Iowa is right; but I am aware that it is not proper to discuss the merits of the question on this preliminary motion, and I shall not. I was simply characterizing it, and I was going on to say that in my opinion the resolution the Senator from Illinois so earnestly presses upon the Senate, when we consider its origin and character, is itself very little different from “a stupendous hoax.” I say nothing about the Convention, for I was not there, I did not see it. On that point I simply cite the testimony of another. But the resolution of the Senator is before us; we are familiar with its nature. Every moment gives new glimpses of the violence and fraud with which it is associated. Perhaps the expression I have quoted is hardly grave enough in speaking of such a matter, where, in forming the Constitution of a State, military power and injustice to a whole race have been enlisted in defiance of the self-evident truths of the Declaration of Independence. The United States are bound by the Constitution to “guaranty to every State in this Union a republican form of government.” Being called to perform this guaranty, you are asked to recognize an oligarchy of the skin, and on this very question the Senate is now called to vote.
The pretended State Government in Louisiana is utterly indefensible, whether you look at its origin or its character. To describe it, I must use plain language. It is a mere seven-month’ abortion, begotten by the bayonet in criminal conjunction with the spirit of caste, and born before its time, rickety, unformed, unfinished,—whose continued existence will be a burden, a reproach, and a wrong. That is the whole case; and yet the Senator from Illinois now presses it upon the Senate, to the exclusion of the important public business of the country. For instance,——
Here Mr. Sherman insisted on confining the debate to the pending motion. The vote was then taken, and resulted,—Yeas 34, Nays 12; so the resolution for the admission of Louisiana was postponed, never to be resumed.
During the next Congress, Mr. Sumner urged a bill for the organization of Louisiana, with safeguards for Equal Rights, including suffrage without distinction of color; but the Senate was not inclined to consider it.
The failure of the Louisiana resolution attracted attention at the time. Some journals spoke of Mr. Sumner’s course with severity; others were rejoiced at the result. The New York Herald said:—
“The factious opposition of Mr. Sumner has probably defeated the recognition of the new government of Louisiana by the Senate at the present session, … although probably two thirds of the Senate are in favor of recognition.”
One journal said, in figurative language, that Mr. Sumner had “kicked the pet scheme of the President down the marble steps of the Senate Chamber,” and that, as a consequence, the intimate relations which he had sustained with the President must cease.
President Lincoln was too good a man to be influenced by an honest opposition on political grounds. A few days later, Mr. Sumner received from him the following note.
“Executive Mansion, Washington, March 5, 1865.
“Hon. C. Sumner.
“My dear Sir,—I should be pleased for you to accompany us to-morrow evening, at ten o’clock, on a visit of half an hour to the Inaugural Ball. I enclose a ticket. Our carriage will call for you at half past nine.
“Yours truly,
“A. Lincoln.”
At the appointed time the carriage was at Mr. Sumner’s lodgings. During the ball he was with the Presidential party, which gave occasion to comment; the New York Herald remarking, “It was presumed that the President had indorsed his Reconstruction theories.” There is reason to believe that he had not; but he recognized the right of Mr. Sumner to his own individual judgment.
The following extract from the letter of a newspaper correspondent at Washington illustrates the course of the President towards Mr. Sumner.
“Mrs. Lincoln went down the Potomac this morning for City Point and Richmond, escorted by Mr. Sumner, who remains in Washington to exert his influence in the right direction in closing up the war. Nor let any man suppose that Mr. Sumner’s influence is slight over this Administration, when Congress is in session. I know of no man who has more. The President disagrees entirely with Mr. Sumner in his views respecting Reconstruction. He was almost indignant at the Senator’s course towards Louisiana, adverting to it over and over again in the presence of strangers. But still he respects Mr. Sumner, confers with him, and perhaps fears him. Besides, the Senator has great influence with Mr. Stanton and Mr. Welles. Mr. Sumner is a clever diplomatist, and has always been friendly with Mr. Lincoln. So long as ‘peace negotiations’ are talked of, Mr. Sumner will not leave Washington but for a day or two, I presume.”
