POSTSCRIPT.
Since writing this tribute to an heroic spirit, I have received a journal from Baltimore, published by colored persons, which contains his best eulogy. Such praise is more than any other praise, for it comes from neighbors and wards who knew him well, and it is the voice of that oppressed race he had served so faithfully. Better than any official order of mourning are these artless, feeling words:—
“We are sorely grieved to chronicle the death of so great and good a man as Hon. Henry Winter Davis, who departed this life on Saturday, 30th ult., 1865, after a short illness of about three days. Mr. Davis was an accomplished gentleman, a true patriot, and a finished statesman. He was true to his country, and a tried friend to the colored people,—never faltering in the time of need. In Congress he fought as a hero for our people, and at home he labored assiduously for the bondman, and espoused the cause of Liberty, Justice, and Truth, up to the time of his death. The memory of Henry Winter Davis should live in every colored American’s heart for ages to come, and all loyal citizens should give his very interesting family their full sympathy; for Henry Winter Davis, at his own peril, stood invincible for his country, knew no flag but the flag of free America, even when his nearest friend would impeach him for his acts, and almost threaten his life. Henry Winter Davis was firm, defying all prejudiced parties to dare advance; but he was such a statesman and elocutionist, he kept them at bay, until God, in His own time, has seen it His pleasure to remove him from our midst; and we humble beings can do nothing but trust that God, in His all-wise and tender mercy, may raise erelong another Henry Winter Davis.”
DISFRANCHISEMENT INCONSISTENT WITH REPUBLICAN GOVERNMENT.
Remarks in the Senate, on the Credentials of a Senator from Florida, January 19, 1866.
January 19th, Mr. Doolittle, of Wisconsin, presented the credentials of Hon. William Marvin as Senator of Florida. Mr. Sumner, seizing the occasion to declare what he thought an essential element of republican government to be observed in Reconstruction, said:—
I have no desire to discuss the question arising on the presentation of these credentials, and I may say that there are reasons for the expression of personal respect toward the gentleman who appears as Senator from Florida. In many particulars—not in all, unhappily—he has done well where he was placed. I say, unhappily not in all particulars; for no person can read his speeches and say that in everything he has done what a governor of one of those States at this time should do. But I have no desire to discuss his case.
The Senator has alluded to the actual condition of Florida. I also ask attention to the actual condition of things there, as represented by thoroughly competent witnesses, whose character is vouched by the first citizens of that State.
Mr. Sumner here read two communications, mentioning that four fifths of the Legislature were Rebel officers, and setting forth the programme of the Rebel States hostile to Reconstruction, and declaring that the only hope of Union men was in Congress. He then said:—
There, Sir, is testimony direct from Florida. Besides, we have the Constitution which the recent pretended Convention has put forward,—a Constitution which, after recognizing the abolition of Slavery, and therefore the citizenship of those once slaves, proceeds to decree their disfranchisement; and Senators are expected to receive this document as creating a republican form of government,—a Constitution which begins by the denial of equality to nearly one half its citizens! The question is entirely changed since the abolition of Slavery, for all are now citizens; and I insist, and at a proper time shall argue the question, that no State, where the government has lapsed, can be recognized as republican in form, while disfranchising any considerable portion of its citizens, especially if it founds any right, immunity, or privilege on color.
The credentials were laid on the table, and never afterwards considered.
IMPANELLING OF JURIES, AND TRIAL OF JEFFERSON DAVIS.
Remarks in the Senate, on a Bill removing certain Objections to Jurors, January 22, 1866.
Mr. Clark, of New Hampshire, called up a bill, reported by the Judiciary Committee, “in relation to the qualifications of jurors and to writs of error in certain cases.” The first section removed the objection to jurors serving in certain cases by reason of having formed or expressed an opinion founded upon common notoriety, public rumor, or statements in public journals. The other section provided a writ of error on questions of law, where the punishment was death.
