Produced by Mark C. Orton and the Online Distributed
Proofreading Team at http://www.pgdp.net (This file was
produced from images generously made available by The
Internet Archive)










       [Illustration: Engd. by A. H. Ritchie: EDWIN M. STANTON]

              _Statesman Edition_             _VOL. XVI_

                            Charles Sumner

                          HIS COMPLETE WORKS

                           With Introduction
                                  BY
                       HON. GEORGE FRISBIE HOAR

                            [Illustration]

                                BOSTON
                            LEE AND SHEPARD
                                  MCM

                           COPYRIGHT, 1877,
                                  BY
                      FRANCIS V. BALCH, EXECUTOR.

                           COPYRIGHT, 1900,
                                  BY
                           LEE AND SHEPARD.

                          Statesman Edition.
                    LIMITED TO ONE THOUSAND COPIES.
                           OF WHICH THIS IS
                               No. 320.

                            Norwood Press:
                        NORWOOD, MASS., U.S.A.




CONTENTS OF VOLUME XVI.


                                                                       PAGE

    EQUAL RIGHTS, WHETHER POLITICAL OR CIVIL, BY ACT OF CONGRESS.
    Letter to the Border State Convention at Baltimore, September
    8, 1867                                                               1

    ARE WE A NATION? Address before the New York Young Men’s
    Republican Union, at the Cooper Institute, Tuesday Evening,
    November 19, 1867                                                     3

    CONSTANT DISTRUST OF THE PRESIDENT. Remarks in the Senate, on
    the Final Adjournment, November 26, 1867                             66

    THE FOURTEENTH AMENDMENT: WITHDRAWAL OF ASSENT BY A STATE.
    Remarks in the Senate, on the Resolutions of the Legislature of
    Ohio rescinding its former Resolution in Ratification of the
    Fourteenth Amendment, January 31, 1868                               69

    LOYALTY IN THE SENATE: ADMISSION OF A SENATOR. Remarks in the
    Senate, on the Resolution to admit Philip F. Thomas as Senator
    from Maryland, February 13, 1868                                     73

    INTERNATIONAL COPYRIGHT. Letter to a Committee in New York, on
    this Subject, February 17, 1868                                      86

    THE IMPEACHMENT OF THE PRESIDENT. THE RIGHT OF THE PRESIDENT
    OF THE SENATE PRO TEM. TO VOTE. Remarks in the Senate, on the
    Question of the Competency of Mr. Wade, Senator from Ohio, then
    President of the Senate pro Tem., to vote on the Impeachment of
    President Johnson, March 5, 1868                                     88

    THE CHIEF JUSTICE, PRESIDING IN THE SENATE, CANNOT RULE OR
    VOTE. Opinion in the Case of the Impeachment of Andrew Johnson,
    President of the United States, March 31, 1868                       98

    EXPULSION OF THE PRESIDENT. Opinion in the Case of the
    Impeachment of Andrew Johnson, President of the United States,
    May 26, 1868                                                        134

    CONSTITUTIONAL RESPONSIBILITY OF SENATORS FOR THEIR VOTES IN
    CASES OF IMPEACHMENT. Resolutions in the Senate, June 3, 1868       227

    VALIDITY AND NECESSITY OF FUNDAMENTAL CONDITIONS ON STATES.
    Speech in the Senate, June 10, 1868                                 230

    ELIGIBILITY OF A COLORED CITIZEN TO CONGRESS. Letter to an
    Inquirer at Norfolk, Va., June 22, 1868                             255

    INDEPENDENCE, AND THOSE WHO SAVED THE ORIGINAL WORK. Letter on
    the Soldiers’ Monument at North Weymouth, Mass., July 2, 1868       256

    COLORED SENATORS,--THEIR IMPORTANCE IN SETTLING THE QUESTION OF
    EQUAL RIGHTS. Letter to an Inquirer in South Carolina, July
    3, 1868                                                             257

    FINANCIAL RECONSTRUCTION THROUGH PUBLIC FAITH AND SPECIE
    PAYMENTS. Speech in the Senate, on the Bill to fund the
    National Debt, July 11, 1868                                        259

    NO REPRISALS ON INNOCENT PERSONS. Speech in the Senate, on the
    Bill concerning the Rights of American Citizens, July 18, 1868      297

    THE CHINESE EMBASSY, AND OUR RELATIONS WITH CHINA. Speech at
    the Banquet by the City of Boston to the Chinese Embassy,
    August 21, 1868                                                     318

    THE REBEL PARTY. Speech at the Flag-Raising of the Grant and
    Colfax Club, in Ward Six, Boston, on the Evening of September
    14, 1868                                                            326

    ENFRANCHISEMENT IN MISSOURI: WHY WAIT? Letter to a Citizen of
    St. Louis, October 3, 1868                                          331

    ISSUES AT THE PRESIDENTIAL ELECTION. Speech at the City Hall,
    Cambridge, October 29, 1868                                         333




EQUAL RIGHTS, WHETHER POLITICAL OR CIVIL, BY ACT OF CONGRESS.

LETTER TO THE BORDER STATE CONVENTION AT BALTIMORE, SEPTEMBER 8, 1867.


    September 12, 1867, Tennessee, Delaware, Maryland, Missouri,
    Kentucky, and the District of Columbia were fully represented
    in what was called “the Border State Convention,” which
    assembled in the Front Street Theatre, Baltimore. The object,
    in the language of the call, was “to advance the cause of
    manhood suffrage, and to demand of Congress the passage of the
    Sumner-Wilson bill.” The following letter from Mr. Sumner was
    read to the Convention.

                                         BOSTON, September 8, 1867.

  DEAR SIR,--I shall not be able to be with you at your Convention
  in Baltimore, according to the invitation with which you have
  honored me. I ask you to accept my best wishes.

  Congress will leave undone what it ought to do, if it fails to
  provide promptly for the establishment of Equal Rights, whether
  political or civil, everywhere throughout the Union. This is a
  solemn duty, not to be shirked or postponed.

  The idea is intolerable, that any State, under any pretension
  of State Rights, can set up _a political oligarchy_ within its
  borders, and then call itself a republican government. I insist
  with all my soul that such a government must be rejected,
  as inconsistent with the requirements of the Declaration of
  Independence.

      Faithfully yours,

          CHARLES SUMNER.

    A letter from Hon. Henry Wilson stated: “At the last session
    I offered an amendment, on the 17th of July, allowing all,
    without distinction of color, to vote and hold office, making
    no distinction in rights or privileges.”




ARE WE A NATION?

ADDRESS BEFORE THE NEW YORK YOUNG MEN’S REPUBLICAN UNION, AT THE COOPER
INSTITUTE, TUESDAY EVENING, NOVEMBER 19, 1867.


    And I will make them one nation in the land upon the mountains
    of Israel, … and they shall be no more two nations.… Neither
    shall they defile themselves any more with their idols,
    nor with their detestable things, nor with any of their
    transgressions.--EZEKIEL, xxxvii. 22, 23.

       *       *       *       *       *

    In these days their union is so entire and perfect that they
    are not only joined together in bonds of friendship and
    alliance, but even make use of the same laws, the same weights,
    coins, and measures, the same magistrates, counsellors, and
    judges: so that the inhabitants of this whole tract of Greece
    seem in all respects to form but one single city, except only
    that they are not enclosed within the circuit of the same
    walls; in every other point, both through the whole republic
    and in every separate state, we find the most exact resemblance
    and conformity.--POLYBIUS, _General History_, tr. Hampton,
    (London, 1756,) Vol. I. pp. 147, 148.

       *       *       *       *       *

    We represent the people,--we are a Nation. To vote by States
    will keep up colonial distinctions.… The more a man aims at
    serving America, the more he serves his colony. I am not
    pleading the cause of Pennsylvania; I consider myself a
    citizen of America.--BENJAMIN RUSH, _Speech in the Continental
    Congress, July, 1776_: Bancroft, History of the United States,
    Vol. IX. p. 54.

       *       *       *       *       *

    It is my first wish to see the United States assume and merit
    the character of _one great Nation_, whose territory is divided
    into different States merely for more convenient government
    and the more easy and prompt administration of justice,--just
    as our several States are divided into counties and townships
    for the like purposes. Until this be done, the chain which
    holds us together will be too feeble to bear much opposition
    or exertion, and we shall be daily mortified by seeing the
    links of it giving way and calling for repair, one after
    another.--JOHN JAY, _Letter to John Lowell, May 10, 1785_:
    Life, by William Jay, Vol. I. p. 190.

       *       *       *       *       *

    He took this occasion to repeat, that, notwithstanding his
    solicitude to establish a National Government, he never
    would agree to abolish the State Governments or render them
    absolutely insignificant. They were as necessary as the General
    Government, and he would be equally careful to preserve
    them.--GEORGE MASON, _Speech in the Constitutional Convention,
    June 20, 1787_: Debates, Madison Papers, Vol. II. pp. 914, 915.

       *       *       *       *       *

    Whether the Constitution be good or bad, the present clause
    clearly discovers that it is a National Government, and
    no longer a Confederation: I mean that clause which gives
    the first hint of the General Government laying direct
    taxes.--GEORGE MASON, _Speech in the Virginia Convention to
    ratify the Constitution, June 4, 1788_: Elliot’s Debates, (2d
    edit.,) Vol. III. p. 29.

       *       *       *       *       *

    The Declaration of Independence having provided for the
    _national_ character and the _national_ powers, it remained
    in some mode to provide for the character and powers of the
    States individually, as a consequence of the dissolution of
    the colonial system. Accordingly the people of each State set
    themselves to work, under a recommendation from Congress, to
    erect a local government for themselves; but in no instance did
    the people of any State attempt to incorporate into their local
    system any of those attributes of national authority which the
    Declaration of Independence had asserted in favor of the United
    States.--ALEXANDER JAMES DALLAS, _Argument in the Case of
    Michael Bright and others, in the Circuit Court of the United
    States, April 28, 1809_: Life and Writings, p. 104.

       *       *       *       *       *

    Hence, while the sovereignty resides inherently and inalienably
    in the people, it is a perversion of language to denominate
    the State, as a body politic or government, sovereign and
    independent.--_Ibid._, p. 100.

       *       *       *       *       *

    America has chosen to be, in many respects and to many
    purposes, a Nation; and for all these purposes her government
    is complete, to all these objects it is competent. The people
    have declared, that, in the exercise of all powers given for
    these objects, it is supreme. It can, then, in effecting these
    objects, legitimately control all individuals or governments
    within the American territory. The Constitution and laws of a
    State, so far as they are repugnant to the Constitution and
    laws of the United States, are absolutely void. These States
    are constituent parts of the United States; they are members
    of one great empire.--CHIEF JUSTICE MARSHALL, _Cohens_ v.
    _Virginia_, Wheaton, Rep., Vol. VI. p. 414.

       *       *       *       *       *

    This Address was prepared as a lecture, and was delivered on
    a lecture-tour reaching as far as Milwaukee, Dubuque, and St.
    Louis. On its delivery in New York, Dr. Francis Lieber was in
    the chair. It became the subject of various local notice and
    discussion.

    The idea of Nationality had prevailed with Mr. Sumner from the
    beginning of his public life. In his appeal to Mr. Webster
    before the Whig State Convention, as early as September 23,
    1846, while calling on the eminent Senator and orator to become
    _Defender of Humanity_, he recognized his received title,
    _Defender of the Constitution_, as justly earned by the vigor,
    argumentation, and eloquence with which he had “upheld the
    Union and that interpretation of the Constitution which makes
    us a Nation.”[1] And from that time he had always insisted that
    we were a Nation,--believing, that, while many things were
    justly left to local government, for which the States are the
    natural organs, yet the great principles of Unity and Human
    Rights should be placed under central guardianship, so as to
    be everywhere the same; and this he considered the essence of
    the Nation.--The word “Federal” Mr. Sumner habitually rejected
    for “National.” Courts and officers under the United States
    Government he called “National.”


ADDRESS.

MR. PRESIDENT,--At the close of a bloody Rebellion, instigated by
hostility to the sacred principles of the Declaration of Independence,
and inaugurated in the name of State Rights, it becomes us now to do
our best that these sacred principles shall not again be called in
question, and that State Rights shall not again disturb the national
repose. One terrible war is more than enough; and since, after
struggle, peril, and sacrifice, where every household has been a
sufferer, we are at last victorious, it is not too much to insist on
all possible safeguards for the future. The whole case must be settled
now. The constant duel between the Nation and the States must cease.
The National Unity must be assured,--in the only way which is practical
and honest,--through the principles declared by our fathers and inwoven
into the national life.

In one word, the Declaration of Independence must be recognized as
a fundamental law, and State Rights, in all their denationalizing
pretensions, must be trampled out forever, to the end that we may be,
in reality as in name, a Nation.

       *       *       *       *       *

Are we a Nation? Such is the question I now propose, believing that
the whole case is involved in the answer. Are we a Nation? Then must
we have that essential, indestructible unity belonging to a Nation,
with all those central, pervasive, impartial powers which minister to
the national life; then must we have that central, necessary authority
inherent in just government, to protect the citizen in all the rights
of citizenship; and then must we have that other central, inalienable
prerogative of providing for all the promises solemnly made when we
first claimed our place as a Nation.

       *       *       *       *       *

Words are sometimes things; and I cannot doubt that our country would
gain in strength and our people in comprehensive patriotism, if we
discarded language which in itself implies certain weakness and
possible disunion. Pardon me, if I confess that I have never reconciled
myself to the use of the word “Federal” instead of “National.” To my
mind, our government is not Federal, but National; our Constitution is
not Federal, but National; our courts under the Constitution are not
Federal, but National; our army is not Federal, but National. There
is one instance where this misnomer does not occur. The debt of our
country is always _National_,--perhaps because this term promises in
advance additional security to the anxious creditor. “Liberty” and
“Equality” are more than dollars and cents; they should be National
also, and enjoy the same security.

During the imbecility of the Confederation, which was nothing but
a league or _fœdus_, the government was naturally called Federal.
This was its proper designation. Any other would have been out of
place, although even then Washington liked to speak of the Nation. In
summoning the Convention which framed the National Constitution, the
States all spoke of the existing government as “Federal.” But after
the adoption of the National Constitution, completing our organization
as one people, the designation was inappropriate. It should have been
changed. If not then, it must be now. New capacities require a new
name. The word Saviour did not originally exist in the Latin; but St.
Augustine, who wrote in this language, boldly used it, saying there was
no occasion for it until after the Saviour was born.[2] If among us in
the earlier day there was no occasion for the word Nation, there is
now. A Nation is born.

       *       *       *       *       *

The word Nation is suggestive beyond any definition of the dictionary.
It awakens an echo second only to that of Country. It is a word of
unity and power. It brings to mind intelligent masses enjoying the
advantage of organization, for whom there is a Law of Nations,--as
there is a Law of Nature,--each nation being a unit. Sometimes uttered
vaguely, it is simply an intensive, as in the familiar exaggeration,
“only a _nation_ louder”; but even here the word furnishes a measure of
vastness. In ordinary usage, it implies an aggregation of human beings
who have reached such advanced stage of political development that
they are no longer a tribe of Nomads, like our Indians,--no longer a
mere colony, city, principality, or state,--but they are one people,
throbbing with a common life, occupying a common territory, rejoicing
in a common history, sharing in common trials, and securing to each the
protection of the common power. We have heard, also, that a Nation is
a people with the consciousness of Human Rights. Well spoke Louis the
Fifteenth of France, when this word first resounded in his ears: “What
means it? I am king; is there any king but me?” The monarch did not
know that the Nation was more than king, all of which his successor
learned among the earliest lessons of the Revolution, as this word
became the inspiration and voice of France.

The ancients had but one word for State and City; nor did they use the
word Nation as it is latterly used. Derived from the Latin _nascor_ and
_natus_, signifying “to be born” and “being born,” it was originally
applied to a race or people of common descent and language, but seems
to have had no reference to a common government. In the latter sense
it is modern. Originally ethnological, it is now political. The French
Communists have popularized the kindred word “Solidarity,” denoting a
community of interests, which is an element of nationality. There is
the solidarity of nations together, and also the solidarity of a people
constituting one nation, being those who, according to a familiar
phrase, are “all in one bottom.”

England early became a Nation; and this word seems to have assumed
there a corresponding meaning. Sir Walter Raleigh, courtier of Queen
Elizabeth, and victim of James the First, who was a master of our
language, in speaking of the people of England, calls them “our
Nation.”[3] John Milton was filled with the same sentiment, when,
addressing England and Scotland, he says: “Go on, both hand in hand,
_O Nations_, never to be disunited! be the praise and the heroic song
of all posterity!”[4] In the time of Charles the Second, Sir William
Temple furnished a precise definition, which foreshadows the definition
of our day. According to this accomplished writer and diplomatist, a
Nation was “a great number of families, derived from the same blood,
born in the same country, and _living under the same government and
civil constitutions_.”[5] Here is the political element. Johnson, in
his Dictionary, follows Temple substantially, calling it “a people
distinguished from another people, generally by their language,
original, _or government_.” Our own Webster, the lexicographer, calls
it “the body of inhabitants of a country _united under the same
government_”; Worcester, “a people born in the same country and _living
under the same government_”; the French Dictionary of the Academy, “the
totality of persons born or naturalized in a country and _living under
the same government_.”[6] Of these definitions, those of Webster and
the French Academy are the best; and of the two, that of Webster the
most compact.

These definitions all end in the idea of unity under one government.
They contemplate political unity, rather than unity of blood or
language. Undoubted nations exist without the latter. Various accents
of speech and various types of manhood, with the great distinction of
color, which we encounter daily, show that there is no such unity here.
But this is not required. If the inhabitants are of one blood and one
language, the unity is more complete; but the essential condition is
one sovereignty, involving, of course, one citizenship. In this sense
Gibbon employs the word, when, describing the people of Italy,--all of
whom were recognized as Roman citizens,--he says: “From the foot of
the Alps to the extremity of Calabria, all the natives of Italy were
born citizens of Rome. Their partial distinctions were obliterated, and
they insensibly _coalesced into one great Nation_, united by language,
manners, and _civil institutions_, and equal to the weight of a
powerful empire.”[7] Here dominion proceeding originally from conquest
is consecrated by concession of citizenship, and the great historian
hails the coalesced people as Nation.

One of our ablest writers of History and Constitutional Law, Professor
Lieber, of Columbia College, New York, has discussed this question with
learning and power.[8] According to this eminent authority, Nation is
something more than a word. It denotes that polity which is the normal
type of government at the present advanced stage of civilization,
and to which all people tend just in proportion to enlightenment and
enfranchisement. The learned Professor does not hesitate to say that
such a polity is naturally dedicated to the maintenance of all the
rights of the citizen as its practical end and object. It is easy to
see that the Nation, thus defined, must possess elements of perpetuity.
It is not a quicksand, or mere agglomeration of particles, liable to
disappear, but a solid, infrangible crystallization, against which
winds and rains beat in vain.

       *       *       *       *       *

Opposed to this prevailing tendency is the earlier propensity to local
sovereignty, which is so gratifying to petty pride and ambition. This
propensity, assuming various forms in different ages and countries,
according to the degree of development, has always been a species
of egotism. When the barbarous islanders of the Pacific imagined
themselves the whole world, they furnished an illustration of this
egotism in its primitive form. Its latest manifestation has been
in State pretensions. But here a distinction must be observed. For
purposes of local self-government, and to secure its educational
and political blessings, the States are of unquestioned value. This
is their true function, to be praised and vindicated always. But
_local sovereignty_, whether in the name of State or prince, is out
of place and incongruous under a government truly national. It is
entirely inconsistent with the idea of Nation. Perhaps its essential
absurdity in such a government was never better illustrated than by
the homely apologue of the ancient Roman,[9] which so wrought upon
the secessionists of his day that they at once returned to their
allegiance. According to this successful orator, the different members
of the human body once murmured against the “belly,” which was pictured
very much as our National Government has been, and they severally
refused all further coöperation. The hands would not carry food to
the mouth; nor would the mouth receive it, if carried; nor would the
teeth perform their office. The rebellion began; but each member soon
found that its own welfare was bound up inseparably with the rest, and
especially that in weakening the “belly” it weakened every part. Such
is the discord of State pretensions. How unlike that unity of which
the human form, with heaven-directed countenance, is the perfect type,
where every part has its function, and all are in obedience to the
divine mandate which created man in the image of God! And such is the
Nation.

       *       *       *       *       *

Would you know the incalculable mischief of State pretensions? The
American continent furnishes three different examples, each worthy
of extended contemplation. There are, first, our Indians, aborigines
of the soil, split into tribes, possessing a barbarous independence,
but through this perverse influence kept in constant strife, with
small chance of improvement. Each chief is a representative of State
pretensions. Turning the back upon union, they turn the back upon
civilization itself. There is, next, our neighbor republic, Mexico,
where Nature is bountiful in vain, and climate lends an unavailing
charm, while twenty-three States, unwilling to recognize the national
power, set up their disorganizing pretensions, and chaos becomes
chronic. The story is full of darkness and tragedy. The other instance
is our own, where sacrifices of all kinds, public and private, rise
up in blood before us. Civil war, wasted treasure, debt, wounds, and
death are the witnesses. With wailing voice all these cry out against
the deadly enemy lurking in State pretensions. But this wail is heard
from the beginning of history, saddening its pages from generation to
generation.

In ancient times the City-State was the highest type, as in Greece,
where every city was a State, proud of its miniature sovereignty. The
natural consequences ensued. Alliances, leagues, and confederations
were ineffectual against State pretensions. The parts failed to
recognize the whole and its natural supremacy. Amidst all the triumphs
of genius and the splendors of art, there was no national life, and
Greece died. From her venerable sepulchre, with ever-burning funeral
lamps, where was buried so much of mortal beauty, there is a constant
voice of warning, which sounds across continent and ocean, echoing
“Beware!”

Rome also was a City-State. If it assumed at any time the national
form, it was only because the conquering republic took to itself all
other communities and melted them in its fiery crucible. But this
dominion was of force, ending in universal empire, where the consent
of the governed was of little account. How incalculably different from
a well-ordered Nation, where all is natural, and the people are knit
together in self-imposed bonds!

Then came the colossal power of Charlemagne, under whom peoples and
provinces were accumulated into one incongruous mass. Here again was
universal empire, but there was no Nation.

Legend and song have depicted the paladins that surrounded Charlemagne,
fighting his battles and constituting his court. They were the
beginning of that Feudal System which was the next form that Europe
assumed. The whole country was parcelled among chieftains under the
various names of Duke, Count, and Baron, each of whom held a district,
great or small, where, asserting a local sovereignty, he revelled in
State pretensions; and yet they all professed a common allegiance.
Guizot was the first to remark that Feudalism, taken as a whole, was
a confederation, which he boldly likens to what he calls the federal
system of the United States. It is true that Feudalism was essentially
federal, where each principality exercised a disturbing influence,
and unity was impossible; but I utterly deny that our country can
fall into any such category, unless it succumbs at last to the dogma
of State pretensions, which was the essential element of the feudal
confederation.

Feudalism was not a government; it was only a system. During its
prevalence, the Nation was unknown. Wherever its influence subsided,
the Nation began to appear; and now, wherever its influence still
lingers on earth, there the yearnings for national life, instinctive in
the popular heart, are for the time suppressed.

Curiously enough, Sweden and Hungary were not brought within the sphere
of Feudalism, and these two outlying lands, left free to natural
impulses, revealed themselves at an early day as Nations. When the
European continent was weakened by anarchy, they were already strong in
national life, with an influence beyond their population or means.

Feudalism has left its traces in England; but it was never sufficiently
strong in that sea-girt land to resist the natural tendencies to unity,
partly from its insular position, and partly from the character of
its people. At an early day the seven-headed Heptarchy was changed
into one kingdom; but a transformation not less important occurred
when the feudal lords were absorbed into the government, of which they
became a component part, and the people were represented in a central
Parliament, which legislated for the whole country, with Magna Charta
as the supreme law. Then was England a Nation; and just in proportion
as the national life increased has her sway been felt in the world.

France was less prompt to undergo this change, for Feudalism found
here its favorite home. That compact country, so formed for unity, was
the victim of State pretensions. It was divided and subdivided. North
and South, speaking the same language, were separated by a difference
of dialect. Then came the great provinces, Normandy, Brittany,
Burgundy, Provence, Languedoc, and Gascony, with constant menace of
resistance and nullification, while smaller fiefs shared the prevailing
turbulence. A French barony was an “autonomic government,” with a
moated town, in contrast with an English barony, which was merged in
the Kingdom. Slowly these denationalizing pretensions were subdued; but
at last the flag of the French monarchy,--the most beautiful invention
of heraldry,--with lilies of gold on a field of azure, and angelic
supporters, waved over a united people. From that time France has been
a Nation, filled with a common life, burning with a common patriotism,
and quickened by a common glory. To an Arab chieftain, who, in barbaric
simplicity, asked the number of tribes there, a Frenchman promptly
replied, “We are all one tribe.”

Spain also triumphed over State pretensions. The Moors were driven from
Granada. Castile and Aragon were united under Ferdinand and Isabella.
Feudalism was overcome. Strong in the national unity, her kings became
lords of the earth. The name of Spain was exalted, and her language was
carried to the uttermost parts of the sea. For her Columbus sailed;
for her Cortes and Pizarro conquered. But these adventurous spirits
could have done little, had they not been filled with the exuberance of
her national life.

Italy has been less happy. The pretensions of Feudalism here commingled
with the pretensions of City-States. Petty princes and petty republics,
restless with local sovereignty, constituted together a perpetual
discord. That beauty which one of her poets calls a “fatal gift”
tempted the foreigner. Disunited Italy became an easy prey. Genius
strove in the bitterness of despair, while this exquisite land, where
History adds to the charms of Nature and gilds anew the golden fields,
sank at last to become, in the audacious phrase of Napoleon, simply a
geographical name. A checker-board of separate States, it was little
else. It had a place on the map, as in the memory, but no place in the
present. It performed no national part. It did nothing for imitation
or remembrance. Thus it continued, a fearful example to mankind.
Meanwhile the sentiment of Nationality began to stir. At last it broke
forth like the pent-up lava from its own Vesuvius, and Garibaldi was
its conductor. Separate States, renouncing local pretensions, became
greater still as parts of the great whole, and Italy stood forth a
Nation, to testify against the intolerable jargon of State pretensions.
All hail to this heroic revival, where dissevered parts have been
brought together, as were those of the ancient Deity, and shaped anew
into a form of beauty and power!

But Germany is the most instructive example. Here, from generation to
generation, have State pretensions triumphed, perversely postponing
that National Unity which is the longing of the German heart.
Stretching from the Baltic to the Adriatic and the Alps, penetrated by
great rivers, possessing an harmonious expanse of territory, speaking
one language, filled with the same intellectual life, and enjoying
a common name, which has been historic from the days of Tacitus,
Germany, like France, seems formed for unity. Martin Luther addressed
one of his grand letters _An die Deutsche Nation_ (To the German
Nation); and these words are always touching to Germans as the image
of what they desire so much. Thus far the great longing has failed.
Even the Empire, where all were gathered under one imperial head,
was only a variegated patchwork of States. Feudalism, in its most
extravagant pretensions, still prevails. Confederation takes the place
of Nationality, and this vast country, with all its elements of unity,
is only a discordant conglomerate. North and South are inharmonious,
Prussia and Austria representing two opposite sections. Other divisions
have been more perplexing. Not to speak of Circles, or groups, each
with a diet of its own, which once existed, I mention simply the later
division into thirty-nine States, differing in government and in
extent, being monarchies, principalities, dukedoms, and free cities,
all proportionately represented in a general council or diet, and
proportionately bound to the common defence, but every one filled
with State egotism. So complete was this disjunction, and such its
intolerable pretensions, that internal commerce, the life-blood of the
Nation, was strangled. Down to a recent day, each diminutive state had
its own custom-house, where the traveller was compelled to exhibit his
passport and submit to local levies. This universal obstruction slowly
yielded to a Zollverein, or Customs-Union, under which these barriers
were obliterated and customs were collected on the external frontiers.
Here was the first triumph of Unity. Meanwhile the perpetual strife
between Prussia and Austria broke out in terrible battle. Prussia has
succeeded in absorbing several of the smaller states. But the darling
passion of the German heart is still unsatisfied. Not in fact, but in
aspiration only, is Germany one nation. Patriot Poetry takes up the
voice, and, scorning the claims of individual states, principalities,
and cities, scorning also the larger claims of Prussia and Austria
alike, exclaims, in the spirit of a true Nationality:--

      “That is the German’s fatherland
      Where Germans all as brothers glow;
           That is the land;
    All Germany’s thy fatherland.”

God grant that the day may soon dawn when all Germany shall be one!

       *       *       *       *       *

Confessing the necessity of a true national life, we have considered
what is a Nation, and how the word itself implies indestructible unity
under one government with common rights of citizenship; and then we
have seen how this idea has grown with the growth of civilization,
slowly conquering the adverse pretensions of States, until at last even
Italy became one nation, while Germany was left still struggling for
the same victory. And now I come again to the question with which I
began.

Are we a Nation? Surely we are not a City-State, like Athens and early
Rome in antiquity, or like Florence and Frankfort in modern times;
nor, whatever the extent of our territory, are we an Empire cemented
by conquest, like that of later Rome, or like that of Charlemagne; nor
are we a Feudal Confederation, with territory parcelled among local
pretenders; nor are we a Confederation in any just sense. From the
first settlement of the country down to the present time, whether in
the long annals of the Colonies or since the Colonies were changed into
States, there has been but one authentic voice: now breaking forth in
organized effort for Union; now swelling in that majestic utterance of
a united people, the Declaration of Independence; now sounding in the
scarcely less majestic utterance of the same united people, the opening
words of the National Constitution; and then again leaping from the
hearts of patriots. All these, at different times and in various tones,
testify that we are one people, under one sovereignty, vitalized and
elevated by a dedication to Human Rights.

There is a distinction for a long time recognized by German writers,
and denoted by the opposite terms _Staatenbund_ and _Bundesstaat_,--the
former being “a league of states,” and the latter “a state formed by a
league.” In the former the separate states are visibly distinct; in the
latter they are lost in unity. And such is the plain condition of our
republic.

Of the present thirty-seven States only thirteen were originally
Colonies; three are offsets from some of these; all the rest have been
founded on territory which was the common property of the people of
the United States, and at their own request they have been received
into the fellowship of government and citizenship. If on any ground
one of the original Thirteen might renounce its obligations to the
Union, it would not follow that one of the new States, occupying the
common territory, could do likewise. It is little short of madness to
attribute such a denationalizing prerogative to any State, whether
new or old. For better or worse, we are all bound together in one
indissoluble bond. The National Union is a knot which in an evil hour
the sword may cut, but which no mortal power can unloose without the
common consent.

       *       *       *       *       *

From the earliest landing, this knot has been tying tighter and
tighter. Two ways it promptly showed itself: first, in the common claim
of the rights of British subjects; and, secondly, in the common rights
of citizenship coextensive with the Colonies, and the consequent rights
of every Colony in every other Colony.

The Colonies were settled separately, under different names, and
each had its own local government. But no local government in any
Colony was allowed to restrict the rights, liberties, and immunities
of British subjects. This was often declared. Above all charters or
local laws were the imprescriptible safeguards of Magna Charta, which
were common to all the inhabitants. On one occasion, the Legislature
of Massachusetts reminded the king’s governor of these safeguards in
memorable words: “We hope we may without offence put your Excellency
in mind of that most grievous sentence of excommunication solemnly
denounced by the Church in the name of the sacred Trinity, in the
presence of King Henry the Third and the estates of the realm, _against
all those who should make statutes, or observe them, being made,
contrary to the liberties of Magna Charta_.”[10] Massachusetts spoke
for all the Colonies. Enjoyment of common rights was a common bond,
constituting an element of nationality. As these rights grew more
important, the common bond grew stronger.

The rights of citizenship in the Colonies were derived from common
relations to the mother country. No Colonist could be an alien in any
other Colony. As British subject he had the freedom of every Colony,
with the right of making his home there, and of inheriting lands. Among
all the Colonies there was a common and interchangeable citizenship,
or _inter-citizenship_. The very rule of the Constitution then began,
that “the citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.” Here was another
element of nationality. If not at that time fellow-citizens, all were
at least fellow-subjects. Fellowship had begun. Thus in the earliest
days, even before Independence, were the Colonists one people, with one
sovereignty, afterwards renounced.

       *       *       *       *       *

Efforts for a common government on this side of the ocean soon showed
themselves. The Pilgrims landed at Plymouth in 1620. As early as 1643,
only twenty-three years later, there was a confederation under the
name of “The United Colonies of New England,” formed primarily for the
common defence; and here is the first stage of nationality on this
continent. In the preamble to the Articles the parties declare: “We,
therefore, do conceive it our bounden duty without delay to enter into
a present consociation amongst ourselves for mutual help and strength
in all our future concernments, that, as in nation and religion, so
in other respects, _we be and continue One_.”[11] Better words could
not mark the beginning of a nation. A distinguished character of the
time, recording the difficulties encountered by the Articles, says:
“But, being all desirous of union and studious of peace, they readily
yielded each to other in such things as tended to common utility, etc.,
so as in some two or three meetings _they lovingly accorded_.”[12]
Encouraged by “loving accord,” another proposition was brought forward
in Massachusetts, “for all the English within the United Colonies
_to enter into a civil agreement for the maintenance of religion and
our civil liberties_.”[13] More than a century elapsed before this
aspiration was fulfilled.

Meanwhile the Colonies grew in population and power. No longer merely
scattered settlements, they began to act a part in history. Anxious
especially against French domination, already existing in Canada and
extending along the Lakes to the Mississippi, they came together
in Congress at Albany, in 1754, to take measures for the common
defence. Delegates were present from seven Colonies, being all north
of the Potomac. Here the genius of Benjamin Franklin prevailed. A
plan from this master mind provided for what was called a “General
Government,” administered by a “President-General and Grand Council,”
where each Colony should have representatives in proportion to its
contributions,--Massachusetts and Virginia having seven each, while New
York had only four; and the first meeting of the “General Government”
was to be at Philadelphia.[14] Local jealousy and pretension were then
too strong for such a Union: and it found no greater favor in England;
for there Union was “dreaded as the keystone of Independence.”[15]
In defending this plan, Franklin, who had not yet entered into the
idea of Independence, did not hesitate to say that he looked upon the
Colonies “as so many counties gained to Great Britain,”[16]--employing
an illustration which most forcibly suggested actual Unity. Though
this experiment failed, it revealed the longing for one Cisatlantic
government, and showed how under other auspices it might be
accomplished.

Little more than ten years elapsed before the same yearning for common
life appeared again in the Colonial Congress at New York, convened in
1765, on the recommendation of Massachusetts, to arrest the tyranny of
the Stamp Act and assaults upon the common liberties. Nine Colonies,
after deliberation, united in a Declaration of Rights common to all.
Here was the inspiration of James Otis, the youthful orator of Freedom,
whose tongue of flame had already flashed the cry, “Taxation without
representation is tyranny,” and that other cry, worthy of perpetual
memory, “Equality and the power of the whole, without distinction of
color.” These were voices that heralded our Nation.

       *       *       *       *       *

The mother country persisted; and in the same proportion the Colonies
were aroused to the necessity of union. Meanwhile that inflexible
Republican, Samuel Adams, of Massachusetts, brooding on the perils
to Liberty, conceived the idea of what he called “a Congress of
American States,” out of whose deliberations should come what he boldly
proclaimed “an American Commonwealth,”[17]--not several commonwealths,
not Thirteen, but One. Here, in a single brilliant flash, was revealed
the image of National Unity, while the word “Commonwealth” denoted
the common weal which all should share. The declared object of this
burning patriot was “to answer the great purpose of preserving our
liberties,”[18]--meaning, of course, the liberties of all. Better words
could not be chosen to describe a republican government. This was in
1773. Every Colony, catching the echo, stirred with national life.
Delegates were appointed, and in 1774 a Congress called “Continental,”
with a representation from twelve Colonies, was organized at
Philadelphia, and undertook to speak in the name of “the good people”
of the Colonies. Here was a national act. In the Declaration of
Rights which it put forth,--fit precursor of the Declaration of
Independence,--it grandly claims, that, by the immutable laws of
Nature, the principles of the English Constitution, and the several
Charters, all the inhabitants are “entitled to life, liberty, and
property,” and then announces “that the foundation of English liberty
and of all free government is _a right in the people to participate in
their legislative council_.”[19] Here was a claim of popular rights as
a first principle of government. Proceeding from a Congress of all,
such a claim marks yet another stage of national life.

The next year witnessed a second Continental Congress, also at
Philadelphia, which entered upon a mightier career. Proceeding at once
to exercise national powers, this great Congress undertook to put
the Colonies in a state of defence, authorized the raising of troops,
framed rules for the government of the army, commenced the equipment
of armed vessels, and commissioned George Washington as “general and
commander-in-chief of the army of the United Colonies, and of all the
forces now raised or to be raised by them, and of all others who shall
voluntarily offer their service and join the said army, for the defence
of American liberty.” Here were national acts, which history cannot
forget, and their object was nothing less than American liberty. It was
American liberty which Washington was commissioned to defend. Under
these inspirations was our Nation born. The time had now come.

       *       *       *       *       *

Independence was declared. Here was an act which, from beginning to
end, in every particular and all its inspirations, was National,
stamping upon the whole people Unity in the support of Human Rights.
It was done “in the name and by authority of the good people of these
Colonies,” called at the beginning “one people,” and it was entitled
“Declaration by the Representatives of the United States of America
in Congress assembled,” without a word of separate sovereignty. As
a National act it has two distinct features: first, a severance of
the relations between the “United Colonies” and the mother country;
and, secondly, a declaration of self-evident truths on which the
severance was justified and the new Nation founded. It is the “United
Colonies” that are declared free and independent States; and this
act is justified by the sublime declaration that all men are created
equal, with certain inalienable rights, and that to secure these rights
governments are instituted among men, deriving their just powers from
the consent of the governed. Here was that “American Commonwealth,”
the image of National Unity, dedicated to Human Rights, which had
enchanted the vision of the early patriot seeking new safeguards for
Liberty. Here was a new Nation, with new promises and covenants, never
before made. The constituent authority was “the People.” The rights it
promised and covenanted were the Equal Rights of All; not the rights of
Englishmen, but the rights of Man. On this account our Declaration has
its great meaning in history; on this account our nation became at once
a source of light to the world. Well might the sun have stood still on
that day to witness a kindred luminary ascending into the sky!

In this sudden transformation where was the sovereignty? It was
declared that the _United_ Colonies are and _of right_ ought to be
free and independent States. It was never declared that the _separate_
Colonies were so _of right_. Plainly they never were so _in fact_.
Therefore there was no separate sovereignty either of right or in fact.
The sovereignty anterior to Independence was in the mother country;
afterwards it was in the people of the United States, who took the
place of the mother country. As the original sovereignty was undivided,
so also was that sovereignty of the people which became its substitute.
If authority were needed for this irresistible conclusion, I might
find it in the work of the great commentator, Mr. Justice Story, and
in that powerful discourse of John Quincy Adams entitled “The Jubilee
of the Constitution,” in both of which the sovereignty is accorded to
the People, and not to the States. Nor should I forget that rarest
political genius, Alexander Hamilton, who, regarding these things as a
contemporary, declared most triumphantly that “the Union had complete
sovereignty”; that “the Declaration of Independence was the fundamental
constitution of every State”; and, finally, that “the union and
independence of these States are blended and incorporated in one and
the same act.”[20] Such was the great beginning of national life.