The effort of Mr. Sumner on the Louisiana question found a warm and cordial response, as amply appears from letters at the time.
Wendell Phillips wrote from Boston:—
“Though I have but half an hour at home, I cannot let it pass without thanking you for your gallant fight against Louisiana. Your tireless patience in carrying in detail one point after another of the enemy’s defences, all winter long, has not passed without our grateful admiration; the masterly strategy of the last week is the grand and fitting climax,—all the more grateful, because we had been told you felt the resistance so hopeless as to fear you must succumb to the dictation of the Cabinet. We have watched your white plume with fearful delight. Could we only hope this defeat would be final, our joy would be unmixed. At any rate, the effort will bear fruit thousand-fold.”
Hon. Francis W. Bird wrote from Boston:—
“Let me thank you most heartily for your gallant fight against Louisiana. I hope it will be powerful to the end. I can see it was against fearful odds, and all the more splendid.”
Dr. Estes Howe wrote from Cambridge:—
“I don’t trouble you much with letters, but I must thank and congratulate you most warmly on your splendid fight and great victory in the Bogus Louisiana struggle. Some weak-kneed Republicans who rejoice at the result did not know at first whether to rejoice or not, when they saw what tools you had to work with; but your true friends, who have their eyes open, are full of joy, and all the rest will fall into line as soon as the great truth becomes apparent to them.”
Hon. Edward L. Pierce wrote from Boston:—
“God bless you a thousand times for your indomitable resistance to the admission of Louisiana with her caste system! This afternoon some forty gentlemen dined at Bird’s room, and all, nemine dissentiente, approved it, and with full praise.”
Joel P. Bishop, the learned law-writer, and author of a much used work on Criminal Law, wrote from Boston:—
“Blessings on you! You have done in this Louisiana matter an excellent work, for which some of your friends thank you less now than they will by-and-by.”
Hon. Charles W. Slack, an Antislavery journalist, wrote from Boston:—
“Thanks!—hearty, cordial, continued thanks!—for your brave and persistent opposition to Louisiana.
“There is a very much larger share of the community who will sustain you than at first thought may be supposed.
“The idea of negro suffrage in the disloyal States grows daily in favor and advocacy among business men.”
William S. Robinson, the journalist, known as “Warrington,” wrote:—
“I cannot sit down to my work this morning, albeit pressed for time, without giving you the homage of my sincere admiration and respect for killing Louisiana, at least pro tempore. Thanks! thanks! thanks!”
General William L. Burt, afterwards Postmaster of Boston, who had served in Louisiana during the Rebellion, wrote:—
“I congratulate you upon your defeat of the Louisiana Bill. Your action was not only justifiable, but commendable,—doubly so in view of the fact of your concession upon the Reconstruction Bill.… The complaints made by the Administration, or its friends, of the means you took to prevent the fraud upon you and the people, are a compliment, first, to your sagacity, and, secondly, to your skill and ability. You will be vindicated a hundred times before December.”
Colonel Albert J. Wright, having great influence in the local politics of Boston, wrote:—
“Something must be done in Boston. Some of your admiring friends here, who at first, in the midst of the muddle of telegraphic despatches, had some misgivings in regard to your action on ‘Reconstruction’ questions before the Senate, have had their eyes opened, and now feel that you have rendered a great service to the country in battling manfully for the rights of humanity,—that you have done right, and saved us from a new disaster. Of course we must have a great meeting at the Music Hall, and give you an ovation: nothing less will satisfy us.”
F. B. Sanborn wrote from Concord, Massachusetts:—
“Allow me to add my congratulations to those of your other friends on your successful opposition to the Louisiana scheme of Reconstruction. I look upon you as the real destroyer of that fine web of intrigue and absurdity so carefully spun.”