Mr. Sumner remarked:—
I see no objection to the second section. Here I agree with the Senator from New Hampshire. I am not so sure about the first section. There seem to me two objections to it. Whether they are sufficiently strong to justify the rejection of the bill will be for the Senate to determine. I simply call attention to them.
The first is, that it positively sets aside what, down to this day, on the ruling of the highest magistrate of our country, has been the law in impanelling juries. To this the Senator aptly replies, that it is important to obtain uniformity of practice in the United States courts. There I agree with him. If the proposition involved nothing else, I should not venture even a suggestion with regard to it; but it reaches further. It sets aside what my friend, the learned Senator from Maryland [Mr. Johnson] knows well was the decision of Chief Justice Marshall, and what has been also the practice in many States of the Union. It is the practice in my own State. It is the practice also in the District of Columbia. Against that practice I can venture only with a certain hesitation.
Then comes another consideration of greater importance. So far as I comprehend the special bearing of this provision, it is to meet an actual case of unprecedented historical importance; it is to prepare the way for the trial of that grandest criminal in the world’s history, now in the custody of the National Government. Sir, that trial should be approached carefully, most discreetly, and I humbly submit, unless reasons to the contrary are found of the strongest character, with absolute reference to the existing law of the land. I shrink from any change in the law to meet an individual case, even though of transcendent importance, like that to which I refer. Indeed, the very importance of the case, and especially its political character, puts us on our guard.
I would also ask whether there is not in the proposition something of an ex post facto character. I am not going to argue against the power of Congress to make changes in modes of procedure and of trial after the crime has been perpetrated; but I cannot doubt, that, in view of the positive limitation of the Constitution, it is a very doubtful course to enter upon.
Mr. Davis, of Kentucky, who was not disposed to agree with Mr. Sumner, said: “I certainly very heartily approve of the opinions and sentiments expressed by the Senator from Massachusetts.”
The bill was postponed, and allowed to drop.
CARRYING OUT THE GUARANTY OF REPUBLICAN GOVERNMENT, AND ENFORCEMENT OF THE PROHIBITION OF SLAVERY.
Joint Resolution in the Senate, February 2, 1866.
The following joint resolution, introduced February 2d, is a modification of a bill introduced at the beginning of the session.[38]
Joint Resolution carrying out the guaranty of a Republican Form of Government in the Constitution of the United States, and enforcing the Constitutional Amendment for the Prohibition of Slavery.
Whereas it is provided in the Constitution, that the United States shall guaranty to every State in this Union a republican form of government;
And whereas, by reason of the failure of certain States to maintain governments which Congress can recognize, it has become the duty of the United States, standing in the place of guarantor where the principal has made a lapse, to secure to such States, according to the requirement of the guaranty, governments republican in form;
And whereas, further, it is provided in a recent Constitutional Amendment, that Congress may “enforce” the prohibition of Slavery by “appropriate legislation,” and it is important to this end that all relics of Slavery should be removed, including all distinction of rights on account of color:
Now, therefore, to carry out the guaranty of a republican form of government, and to enforce the prohibition of Slavery,
Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That in all States lately declared to be in rebellion there shall be no oligarchy, aristocracy, caste, or monopoly invested with peculiar privileges or powers, and there shall be no denial of rights, civil or political, on account of race or color; but all persons shall be equal before the law, whether in the court-room or at the ballot-box. And this statute, made in pursuance of the Constitution, shall be the supreme law of the land, anything in the Constitution or laws of any such State to the contrary notwithstanding.
The joint resolution was printed and laid on the table. Mr. Sumner gave notice that at the proper time he should move it as a counter proposition to the resolution of the House of Representatives proposing a Constitutional Amendment.[39]
THE EQUAL RIGHTS OF ALL: THE GREAT GUARANTY AND PRESENT NECESSITY, FOR THE SAKE OF SECURITY, AND TO MAINTAIN A REPUBLICAN GOVERNMENT.