       *       *       *       *       *

A beautiful meditative poet, whose words are often most instructive,
confesses that we may reach heights we cannot hold:--

    “And the most difficult of tasks to keep
    Heights which the soul is competent to gain.”[21]

Our nation found it so. Only a few days after the great Declaration
in the name of “the People,” Articles of Confederation were brought
forward in the name of “the States.” Evidently these were drawn before
the Declaration, and they were in the handwriting of John Dickinson,
then a delegate from Pennsylvania, whom the eldest Adams calls “the
bell-wether of the aristocratical flock,”[22] and who had been the
orator against the Declaration. Not unnaturally, an opponent of the
Declaration favored a system which forgot the constituent sovereignty
of the people, and made haste to establish the pretensions of States.
These Articles were not readily adopted. There was hesitation in
Congress, and then hesitation among the States. At last, on the 1st
of March, 1781, Maryland gave a tardy adhesion, and this shadow of
a government began. It was a pitiful sight. The Declaration was
sacrificed. Instead of “one people,” we were nothing but “a league” of
States; and our nation, instead of drawing its quickening life from
“the good people,” drew it from a combination of “artificial bodies”;
instead of recognizing the constituent sovereignty of the people, by
whose voice Independence was declared, it recognized only the pretended
sovereignty of States; and, to complete the humiliating transformation,
the national name was called “the style,” being a term which denotes
sometimes title and sometimes copartnership, instead of unchangeable
unity. Such an apostasy could not succeed.

Even before the adoption of this denationalizing framework, its failure
had begun. The Confederation became at once a byword and a sorrow.
It was not fit for war or peace. It accomplished nothing national.
It arrested all the national activities. Each State played the part
of the feudal chieftain, selfishly absorbing power and denying it to
the Nation. Money could not be collected even for national purposes.
Commerce could not be regulated. Justice could not be administered.
Rights could not be assured. Congress was without coercive power,
and could act only through the local sovereignty. National unity was
impossible, and in its stead was a many-headed pretension. The country
was lapsing into chaos.

From Boston, which was the early home of the Revolution, had already
proceeded a cry for Nationality. A convention of delegates from
Massachusetts, Connecticut, and New Hampshire, with Thomas Cushing as
President, assembled at Boston in August, 1780, where, among other
things, it was recommended “that the Union of these States be fixed
in a more solid and permanent manner, that the powers of Congress be
more clearly ascertained and defined, and that the important _national_
concerns of the United States be _under the superintendency and
direction of one supreme head_,” and the word _Nation_ is adopted as
the natural expression for our unity.[23] But the time had not yet come
for this fulfilment.

       *       *       *       *       *

In the prevailing darkness, two voices made themselves heard, both
speaking for National Unity on the foundation of Human Rights. The
singular accord between the two, not only in sentiment, but also in
language, and in date of utterance, attests concert. One voice was
that of Congress, in an Address and Recommendations to the States
on the close of the war, bearing date 18th April, 1783, where,
urging “effectual provision” for the war debts, as demanded alike by
national honor, and the honor of the cause in which they had been
contracted, it was said, in words worthy of companionship with the
immortal Declaration: “Let it be remembered that it has ever been the
pride and boast of America that _the rights for which she contended
were the rights of Human Nature_.”[24] The other voice was that of
Washington, in a general order, also bearing date 18th April, 1783,
announcing the close of the war, where, after declaring his “rapture”
in the prospect before the country, he says: “Happy, thrice happy,
shall they be pronounced hereafter who have contributed anything, who
have performed the meanest office, in erecting this stupendous fabric
of Freedom and Empire on the broad basis of Independency, _who have
assisted in protecting the rights of Human Nature_.”[25] This appeal
was followed by a circular letter to the Governors, where, after
announcing that it is for the United States to determine “whether they
will be respectable and prosperous or contemptible and miserable _as a
Nation_,” Washington proceeds to name first among the things essential
to national well-being, if not even to national existence, what he
calls “an indissoluble union of the States under one federal head”; and
he adds, that there must be a forgetfulness of “local prejudices and
policies,” and that “Liberty” must be at the foundation of the whole
structure.[26] Soon afterwards appearing before Congress to surrender
the trust committed to him as commander-in-chief, he hailed the United
States as a “Nation,” and “our dearest country,”[27]--thus embracing
the whole in his heart, as for seven years he had defended the whole by
his prudence and valor.

An incident of a different character attested the consciousness of
National Unity. The vast outlying territory, unsettled at the beginning
of the war, and wrested from the British crown by the common blood and
treasure, was claimed as a common property, subject to the disposition
of Congress for the general good. One by one, the States yielded their
individual claims. The cession of Virginia comprehended all that grand
region northwest of the Ohio, fertile and rich beyond imagination,
where are now prosperous States rejoicing in the Union. All these
cessions were on the condition that the lands should “be disposed of
for the common benefit of the United States, and be settled and formed
into distinct _republican States_.”[28] Here was a National act, with
the promise of republican government, which was the forerunner of the
guaranty of a republican government in the National Constitution.

The best men, in their longing for national unity, all concurred in
the necessity of immediate action to save the country. Foremost in
time, as in genius, was Alexander Hamilton, who was prompt to insist
that Congress should have “complete sovereignty, except as to that
part of internal police which relates to the rights of property and
life among individuals and to raising money by internal taxes”; and
still further, in words which harmonized with the Declaration of
Independence, that “the fabric of the American empire ought to rest on
the solid basis of the consent of the people.”[29] In kindred spirit,
Schuyler announced “the necessity of _a supreme and coercive power_
in the government of these States.”[30] Hamilton and Schuyler were
both of New York, which, with such representatives, took the lead in
solemn resolutions, which, after declaring that “the situation of
these States is in a peculiar manner critical,” and that “the present
system exposes the common cause to a precarious issue,” concluded with
a call for “a general convention of the States, specially authorized
to revise and amend the Confederation.”[31] The movement ended in the
National Convention. Other States followed, and Congress recommended
it as “the most probable means of establishing in these States a firm
National Government.”[32] Meantime, Noah Webster, whom you know so well
as author of the popular Dictionary, in an essay on the situation,
published at the time, proposed a new system of government, which
should act directly on the individual citizens, and by which Congress
should be invested with full powers of legislation within its sphere,
and for carrying its laws into effect.[33] But this proposition
involved nothing less than a National Government with supreme powers,
to which the States should be subordinate.

       *       *       *       *       *

Here I mention three illustrious characters, who at this time lent the
weight of their great names to the national cause,--Jay, Madison, and
Washington,--each in his way without a peer. I content myself with
a few words from each. John Jay, writing to John Adams, at the time
our minister in London, under date of 4th May, 1786, says: “One of
the first wishes of my heart” is “to see the people of America become
_One Nation in every respect_; for, as to the separate Legislatures,
I would have them considered, with relation to the Confederacy, _in
the same light in which counties stand_ to the State of which they are
parts, viz., merely as districts to facilitate the purposes of domestic
order and good government.”[34] Even in this strong view Jay was not
alone. Franklin had already led in likening the colonies to “so many
counties.”[35] Madison’s desires were differently expressed. After
declaring against “an individual independence of the States,” on the
one side, and “a consolidation of the States into one simple republic,”
on the other side, he sought what he called a “middle ground,” which,
if varying from that of Jay, was essentially national. He would have
“_a due supremacy of the National authority_, and leave in force the
local authorities so far as they can be subordinately useful.”[36]
Here is the definition of a Nation. Washington, in a letter to Jay,
dated 1st August, 1786, stated the whole case with his accustomed
authority. Insisting upon the importance of “a coercive power,” he
pleads for national life: “I do not conceive we can exist long as _a
Nation_ without having lodged somewhere a power which will pervade the
whole Union in _as energetic a manner as the authority of the State
governments extends over the several States_.” He then adds: “To be
fearful of investing Congress, constituted as that body is, with _ample
authorities for National purposes_, appears to me the very climax of
popular absurdity and madness.”[37] Such were the longings of patriots,
all filled with a passion for country. But Washington went still
further, when, on another occasion, he denounced State sovereignty as
“bantling,” and even “monster.”[38]

       *       *       *       *       *

The Constituent Convention, often called Federal, better called
National, assembled at Philadelphia in May, 1787. It was a memorable
body, whose deliberations have made an epoch in the history of
government. Jefferson and John Adams were at the time abroad in the
foreign service of the country, Samuel Adams was in service at home
in Massachusetts, and Jay in New York; but Washington, Franklin,
Hamilton, Madison, Gouverneur Morris, George Mason, Wilson, Ellsworth,
and Sherman appeared among its members. Washington, by their unanimous
voice, became President; and, according to the rules of the Convention,
on adjournment, every member stood in his place until the President had
passed him. Here is a glimpse of that august body which Art may yet
picture. Who would not be glad to look upon Franklin, Hamilton, and
Madison standing in their places while Washington passed?

       *       *       *       *       *

On the first day after the adoption of the rules, Edmund Randolph, of
Virginia, opened the great business. He began by announcing that the
“Confederation” produced no security against foreign invasion; that the
“Federal Government” could not suppress quarrels or rebellion; that
the “Federal Government” could not defend itself against encroachments
from the States; and then, insisting that the remedy must be found in
“the republican principle,” concluded with a series of propositions for
a National Government, with a “National” Legislature in two branches,
a “National” Executive, and a “National” Judiciary, the whole crowned
by the guaranty of a republican government in each State. This series
of propositions was followed the next day by a simple statement in the
form of a resolution, where, after setting forth the insufficiency
of “a union of the States merely Federal,” or of “treaties among
the States as individual sovereignties,” it was declared “that _a
National Government ought to be established_, consisting of a supreme
legislative, executive, and judiciary.” Better words could not have
been chosen to express the prevailing aspiration for national life.
After ample debate, the resolution in this form was adopted. At a
later stage, in seeming deference to mistaken sensibilities, the
word “National” gave place to the term “the government of the United
States”; but this term equally denoted National Unity, although it did
not use the words. The whole clause afterwards found a noble substitute
in the Preamble to the Constitution, which is the annunciation of a
National Government proceeding directly from the People, like the
Declaration of Independence itself.

From the beginning to the end of its debates, the Convention breathed
the same patriotic fervor. Amidst all difference in details, and above
the persistent and sinister contest for the equal representation of
the States, great and small, the sentiment of Unity found constant
utterance. I have already mentioned Madison and Hamilton, who wished
a National Government; but others were not less decided. Gouverneur
Morris began early by explaining the difference between “Federal”
and “National.” The former implied “a mere compact, resting on the
good faith of the parties”; the latter had “a complete and compulsive
operation.”[39] Constantly this impassioned statesman protested against
State pretensions, insisting that the States were originally “nothing
more than colonial corporations,”[40] and exclaiming, “We cannot
annihilate, but we may perhaps take out the teeth of the serpents.”[41]
Wilson was a different character,--gentle by nature, but informed
by studies in jurisprudence and by the education brought from his
Scottish home. He was for a National Government, and did not think it
inconsistent with the “lesser jurisdictions” of States, which he would
preserve;[42] he would not “extinguish these planets,” but keep them
“within their proper orbits for subordinate purposes.”[43] He was too
much of a jurist to admit, “that, when the Colonies became independent
of Great Britain, they became independent also of each other,” and
he insisted that they became independent, “not individually, but
unitedly.”[44] Elbridge Gerry, of Massachusetts, was as strong on this
point as Gouverneur Morris, insisting that “we never were independent
States, were not such now, and never could be, even on the principles
of the Confederation.”[45] Rufus King, also of Massachusetts, touched
a higher key, when he wished that “every man in America” should be
“secured in all his rights,” and that these should not be “sacrificed
to the phantom of State sovereignty.”[46] Good words, worthy of him
who in the Continental Congress moved the prohibition of Slavery in
the national territories.[47] And Charles Pinckney, of South Carolina,
said, in other words of precious significance, that “every freeman has
a right to _the same protection and security_,” and then again, that
“equality is the leading feature of the United States.”[48] Under such
influences the Constitution was adopted by the Convention.

It is needless to dwell on its features, all so well known; but there
are certain points not to be disregarded now. There is especially
the beginning. Next after the opening words of the Declaration of
Independence, the opening words of the Constitution are the grandest
in history. They sound like a majestic overture, fit prelude to the
transcendent harmonies of National life on a theatre of unexampled
proportions. Though familiar, they cannot be too often repeated; for
they are in themselves an assurance of popular rights and an epitome
of National duties: “_We, the people of the United States_, in order
to form a more perfect Union, establish justice, insure domestic
tranquillity, provide for the common defence, promote the general
welfare, and secure the blessings of liberty to ourselves and our
posterity, do ordain and establish this Constitution for the United
States of America.” Thus by the people of the United States was the
Constitution ordained and established; not by the States, nor even by
the people of the several States, but by _the people of the United
States_ in aggregate individuality. Nor is it a league, alliance,
agreement, compact, or confederation; but it is a Constitution, which
in itself denotes an indivisible unity under one supreme law, permanent
in character; and this Constitution, thus ordained and established,
has for its declared purposes nothing less than liberty, justice,
domestic tranquillity, the common defence, the general welfare, and a
more perfect union, all essentially National, and to be maintained by
the National arm. The work thus begun was completed by three further
provisions: first, the lofty requirement that “the United States
shall guaranty to every State in this Union a republican form of
government,”--thus subjecting the States to the presiding judgment of
the Nation, which is left to determine the definition of a republican
government; secondly, the practical investiture of Congress with
authority “to make all laws which shall be necessary and proper for
carrying into execution all the powers vested by this Constitution in
the Government of the United States, or in any department or officer
thereof,”--thus assuring the maintenance of the National Government,
and the execution of its powers through a faithful Congress chosen
by the people; and, thirdly, the imperial declaration, that “this
Constitution, and the laws of the United States which shall be made
in pursuance thereof, and all treaties made or which shall be made
under the authority of the United States, shall be _the supreme law
of the land_, and the judges in every State shall be bound thereby,
_anything in the Constitution or laws of any State to the contrary
notwithstanding_,”--thus forever fixing the supremacy of the National
Government on a pinnacle above all local laws and constitutions. And
thus did our country again assume the character and obligations of a
Nation. Its first awakening was in the Declaration of Independence; its
second was in the National Constitution.

       *       *       *       *       *

On its adoption, the Constitution was transmitted to Congress with a
letter from Washington, where, among other things, it is said that “in
all our deliberations we kept steadily in our view that which appears
to us the greatest interest of every true American, _the consolidation
of our Union_, in which is involved our prosperity, felicity, safety,
perhaps our National existence.”[49] Enough that this letter is signed
“George Washington”; but it was not merely the expression of his
individual sentiments. It was unanimously adopted by the Convention,
on the report of the committee that made the final draught of the
Constitution itself, so that it must be considered as belonging to
this great transaction. By its light the Constitution must be read.
If anybody is disposed to set up the denationalizing pretensions of
States under the National Constitution, let him bear in mind this
explicit declaration, that, throughout all the deliberations of the
Convention, the one object kept steadily in view was _the consolidation
of our Union_. Such is the unanimous testimony of the Convention,
authenticated by George Washington.

The Constitution was discussed next in the States. It was vindicated
as creating a National Government, and it was opposed also on this
very ground. Thus from opposite quarters comes the concurring
testimony. In Connecticut, Mr. Johnson, who had been chairman of
the committee that reported the final draught, said, in reply to
inquiries of his constituents, that the Convention had “gone upon
entirely new ground: they have formed _one new Nation_ out of the
individual States.”[50] George Mason, of Virginia, proclaimed at home
that “the Confederation of the States was entirely changed into _one
consolidated government_,”--that it was “a _National_ government,
and no longer a Confederation.”[51] Patrick Henry, in his vigorous
opposition, testified to the completeness with which the work had been
accomplished. Inquiring by what authority the Convention assumed to
make such a government, he exclaimed: “That this is a consolidated
government is demonstrably clear.… Give me leave to demand, What right
had they to say, _We, the people_?… Who authorized them to speak
the language of _We, the people_, instead of _We, the States_?… If
the States be not the agents of this compact, it must be one great
consolidated National government of the people of all the States.”[52]
Then again the same fervid orator declared, with infinite point, “The
question turns, Sir, on that poor little thing, the expression, _We,
the people_, instead of _the States_.”[53] Patrick Henry was right.
The question did turn on that grand expression, _We, the people_, in
the very frontispiece of the Constitution, filling the whole with
life-giving power; and so long as it stands there, the denationalizing
pretensions of States must shrink into littleness. Originally “one
people” during colonial days, we have been unalterably fixed in this
condition by two National acts: first, the Declaration of Independence,
and then again, the National Constitution. Thus is doubly assured the
original unity in which we were born.

       *       *       *       *       *

Other tokens of Nationality, like the air we breathe, are so common
that they hardly attract attention; but each has a character of its
own. They belong to the “unities” of our nation.

1. There is the National Flag. He must be cold indeed, who can look
upon its folds rippling in the breeze without pride of country. If in
a foreign land the flag is companionship, and country itself, with all
its endearments, who, as he sees it, can think of a State merely? Whose
eyes, once fastened upon its radiant trophies, can fail to recognize
the image of the whole Nation? It has been called “a floating piece of
poetry”; and yet I know not if it have an intrinsic beauty beyond other
ensigns. Its highest beauty is in what it symbolizes. It is because
it represents all, that all gaze at it with delight and reverence. It
is a piece of bunting lifted in the air; but it speaks sublimely, and
every part has a voice. Its stripes of alternate red and white proclaim
the original _union_ of thirteen States to maintain the Declaration
of Independence. Its stars of white on a field of blue proclaim that
_union_ of States constituting our national constellation, which
receives a new star with every new State. The two together signify
Union, past and present. The very colors have a language, officially
recognized by our fathers. White is for purity; red, for valor; blue,
for justice. And all together, bunting, stripes, stars, and colors,
blazing in the sky, make the flag of our country, to be cherished by
all our hearts, to be upheld by all our hands.

Not at once did this ensign come into being. Its first beginning was
in the camp before Boston, and it was announced by Washington in these
words: “The day which gave being to the new army, we hoisted the _Union
flag_, in compliment to the United Colonies.”[54] The National forces
and the National flag began together. Shortly afterwards, amidst the
acclamations of the people, a fleet of five sail left Philadelphia,
according to the language of the time, “under the display of a _Union
flag_ with thirteen stripes.”[55] This was probably the same flag, not
yet matured into its present form. In its corner, where are now the
stars, were the crosses of St. George and St. Andrew, red and white,
originally representing England and Scotland, and when conjoined, after
the union of those two countries, known as “the Union.” To these were
added thirteen stripes, alternate red and white, and the whole was
hailed at the time as the Great Union Flag. The States, represented by
the stripes, were in subordination to the National Unity, represented
by the two crosses. But this form did not continue long. By a
resolution adopted 14th June, 1777, and made public 3d September, 1777,
Congress determined “that the flag of the thirteen United States be
thirteen stripes, alternate red and white; that _the union_ be thirteen
stars, white in a blue field, representing a new constellation.”[56]
Here the crosses of St. George and St. Andrew gave place to white
stars in a blue field; the familiar symbol of British union gave place
to another symbol of union peculiar to ourselves; and this completed
the national flag, which a little later floated at the surrender of
Burgoyne. Long afterward, in 1818, it was provided by Congress that a
star be added on the admission of a new State, “to take effect on the
fourth day of July next succeeding such admission.”[57] Thus, in every
respect, and at each stage of its history, the National Flag testifies
to the National Unity. The whole outstretched, indivisible country is
seated in its folds.

There is a curious episode of the national flag, which is not without
value. As far back as 1754, Franklin, while attempting a union of the
Colonies, pictured the principal ones in a wood-cut under the device of
a snake divided into eight parts marked with their initials, and under
the disjointed whole the admonitory motto, “_Join or die_,”--thus
indicating the paramount necessity of Union. In the heats of the
Revolutionary discussion, a similar representation of all the Thirteen
Colonies was adopted as the head-piece of newspapers, and was painted
on banners; but when the Union was accomplished, the divisions and
initials were dropped, and the snake was exhibited whole, coiled
in conscious power, with thirteen rattles, and under it another
admonitory motto, “_Don’t tread on me_,”--being a warning to the mother
country.[58] This flag was yellow, and it became the early standard of
the Revolutionary navy, being for the first time hoisted by Paul Jones
with his own hands. It had a further lesson. A half-formed additional
rattle was said by Franklin “to represent the province of Canada,”
and the wise man added, that “the rattles are united together so as
never to be separated but by breaking them to pieces.” Thus the snake
at one time pictured the necessity of Union, and at another time its
indissoluble bond.[59] But these symbols were all in harmony with the
national flag, which, from its first appearance, in all its forms,
pictured the common cause.

2. There is next the National Motto, as it appears on the national
seal and on the national money. A common seal and common money are
signs of National Unity. In each the supreme sovereignty of the Nation
is manifest. The first is like the national flag, and stands for
the Nation, especially in treaties with foreign powers. The second
is a national convenience, if not necessity, taking its distinctive
character from the Nation, so that everywhere it is a representative
of the Nation. Each has the same familiar motto, _E pluribus
unum_,--“From many one.” Its history attests its significance.

On the 4th of July, 1776, the very day of Independence, Benjamin
Franklin, John Adams, and Thomas Jefferson were appointed a committee
to prepare a device for a great seal. They were of the identical
committee that had reported the Declaration of Independence itself.
Their report on the seal was made 20th August, 1776; and here we first
meet the national motto, in such entire harmony with the Declaration,
making us “one people.” Questions of detail intervened, and no
conclusion was reached until 20th June, 1782, when the present seal was
adopted, being the American bald eagle, with the olive-branch in one
talon and a bundle of thirteen arrows in the other, and in his beak a
scroll, bearing the inscription, _E pluribus unum_. Familiar as these
Latin words have become,--so that they haunt the memory of manhood,
youth, and childhood alike,--it is not always considered how completely
and simply they tell the story of our national life. Out of Many
Colonies was formed One Nation. Former differences were merged in this
unity. No longer Many, they were One. The Nation by its chosen motto
repeats perpetually, “We are One”; and the Constitution echoes back,
“We, the people of the United States.”

3. There is next the National Name, which of itself implies National
Unity. The States are not merely allied, associated, coalesced,
confederated, but they are _United_, and the Constitution, formed to
secure a more perfect union, is “for the _United_ States of America,”
which term was used as the common name of the Nation.

A regret has been sometimes expressed by patriots and by poets, that
some single term was not originally adopted, which of itself should
exclude every denationalizing pretension, and be a talisman for the
heart to cherish and for the tongue to utter,--as when Nelson gave his
great watchword at Trafalgar, “_England_ expects every man to do his
duty.” Occasionally it is proposed to call the country _Columbia_, and
thus restore to the great discoverer at least part of the honor taken
from him when the continent was misnamed _America_. _Alleghania_ has
also been proposed; but this word is too obviously a mere invention,
besides its unwelcome suggestion of Alligator. Another proposition
has been _Vinland_, being the name originally given by the Northmen,
four centuries before Christopher Columbus. Professor Lieber, on one
occasion, called the nation _Freeland_, a name to which it will soon
be entitled. Even as a bond of union, such a name would not be without
value. As long ago as Herodotus, it was said of a certain people,[60]
that they would have been the most powerful in the world, if they had
been united; but this was impossible, from the want among themselves of
a common name.

Forgetting that the actual name implies Unity, and, when we consider
its place in the preamble of the National Constitution, that it
implies Nationality also, the partisans of State pretensions argue
from it against even the idea of country; and here I have a curious
and authentic illustration. In reply to an inquirer,[61] who wished
a single name, Mr. Calhoun exclaimed: “Not at all; we have no name
because we ought to have none; we are only States united, and have
no country.” Alas, if it be so!--if this well-loved land, for which
so many have lived, for which so many have died, is not our country!
But this strange utterance shows how completely the poison of these
pretensions had destroyed the common sense, as well as the patriotism,
of this much-mistaken man.

Names may be given by sovereign power to new discoveries or
settlements; but, as a general rule, they grow out of the soil,
they are autochthonous. Even Augustus, when ruling the Roman world,
confessed that he could not make a new word,[62] and Plato tells
us that “a creator of names is the rarest of human creatures.”[63]
Reflecting on these things, we may appreciate something of the
difficulty in the way of a new name at the formation of the National
Constitution. As this was little more than a transcript of prevailing
ideas and institutions, it was natural to take the name used in the
Declaration of Independence.

And yet it must not be forgotten that there was a name of
different character which was much employed. Congress was called
“Continental,” the army “Continental,” the money “Continental,”--a
term certainly of unity, as well as vastness. But there was still
another national designation, accepted at home and abroad. Our
country was called “America,” and we were called “Americans.” Here
was a natural, unsought, and instinctive name,--a growth, and not
a creation,--implying national unity and predominance, if not
exclusive power, on the continent. It was used not occasionally or
casually, but constantly,--not merely in newspapers, but in official
documents. Not an address of Congress, not a military order, not a
speech, which does not contain this term, at once so expansive and so
unifying. At the opening of the first Continental Congress, Patrick
Henry, in a different mood from that of a later day, announced the
national unity under this very name. Declaring the boundaries of the
several Colonies effaced, and the distinctions between Virginians,
Pennsylvanians, New-Yorkers, and New-Englanders as no more, he
exclaimed, in words of comprehensive patriotism, “I am not a Virginian,
but an _American_.”[64] Congress took up the strain, and commissioned
Washington as commander-in-chief of the armies “for the defence
of _American_ liberty”;[65] and Washington himself, in his first
general order at Cambridge, assuming his great command, announced
that the armies were “for the support and defence of the liberties of
_America_;[66] and in a letter to Congress, just before the Battle
of Trenton, he declared that he had labored “to discourage all kinds
of local attachments and distinctions of country, _denominating the
whole by the greater name of American_.”[67] Then at the close of the
war, in its immortal Address, fit supplement to the Declaration of
Independence, Congress said: “Let it be remembered that it has ever
been the pride and boast of _America_ that the rights for which she
contended were the rights of Human Nature.”[68] Washington again,
in his letter to Congress communicating the National Constitution,
says, in other words, which, like those of Congress, cannot be too
often quoted, that “the _consolidation of our Union_” is “the greatest
interest of _every true American_.”[69] Afterwards, in his Farewell
Address, which from beginning to end is one persuasive appeal for
nationality, after enjoining upon his fellow-citizens that “_unity of
government_ which constitutes them _one people_,” he gives to them a
national name, and this was his legacy: “_The name of American, which
belongs to you in your national capacity_, must always exalt the just
pride of patriotism more than any appellation derived from local
discriminations.”[70] Thus did Washington put aside those baneful
pretensions under which the country has suffered, even to the extent of
adopting a National Name, which, like the Union itself, should have a
solid coercive power.

It is not impossible that in the lapse of time history will vindicate
the name adopted by Washington, which may grow with the Republic, until
it becomes the natural designation of one country. Our fathers used
this term more wisely than they knew; but they acted under Providential
guidance. Is it not said of the stars, that God “calleth them all by
names, by the greatness of His might”?[71] Is it not declared also that
He will make him who overcometh a pillar in the temple, and give to him
a “new name”?[72] So, as our stars multiply, and the nation overcometh
its adversaries, persuading all to its declared principles, everywhere
on the continent, it will become a pillar in the temple, and the name
of the continent itself will be needed to declare alike its unity and
its power.

4. To these “unities,” derived from history and the heart of the
people, may be added another, where Nature is the great teacher. I
refer to the geographical position and configuration of our country,
if not of the whole continent, marking it for one nation. Unity is
written upon it by the Almighty hand. In this respect it differs much
from Europe, where, for generations, seas, rivers, and mountains kept
people apart, who had else, “like kindred drops, been mingled into
one.” There is no reason why they should not commingle here. Nature in
every form is propitious. Facility of intercourse, not less than common
advantage, leads to unity: both these are ours. Here are navigable
rivers, numerous and famous, being so many highways of travel, and a
chain of lakes, each an inland sea. Then there is an unexampled extent
of country adapted to railways; and do not forget that with the railway
is the telegraph, using the lightning as its messenger, so that the
interrogatory to Job is answered, “Canst thou send lightnings that they
may go?”[73] The country is one open expanse, from the frozen Arctic
to the warm waters of the Gulf, and from the Atlantic to the Rocky
Mountains,--and there already science supplies the means of overcoming
this barrier, which in other days would have marked international
boundaries. The Pacific Railway will neutralize these mountains, and
complete the geographical unity of the continent. The slender wire of
the telegraph, when once extended, is an indissoluble tie; the railway
is an iron band. But these depend upon opportunities which Nature
supplies, so that Nature herself is one of the guardians of our nation.

He has studied history poorly, and human nature no better, who
imagines that this broad compacted country can be parcelled into
different nationalities. Where will you run the thread of partition? By
what river? Along what mountain? On what line of latitude or longitude?
Impossible. No line of longitude or latitude, no mountain, no river,
can become the demarcation. Every State has rights in every other
State. The whole country has a title, which it will never renounce, in
every part, whether the voluminous Mississippi as it pours to the sea,
or that same sea as it chafes upon our coast. As well might we of the
East attempt to shut you of the West from the ocean as you attempt to
shut us from the Mississippi. The ocean will always be yours as it is
ours, and the Mississippi will always be ours as it is yours.

Our country was planned by Providence for a united and homogeneous
people. Apparent differences harmonize. Even climate, passing through
all gradations from North to South, is so tempered as to present an
easy uniformity from the Atlantic to the Rocky Mountains. Unmeasured
supplies of all kinds, mineral and agricultural, are at hand,--the
richest ores and the most golden crops, with the largest coal-fields of
the world below and the largest corn-fields of the world above. Strabo
said of ancient Gaul, that, by its structure, with its vast plains and
considerable rivers, it was destined to become the theatre of a great
civilization.[74] But the structure of our country is more auspicious.
Our plains are vaster and our rivers more considerable, furnishing a
theatre grander than any imagined by the Greek geographer. It is this
theatre, thus appointed by Nature, which is now open for the good of
mankind.

Here I stop, to review the field over which we have passed, and to
gather its harvest into one sheaf. Beginning with the infancy of the
Colonies, we have seen how, with different names and governments, they
were all under _one sovereignty_, with common and interchangeable
rights of citizenship, so that no British subject in one Colony could
be made an alien in any other Colony; how, even at the beginning,
longings for a common life began, showing themselves in “loving
accord”; how Franklin regarded the Colonies “as so many counties”;
how the longings increased, until, under the pressure of the mother
country, they broke forth in aspiration for “an American Commonwealth”;
how they were at last organized in a Congress, called, from its
comprehensive character, “Continental”; how, in the exercise of powers
derived from “the good people,” and in their name, the Continental
Congress put forth the Declaration of Independence, by which the
sovereignty of the mother country was forever renounced, and we were
made “one people,” solemnly dedicated to Human Rights, and thus became
a Nation; how the undivided sovereignty of all was substituted for
the undivided sovereignty of the mother country, embracing all the
States as the other sovereignty had embraced all the Colonies; how,
according to Franklin, the States were locked together, “so as never to
be separated, but by breaking them to pieces”; how in an evil hour the
Confederation was formed in deference to denationalizing pretensions
of the States; how the longings for national life continued, and
found utterance in Congress, in Washington, and in patriot compeers;
how Jay wished the States should be like “counties”; how “Washington
denounced State sovereignty as “bantling” and “monster”; how at last
a National Convention assembled, with Washington as President, where
it was voted that “a National Government ought to be established”;
how in this spirit, after ample debate, the National Constitution was
formed, with its preamble beginning “We, the people,” with its guaranty
of a republican government to all the States, with its investiture of
Congress with all needful powers for the maintenance of the Government,
and with its assertion of supremacy over State constitutions and laws;
how this Constitution was commended by Washington in the name of the
Convention as “the consolidation of our Union”; how it was vindicated
and opposed as creating a National Government; how on its adoption we
again became a Nation; then how our nationality has been symbolized
in the National Flag, the National Motto, and the National Name; and,
lastly, how Nature, in the geographical position and configuration of
the country, has supplied the means of National Unity, and written her
everlasting guaranty. And thus do I bind the whole together into one
conclusion, saying to all, We are a Nation.

Nor is this all. Side by side with the growth of National Unity was
a constant dedication to Human Rights, which showed itself not only
in the Declaration of Independence, with its promises and covenants,
but in the constant claim of the rights of Magna Charta, the earlier
cries of Otis, the assertion by the first Continental Congress of the
right of the people “to participate in their legislative council,” the
commission of Washington as commander-in-chief “for the defence of
American liberty,” and the first general order of Washington, on taking
command of his forces, where he rallies them to this cause; also in
the later proclamation of Congress, at the close of the Revolution,
that the rights contended for had been “the rights of Human Nature,”
and the farewell general order of Washington, on the same occasion,
where the contest is characterized in the same way: so that Human
Rights were the beginning and end of the war, while the nation, as it
grew into being, was quickened by these everlasting principles, and its
faith was plighted to their support.

       *       *       *       *       *

As a Nation, with a place in the family of nations, we have the powers
of a nation, with corresponding responsibilities. Whether we regard
these powers as naturally inhering in the nation, or as conferred upon
it by those two title-deeds, the Declaration of Independence and the
National Constitution, the conclusion is the same. From Nature, and
also from its title-deeds, our nation must have all needful powers:
first, for the national defence, foremost among which is the power to
uphold and defend the national unity; secondly, for the safeguard of
the citizen in all his rights of citizenship, foremost among which is
equality, the first of rights, so that, as all owe equal allegiance,
all shall enjoy equal protection; and, thirdly, for the support
and maintenance of all the promises made by the nation, especially
at its birth, being baptismal vows which cannot be disowned. These
three powers are essentially national. They belong to our nation by
the very law of its being and the terms of its creation. They cannot
be neglected or abandoned. Every person, no matter what his birth,
condition, or color, who can raise the cry, “I am an American citizen,”
has a right to require at the hands of the nation, that it shall do
its utmost, by all its central powers, to uphold the national unity,
to protect the citizen in the rights of citizenship, and to perform
the original promises of the nation. Failure here is apostasy and
bankruptcy combined.

It is vain to say that these requirements are not expressly set
down in the National Constitution. By a law existing before this
title-deed, they belong to the essential conditions of national life.
If not positively nominated in the Constitution, they are there in
substance; and this is enough. Every word, from “We, the people,” to
the signature, “George Washington,” is instinct with national life, and
there is not a single expression taking from the National Government
any inherent power. From this “nothing” in the Constitution there can
come nothing adverse. But there has always been a positive injunction
on the nation to guaranty “a republican form of government” to all the
States; and who can doubt, that, in the execution of this guaranty,
the nation may exercise all these powers, and provide especially for
the protection of the citizen in all the rights of citizenship? There
are also recent Amendments, abolishing slavery, and expressly securing
“the privileges and immunities of citizens” against the pretensions of
States. Then there is the Declaration of Independence itself, which is
the earlier title-deed. By that sacred instrument we were declared “one
people,” with liberty and equality for all, and then, fixing forever
the rights of citizenship, it was announced that all just government
was derived only from “the consent of the governed.” Come weal or woe,
that great Declaration must stand forever. Other things may fail, but
this cannot fail. It is immortal as the nation itself. It is part of
the nation, and the part most worthy of immortality. By it the National
Constitution must be interpreted; or rather, the two together are the
Constitution,--as Magna Charta and the Bill of Rights together are
the British Constitution. By the Declaration our nation was born and
its vital principles were announced; by the Constitution the nation
was born again and supplied with the machinery of government. The two
together are our National Scriptures, each being a Testament.

       *       *       *       *       *

Against this conclusion there has been from the beginning one perpetual
pretension in the name of States. The same spirit which has been so
hostile to national unity in other countries, which made each feudal
chief a petty sovereign, which for a long time convulsed France, which
for centuries divided Italy, and which, unhappily, still divides
Germany, has appeared among us. Assuming that communities never
“sovereign” while colonies, and independent only by the national
power, had in some way, by some sudden hocus-pocus, leaped into local
sovereignty, and forgetting also that two sovereignties cannot coexist
in the same place, as, according to the early dramatist,

    “Two kings in England cannot reign at once,”[75]

the States insisted upon sovereign powers justly belonging to the
Nation. Long ago the duel began. The partisans of State pretensions,
plausibly professing to _decentralize_ the Government, have
done everything possible to _denationalize_ it. In the name of
self-government, they have organized local lordships hostile to Human
Rights; in the name of the States, they have sacrificed the Nation.

This pretension, constantly showing itself, has broken out on three
principal occasions. The first was in the effort of Nullification,
which occurred in 1832, where, under the lead of Mr. Calhoun, South
Carolina attempted to nullify the Revenue Acts of Congress, or, in
other words, to declare them void within her limits. After encountering
the matchless argument of Daniel Webster, enforced by his best
eloquence, Nullification was blasted by the thunderbolt of Andrew
Jackson, who, in his Proclamation, as President, thus exposed it, even
in the form of Secession, which it assumed at a later day: “Each State,
having expressly parted with so many powers as to constitute jointly
with the other States _a single nation_, cannot from that period
possess any right to secede, because such secession does not break a
league, but destroys the unity of a nation.”[76] The pretension next
showed itself in the Rebellion; and now that the Rebellion is crushed,
it reappears in still another form, by insisting that each State at
its own will may disregard the universal rights of the citizen, and
apply a discrimination according to its own local prejudices,--thus
within its borders nullifying the primal truths of the Declaration of
Independence. Here again do State pretensions, in their anarchical
egotism, interfere with the National Unity.

The pretensions of States have found their ablest and frankest upholder
in John C. Calhoun. I take a single instance, on account of its
explicitness. In reply to a Northern Senator, the defender of Slavery
said:--

    “Now let me tell the Senator that the doctrines which we
    advocate are the result of the fullest and most careful
    examination of our system of government, and that our
    conviction that we constitute _an Union, and not a Nation_, is
    as strong and as sincere as that of the Senator or any other in
    the opposite opinion.”

    “We are as devoted to the Union as any portion of the American
    people (I use the phrase as meaning the people of the Union);
    but we see in a national consolidated government evils
    innumerable to us. Admit us to be a Nation and not an Union,
    and where would we stand? _We are in the minority._”[77]

Evidently, in that minority he saw the doom of Slavery.

       *       *       *       *       *

Local self-government, whether in the town, county, or State, is of
incalculable advantage, supplying the opportunities of political
education, and also a local administration adapted precisely to local
wants. On this account the system has been admired by travellers
from abroad, who have found in our “town meetings” the nurseries of
the Republic, and have delighted in local exemption from central
supervisorship. De Tocqueville, who journeyed here, has recorded his
authoritative praise,--and Laboulaye, who has visited us only in his
remarkable studies, unites with De Tocqueville. Against that exacting
centralization, absorbing everything, of which Paris is the example, I
oppose the American system of self-government, which leaves the people
to themselves, subject only to the paramount conditions of national
life. But these conditions cannot be sacrificed. No local claim of
self-government can for a moment interfere with the supremacy of the
Nation, in the maintenance of Human Rights.

According to the wisdom of Plutarch, we must shun those pestilent
persons who would “carry trifles to the highest magistrate,” and, in
the same spirit, reject that pestilent supervisorship which asserts
a regulating power over local affairs, and thus becomes a giant
intermeddler. Let these be decided at home, in the States, counties,
and towns to which they belong. Such is the genius of our institutions.
This is the precious principle of self-government, which is at once
educator and agency. In the former character, it is an omnipresent
schoolmaster; in the latter, it is a suit of chain-armor, which, from
flexibility, is adapted to the body of the nation, so that the limbs
are free. Each locality has its own way in matters peculiar to itself.
But the rights of all must be placed under the protection of all; nor
can there be any difference in different parts of the country. Here the
rule must be uniform, and it must be sustained by the central power
radiating to every part of the various empire. This is according to the
divine Cosmos, which in all its spaces is pervaded by one universal
law. It is the rule of Almighty Beneficence, which, while leaving
human beings to the activities of daily life and the consciousness
of free-will, subjects all to the same commanding principles. Such
centralization is the highest civilization, for it approaches the
nearest to the heavenly example. Call it imperialism, if you please: it
is simply the imperialism of the Declaration of Independence, with all
its promises fulfilled. It is rendering unto Cæsar the things that are
Cæsar’s. Already by central power Slavery has been abolished. Already
by central power all have been assured in the equality of _civil_
rights.

                  “Two truths are told,
    As happy prologues to the swelling act
    Of the imperial theme.”