Henry O. Stone wrote from Framingham, Massachusetts:—
“Although an humble and obscure individual, I cannot refrain from thanking you for your persistent resistance to the admission into Congress of the Louisiana claimants. I feel as if you ought to have personal acknowledgment from every one in Massachusetts who can appreciate your just and patriotic motives and wise statesmanship. I know you will be accused of factious opposition to the Administration and the President; but there are those who believe your opposition comes from a desire to do justice, not only to the blacks, but to the poor whites, and to establish the Government upon the only permanent and safe foundation on true democratic principles.”
Hon. Adin Thayer wrote from Worcester:—
“I thank you from the bottom of my heart for your heroic and successful opposition to the Louisiana fraud. Nothing you have ever done better deserves the gratitude of the country and of mankind.”
Elizur Wright, one of our earliest Abolitionists, wrote from Boston:—
“Your keeping out the sham State of Louisiana is worth, in my estimation, any three average military victories. I would give the United States Treasury half I am worth to have Congress, the next thing it does on the subject, decide black suffrage as the ‘inexorable condition’ of readmission.”
Rev. A. P. Marvin wrote from Winchendon, Massachusetts:—
“I have just risen from reading in the telegraphic despatch of the noble stand made by you in the Senate last night, by which the admission of Louisiana is staved off for the present. I have often fervently thanked God that you were in your present position, and enabled to do so much to prevent evil and accomplish good,—but never more earnestly than now. I know it must be hard to withstand so many of the supporters of the Administration, but the battle must be fought on the very question involved in this measure. It will not only be wicked and infamous, but suicidal, for us to let the greater part of the rank and file of the Rebels come back and be voters, while we exclude our colored countrymen. I hope strength will be given to you, according to your day; as to your zeal, courage, ability, and prudence, nothing is wanting.”
Rev. George C. Beckwith, Secretary of the American Peace Society, wrote from Boston:—
“I have just been reading, with my wife, some account of your course on the Louisiana question; and we can’t help sending you our thanks for your persistent efforts to avert the very possible evils likely to come from a wrong decision in this case. God grant you success in preventing here a precedent that may lead to irretrievable mischief!”
Rev. George B. Cheever, the constant Abolitionist, wrote from New York:—
“Permit me the pleasure of congratulating you on the firm and noble stand you are maintaining in the Senate for the rights of loyal men in Louisiana, irrespective of color, and for the prerogative of Congress, as well as its obligation, to settle the government of that State as a republican government. Your efforts are so much the more admirable and important as they are opposed by mistaken Senators, such as Trumbull and Doolittle, and by some of our editors, as of the Times. The heart of the country goes with you, not with your opponents. It would be a terrible disaster to have the precedent set of a State readmitted to the Union with the sacrifice of the rights of the blacks. Your resolutions of Saturday, as well as the amendment you proposed, were admirable. The victory will be worth everything, if you can carry something of that kind.”
A. P. Hayden wrote from New York:—
“I cannot let this opportunity pass of thanking you for the manner in which you have stood by the colored people of Louisiana,—almost the only out-and-out Loyalists of that State. I agree with you that any settlement of the question that will not put the ballot into their hands will create mischief that will take a long time to remedy. When I read in this morning’s Tribune of the vote to postpone the Louisiana matter until December, I felt as if a great moral as well as political battle had been won by our side.”
Dr. J. B. Smith, giving expression to the feelings of colored citizens in a letter from Boston, said:—
“I know of no words of any language adequate to convey to you the gratitude I feel in my inmost soul towards you for your efforts and final success in defeating the bill for the readmission of Louisiana as a State into the Union, with the present flagrantly unjust and proscriptive laws and Constitution. The white people of this country have been so accustomed to regard and treat us as their natural inferiors, that we dread the very thought of submitting to them the adjustment of our rights after their own are made secure. What is not gained for us now will not be obtained for a quarter of a century after peace is declared.”
Frederick Douglass, the watchful orator of his race, wrote from Rochester, New York:—
“The friends of Freedom all over the country have looked to you, and confided in you, of all men in the United States Senate, during all this terrible war. They will look to you all the more, now that peace dawns, and the final settlement of our national troubles is at hand. God grant you strength equal to your day and your duties! is my prayer and that of millions.”