Speech in the Senate, on the proposed Amendment of the Constitution fixing the Basis of Representation, February 5 and 6, 1866. With Appendix.
Taxation without representation is Tyranny.—The Revolutionary Fathers.
Remember, O my friends, the laws, the rights,
The generous plan of power delivered down
From age to age by your renowned forefathers,
So dearly bought, the price of so much blood:
Oh, let it never perish in your hands!”
Addison, Cato, Act III. Scene 5.
But if any among you thinks that Philip will maintain his power by having occupied forts and havens and the like, this is a mistake.… Impossible is it, impossible, Athenians, to acquire a solid power by injustice and perjury and falsehood. Such things last for once, or for a short period; maybe, they blossom fairly with hope; but in time they are discovered and drop away. As a house, a ship, or the like, ought to have the lower parts firmest, so in human conduct, I ween, the principle and foundation should be just and true.—Demosthenes, Second Olynthiac, tr. Kennedy.
Yet ye say, The way of the Lord is not equal. Hear now, O house of Israel! Is not my way equal? are not your ways unequal?—Ezekiel, xviii. 25.
’Twere better, O my son,
To cultivate Equality, who joins
Friends, cities, heroes in one steadfast league;
For by the laws of Nature through the world
Equality was established: …
Equality, among the human race,
Measures and weights and numbers hath ordained.
Euripides, The Phœnician Damsels, tr. Wodhull.
That all might free and equal all remain.
Lucan, Pharsalia, tr. Rowe, Book IX. 336.
Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote.—Gouverneur Morris: Debates in the Federal Convention, August 8, 1787: Madison Papers, Vol. III. p. 1264.
He took his ground carefully, and propounded only what he felt sure that Hardy himself would at once accept,—what no man of any worth could possibly take exception to. He meant much more, he said, than this, but for the present purpose it would be enough for him to say, that, whatever else it might mean, Democracy in his mouth always meant that every man should have a share in the government of his country.—Hughes, Tom Brown at Oxford, Vol. II. Chap. XIX.
The Equal Rights of the colored race occupied the constant attention of Congress in different forms. One measure was known as the Civil Rights Bill, securing the right to sue and testify in court, introduced by Mr. Trumbull January 5, and passed April 9, 1866. Others were intended to secure suffrage for colored citizens in the District of Columbia and generally in the Rebel States. The efforts of Mr. Sumner were applicable to all these measures. He insisted always upon the equal title of all to rights of white citizens, whether civil or political, and he wished to act directly. Not doubting the plenary powers of Congress to provide for the equal rights of all, political as well as civil, especially since the Constitutional Amendment prohibiting Slavery, he pressed action by “appropriate legislation.”
Meanwhile the House of Representatives undertook to meet the Suffrage question indirectly, and by a proposition for an Amendment of the Constitution, reported by Hon. Thaddeus Stevens from the Joint Committee on Reconstruction. Proceeding originally from Hon. James G. Blaine, a Representative from Maine, afterwards Speaker, it was known familiarly as “the Blaine Amendment.” After elaborate discussion, the joint resolution containing the Amendment was adopted by the House, January 31st,—Yeas 120, Nays 46,—in the following terms:—
“Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed: Provided, That, whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons therein of such race or color shall be excluded from the basis of representation.”
Mr. Fessenden, of Maine, who was the Senate Chairman of the Joint Committee on Reconstruction, promptly gave notice that he should call for its consideration in the Senate February 5th. This opened the whole subject in all its branches, and Mr. Sumner seized the earliest opportunity to discuss it, beginning the important debate. His speech, after asserting the equal rights of all, vindicated the plenary powers of Congress, especially under the clause requiring the United States to guaranty a republican form of government. Though made on the Constitutional Amendment, it was equally applicable to Mr. Trumbull’s Civil Rights Bill, then pending, as also to the Bill for Enfranchisement in the District of Columbia, and to all measures of Reconstruction.