It remains now that by central power all should be assured in the
equality of _political_ rights. This does not involve necessarily
what is sometimes called the “regulation” of the suffrage by the
National Government, although this would be best. It simply requires
the abolition of any discrimination among citizens, inconsistent with
Equal Rights. If not by Act of Congress, let it be by a new Amendment
of the Constitution; but it must be at once. Until this is done, we
leave undone what ought to be done, and, in pitiable failure to perform
a national duty, justify the saying that “there is no health in us.”
The preposterous pretension, that color, whether of the hair or of the
skin, or that any other unchangeable circumstance of natural condition
may be made the “qualification” of a voter, cannot be tolerated. It is
shocking to the moral sense, and degrading to the understanding.

As in the Nation there can be but one sovereignty, so there can be
but one citizenship. The unity of sovereignty finds its counterpart
and complement in the unity of citizenship, and the two together are
the tokens of a united people. Thus are the essential conditions
of national life all resolved into three,--_one sovereignty, one
citizenship, one people_.

       *       *       *       *       *

I conclude as I began. The late Rebellion against the nation was in the
name of State Rights; therefore State Rights in their denationalizing
pretensions must be overthrown. It proceeded from hostility to the
sacred principles of the Declaration of Independence; therefore must
these sacred principles be vindicated in spirit and in letter, so that
hereafter they shall be a supreme law, coëqual with the Constitution,
in whose illumination the Constitution must be read, and they shall
supply the final definition of a Republic for guidance at home and for
example to mankind.

In this great change we follow Nature and obey her mandate. By
irresistible law, water everywhere seeks its level, and finds it; and
so, by law as irresistible, man seeks the level of every other man
in rights, and will find it. Human passions and human institutions
are unavailing to arrest it, as Nature is stronger than man, and the
Creator is mightier than the creature. The recognition of this law
is essential to the national cause; for so you will work with Nature
rather than against it, and at the same time in harmony with the
Declaration of Independence. Here I borrow a word from Locke, who, in
his Essay “Of the Conduct of the Understanding,” says, that, in dealing
with propositions, we must always examine upon what they “bottom.”[78]
Now, in dealing with the Rebellion, we find, that, though in the name
of State Rights, it “bottomed” on opposition to National Law and open
denial of the self-evident truths declared by our fathers, especially
of that central truth which Abraham Lincoln, at Gettysburg, in the
most touching speech of all history, thus announces: “Four-score and
seven years ago, our fathers brought forth upon this continent a new
Nation, conceived in Liberty, and dedicated to the proposition that
_all men are created Equal_.”[79] Slavery was “bottomed” on the direct
opposite; and so was the Rebellion, from beginning to end. Therefore
we must encounter this denial. We do not extinguish Slavery, we do
not trample out the Rebellion, until the vital truth declared by our
fathers is established, and Nature in her law is obeyed. To complete
the good work, this is necessary. Liberty is won: Equality must be won
also. In England there is Liberty without Equality; in France, Equality
without Liberty. The two together must be ours. This final victory
will be the greatest of the war; it will be the consummation of all
other victories. Here must we plant the national standard. To this
championship I summon you. Go forth, victors in so many fields, and
gather now the highest palm of all. The victory of ideas is grander far
than any victory of blood. What battle ever did so much for humanity
as the Sermon on Mars Hill? What battle ever did so much as the
Declaration of Independence? But Sermon and Declaration are one, and it
is your glorious part to assure the National Unity on this adamantine
base.

All hail to the Republic, redeemed and regenerated, One and
Indivisible! Nullification and Secession are already, like the extinct
monsters of a former geological period, to be seen only in the museum
of History. With their extinction must disappear the captious,
litigious, and disturbing spirit engendered by State pretensions. The
whole face of the country will be transformed. There will be concord
for discord, smiles for frowns. There will be a new consciousness
of national life, with a corresponding glow. The soul will dilate
with the assured unity of the Republic, and all will feel the glory
of its citizenship. Since that of Rome, nothing so commanding.
Local jealousies and geographical distinctions will be lost in the
attractions of a common country. Then, indeed, there will be no North,
no South, no East, no West; but there will be One Nation. No single
point of the compass, but the whole horizon, will receive our regard.
Not the Southern Cross flaming with beauty, not even the North Star,
long time guide of the mariner and refuge to the flying bondman, but
the whole star-spread firmament, will be our worship and delight.

As the Nation stands confessed in undivided sovereignty, the States
will not cease their appropriate functions. Interlocked, interlaced,
and harmonized, they will be congenial parts of the mighty whole, with
Liberty and Equality the recognized birthright of all, and no local
pretension to interfere against the universal law. There will be a
sphere alike for the States and Nation. Local self-government, which
is the pride of our institutions, will be reconciled with the national
supremacy in maintenance of human rights, and the two together will
constitute the elemental principles of the Republic. The States will
exercise a minute jurisdiction required for the convenience of all; the
Nation will exercise that other paramount jurisdiction required for
the protection of all. The reconciliation--God bless the word!--thus
begun will embrace the people, who, forgetting past differences, will
feel more than ever that they are One, and it will invigorate the still
growing Republic, whose original root was little more than an acorn, so
that it will find new strength to resist the shock of tempest or time,
while it overarches the continent with its generous shade. Such, at
least, is the aspiration in which all may unite.

    “Firm like the oak may our blest nation rise,
    No less distinguished for its strength than size;
    The unequal branches emulous unite
    To shield and grace the trunk’s majestic height;
    Through long succeeding years and centuries live,
    No vigor losing from the aid they give!”[80]




CONSTANT DISTRUST OF THE PRESIDENT.

REMARKS IN THE SENATE, ON THE FINAL ADJOURNMENT, NOVEMBER 26, 1867.


    Thursday, November 21st, Congress reassembled, pursuant to the
    resolution adopted July 20th. According to existing law, the
    regular session would commence on the first Monday of December.

    November 26th, Mr. Grimes, of Iowa, moved the adjournment
    of the two Houses on Monday, December 2d, at half past
    eleven o’clock, A. M. Mr. Sumner suggested “twelve o’clock,”
    remarking,--

I question whether we should leave even the break of half an hour
between the two sessions. The point is just this: Will you leave to
the President one half-hour within which he may take advantage of the
absence of Congress, and issue commissions which would perhaps run--I
do not decide the point now, but which, I say, might run to the last
day of the next session?--that may be midsummer or autumn. I take it
that an appointment during that interim of half an hour might possibly
be valid to the last day of the next session of Congress.

    MR. EDMUNDS [of Vermont]. But the law takes no notice of parts
    of a day.

    MR. SUMNER. That is a technicality. Why open the question?

    Mr. Grimes, following the suggestion, altered his motion to
    “twelve o’clock.” A debate ensued, in which Mr. Sherman, of
    Ohio, Mr. Fessenden, of Maine, and Mr. Trumbull, of Illinois,
    took part. Mr. Sumner followed.

I hope that what we do will be for the welfare of the country, and with
no reference to mere rumors or reports. There I agree with my friend;
but then I do not agree with him, when he says, Give the President
another chance. We have been giving him chances, and we cannot act now
without taking into consideration his character and position, which
have become matters of history. I would speak with proper delicacy,
with proper reserve, but I must speak under the responsibility of
a Senator. A large portion of our country believe the President a
wicked man, of evil thoughts and unpatriotic purposes, in spirit and
conduct the successor of Jefferson Davis, through whom the Rebellion is
revived. Such are the sentiments of a large portion of our people.

    MR. DIXON [of Connecticut]. I desire to ask the Senator if that
    is the opinion of a majority of the American people, in his
    judgment.

MR. SUMNER. It is unquestionably the opinion of a large portion of
the people of the United States; whether a majority or not the future
may disclose. I will not anticipate any such judgment. I speak now
with reference to what is before us. The question is, whether we shall
give him another opportunity. I say, No. And here I act on no floating
rumor, to which the Senator from Illinois refers; I act with reference
to the character of the chief magistrate, displayed in his public
conduct. It seems to me that it will be something like rashness, if the
Senate concede to him another occasion to practise on the country in
carrying out his policy, as we know he has practised in times past.
We must stop the way. We should not give him a day; we should not give
him five minutes,--I am ready to say that,--not five minutes, for the
chance of illegitimate power. I will not allow him to exercise it, and
then take my chance hereafter of applying the corrective.

And that brings me to the exact point as to whether the present session
should expire precisely when the coming session begins. I see no reason
why it should not. I see no reason why we should interpose the buffer
even of five minutes. Let one session come close upon the other, and
then we shall exclude every possibility of evil consequences. In
France, during the old monarchy, when the king died, the moment the
breath was out of his body the reign of his successor began, so that
the cry, “The king is dead,” was followed instantly by another cry,
“Long live the king!” Now I know not why, when this session expires,
we may not at the same time announce its expiration and announce a new
session.

    The resolution was agreed to, and Congress adjourned
    accordingly.




THE FOURTEENTH AMENDMENT: WITHDRAWAL OF ASSENT BY A STATE.

REMARKS IN THE SENATE, ON THE RESOLUTIONS OF THE LEGISLATURE OF OHIO
RESCINDING ITS FORMER RESOLUTION IN RATIFICATION OF THE FOURTEENTH
AMENDMENT, JANUARY 31, 1868.


The resolutions from the Legislature of Ohio are so important in
character, and so wholly without precedent, I believe, in our history,
that I think they justify remark even by a Senator who has not the
honor of any special association with that State.

It seems to me very clear that the authors of these resolutions have
accomplished nothing except to exhibit their own blind prejudices. By
the Constitution of the United States, a State may give its assent to
a Constitutional Amendment. There is no provision for any withdrawal
of such assent, when once given. The assent of the State, once given,
is final. A State, I do not hesitate to say, can no more withdraw
such assent than it can withdraw from the Union; and on the latter
proposition I believe there is now a universal accord.

But, happily, Sir, this extraordinary effort of an accidental
Legislature is absolutely impotent. The Amendment in question is
already a part of the Constitution of the United States, and in full
vigor, even without the assent of Ohio. By a report from the Secretary
of State it appears that there is official evidence of the assent of
the Legislatures of Connecticut, New Hampshire, Tennessee, New Jersey,
Oregon, Vermont, New York, Illinois, West Virginia, Kansas, Nevada,
Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania,
Michigan, Massachusetts, and Nebraska,--being twenty in all, without
Ohio. To these now we may add Iowa, which has given its assent very
recently, and also Maine, which has notoriously given its assent,
although I understand it has not been officially communicated to
the Department of State,--making, therefore, twenty-two States,
even without Ohio. Twenty-two States are more than three fourths of
the Loyal States, or, in other words, of those States that at this
moment have Legislatures. The full requirement of the Constitution is
therefore met.

This Amendment was originally proposed by a vote of two thirds of
Congress, composed of the representatives of the Loyal States. It
has now been ratified by the Legislatures of three fourths of the
Loyal States, being the same States which originally proposed it
through their representatives in Congress. The States that are
competent to propose a Constitutional Amendment are competent to adopt
it. Both things have been done. The required majority in Congress
have proposed it; the required majority of States have adopted it.
Therefore, I say, this resolution of the Legislature of Ohio is _brutum
fulmen_,--impotent as words without force. It can have no practical
effect, except to disclose the character of its authors. As such it may
be dismissed to the limbo of things lost on earth.

    Mr. Johnson, of Maryland, followed with some remarks, to which
    Mr. Sumner replied:--

MR. PRESIDENT,--I wish to remind the Senator from Maryland of the exact
words of the Constitution, which were not, it seems to me, in his
mind when he spoke. An Amendment, when proposed, “shall be valid to
all intents and purposes as part of this Constitution, when ratified
by the Legislatures of three fourths of the several States.” It does
not say, “when ratified by three fourths of the several States,” but
“by the ‘Legislatures’ of three fourths of the several States.” Now,
if there are States without Legislatures, they can have no voice in
the ratification. Apply this practically. Three fourths of the actual
Legislatures of this Union have ratified the proposed Amendment, and
I insist, on the text of the Constitution, and also on the reason
of the case, that such ratification is complete. But I am unwilling
that this argument should stand merely on my words. I introduce here
the authority of the best living text-writer on the jurisprudence
of our country, who has treated this very point in a manner which
leaves no opportunity for reply. I refer to the book of Mr. Bishop
on the Criminal Law, who, in one of his notes,[81] considers whether
the Amendment of the Constitution abolishing Slavery had been at the
time he wrote adopted in a constitutional manner. Of course the very
question which we are now discussing with reference to the Fourteenth
Amendment arises also on the Amendment prohibiting Slavery. They are
both in the same predicament. If the Fourteenth Amendment is not now
a part of the Constitution of the United States, then the Amendment
prohibiting Slavery is not a part of the Constitution of the United
States. They both stand on the same bottom; they were both proposed by
Congress in the same way,--that is, by a vote of two thirds of the
representatives of the Loyal States; and they have both been ratified
by the votes of three fourths of the States having Legislatures. I send
to the Chair the work of Mr. Bishop, and I ask the Secretary to be good
enough to read what I have marked.

    The Secretary read the note above cited.




LOYALTY IN THE SENATE: ADMISSION OF A SENATOR.

REMARKS IN THE SENATE, ON THE RESOLUTION TO ADMIT PHILIP F. THOMAS AS
SENATOR FROM MARYLAND, FEBRUARY 13, 1868.


    February 13th, the question of the admission of Hon. Philip F.
    Thomas, Senator-elect from Maryland, charged with disloyalty,
    coming up for consideration, on a resolution of Hon. Reverdy
    Johnson, of that State, that said Thomas “be admitted to his
    seat on his taking the oaths prescribed by the Constitution
    and laws of the United States,” Mr. Sumner moved the following
    substitute:--

        “That Philip F. Thomas, Senator-elect from Maryland, cannot
        be admitted to take the oaths of office required by the
        Constitution and laws, inasmuch as he allowed his minor son
        to leave the paternal house to serve as a Rebel soldier,
        and gave him at the time one hundred dollars in money, all
        of which was ‘aid,’ ‘countenance,’ or ‘encouragement’ to
        the Rebellion, which he was forbidden to give; and further,
        inasmuch as in forbearing to disclose and make known the
        treason of his son to the President, or other proper
        authorities, according to the requirement of the statute
        in such cases, he was guilty of misprision of treason as
        defined by existing law.”

    Mr. Sumner said:--

A great debate on the question how loyalty shall be secured in the
Rebel States is for the time silenced in order to consider how loyalty
shall be secured in this Chamber. Everywhere in the Rebel States
disloyal persons are struggling for power; and now at the door of the
Senate we witness a similar struggle. If disloyalty cannot be shut out
of this Chamber, how can we hope to overcome it elsewhere?

More than once at other times I have discussed the question of
loyalty in the Senate. But this was anterior to the adoption of the
Fourteenth Constitutional Amendment. The case is plainer now than
then, inasmuch as there is now an explicit text requiring loyalty as a
“qualification.” Formerly we were left to something in the nature of
inference; now the requirement is plain as language can make it.

By the new Amendment it is provided that “no person shall be a Senator
or Representative in Congress, … who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, … to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof.”

These words are precisely applicable to the present case. They lay down
a rule from which there is no appeal; and this rule is not merely in
the statutes, but in the Constitution. It is the plain declaration that
loyalty is a requirement in a Senator and Representative. If we do not
apply it to ourselves now, it is difficult to see with what consistency
we can apply it to others. Your course here will affect the meaning of
this Constitutional Amendment, if not its validity for the future.

I do not stop to argue the question if that Amendment is now a part
of the Constitution; for I would not unnecessarily occupy your time,
nor direct attention from the case which you are to decide. For the
present I content myself with two remarks: first, the Amendment has
already been adopted by three fourths of the States that took part in
proposing it, and this is enough, for the spirit of the Constitution
is thus satisfied; and, secondly, it has already been adopted by “the
_Legislatures_ of three fourths of the several States” which have
Legislatures, thus complying with the letter of the Constitution.
Therefore, by the spirit of the Constitution, and also by its letter,
this Amendment is now a part of the Constitution, binding on all of
us. As such I invoke its application to this case. In face of this
positive, peremptory requirement, it is impossible to see how loyalty
can be other than a “qualification.” In denying it, you practically set
aside this Amendment.

But, even without this Amendment, I cannot doubt that the original
text is sufficiently clear and explicit. It is nowhere said in the
Constitution that certain specified requirements, and none others,
shall be “qualifications” of Senators. This word “qualifications,”
which plays such a part in this case, occurs in another connection,
where it is provided that “each House shall be the judge of the
elections, returns, and _qualifications_ of its own members.” What
these “qualifications” may be is to be found elsewhere. Searching the
Constitution from beginning to end, we find three “qualifications,”
which come under the head of _form_, being (1.) age, (2.) citizenship,
and (3.) inhabitancy in the State. But behind and above these is
another “qualification,” which is of _substance_, in contradiction
to _form_ only. So supreme is this, that it is placed under the
safeguard of an oath. This is loyalty. It is easy to see how infinitely
more important is this than either of the others,--than age, than
citizenship, or than inhabitancy in the State. A Senator failing in
either of these would be incompetent by the letter of the Constitution;
but the Republic might not suffer from his presence. On the other
hand, a Senator failing in loyalty is a public enemy, whose presence in
this council-chamber would be a certain peril to the Republic.

It is vain to say that loyalty is not declared to be a “qualification.”
I deny it. Loyalty is made a “qualification” in the Amendment to the
Constitution; and then again in the original text, when, in the most
solemn way possible, it is distinguished and guarded by an oath.
Men are familiarly said to “qualify,” when they take the oath of
office; and thus the language of common life furnishes an authentic
interpretation of the Constitution.

But no man can be allowed to take the oath as Senator, when, on
the evidence before the Senate, he is not competent. If it appear
that he is not of sufficient age, or of the required citizenship or
inhabitancy, he cannot be allowed to go to that desk. Especially if it
appear that he fails in the all-important “qualification” of loyalty,
he cannot be allowed to go to that desk. A false oath, taken with our
knowledge, would compromise the Senate. We who consent will become
parties to the falsehood; we shall be parties in the offence. It is
futile to say that the oath is one of purgation only, and that it is
for him who takes it to determine on his conscience if he can take it.
The Senate cannot forget the evidence; nor can its responsibility in
the case be swallowed up in any process of individual purgation. On the
evidence we must judge, and act accordingly. The “open sesame” of this
Chamber must be something more than the oath of a suspected applicant.

According to Lord Coke, “an infidel cannot be sworn” as a witness. This
was an early rule, which has since been softened in our courts. But,
under the Constitution of the United States and existing statutes, a
_political infidel_ cannot be sworn as a Senator. Whatever may be his
inclination or motive, he must not be allowed to approach your desk.
The country has a right to expect that all who enter here shall have
a sure and well-founded loyalty, above all question or suspicion. And
such, I insist, is the rule of the Constitution and of Congress.

As if to place the question beyond all doubt, Congress by positive
enactment requires that every Senator, before admission to his seat,
shall swear that he has “voluntarily given no aid, countenance,
counsel, or encouragement to persons engaged in armed hostility” to the
United States.[82] Here is little more than an interpretation of the
Constitution. The conclusion is plain. No person who has voluntarily
given even “countenance” or “encouragement” to another engaged in the
Rebellion can be allowed to take that oath.

After this statement of the rule, the question arises, if Philip F.
Thomas can be permitted to take the oath at your desk, or, in other
words, to “qualify” as a Senator of the United States. Is he competent?
This is a question of evidence.

The ample discussion of the facts in this case, and their singular
plainness, supersede the necessity of all details. The atmosphere about
Mr. Thomas and his acts are harmonious. From the beginning we find him
enveloped in coldness and indifference while his country was in peril.
Observing him more closely, we are shocked by two acts of positive
disloyalty, one of which is the natural prelude of the other. The
first muttering of the Rebellion found him a member of the Cabinet of
Mr. Buchanan; but when this uncertain President proposed the succor of
our troops at Charleston, already menaced with war, Mr. Thomas withdrew
from the patriotic service. He resigned his seat, following the lead of
Cobb, Thompson, and Floyd. A man is known by the company he keeps. His
company at this time were traitors, and the act they united in doing
was essentially disloyal. As the Rebellion assumed the front of war,
they all abandoned their posts: some to join the Rebellion and mingle
with its armies; Mr. Thomas, more prudently, to watch the course of
events in Maryland, ready to lift his arm also, if his State pronounced
the word. This concerted desertion was in itself a conspiracy against
the Government; and in the case of Mr. Thomas, who was Secretary of
the Treasury, it was a blow at the national credit, which it was his
special duty to guard. It was an act of disloyalty to be blasted by
indignant history, even if your judgment fails now. And this was the
first stage in this record.

Meanwhile the war rages. Armies are marshalled; battles ensue;
Washington itself is beleaguered; the Republic trembles with peril.
But Mr. Thomas continues in the seclusion of his home, enveloped
in the same disloyal atmosphere, and refusing always the oath of
allegiance. At last, in 1863, an only son arrives at the age of
eighteen. Though still a minor, he is already of the military age.
Naturally filled with the sentiments of his father’s fireside, he
seeks to maintain them by military service. He is like his father, but
with the ardor of youth instead of the caution of years. He avows
his purpose to enlist in the Rebel army, thus to levy war against his
country, and adhere to its enemies. All this was treason,--plain,
palpable, unquestionable, downright treason. Instead of detaining his
son,--instead of keeping him back,--instead of interposing a paternal
veto,--instead of laying hands gently upon him,--instead of denouncing
him to the magistrate,--all of which the father might have done,--he
deliberately lets him go, and then, to cap the climax of criminal
complicity, furnishes the means for his journey and his equipment. He
gives one hundred dollars. The father is not rich, and yet he gives
this considerable sum. Few soldiers started with such ample allowance.
Thus it stands: the father, who has already deserted his post in the
Cabinet, and has refused to take the oath of allegiance to his country,
contributes a soldier to the Rebellion, and that soldier is his only
son; to complete and assure the great contribution, he contributes a
sum of money also. If all this accumulated disloyalty, beginning in a
total renunciation of every patriotic duty, and finally consummated
by an act of flagrant, unblushing enormity, is not “aid and comfort”
or “countenance” or “encouragement” to the Rebellion, it is difficult
to say what can be. There must be new dictionaries for these familiar
words, and they must receive a definition down to this day unknown.
They must be treated as thread or gossamer, when they should be links
of iron.

On an occasion like the present, where the moral guilt is so patent,
I hesitate to employ technical language. The simplest phrase is the
best. But the law supplies language of its own. Regarding the act of
Mr. Thomas in the mildest light, it was “misprision of treason,”
according to every definition of that crime which can be found in the
books. Lord Hale, whose authority, in stating the rules of Criminal
Law, is of the highest character, says, under this head: “Every man is
bound to use all possible lawful means to prevent a felony, as well
as to take the felon; and if he doth not, he is liable to a fine and
imprisonment.”[83] Lord Coke, another eminent authority, says: “If
any be present when a man is slain, and omit to apprehend the slayer,
it is a misprision.”[84] The same rule is, of course, applicable to
treason. Mr. Bishop, who in his remarkable work on the Criminal Law
has compressed the result of all the authorities, says: “Misprision of
felony is a criminal neglect, either to prevent a felony from being
committed by another, or to bring to justice a person known to be
guilty of felony. Misprision of treason is the same of treason.”[85]
Then again he says, citing Hawkins, Blackstone, East, and Russell, all
familiar names in our courts, each an oracle:--

    “The doctrine of misprision, as now understood, may be stated
    as follows: To make a man liable for a crime committed through
    the physical volition of another, his own will must in some
    degree concur in or contribute to the crime. _But when it is
    treason or felony, and he stands by while it is done, without
    using the means in his power to prevent it, though his will
    concurs not in it,--or when he knows of its having been in
    his absence committed, but neither makes disclosure of it to
    the authorities nor does anything to bring the offender to
    punishment_,--the law holds him guilty of a breach of the duty
    due from every man to the community wherein he dwells and the
    government which protects him.”[86]

I adduce these authorities in order to show, that, by the Common Law,
as illustrated by some of its best names, Mr. Thomas is beyond all
question an offender. Clearly he did not use “the means in his power”
to prevent the treason of his son, nor did he “make disclosure of it to
the authorities,” according to the received rule of law.

But the statutes of the United States leave us no room for doubt
or indulgence. According to the precise text, the present case is
anticipated and provided for. The Statute of Crimes, adopted in
1790, at the beginning of the National Government, after declaring
the punishment of treason, proceeds to declare the punishment of
“misprision of treason,” as follows:--

    “That, if _any person or persons, having knowledge of the
    commission of any of the treasons aforesaid, shall conceal and
    not as soon as may be disclose and make known the same_ to
    the President of the United States or some one of the Judges
    thereof, or to the President or Governor of a particular State
    or some one of the Judges or Justices thereof, _such person or
    persons, on conviction, shall be adjudged guilty of misprision
    of treason_, and shall be imprisoned not exceeding seven years,
    and fined not exceeding one thousand dollars.”[87]

Apply these plain words to the present case. Nobody can doubt that
Mr. Thomas had “knowledge” of the treason of his son, and, having
this knowledge, failed to “disclose and make known the same” to the
President of the United States or the other proper authorities. Abraham
Lincoln was at the time President. There is no pretence that the
father communicated the crime of the son to this patriot magistrate,
or to any other loyal officer by whom he could have been arrested.
Therefore, beyond all question, on the facts of the case, the father
is guilty under the statute, and liable to seven years of imprisonment
and a fine of one thousand dollars. And now, instead of seven years of
imprisonment and a fine of one thousand dollars, it is proposed to give
him six years of trust and honor as a Senator of the United States,
with an annual allowance of five thousand dollars.

According to the old law, the indictment against Mr. Thomas would
allege, that, “not having the fear of God before his eyes, but being
moved and seduced by the instigation of the Devil,” he perpetrated his
crime. And now, with this crime unatoned for, he comes here to ask your
support and countenance. We are to forget all that he did, “moved and
seduced” by evil instigation, and welcome him to this Chamber, instead
of handing him over to judgment.

It is treating this case with a levity which it is hard to pardon,
when Senators argue that the father was not under obligations to
exercise all the paternal power in restraint of his son, or at least
in denouncing him to the proper authorities. What is patriotism, what
is the sacred comprehensive charity of country, if a father can be
blameless after such a license to his son? The country was another
mother to this son, and he went away to strike this mother on the
bosom. There is a case in antiquity which illustrates the solemn duty
of the father at least to detain the son. I quote from Sallust. This
remarkable writer, in his history of the Catilinarian conspiracy,
tells us that there were many not enlisted in the conspiracy who went
out to join Catiline; that among these was Aulus Fulvius, the son of
a Senator; and the historian adds, without comment, that the father,
when his son was brought back, ordered him to be slain: “_Fuere tamen
extra conjurationem complures, qui ad Catilinam profecti sunt: in his
A. Fulvius, Senatoris filius; quem retractum ex itinere parens necari
jussit_.”[88] Humanity rejects the barbarous exercise of the paternal
power according to the Roman Law; but patriotism may find even in this
example a lesson of paternal duty. The American father should not have
slain his son, but he should have kept him from joining the enemies of
his country. This requirement of duty was none the less strong because
not enforced by death. I utter not only the rule of patriotism, but the
rule of law, when I say that it was positive and peremptory. I will not
admit that an American citizen can be blameless who dismisses a son
from the paternal roof with money in his purse, to make war upon his
country. All that the son did afterward, all that the son sought to
do, became the act of the father who sent him forth on his parricidal
errand. The father’s treason was continued and protracted in the
treason of the son.

In making this contribution to the Rebellion, the act of the father
was enhanced by his eminent position. He had held a seat in the
Cabinet, binding him more than any common citizen to the most watchful
allegiance, and giving to what he did peculiar importance. A soldier
contributed to the Rebellion by such a person was a startling event.
It was aid and comfort, countenance and encouragement, of far-reaching
significance. It was a hostile act, directly injurious to his country,
and of evil example, the influence of which no man can measure. How
many others were weakened in loyalty by this parricidal act who can
tell? When the citizen who has enjoyed public trust and been a “pillar
of State” gives way, others about him must fall likewise. So great a
parricide must cause other parricides.

And now this father, who gave a son to the Rebellion, comes into this
sanctuary of the Constitution, where loyalty is the first condition of
admission, and asks for a seat. _Immo in Senatum venit._ Is there not
hardihood in the application? Of course, he cannot be admitted without
your act having an influence proportioned to the importance of the
position. It will be felt everywhere throughout the country. Admit him,
and you will unloose the bonds of loyalty and give a new license to the
Rebellion in its protracted struggle. On the contrary, if you send him
away, you will furnish a warning to the disloyal, and teach a lesson of
patriotism which will thrill the hearts of good citizens now anxiously
watching for peace and reconciliation through the triumph of loyalty.

I speak this positively, because on this case I see no doubt. The facts
are indisputable, and over all towers one supreme act of parricide,
for which there can be no excuse or apology. A soldier was contributed
to the enemies of his country. There is no question of motive. The
parricidal act was complete, and it explains itself. There is no
doubt that it was done. In the presence of such an act, so absolutely
criminal, there can be no room for inquiry as to the motive. All this I
put aside and look only at the transcendent fact, in which all pretence
of innocence is so entirely lost and absorbed that it cannot be seen.
As well seek to find a motive, if a son struck at the bosom of his
mother. The law supplies the motive, when it says, in its ancient
phrase, “moved and seduced by the instigation of the Devil.”

Some there are who doubt the motive of the father, and claim for him
now the benefit of that doubt. Even if the motive of this criminal act
were in question, as I insist that it cannot be, then do I say, that,
in a case like this, when disloyalty is to be shut out of this Chamber,
I give the benefit of doubt to my country.

There is another voice which sometimes reaches me. We are told, that,
if the applicant be disloyal, then we may expel him. For myself, I
prefer to take no such risk. Viewing the case as I do, I have no right
to take any such risk. Disloyalty must be met at the door, and not
allowed to enter in. The old verses, more than once repeated in our
public discussions, are applicable now,--never more so:--

    “I hear a lion in the lobby roar:
    Say, Mr. Speaker, shall we shut the door,
    And keep him there? or shall we let him in,
    To try if we can turn him out again?”[89]

    February 19th, after a debate of several days, Mr. Thomas was
    declared “not entitled to take the oath of office, or to hold a
    seat, as a Senator of the United States,”--Yeas 27, Nays 20.




INTERNATIONAL COPYRIGHT.

LETTER TO A COMMITTEE IN NEW YORK, ON THIS SUBJECT, FEBRUARY 17, 1868.


    From time to time International Copyright has occupied
    attention, and Mr. Sumner has often in correspondence expressed
    himself with regard to it. The following letter, in answer
    to an inquiry, was published by a New York committee of the
    following gentlemen: George P. Putnam, S. Irenæus Prime, Henry
    Ivison, James Parton, Egbert Hasard.

                                 SENATE CHAMBER, February 17, 1868.

  MY DEAR SIR,--Pardon my delay. There are two ways of dealing
  with the question of International Copyright,--one by the treaty
  power, and the other by reciprocal legislation.

  I have always thought that the former was the easier, but at the
  present moment the House of Representatives is not disposed to
  concede much to the treaty power.

  Mr. Everett, while Secretary of State, negotiated a treaty
  on this subject with Great Britain, which was submitted to
  the Senate, reported by the Committee on Foreign Relations,
  considered in the Senate, and finally left on the table, without
  any definitive vote.

  I shall send you a copy of this treaty, which, I believe, has
  never seen the light.

  I have always been in favor of an International Copyright, as
  justice to authors and a new stage in the unity of nations.
  Perhaps the condition of public affairs at this time, the
  preoccupation of the public mind, the imminence of the
  Presidential election, and also the alienation from England, may
  present temporary obstacles. But I am sanguine that at last the
  victory will be won. If authors should have a copyright anywhere,
  they should have it everywhere within the limits of civilization.

  Accept my best wishes, and believe me, dear Sir,

      Faithfully yours,

          CHARLES SUMNER.

  JAMES PARTON, ESQ., Secretary of the Committee.




THE IMPEACHMENT OF THE PRESIDENT.

THE RIGHT OF THE PRESIDENT OF THE SENATE PRO TEM. TO VOTE.

REMARKS IN THE SENATE, ON THE QUESTION OF THE COMPETENCY OF MR. WADE,
SENATOR FROM OHIO, THEN PRESIDENT OF THE SENATE PRO TEM., TO VOTE ON
THE IMPEACHMENT OF PRESIDENT JOHNSON, MARCH 5, 1868.


MR. PRESIDENT,--I shall not attempt to follow learned Senators in the
question whether this is a Senate or a Court. That question, to my
mind, is simply one of language, and not of substance. Our powers at
this moment are under the Constitution of the United States; nor can we
add to them a tittle by calling ourselves a Court or calling ourselves
a Senate. There they are in the Constitution. Search its text and you
will find them. The Constitution has not given us a name, but it has
given us powers; and those we are now to exercise. The Senate has the
sole power to try impeachments. No matter for the name, Sir. I hope
that I do not use an illustration too familiar, when I remind you that
a rose under any other name has all those qualities which make it the
first of flowers.

I should not at this time have entered into this discussion, if I had
not listened to objections on the other side which seem to me founded,
I will not say in error, for that would be bold when we are discussing
a question of so much novelty, but I will say founded in a reading of
history which I have not been able to verify. Senator after Senator
on the other side, all distinguished by ability and learning, have
informed us that the Constitution intended to prevent a person who
might become President from presiding at the trial of the President. I
would ask learned Senators who have announced this proposition, where
they find it in the Constitution. The Constitution says:--

    “When the President of the United States is tried, the Chief
    Justice shall preside.”

This is all; and yet on this simple text the superstructure of Senators
has been reared.

The Constitution does not proceed to say why the Chief Justice shall
preside; not at all; nothing of the kind. Senators supply the reason,
and then undertake to apply it to the actual President of the Senate.
Where, Sir, do they find the reason? They cannot find the reason which
they now assign in any of the contemporary authorities illustrating
the Constitution; they cannot find it in the debates of the National
Convention reported by Madison, or in any of the debates in the States
at that time; nor can they find it in the “Federalist.” When does that
reason first come on the scene? Others may be more fortunate than I;
but I have not been able to find it earlier than 1825, nearly forty
years after the formation of the Constitution, in the Commentaries of
William Rawle. We all know the character of this work,--one of great
respectability, and which most of us in our early days have read and
studied. How does he speak of it? As follows:--

    “The Vice-President, being the President of the Senate,
    presides on the trial, except when the President of the
    United States is tried. As the Vice-President succeeds to the
    functions and emoluments of the President of the United States,
    whenever a vacancy happens in the latter office, it would be
    inconsistent with the implied purity of a judge that a person
    under a probable bias of such a nature should participate in
    the trial, and it would follow that he should wholly retire
    from the court.”[90]

Those are the words of a commentator on the Constitution. They next
appear eight years later, in the Commentaries of Mr. Justice Story.
After citing the provision, “When the President of the United States
is tried, the Chief Justice shall preside,” the learned commentator
proceeds:--

    “The reason of this clause has been already adverted to. It
    was to preclude the Vice-President, who might be supposed
    to have a natural desire to succeed to the office, from
    being instrumental in procuring the conviction of the Chief
    Magistrate.”[91]

And he cites in his note “Rawle on the Constitution, ch. 22, p.
216,”[92] being the very passage that I have just read. Here is the
first appearance of this reason, which is now made to play so important
a part, being treated even as a text of the Constitution itself. At
least I have not been able to meet it at an earlier day.

If you repair to the contemporary authorities, including the original
debates, you will find no such reason assigned,--nothing like it,--not
even any suggestion of it. On the contrary, you will find Mr. Madison,
in the Virginia Convention, making a statement which explains in the
most satisfactory manner the requirement of the Constitution.[93] No
better authority could be cited. Any reason supplied by him anterior to
the adoption of the Constitution must be of more weight than any _ex
post facto_ imagination or invention of learned commentators.

If we trust to the lights of history, the reason for the introduction
of this clause in the Constitution was because the framers of the
Constitution contemplated the possibility of the suspension of
the President from the exercise of his powers, in which event the
Vice-President could not be in your chair, Sir. If the President were
suspended, the Vice-President would be in his place. The reports
will verify what I say. If you refer to the debates of the National
Convention, under the date of Friday, September 14, 1787, you will find
the following entry, which I read now by way of introduction to what
follows at a later date, on the authority of Mr. Madison himself.

    “Mr. Rutledge and Mr. Gouverneur Morris moved ‘that persons
    impeached be suspended from their offices until they be tried
    and acquitted.’

    “MR. MADISON. The President is made too dependent already
    on the Legislature by the power of one branch to try him in
    consequence of an impeachment by the other. This intermediate
    suspension will put him in the power of one branch only. They
    can at any moment, in order to make way for the functions of
    another who will be more favorable to their views, vote a
    temporary removal of the existing magistrate.

    “Mr. King concurred in the opposition to the amendment.”[94]

The proposition was rejected by the decisive vote of eight States
in the negative to three in the affirmative. We all see, in reading
it now, that it was rejected on good grounds. It would obviously be
improper to confer upon the other branch of Congress the power, by its
own vote, to bring about a suspension of the Chief Magistrate. But
it did not follow, because the Convention rejected the proposition
that a suspension could take place on a simple vote of the House
of Representatives, that therefore the President could not be
suspended. When the Senate was declared to have the sole power to
try impeachments, it was by necessary implication invested with the
power, incident to every court, and known historically to belong to
the English court of impeachment, from which ours was borrowed, of
suspending the party accused. All this was apparent at the time, if
possible, more clearly than now. It was so clear, that it furnishes an
all-sufficient reason for the provision that the Chief Justice should
preside on the trial of the President, without resorting to the later
reason which has been put forward in this debate.

But we are not driven to speculate on this question. While the
Constitution was under discussion in the Virginia Convention, George
Mason objected to some of the powers conferred upon the President,
especially the pardoning power. This was on June 18, 1788, and will be
found under that date in the reports of the Virginia Convention. This
earnest opponent of the Constitution said that the President might
“pardon crimes which were advised by himself,” and thus further his own
ambitious schemes. This brought forward Mr. Madison, who had sat, as
we all know, throughout the debates of the National Convention, and
had recorded its proceedings, and who, of all persons, was the most
competent to testify at that time as to the intention of the framers.
What said this eminent authority? I give you his words:--

    “There is one security in this case to which gentlemen may not
    have adverted. If the President be connected in any suspicious
    manner with any person, and there be grounds to believe he will
    shelter him, the House of Representatives can impeach him;
    they”--

evidently referring to the Senate, or the Senate in connection with the
House--

    “can remove him, if found guilty; _they can suspend
    him, when suspected_, and the power will devolve on the
    Vice-President.”[95]

Mark well these words,--“they can suspend him, when suspected.” If only
suspected, the President can be suspended. What next? “And his power
will devolve on the Vice-President.” In which event, of course, the
Vice-President would be occupied elsewhere than in this Chamber.

Those were the words of James Madison, spoken in debate in the Virginia
Convention. Taken in connection with the earlier passage in the
National Convention, they seem to leave little doubt with regard to the
intention of the framers of the Constitution. They were unwilling to
give to the other House alone the power of suspension; but they saw,
that, when they authorized the Senate to try impeachments, they gave to
it the power of suspension, if it should choose to exercise it; and the
suspension of the President necessarily involved the withdrawal of the
Vice-President from this Chamber, and the duty of supplying his place.

I submit, then, on the contemporary testimony, that the special reason
why the Chief Justice is called to preside, when the President is on
trial, is less what learned Senators have assigned than because the
Vice-President under certain circumstances would not be able to be
present. It was to provide for such a contingency, being nothing less
than his necessary absence in the discharge of the high duties of Chief
Magistrate, that a substitute was necessary, and he was found in the
Chief Justice. All this was reasonable. It would have been unreasonable
not to make such a provision.

But this is not all. There is an incident, immediately after the
adoption of the Constitution, which is in harmony with this authentic
history. The House of Representatives at an early day acted on the
interpretation of the Constitution given by Mr. Madison. The first
impeachment, as we all know, was of William Blount, a Senator, and in
impeaching him the House of Representatives demanded that he should “be
sequestered from his seat in the Senate.” This was in 1797. The Senate
did not comply with this demand; but the demand nevertheless exists in
the history of your Government, and it illustrates the interpretation
which was given at that time to the powers of the Senate. The language
employed, that the person impeached should be “sequestered,” is the
traditional language of the British Constitution, constantly used, and
familiar to our fathers. In employing it, the House of Representatives
gave their early testimony that the Senate could suspend from his
functions any person impeached before them; and thus the House of
Representatives unite with Madison in supplying a sufficient reason
for the provision that on the trial of the President the Chief Justice
shall preside.