In harmony with these expressions, the following resolution was adopted unanimously by the Worcester Freedom Club, and communicated to Mr. Sumner:—
“Resolved, That the ‘Worcester Freedom Club’ tenders to the Hon. Charles Sumner their gratitude as freemen, for the able manner in which he met the question for the admission of Louisiana, and for his noble defence of the ‘Equality of all men before the Law.’”
Evidently Mr. Sumner was not alone. The right of colored fellow-citizens was recognized as next in order for discussion and judgment. The Antislavery fires were flaming forth anew.
GUARANTY OF REPUBLICAN GOVERNMENTS IN THE REBEL STATES.
Resolutions in the Senate, February 25, 1865.
While the resolution recognizing the existing State government of Louisiana was under consideration, Mr. Sumner introduced the following resolutions, which, on his motion, were ordered to be printed. He gave notice that at the proper time he should move them as a substitute for the pending resolution. But before the proper time the Louisiana resolution was postponed, and it fell with the session.
Resolutions declaring the duty of the United States to guaranty Republican Governments in the Rebel States, on the basis of the Declaration of Independence; so that the new Governments shall be founded on the consent of the governed, and the Equality of all persons before the Law.
Resolved, That it is the duty of the United States, by Act of Congress, at the earliest practicable moment consistent with the common defence and the general welfare, to reëstablish republican governments in those States where loyal governments have been vacated by the existing Rebellion, and thus, to the full extent of their power, fulfil the requirement of the Constitution, that “the United States shall guaranty to every State in this Union a republican form of government.”
2. That this important duty is positively imposed by the Constitution on “the United States,” and not on individuals or classes of individuals, or on any military commander or executive officer, and cannot be intrusted to any such persons, acting, it may be, for an oligarchical class, and in disregard of large numbers of loyal people; but it must be performed by the United States, represented by the President and both Houses of Congress, acting for the whole people.
3. That, in determining the extent of this duty, and in the absence of any precise definition of the term “republican in form,” we cannot err, if, when called to perform this guaranty, we adopt the self-evident truths of the Declaration of Independence as an authoritative rule, and insist that in every reëstablished State the consent of the governed shall be the only just foundation of government, and all persons shall be equal before the law.
4. That, outside the Declaration of Independence, it is plain that any duty imposed by the Constitution must be performed in conformity with justice and reason, and in the light of existing facts; that therefore, in the performance of this guaranty, there can be no power under the Constitution to disfranchise loyal people, or to recognize any such disfranchisement, especially when it may hand over the loyal majority to the government of the disloyal minority; nor can there be any power under the Constitution to discriminate in favor of the Rebellion by admitting to the electoral franchise Rebels who have forfeited all rights, and excluding loyal persons who have never forfeited any right.
5. That the United States, now at a crisis of history called to perform this guaranty, will fail in duty under the Constitution, should they allow the reëstablishment of any State without proper safeguards for the rights of all the citizens, and especially without making it impossible for Rebels in arms against the National Government to trample upon the rights of those fighting the battles of the Union.
6. That the path of justice is also the path of peace, and that for the sake of peace it is better to obey the Constitution, and, in conformity with the guaranty, to reëstablish State governments on the consent of the governed, and the equality of all persons before the law, to the end that the foundations may be permanent, and that no loyal majorities may be again overthrown or ruled by any oligarchical class.
7. That a government founded on military power, or having its origin in military orders, cannot be “republican in form,” according to the requirement of the Constitution; and that its recognition will be contrary, not only to the Constitution, but also to that essential principle of our Government which, in the language of Jefferson, establishes “the supremacy of the civil over the military authority.”[180]
8. That, in the States whose governments have already been vacated, a government founded on an oligarchical class, even if erroneously recognized as “republican in form” under the guaranty of the Constitution, cannot sustain itself securely without national support; that such an oligarchical government is not competent at this moment to discharge the duties and execute the powers of a State; and that its recognition as a legitimate government will tend to enfeeble the Union, to postpone the day of reconciliation, and to endanger the national tranquillity.