In abandoning the reason which I have thus traced to contemporary
authority, you launch upon an uncertain sea. You may think the reason
assigned by the commentators to be satisfactory. It may please your
taste; but it cannot be accepted as an authentic statement. If the
original propositions were before me, I should listen to any such
suggestion with the greatest respect. I do not mean to say now, that,
as a general rule, it has not much in its favor; but I insist, that,
so far as we are informed, the reason of the commentators was an
afterthought, and that there was another reason which sufficiently
explains the rule now under consideration.

I respectfully submit, Sir, that you cannot proceed in the
interpretation of this text upon the theory adopted by the learned
Senators over the way. You must take the text as it is. You cannot go
behind it; you cannot extend it. Here it is: “When the President of
the United States is tried, the Chief Justice shall preside.” That
is the whole, Sir. “The Chief Justice shall preside.” No reason is
assigned. Can you assign a reason? Can you supply a reason? Especially
can you supply one which is not sustained by the authentic contemporary
history of the Constitution, and particularly when you have authentic
contemporary history which supplies another reason? Unless I am much
mistaken, this disposes of the objection, proceeding from so many
Senators, that the Senator from Ohio cannot take the oath because he
may possibly succeed to the President now impeached at your bar.
He may vote or not, as he pleases; and there is no authority in the
Constitution, or any of its contemporary expounders, to criticize him.

       *       *       *       *       *

This is all, Sir, I have to say at this time on this head. There were
other remarks made by Senators over the way to which I might reply.
There was one that fell from my learned friend, the Senator from
Maryland, [Mr. JOHNSON,] in which he alluded to myself. He represented
me as having cited many authorities from the House of Lords, tending
to show, in the case of Mr. Stockton, that this person at the time was
not entitled to vote on the question of his seat. The Senator does
not remember that debate, I think, as well as I do. The point which I
tried to present to the Senate, and which, I believe, was affirmed by
a vote of the body, was simply this: that a man cannot sit as a judge
in his own case. That was all,--at least so far as I recollect; and I
submitted that Mr. Stockton at that time was a judge undertaking to
sit in his own case.[96] Pray, Sir, what is the pertinency of this
citation? Is it applicable at all to the Senator from Ohio? Is his case
under consideration? Is he impeached at the bar of the Senate? Is he in
any way called in question? Is he to answer for himself? Not at all.
How, then, does the principle of law, that no man shall sit as a judge
in his own case, apply to him? How does the action of the Senate in the
case of Mr. Stockton apply to him? Not at all. The two cases are as
wide as the poles asunder. One has nothing to do with the other.

Something has been said of the “interest” of the Senator from Ohio
on the present occasion. “Interest”! This is the word used. We are
reminded that in a certain event the Senator may become President,
and that on this account he is under peculiar temptations, which may
swerve him from justice. The Senator from Maryland went so far as to
remind us of the large salary to which he might succeed,--not less
than twenty-five thousand dollars a year,--and thus added a pecuniary
temptation to the other disturbing forces. Is not all this very
technical? Does it not forget the character of this great proceeding?
Sir, we are a Senate, and not a Court of _Nisi Prius_. This is not
a case of assault and battery, but a trial involving the destinies
of this Republic. I doubt if the question of “interest” is properly
raised. I speak with all respect for others, but I submit that it is
inapplicable. It does not belong here. Every Senator has his vote, to
be given on his conscience. If there be any “interest” to sway him,
it must be that of justice, and the safety of the country. Against
these all else is nothing. The Senator from Ohio, whose vote is now
in question, can see nothing but those transcendent interests by the
side of which office, power, and money are of small account. Put in
one scale these interests, so dear to the heart of the patriot, and in
the other all the personal temptations which have been imagined, and I
cannot doubt, that, if the Senator from Ohio holds these scales, the
latter will kick the beam.




THE CHIEF JUSTICE, PRESIDING IN THE SENATE, CANNOT RULE OR VOTE.

OPINION IN THE CASE OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF
THE UNITED STATES, MARCH 31, 1868.


    In the course of this trial there was an important claim of
    power by the Chief Justice, as presiding officer of the Senate,
    on which at the time Mr. Sumner expressed his opinion to the
    Senate, when it withdrew for consultation. As this claim was
    calculated in certain contingencies to affect the course of
    proceedings, possibly the final judgment, and as it might
    hereafter be drawn into a precedent, Mr. Sumner was unwilling
    to lose this opportunity of recording his reasons against it.

In determining the relations of the Chief Justice to the trial of the
President, we must look, first, to the National Constitution; for it
is solely by virtue of the National Constitution that this eminent
magistrate is transported from his own natural field to another, where
he is for the time an exotic. The Chief Justice in his own court is at
home; but it is equally clear, that, when he comes into the Senate, he
is a stranger. Though justly received with welcome and honor, he cannot
expect membership, or anything beyond the powers derived directly from
the National Constitution, by virtue of which he temporarily occupies
the Chair.

Repairing to our authoritative text, we find the only applicable
words:--

    “The Senate shall have the sole power to try all impeachments.…
    When the President of the United States is tried, the Chief
    Justice shall _preside_: and no person shall be convicted
    without the concurrence of two thirds of the members present.”

This is all. The Chief Justice shall _preside_, but subject to two
limitations specifically declared. First, the trial is to be by the
Senate _solely_, and nobody else,--thus carefully excluding the
presiding officer from all participation, except so far as is implied
in the power to preside; and, secondly, judgment of conviction can be
only by a vote of “two thirds of _the members present_,”--thus again
excluding the presiding officer, unless it is assumed that he is a
member of the Senate.

On the face of this text it is difficult to find ambiguity. Nobody
questions that the Chief Justice must preside. Can anybody question
that the trial must be by the Senate solely, and nobody else? To change
this requirement is to fly in the face of the National Constitution.
Can anybody question that the judgment of conviction must be by votes
of “members present,” and nobody else? Now, since the Chief Justice
is not a “member” of the Senate, it is plain that he is positively
excluded from vote on the final question. It only remains that he
should “preside.” And here the question recurs as to the meaning of
this familiar term.

The person who presides is simply, according to the language of our
Rules, “presiding officer,” and this designation is the equivalent or
synonym of speaker, and also of prolocutor, each of which signifies
somebody who speaks for the house. It is not implied that he votes
with the house, much less that he decides for the house, but only
that he is the voice of the house,--its speaker. What the house has
to say it says through him; but, except as organ of the house, he is
silent, unless also a member, when to his powers as presiding officer
he superadds the powers of a member also. From this brief statement it
appears at once how limited his functions must be.

Here I might stop; but, since this question has assumed unexpected
importance, I am induced to go further. It is easy to show that the
language of the National Constitution, if seen in the light of English
parliamentary history, must have an interpretation identical with its
natural import.

Nothing is clearer than this. If language employed in the National
Constitution had already, at the time of its formation, received a
definite meaning, it must be interpreted accordingly. Thus, when the
Constitution secures “trial by jury,” it secures that institution as
defined by antecedent English law. So, also, when it declares that the
judicial power shall extend to “all cases in law and equity” arising
under the National Constitution, it recognizes the distinction between
law and equity peculiar to English law. Courts of Common Law and Courts
of Equity are all implied in this language; and since there is no
further definition of their powers, we must ascertain them in England.
Cushing, in determining the rules of proceeding in our American
Legislatures, says:--

    “Such was the practice of the two Houses of the British
    Parliament when our ancestors emigrated; … and such has
    continued to be, and now is, the practice in that body.”[97]

This resource has been most persuasively presented by Mr. Wirt, in
his remarkable argument on the impeachment of Judge Peck, where he
vindicates and expounds the true rule of interpretation.

According to this eminent authority, what he calls “the English
archetypes” were the models for the framers of the National
Constitution. The courts were fashioned after these “archetypes.” They
were instituted according to “the English _originals_, to which they
were manifestly referred by the Constitution itself.”[98] Here again I
quote the words of Mr. Wirt.

All this is precisely applicable to that part of the National
Constitution under consideration. In essential features it was borrowed
from England. There is its original, its model, its archetype.
Therefore to England we go.

Not only to England must we go, but also to Parliamentary Law, as
recognized in England at the adoption of the National Constitution.
The powers of a presiding officer, where not specifically declared,
must be found in Parliamentary Law. The very term _preside_ is
parliamentary. It belongs to the technicalities of this branch of law,
as much as _indict_ belongs to the technicalities of the Common Law. In
determining the signification of this term, it will be of little avail
to show some local usage, or, perhaps, some decision of a court. The
usage or decision of a Parliament must be shown. Against this all vague
speculation or divination of reason is futile. I will not encumber this
discussion by superfluous authorities. Insisting that this question
must be determined by Parliamentary Law, I content myself with adducing
the often cited words of Lord Coke:--

    “And as every court of justice hath laws and customs for its
    direction, some by the Common Law, some by the Civil and Canon
    Law, some by peculiar laws and customs, etc., so the High
    Court of Parliament _suis propriis legibus et consuetudinibus
    subsistit_. It is _lex et consuetudo Parliamenti_, that all
    weighty matters in any Parliament, moved concerning the peers
    of the realm, or commons in Parliament assembled, _ought to
    be determined and adjudged and discussed by the course of the
    Parliament_, and not by the Civil Law, nor yet by the common
    laws of this realm used in more inferior courts.”[99]

Here is the true rule. To “the course of the Parliament” we must
resort. In “the course of the Parliament” we must find all the powers
of a presiding officer, and all that is implied in the authority to
preside. “The Chief Justice shall preside.” Such is the Constitution.
Nothing is specified with regard to his powers; nothing is said. What
was intended is left to inference from the language employed, which
must be interpreted according to “the course of the Parliament,”
precisely as what was intended by trial by jury is ascertained from the
Common Law. In the latter case we go to the Common Law; in the former
case we go to “the course of the Parliament.” You may as well turn away
from the Common Law in the one as from “the course of the Parliament”
in the other. In determining “the course of the Parliament” we resort
to the summary of text-writers, and, better still, to the authentic
instances of history.

Something has been said in this discussion with regard to the example
of Lord Erskine, who presided at the impeachment of Lord Melville. This
was in 1806, during the short-lived ministry of Fox, when Erskine was
Chancellor. It is by misapprehension that this instance is supposed
to sustain the present assumption. When seen in its true light, it is
found in harmony with the general rule. Erskine had at the time two
characters. He was Lord Chancellor, and in this capacity presiding
officer of the House of Lords, without the right to rule or vote, or
even to speak. Besides being Chancellor, he was also a member of the
House of Lords, with all the rights of other members. As we advance
in this inquiry, it will be seen that again and again it has been
practically decided, that, whatever the powers of a presiding officer
who is actually a member, a presiding officer who is not a member
cannot rule or vote, or even speak. In this statement I anticipate
the argument. I do it at this stage only to put aside the suggestion
founded on the instance of Lord Chancellor Erskine.

       *       *       *       *       *

I begin with the most familiar authority,--I mean the eminent writer
and judge, Sir William Blackstone. In his Commentaries, where is found,
in elegant form, the complete body of English law, you have this whole
matter stated in a few suggestive words:--

    “The Speaker of the House of Lords, _if a Lord of Parliament_,
    may give his opinion or argue any question in the House.”[100]

If not a Lord of Parliament, he could not give his opinion or argue any
question. This is in accordance with all the authorities and unbroken
usage; but it has peculiar value at this moment, because it is the text
of Blackstone. This work was the guide-book of our fathers. It first
appeared in 1765-69, the very period when the controversy with the
mother country was fervid; and it is an unquestionable fact of history
that it was read in the Colonies with peculiar interest. Burke, in one
of his masterly orations, portraying the character of our fathers,
says: “I hear that they have sold nearly as many of Blackstone’s
Commentaries in America as in England.”[101] Nothing is clearer than
that they knew it well.

The framers of the National Constitution had it before them constantly.
It was their most familiar work. It was to them as Bowditch’s Navigator
is to the mariner in our day. They looked to it for guidance on the
sea they were traversing. When they undertook to provide that the
Chief Justice, who was not a member of the Senate, should preside at
the impeachment of the President, they knew well that he could have no
power to “give his opinion or argue any question in the House,” for
Blackstone had instructed them explicitly on this head. They knew that
he was simply a presiding officer, according to the immemorial usage of
the upper House in England, with such powers as belong to a presiding
officer who is not a member of the House, and none other.

The powers of the presiding officer of the House of Lords are
illustrated by authority and precedents, all in harmony with the
statement of Blackstone. Ordinarily the Keeper of the Great Seal is the
presiding officer; but, unless a member of the body, he can do little
more than put the question. Any other person, as a Chief Justice, may
be delegated by royal commission. According to the rules of the House,
even if a peer, he cannot speak without quitting the woolsack, which is
the Chair, and moving “to his own place as a peer.”[102] The right of
speech belongs to him as a member, but he cannot exercise it without
leaving his place as presiding officer. So is he circumscribed.

A late writer on Parliamentary Law, whose work is a satisfactory guide,
thus sententiously sums up the law and usage:--

    “The position of the Speaker of the House of Lords is somewhat
    anomalous; for, though he is the president of a deliberative
    assembly, he is invested with no more authority than any other
    member; and if not himself a member, his office is limited to
    the putting of questions and other formal proceedings.”[103]

This statement is in obvious harmony with that of Blackstone; so that
there is no difference between the writer who is our guide to-day and
the learned commentator who was the guide of our fathers.

Mr. May goes still further, and lets us know that it is only as a
member of the House that the presiding officer can address it, even on
points of order:--

    “Upon points of order, the Speaker, if a peer, may address
    the House; but, as his opinion is liable to be questioned,
    like that of any other peer, he does not often exercise his
    right.”[104]

Thus, even if a peer, even if a member of the upper House, the
presiding officer cannot rule a point of order, nor address the
House upon it, except as any other member; and what he says is open
to question, like the utterance of any other member. Such is the
conclusion of the most approved English authority.

American writers on Parliamentary Law concur with English. Cushing,
who has done so much to illustrate the whole subject, says of the
presiding officer of the Lords, that he “is invested with no more
authority for the preservation of order than any other member; and if
not himself a member, his office is limited to the putting of questions
and other formal proceedings; … if he is a peer, he may address the
House and participate in the debates as a member.” He then says again:
“If a peer, he votes with the other members; if not, he does not vote
at all.” And he adds: “There is no casting vote in the Lords.”[105]
This statement was made long after the adoption of the National
Constitution, and anterior to the present controversy.

There are occasions when the Lords have a presiding officer called
a Lord High Steward. This is on the trial of a peer, whether upon
impeachment or indictment. Here the same rule is stated by Edmund
Burke, in his masterly Report to the House of Commons on the
impeachment of Warren Hastings:--

    “Every peer present at the trial (and every temporal peer
    hath a right to be present in every part of the proceeding)
    voteth upon every question of law and fact, and the question
    is carried by the major vote,--the High Steward himself voting
    merely as a peer and member of that court, in common with the
    rest of the peers, and in no other right.”[106]

In another place, the Report, quoting the Commons’ Journal, says:--

    “That the Lord High Steward was but as a Speaker, or
    _Chairman_, for the more orderly proceeding at the trials.”[107]

And then again:--

    “The appointment of him doth not alter the nature of the
    court, which still remaineth the Court of the Peers in
    Parliament.”[108]

The name of Burke gives to this illustration additional authority and
interest. It is not difficult to see how he would have decided the
present question.

In our day there have been instances of the Lord Chancellor as
presiding officer without being a peer. Brougham took his seat on the
22d November, 1830, before his patent as a peer had been made out, and
during this interval his energies were suppressed in the simple duty
of presiding officer and nothing else. The same was the case with that
eminent lawyer, Sir Edward Sugden, who sat as presiding officer on
the 4th March, 1852, although still a commoner; and it was also the
case with Sir Frederick Thesiger, who sat as presiding officer on the
1st March, 1858, although still a commoner. These instances attest
the prevalence of the early rule down to our day. Even Brougham, who
never shrank from speech or from the exercise of power, was constrained
to bow before its exigency. He sat as Lord Chancellor, and in that
character put the question, but this was all, until he became a member
of the House. Lord Campbell expressly records, that, while his name
appears in the entry of those present on the 22d November, 1830, as
_Henricus Brougham, Cancellarius_, “he had no right to debate and vote
till the following day,” when the entry of his name and office appears
as _Dominus Brougham et Vaux, Cancellarius_.[109]

Passing from these examples of recent history, I return to the rule as
known to our fathers at the adoption of the National Constitution. On
this head the evidence is complete. It is found in the State Trials
of England, in parliamentary history, and in the books of law; but it
is nowhere better exhibited than in the Lives of the Chancellors, by
Lord Campbell, himself a member of the House of Lords and a Chancellor,
familiar with it historically and practically. He has stated the
original rule, and in his work, which is as interesting as voluminous,
has furnished constantly recurring illustrations of it. In the
Introduction to his Lives, where he describes the office of Chancellor,
he enunciates the rule:--

    “Whether peer or commoner, the Chancellor is not, like the
    Speaker of the Commons, moderator of the proceedings of the
    House in which he seems to preside; he is not addressed in
    debate; he does not name the peer who is to be heard; he is
    not appealed to as an authority on points of order; and he
    may cheer the sentiments expressed by his colleagues in the
    ministry.”[110]

Existing rules of the Senate add to these powers; but such is the rule
with regard to the presiding officer of the House of Lords, even when
a peer. He is not appealed to on points of order. If a commoner, his
power is still less.

    “If he be a commoner, notwithstanding a resolution of the House
    that he is to be proceeded against for any misconduct as if he
    were a peer, he has neither vote nor deliberative voice, and he
    can only put the question, and communicate the resolutions of
    the House according to the directions he receives.”[111]

In the early period of English history the Chancellors were often
ecclesiastics, though generally commoners. Fortescue, Wolsey, and More
were never peers. This also was the case with Sir Nicholas Bacon,
father of Lord Bacon, who held the seals under Queen Elizabeth for
twenty years, and was colleague in the cabinet of Burleigh. Lord
Campbell remarks on his position as presiding officer of the House of
Lords:--

    “Not being a peer, he could not take a share in the Lords’
    debates; but, presiding as Speaker on the woolsack, he
    exercised a considerable influence on their deliberations.”[112]

Then again we are told:--

    “Being a commoner, he could neither act as Lord Steward nor sit
    upon the trial of the Duke of Norfolk, who was the first who
    suffered for favoring Mary’s cause.”[113]

Thus early do we meet illustration of this rule, which constantly
reappears in the annals of Parliament.

The successor of Sir Nicholas Bacon was Lord Chancellor Bromley; and
here we find a record interesting at this moment. After presiding at
the trial of Mary, Queen of Scots, the Lord Chancellor became ill
and took to his bed. Under the circumstances, Sir Edmund Anderson,
Chief Justice of the Common Pleas, was authorized by the Queen to act
as a substitute for the Chancellor; and thus the Chief Justice became
presiding officer of the House of Lords to the close of the session,
without being a peer.

Then came Sir Christopher Hatton, the favorite of Queen Elizabeth, and
so famous as the dancing Chancellor, who presided in the House of Lords
by virtue of his office, but never as peer. The same was the case with
his successor, Sir John Puckering. He was followed by the exemplary
Ellesmere, who was for many years Chancellor without being a peer, but
finished his career by adding to his title as presiding officer the
functions of a member. The greatest of all now followed. After much
effort and solicitation, Bacon becomes Chancellor with a peerage; but
it is recorded in the Lords’ Journals, that, when he spoke, he removed
from the woolsack “to his seat as a peer,” thus attesting that he had
no voice as presiding officer. At last, when the corruptions of this
remarkable character began to overshadow the land, the Chief Justice
of the King’s Bench, Sir James Ley, was designated by the King to act
as Speaker of the House of Lords. Soon afterward Bacon fell. Meanwhile
it is said that the Chief Justice “had very creditably performed
the duties of Speaker of the House of Lords.”[114] In other words,
according to the language of our Constitution, he had presided well.

Then came Williams, Coventry, and Finch, as Lord Keepers. As the last
absconded to avoid impeachment by the House of Commons, Littleton,
Chief Justice of the Common Pleas, “was placed on the woolsack as
Speaker.”[115] At a later time he received the Great Seal as Lord
Keeper. This promotion was followed by a peerage, at the prompting of
no less a person than the Earl of Strafford, “who thought he might be
more useful, if permitted to take part in the proceedings of the House
as a peer, than if he could only put the question as Speaker.”[116]
Clarendon says, that, as a peer, he could have done Strafford “notable
service.”[117] But the timid peer did not render the expected service.

Then came the period of Civil War, when one Great Seal was with the
King and another was with Parliament. Meanwhile the Earl of Manchester
was appointed Speaker of the upper House, and as such took his place on
the woolsack. As a peer he had all the privileges of a member of the
House over which he presided. Charles the Second, during his exile,
appointed Hyde, afterward Earl of Clarendon, as Chancellor; but the
monarch was for the time without a Court and without a Parliament. On
the Restoration, in 1660, the Chancellor at once entered upon all his
duties, judicial and parliamentary; and it is recorded, that, “though
still a commoner, holding the Great Seal, he took his place on the
woolsack as Speaker by prescription.”[118] A year later the commoner
was raised to the peerage, thus becoming more than presiding officer.
During illness from the gout the place of the Chancellor as presiding
officer was sometimes supplied by Sir Orlando Bridgeman, Chief Justice
of the Common Pleas, who on these occasions was presiding officer,
and nothing more. Lord Campbell says he “frequently sat Speaker in the
House of Lords,”[119]--meaning that he presided.

On the disgrace of Lord Clarendon, the disposal of the Great Seal was
the occasion of perplexity. The historian informs us, that, “after many
doubts and conflicting plans among the King’s male and female advisers,
it was put into the hands of a grave Common-Law judge,”[120] being
none other than the Chief Justice of the Common Pleas, who had already
presided in the absence of Lord Clarendon; but he was never raised to
the peerage. Then comes another explanation of the precise relation
of such an official to the House. Lord Campbell expressly remarks,
that, “never being created a peer, his only duty in the House of Lords
was to put the question, and to address the two Houses in explanation
of the royal will on the assembling of Parliament.”[121] Here is the
constantly recurring definition of the term _preside_.

For some time afterward there seems to have been little embarrassment.
Nottingham, who did so much for Equity, Shaftesbury, who did so little,
Guilford, so famous through contemporary biography, and Jeffreys, so
justly infamous,--successively heads of the law,--were all peers.
But at the Revolution of 1688 there was an interregnum, which again
brought into relief the relations between the upper House and its
presiding officer. James, on his flight, dropped the Great Seal into
the Thames. There was, therefore, no presiding officer for the Lords.
To supply this want, the Lords, at the meeting of the Convention
Parliament, chose one of their own number, the Marquis of Halifax,
as Speaker, and, in the exercise of the power inherent in them,
they continued to reëlect him day by day. During this period he was
strictly President _pro tempore_. At last, Sir Robert Atkyns, Chief
Baron of the Exchequer, a commoner, took his seat upon the woolsack as
Speaker, appointed by the Crown. Here, again, we learn that “serious
inconvenience was experienced from the occupier of the woolsack not
being a member of the House.”[122] At last, in 1693, the Great Seal was
handed to Sir John Somers, Lord Keeper; and here is another authentic
illustration of the rule. Although official head of the English law,
and already exalted for his ability and varied knowledge, this great
man, one of the saviours of constitutional liberty in England, was
for some time merely presiding officer. The historian records, that,
“while he remained a commoner, he presided on the woolsack only as
Speaker”;[123] that he “had only, as Speaker, to put the question, …
taking no part in debate.”[124] This is more worthy of notice because
Somers was recognized as a consummate orator. At last, according to
the historian, “there was a strong desire that he should take part in
the debates, and, to enable him, the King pressed his acceptance of a
peerage, which, after some further delay, he did, and he was afterward
known as Lord Somers.[125]

In the vicissitudes of public life this great character was dismissed
from office, and a successor was found in an inferior person, Sir
Nathan Wright, who was created Lord Keeper without a peerage. For the
five years of his official life it is recorded that he occupied the
woolsack, “merely putting the question, and having no influence over
the proceedings.”[126] Thus he presided.

Then came the polished Cowper, at first without a peerage, but after
a short time created a member of the House. Here again the historian
records, that, while he remained a commoner, “he took his place on
the woolsack as Speaker of the House of Lords, and without a right to
debate or vote.”[127] It appears, that, “not being permitted to share
in the debates in the House of Lords, he amused himself by taking notes
of the speeches on the opposite sides.”[128] Afterward, even when a
peer, and, as Chancellor, presiding at the impeachment of Sacheverell,
Lord Cowper did not interfere further than by saying, “Gentlemen of the
House of Commons,” or “Gentlemen, you that are counsel for the prisoner
may proceed.”[129]

Harcourt followed Cowper as Keeper of the Great Seal, but he was not
immediately raised to the peerage. It is recorded that during one
year he had “only to sit as Speaker,”[130]--that is, only to preside.
Afterwards, as peer, he became a member. On the accession of George
the First, Harcourt, in turn, gave place to Cowper, who was again made
Chancellor. To him succeeded the Earl of Macclesfield, with all the
rights of membership.

Lord Macclesfield, being impeached of high crimes and misdemeanors as
Chancellor, Sir Peter King, at the time Chief Justice of the Common
Pleas, was made presiding officer of the upper House, with only the
limited powers belonging to a presiding officer who is not a member of
the body. Here the record is complete. Turn to the trial and you will
see it all. It was he who gave directions to the managers, and also
to the counsel,--who put the question, and afterward pronounced the
sentence; but he acted always as presiding officer and nothing else.
I do not perceive that he made any rulings during the progress of the
trial. He was Chief Justice of the Common Pleas, acting as President
_pro tempore_. The report, describing the opening of the proceedings,
says that the articles of impeachment, with the answer and replication,
were read “by direction of the Lord Chief Justice King, Speaker of the
House of Lords.”[131] Another definition of the term _preside_.

All this is compendiously described by Lord Campbell:--

    “Sir Peter, not being a peer, of course had no deliberative
    voice, but, during the trial, as the organ of the House of
    Peers, he regulated the procedure without any special vote,
    intimating to the managers and to the counsel for the defendant
    when they were to speak and to adduce their evidence. After the
    verdict of _Guilty_, he ordered the Black Rod to produce his
    prisoner at the bar; and the Speaker of the House of Commons
    having demanded judgment, he, in good taste, abstaining from
    making any comment, dryly, but solemnly and impressively,
    pronounced the sentence which the House had agreed upon.”[132]

This proceeding was in 1725. At this time, Benjamin Franklin, the
printer-boy, was actually in London. It is difficult to imagine that
this precocious character, whose observation in public affairs was
as remarkable as in philosophy, should have passed eighteen months in
London at this very period without noting this remarkable trial and the
manner in which it was conducted. Thus, early in life, he saw that a
Chief Justice might preside at an impeachment without being a member
of the House of Lords or exercising any of the powers which belong to
membership.

Besides his eminence as Chief Justice, King was the nephew of the
great thinker who has exercised such influence on English and American
opinion, John Locke. Shortly after presiding at the impeachment as
Chief Justice, he became Chancellor with a peerage.

He was followed in his high post by Talbot and Hardwicke, each with a
peerage. Jumping the long period of their successful administrations,
when the presiding officer was also a member of the upper House, I
come to another instance where the position of the presiding officer
was peculiarly apparent,--and this, too, when Benjamin Franklin was
in London, as agent for Pennsylvania. I refer to Sir Robert Henley,
who became Lord Keeper in 1757, without a peerage. The King, George
the Second, did not like him, and therefore, while consenting to place
him at the head of the law, declined to make him a member of the House
over which he was to preside. At last, in 1760, the necessities of
the public service constrained his elevation to the peerage, and soon
afterward George the Third, who succeeded to the throne without the
animosities of his grandfather, created him Chancellor and Earl of
Northington.

For nearly three years, Henley, while still a commoner, was presiding
officer. During this considerable period he was without voice or vote.
The historian remarks, that, “if there had been any debates, he was
precluded from taking part in them.”[133] In another place he pictures
the defenceless condition of the unhappy magistrate with regard to his
own decisions in the court below, when heard on appeal:--

    “Lord Keeper Henley, till raised to the peerage, used to
    complain bitterly of being obliged to put the question for the
    reversal of his own decrees, without being permitted to say a
    word in support of them.”[134]

Lord Eldon, in his Anecdote Book, furnishes another statement of this
case:--

    “When Sir Robert Henley was Keeper of the Great Seal, and
    presided in the House of Lords as Lord Keeper, he could not
    enter into debate as a Chancellor being a peer does; and
    therefore, when there was an appeal from his judgments in the
    Court of Chancery, and the law Lords then in the House moved
    to reverse his judgments, … the Lord Keeper could not state
    the grounds of his opinions given in judgment, and support his
    decisions.”[135]

And thus for nearly three years this commoner presided.

A few weeks after Henley first took his place as presiding officer,
Franklin arrived in London for the second time, and continued there, a
busy observer, until after the Judge was created a peer. Even if he had
been ignorant of parliamentary usage, or had forgotten what passed at
the trial of Lord Macclesfield, he could not have failed to note that
the House of Lords had for its presiding officer an eminent judge,
who, not being a member, could take no part in its proceedings beyond
putting the question.

Afterward, in 1770, there was a different arrangement. Owing to
difficulty in finding a proper person as Chancellor, the Great Seal
was put in commission, and Lord Mansfield, Chief Justice of England,
was persuaded to act as presiding officer. Curiously enough, Franklin
was again in England, on his third visit, and remained through the
service of Lord Mansfield in this capacity. Thus this illustrious
American, afterward a member of the Convention that framed the National
Constitution, had at two different times seen the House of Lords with a
presiding officer who, not being a member of the body, could only put
the question, and then again with another presiding officer who, being
a member of the body, could vote and speak, as well as put the question.

But Franklin was not the only member of the National Convention to
whom these precedents were known. One or more had been educated at the
Temple; others were accomplished lawyers, familiar with the courts
of the mother country. I have already mentioned that Blackstone’s
Commentaries, where the general rule is clearly stated, was as well
known in the Colonies as in the mother country. Besides, our fathers
were not ignorant of the history of England, which, down to the
Declaration of Independence, had been their history. The English law
was also theirs. Not a case in its books which did not belong to them
as well as to the frequenters of Westminster Hall. The State Trials,
involving principles of Constitutional Law, and embodying these very
precedents, were all known. At least four editions had appeared
several years before the adoption of the National Constitution. I
cannot err in supposing that all these were authoritative guides at
the time, and that the National Constitution was fashioned in all the
various lights, historical and judicial, which they furnished.

The conclusion is irresistible, that the National Constitution, when
providing a presiding officer for the trial of the President of the
United States, used the term _preside_ in the sense already acquired in
Parliamentary Law, and did not intend any different signification; that
our fathers knew perfectly well the parliamentary distinction between a
presiding officer a member of the House and a presiding officer not a
member; that, in constituting the Chief Justice presiding officer for
a special temporary purpose, they had in view similar instances in the
mother country, when the Lord Keeper, Chief Justice, or other judicial
personage, had been appointed to preside over the House of Lords, of
which he was not a member, as our Chief Justice is appointed to preside
over the Senate, of which he is not a member; that they found in this
constantly recurring example an apt precedent for their guidance;
that they followed this precedent to all intents and purposes, using
received parliamentary language, “the Chief Justice shall preside,” and
nothing more; that, according to this precedent, they never intended
to invest the Chief Justice, President _pro tempore_ of the Senate,
with any other powers than those of a presiding officer not a member of
the body; and that these powers, exemplified in an unbroken series of
instances extending over centuries, under different kings and through
various administrations, were simply to put the question and to direct
generally the conduct of business, without undertaking in any way, by
voice or vote, to determine any question, preliminary, interlocutory,
or final.

In stating this conclusion I present simply the result of the
authorities. It is not I who speak; it is the authorities. My own
judgment may be imperfect; but here is a mass of testimony, concurring
and cumulative, without a single exception, which cannot err.

Plainly and unmistakably, the provision in our Constitution authorizing
the Chief Justice to _preside_ in the Senate, of which he is not a
member, was modelled on the English original. This, according to the
language of Mr. Wirt, was the “archetype” our fathers followed. As such
it was embodied in the National Constitution, as if the text expressly
declared that the Chief Justice, when presiding in the Senate, had
all the powers accorded by parliamentary usage to such a functionary
when presiding in the upper House of Parliament without being a member
thereof. In saying that he shall “preside” the Constitution confers no
powers of membership, and by the well-defined term employed limits him
to those precise functions sanctioned at the time by immemorial usage.

       *       *       *       *       *

Thus far I have considered this provision in the light of authorities
already known and recognized at the adoption of the National
Constitution. This is enough; for it is by these authorities that its
meaning must be determined. You cannot reject these without setting at
defiance a fixed rule of interpretation, and resorting instead to vague
inference or mere imagination, quickened, perhaps, by your desires.
Mere imagination and vague inference, quickened, perhaps, by your
desires, are out of place when Parliamentary Law is beyond all question.

Pardon me, if I protract this argument by an additional illustration,
derived from our own Congressional history. This is found under the
parallel provision of the National Constitution relating to the
Vice-President, which, after much debate in another generation,
received authoritative interpretation: “The Vice-President of the
United States shall be _President of the Senate_, but shall have
no vote, unless they be equally divided.” In other words, the
Vice-President, like the Chief Justice, shall _preside_ in the Senate,
but, unlike the Chief Justice, with a casting vote. His general powers
are all implied in the provision that he shall preside.

No question has occurred with regard to the vote of the Vice-President,
for this is expressly regulated by the National Constitution. But the
other powers of the Vice-President, when presiding in the Senate,
are left to Parliamentary Law and express rules. Some of the latter
were settled at an early day. From the rules of the Senate at the
beginning it appears, that, independent of his casting vote, nothing
was originally recognized as belonging to a _presiding_ Vice-President
beyond his power to occupy the chair. All else was determined by the
rules. For instance, Senators, when speaking, are to address the
Chair. This rule, which seems to us so superfluous, was adopted 16th
April, 1789, early in the session of the first Congress, in order to
change the existing Parliamentary Law, under which a member of the
upper House of Parliament habitually addresses his associates, and
never the Chair. Down to this day, in England, a peer rising to speak
says, “My Lords,” and never “My Lord Chancellor,” although the latter
_presides_. Another rule, adopted at the same date, has a similar
origin. By Parliamentary Law, in the upper House of Parliament, when
two members rise at the same time, the House, by their cry, indicate
who shall speak. This was set aside by a positive rule of the Senate
that in such a case “the President shall name the person to speak.” The
Parliamentary Law, that the presiding officer, whether a member or not
a member, shall put the question, was reinforced by an express rule
that “all questions shall be put by the President of the Senate.”

Although the rules originally provided, that, when a member is called
to order, “the President shall determine whether he is in order or
not,” they failed to declare by whom the call to order should be made.
There was nothing conferring this power upon the presiding officer,
while by Parliamentary Law in the upper House of Parliament no
presiding officer, _as such_, could call to order, whatever he might
do as member. The powers of the presiding officer in the Senate were
left in this uncertainty, but the small number of Senators and the
prevailing courtesy prevented trouble. At last, in the lapse of time,
the number increased, and debates assumed a more animated character.
Meanwhile, in 1825, Mr. Calhoun became Vice-President. This ingenious
person, severely logical, and enjoying at the time the confidence of
the country to a rare degree, insisted, that, as presiding officer, he
had no power but to carry into effect the rules adopted by the body,
and that therefore, in the absence of any rule on the subject, he was
not empowered to call a Senator to order for words spoken in debate.
His conclusion was given as follows:--

    “The Chair had no power beyond the rules of the Senate. It
    would stand in the light of a usurper, were it to attempt to
    exercise such a power. It was too high a power for the Chair.…
    The Chair would never assume any power not vested in it, but
    would ever show firmness in exercising those powers that were
    vested in the Chair.”[136]

The question with regard to the powers of the Chair was transferred
from the Senate Chamber to the public press, where it was discussed
with memorable ability. An article in the “National Journal,”[137]
under the signature of “Patrick Henry,” attributed to John Quincy
Adams, at the time President, assumed that the powers of the
Vice-President, in calling to order, were not derived from the
Senate, but that they came strictly from the National Constitution
itself, which authorizes him to preside, and that in their exercise
the Vice-President was wholly independent of the Senate. To this
assumption Mr. Calhoun replied in the “National Intelligencer,” in
two articles,[138] under the signature of “Onslow,” where he shows an
ability not unworthy of the eminent parliamentarian whose name he for
the time adopted. The point in issue was not unlike that now before us.
It was insisted, on the one side, that certain powers were inherent
in the Vice-President as presiding officer, precisely as it is now
insisted that certain powers are inherent in the Chief-Justice when he
becomes presiding officer. Mr. Calhoun replied in words applicable to
the present occasion:--

    “I affirm, that, as a presiding officer, the Vice-President
    has no inherent power whatever, unless that of doing what the
    Senate may prescribe by its rules be such a power. There are,
    indeed, inherent powers; but they are in the _body_, and not
    in the _officer_. He is a mere agent to execute the will of
    the former. He can exercise no power which he does not hold by
    delegation, either express or implied.”[139]

Then again, in reply to an illustration that had been employed, he
says:--

    “There is not the least analogy between the rights and duties
    of a judge and those of a presiding officer in a deliberative
    assembly. The analogy is altogether the other way. It is
    between the Court and the House.”[140]

It would be difficult to answer this reasoning. Unless all the
precedents, in unbroken series, are set aside, a presiding officer
not a member of the Senate has no inherent power except to occupy the
Chair and to put the question. All else must be derived from grant in
the Constitution or in the rules of the body. In the absence of any
such grant, we must be contented to observe the mandates of the _Lex
Parliamentaria_. The objections of Mr. Calhoun brought to light the
feeble powers of our presiding officer, and a remedy was forthwith
applied by amendment of the rules, making it his duty to call to order.
To his general power as presiding officer was superadded, by express
rule, a further power not existing by Parliamentary Law; and such is
the rule of the Senate at this day.

I turn away from this Vice-Presidential episode, contenting myself
with reminding you how clearly it shows, that, independently of the
rules of the Senate, the presiding officer _as such_ had small powers;
that he could do very little more than put the question and direct
the Secretary; and, in short, that our fathers, in the interpretation
of his powers, had tacitly recognized the time-honored and prevailing
usage of Parliament, which in itself is a commanding law. But a
Chief Justice, when presiding in the Senate, is not less under this
commanding law than the Vice-President.

       *       *       *       *       *

Thus far I have confined myself to the Parliamentary Law governing the
upper House of Parliament and of Congress. Further illustration is
found in the position of the Speaker, whether in the House of Commons
or the House of Representatives. One cardinal distinction is to be
noted at the outset, by which, in both countries, he is distinguished
from the presiding officer of the upper House: the Speaker is always
a member of the House. As a member he has a constituency which is
represented through him; and here is another difference. The presiding
officer of the upper House has no constituency; therefore his only
duty is _to preside_, unless some other function be superadded by the
National Constitution or the rules of the body.

All the authorities make the Speaker merely the organ of the House,
except so far as his representative capacity is recognized. In the
Commons he can vote only when the House is equally divided; in our
House of Representatives his name is sometimes called, although there
is no tie; but in each case he votes in his representative capacity,
and not as Speaker. In the time of Queen Elizabeth it was insisted,
that, because he was “one out of our own number, and _not a stranger_,
therefore he hath a voice.” But Sir Walter Raleigh replied, that the
Speaker “was foreclosed of his voice _by taking that place_.”[141] The
latter opinion, which has been since overruled, attests the disposition
at that early day to limit his powers.

Cushing, in his elaborate work, brings together numerous illustrations,
and gives the essence:--

    “The presiding officer, though entitled on all occasions to
    be treated with the greatest attention and respect by the
    individual members, because the power and dignity and honor
    of the assembly are officially embodied in his person, is yet
    but the servant of the House to declare its will and to obey
    implicitly all its commands.”[142]

    “The duties of a presiding officer are of such a nature,
    and require him to possess so entirely and exclusively the
    confidence of the assembly, that, with certain exceptions,
    which will presently be mentioned, he is not allowed to
    exercise any other functions than those which properly belong
    to his office; _that is to say, he is excluded from submitting
    propositions to the assembly, from participating in its
    deliberations, and from voting_.”[143]

At an early day an English Speaker vividly characterized his relations
to the House, when he describes himself as “one of themselves to be
the mouth, indeed the servant, of all the rest.”[144] This character
appears in the memorable incident, when King Charles in his madness
entered the Commons, and, going directly to the Speaker, asked for the
five members he wished to arrest. Speaker Lenthall answered in ready
words, revealing the function of the presiding officer: “May it please
your Majesty, I have neither eyes to see nor tongue to speak, _in this
place_, but as the House is pleased to direct me, whose servant I am
_here_.”[145] This reply was as good in law as in patriotism. Different
words were employed by Sir William Scott, afterward Lord Stowell, when,
in 1802, on moving the election of Mr. Speaker Abbot, he declared that
a Speaker must add “to a jealous affection for the privileges of the
House an awful sense of its duties.”[146] But the early Speaker and the
great Judge did not differ. Both attest that the Speaker, when in the
Chair, is only the organ of the House, and nothing more.

Passing from the Speaker to the Clerk, we find still another
illustration, showing that the word _preside_, under which the
Chief Justice derives all his powers, has received an authoritative
interpretation in the rules of the House of Representatives, and the
commentaries thereon. I cite from Barclay’s Digest.

    “Under the authority contained in the Manual, and the usage
    of the House, the Clerk _presided_ over its deliberations
    while there was no Speaker, but simply put questions, and,
    where specially authorized, preserved order, not, however,
    undertaking to decide questions of order.”[147]

In another place, after stating that in several Congresses there
was a failure to elect a Speaker for several days, that in the
twenty-sixth Congress there was a failure for eleven days, that in the
thirty-first Congress there was a failure for nearly a month, that in
the thirty-fourth and thirty-sixth Congresses respectively there was a
failure for not less than two months, the author says:--

    “During the three last-named periods, while the House was
    without a Speaker, the Clerk _presided_ over its deliberations;
    not, however, exercising the functions of Speaker to the extent
    of deciding questions of order, but, as in the case of other
    questions, putting them to the House for its decision.”[148]

This limited power of the Clerk is described in a marginal note of the
author,--“Clerk _presides_.” The author then proceeds:--

    “To relieve future Houses of some of the difficulties which
    grew out of the very limited power of the Clerk as _a presiding
    officer_, the House of the thirty-sixth Congress adopted the
    present 146th and 147th rules, which provide, that, ‘pending
    the election of a Speaker, the Clerk shall preserve order and
    decorum, and shall decide all questions of order that may
    arise, subject to appeal to the House.’”[149]

From this impartial statement we have a practical definition of the
word _preside_. It is difficult to see how it can have a different
signification in the National Constitution. The word is the same in the
two cases, and it must have substantially the same meaning, whether
it concern a Clerk or a Chief Justice. Nobody ever supposed that a
_presiding_ Clerk could rule or vote. Can a _presiding_ Chief Justice?

The claim of a presiding Chief Justice becomes still more questionable
when it is considered how positively the Constitution declares that
“the Senate shall have the _sole_ power to try all impeachments,” and,
still further, that conviction can be only by “the concurrence of two
thirds of _the members present_.” These two provisions accord powers to
_the Senate solely_. If a presiding Chief Justice can rule or vote, the
Senate has not “the sole power to try”; for ruling and voting, even on
interlocutory questions, may determine the trial. A vote to postpone,
to withdraw, even to adjourn, might, under peculiar circumstances,
exercise a decisive influence. A vote for a protracted adjournment
might defeat the trial. Notoriously such votes are among the devices
of parliamentary opposition. In doing anything like this, a presiding
Chief Justice makes himself _a trier_, and, if he votes on the final
judgment, he makes himself _a member of the Senate_. But he cannot be
either.

It is only a casting vote that thus far the presiding Chief Justice
has assumed to give. But he has the same power to vote always as to
vote when the Senate is equally divided. No such power in either
case is found in the National Constitution or in Parliamentary Law.
By the National Constitution he presides, and nothing more, while by
Parliamentary Law there is no casting vote where the presiding officer
is not a member of the body. Nor does there seem to be any difference
between a casting vote on an interlocutory question and a casting
vote on the final question. The former is determined by a majority,
and the latter by two thirds; but it has been decided in our country,
that, “if the assembly, on a division, stands exactly one third to
two thirds, there is then occasion for the giving of a casting vote,
because the presiding officer can then, by giving his vote, decide
the question either way.”[150] This statement reveals still further
how inconsistent is the claim of the presiding Chief Justice with the
positive requirement of the National Constitution.

I would not keep out of sight any consideration which seems in any
quarter to throw light on this claim; and therefore I take time to
mention an analogy which has been invoked. The exceptional provision
in the Constitution, under which the Vice-President has a casting
vote on ordinary occasions, is taken from its place in another clause
and applied to the Chief Justice. It is gravely argued that the Chief
Justice is a substitute for the Vice-President, and, as the latter,
by express grant, has a casting vote on ordinary occasions, therefore
the Chief Justice has such when presiding on an impeachment. To this
argument there are two obvious objections: first, there is no language
giving a casting vote to the Chief Justice, and, in the absence of
express grant, it is impossible to imply it in opposition to the
prevailing rule of Parliamentary Law; and, secondly, it is by no means
clear that the Vice-President has a casting vote, when called to
preside on an impeachment. On ordinary occasions, in the business of
the Senate, the grant is explicit; but it does not follow that this
grant can be extended to embrace an impeachment, in face of positive
provisions by which the power to _try_ and _vote_ is confined to
_Senators_. According to the undoubted rule of interpretation, _Ut
res magis valeat quam pereat_, the casting vote of the Vice-President
must be subject to this curtailment. Therefore, if the Chief Justice
is regarded as a substitute for the Vice-President, it will be only to
find himself again within the same limitations.

       *       *       *       *       *

I cannot bring this survey to an end without an expression of deep
regret that I find myself constrained to differ from the Chief Justice.
In faithful fellowship for long years, we have striven together for
the establishment of Liberty and Equality as the fundamental law of
this Republic. I know his fidelity, and revere his services; but not on
this account can I hesitate the less, when I find him claiming in this
Chamber an important power which, in my judgment, is three times denied
in the National Constitution: first, when it is declared that the
Senate alone shall _try_ impeachments; secondly, when it is declared
that only _members_ shall convict; and, thirdly, when it is declared
that the Chief Justice shall _preside_, and nothing more,--thus
conferring upon him those powers only which by Parliamentary Law belong
to a presiding officer not a member of the body. In the face of such a
claim, so entirely without example, and of such possible consequences,
I cannot be silent. Reluctantly and painfully I offer this respectful
protest.

There is a familiar saying of jurisprudence, that it is the part of
a good judge to amplify his jurisdiction: _Boni judicis est ampliare
jurisdictionem_. This maxim, borrowed from the horn-books, was
originally established for the sake of justice and humanity, that they
might not fail; but it has never been extended to other exercises
of authority. On the contrary, all accepted maxims are against such
assumption in other cases. Never has it been said that it is the part
of a good presiding officer to amplify his power; and there is at least
one obvious reason: a presiding officer is only an _agent_, acting
always in presence of his _principal_. Whatever the promptings of the
present moment, such an amplification can find no sanction in the
National Constitution, or in that Parliamentary Law from which there is
no appeal.

Thus, which way soever we turn,--whether to the National Constitution,
or to Parliamentary Law, as illustrated in England or the United
States,--we are brought to conclude that the Chief Justice in the
Senate Chamber is not in any respect Chief Justice, but only presiding
officer; that he has no judicial powers, or, in other words, powers
_to try_, but only the powers of a presiding officer not a member
of the body. According to the injunction of the Constitution, he
can _preside_, but this is all, unless other powers are superadded
by concession of the Senate, subject always to the constitutional
limitation that the Senate alone can _try_, and, therefore, alone can
rule or vote on questions which enter into the trial. The function of
a presiding officer may be narrow, but it must not be disparaged. For
a succession of generations, great men in the law, Chancellors and
Chief Justices, have not disdained to discharge it. Out of the long and
famous list I mention one name of surpassing authority: Somers, the
illustrious defender of constitutional liberty, unequalled in debate as
in judgment, exercised this function without claiming other power. He
was satisfied to preside. Such an example is not unworthy of us. If the
present question could be determined by sentiments of personal regard,
I should gladly say that our Chief Justice is needed to the Senate
more than the Senate is needed to him. But the National Constitution,
which has regulated the duties of all, leaves us no alternative. We
are the Senate; he is the presiding officer,--although, whether in the
Court Room or the Senate Chamber, he is always the most exalted servant
of the law. This character he cannot lose by change of seat. As such
he lends to this historic occasion the dignity of his presence and
the authority of his example. Sitting in that Chair, he can do much
to smooth the course of business, and to fill the Chamber with the
spirit of justice. Under the rules of the Senate, he can become its
organ,--but nothing more.




EXPULSION OF THE PRESIDENT.

OPINION IN THE CASE OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF
THE UNITED STATES, MAY 26, 1868.


I voted against the rule of the Senate allowing opinions to be filed in
this proceeding, and regretted its adoption. With some hesitation I now
take advantage of the opportunity, if not the invitation, it affords.
Voting “Guilty” on all the articles, I feel that there is little need
of explanation or apology. Such a vote is its own best defender. But I
follow the example of others.


BATTLE WITH SLAVERY.

This is one of the last great battles with Slavery. Driven from these
legislative chambers, driven from the field of war, this monstrous
power has found refuge in the Executive Mansion, where, in utter
disregard of Constitution and law, it seeks to exercise its ancient
domineering sway. All this is very plain. Nobody can question it.
Andrew Johnson is the impersonation of the tyrannical Slave Power.
In him it lives again. He is lineal successor of John C. Calhoun and
Jefferson Davis, and he gathers about him the same supporters. Original
partisans of Slavery, North and South, habitual compromisers of great
principles, maligners of the Declaration of Independence, politicians
without heart, lawyers for whom a technicality is everything, and a
promiscuous company who at every stage of the battle have set their
faces against Equal Rights,--these are his allies. It is the old troop
of Slavery, with a few recruits, ready as of old for violence, cunning
in device, and heartless in quibble. With the President at their head,
they are now intrenched in the Executive Mansion.

Not to dislodge them is to leave the country a prey to a most hateful
tyranny. Especially is it to surrender the Unionists of the Rebel
States to violence and bloodshed. Not a month, not a week, not a day
should be lost. The safety of the Republic requires action at once.
Innocent men must be rescued from sacrifice.

I would not in this judgment depart from the moderation proper to the
occasion; but God forbid, that, when called to deal with so great an
offender, I should affect a coldness I cannot feel! Slavery has been
our worst enemy, assailing all, murdering our children, filling our
homes with mourning, darkening the land with tragedy; and now it rears
its crest anew, with Andrew Johnson as its representative. Through him
it assumes once more to rule and impose its cruel law. The enormity of
his conduct is aggravated by his barefaced treachery. He once declared
himself the Moses of the colored race. Behold him now the Pharaoh! With
such treachery in such a cause there can be no parley. Every sentiment,
every conviction, every vow against Slavery must be directed against
him. Pharaoh is at the bar of the Senate for judgment.

The formal accusation is founded on recent transgressions, enumerated
in articles of impeachment; but it is wrong to suppose that this is
the whole case. It is very wrong to try this impeachment merely on
these articles. It is unpardonable to higgle over words and phrases,
when, for more than two years, the tyrannical pretensions in evidence
before the Senate have been manifest, as I shall show, in terrible,
heart-rending consequences.


IMPEACHMENT A POLITICAL PROCEEDING.

Before entering upon the formal accusation instituted by the House
of Representatives of the United States in their own name and in the
name of all the people thereof, it is important to understand the
nature of the proceeding. And here on the threshold we encounter the
effort of the apologists seeking in every way to confound this great
constitutional trial with an ordinary case at _Nisi Prius_, and to
win for the criminal President an Old Bailey acquittal, where on some
quibble the prisoner is allowed to go without day. From beginning
to end this has been painfully apparent, thus degrading the trial
and baffling justice. Point by point has been pressed, sometimes by
counsel and sometimes even by Senators, leaving the substantial merits
untouched, as if, on a solemn occasion involving the safety of the
Republic, there could be any other question.

The first effort was to call the Senate, sitting for the trial of
impeachment, a Court, and not a Senate. Ordinarily, names are of
little consequence; but it cannot be doubted that this appellation
has been made the starting-point for technicalities proverbial in
courts. Constantly we have been reminded of what is called our judicial
character, and of the supplementary oath we have taken, as if a Senator
were not always under oath, and as if other things within the sphere
of his duties were not equally judicial in character. Out of this
plausible assumption has come that fine-spun thread which lawyers know
so well how to weave.

The whole mystification disappears, when we look at the National
Constitution, which in no way speaks of impeachment as judicial,
and in no way speaks of the Senate as a court. On the contrary, it
uses positive language inconsistent with this assumption and all its
pretended consequences. On this head there can be no doubt.

By the National Constitution it is expressly provided that “_the
judicial power_ of the United States shall be vested in one Supreme
Court and in such inferior courts as the Congress may from time to
time ordain and establish,”--thus positively excluding the Senate from
any exercise of “the judicial power.” And yet this same Constitution
provides that “the Senate shall have the sole power to try all
impeachments.” In the face of these plain texts it is impossible not to
conclude, that, in trying impeachments, Senators exercise a function
which is not regarded by the National Constitution as “judicial,” or,
in other words, as subject to the ordinary conditions of judicial
power. Call it senatorial or political, it is a power by itself, and
subject to its own conditions.

Nor can any adverse conclusion be drawn from the unauthorized
designation of “court” which has been foisted into our proceedings.
This term is very expansive, and sometimes very insignificant. In
Europe it means the household of a prince. In Massachusetts it is still
applied to the Legislature of the State, which is known as the General
Court. If applied to the Senate, it must be interpreted by the National
Constitution, and cannot be made in any respect a source of power or a
constraint.

It is difficult to understand how this term, which plays such a part
in present pretensions, obtained its vogue. It does not appear in
English impeachments, although there is reason for it there which
is not found here. From ancient times, Parliament, including both
Houses, has been called a court, and the House of Lords is known as
a court of appeal. The judgment on English impeachments embraces not
merely removal from office, as under the National Constitution, but
also punishment; and yet it does not appear that the Lords sitting
on impeachments are called a court. They are not so called in any of
the cases, from the first, in 1330, entitled simply, “Impeachment of
Roger Mortimer, Earl of March, for Treason,” down to the last, in 1806,
entitled, “Trial of the Right Honorable Henry Lord Viscount Melville,
before the Lords’ House of Parliament in Westminster Hall, for High
Crimes and Misdemeanors whereof he was accused in certain Articles of
Impeachment.” In the historic case of Lord Bacon, we find, at the first
stage, this title, “Proceedings in Parliament against Francis Bacon
Lord Verulam,” and, after the impeachment was presented, the simple
title, “Proceedings in the House of Lords.” Had this simplicity been
followed among us, there would have been one source of misunderstanding
the less.

There is another provision of the National Constitution which testifies
still further, and, if possible, more completely. It is the limitation
of the judgment in cases of impeachment, making it political and
nothing else. It is not punishment, but protection to the Republic. It
is confined to removal from office and disqualification; but, as if
aware that this was no punishment, the National Constitution further
provides that this judgment shall be no impediment to indictment,
trial, judgment, and punishment “according to law.” Thus again is the
distinction declared between an impeachment and a proceeding “according
to law.” The former, which is political, belongs to the Senate, which
is a political body; the latter, which is judicial, belongs to the
courts, which are judicial bodies. The Senate removes from office; the
courts punish. I am not alone in drawing this distinction. It is well
known to all who have studied the subject. Early in our history it was
put forth by the distinguished Mr. Bayard, of Delaware, the father of
Senators, in the case of Blount;[151] and it is adopted by no less an
authority than our highest commentator, Judge Story, who was as much
disposed as anybody to amplify the judicial power. In speaking of this
text, he says that impeachment “is not so much designed to punish an
offender as _to secure the State against gross official misdemeanors_;
it touches neither his person nor his property, _but simply divests
him of his political capacity_.”[152] All this seems forgotten by
certain apologists on the present trial, who, assuming that impeachment
was a proceeding “according to law,” have treated the Senate to the
technicalities of the law, to say nothing of the law’s delay.

Discerning the true character of impeachment under the National
Constitution, we are constrained to confess that it is a political
proceeding before a political body with political purposes; that it
is founded on political offences, proper for the consideration of a
political body, and subject to a political judgment only. Even in
cases of treason and bribery, the judgment is political, and nothing
more. If I were to sum up in one word the object of impeachment under
the National Constitution, meaning what it has especially in view,
with its practical limitation, I should say _expulsion from office_.
The present question is, Shall Andrew Johnson, on the case before the
Senate, be expelled from office?

Expulsion from office is not unknown to our proceedings. By the
National Constitution a Senator may be expelled with “the concurrence
of two thirds,” precisely as a President may be expelled with “the
concurrence of two thirds.” In each case the same exceptional vote of
two thirds is required. Do not the two illustrate each other? From the
nature of things, they are essentially similar in character,--except
that on expulsion of the President the motion is made by the House
of Representatives at the bar of the Senate, while on expulsion of
a Senator the motion is made by a Senator. How can we require a
technicality of proceeding in the one which is rejected in the other?
If the Senate is a court, bound to judicial forms on the expulsion of
the President, must it not be the same on the expulsion of a Senator?
But nobody attributes to it any such strictness in the latter case.
Numerous precedents attest how, in dealing with its own members, the
Senate seeks substantial justice without reference to form. In the
case of Blount, which is the first in our history, the expulsion
was on the report of a committee, declaring him “guilty of a high
misdemeanor, entirely inconsistent with his public trust and duty as
a Senator.”[153] At least one Senator has been expelled on simple
motion.[154] Others have been expelled without any formal allegation or
formal proof.

According to another provision of the National Constitution, overriding
both cases, “each House may determine the rules of its proceedings.”
The Senate, on the expulsion of its own members, has already done this,
and set an example of simplicity. But it has the same power over its
rules of proceeding on the expulsion of the President; and there can
be no reason for simplicity in the one case not equally applicable in
the other. Technicality is as little consonant with the one as with the
other. Each has for its object the public safety. For this the Senator
is expelled; for this, also, the President is expelled. _Salus populi
suprema lex._ The proceedings in each case must be in subordination to
this rule.

There is one formal difference, under the National Constitution,
between the power to expel a Senator and the power to expel the
President. The power to expel a Senator is unlimited in terms. The
Senate may, “with the concurrence of two thirds, expel a member,”
nothing being said of the offence; whereas the President can be
expelled only for “treason, bribery, or _other high crimes and
misdemeanors_.” A careful inquiry will show that under the latter words
there is such a latitude as to leave little difference between the two
cases. This brings us to the question of impeachable offences.


POLITICAL OFFENCES ARE IMPEACHABLE OFFENCES.

So much depends on the right understanding of this proceeding, that,
even at the risk of protracting the discussion, I cannot hesitate
to consider this branch of the subject, although what I have already
said may render it superfluous. What are impeachable offences has
been much considered in this trial, and sometimes with very little
appreciation of the question. Next to the mystification from calling
the Senate a court has been that other mystification from not calling
the transgressions of Andrew Johnson “impeachable offences.”

It is sometimes boldly argued that there can be no impeachment under
the National Constitution, unless for an offence defined and made
indictable by Act of Congress, and therefore Andrew Johnson must go
free, unless it can be shown that he is such an offender. But this
argument mistakes the Constitution, and also mistakes the whole theory
of impeachment.

It mistakes the Constitution in attributing to it any such absurd
limitation. The argument is this: Because in the National Constitution
there are no Common-Law crimes, therefore there are no such crimes on
which an impeachment can be maintained. But there are two answers:
first, that the District of Columbia, where the President resides and
exercises his functions, was once part of Maryland, where the Common
Law prevailed; that, when it came under the national jurisdiction,
it brought with it the whole body of the law of Maryland, including
the Common Law; and that at this day the Common Law of crimes is
still recognized here. But the second answer is stronger still.
By the National Constitution, _expulsion from office_ is “on
impeachment for and conviction of treason, bribery, _or other high
crimes and misdemeanors_”; and this, according to another clause
of the Constitution, is “the supreme law of the land.” Now, when
a constitutional provision can be executed without superadded
legislation, it is absurd to suppose that such legislation is
necessary. Here the provision executes itself without reënactment; and
as for definition of “treason” and “bribery” we resort to the Common
Law, so for definition of “high crimes and misdemeanors” we resort to
the Parliamentary Law and the instances of impeachment by which it
is illustrated. Thus clearly the whole testimony of English history
enters into this case with its authoritative law. From the earliest
text-writer on this subject[155] we learn the undefined and expansive
character of these offences; and these instances are in point now.
Thus, where a Lord Chancellor has been thought to put the great seal
to an ignominious treaty, a Lord Admiral to neglect the safeguard
of the seas, an Ambassador to betray his trust, a Privy Councillor
to propound dishonorable measures, a confidential adviser to obtain
exorbitant grants or incompatible employments, or _where any magistrate
has attempted to subvert the fundamental law or introduce arbitrary
power_,--all these are high crimes and misdemeanors, according to these
precedents, by which the National Constitution must be interpreted. How
completely they cover the charges against Andrew Johnson, whether in
the formal accusation or in the long antecedent transgressions to which
I shall call attention as an essential part of the case, nobody can
question.

Broad as this definition may seem, it is in harmony with the declared
opinions of the best minds that have been turned in this direction. Of
these none so great as Edmund Burke, who, as manager on the impeachment
of Warren Hastings, excited the admiration of all by varied stores of
knowledge and philosophy, illumined by the rarest eloquence, marking
an epoch of British history. Thus spoke the greatest genius that has
ever explained the character of impeachment:--

    “It is by this tribunal that statesmen who abuse their power
    are tried before statesmen and by statesmen, upon solid
    principles of State morality. _It is here that those who by an
    abuse of power have polluted the spirit of all laws can never
    hope for the least protection from any of its forms._ It is
    here that those who have refused to conform themselves to the
    protection of law can never hope to escape through any of its
    defects.”[156]

The value of this testimony is not diminished because the orator
spoke as manager. By professional license an advocate may state
opinions not his own, but a manager cannot. Appearing for the House of
Representatives and all the people, he speaks with the responsibility
of a judge, so that his words may be cited hereafter. Here I but
follow the claim of Mr. Fox.[157] Therefore the words of Burke are as
authoritative as beautiful.

In different, but most sententious terms, Mr. Hallam, who is so great
a light in constitutional history, thus exhibits the latitude of
impeachment and its comprehensive grasp:--

    “A minister is answerable for _the justice, the honesty, the
    utility of all measures_ emanating from the Crown, _as well as
    for their legality_; and thus the executive administration is,
    or ought to be, subordinate, in all great matters of policy, to
    the superintendence and virtual control of the two Houses of
    Parliament.”[158]

Thus, according to this excellent witness, even failure in justice,
honesty, and utility, as well as in legality, may be the ground of
impeachment; and the Administration should in all great matters of
policy be subject to the two Houses of Parliament,--the House of
Commons to impeach, and the House of Lords to try. Here again the case
of Andrew Johnson is provided for.

Our best American lights are similar, beginning with the “Federalist”
itself, which teaches that impeachment is for “those offences which
proceed from _the misconduct of public men_, or, in other words, from
the abuse or violation of some public trust: they are of a nature which
may with peculiar propriety be denominated _political_, as they relate
chiefly to injuries done immediately to the society itself.”[159] If
ever injuries were done immediately to society itself, if ever there
was an abuse or violation of public trust, if ever there was misconduct
of a public man, all these are now before us in the case of Andrew
Johnson. The “Federalist” has been echoed ever since by all who have
spoken with knowledge and without prejudice. First came the respected
commentator, William Rawle, who specifies among causes of impeachment
“the fondness for the inordinate extension of power,” “the influence
of party and of prejudice,” “the seductions of foreign states,” “the
baser appetite for illegitimate emolument,” and “the involutions
and varieties of vice, too many and too artful to be anticipated by
positive law,” all resulting in what the commentator says are “not
unaptly termed _political offences_.”[160] And thus Rawle unites with
the “Federalist” in stamping upon impeachable offences the epithet
“political.” If in the present case there has been on the part of
Andrew Johnson no base appetite for illegitimate emolument and no
yielding to foreign seductions, there has been most notoriously the
influence of party and prejudice, also to an unprecedented degree an
individual extension of power, and an involution and variety of vice
impossible to be anticipated by positive law,--all of which, in gross
or in detail, is impeachable. Here it is in gross. Then comes Story,
who, writing with the combined testimony of English and American
history before him, and moved only by a desire of truth, records
his opinion with all the original emphasis of the “Federalist.” His
words are like a judgment. The process of impeachment, according to
him, is intended to reach “personal misconduct, or gross neglect, or
usurpation, or habitual disregard of the public interests, in the
discharge of the duties of _political office_”; and the commentator
adds, that it “is to be exercised over offences which are committed
by public men in violation of their public trust and duties,” that
“the offences to which it is ordinarily applied are of a _political_
character,” and that, strictly speaking, “the power partakes of a
_political_ character.”[161] Every word here is like an ægis for the
present case. The later commentator, Curtis, is, if possible, more
explicit even than Story. According to him, an impeachment “is not
necessarily a trial for crime”; its purposes “lie wholly beyond the
penalties of the statute or the customary law”; and this commentator
does not hesitate to say that it is a proceeding “to ascertain _whether
cause exists for removing a public officer from office_”; and he
adds, that such cause of removal “may exist where no offence against
positive law has been committed,--as where the individual has, from
immorality, or imbecility, _or maladministration, become unfit to
exercise the office_.”[162] Here again the power of the Senate over
Andrew Johnson is vindicated so as to make all doubt or question absurd.

I close this question of impeachable offences by asking you to consider
that all the cases which have occurred in our history are in conformity
with the rule which so many commentators have announced. The several
trials of Pickering, Chase, Peck, and Humphreys exhibit its latitude
in different forms. Official misconduct, including in the cases of
Chase and Humphreys offensive utterances, constituted the high crimes
and misdemeanors for which they were respectively arraigned. These are
precedents. Add still further, that Madison, in debate on the power
of removal, at the very beginning of our Government, said: “I contend
that _the wanton removal of meritorious officers_ would subject the
President to impeachment and removal from his own high trust.”[163] But
Andrew Johnson, standing before a crowd, said of meritorious officers
that he would “kick them out,”[164] and forthwith proceeded to execute
his foul-mouthed menace. How small was all that Madison imagined, how
small was all that was spread out in the successive impeachments of our
history, if gathered into one case, compared with the terrible mass now
before us!

From all these concurring authorities, English and American, it is
plain that impeachment is a power broad as the National Constitution
itself, and applicable to the President, Vice-President, and all civil
officers through whom the Republic suffers or is in any way imperilled.
Show me an act of evil example or influence committed by a President,
and I show you an impeachable offence, great in proportion to the
scale on which it is done, and the consequences menaced. The Republic
must receive no detriment; and impeachment is a power by which this
sovereign rule is maintained.


UNTECHNICAL FORM OF PROCEDURE.

The form of procedure has been noticed in considering the political
character of impeachment; but it deserves further treatment by itself.
Here we meet the same latitude. It is natural that the trial of
political offences, before a political body, with a political judgment
only, should have less of form than a trial at Common Law; and yet this
obvious distinction is constantly disregarded. The authorities, whether
English or American, do not leave the question open to doubt.

An impeachment is not a technical proceeding, as at _Nisi Prius_ or in
a county court, where the rigid rules of the Common Law prevail. On
the contrary, it is a proceeding according to Parliamentary Law, with
rules of its own, unknown in ordinary courts. The formal statement and
reduplication of words, constituting the stock-in-trade of so many
lawyers, are exchanged for a broader manner, more consistent with the
transactions of actual life. The precision of history and of common
sense is enough, without the technical precision of an indictment.

From time immemorial there has been a just distinction between
proceedings in Parliament and proceedings in the ordinary courts of
justice, which I insist shall not be abandoned. The distant reign of
Richard the Second, beyond the misfortunes touching us so much in
Shakespeare, supplies a presiding rule which has been a pole-star of
Constitutional Law; nor is this in any vague, uncertain language, but
in the most clear and explicit terms, illumined since by great lights
of law.

On what was called an appeal in Parliament, or impeachment, it has
solemnly declared that the Lords were not of right obliged to proceed
according to the course or rules of the Roman law or according to the
law or usage of any of the inferior courts of Westminster Hall, but by
the law and usage of Parliament, which was itself a court.

    “In this Parliament [in the 11th year of King Richard the
    Second, A. D. 1387-88] all the Lords then present, spiritual as
    well as temporal, claimed as their franchise that the weighty
    matters moved in this Parliament, and which shall be moved in
    other Parliaments in future times, touching the peers of the
    land, shall be managed, adjudged, and discussed by the course
    of Parliament, and in no sort by the Law Civil, or by the
    common law of the land, used in the other lower courts of the
    kingdom.”[165]

The Commons approved the proceedings, and it has been remarked, in an
important official report, that “neither then nor ever since have they
made any objection or protestation that the rule laid down by the Lords
… ought not to be applied to the impeachments of commoners as well as
peers.”[166] Accordingly Lord Coke declares, that “all weighty matters
in any Parliament moved concerning the peers of the realm, or commoners
in Parliament assembled, ought to be determined, and adjudged, and
discussed by the course of the Parliament, and not by the Civil
Law, nor yet by the common laws of this realm used in more inferior
courts.” Then, founding on the precedent of 11th Richard the Second, he
announces, that “judges ought not to give any opinion of _a matter of
Parliament_, because it is not to be decided by the common laws, but
_secundum legem et consuetudinem Parliamenti_”; and he adds, “So the
judges in divers Parliaments have confessed.”[167]

But impeachment is “a matter of Parliament,” whether in England or in
the United States. It was so at the beginning, and has been ever since.

Even anterior to Richard the Second the same conclusion was recognized,
with illustrative particularity, as appears by the trial of those who
murdered King Edward the Second, thus commented by an eminent writer on
Criminal Law, who was also an experienced judge, Foster:--

    “It is well known, that, in parliamentary proceedings of
    this kind, it is and ever was sufficient that matters appear
    with proper light and certainty to a common understanding,
    without that _minute exactness_ which is required in criminal
    proceedings in Westminster Hall.”[168]

Thus early was the “minute exactness” of a criminal court discarded,
while the proceedings were adapted to “a common understanding.” This
becomes important, not only as a true rule of procedure, but as an
answer to some of the apologists, especially the Senator from West
Virginia [Mr. VAN WINKLE], who makes technicality a rule and essential
condition.

Accordingly by law and custom of Parliament we are to move; and here we
meet rules of pleading and principles of evidence entirely different
from those of the Common Law, but established and fortified by a long
line of precedents. This stands forth in the famous “Report from the
Committee of the House of Commons appointed to inspect the Lords’
Journals in relation to their Proceedings on the Trial of Warren
Hastings,” which, beyond its official character, is enhanced as the
production of Edmund Burke.

    “Your Committee do not find that any rules of pleading, as
    observed in the inferior courts, have ever obtained in the
    proceedings of the High Court of Parliament, in a cause or
    matter in which the whole procedure has been within their
    original jurisdiction. Nor does your Committee find that any
    demurrer or exception, as of false or erroneous pleading, hath
    been ever admitted to any impeachment in Parliament, as not
    coming within the form of the pleading.”[169]

This principle appears in the great trial of Strafford, 16th Charles
the First, 1640-41, stated by no less a person than Pym, on delivering
a message of the Commons reducing the charges to more particularity:
“Not that they are bound by this way of _special_ charge; and
therefore, as they have taken care in their House, upon protestation,
that this shall be no prejudice to bind them from proceeding _upon
generals_ in other cases, and that they are not to be ruled by
proceedings in other courts, which protestation they have made for
preservation of power of Parliaments, so they desire that the like care
may be had in your Lordships’ House.”[170] In this broad language is a
just rule applicable to the present case.

The question came to formal judgment on the memorable trial of the Tory
preacher, Sacheverell, March 10, 1709-10, impeached for high crimes
and misdemeanors, on account of two sermons in which he put forth the
doctrines of Non-Resistance and denounced the Revolution of 1688, by
which English liberty was saved. After argument on both sides, and
questions propounded by the Lords, the judges delivered their opinion
_seriatim_, that, by the law of England and the constant practice of
Westminster Hall, “the particular words supposed to be criminal ought
to be specified in indictments or informations.” And yet, in face of
this familiar and indisputable rule of the Common Law, thus pointedly
declared, the Lords solemnly resolved:--

    “That, by the law and usage of Parliament, in prosecutions by
    impeachments for high crimes and misdemeanors, by writing or
    speaking, the particular words supposed to be criminal are not
    necessary to be expressly specified in such impeachments.”[171]

The respondent, being found guilty, moved in arrest of judgment:--

    “That no entire clause, sentence, or expression, contained in
    either of his sermons or dedications, is particularly set
    forth in his impeachment, which he has already heard the
    judges declare to be necessary in all cases of indictments or
    informations.”[172]

The Lord Chancellor, denying the motion, communicated to the respondent
the resolution already adopted after full debate and consideration, and
added:--

    “So that, in their Lordships’ opinion, the law and usage
    of the High Court of Parliament being a part of the law of
    the land, and that usage not requiring the words should be
    _expressly specified_ in impeachments, the answer of the
    judges, which related only to the course used in indictments
    and informations, does not in the least affect your case.”[173]

And so the judgment was allowed to stand.

The substantial justice of this proceeding is seen, when it is
considered that the whole of the libel had been read at length, so
that the respondent had the benefit of anything which could be alleged
in extenuation or exculpation, as if the libellous sermons had been
entered _verbatim_. The Report already cited presents the practical
conclusion:--

    “It was adjudged sufficient to state the crime generally in the
    impeachment. The libels were given in evidence; and it was not
    then thought of, that nothing should be given in evidence which
    was not specially charged in the impeachment.”[174]

The principle thus solemnly adjudged was ever afterwards asserted by
the managers for the House of Commons in all its latitude, and with
an energy, zeal, and earnestness proportioned to the magnitude of the
interests involved,--as appeared conspicuously on the impeachment
for high treason of the Lords who had taken part in the Rebellion
of 1715 to bring back the Stuarts. Lord Wintoun, after conviction,
moved in arrest of judgment, and excepted against the impeachment for
error, on account of the treason not being described with sufficient
certainty,--the day on which the treason was committed not having
been alleged. The learned counsel, arguing that Parliamentary Law
was part of Common Law, submitted “whether there is not the same
certainty required in one method of proceeding at the Common Law as
in another.”[175] To this ingenious presentment, by which proceedings
in Parliament were brought within the grasp of the Common Law, the
able and distinguished managers replied with resolution, asserting the
supremacy of Parliamentary Law. Walpole, afterwards the famous Prime
Minister, began:--

    “Those learned gentlemen seem to forget _in what court they
    are_. They have taken up so much of your Lordships’ time
    in quoting of authorities and using arguments to show your
    Lordships what would quash an indictment in the courts below,
    that they seem to forget they are now in a court of Parliament
    and on an impeachment of the Commons of Great Britain.… I hope
    it will never be allowed here as a reason, that what quashes
    an indictment in the courts below will make insufficient an
    impeachment brought by the Commons of Great Britain.”[176]

The Attorney-General supported Walpole:--

    “I would take notice that we are upon an impeachment, and
    not upon an indictment. The courts below have set forms to
    themselves, which have prevailed for a long course of time,
    and thereby are become the forms by which those courts are to
    govern themselves; but it never was thought that the forms
    of those courts had any influence on the proceedings of
    Parliament.”[177]

Cowper, a brother of the Lord Chancellor of that name, said:--

    “If the Commons, in preparing articles of impeachment, should
    govern themselves by precedents of indictments, in my humble
    opinion they would depart from the ancient, nay, the constant,
    usage and practice of Parliament.”[178]

Sir William Thomson followed:--

    “The precedents in impeachments are not so _nice and precise in
    form_ as in the inferior courts.”[179]

The judges, in answer to questions propounded, declared the necessity
in indictments of mentioning “a certain day.” But the Lords, in
conformity with ancient usage, set aside this technical objection, and
announced:--

    “That the impeachment is sufficiently certain in point of time,
    according to the forms of impeachments in Parliament.”[180]

Thus do authoritative precedents exhibit a usage of Parliament, or
Parliamentary Law, unlike that of the Common Law, which on trials of
impeachment seeks substantial justice, but is not “nice and precise in
form.” If the proceedings are not absolutely according to the rule of
reason, plainly the technicalities of the Common Law are out of place.
It is enough, if they are clear to “a common understanding,” without
the “minute exactness” of a criminal court. But this is according to
reason. A mere technicality, much more a quibble, often efficacious
on a demurrer, is a wretched anachronism, when we are considering a
question of political duty. Especially must this be so under the genius
of republican institutions. The latitude established in England cannot
be curtailed in the United States, and it becomes more essential in
proportion to the elevation of the proceedings. Ascending into the
region of history, the laws of history cannot be neglected.

Even if the narrow rules and exclusions of the Common Law could be
tolerated on the impeachment of an inferior functionary, they must be
disclaimed on the trial of a chief magistrate, involving the public
safety. The technicalities of law were invented for protection against
power, not for the immunity of a usurper or tyrant. When set up for the
safeguard of the weak, they are respectable, but on impeachments they
are intolerable. Here again I cite Edmund Burke:--

    “God forbid that those who cannot defend themselves upon their
    merits and their actions may defend themselves behind those
    fences and intrenchments that are made to secure the liberty
    of the people, that power and the abusers of power should
    cover themselves by those things which were made to secure
    liberty!”[181]

Never was there a case where this principle was more applicable than
now.

The origin of impeachment in the National Constitution and contemporary
authority vindicate this very latitude. In this light the proceeding
was explained by the “Federalist,” in words which should be a guide
now:--

    “_This can never be tied down by such strict rules_, either
    in the delineation of the offence by the prosecutors or in
    the construction of it by the judges, as in common cases
    serve to limit the discretion of courts in favor of personal
    security.”[182]

This article was by Alexander Hamilton, writing in concert with
James Madison and John Jay. Thus, by the highest authority, at the
adoption of the National Constitution, it is declared that impeachment
“can never be tied down by strict rules,” and that this latitude is
applicable to “the delineation of the offence,” meaning thereby the
procedure or pleading, and also to “the construction of the offence,”
in both of which cases the “discretion” of the Senate is enlarged
beyond that of ordinary courts, and so the ancient Parliamentary Law is
vindicated, and the Senate is recognized within its sphere.


RULES OF EVIDENCE.

From form of procedure I pass to rules of evidence; and here again the
Senate must avoid technicalities, and not allow any artificial rule to
shut out the truth. It would allow no such thing on the expulsion of a
Senator. How allow it on the expulsion of a President? On this account
I voted to admit all evidence offered during the trial,--believing,
in the first place, that it ought to be heard and considered, and, in
the second place, that, even if shut out from this Chamber, it could
not be shut out from the public, or be shut out from history, both
of which must be the ultimate judges. On the impeachment of Prince
Polignac and his colleagues of the French Cabinet, in 1830, for signing
the ordinances which cost Charles the Tenth his throne, some forty
witnesses were sworn, without objection, in a brief space of time, and
no testimony was excluded. An examination of the two volumes entitled
“Procès des Derniers Ministres de Charles X.” confirms what I say. This
example, which commends itself to the enlightened reason, seems in
harmony with declared principles of Parliamentary Law.