9. That considerations of expediency are in harmony with the requirements of the Constitution and the dictates of justice and reason, especially now, when colored soldiers have shown their military value; that, as their muskets are needed for the national defence against Rebels in the field, so are their ballots yet more needed against the subtle enemies of the Union at home; and that without their support at the ballot-box the cause of human rights and of the Union itself will be in constant peril.
NO PICTURE AT THE CAPITOL OF VICTORY OVER FELLOW-CITIZENS.
Remarks in the Senate, on Joint Resolution authorizing a Contract with William H. Powell, February 27, 1865.
February 27th, the Senate having under consideration a joint resolution from the House of Representatives, authorizing a contract with William H. Powell for a picture at the Capitol, not to exceed twenty-five thousand dollars in amount, Mr. Sumner said:—
MR. PRESIDENT,—I am sorry that my friend from Vermont [Mr. Collamer] feels obliged to press this proposition. I do not like to vote against it. Still more, I am reluctant to speak against it. But, satisfied as I am, after careful reflection, that it ought not to pass, I shall express briefly the grounds of my opposition. When it was called up the other day, I ventured to say that I did not think this the time for us to enter upon the patronage of art. Of course such patronage is beautiful and most tempting. It may seem ungracious to arrest it; but I submit confidently, that at this moment, with the national debt accumulating at the rate of millions a day, with brave soldiers still unpaid, with a drain upon our resources at every point, it is not advisable to enter upon the patronage of art, beautiful and most tempting as it is.
There is much to be done to complete the National Capitol in all its parts. Let the work proceed, until the sublime structure stands forth worthy in everything of the destinies it enshrines. But I think we may hesitate at this time to enter upon any ornamentation not essential to the work. If you order one costly picture, you will be called to order another; and where will this expenditure stop? Better wait for the days of peace, soon to come, I trust, when your means will be greater, and you will approach the question in a calmer mood.
Thus far I have said nothing of the artist. But the vote proposed selects one artist for especial honor, and leaves all others unnoticed. It is like a vote of thanks to an officer in the army or navy. Are the merits of this artist so peculiar and commanding that he should be taken and all others left? I doubt. At least, I know that there are other artists in the country who deserve well of those who assume the patronage of art. Are you ready, in this off-hand way, without inquiry, without even hearing their names, to discriminate against them all? I put these questions in no spirit of criticism, and certainly in no unkindness to the artist, for whom, let me say, I have a sincere regard. There is already one picture by him in the Capitol. A second would be more than enough.
Then, again, are you sure that the subject selected at the present time would be such as a maturer and more chastened taste could approve? This is a period of war. We are all under its influence. But I doubt if it be desirable to keep before us any picture of war, especially of a war with fellow-citizens. There are moral triumphs to which art may better lend its charms. I need only refer to the Proclamation of Emancipation, which belongs to the great events of history.
I send to the Chair an amendment, to come in at the end of the resolution:—
“Provided, That in the National Capitol, dedicated to the National Union, there shall be no picture of a victory in battle with our own fellow-citizens.”
In the debate that ensued, Mr. Wilson, of Massachusetts, said: “I rise more especially to say that I disagree with my colleague altogether in the proposition that no work of art shall grace the Capitol of this country that represents anything of the present war of a military or naval character. I do not believe in that doctrine.” Mr. Howe, of Wisconsin, said: “If there were any one proposition which could make the original resolution more distasteful to me than it is in itself, it would be the proviso moved by the Senator from Massachusetts.”
February 28th, the amendment of Mr. Sumner was rejected without a division.
Mr. Sumner then offered another:—
“Provided, That no contract shall be made, until after a competition among the artists of the country, all of whom shall have an opportunity of offering themselves as candidates, and of exhibiting designs for the proposed picture; and the committee shall postpone any contract with Mr. Powell, until they shall be satisfied, after such competition, that he is the most meritorious artist.”
This also was lost,—Yeas 15, Nays 23,—as also another amendment, to purchase of F. B. Carpenter his picture of “The Emancipation Proclamation,” instead of a picture from Mr. Powell, for which there were only two votes. The resolution was then passed.
Among those who expressed sympathy with Mr. Sumner on this occasion was General Robert Anderson, who commanded at Fort Sumter. He wrote:—
“I am glad to see that you, like myself, are looking forward to the time when this Rebellion shall end, and do not wish to see perpetuated, on canvas or in marble, a trace of its having existed.”[181]
FREE SCHOOLS AND FREE BOOKS.
Remarks in the Senate, on an Amendment to the Internal Revenue Act, making Books free, February 27, 1865.
February 27th, the Senate had under consideration a bill to amend the Internal Revenue Act, by striking out of the clause relating to printed books the word “magazines,” and by inserting after the word “newspapers” the words “and periodical magazines,” so that it would read: “On all printed books, pamphlets, reviews, and all other similar printed books, except newspapers and periodical magazines, a duty of five per cent ad valorem.” In commenting on this proposition and another adopted by the House, Mr. Sherman, of Ohio, remarked: “I almost became a convert to the idea of the Senator from Massachusetts, and that it would be better to strike out the whole clause, rather than to attempt to make these discriminations and qualifications and exceptions.” Mr. Sumner followed.
I am very glad to hear the Senator from Ohio say that he had become almost a convert to the idea of removing all tax on books. He reminded me of a certain person who was “almost persuaded to be a Christian.” I think it would be better for the Senator, had he become a complete convert. I am sure his influence would be better for the country.
I speak from no motive of self, and from no personal interest whatever, but from a profound conviction that for the best interests of the country there should be no tax on books. What you can extort out of this tax, in any event, is very small; and it is always a tax on knowledge. Look at it as you will, to that complexion it comes at last. I do not think it worth while for Congress to adopt such a tax. It is the boast of our institutions that they stand upon the intelligence of the people, and it is a further boast that we supply education for all at the public cost; but books are indispensable in this benefaction. Every tax upon books, therefore, is an impediment to that education which is the pride of our country. Plainly it is inconsistent with the genius of our institutions. The result of this tax will be petty, but, to the extent of its influence, prejudicial.
Mr. Sumner moved to strike out the whole clause. Then, in reply to Mr. Clark, of New Hampshire, he remarked:—
The Senator from New Hampshire does not quite like to tax the Bible. Sir, I do not like to tax it. My proposition is broader than his; but he knows very well that the real signification of Bible is book.
Mr. Clark. Not in our language.
Mr. Sumner. I do not know about that. The Senator does plead, however, for the manufacturer of the shirt, whose shop is by the side of the bookseller; but the difference between the two cases is, as I have indicated: that, if you tax the book, you tax knowledge; if you tax the shirt, you but tax one of the general manufactures of the country. The distinction may not be accepted by all; and yet to my mind it is perfectly clear. You cannot tax a book without taxing knowledge. But it is said there are books that might very well be taxed out of existence. Where run the line? How make the discrimination? The trouble is more than it is worth. Better, therefore, have no such tax than run any such line or make any such discrimination. A book is a book; and there should be no tax on a book.
Afterwards, in reply to Mr. Reverdy Johnson, of Maryland, he remarked:—
I have only one word in reply to the learned Senator from Maryland. He does not regard a tax on books as a tax on knowledge. Pray, then, what is such a tax? I can imagine no tax more directly on knowledge. If the Senator can, I should like to have him indicate it. Possibly he can. I believe he cannot. If we repair to the experience of other countries, we find that books are not taxed. In England, where taxation is carried to the farthest point, we know that books are not taxed. We know, also, that, after long and protracted struggle, only during this last year was the last tax on knowledge overthrown, being the paper duty. And yet, Sir, Senators would take up the cast-off taxes of Great Britain, and do even worse. Great Britain has taxed paper, has imposed a stamp-tax also on newspapers, all of which have been latterly removed; but I am not aware that this taxing nation has imposed a tax upon books. And shall our Republic, founded on knowledge, whose duty and mission are to make knowledge cheap, impose, for the first time, a tax on books?