As in pleadings, so in evidence, the Law of Parliament, and not the
Common Law, is the guide of the Senate. In other courts the rules vary,
as on trial by jury in the King’s Bench depositions are not received,
while in Chancery just the reverse is the case. The Court of Parliament
has its own rules. Here again I quote the famous Report:--

    “No doctrine or rule of law, much less the practice of any
    court, ought to have weight or authority in Parliament further
    than as such doctrine, rule, or practice is agreeable to the
    proceedings in Parliament, or hath received the sanction of
    approved precedent there, _or is founded on the immutable
    principles of substantial justice_, without which, your
    Committee readily agrees, no practice in any court, high or
    low, is proper or fit to be maintained.”[183]

The true rule was enunciated:--

    “The Court of Parliament ought to be open with great facility
    to the production of all evidence, except that which the
    precedents of Parliament teach them authoritatively to
    reject, or which hath no sort of natural aptitude directly
    or circumstantially to prove the case.… The Lords ought _to
    enlarge, and not to contract, the rules of evidence_, according
    to the nature and difficulties of the case.”[184]

Its point appears in a single sentence:--

    “To refuse evidence is to refuse to hear the cause.”[185]

In striking harmony with this most reasonable conclusion is the
well-known postulate of Jeremy Bentham, who gave so much thought to the
Law of Evidence: “Evidence is the basis of justice: to exclude evidence
is to exclude justice.”[186]

The precedents of impeachment, including the trials of Strafford,
Sacheverell, Macclesfield, and the Rebel Lords in 1715, and again in
1745, all illustrate the liberality of the proceedings, while the
judgment of Lord Hardwicke, in concurrence with the rest of the judges,
and with the support of the bar, announced, that “the judges and sages
of the law have laid it down that there is but _one_ general rule of
evidence,--the best that the nature of the case will admit.”[187] And
this is the master rule governing all subordinate rules. In harmony
with it is another announced by Lord Mansfield: “All evidence is
according to the subject-matter to which it is applied.”[188] These two
rules are expansive, and not narrow,--liberal, and not exclusive. They
teach us to regard “the nature of the case” and “the subject-matter.”
But the case is an impeachment, and the subject-matter is misbehavior
in high office. Before us is no common delinquent, whose offence is
against a neighbor, but the Chief Magistrate, who has done wrong to his
country. One has injured an individual, the other has injured all. Here
again I quote the Report:--

    “The abuses stated in our impeachment are not those of mere
    individual, natural faculties, but the abuses of civil and
    political authority. The offence is that of one who has carried
    with him, in the perpetration of his crimes, whether of
    violence or of fraud, the whole force of the State.”[189]

In such a case there must be a latitude of evidence commensurate with
the arraignment. And thus we are brought to the principle with which I
began.

There are other rules, which it is not too late to profit by. One
relates to the burden of proof, and is calculated to have a practical
bearing. Another relates to matters of which the Senate will take
cognizance without any special proof, thus importing into the case
unquestionable evidence explaining and aggravating the transgressions
charged.

1. Look carefully at the object of the trial. Primarily it is for the
expulsion of the President from office. Its motive is not punishment,
not vengeance, but the public safety. Nothing less could justify the
ponderous proceeding. It will be for the criminal courts to award the
punishment due to his offences. The Senate considers only how the
safety of the people, which is the supreme law, can be best preserved;
and to this end the ordinary rule of evidence is reversed. If on any
point you entertain doubts, the benefit of those doubts must be given
to your country; and this is the supreme law. When tried on indictment
in the criminal courts, Andrew Johnson may justly claim the benefit
of your doubts; but at the bar of the Senate, on the question of
expulsion from office, his vindication must be in every respect and on
each charge beyond a doubt. He must show that his longer continuance in
office is not inconsistent with the public safety,--

                   “Or at least so prove it,
    That the probation bear no hinge nor loop
    To hang a doubt on.”

Anything short of this is to trifle with the Republic and its
transcendent fortunes.

It is by insisting upon doubts that the apologists of the President,
at the bar and in the Senate, seek to save him. For myself, I see none
such; but assuming that they exist, then should they be marshalled for
our country. This is not a criminal trial, where the rule prevails.
Better the escape of many guilty than that one innocent should suffer.
This rule, so proper in its place, is not applicable to a proceeding
for expulsion from office; and who will undertake to say that any claim
of office can be set against the public safety?

In this just rule of evidence I find little more than time-honored
maxims of jurisprudence, requiring interpretation always in favor
of Liberty. Early in the Common Law we were told that he is to be
adjudged impious and cruel who does not favor Liberty: _Impius et
crudelis judicandus est qui Libertati non favet_.[190] Blackstone,
whose personal sympathies were with power, is constrained to confess
that “the law is always ready to catch at anything in favor of
Liberty.”[191] But Liberty and all else are contained in the public
safety; they depend on the rescue of the country from a Presidential
usurper. Therefore should we now, in the name of the law, “catch at
anything” to save the Republic.

2. There is another rule of evidence, which, though of common
acceptance in the courts, has peculiar value in this case, where it
must exercise a decisive influence. It is this: Courts will take
judicial cognizance of certain matters without any special proof on
the trial. Some of these are of general knowledge, and others are
within the special knowledge of the court. Among these, according to
express decision, are the frame of government, and the public officers
administering it; the accession of the Chief Executive; the sitting
of Congress, and its usual course of proceeding; the customary course
of travel; the ebbs and flows of the tide; _also whatever ought to be
generally known within the limits of the jurisdiction, including the
history of the country_. Besides these matters of general knowledge,
a court will take notice of its own records, the conduct of its own
officers, and whatever passes in its own presence or under its own
eyes. For all this I cite no authority; it is superfluous. I add
a single illustration from the great English commentator: “If the
contempt be committed in the face of the court, the offender may be
instantly apprehended and imprisoned, at the discretion of the judges,
without any further proof or examination.”[192]

If this be the rule of courts, _a fortiori_ it must be the rule of the
Senate on impeachments; for we have seen, that, when sitting for this
purpose, the Senate enjoys a latitude of its own. Its object is the
Public Safety; and therefore no aid for the arrival at truth can be
rejected, no gate can be closed. But here is a gate opened by the sages
of the law, and standing open always, to the end that justice may not
fail.

Applying this rule, it will be seen at once how it brings before the
Senate, without any further evidence, a long catalogue of crime,
affecting the character of the President beyond all possibility of
defence, and serving to explain the later acts on which the impeachment
is founded. It was in this Chamber, in the face of the Senate and
the ministers of foreign powers, and surrounded by the gaze of
thronged galleries, that Andrew Johnson exhibited himself in beastly
intoxication while he took his oath of office as Vice-President; and
all that he has done since is of record here. Much of it appears on our
Journals. The rest is in authentic documents published by the order of
the Senate. Never was record more complete.

Here in the Senate we know officially how he made himself the attorney
of Slavery, the usurper of legislative power, the violator of law, the
patron of rebels, the helping hand of rebellion, the kicker from office
of good citizens, the open bung-hole of the Treasury, the architect
of the “Whiskey Ring,” the stumbling-block to all good laws by wanton
vetoes and then by criminal hindrances: all these things are known
here beyond question. To the apologists of the President, who set up
the quibbling objection that they are not alleged in the Articles of
Impeachment, I reply, that, even if excluded on this account from
judgment, they may be treated as evidence. They are the reservoir from
which to draw, in determining the true character of the later acts
for which the President is arraigned, and especially the _intent_ by
which he was animated. If these latter were alone, without connection
with transgressions of the past, they would have remained unnoticed,
impeachment would not have been ordered. It is because they are a
prolongation of that wickedness under which the country has so long
suffered, and spring from the same bloody fountain, that they are now
presented for judgment. They are not alone; nor can they be faithfully
considered without drawing upon the past. The story of the god Thor in
Scandinavian mythology is revived, whose drinking-horn could not be
drained by the strongest quaffer, for it communicated with the vast and
inexhaustible ocean. Andrew Johnson is our god Thor, and these latter
acts for which he stands impeached are the drinking-horn whose depths
are unfathomable.


OUTLINE OF TRANSGRESSIONS.

From this review, showing how this proceeding is political in
character, before a political body, and with a political judgment,
being expulsion from office and nothing more,--then how the
transgressions of the President, in protracted line, are embraced under
“impeachable offences,”--then how the form of procedure is liberated
from ordinary technicalities of law,--and, lastly, how unquestionable
rules of evidence open the gates to overwhelming testimony,--I pass to
the consideration of the testimony, and how the present impeachment
became a necessity. I have already called it one of the last great
battles with Slavery. See now how the battle began.

Slavery in all its pretensions is a defiance of law; for it can have
no law in its support. Whoso becomes its representative must act
accordingly; and this is the transcendent crime of Andrew Johnson.
For the sake of Slavery, and to uphold its original supporters in
their endeavors to continue this wrong under another name, he has set
at defiance the National Constitution and the laws of the land; and
he has accompanied this unquestionable usurpation by brutalities and
indecencies in office without precedent, unless we go back to the Roman
emperor fiddling or the French monarch dancing among his minions. This
usurpation, with its brutalities and indecencies, became manifest as
long ago as the winter of 1866, when, being President, and bound by
oath of office to preserve, protect, and defend the Constitution,
and to take care that the laws are faithfully executed, he assumed
legislative powers in the reconstruction of the Rebel States, and,
in carrying forward this usurpation, nullified an Act of Congress,
intended as the corner-stone of Reconstruction, by virtue of which
Rebels are excluded from office under the National Government, and
thereafter, in vindication of this misconduct, uttered a scandalous
speech, in which he openly charged members of Congress with being
assassins, and mentioned some by name. Plainly he should have been
impeached and expelled at that early day. The case against him was
complete. That great patriot of English history, Lord Somers, has
likened impeachment to Goliath’s sword hanging in the Temple, to
be taken down only when occasion required;[193] but if ever there
was occasion for its promptest vengeance, it was then. Had there
been no failure at that time, we should be now by two years nearer
to restoration of all kinds, whether political or financial. So
strong is my conviction of the fatal remissness of the impeaching
body, that I think the Senate would do a duty in strict harmony
with its constitutional place in the Government, and the analogies
of judicial tribunals so often adduced, if it reprimanded the House
of Representatives for this delay. Of course the Senate could not
originate impeachment. It could not take down the sword of Goliath. It
must wait on the House, as the court waits on the grand jury. But this
waiting has cost the country more than can be told.

Meanwhile the President proceeded in transgression. There is nothing
of usurpation he has not attempted. Beginning with assumption of all
power in the Rebel States, he has shrunk from nothing in maintenance of
this unparalleled assumption. This is a plain statement of fact. Timid
at first, he grew bolder and bolder. He saw too well that his attempt
to substitute himself for Congress in the work of Reconstruction was
sheer usurpation, and therefore, by his Secretary of State, did not
hesitate to announce that “it must be distinctly understood that the
restoration will be _subject to the decision of Congress_.”[194] On
two separate occasions, in July and September, 1865, he confessed the
power of Congress over the subject; but when Congress came together in
December, the confessor of Congressional power found that he alone had
this great prerogative. According to his new-fangled theory, Congress
had nothing to do but admit the States with governments instituted
through his will alone. It is difficult to measure the vastness of
this usurpation, involving as it did a general nullification. Strafford
was not bolder, when, speaking for Charles the First, he boasted that
“the King’s little finger was heavier than the loins of the Law”;[195]
but these words helped the proud minister to the scaffold. No monarch,
no despot, no sultan, could claim more than an American President; for
he claimed all. By his edict alone governments were organized, taxes
levied, and even the franchises of the citizen determined.

Had this assumption of power been incidental, for the exigency of
the moment, as under pressure of war, and especially to serve human
rights, to which before his elevation the President had professed
such vociferous devotion, it might have been pardoned. It would have
passed into the chapter of unauthorized acts which a patriot people
had condoned. But it was the opposite in every particular. Beginning
and continuing in usurpation, it was hateful beyond pardon, because it
sacrificed Unionists, white and black, and was in the interest of the
Rebellion, and of Rebels who had been in arms against their country.

More than one person was appointed provisional governor who could not
take the oath of office required by Act of Congress. Other persons
in the same predicament were appointed in the revenue service. The
effect of these appointments was disastrous. They were in the nature
of notice to Rebels everywhere, that participation in the Rebellion
was no bar to office. If one of their number could be appointed
governor, if another could be appointed to a confidential position in
the Treasury Department, there was nobody on the long list of blood
who might not look for preferment. And thus all offices, from governor
to constable, were handed over to disloyal scramble. Rebels crawled
forth from their retreats. Men who had hardly ventured to expect life
were candidates for office, and the Rebellion became strong again.
The change was felt in all gradations of government, in States,
counties, towns, and villages. Rebels found themselves in places of
trust, while true-hearted Unionists, who had watched the coming of
our flag and should have enjoyed its protecting power, were driven
into hiding-places. All this was under the auspices of Andrew Johnson.
It was he who animated the wicked crew. He was at the head of the
work. Loyalty was persecuted. White and black, whose only offence was
that they had been true to country, were insulted, abused, murdered.
There was no safety for the loyal man except within the flash of our
bayonets. The story is as authentic as hideous. More than two thousand
murders have been reported in Texas alone since the surrender of Kirby
Smith. In other States there was like carnival. Property, person, life,
were all in jeopardy. Acts were done to “make a holiday in Hell.” At
New Orleans was a fearful massacre, worse, considering the age and
place, than that of St. Bartholomew, which darkens a century of France,
or that of Glencoe, which has printed an ineffaceable stain upon one
of the greatest reigns of English history. All this is directly traced
to Andrew Johnson. The words of bitterness uttered at another time are
justified, while Fire, Famine, and Slaughter shriek forth,--

    “He let me loose, and cried, Halloo!
    To him alone the praise is due.”[196]


ACCUMULATION OF IMPEACHABLE OFFENCES.

This is nothing but the outline, derived from historic sources _which
the Senate on this occasion is bound to recognize_. Other acts fall
within the picture. The officers he appointed in defiance of law were
paid also in the same defiance. Millions of property were turned
over without consideration to railroad companies, whose special
recommendation was participation in the Rebellion. The Freedmen’s
Bureau, that sacred charity of the Republic, was despoiled of its
possessions for the sake of Rebels, to whom their forfeited estates
were given back after they had been vested by law in the United States.
The proceeds of captured and abandoned property, lodged under law
in the National Treasury, were ravished from their place of deposit
and sacrificed. Rebels were allowed to fill the antechambers of the
Executive Mansion and to enter into the counsels. The pardoning
power was prostituted, and pardons were issued in lots to suit
Rebels, thus grossly abusing that trust whose discreet exercise is so
essential to the administration of justice. The powers of the Senate
over appointments were trifled with and disregarded by reappointing
persons already rejected, and by refusing to communicate the names
of others appointed during the recess. The veto power, conferred by
the National Constitution as a remedy for ill-considered legislation,
was turned by him into a weapon of offence against Congress, and into
an instrument to beat down the just opposition which his usurpation
had aroused. The power of removal, so sparingly exercised by patriot
Presidents, was seized as an engine of tyranny, and openly employed
to maintain his wicked purposes, by the sacrifice of good citizens
who would not be his tools. Incompetent and dishonest creatures,
recommended only by their echoes to his voice, were appointed to
office, especially in the collection of the internal revenue, through
whom a new organization, known as the “Whiskey Ring,” has been able
to prevail over the Government, and to rob the Treasury of millions,
at the cost of tax-paying citizens, whose burdens are thus increased.
Laws enacted by Congress for the benefit of the colored race, including
that great statute for the establishment of the Freedmen’s Bureau,
and that other great statute for the establishment of Civil Rights,
were first attacked by Presidential veto, and, when finally passed by
requisite majority over the veto, were treated by him as little better
than dead letter, while he boldly attempted to arrest a Constitutional
Amendment by which the rights of citizens and the national debt
were placed under the guaranty of irrepealable law. During these
successive assumptions, usurpations, and tyrannies, utterly without
precedent in our history, this deeply guilty man ventured upon public
speeches, each an offence to good morals, where, lost to all shame,
he appealed in coarse words to the coarse passions of the coarsest
people, scattering firebrands of sedition, inflaming anew the rebel
spirit, insulting good citizens, and, with regard to office-holders,
announcing, in his own characteristic phrase, that he would “kick them
out,”--the whole succession of speeches being, from their brutalities
and indecencies, in the nature of a “criminal exposure of his person,”
indictable at Common Law, for which no judgment can be too severe.
Even this revolting transgression has additional aggravation, when it
is considered, that, through these utterances, the cause of justice
was imperilled, and the accursed demon of civil feud lashed again into
vengeful fury.

All these things, from beginning to end, are plain facts, recorded
in our annals, and known to all. And it is further recorded in our
annals and known to all, that, through these enormities,--any one
of which is ample for condemnation, while all together present an
aggregation of crime,--untold calamities have been brought upon our
country, disturbing business and finance, diminishing the national
revenues, postponing specie payments, dishonoring the Declaration of
Independence in its grandest truths, arresting the restoration of the
Rebel States, reviving the dying Rebellion, and, instead of that peace
and reconciliation so much longed for, sowing strife and wrong, whose
natural fruit is violence and blood.


OPEN DEFIANCE OF CONGRESS.

For all these, or any one of them, Andrew Johnson should have been
impeached and expelled from office. The case required a statement only,
not an argument. Unhappily this was not done. As a petty substitute
for the judgment which should have been pronounced, and as a bridle on
Presidential tyranny in “kicking out of office,” Congress enacted a
law known as the Tenure-of-Office Act, passed March 2, 1867, over his
veto, by two thirds of both Houses.[197] And to prepare the way for
impeachment, by removing scruples of technicality, its violation was
expressly declared a high misdemeanor.

The President began at once to chafe under its restraint. Recognizing
the Act, and following its terms, he first suspended Mr. Stanton from
office, and then, in anticipation of his restoration by the Senate,
made the attempt to win General Grant into surrender of the department,
so as to oust Mr. Stanton and render restoration by the Senate
ineffectual. Meanwhile Sheridan in Louisiana, Pope in Alabama, and
Sickles in South Carolina, who, as military commanders, were carrying
into the pacification of these States the energies so brilliantly
displayed in the war, were pursued by the same vindictive spirit. They
were removed by the President, and Rebellion throughout that whole
region clapped its hands. This was done in the exercise of his power
as Commander-in-Chief. At last, in unappeased rage, he openly violated
the Tenure-of-Office Act, so as to bring himself under its judgment, by
defiant attempt to remove Mr. Stanton from the War Department without
the consent of the Senate, and the appointment of Lorenzo Thomas,
Adjutant-General of the United States, as Secretary of War _ad interim_.


IMPEACHMENT AT LAST.

The Grand Inquest of the nation, after sleeping on so many enormities,
was awakened by this open defiance. The gauntlet was flung into its
very chamber, and there it lay on the floor. The President, who had
already claimed everything for the Executive with impunity, now rushed
into conflict with Congress on the very ground selected in advance by
the latter. The field was narrow, but sufficient. There was but one
thing for the House of Representatives to do. Andrew Johnson must be
impeached, or the Tenure-of-Office Act would become a dead letter,
while his tyranny would receive a letter of license, and impeachment as
a remedy for wrong-doing would be blotted from the Constitution.

Accordingly it was resolved that the offender, whose crimes had so long
escaped judgment, should be impeached. Once entered upon this work,
the House of Representatives, after setting forth the removal of Mr.
Stanton and the appointment of General Thomas in violation of law and
Constitution, proceeded further to charge him in different forms with
conspiracy wrongfully to obtain possession of the War Department; also
with attempt to corrupt General Emory, and induce him to violate an
Act of Congress; also with scandalous speeches, such as no President
could be justified in making; concluding with a general Article setting
forth attempts on his part to prevent the execution of certain Acts of
Congress.

Such is a simple narrative, which brings us to the Articles of
Impeachment. Nothing I have said thus far is superfluous; for it shows
the origin of this proceeding, and illustrates its moving cause. The
Articles themselves are narrow, if not technical; but they are filled
and broadened by the transgressions of the past, all of which enter
into the present offences. The whole is an unbroken series, with
a common life. As well separate the Siamese twins as separate the
offences charged from that succession of antecedent crimes with which
they are linked, any one of which is enough for judgment. The present
springs from the past, and can be truly seen only in its light, which,
in this case, is nothing less than “darkness visible.”


ARTICLES OF IMPEACHMENT.

In entering upon the discussion of the Articles of Impeachment, I
confess my regret that so great a cause, on which so much depends,
should be presented on such narrow ground, although I cannot doubt that
the whole past must be taken into consideration in determining the
character of the acts alleged. If there has been a violation of law
and Constitution, the apologists of the President then insist that all
was done with good intentions. Here it is enough, if we point to the
past, which thus becomes part of the case. But of this hereafter. It
is unnecessary for me to take time in setting forth the Articles. The
abstract is enough. They will naturally come under review before the
close of the inquiry.

Of the transactions embraced by the Articles, the removal of Mr.
Stanton has unquestionably attracted most attention, although I
cannot doubt that the scandalous harangues are as justly worthy
of condemnation. But the former has been made the pivot of the
impeachment,--so much so that the whole case seems to revolve on this
transaction. Therefore I shall not err, if, following the Articles, I
put this foremost.

This transaction may be brought to the touchstone of the National
Constitution, and also of the Tenure-of-Office Act. But since the
allegation of violation of this Act has been so conspicuous, and this
Act may be regarded as a Congressional interpretation of the power of
removals under the National Constitution, I begin with the questions
arising under it.


TENURE-OF-OFFICE ACT.

The general object of the Tenure-of-Office Act was to protect civil
officers from removal without the advice and consent of the Senate; and
it was made in express terms applicable to “every person holding any
civil office to which he has been appointed by and with the advice and
consent of the Senate.” To this provision, so broad in character, was
appended a proviso:--

    “_Provided_, That the Secretaries of State, of the Treasury, of
    War, of the Navy, and of the Interior, the Postmaster-General,
    and the Attorney-General, shall hold their offices respectively
    for and during the term of the President by whom they may have
    been appointed and for one month thereafter, subject to removal
    by and with the advice and consent of the Senate.”[198]

As this general protection from removal without the advice and consent
of the Senate might be productive of embarrassment during the recess of
the Senate, it was further provided, in a second section, that, during
such recess, any person, except judges of the United States courts, may
be suspended from office by the President on reasons assigned, which it
is made his duty to report to the Senate within twenty days after its
next meeting, and if the Senate concurs, then the President may remove
the officer and appoint a successor; but if the Senate does not concur,
then the suspended officer shall forthwith resume his functions.

On this statute two questions arise: first, as to its
constitutionality, and, secondly, as to its application to Mr. Stanton,
so as to protect him from removal without the advice and consent of the
Senate.

It is impossible not to confess in advance that both have been already
practically settled. The statute was passed over the veto of the
President by two thirds of both Houses, who thus solemnly united in
declaring its constitutionality. Then came the suspension of Mr.
Stanton, and his restoration to office by a triumphant vote of the
Senate, being no less than thirty-five to six,--thus establishing not
only the constitutionality of the statute, but also its protecting
application to Mr. Stanton. And then came the resolution of the Senate,
adopted, after protracted debate, on the 21st February, by a vote
of twenty-eight to six, declaring, that, under the Constitution and
laws of the United States, the President has no power to remove the
Secretary of War and to designate any other officer to perform the
duties of that office _ad interim_; thus for the third time affirming
the constitutionality of the statute, and for the second time its
protecting application to Mr. Stanton. There is no instance in our
history where there has been such a succession of votes, with such
large majorities, declaring the conclusions of the Senate, and fixing
them beyond recall. “Thrice is he armed that hath his quarrel just”;
but the Tenure-of-Office Act is armed _thrice_, by the votes of the
Senate. The apologists of the President seem to say of these solemn
votes, “Thrice the brinded cat hath mewed”; but such a threefold record
cannot be treated with levity.

The question of the constitutionality of this statute complicates
itself with the power of removal under the National Constitution; but I
shall not consider the latter question at this stage. It will naturally
present itself when we consider the power of removal under the
National Constitution, which has been claimed by the President. For the
present I assume the constitutionality of the statute.


ITS APPLICATION TO MR. STANTON.

I come at once to the question of the application of the statute to Mr.
Stanton, so as to protect him against removal without the consent of
the Senate. And here I doubt if any question would have arisen but for
the hasty words of the Senator from Ohio [Mr. SHERMAN], so often quoted
in this proceeding.

Unquestionably the Senator from Ohio, when the report of the Conference
Committee of the two Houses was under discussion, stated that the
statute did not protect Mr. Stanton in his office; but this was the
individual opinion of this eminent Senator, and nothing more. On
hearing it, I cried from my seat, “The Senator must speak for himself”;
for I held the opposite opinion. It was clear to my mind that the
statute was intended to protect Mr. Stanton, and that it did protect
him. The Senator from Oregon [Mr. WILLIAMS], who was Chairman of the
Conference Committee and conducted its deliberations, informs us that
there was no suggestion in committee that the statute did not protect
all of the President’s Cabinet, including, of course, Mr. Stanton.
The debates in the House of Representatives are the same way. Without
holding the scales to weigh any such conflicting opinions, I rest on
the received rule of law, that they cannot be taken into account in
determining the meaning of the statute. And here I quote the judgment
of the Supreme Court of the United States, pronounced by Chief Justice
Taney:--

    “In expounding this law, _the judgment of the Court cannot in
    any degree be influenced by the construction placed upon it by
    individual members of Congress in the debate which took place
    on its passage_, nor by the motives or reasons assigned by them
    for supporting or opposing amendments that were offered. The
    law as it passed is the will of the majority of both Houses,
    and the only mode in which that will is spoken is in the Act
    itself; and we must gather their intention from the language
    there used, comparing it, when any ambiguity exists, with the
    laws upon the same subject, _and looking, if necessary, to the
    public history of the times in which it was passed_.”[199]

It is obvious to all acquainted with a legislative body that the rule
thus authoritatively declared is the only one that could be safely
applied. The Senate, in construing the present statute, must follow
this rule. Therefore I repair to the statute, stopping for a moment to
glance at the public history of the times, in order to understand its
object.

We have seen how the President, in carrying forward his usurpation
in the interest of the Rebellion, trifled with the Senate in regard
to appointments, and abused the traditional power of removal, openly
threatening good citizens in office that he would “kick them out,” and
filling all vacancies, from high to low, with creatures whose first
promise was to sustain his barbarous policy. I do not stop to portray
this outrage, constituting an impeachable offence, according to the
declared opinion of Mr. Madison,[200] one of the strongest advocates of
the Presidential power of removal. Congress, instead of adopting the
remedy suggested by this father of the Constitution, and expelling the
President by process of impeachment, attempted to wrest from him the
power he was abusing. For this purpose the Tenure-of-Office Act was
passed. It was deemed advisable to include the Cabinet officers within
its protection; but, considering the intimate relations between them
and the President, a proviso was appended, securing to the latter the
right of choosing them in the first instance. Its object was, where
the President finds himself, on accession to office, confronted by a
hostile Senate, to assure this right of choice, without obliging him to
keep the Cabinet of his predecessor; and accordingly it says to him,
“Choose your own Cabinet, but expect to abide by your choice, unless
you can obtain the consent of the Senate to a change.”

Any other conclusion is flat absurdity. It begins by misconstruing the
operative words of the proviso, that the Cabinet officers “shall hold
their offices respectively for and during the term of the President by
whom they may have been appointed.” On the face there is no ambiguity
here. Only by going outside can any be found, and this disappears on a
brief inquiry. At the date of the statute Andrew Johnson had been in
office nearly two years. Some of his Cabinet were originally appointed
by President Lincoln; others had been formally appointed by himself.
But all were there equally by his approval and consent. One may do an
act himself, or make it his own by ratifying it, when done by another.
In law it is equally his act. Andrew Johnson did not originally
appoint Mr. Stanton, Mr. Seward, or Mr. Welles, but he adopted their
appointments; so that at the passage of the statute they stood on the
same footing as if originally appointed by him. Practically, and in the
sense of the statute, they were appointed by him. They were a Cabinet
of his own choice, just as much as the Cabinet of his successor, duly
appointed, will be of his own choice. If the statute compels the
latter, as it clearly does, to abide by his choice, it is unreasonable
to suppose that it is not equally obligatory on Andrew Johnson.
Otherwise there is special immunity for the President whose misconduct
rendered it necessary, and Congress is exhibited as legislating for
some future unknown President, and not for Andrew Johnson, already too
well known.

Even the Presidential apologists do not question that the members
of the Cabinet commissioned by Andrew Johnson are protected by the
statute. How grossly unreasonable to suppose that Congress intended to
make such a distinction among his Cabinet as to protect those whose
support of his usurpation had gained the seats they enjoyed, while
it exposed to his caprice a great citizen whose faithful services
during the war had won the gratitude of his country, whose continuance
in office was regarded as an assurance of public safety, and whose
attempted removal has been felt as a national calamity! Clearly, then,
it was the intention of the statute to protect the whole Cabinet,
whether originally appointed by Andrew Johnson, or originally appointed
by his predecessor and continued by him.

I have no hesitation in saying that no other conclusion is possible
without violence to the statute. I cannot forget, that, while we are
permitted “to open the law upon doubts,” we are solemnly warned “not
to open doubts upon the law.”[201] It is Lord Bacon who gives us this
rule, whose obvious meaning is, that, where doubts do not exist, they
should not be invented. It is only by this forbidden course that any
question can be raised. If we look at the statute in its simplicity,
its twofold object is apparent,--first, to prohibit removals, and,
secondly, to limit certain terms of service. The prohibition to remove
plainly applies to all; the limitation of service applies only to
members of the Cabinet. I agree with the excellent Senator from Iowa
[Mr. HARLAN], that this analysis removes all ambiguity. The pretension
that any one of the Cabinet was left to the unchecked power of the
President is irreconcilable with the concluding words of the proviso,
which declare that they shall be “subject to removal by and with the
advice and consent of the Senate,”--thus expressly excluding the
prerogative of the President.

Let us push this inquiry still further, by looking more particularly at
the statute reduced to a skeleton, so that we may see its bones.

1. _Every person holding any civil office_, by and with the advice
and consent of the Senate, is entitled to hold such office until a
successor is appointed.

2. If members of the Cabinet, _then during the term of the President by
whom they have been appointed_, and one month thereafter, unless sooner
removed by consent of the Senate.

Mr. Stanton obviously falls within the general class, “every person
holding any civil office”; and he is entitled to the full benefit of
the provision for their benefit.

As obviously he falls within the sub-class, members of the Cabinet.

Here his rights are equally clear. It is in the discussions under this
head that the ingenuity of lawyers has found amplest play, mainly
turning upon what is meant by “term” in the statute. I glance for a
moment at some of these theories.

1. One pretension is, that, the “term” having expired with the life
of President Lincoln, Mr. Stanton is retroactively legislated out
of office on the 15th May, 1865. As this is a penal statute, this
construction makes it _ex post facto_, and therefore unconstitutional.
It also makes Congress enact the absurdity that Mr. Stanton had for two
years been holding office illegally; whereas he had been holding under
the clearest legal title, which could no more be altered by legislation
than black could be made white. A construction rendering the statute at
once unconstitutional and absurd must be rejected.

2. The quibble that would exclude Mr. Stanton from the protection
of the statute, because he was appointed during the first “term” of
President Lincoln, and the statute does not speak of “terms,” is hardly
worthy of notice. It leads to the same absurd results as follow from
the first supposition, enhanced by increasing the retroactive effect.

3. Assuming that the statute does not terminate Mr. Stanton’s right a
month after President Lincoln’s death, it is insisted that it must take
effect at the earliest possible moment, and therefore on its passage.
From this it follows that Mr. Stanton has been illegally in office
since the 2d of March, 1867, and that both he and the President have
been guilty of a violation of law, the former in exercising the duties
of an office to which he had no right, and the latter for appointing
him, or continuing him in office, without consent of the Senate, in
violation of the Constitution and the statute in question. This is
another absurdity to be rejected.

Assuming, as is easy, that it is President Lincoln’s “term,” we have
the better theory, that it did not expire with his life, but continues
until the 4th of March, 1869, in which event Mr. Stanton is clearly
entitled to hold until a month thereafter. This construction is
entirely reasonable, and in harmony with the Constitution, and the
legislation under it. I confess that it is one to which I have often
inclined.

This brings me back to the construction with which I began, and I
find Andrew Johnson the President who appointed Mr. Stanton. To make
this simple, it is only necessary to read “chosen” for “appointed”
in the statute,--or, if you please, consider the continuance of
Mr. Stanton in office, with the concurrence of the President, as a
practical appointment, or equivalent thereto. Clearly Mr. Stanton
was in office, when the statute passed, from the “choice” of the
President. Otherwise he would have been removed. His continuance was
like another commission. This carries out the intention of the framers
of the statute, violates no sound canon of construction, and is
entirely reasonable in every respect. Or, if preferred, we may consider
the “term” that of President Lincoln, and then Mr. Stanton would be
protected in office until one month after the 4th of March next. But
whether the “term” be of Andrew Johnson or President Lincoln, he is
equally protected.

Great efforts have been made to show that Mr. Stanton does not come
within the special protection of the proviso, without considering the
irresistible consequence that he is then within the general protection
of the statute, being “a person holding a civil office.” Turn him
out of the proviso and he falls into the statute, unless you are as
imaginative as one of the apologists, who placed him in a sort of
intermediate limbo, like a lost spirit floating in space, as in one
of Flaxman’s Illustrations of Dante. But the imagination of this
conception cannot make us insensible to its surpassing absurdity. It is
utterly unreasonable, and every construction must be rejected which is
inconsistent with common sense.


SUSPENSION OF MR. STANTON RECOGNIZED HIM AS PROTECTED BY THE STATUTE.

Here I might close this part of the case; but there is another
illustration. In suspending Mr. Stanton from office, as long ago as
August, the President himself recognized that he was protected by
the statute. The facts are familiar. The President, in formal words,
undertook to say that the suspension was by virtue of the Constitution;
but this was a dishonest pretext, in harmony with so much in his
career. Whatever he may say, his acts speak louder than his words.
In notice of the suspension to the Secretary of the Treasury, and
then again in a message to the Senate assigning his reasons for the
suspension, both being according to requirements of the statute,
he testified, that, in his judgment at that time, Mr. Stanton came
within its protection. If not, why thus elaborately comply with its
requirements? Why the notice to the Secretary of the Treasury? Why the
message to the Senate? All this was novel and without example. Why
write to General Grant of “being sustained” by the Senate? Approval or
disapproval of the Senate could make no difference in the exercise of
the power he now sets up. Approval could not confirm the suspension;
disapproval could not restore the suspended Secretary of War. In fine,
why suspend at all? Why exercise the power of suspension, when the
President sets up the power of removal? If Mr. Stanton was unfit for
office and a thorn in his side, why not remove him at once? Why resort
to this long and untried experiment merely to remove at last? There is
but one answer. Beyond all question the President thought Mr. Stanton
protected by the statute, and sought to remove him according to its
provisions, beginning, therefore, with his suspension. Failing in this,
he undertook to remove him in contravention of the statute, relying in
justification on his pretension to judge of its constitutionality, or
the pusillanimity of Congress, or something else “to turn up,” which
should render justification unnecessary.

Clearly the suspension was made under the Tenure-of-Office Act, and
can be justified in no other way. From this conclusion the following
dilemma results: If Mr. Stanton was within the statute, by what right
was he removed? If he was not, by what right was he suspended? The
President may choose his horn. Either will be sufficient to convict.

I should not proceed further under this head but for the new device
which makes its appearance under the auspices of the Senator from Maine
[Mr. FESSENDEN], who tells us, that, “whether Mr. Stanton came under
the first section of the statute or not, the President had a clear
right to suspend him under the second.” Thus a statute intended as a
bridle on the President gives the power to suspend Mr. Stanton, but
fails to give him any protection. This statement would seem enough.
The invention of the Senator is not less fallacious than the pretext of
the President. It is a device well calculated to help the President and
to hurt Mr. Stanton, with those who regard devices more than the reason
of the statute and its spirit.

Study the statute in its reason and its spirit, and you cannot fail to
see that the second section was intended merely as a pendant to the
first, and was meant to apply to the cases included in the first, and
none other. It was a sort of safety-valve, or contrivance to guard
against possible evils from bad men who could not be removed during the
recess of the Senate. There was no reason to suspend a person who could
be removed. It is absurd to suppose that a President would resort to a
dilatory and roundabout suspension, when the short cut of removal was
open to him. Construing the statute by this plain reason, its second
section must have precisely the same sphere of operation as the first.
By the letter, Mr. Stanton falls within both; by the intention, it is
the same. It is only by applying to the first section his own idea of
the intention, and by availing himself of the letter of the second,
that the Senator is able to limit the one and to enlarge the other, so
as to exclude Mr. Stanton from the protection of the statute, and to
include him in the part allowing suspensions. Applying either letter or
spirit consistently, the case is plain.

I turn for the present from the Tenure-of-Office Act, insisting that
Mr. Stanton is within its protection, and, being so, that his removal
was, under the circumstances, a high misdemeanor, aggravated by its
defiant purpose and the long series of transgressions which preceded
it, all showing a criminal intent. The apologies of the President will
be considered hereafter.


SUBSTITUTION OF ADJUTANT-GENERAL THOMAS AD INTERIM.

The case of Mr. Stanton has two branches: first, his removal, and,
secondly, the substitution of Adjutant-General Thomas as Secretary of
War _ad interim_. As the former was contrary to positive statute, so
also was the latter without support in any Act of Congress. For the
present I content myself with the latter proposition, without opening
the question of Presidential powers under the National Constitution.

The offender rests his case on the Act of Congress of February 13,
1795, which empowers the President, “in case of _vacancy_ in the office
of Secretary of State, Secretary of the Treasury, or of the Secretary
of the Department of War, … whereby they cannot perform the duties of
their said respective offices, … to authorize any person or persons, at
his discretion, to perform the duties of the said respective offices,
until a successor be appointed, or such vacancy be filled”; and the
supply of the vacancy is limited to six months.[202] Under this early
statute the President defends himself by insisting that there was a
“vacancy,” when, in fact, there was none. All this is in that unfailing
spirit of prerogative which is his guide. Here is assumption of power.
In fact, Mr. Stanton was at his office, quietly discharging its duties,
when the President assumed that there was a “vacancy,” and forthwith
sent the valiant Adjutant-General to enter upon possession. Assumption
and commission were on a par. There is nothing in any law of the land
to sanction either. Each testifies against the offender.

The hardihood of this proceeding becomes more apparent, when it is
understood that this very statute of 1795, on which the offender
relies, was repealed by the statute of February 20, 1863,[203] passed
in our own day, and freshly remembered. The latter statute, by
necessary implication, obliterated the former. Such is the obvious
intention, and I do not hesitate to say that any other construction
leads into those absurdities which constitute the staple of the
Presidential apologists. The object of Congress was to provide a
substitute for previous statutes, restricting the number of vacancies
which might be filled and the persons who might fill them. And this was
done.

As by the National Constitution all appointments must be with the
advice and consent of the Senate, therefore any legislation in
derogation thereof must be construed strictly; but the President
insists that it shall be extended, even in face of the constitutional
requirement. To such pretensions is he driven! The exception recognized
by the National Constitution is only where a vacancy occurs during the
recess of the Senate, when the President is authorized to appoint until
he can obtain the consent of the Senate, and no longer. Obviously,
cases may arise where sudden accident vacates the office, or where the
incumbent is temporarily disabled. Here was the occasion for an _ad
interim_ appointment, and the repealing statute, embodying the whole
law of the subject, was intended for such cases,--securing to the
President time to select a successor, and also power to provide for
a temporary disability. Such is the underlying principle, which it is
for us to apply. The expiration of a commission, which ordinary care
can foresee, is not one of the sudden emergencies for which provision
must be made; and assuming that vacancies by removal were contemplated,
which must be denied, it is plain that the delay required for the
examination of the case would give time to select a successor, while
removal without cause would never be made until a successor was ready.

Look now at the actual facts, and you will see how little they come
within the reason of an _ad interim_ appointment. Evidently the
President had resolved to remove Mr. Stanton last summer. Months
elapsed, leaving his purpose without consummation till February. All
the intervening time was his to select a successor, being a period
longer than the longest fixed for the duration of an _ad interim_
appointment by the very statutes under which he professed to act. In
conversation with General Sherman, a month before the removal, he
showed that he was then looking for a successor _ad interim_. Why not
a permanent successor? It took him only a day to find Mr. Ewing. If,
as there is reason to suppose, Mr. Ewing was already selected when
Adjutant-General Thomas was pushed forward, why appoint the latter
at all? Why not, in the usual way, transmit Mr. Ewing’s name as the
successor? For the excellent reason, that the offender knew the Senate
would not confirm him, and that therefore Mr. Stanton would remain in
office; whereas through an _ad interim_ appointment he might obtain
possession of the War Department, which was his end and aim. The _ad
interim_ appointment of General Thomas was, therefore, an attempt to
obtain possession of an office without the consent of the Senate,
precisely because the offender knew that he could not obtain that
consent. And all this was under pretext of an Act of Congress alike in
letter and spirit inapplicable to the case.

Thus does it appear, that, while Mr. Stanton was removed in violation
of the Tenure-of-Office Act, Adjutant-General Thomas was appointed
Secretary of War _ad interim_ in equal derogation of the Acts of
Congress regulating the subject.


REMOVAL AND SUBSTITUTION AD INTERIM A VIOLATION OF THE CONSTITUTION.

It remains to consider if the removal and substitution were not each
in violation of the National Constitution. The case is new, for never
until now could it arise. Assuming that the Tenure-of-Office Act does
not protect Mr. Stanton, who is thus left afloat in the limbo between
the body of the Act and the proviso, then the President is remitted to
his prerogative under the National Constitution, and he must be judged
accordingly, independently of statute. Finding the power of removal
there, he may be justified; but not finding it there, he must bear the
consequences. And here the Tenure-of-Office Act furnishes a living and
practical construction of the National Constitution from which there is
no appeal.

From the Constitution it appears that the power of appointment is
vested in the President and Senate conjointly, and that nothing is said
of the power of removal, except in case of impeachment, when it is
made by the Senate. Therefore the power of removal is not express, but
implied only, and must exist, if at all, as a necessary consequence
of the power to appoint. But in whom? According to a familiar rule,
the power which makes can unmake. Unless this rule be rejected, the
power of removal must exist in the President and Senate conjointly;
nor is there anything unreasonable in this conclusion. Removal can
always be effected during the session of the Senate by the nomination
and confirmation of a successor, while provision can be made for the
recess by an Act of Congress. This conclusion would be irresistible,
were the Senate always in session; but since it is not, and since cases
may arise during the recess requiring the immediate exercise of this
power, it has been argued that at least during the recess it must be in
the President alone. From this position there has been a jump to the
next, and it has been insisted, that, since, for the sake of public
convenience, the power of removal exists in the President, he is at
liberty to exercise it either during the recess or the session itself.
Here is an obvious extension of the conclusion, which the premises do
not warrant. The reason failing, the conclusion must fail. _Cessante
ratione legis, cessat ipsa lex._ Especially must this be the case
under the National Constitution. A power founded on implied necessity
must fail when the necessity does not exist. The implication cannot be
carried beyond the reason. Therefore the power of removal during the
recess, doubtful at best, unless sanctioned by Act of Congress, cannot
be extended to justify the exercise of that power while the Senate is
in session, ready to act conjointly with the President.

Against this natural conclusion, we have the assumption that a contrary
construction of the National Constitution was established after debate
in 1789. I avoid all details with regard to this debate, cited and
considered so often. I content myself by asking if at best it was
anything but a Congressional construction of the National Constitution,
and, as such, subject to be set aside by another voice from the same
quarter. It was, moreover, a Congressional construction adopted
during the administration of Washington, whose personal character
must have influenced opinion largely; and it prevailed in the House
of Representatives only after earnest debate by a majority of twelve,
and in the Senate only by the casting vote of the Vice-President, John
Adams, who, from position as well as principle, was not inclined to
shear the President of any prerogative. Once adopted, and no strong
necessity for a change occurring, it was allowed to go unaltered, but
not unquestioned. Jurists like Kent and Story, statesmen like Webster,
Clay, Calhoun, and Benton, recorded themselves adversely, and it was
twice reversed by vote of the Senate. This was in 1835 and again in
1836, when a bill passed the Senate, introduced by Mr. Calhoun and
sustained by the ablest statesmen of the time, practically denying the
power of the President.[204] The Tenure-of-Office Act was heralded in
1863 by a statute making the Comptroller of the Currency removable “by
and with the advice and consent of the Senate,”[205]--thus, in this
individual case, asserting for the Senate a check on the President;
and then in 1866, by a more important measure, being the provision
in the Army Appropriation Act,[206] that “no officer in the military
or naval service shall in time of peace be dismissed from service,
except upon and in pursuance of the sentence of a court-martial,”--thus
putting another check on the President. Finally, this Congressional
construction, born of a casting vote, and questioned ever since, has
been overruled by another Congressional construction, twice adopted
in both Houses, first by large majorities on the original passage of
the Tenure-of-Office Act, and then by a vote of two thirds on the
final passage of the same Act over the veto of the President,--and
then again adopted by more than two thirds of the Senate, when the
latter condemned the removal of Mr. Stanton: and all this in the light
of experience, after ample debate, and with all the consequences
before them. Such a Congressional construction must have a controlling
influence, and the fact that it reversed the practice of eighty years
and overcame the disposition to stand on the ancient ways would seem to
increase rather than diminish its weight.

Now mark the consequences. Originally, in 1789, there was a
Congressional construction which in effect made the National
Constitution read,--

    “The President _shall have_ the power of removal.”

For the next eighty years all removals were made under this
construction. The Tenure-of-Office Act was a new Congressional
construction, overruling the first, and entitled to equal, if not
superior weight. By virtue of this Congressional construction the
National Constitution now reads,--

    “The President _shall not have_ the power of removal.”

It follows, then, that in removing Mr. Stanton the President violated
the National Constitution as now construed.

The dilemma is this: If the President can remove Mr. Stanton during
the session of the Senate, without any power by statute, it is only by
virtue of a prerogative vested in him by the National Constitution,
which must necessarily override the Tenure-of-Office Act, as an
unconstitutional effort to abridge it. If, on the other hand, this Act
is constitutional, the prerogative of removal is not in the President,
and he violated the National Constitution when he assumed to exercise
it.

The Tenure-of-Office Act cannot be treated otherwise than as
constitutional,--certainly not in the Senate, where some among the
apologists of the President voted for it. Therefore the prerogative
of removal is not in the President. The long practice which grew up
under a mere reading of the National Constitution has been declared
erroneous. To this extent the National Constitution has been amended,
and it is as absurd to plead the practice under the first reading, in
order to justify an offence under the second, as to plead the existence
of Slavery before the Constitutional Amendment, in order to justify
this monstrosity now.

Thus must we conclude that the offender has violated not only the
Tenure-of-Office Act, but also the National Constitution; that, even
assuming Mr. Stanton unprotected by the statute, the case is not ended;
that this statute, if construed so as to exclude him, cannot be
rejected as a Congressional construction of the National Constitution;
and that, under this Congressional construction, which in value is
second only to a Constitutional Amendment, the prerogative of removal
without the consent of the Senate does not belong to the President.
Of course the power of suspension under the National Constitution,
which is only an incident of the larger pretension, must fall also.
Therefore, in the defiant removal of Mr. Stanton, and also in the
pretended suspension under the National Constitution with which the
transaction began, the President violated the Constitution, and was
guilty of an impeachable offence.

And so, too, we must conclude, that, in the substitution of Lorenzo
Thomas as Secretary of War _ad interim_, the offender violated not only
the Acts of Congress for the supply of vacancies, but also the National
Constitution. Knowing that he could not obtain possession of the office
with the consent of the Senate, he sought to accomplish this purpose
without that consent. Thus, under color of a statute, he practically
set the National Constitution at defiance. Mark here the inconsistency.
He violates the Tenure-of-Office Act, alleging that it is against the
National Constitution, whose champion he professes to be, and then
takes advantage of the Acts of Congress for the supply of vacancies to
set aside this Constitution in one of its most important requirements;
for all which he is justly charged with an impeachable offence.

All this seems clear. Any other conclusion gives to the President
the power under the National Constitution to vacate all national
offices, and leaves the Republic the wretched victim of tyranny, with
a ruler who is not even a constitutional monarch, but a king above
all laws. It was solemnly alleged in the Charge against Charles the
First of England, that, “being admitted King of England, and therein
trusted with a limited power _to govern by and according to the laws
of the land, and_ NOT OTHERWISE,” he nevertheless undertook “_to rule
according to his will_, and to overthrow the rights and liberties of
the people.”[207] These very words now declare the crime of Andrew
Johnson.


THE APOLOGIES.

Here I might close; but the offender has found apologists, who plead
his cause at the bar and in the Senate. The apologies are a strange
compound, enlarging rather than diminishing the offences proved. There
is, first, the Apology of Good Intentions; next, the Apology of making
a case for the Supreme Court, being the Moot-Court Apology; and then,
the Apology that the President may sit in judgment on the laws, and
determine whether they shall be executed, which I call the Apology of
Prerogative. Following these is a swarm of technicalities, devices, and
quibbles, utterly unworthy of the Senate, and to be reprobated by all
who love justice.


THE APOLOGY OF GOOD INTENTIONS.

I begin with the Apology of Good Intentions. In the light of all that
has occurred, with the volume of history open before us, with the
records of the Senate in our hands, and with the evidence at the bar
not utterly forgotten, it is inconceivable that such an apology can be
put forward. While making it, the apologists should be veiled, so that
the derisive smile on their faces may not be observed by the Senate, to
whose simplicity it is addressed. It is hard to treat this apology; but
it belongs to the case, and therefore I deal with it.

A mere technical violation of law, with no evil consequences, and
without any claim of title, is followed by nominal damages only. If
a person, without permission, steps on a field of grass belonging
to another, he is a trespasser, and the law furnishes a familiar
proceeding against him; but if he has done this accidentally, and
without any real damage, it would be hard to pursue him, unless
assertion of the title were thought important. But if the trespasser
is an old offender, who from the beginning has broken fences, ruined
trees, and trampled down the garden, and now defiantly comes upon the
field of grass, insisting upon absolute ownership, then it is vain to
set up the apology that very little damage is done. The antecedent
transgressions, ending in claim of title, enter into the present
trespass, and make it a question whether the rightful owner or the
trespasser shall hold possession. Here the rightful owner is the people
of the United States, and the trespasser is Andrew Johnson. Therefore
in the name of the people is he impeached.

This simple illustration opens the whole case. Mere technical violation
of statute or of Constitution, without antecedents and without
consequents, would not justify impeachment. All of us can recall such,
even in the administration of Abraham Lincoln; and I cannot doubt,
that, since this proceeding began, the Chief Justice violated the
National Constitution when he undertook to give a casting vote, not
being a member of the Senate. These were accidents, besides being
innocuous. From violation of statute or of Constitution the law
ordinarily infers evil intent, and, where such a case is submitted to
judgment, it throws upon the violator the burden of exculpation. He
must show that his conduct was innocent,--in other words, that it was
without evil intent, or claim of title. In the present cause we have
the denial of evil intent, with a claim of title.

The question of intent raised by the offender cannot be considered
narrowly. This is a trial of impeachment, and not a criminal case
in a county court. It is a proceeding for expulsion from office on
account of political offences, and not a suit at law. When the offender
sets up good intentions, he challenges inquisition, according to the
latitude of such proceeding. The whole past is unrolled by himself, and
he cannot prevent the Senate from seeing it. By a commanding rule of
evidence it is all before us without further proof. You cannot shut it
out; you cannot refuse to look at it. And yet we have been seriously
told that we must shut out from sight everything but the technical
trespass. It only remains, that, imitating the ostrich, we should
thrust our heads into the sand, and, not seeing danger, foolishly
imagine it does not exist. This may do at _Nisi Prius_; it will not do
in the Senate.

To such extent has this ostrich pretension been carried, that we were
solemnly admonished at the bar, and the paradox has found voice in the
Senate, that we must judge the acts of Andrew Johnson “as if committed
by George Washington.” Here is the paradox in length and breadth. I
deny it. I scout it. On the contrary, I say that we must judge all
these acts as if committed by Andrew Johnson, and nobody else. In other
words, we must see things as they are. As well insist that an act of
guilt should be judged as the mistake of innocence. As well argue that
the stab of the assassin should be treated as the cut of the surgeon.

To the Apology of Good Intentions I oppose all that long unbroken
series of transgressions, each with a voice to drown every pretext
of innocence. I would not repeat what I have already said, but, in
presence of this apology, it is my duty to remind the Senate how the
career of this offender is compounded of falsehood and usurpation; how,
beginning with promises to make treason odious, he soon installed it
in authority; how, from declared sympathy with Unionists, white and
black, he changed to be their persecutor; how in him are continued the
worst elements of Slavery, an insensibility to right and a passion
for power; how, in this spirit, he usurped great prerogatives not
belonging to him; how, in the maintenance of this usurpation, he stuck
at nothing; how he violated law; how he abused the pardoning power;
how he prostituted the appointing power; how he wielded the power of
removal to maintain his tyranny; how he sacrificed the Freedmen’s
Bureau, and lifted up the Whiskey Ring; how he patronized massacre and
bloodshed, and gave a license to the Ku-Klux-Klan; how, in madness,
he entered into conflict with Congress, contesting its rightful power
over the reconstruction of the Rebel States, and, when Congress
would not succumb to his usurpation, how he thwarted and vilified
it, expectorating foul-mouthed utterances which are a disgrace to
human nature; how he so far triumphed in his wickedness that in nine
States no Union man is safe and no murderer of a Union man can be
punished; and, lastly,--for time fails, though not the long list of
transgressions,--how he conspired against the patriot Secretary of
War, because he found in that adamantine character an obstacle to
his revolutionary career. And now, in the face of this terrible and
indisputable record, entering into and filling this impeachment, I hear
a voice saying that we must judge the acts in question “as if committed
by George Washington.” The statement of this pretension is enough. I
hand it over to the contempt it deserves.


THE MOOT-COURT APOLOGY.

Kindred to the Apology of Good Intentions, or, perhaps, a rib out of
its side, is the Moot-Court Apology, which pretends that the President,
in removing Mr. Stanton, only wished to make a case for the Supreme
Court, and thus submit to this tribunal the constitutionality of the
Tenure-of-Office Act.

By this pretension the Supreme Court is converted into a moot-court to
sit in judgment on Acts of Congress, and the President becomes what, in
the time of Charles the Second, Lord Keeper Guilford said a good lawyer
must be, “a put-case.”[208] Even assuming, against evidence, that
such was his purpose, it is hard to treat it without reprobation. The
Supreme Court is not arbiter of Acts of Congress. If this pretension
ever found favor, it was from the partisans of Slavery and State
Rights, who, assured of the sympathy of the Court, sought in this
way to complete an unjust triumph. The power claimed is tribunitial
in character, being nothing less than a veto. Its nearest parallel
in history is in the ancient Justicia of Aragon, who could set aside
even royal ordinances as unconstitutional. The National Constitution
leaves no doubt as to the proper functions of the Supreme Court. It
may hear and determine “all cases in law and equity arising under
the Constitution, the laws of the United States, and treaties made
under their authority”; but this is all. Its business is to decide
“cases,”--not to sit in judgment on Acts of Congress and issue its
tribunitial veto. If a “case” arises where a statute is said to clash
with the National Constitution, it must be decided as any other case of
conflict of laws. But nothing within the just powers of the Court can
touch an Act of Congress, except incidentally, and then its judgment is
binding only on the parties. The incidental reason assigned--as, for
instance, that a statute is unconstitutional--does not bind anybody,
not even the parties or the Court itself. Of course such incidental
reason cannot bind Congress.

On the evidence it is clear enough that the President had no honest
purpose to make a case for the Supreme Court. He may have talked
about it, but he was never in earnest. When asked by General Sherman
“why lawyers could not make a case,” he said, in reply, “that it was
found impossible, or a case could not be made up.” And so at each
stage we find him practically discarding the idea. He issues the order
of removal. Mr. Stanton disobeys. Here was exactly his opportunity.
Instead of making the case by commencing the proper process, he tells
Adjutant-General Thomas to “go on and take possession of the office”;
and then, putting an end to this whole pretension of a case for the
Court, he proceeds to treat the latter in every respect, whether of
law or fact, as Secretary, welcomes him to his Cabinet, invites him
to present the business of his Department, and, so far from taking
advantage of the opportunity he had professed to desire, denies its
existence. How could he inquire by what authority Mr. Stanton assumed
to hold the office of Secretary of War, when he denied, in fact, that
he was holding it?

Look a little further, and the reason of this indifference becomes
apparent. The old writ of _Quo Warranto_ was the only process
by which a case could be made, and this only at the suit of the
Attorney-General. Had the President made an order of removal, the
Secretary would have been compelled to hold only by virtue of the law
and the Constitution. In answer to the writ he would have pleaded
this protection, and the Court must have decided the validity of the
plea. Meanwhile he would have remained in office. Had he left, the
process would have failed, and there was none other by which he could
raise the question. The decision of the Supreme Court in _Wallace_ v.
_Anderson_[209] would prevent resort to a _Quo Warranto_ on his part,
while the earlier case of _Marbury_ v. _Madison_[210] would shut him
out from a _Mandamus_. The apologists have not suggested any other
remedy. It is clear, therefore, that Mr. Stanton’s possession of the
office was a _sine qua non_ to a case in the Supreme Court, and that
this could be only by _Quo Warranto_. The local attorney employed by
the President testifies that in such a case judgment could not be
reached within a year. This was enough to render it impracticable;
for, if commenced, it would leave the hated Secretary at his post
for the remainder of the Presidential term. During the pendency of
the proceeding Mr. Stanton would continue legitimate possessor of
the office. Therefore the commencement of a case would defeat the
Presidential passion for instant removal. True to his passion, he
removed the Secretary, well knowing that in this way he prevented a
case for the Court.

Against this conclusion, where all the testimony is harmonized,
we have certain fruitless conversations with his Cabinet, and an
attempt to raise the question on _Habeas Corpus_ after the arrest of
Adjutant-General Thomas. Conversations, whose exclusion has given a
handle to the apologists, which they do not fail to use, only show that
the President made this question a subject of talk, and that, in the
end, it became apparent that he could not make a case so as to remove
Mr. Stanton during his term, and as this was his darling object, the
whole idea was abandoned. The arrest of Adjutant-General Thomas seemed
for a moment to furnish another chance; but it is enough to say of the
futile attempt at that time, that it was not only after the removal of
Mr. Stanton, but after impeachment had been voted by the House.

Had the President been in earnest, it was very easy for him to make a
case by proceeding against a simple postmaster; but this did not suit
him. He was in earnest only to remove Mr. Stanton.

Nothing is clearer than that this Moot-Court Apology is a wretched
pretension and afterthought. It is the subterfuge of a criminal to
cover up his crime,--as if a surgeon had committed murder, and then set
up the apology that it was an experiment in science.


THE APOLOGY OF PREROGATIVE.

Then comes the Apology of Prerogative, being nothing less than the
intolerable pretension that the President can sit in judgment on Acts
of Congress, and, in his discretion, refuse to execute them. This
apology is in the nature of a claim of right. Let it be established,
and, instead of a government of laws, which is the glory of a republic,
we have only the government of a single man. Here is the one-man power
with a vengeance.

Of course, if the President can sit in judgment on the Tenure-of-Office
Act, and set it aside as unconstitutional, there is no Act of Congress
he may not treat in the same way. He may set aside the whole succession
of statutes for the government of the army; and his interview with
General Emory attests his willingness to venture in that direction.
In the spirit of oppression which seems to govern him, he may set
aside the great statute for the establishment of civil rights without
distinction of color. But why confine myself to instances? The whole
statute-book will be subject to his prerogative. Vain the requirement
of the National Constitution, that the President “shall take care
that the laws be faithfully executed.” Vain that other requirement,
that a bill approved by two thirds of both Houses over his veto
“shall become a law.” His veto is perpetual; nor is it limited to any
special enactment. It is as broad as the whole recorded legislation
of the Republic. There is nothing it cannot hurry into that maelstrom
ingulfing all.

The President considers the statute unconstitutional, say the
apologists. A mistake in judgment on such a question is not an
impeachable offence, add the apologists. To which I reply, that it
is not for mistake in judgment, but for usurpation in undertaking to
exercise his judgment at all on such a question, that he is impeached;
in other words, he is impeached for undertaking to set aside a statute.
Whether the statute is constitutional or not is immaterial. The
President, after the statute has become a law, is not the person to
decide.

Ingenuity seeks to perplex the question by putting impossible
cases. For instance, suppose Congress should have lost its wits so
far as to enact, in direct terms, that the President should not be
commander-in-chief of the army and navy, or that he should not have
the power to grant pardons; and suppose, still further, that Congress,
in defiance of positive inhibition, should undertake to create
“titles of nobility”; must not the President treat such enactments as
unconstitutional? Of course he must; but such instances do not help
the prerogative now claimed. Every such enactment would be on its face
unconstitutional. It would be an act of unreasoning madness, which
President as well as Court must disregard as if plain nonsense. Its
unconstitutionality would be like an axiom, not to be questioned.
No argument or authority is needed. It proves itself. Nor would the
duty of disobedience be less obligatory, even if the enactment were
sanctioned by the Supreme Court: and it is not more violent for me to
suppose it sanctioned by the Supreme Court than for the apologists
to suppose it sanctioned by Congress. The enactment would be a
self-evident monstrosity, and therefore to be disobeyed, as if one of
the Ten Commandments were reversed so as to read, “Thou shalt kill.”
Such extreme cases serve no purpose. The National Constitution is the
supreme law of the land, and the people will not allow its axiomatic
requirements to be set aside. An illustration outside the limits of
reason is of no value.

In the cases supposed, the unconstitutionally of the enactment is
axiomatic, excluding opinion or argument. It is matter of fact, and
not matter of opinion. When the case is one on which there are two
sides or two different views, it is then within the domain of argument.
It is in no sense axiomatic. It is no longer matter of fact, but
matter of opinion. When submitted to the Supreme Court, it is for
their “opinion.” Without occupying time with refinements, I content
myself with asserting that the judgment of the Court must be matter of
opinion. One of the apologists has asserted that such a judgment is
matter of fact, and, generally, that the constitutionality of a statute
is matter of fact. I assert the contrary. When a bench of judges stands
five to four, shall we say that the majority declare a “fact,” and the
minority declare an “opinion”?

Assuming, then, what I think will not be denied, that the
constitutionality of a statute is matter of opinion, the question
occurs, What opinion shall be regarded for the time as decisive?
Clearly the opinion of Congress must control all executive officers,
from the lowest to the President. According to a venerable maxim of
jurisprudence, all public acts are presumed to be correct,--_Omnia rite
acta præsumuntur_. A statute must be presumed constitutional, unless
on its face the contrary; and no decision of any court is required in
its favor. It is the law of the land, and must be obeyed as such.
The maxim which presumes constitutionality is just as binding as the
analogous maxim of the Criminal Law which presumes innocence. The
President, reversing all this, presumes the statute unconstitutional,
and acts accordingly. In the name of Prerogative he sets it aside.

The apologists have been driven to invoke the authority of
President Jackson, who asserted for himself the power to judge the
constitutionality of an Act of Congress which in the course of
legislation required his approval, although the question involved had
been already adjudged by the Supreme Court. And he was clearly right.
The Court itself would not be bound by its adjudication. How could it
constrain another branch of the Government? But Andrew Jackson never
put forth the pretension that it was within his prerogative to nullify
a statute which had been passed over his veto in the way prescribed by
the National Constitution. He was courageous, but there was no such
unconstitutional audacity in his life.

The apologists also summon to their aid those great instances where
conscientious citizens have refused obedience to unjust laws. Such was
the case of Hampden, who set an example for all time in refusing to
pay ship-money. Such also was the case of many in our own country, who
spurned the Fugitive Slave Bill. These exalted characters, on their
conscience, refused to obey the law, and suffered accordingly. The
early Christians were required by imperial mandate to strew grain on
the altar of Jove. Though good citizens, they preferred to be martyrs.
Such a refusal can be no apology for a President, who, in the name of
prerogative, breaks the great oath to see that the laws are faithfully
executed. Rather do these instances, in their moral grandeur, rebuke
the offender.

Here I turn from this Apology of Prerogative, regretting that I cannot
say more to unfold its destructive character. If anything could
aggravate the transgressions of Andrew Johnson, stretching in long line
from the beginning of his administration, it would be the claim of
right he sets up, under which the slenderest violation of law becomes
a high crime and misdemeanor, to be pursued and judged by an indignant
people. The supremacy of the laws must be preserved, or the liberties
of all will suffer.


TECHNICALITIES AND QUIBBLES.

I now come upon that swarm of technicalities, devices, quirks, and
quibbles, which from the beginning have infested this proceeding. It is
hard to speak of such things without showing a contempt not entirely
parliamentary. To say that they are petty and miserable is not enough.
To say that they are utterly unworthy of this historic occasion is to
treat them politely. They are nothing but parasitic insects, “vermin
gendered in a lion’s mane,”--so nimble and numerous, that, to deal with
them as they skip about, one must have the patience of the Italian
peasant, who catches and kills, one by one, the diminutive animals
that infest his person. The public has not forgotten the exhibition of
“industrious fleas.” The Senate has witnessed the kindred exhibition of
“industrious quibbles.”

I can give specimens only, and out of many I take one which can never
be forgotten. It is found in the Opinion of the Senator from West
Virginia [Mr. VAN WINKLE], which, from beginning to end, treats this
impeachment as if it were a prosecution for sheep-stealing in the
police-court of Wheeling, and brings to the defence the unhesitating
resources of a well-trained criminal lawyer. This famous Opinion,
which is without parallel in the annals of jurisprudence, must always
be admired as the marvel of technicality in a proceeding where
technicality should not intrude. It stands by itself, solitary in
originality. Others have been technical also, but the Senator from West
Virginia is nothing else. Travelling from point to point, or rather
seeing point after point skip before him, at last he lights upon one
of the largest dimensions, which he boldly seizes and presents to the
Senate.

According to him, there is no allegation in the Articles that the
order for the removal of Mr. Stanton was actually delivered to him,
and, this being so, the Senator declares, that, “if there is evidence
of a delivery to be found in the proceedings, it cannot be applicable
to this Article, in which there is no charge or averment.” And this
is gravely uttered on this transcendent occasion, when an indignant
people has risen to demand judgment of a criminal ruler. The Article
alleges that the order was “unlawfully issued,” and nobody doubts that
its delivery was proved; but this is not enough, according to the
Senator. I challenge history for another instance of equal absurdity
in legal pretension. The case approaching it the closest is the famous
extravagance of the Crown lawyer in the British Parliament, who, in
reply to the argument of our fathers that they could not be taxed
without representation, bravely insisted that they were represented,
and sustained himself by declaring, that, under the Colonial charters,
the lands were held in common socage as “of the manor of Greenwich in
Kent,” and, as Greenwich was represented in Parliament, therefore the
Colonies were represented there.[211] The pretension was perfect in
form, but essentially absurd. The Senator from West Virginia outdoes
even this climax of technicality. Other generations, as they read this
great trial, with its accumulation of transgressions ending in the
removal of Mr. Stanton, will note with wonder that a principal reason
assigned for the verdict of Not Guilty was the failure of the Articles
to allege that the order for removal was actually received, although
there was a distinct allegation that it was “unlawfully issued,”
with evidence that it was received, and no human being, not even the
technical Senator, imagined that it was not. But how inconsistent
with the Law of Impeachment already set forth,[212] which seeks
substantial justice, and will not be arrested by any nice requirements!
Lord Mansfield did not hesitate to condemn certain objections as
“disgraceful subtilties.” What would he have said to the Senator from
West Virginia?

There is another invention, which has in its support some of the
ablest of the apologists, like the Senator from Iowa [Mr. GRIMES], the
Senator from Maine [Mr. FESSENDEN], and the Senator from Illinois [Mr.
TRUMBULL]. It is said, that, as Mr. Stanton did not go out, therefore
there was no removal, and therefore Andrew Johnson is not guilty. If
the authority of names could change the unreal into the real, then
this pretension might have weight. It is impossible that anything so
essentially frivolous should be recognized in this proceeding. Such
are the shifts of a cause to be defended only by shifts! Clearly the
offence of the President was in the order “unlawfully issued,” and this
was complete at the moment of its delivery. So far as depended upon
him, Mr. Stanton was removed. This is the way in which the country
saw the transaction, and the way also in which it will be recorded by
history.

But these same apologists, with curious inconsistency, when they come
to consider the appointment of Adjutant-General Thomas, insist that
there was vacancy in law, called by the Senator from Maine _legal_
vacancy. But such vacancy could be only because there had been removal
in law. There is no escape from this consequence. If there was removal
in law, and there was no right to make it, the President was guilty of
misdemeanor in law, and must take the consequences.

It would be unprofitable to follow these inventions further. From these
know all. In the face of Presidential pretensions inconsistent with
constitutional liberty, the apologists have contributed their efforts
to save the criminal by subtilties which can secure his acquittal in
form only, as by a flaw in an indictment; and they have done this,
knowing that he will be left in power to assert his prerogative, and
that his acquittal will be a new letter of license. Nothing the skill
of the lawyer could supply has been wanting. This learned profession
lends to the criminal all the arts in which it excels, giving all to
him and forgetting the Republic. Every doubt, every scruple, every
technicality, every subtilty, every quibble, is arrayed on his side,
when, by every rule of reason and patriotism, all should be arrayed
on the side of our country. The Public Safety, which is the supreme
law, is now imperilled. Are we not told by Blackstone that “the law is
always ready to catch at anything in favor of Liberty”?[213] But these
apologists catch at anything to save a usurper. In the early days of
the Common Law there were technicalities in abundance, but they were
for the maintenance of justice. On such was founded that extensive _ac
etiam_ jurisdiction of the King’s Bench, which gives occasion for the
elegant Commentator to remark, that, however startling these may be at
first to the student, “he will find them, upon further consideration,
to be highly beneficial and useful.”[214] These generous fictions for
the sake of justice must not be confounded with the devices by which
justice is defeated.

The trick of the apologists has been, by stringent application of
technical rules, to shut out all except offences charged, and then,
when stress was laid upon these offences, to cry out that at most they
were only technical, and too trifling for impeachment. To satisfy
lawyers, the House weakly declined to act on the bloody transgressions
of two years, but sought to provide against the future. Like the
Roman ambassadors, they traced a line about the offender, which he
was not to pass except at peril. This was the line of law. At last
he passed the line, openly, knowingly, defiantly; and now that he is
arraigned, we are told that this plain offence is nothing, only a
little technicality. One of the counsel at the bar, [Mr. GROESBECK,] in
a speech which showed how much feeling and talent could be given to a
wrong side, exclaimed:--

    “It almost shocks me to think that the President of the United
    States is to be dragged out of his office on these miserable
    little questions whether he could make an _ad interim_
    appointment for a single day.”

Only by excluding the whole context and all its antecedents could the
question be reduced to this trivial form; and yet, even thus reduced,
it involved nothing less than the supremacy of the laws.

I know not how such a question can be called “trifling.” Often a
great cause is presented on a narrow issue: as when English liberty
was argued on the claim of ship-money, which was a tax of a few
shillings only. Behind this question, called trifling by the kingly
apologists of that day, loftily stood the great cause of the People
against Prerogative, being the same now pending before the Senate.
That other cause, on which at a later day hung the destinies of this
continent, was presented on a narrower issue still. There was a tax
of threepence a pound on tea, which our fathers refused to pay. But
behind this question, so trifling to the apologists of prerogative,
as behind that of ship-money, stood loftily the same great cause. The
first cost Charles the First his head. The second cost George the Third
his colonies. If such a question can be disparaged as of small moment,
then have the martyred dead in all times suffered in vain, then was the
costly blood lavished for the suppression of our Rebellion an empty
sacrifice.

Constantly we are admonished that we must confine ourselves to the
Articles. Senators express a pious horror at looking outside the
Articles, and insist upon directing attention to these only. Here
the Senator from Maine is very strong. It is “the specific offences
charged,” and these only, that he sees. He will not look at anything
else, although spread upon the record of the Senate, and filling the
land with accumulated horrors. Of course such a system of exclusion
sacrifices justice, belittles this trial, and forgets that essential
latitude of inquiry which belongs to a political proceeding, having
for its purpose expulsion from office only, and not punishment. It is
easy, by looking at an object through the wrong end of an opera-glass,
to find it dwarfed, contracted, and solitary. This is not the way to
look at Nature; nor is it the way to look at Andrew Johnson. The great
offender should be seen in the light of day, precisely as he is, nor
more nor less, with nothing dwarfed, with no limits to the vision, and
with all the immense background of thronging transgressions filling
the horizon as far as eye can reach. The sight may ache; but how else
can justice be done? A Senator who begins by turning these Articles
into an inverted opera-glass takes the first step towards judgment of
acquittal. Alas that the words of Burke are not true, when, asserting
the comprehensive character of impeachment, he denied, that, under it,
“they who have no hope at all in the justice of their cause can have
any hope that by some subtilties of form, some mode of pleading, by
something, in short, different from the merits of the cause, they may
prevail.”[215] The orator was right in thus indignantly dismissing all
questions of pleading and all subtilties of form. This proceeding is
of substance, and not of form. It is on the merits only that it can be
judged. Anything short of this is the sacrifice of justice.

Such is the case of this enormous criminal. Events belonging to
history, enrolled in the records of the Senate, and familiar to the
country, are deliberately shut out from view, while we are treated to
legal niceties without end. The lawyers have made a painful record.
Nothing ever occurred so much calculated to bring the profession into
disrepute; for never before has been such a theatre where lawyers
were actors. Their peculiarities have been exhibited. Here was a
great question of justice, appealing to the highest sentiments, and
involving the best interests of the country; but lawyers, instinctive
for the dialectics of the profession, forgot everlasting truth, never
to be forgotten with impunity. They started at once in full cry, and
the quibble became to them what Dr. Johnson says it was to the great
dramatist: “He follows it at all adventures; it is sure to lead him out
of his way, and sure to ingulf him in the mire. It has some malignant
power over his mind, and its fascinations are irresistible.… A quibble
is the golden apple for which he will always turn aside from his
career, or stoop from his elevation. A quibble, poor and barren as it
is, gave him such delight that he was content to purchase it by the
sacrifice of reason, propriety, and truth.”[216] In this Shakespearean
spirit our lawyers have acted. They have pursued quibbles with the
ardor of the great dramatist, and even now are chasing them through the
Senate Chamber.

Unhappily this is according to history, and our lawyers are not among
the splendid exceptions. But there is reward for those who stand
firm. Who does not reverence the exalted magistrate of France, the
Chancellor L’Hospital, who set the great example of rectitude and
perfect justice? Who does not honor those lawyers of English history
through whose toils Liberty was upheld? There was Selden, so wise and
learned; Pym, so grand in statesmanship; Somers, who did so much to
establish the best securities of the Constitution. Nor can I forget,
at a later day, that greatest advocate, Erskine, who lent to the
oppressed his wonderful eloquence; nor Mackintosh and Brougham, who
carried into courts that enlarged intelligence and sympathetic nature
which the profession of the law could not constrain. These are among
the names that have already had their reward, above the artful crowd
which in all times has come to the defence of prerogative. It is no
new thing that we witness now. The lawyer in other days has been, as
we know him, prone to the support of power, and ready with technical
reasons. Whichever side he takes, he finds reasons plenty as pins.
When free to choose, and not hired, his argument is the reflection of
himself. All that he says is his own image. He takes sides on a law
point according to his sentiments. Cultured in law, and with aptitude
sharpened by its contests, too easily he finds a legal reason for an
illegal judgment. Next to an outright mercenary, give me a lawyer to
betray a great cause. Forms of law lend themselves to the betrayal.
It is impossible to forget that the worst pretensions of prerogative,
no matter how colossal, have been shouldered by lawyers. It was they
who carried ship-money against the patriot exertions of Hampden; and
in our country it was they who held up Slavery in all its terrible
pretensions from beginning to end. What is sometimes called “the legal
mind” of Massachusetts, my own honored State, bent before the technical
reasoning which justified the unutterable atrocities of the Fugitive
Slave Bill, while the Supreme Court of the State adopted the crime from
the bench. Alas that it should be so! When will lawyers and judges see
that nothing short of justice can stand?


GUILTY ON ALL THE ARTICLES.

After this survey it is easy for me to declare how I shall vote. My
duty is to vote, Guilty on all the Articles. If consistent with the
rules of the Senate, I should vote, “Guilty of all, and infinitely
more.”

Not doubting that Mr. Stanton was protected by the Tenure-of-Office
Act, and that he was believed to be so by the President, it is clear
to me that the charges in the first and second Articles are sustained.
These two go together. I have said already, in the course of this
Opinion, that the appointment of Adjutant-General Thomas as Secretary
of War _ad interim_ was without authority of law, and under the
circumstances a violation of the National Constitution. Accordingly the
third Article is sustained.

Then come what are called the Conspiracy Articles. Here also I am
clear. Plainly there was an agreement between the President and
Adjutant-General Thomas to obtain possession of the War Department,
and prevent Mr. Stanton from continuing in office, and this embraced
control of the mails and property belonging to the Department, all
of which was contrary to the Tenure-of-Office Act. Intimidation and
threats were certainly used by one of the conspirators, and in the case
of conspiracy the acts of one are the acts of all. The evidence that
force was intended is considerable, and all this must be interpreted by
the general character of the offender, his menacing speeches, and the
long series of transgressions preceding the conspiracy. I cannot doubt
that the conspiracy was to obtain possession of the War Department,
peaceably, if possible, forcibly, if necessary. As such it was
violation of law, demanding the judgment of the Senate. This disposes
of the fourth, fifth, sixth, and seventh Articles.

The eighth Article charges that Adjutant-General Thomas was appointed
to obtain the control of moneys appropriated for the military service
and the Department of War. All this would be incident to the control of
the War Department. Controlling the latter, he would be able to wield
the former. The evidence applicable to the one is also applicable to
the other.

The ninth Article opens a different question. This charges a wicked
purpose to corrupt General Emory and draw him from his military
duty. Not much passed between the President and the General; but it
was enough to show the President playing the part of Iago. There
was hypocritical profession of regard for the Constitution, while
betraying it. Here again his past character explains his purpose beyond
reasonable doubt.

Then come the scandalous speeches, proved as set forth in the Articles,
so that even the Senator from West Virginia [Mr. VAN WINKLE] must admit
that evidence and pleading concur. Here is no question of form. To
my mind this is one of the strongest Articles. On this alone, without
anything else, I should deem it my duty to vote for expulsion from
office. A young lieutenant, at the bottom of the ladder, if guilty of
such things, would be cashiered promptly. A President, at the top of
the ladder, with less excuse from the inexperience of early life, and
with greater responsibility from the elevation he had reached, should
be cashiered promptly also; and this is the object of impeachment.
No person capable of such speeches should be allowed to govern this
country. It is absurd to tolerate the idea. Besides being degraded, the
country cannot be safe in such hands. The speeches are a revelation of
himself, not materially different from well-known incidents; but they
serve to exhibit him in his true character. They show him unfit for
official trust. They were the utterances of a drunken man; and yet it
does not appear that he was drunk. Now it is according to precedents of
our history that a person disqualified by drunkenness shall be removed
from office. This was the case of Pickering in 1804. But a sober man,
whose conduct suggests drunkenness, is as bad at least as if he were
drunk. Is he not worse? If without the explanation of drunkenness he
makes such harangues, I cannot doubt that his unfitness for office
becomes more evident, inasmuch as his deplorable condition is natural,
and not abnormal. The drunken man has lucid intervals; but where is the
assurance of a lucid interval for this perpetual offender? Derangement
is with him the normal condition.