Mr. Wilson said: “I shall vote against exempting from taxation any book whatever, even the Bible.… I am against these exemptions. What, Sir! a tax on books a tax on knowledge? Suppose it is: so is a tax on the coat the boy who goes to school wears.”
Mr. Sumner replied:—
Mr. President,—My colleague does not see the difference between a tax on a boy’s clothes and a tax on his book. The country, in its experience, from the first settlement at Plymouth Rock, has seen it. Clearly it saw the difference, when it undertook to say that education should be at the public cost, free of charge to every one in the community. My friend [Mr. Howe] shakes his head; he knows well that one of the proudest acts in the history of New England was when at an early day she established her system of public schools, which has continued ever since, where every child is educated free of charge. He was educated at the public cost, but not clothed at the public cost. And, Sir, if you would know what gave to New England those elements of prosperity and of influence, which are, I think, sometimes recognized, you will find them in that very education at the public cost. It was because those early settlers, founders of communities, saw that the mind should be clothed, and willingly undertook to clothe it. The family at home were left to clothe the body. Now I would have the country act according to this illustrious precedent, which has done so much for the national name, and remove every impediment in the path of knowledge. Do not tell me that by the same rule you must remove the tax from clothes. The conclusion does not follow. If our fathers were right in establishing free schools, it is right for us now to insist upon free books.
The amendment of Mr. Sumner was lost,—Yeas 5, Nays 27.
THREE CONDITIONS PRECEDENT TO THE RECEPTION OF SENATORS FROM A REBEL STATE.
Resolution in the Senate, March 8, 1865.
March 8th, at the Extra Session, called for executive business, the Senate having under consideration the credentials of William D. Snow as Senator from Arkansas, Mr. Sumner submitted the following resolution, which was ordered to be printed.
Resolved, That, where a State has been declared to be in insurrection, no person can be recognized as Senator from such State, or as claimant of a seat as Senator from such State, until after the occurrence of three several conditions: first, the cessation of all armed hostility to the United States within the limits of such State; secondly, the adoption by such State of a constitution of government republican in form and not repugnant to the Constitution and laws of the United States; and, thirdly, an Act of Congress declaring that the people of such State are entitled to representation in the Congress of the United States.[182]
UNJUST ARREST AND PROSECUTION OF TWO BOSTON MERCHANTS.
Protest and Opinion on the Case of the Messrs. Smith Brothers, March 17, 1865.
Benjamin G. Smith and Franklin W. Smith, merchants and co-partners in Boston, with the firm name of Smith Brothers & Co., were suddenly arrested in June, 1864, by order of the Navy Department, under the charge of fraud in the performance of contracts with the Department. They were at once consigned to Fort Warren, in the harbor of Boston, with strict injunctions to prevent any communication by them with the outer world. Bail to the amount of half a million dollars was required, which was subsequently reduced to forty thousand. Their counting-room was broken open, their safe forced, and their books seized. Their houses were searched, and private papers taken away. Their business was, for the time, destroyed. This work was crowned by ordering a court-martial for the trial of these civilians at Philadelphia.
These proceedings excited a general interest at Boston. The Massachusetts delegation in Congress united in the following appeal to the President, which was drawn by Mr. Sumner.
To the President of the United States:—
The undersigned, Senators and Representatives in Congress from Massachusetts, ask leave to call your serious attention to the proceedings initiated by the Navy Department against Benjamin G. Smith and Franklin W. Smith, of Boston, of the firm of Smith Brothers & Co., a much respected firm, which has hitherto enjoyed the confidence, personal and mercantile, of the community where they reside. Among their neighbors and friends these proceedings have already attracted much attention, and awakened corresponding feeling.
The proceedings have seemed to be harsh, vindictive, and unnecessary.
1. In the character of the arrest of Messrs. Smith, which was attended by circumstances of severity utterly unjustifiable.
2. In requiring bonds to so large an amount as half a million of dollars. The fact that the parties in question easily obtained bonds for a much larger amount does not render the exaction of “excessive bail” less obnoxious to the requirements of the Constitution and of justice, or less indicative of the spirit in which these proceedings have been conducted.
3. In the seizure of their books and papers, which are still detained, although regarded by their eminent counsel as important to their defence.
4. In turning into a military offence what is more proper for a civil tribunal, and dragging these defendants before a court-martial.
5. In transferring the proceedings from Boston, where the parties reside, and the transactions in question occurred, to Philadelphia: thus increasing greatly the difficulties and the cost of defence. This will be appreciated, when it is understood that the witnesses are very numerous, and chiefly engaged in mercantile business, so that they cannot leave Boston without neglect of their private interests.
The undersigned, on reviewing these circumstances, which are so inconsistent with the administration of justice in its most ordinary forms, have been at a loss to account for the spirit manifested in the prosecution. If they look at the trivial character of many of the specifications against the defendants, they are still more at a loss. It is difficult to account for such elaborate and persistent harshness, without yielding to the prevailing belief that other motives than the vindication of justice have entered into this case.
The undersigned are not strangers to the fact, that one of these defendants, in the discharge of what he believed to be his duty as a good citizen, has, by correspondence and testimony before committees of Congress, been brought into collision with officers of the Navy Department; and there is too much reason to believe that some of these officers have allowed themselves to be governed by personal feelings throughout these strange proceedings.
Under such circumstances, the undersigned most respectfully ask your assistance in securing justice to these defendants, according to the common course of proceedings at law. They are acquainted with the statute which provides court-martial for contractors in certain cases, and they are unwilling to make any suggestion which shall interfere with its efficiency; but they have no hesitation in saying that such a statute, intended for extreme cases, should not be applied to a case like the present, where, with a single exception, the questions are simply whether the defendants complied with their contract, and therefore, from their nature, can be better considered by the ordinary tribunals accustomed to such questions than by a naval tribunal composed of officers who have no familiarity with them.
If the pending proceedings against the Messrs. Smith should be continued, there are two courses with regard to them which may be recommended.
First, That they should be transferred at once to the United States Court in Massachusetts, and be placed under the direction of the learned Attorney of the United States for that District.
Secondly, If the foregoing order is not deemed expedient, on the existing evidence, then a commission or commissioner might be appointed by the President to inquire into the circumstances attending the arrest of the defendants, and also into the nature of the charges against them, in order to ascertain and report if there is any sufficient reason for the singular harshness to which they have been already subjected, and also for the exceptional proceedings instituted against them.
For the sake of justice, and to relieve the Government from all suspicion of undue harshness, the undersigned protest against the spirit in which these proceedings have been conducted, and appeal to you for such remedy as shall seem best, to the end that the public interests may be adequately protected without any sacrifice of the rights of the citizen, and without needless interference with the order of business.
- Charles Sumner,
- Henry Wilson,
- Thomas D. Eliot,
- Henry L. Dawes,
- S. Hooper,
- John B. Alley, by C. Sumner, as by letter,[183]
- D. W. Gooch,
- William B. Washburn,
- John D. Baldwin,
- George S. Boutwell.
[Boston, August 15, 1864.]
The trial proceeded at Charlestown, lasting several months, with able counsel for the defendants, and it ended in judgment against the defendants, who were sentenced to imprisonment for two years and a fine of twenty thousand dollars. This judgment and sentence were approved by the Secretary of the Navy, and it only remained for the President to give them his sanction. Before this was done, Mr. Sumner saw him. The President listened to his appeal, and at once put into his hands the elaborate report from the Secretary of the Navy, setting forth the facts in the case and approving the conclusion of the court-martial,—asking him to read it carefully and give his opinion upon it, which he did without delay.