It is astonishing to find that these infamous utterances, where
ribaldry vies with blasphemy, have received a coat of varnish from
the Senator from Maine [Mr. FESSENDEN], who pleads that they were not
“official,” nor did they “violate the Constitution, or any provision
of the Statute or Common Law, either in letter or spirit.” In presence
of such apologies for revolting indecencies it is hard to preserve
proper calmness. Were they not uttered? This is enough. The drunkenness
of Andrew Johnson, when he took his oath as Vice-President, was not
“official”; but who will say that it was not an impeachable offence?
And who will say that these expectorations differ in vileness from that
drunkenness? If they did not violate the National Constitution, or any
provision of law, common or statute, as is apologetically alleged, I
cannot doubt that they violated the spirit of all laws. And then we are
further reminded by the apologist of that “freedom of speech” which is
a constitutional right; and thus, in the name of a great right, we are
to license utterances that shock the moral sense, and are a scandal to
human nature. Spirit of John Milton! who pleaded so grandly for this
great liberty, but would not allow it to be confounded with license,
speak now to save this Republic from the shame of surrender to an
insufferable pretension!

The eleventh Article is the most comprehensive. In some respects it is
an _omnium gatherum_. In one mass is the substance of other Articles,
and something else beside. Here is an allegation of a speech by the
President in which he denied that Congress was a Congress, and then,
in pursuance of this denial, attempted to prevent the execution of
the Tenure-of-Office Act, also of an important clause in the Army
Appropriation Act, and also of the Reconstruction Act. Evidence
followed, sustaining completely the compound allegation. The speech
was made as set forth. The attempt to prevent the execution of the
Tenure-of-Office Act who can question? The attempt to corrupt General
Emory is in evidence. The whole history of the country shows how
earnest the President has been to arrest the Reconstruction Act, and
generally the Congressional scheme of Reconstruction. The removal of
Mr. Stanton was to be relieved of an impediment. I accept this Article
in gross and in detail. It has been proved in all its parts.


CONCLUSION.

In the judgment which I now deliver I cannot hesitate. To my vision
the path is clear as day. Never in history was there a great case
more free from all just doubt. If Andrew Johnson is not guilty, then
never was a political offender guilty; and if his acquittal is taken
as a precedent, never can a political offender be found guilty. The
proofs are mountainous. Therefore you are now determining whether
impeachment shall continue a beneficent remedy in the National
Constitution, or be blotted out forever, and the country handed over
to the terrible process of revolution as its sole protection. If the
milder process cannot be made effective now, when will it ever be?
Under what influences? On what proofs? You wait for something. What?
Is it usurpation? You have it before you, open, plain, insolent. Is it
abuse of delegated power? That, too, you have in this offender, hardly
less broad than the powers he has exercised. Is it violation of law?
For more than two years he has set your laws at defiance; and when
Congress, by special enactment, strove to constrain him, he broke
forth in rebellion against the constitutional authority. Perhaps you
ask still for something more. Is it a long catalogue of crime, where
violence and corruption alternate, while loyal men are sacrificed and
the Rebellion is lifted to its feet? That also is here.

The apologists are prone to remind the Senate that they are acting
under the obligation of an oath. So are the rest of us, even if we do
not ostentatiously declare it. By this oath, which is the same for all,
we are sworn to do “impartial justice.” It is justice, and this justice
must be impartial. There must be no false weights, and no exclusion
of proper weights. Therefore I cannot allow the jargon of lawyers
on mere questions of form to sway the judgment against justice. Nor
can I consent to shut out from view the long list of transgressions
explaining and coloring the final act of defiance. To do so is not
to render impartial justice, but to depart from this prescribed
rule. The oath we have taken is poorly kept, if we forget the Public
Safety in devices for the criminal. Above all else, now and forever,
is that justice which “holds the scales of right with even hand.” In
this sacred name, and in the name also of country, that great charity
embracing so many other charities, I make this final protest against
all questions of form at the expense of the Republic.

Something also is said of the people, now watching our proceedings
with patriotic solicitude, and it has been proclaimed that they are
wrong to intrude their judgment. I do not think so. This is a political
proceeding, which the people are as competent to decide as the Senate.
They are the multitudinous jury, coming from no small vicinage, but
from the whole country: for on this impeachment, involving the Public
Safety, the vicinage is the whole country. It is they who have sent us
here, as their representatives, and in their name, to consult for the
common weal. In nothing can we escape their judgment, least of all on
a question like that before us. It is a mistake to suppose that the
Senate only has heard the evidence. The people have heard it also,
day by day, as it was delivered, and have carefully considered the
case on its merits, properly dismissing all apologetic subtilties. It
is for them to review what has been done. They are above the Senate,
and will “rejudge its justice.” Thus it has been in other cases. The
popular superstition which long surrounded the Supreme Court could
not save that eminent tribunal from condemnation, amounting sometimes
to execration, when, by an odious judgment, it undertook to uphold
Slavery; and down to this day Congress has justly refused to place the
bust of the Chief Justice pronouncing this judgment in the hall of the
tribunal where he presided so long. His predecessors are all there
in marble; no marble of Taney is there. The present trial, like that
in the Supreme Court, is a battle with Slavery. Acquittal is another
Dred Scott decision, and another chapter in the Barbarism of Slavery.
How can Senators, discharging a political function only, expect that
the voice of the people will be more tender for them than for a Chief
Justice pronouncing judgment from the bench of the Supreme Court, in
the exercise of judicial power? His fate we know. Nor learning, nor
private virtues, nor venerable years could save him from justice.
In the great pillory of history he stands, and there he must stand
forever.

The people cannot witness with indifference the abandonment of the
great Secretary, who organized their armies against the Rebellion, and
then organized victory. Following him gratefully through the trials
of the war, they found new occasion for gratitude when he stood out
alone against that wickedness which was lifted to power on the pistol
of an assassin. During these latter days, while tyrannical prerogative
invaded all, he has kept the bridge. When, at a similar crisis of
English history, Hampden stood out against the power of the Crown, it
is recorded by the contemporary historian, Clarendon, that “he grew
the argument of all tongues; every man inquiring who and what he was,
that durst at his own charge support the liberty and property of the
kingdom, and rescue his country, as he thought, from being made a prey
to the Court.”[217] Such things are also said with equal force of our
Secretary. Nor is it forgotten that the Senate, by two solemn votes
of more than two thirds, has twice instructed him to stay at the War
Department, the President to the contrary notwithstanding. The people
will not easily understand on what principle of Constitution, law, or
morals, the Senate can twice instruct the Secretary to stay, and then,
by another vote, deliberately surrender him a prey to Presidential
tyranny. Talk of a somersault; talk of self-stultification: are not
both here? God save me from participation in this disastrous wrong, and
may He temper it kindly to our afflicted country!

For myself, I cannot despair of the Republic. It is a life-boat, which
wind and wave cannot sink; but it may suffer much and be beaten by
storm. All this I clearly see before us, if you fail to displace an
unfit commander, whose power is a peril and a shame.

Alas for all the evil that must break upon the country, especially in
the suffering South, as it goes forth that this bad man is confirmed in
the prerogatives he has usurped!

Alas for that peace and reconciliation, the longing of good men, now
postponed!

Alas for that security, so important to all, as the only foundation on
which to build, politically or financially! This, too, is postponed.
How can people found a government, or plant or buy, unless first secure?

Alas for the Republic, degraded as never before, while the Whiskey Ring
holds its orgy of corruption, and the Ku-Klux-Klan holds its orgy of
blood!

Alas for the hearts of the people, bruised to unutterable sadness, as
they witness a cruel tyranny installed once more!

Alas for that race so long oppressed, but at last redeemed from
bondage, now plunged back into another hell of torment!

Alas for the fresh graves already beginning to yawn, while violence,
armed with your verdict, goes forth, like another Fury, and murder is
quickened anew!

Alas for the Unionists, white and black alike, who have trusted to our
flag! You offer them a sacrifice to persecutors whose representative
is before you for judgment. They are the last in my thoughts, as I
pronounce that vote which is too feeble to save them from intolerable
wrong and outrage. They are fellow-citizens of a common country,
brethren of a common humanity, two commanding titles, both strong
against the deed. I send them at this terrible moment the sympathy and
fellowship of a heart that suffers with them. So just a cause cannot
be lost. Meanwhile, may they find in themselves, and in the goodness of
an overruling Providence, that refuge and protection which the Senate
refuses to give!




CONSTITUTIONAL RESPONSIBILITY OF SENATORS FOR THEIR VOTES IN CASES OF
IMPEACHMENT.

RESOLUTIONS IN THE SENATE, JUNE 3, 1868.


    June 3d, Mr. Sumner submitted the following Resolutions, which
    were read and ordered to be printed.

Whereas a pretension has been put forth to the effect that the vote of
a Senator on an impeachment is so far different in character from his
vote on any other question that the people have no right to criticize
or consider it; and whereas such pretension, if not discountenanced,
is calculated to impair that freedom of judgment which belongs to
the people on all that is done by their representatives: Therefore,
in order to remove all doubts on this question, and to declare the
constitutional right of the people in cases of impeachment,--

1. _Resolved_, That, even assuming that the Senate is a Court in the
exercise of judicial power, Senators cannot claim that their votes are
exempt from the judgment of the people; that the Supreme Court, when it
has undertaken to act on questions essentially political in character,
has not escaped this judgment; that the decisions of this high tribunal
in support of Slavery have been openly condemned; that the memorable
utterance known as the Dred Scott decision was indignantly denounced
and repudiated, while the Chief Justice who pronounced it became a mark
for censure and rebuke; and that plainly the votes of Senators on an
impeachment cannot enjoy an immunity from popular judgment which has
been denied to the Supreme Court, with Taney as Chief Justice.

2. _Resolved_, That the Senate is not at any time a Court invested
with judicial power, but that it is always a Senate with specific
functions declared by the Constitution; that, according to express
words, “the judicial power of the United States shall be vested in
one Supreme Court, and in such inferior courts as the Congress may
from time to time ordain and establish,” while it is further provided
that “the Senate shall have the sole power to try all impeachments,”
thus positively making a distinction between the judicial power and
the power to try impeachments; that the Senate, on an impeachment,
does not exercise any portion of the judicial power, but another and
different power, exclusively delegated to the Senate, having for its
sole object removal from office and disqualification therefor; that,
by the terms of the Constitution, there may be, after conviction on
impeachment, a further trial and punishment “according to law,” thus
making a discrimination between a proceeding by impeachment and a
proceeding “according to law”; that the proceeding by impeachment is
not “according to law,” and is not attended by legal punishment, but
is of an opposite character, and from beginning to end political,
being instituted by a political body on account of political offences,
being conducted before another political body having political power
only, and ending in a judgment which is political only; and therefore
the vote of a Senator on impeachment, though different in form, is
not different in responsibility, from his vote on any other political
question; nor can any Senator, on such an occasion, claim immunity from
that just accountability which the representative at all times owes to
his constituents.

3. _Resolved_, That Senators in all that they do are under the constant
obligation of an oath, binding them to the strictest rectitude;
that on an impeachment they take a further oath, according to the
requirement of the Constitution, which says, Senators, when sitting
to try impeachment, “shall be on oath or affirmation”; that this
simple requirement was never intended to change the character of the
Senate as a political body, and cannot have any such operation; and
therefore Senators, whether before or after the supplementary oath,
are equally responsible to the people for their votes,--it being the
constitutional right of the people at all times to sit in judgment on
their representatives.




VALIDITY AND NECESSITY OF FUNDAMENTAL CONDITIONS ON STATES.

SPEECH IN THE SENATE, JUNE 10, 1868.


    The Senate having under consideration the bill to admit the
    States of North Carolina, South Carolina, Louisiana, Georgia,
    and Alabama to representation in Congress, Mr. Sumner said:--

MR. PRESIDENT,--What I have to say to-day will be confined to a
single topic. I shall speak of _the validity and necessity of
fundamental conditions on the admission of States into the body of
the Nation_,--passing in review objections founded on the asserted
equality of States, and also on a misinterpretation of the power to
determine the “qualifications” of electors, and that other power to
make “regulations” for the election of certain officers. Here I shall
encounter the familiar pretensions of another time, no longer put forth
by defiant Slave-Masters, but retailed by conscientious Senators, who
think they are supporting the Constitution, when they are only echoing
the voice of Slavery.

Fundamental conditions on the admission of States are older than our
Constitution; for they appear in the Ordinance for the vast Territory
of the Northwest, adopted anterior to the Constitution itself. In that
Ordinance there are various conditions, of perpetual obligation, as
articles of compact. Among these is the famous prohibition of Slavery.
In the early days of our Nation nobody thought of questioning the
validity of these conditions. Scattered efforts were made to carry
Slavery into some portions of this region, and unquestionably there
were sporadic cases, as in Massachusetts itself; but the Ordinance
stood firm and unimpeached.

One assurance of its authority will be found in the historic fact,
that in 1820, on the admission of Missouri as a State of the Union,
there was a further provision that in all territory of the United
States north of 36° 30´ north latitude, “Slavery and involuntary
servitude, otherwise than in the punishment of crimes, whereof the
parties shall have been duly convicted, shall be and is hereby FOREVER
_prohibited_.”[218] This was the famous Missouri Compromise. Missouri
was admitted as a State without any restriction of Slavery, but all
the outlying territory west and north was subjected to this condition
_forever_. It will be observed that the condition was in no respect
temporary, but that it was “forever,”--thus outlasting any territorial
government, and constituting a fundamental law, irrepealable through
all time. Surely this condition, perpetual in form, would not have
been introduced, had it been supposed to be inoperative,--had it
been regarded as a sham, and not a reality. This statute, therefore,
testifies to the judgment of Congress at that time.

It was only at a later day, and at the demand of Slavery, that the
validity of the great Ordinance of Freedom was called in question. Mr.
Webster, in his memorable debate with Mr. Hayne in 1830, vindicated
this measure in language worthy of the cause and of himself, giving to
it a palm among the laws by which civilization has been advanced, and
asserting its enduring character:--

    “We are accustomed, Sir, to praise the lawgivers of antiquity;
    we help to perpetuate the fame of Solon and Lycurgus; but
    I doubt whether one single law of any lawgiver, ancient or
    modern, has produced effects of more distinct, marked, and
    lasting character than the Ordinance of 1787.… It fixed forever
    the character of the population in the vast regions northwest
    of the Ohio, by excluding from them involuntary servitude. It
    impressed on the soil itself, while it was yet a wilderness,
    an incapacity to sustain any other than freemen. _It laid the
    interdict against personal servitude in original compact, not
    only deeper than all local law, but deeper also than all local
    constitutions._”[219]

Words of greater beauty and power cannot be found anywhere in the
writings or speeches of our American orator. It would be difficult
to declare the perpetual character of this original interdict more
completely. The language is as picturesque as truthful. Deeper than all
local law, deeper than all local constitutions, is this fundamental
law; and such is its essential quality, that the soil which it protects
cannot sustain any other than freemen. Of such a law the orator
naturally proceeded to say:--

    “We see its consequences at this moment; and we shall never
    cease to see them, perhaps, while the Ohio shall flow. _It was
    a great and salutary measure of prevention._”[220]

In these last words the value of such a law is declared. It is for
_prevention_, which is an essential object of all law. In this case
it is the more important, as the evil to be prevented is the most
comprehensive of all.

Therefore, on the authority of Mr. Webster, in harmony with reason
also, do I say, that this original condition was not only perpetual in
character, but beneficent also. It was beneficence in perpetuity.

Mr. Chase, in his admirable argument before the Supreme Court of the
United States, in the _Vanzandt_ case, is hardly behind Mr. Webster in
homage to this Ordinance, or in a sense of its binding character. In
his opinion it is a compact of perpetual obligation:--

    “I know not that history records a sublimer act than this. The
    United American States, having just brought their perilous
    struggle for freedom and independence to a successful issue,
    proceeded to declare the terms and conditions on which their
    vacant territory might be settled and organized into States;
    and these terms were, not tribute, not render of service, not
    subordination of any kind, but _the perpetual maintenance of
    the genuine principles of American Liberty, declared to be
    incompatible with Slavery_; and that these principles might be
    inviolably maintained, they were made _the articles of a solemn
    covenant_ between the original States, then the proprietors
    of the territory and responsible for its future destiny, and
    the people and the States who were to occupy it. Every settler
    within the territory, by the very act of settlement, became a
    party to this _compact, bound by its perpetual obligations_,
    and entitled to the full benefit of its excellent provisions
    for himself and his posterity. No subsequent act of the
    original States could affect it, without his consent. _No act
    of his, nor of the people of the territory, nor of the States
    established within it, could affect it, without the consent of
    the original States._”[221]

According to these words, which I am sure would not be disowned by
the present Chief Justice of the United States, the Ordinance is a
sublime act, having for its object nothing less than _the perpetual
maintenance of the genuine principles of American Liberty_. In form it
is a compact, unalterable except by the consent of the parties, and
therefore _forever_.

If anything in our history is settled by original authority, supported
by tradition and time, it is the binding character of the Ordinance
for the Government of the Northwest Territory. Nobody presumed to call
it in question, until at last Slavery flung down its challenge to
everything that was settled for Freedom. The great Ordinance, with its
prohibition of Slavery, was not left unassailed.

All this makes a strange, eventful passage of history. The enlightened
civilization of the age was beginning to be felt against Slavery,
when its representatives turned madly round to confront the angel of
light. The madness showed itself by degrees. Point by point it made
itself manifest in Congress. The Slave-Masters forgot morals, history,
and the Constitution. Their manifold pretensions resolved themselves
into three, in which the others were absorbed: first, that Slavery,
instead of an evil to be removed, was a blessing to be preserved;
secondly, that the right of petition could not be exercised against
Slavery; thirdly, that, in all that concerns Slavery, State Rights were
everything, while National Rights were nothing. These three pretensions
entered into Congress, like so many devils, and possessed it. The first
broke forth in eulogies of Slavery, and even in blandishments for the
Slave-Trade. The second broke forth in the “Atherton Gag,” under which
the honest, earnest petitions from the national heart against Slavery,
even in the District of Columbia, were tabled without reference, and
the great Right of Petition, promised by the Constitution, became a
dead letter. The third, beginning with the denial of the power of
the Nation to affix upon new States the perpetual condition of Human
Rights, broke forth in the denial of the power of the Nation over
Slavery in the Territories or anywhere else, even within the national
jurisdiction. These three pretensions all had a common origin, and one
was as offensive and unreasonable as another. The praise of Slavery and
the repudiation of the Right of Petition by the enraged Slave-Masters
were not worse than the pretension of State Rights against the power
of the Nation to prohibit Slavery in the national jurisdiction, or to
affix righteous conditions upon new States.

The first two pretensions have disappeared. These two devils have been
cast out. Nobody dares to praise Slavery; nobody dares to deny the
Right of Petition. The third pretension has disappeared only so far
as it denied the power of the Nation over Slavery in the Territories;
and we are still doomed to hear, in the name of State Rights, the old
cry against conditions upon new States. This devil is not yet entirely
cast out. Pardon me, if I insist upon putting the national rights over
the Territories and the national rights over new States before their
admission in the same category. These rights not only go together, but
they are one and the same. They are not merely companion and cognate,
but they are identical. The one is necessarily involved in the other.
Prohibition in the Territories is prolonged in conditions upon new
States. The Ordinance of 1787, which is the great example, asserts the
_perpetuity_ of all its prohibitions; and this is the rule alike of
law and statesmanship. Vain were its prohibitions, if they fell dead
in presence of State Rights. The pretension is too irrational. The
Missouri Act takes up the rule asserted in the Ordinance, and declares
that in certain Territories Slavery shall be prohibited _forever_. A
territorial existence terminating in State Rights is a short-lived
_forever_. Only by recognizing the power of the Nation over the States
formed out of the Territory can this _forever_ have a meaning above the
prattle of childhood or the vaunt of Bombastes.

The whole pretension against the proposed condition is in the name of
State Rights; but it cannot be doubted that it may be traced directly
to Slavery. Shall the pretension be allowed to prevail, now that
Slavery has disappeared? The principal has fallen; why preserve the
incident? The wrong guarded by this pretension has yielded; why should
not the pretension yield also? Asserting, as I now do, the validity and
necessity of the proposed condition, I would not seem indifferent to
the rights of the States in those proper spheres appointed for them.
Unquestionably States have rights under the Constitution, which we
are bound to respect,--nay, more, which are a source of strength and
advantage. It is through the States that the people everywhere govern
themselves, and our Nation is saved from a central domination. Here
is the appointed function of the States. They supply the machinery of
local self-government for the convenience of life, while they ward off
the attempts of an absorbing imperialism. _But there can be no State
Rights against Human Rights._ Because a State, constituting part of a
Nation dedicated to Human Rights, may govern itself and supply the
machinery of local self-government, _it does not follow that such a
State may deny Human Rights within its borders_. State Rights, when
properly understood, are entirely consistent with the maintenance of
Human Rights by the Nation. The State is not humbled, when it receives
the mandate of the Nation to do no wrong; nor can the Nation err, when
it asserts everywhere within its borders the imperialism of Human
Rights. Against this righteous supremacy all pretensions of States must
disappear, as darkness before the King of Day.

The song of State Rights has for its constant refrain the asserted
_Equality of the States_. Is it not strange that words so constantly
employed as a cover for pretensions against Human Rights cannot be
found in the Constitution? It is true, that, by the Laws of Nations,
all sovereign States, great or small, are equal; but this principle
has been extended without authority to States created by the Nation
and made a part of itself. There is but one active provision in the
Constitution which treats the States as equal, and this provision shows
how this very Equality may be waived. Every State, large or small,
has two Senators, and the Constitution places this Equality of States
under its safeguard by providing that “no State, _without its consent_,
shall be deprived of its _equal suffrage_ in the Senate.” But this very
text contains what lawyers might call a “negative pregnant,” being a
negation of the right to change this rule, with an affirmation that
it may be changed. The State, _with its consent_, may be deprived of
its equal suffrage in the Senate. And this is the whole testimony of
the Constitution to that Equality of States which is now asserted in
derogation of all compacts or conditions. It is startling to find how
constantly the obvious conclusions from the text of the Constitution
have been overlooked. Even in the contemplation of the Constitution
itself, a State may waive its equal suffrage in the Senate, so as to be
represented by a single Senator only. Of course, all this must depend
on its own consent, in concurrence with the Nation. Nothing is said of
the manner in which this consent may be given by the State or accepted
by the Nation. But if this important limitation can in any way be made
the subject of agreement or compact, pray, Sir, where will you stop?
What other power or prerogative of the State may not be limited also,
especially where there is nothing in the Constitution against any such
limitation? All this I adduce simply by way of illustration. There is
no question now of any limitation, in the just sense of this term. A
condition in favor of Human Rights cannot be a limitation on a State or
on a citizen.

If we look further, and see how the Senatorial equality of States
obtained recognition in the Constitution, we shall find new occasion
to admire that facility which has accorded to this concession so
powerful an influence; and here the record is explicit. The National
Convention had hardly assembled, when the small States came forward
with their pretensions. Not content with suffrage in the Senate, they
insisted upon equal suffrage in the House of Representatives. They had
in their favor the rule of the Continental Congress, and also of the
Confederation, under which each State enjoyed one vote. Assuming to be
independent sovereignties, they had likewise in their favor the rule of
International Law. Against these pretensions the large States pleaded
the simple rule of justice; and here the best minds concurred. On this
head the debates of the Convention are interesting. At an early day we
find Mr. Madison moving “that the equality of suffrage established by
the Articles of Confederation ought not to prevail in the _National_
Legislature.”[222] This proposition, so consistent with reason, was
seconded by Gouverneur Morris, and, according to the report, “being
generally relished,” was about being adopted, when Delaware, by one
of her voices on the floor, protested, saying, that, in case it
were adopted, “it might become the duty of her deputies to retire
from the Convention.”[223] Such was the earliest cry of Secession.
Gouverneur Morris, while observing that the valuable assistance
of those members could not be lost without real concern, gave his
testimony, that “the change proposed was so fundamental an article in
a _National_ Government that it could not be dispensed with.”[224]
Mr. Madison followed, saying, very justly, that, “whatever reason
might have existed for the equality of suffrage when the Union was a
Federal one _among sovereign States_, it must cease when a _National_
government should be put into the place.”[225] Franklin, in similar
spirit, reminded the Convention that the equal suffrage of the States
“was submitted to originally by Congress under a conviction of its
impropriety, inequality, and injustice.”[226] This is strong language
from the wise old man, but very true. Elbridge Gerry, after depicting
the States as “intoxicated with the idea of their sovereignty,” said
that “the injustice of allowing each State an equal vote was long
insisted on. He voted for it; but it was against his judgment, and
under the pressure of public danger and the obstinacy of the lesser
States.”[227] Against these overwhelming words of Madison, Morris,
Franklin, and Gerry, the delegates from Delaware pleaded nothing
more than that, without an equal suffrage, “Delaware would have
about one ninetieth for its share in the general councils, whilst
Pennsylvania and Virginia would possess one third of the whole”;[228]
and New Jersey, by her delegates, pleaded also “that it would not be
safe for Delaware to allow Virginia sixteen times as many votes” as
herself.[229] On the part of the small States, the effort was for power
disproportioned to size. On the part of the large States there was a
protest against the injustice and inequality of these pretensions,
especially in a government national in its character. The question was
settled by the great compromise of the Constitution, according to which
representation in the House of Representatives was proportioned to
population, while each State was entitled to an equal suffrage in the
Senate. To this extent the small States prevailed, and the Senate ever
since has testified to the equality of States; or rather, according to
the language of the “Federalist” on this very point, it has been “a
palladium to the residuary sovereignty of the States.”[230] Thus, by
the pertinacity of the small States, was this concession extorted from
the Convention, in defiance of every argument of justice and equity,
and contrary to the judgment of the best minds; and now it is exalted
into a universal rule of Constitutional Law, before which justice and
equity must hide their faces.

This protracted and recurring conflict in the Convention is
compendiously set forth by our great authority, Judge Story, when he
says:--

    “It constituted one of the great struggles between the large
    and the small States, which was constantly renewed in the
    Convention, and impeded it in every step of its progress in
    the formation of the Constitution. The struggle applied to
    the organization of each branch of the Legislature. The small
    States insisted upon an equality of vote and representation in
    each branch, and the large States upon a vote in proportion to
    their relative importance and population.… The small States at
    length yielded the point as to an equality of representation
    in the House, and acceded to a representation proportionate to
    the Federal numbers. But they insisted upon an equality in the
    Senate. To this the large States were unwilling to assent, and
    for a time the States were on this point equally divided.”[231]

This summary is in substantial harmony with my own abstract of the
debates. I present it because I would not seem in any way to overstate
the case. And here let me add most explicitly, that I lend no voice to
any complaint against the small States; nor do I suggest any change in
the original balances of our system. I insist only that the victory
achieved in the Constitution by the small States shall not be made the
apology for a pretension inconsistent with Human Rights. And now, for
the sake of a great cause, the truth must be told.

It must not be disguised that this pretension has another origin,
outside the Constitution. This is in the Ordinance of 1787, where it
is positively provided that any State formed out of the Northwest
Territory “shall be admitted, by its delegates, into the Congress of
the United States _on an equal footing with the original States in all
respects whatever_.” Next after the equal suffrage in the Senate stands
this provision with its talismanic phrase, _equal footing_. New States
are to be admitted on an _equal footing_ with the original States in
all respects whatever. This language is strong; but nobody can doubt
that it must be read in the light of the Ordinance where it appears.
Read in this light, its meaning cannot be questioned. By the Ordinance
there are no less than six different articles of compact, “forever
unalterable, unless by common consent,” constituting so many perpetual
safeguards: the first perpetuating religious liberty; the second
perpetuating _Habeas Corpus_, trial by jury, and judicial proceedings
according to the course of the Common Law; the third perpetuating
schools and the means of education; the fourth perpetuating the title
of the United States in the soil without taxation, the freedom of
the rivers as highways, and the liability of the people for a just
proportion of the national debt; the fifth perpetuating the right of
the States to be admitted into the Union on an _equal footing_ with
the original States; and then, next in order, the sixth perpetuating
freedom,--being that immortal condition which is the golden bough of
this mighty oak,--that “there shall be neither slavery nor involuntary
servitude in the said Territory.” Now it is clear that subjection
to these perpetual conditions was not considered in any respect
inconsistent with that “equal footing” which was stipulated. Therefore,
even assuming that States, when admitted, shall be on an “equal
footing” with others, there can be no hindrance to any conditions by
Congress kindred to those which were the glory of the Ordinance.

To all who, borrowing a catchword from Slavery, assert the Equality of
States in derogation of fundamental conditions, I oppose the plain text
of the Constitution, which contains no such rule, except in a single
instance, and there the equality may be waived; and I oppose also the
Ordinance of 1787, which, while requiring that new States shall be
admitted on an “equal footing” with other States, teaches by its own
great example that this requirement is not inconsistent with conditions
of all kinds, and especially in favor of Human Rights. The Equality of
States on the lips of Slave-Masters was natural, for it was a plausible
defence against the approaches of Freedom; but this unauthorized
phrase, which has deceived so many, must be rejected now, so far at
least as it is employed against the Equal Rights of All. As one of the
old garments of Slavery, it must be handed to the flames.

From this review it is easy to see that we approach the present
question without any impediment or constraint in the Constitution.
Not a provision, not a clause, not a sentence, not a phrase in
the Constitution can be made an apology even for the present
objection,--absolutely nothing; and here I challenge reply. Without
any support in the Constitution, its partisans borrow one of the
worst pretensions of Slavery, and utter it now as it was uttered by
Slave-Masters. Once more we hear the voice of Slavery crying out in
familiar tones, that conditions cannot be imposed on new States.
Alas that Slavery, which we thought had been slain, is not entirely
dead! Again it stalks into this Chamber, like the majesty of buried
Denmark,--“in the same figure, like the king that’s dead,”--and
then, like this same ghost, it cries out, “Swear!” and then again,
“Swear!”--and Senators pledged to Freedom take up the old pretension
and swear it anew. For myself, I insist not only that Slavery shall be
buried out of sight, but that all its wretched pretensions hostile to
Human Rights shall be buried with it.

       *       *       *       *       *

The conditions upon new States are of two classes: _first_, those that
_may_ be required; _secondly_, those that _must_ be required.

The first comprehends those conditions which the Nation may consider
it advisable to require, before admitting a new member into the
partnership of government. The Constitution, in positive words, leaves
to the Nation a discretion with regard to the admission of new States.
The words are: “New States _may_ be admitted by the Congress into the
Union,”--thus plainly recognizing a latitude under which any conditions
not inconsistent with the Constitution may be required, as by a firm on
the admission of a new partner. All this is entirely reasonable; but
I do not stop to dwell on it, for the condition which I have at heart
does not come under this head.

A fundamental condition in favor of Human Rights is of that essential
character that it _must_ be required. Not to require it is to abandon
a plain duty; so it seems to me. I speak with all deference to others,
but I cannot see it otherwise.

The Constitution declares that “the United States shall guaranty to
every State in this Union _a republican form of government_.” These are
grand words, perhaps the grandest in the Constitution, hardly excepting
the Preamble, which is so full of majestic meaning and such a fountain
of national life. Kindred to the Preamble is this supreme obligation
imposed on the United States to guaranty a republican government. There
it is. You cannot avoid this duty. Called to its performance, you
must supply a practical definition of a republican government. This
again you cannot avoid. By your oaths, by all the responsibilities
of your position, you must say what in your judgment is a republican
government, and you must so decide as not to discredit our fathers and
not to give an unworthy example to mankind. Happily the definition
is already of record in our history. Our fathers gave it to us, as
amid the thunders of Sinai, when they put forth their Declaration of
Independence. There it stands in the very front of our Great Charter,
embodied in two simple, self-evident truths,--first, that all men are
equal in rights, and, secondly, that all just government is founded
only on the consent of the governed,--the two together making an
axiomatic definition which proves itself. Its truth is like the sun;
blind is he who cannot see it. And this is the definition bequeathed as
a freehold by our fathers. Though often assailed, even by Senators, it
is none the less true. So have I read of savages who shot their arrows
at the sun. Clearly, then, that is a republican government where all
have equal rights and participate in the government. I know not if
anything need be added; I am sure that nothing can be subtracted.

The Constitution itself sets the example of imposing conditions upon
the States. Positively it says, no State shall enter into any treaty,
alliance, or confederation; no State shall grant letters of marque
and reprisal; no State shall coin money; no State shall emit bills
of credit. Again it says, no State shall, without the consent of
Congress, lay any duty of tonnage, or keep troops or ships of war in
time of peace. All these are conditions in the text of the Constitution
so plain and intelligible as to require no further elucidation. To
repeat them on the admission of a State would be superfluous. It is
different, however, with that highest condition of all, that the State
shall be republican. This requires repetition and elucidation, so as to
remove all doubt of its application, and to vitalize it by declaring
what is meant by a republican government.

       *       *       *       *       *

Here I might close this argument; but there are two hostile pretensions
which must be exposed: the first founded on a false interpretation of
“qualifications,” being nothing less than the impossible assumption,
that, because the States may determine the “qualifications” of
electors, therefore they can make color a criterion of the electoral
franchise; and the second founded on a false interpretation of the
asserted power of the States “to regulate suffrage,” being nothing
less than the impossible assumption that under the power to regulate
suffrage the rights of a whole race may be annihilated. These two
pretensions are of course derived from Slavery. They are hatched from
the eggs that the cuckoo bird has left behind. Strange that Senators
will hatch them!

1. By the Constitution it is provided that “the electors in each State
shall have the _qualifications_ requisite for electors of the most
numerous branch of the State Legislature.” On this clause Senators
build the impossible pretension that a State cannot be interrupted
in its disfranchisement of a race. Here is the argument: Because a
State may determine the _qualifications_ of electors, _therefore_ it
may deprive a whole race of equal rights and of participation in the
Government. Logically speaking, here are most narrow premises for the
widest possible conclusion. On the mere statement, the absurdity is
so unspeakable as to recall the kindred pretension of Slavery, that,
because commerce is lawful, therefore commerce in human flesh is lawful
also. If the consequences were not so offensive, this “argal” might be
handed over to consort with that of the Shakespearean grave-digger.
But the argument is not merely preposterous, it is insulting to the
human understanding, and a blow at human nature itself. If I use
strong language, it is because such a proclamation of tyranny requires
it. Admitting that the States may determine the “qualifications” of
electors, what then? Obviously it must be according to the legitimate
meaning of this word. And here, besides reason and humanity, two
inexhaustible fountains, we have two other sources of authority:
first, the Constitution, in which the word appears, and, secondly, the
dictionaries of the English language, out of both of which we must
condemn the intolerable pretension.

The Constitution, where we find this word, follows the Declaration
of Independence, and refuses to recognize any distinction of color.
Search, and you will confess that there is no word of “color”
in its text; nor is there anything there on which to found any
disfranchisement of a race. The “qualifications” of different officers,
as President, Vice-President, Senators, and Representatives, are
named; but “color” is not among these. The Constitution, like the Ten
Commandments and the Beatitudes, embraces all alike within its mandates
and all alike within its promises. There are none who must not obey
it; there can be none who may not claim its advantages. By what title
do you exclude a race? The Constitution gives no such title; you can
only find it in yourselves. The fountain is pure; it is only out of
yourselves that the waters of bitterness proceed.

The dictionaries of our language are in harmony with the Constitution.
Look at “Qualification” in Webster or Worcester, the two best
authorities of our time, and you will find that the word means
“fitness,” “capability,” “accomplishment,” “the condition of being
qualified”; but it does not mean “color.” It embraces age, residence,
character, education, and the payment of taxes,--in short, all those
conditions which, when honestly administered, are in the nature of
_regulation_, not of _disfranchisement_. The English dictionaries
most used by the framers of the Constitution were Bailey and Johnson.
According to Bailey, who was the earliest, this important word is thus
defined:--

    “(1.) _That which fits any person or thing for any particular
    purpose._”

    “(2.) _A particular faculty or endowment, an accomplishment._”

According to Johnson, who is the highest authority, it is thus
defined:--

    “(1.) _That which makes any person or thing fit for anything._”

    EXAMPLE.--“It is in the power of the prince to make piety and
    virtue become the fashion, if he would make them necessary
    _qualifications_ for preferment.--SWIFT.”

    “(2.) _Accomplishment._”

    EXAMPLE.--“Good _qualifications_ of mind enable a magistrate
    to perform his duty, and tend to create a public esteem of
    him.--ATTERBURY.”

By these definitions this word means “fitness,” or “accomplishment,”
and, according to the well-chosen examples from Swift and Atterbury,
it means qualities like “piety” and “virtue,” or like faculties “of
mind,” all of which are more or less within the reach of every human
being. But it is impossible to extend this list so as to make “color”
a quality,--absolutely impossible. Color is a physical condition
affixed by the God of Nature to a large portion of the human race,
and insurmountable in its character. Age, education, residence,
property,--all these are subject to change; but the Ethiopian
cannot change his skin. On this last distinctive circumstance I
take my stand. _An insurmountable condition is not a qualification,
but a disfranchisement._ Admit that a State may determine the
“qualifications” of electors, it cannot, under this authority,
arbitrarily exclude a whole race.

Try this question by examples. Suppose South Carolina, where the blacks
are numerous, should undertake to exclude the whites from the polls on
account of “color”; would you hesitate to arrest this injustice? You
would insist that a government sanctioning such a denial of rights,
under whatever pretension, could not be republican. Suppose another
State should gravely declare that _all with black eyes_ should be
excluded from the polls, and still another should gravely declare that
_all with black hair_ should be excluded from the polls, I am sure
that you would find it difficult to restrain the mingled derision
and indignation which such a pretension must excite. But this fable
pictures your conduct. All this is now gravely done by States; and
Senators gravely insist that such exclusion is proper in determining
the “qualifications” of electors.

2. Like unto the pretension founded on a misinterpretation of
“qualifications” is that other founded on a misinterpretation of
the asserted power of a State to make “regulations.” Listen to this
pretension. Assuming that a State may _regulate_ the elections without
the intervention of Congress, it is insisted that it may disfranchise a
race. Because a State may regulate the elective franchise, _therefore_
it may destroy this franchise. Surely it is one thing to regulate,
and quite another thing to destroy. The power to regulate cannot
involve any such conclusion of tyranny. To every such wretched result,
howsoever urged, there is one sufficient reply,--_Non sequitur_.

According to the Constitution, “the _times, places, and manner_ of
holding elections for Senators and Representatives shall be prescribed
in each State by the Legislature thereof; but the Congress may at any
time by law make or alter such _regulations_, except as to the places
of choosing Senators.” Here is the text of this portentous power
to blast a race. In these simple words no such power can be found,
unless the seeker makes the Constitution a reflection of himself. The
times, places, and manner of holding elections are referred to the
States,--nothing more; and even these may be altered by Congress. Being
matters of form and convenience only, in the nature of _police_, they
are justly included under the head of “regulations,” like the sword and
uniform of the army. Do we not familiarly speak of a _regulation_ sword
and a _regulation_ sash? Who will dare to say that under this formal
power of _regulation_ a whole race may be despoiled of equal rights
and of all participation in the Government? This very pretension was
anticipated by Mr. Madison, and condemned in advance. Here are his
decisive words in the Virginia Convention:--

    “Some States might regulate the elections on the principles of
    equality, and others might regulate them otherwise.… Should the
    people of any State by any means be deprived of the right of
    suffrage, _it was judged proper that it should be remedied by
    the General Government_.”[232]

Thus was it expressly understood, at the adoption of the Constitution,
that Congress should have the power to prevent any State, under the
pretence of regulating the suffrage, from depriving the people of this
right, or from interfering with the principle of _Equality_.

Kindred to this statement of Mr. Madison is that other contemporary
testimony which will be found in the “Federalist,” where the
irrepealable rights of citizens are recognized without distinction of
color. This explicit language cannot be too often quoted. Here it is:--

    “It is only under the pretext that the laws have transformed
    the negroes into subjects of property that a place is denied to
    them in the computation of numbers; and it is admitted, that,
    if the laws were to restore the rights which have been taken
    away, _the negroes could no longer be refused an equal share of
    representation with the other inhabitants_.”[233]

This testimony is as decisive as it is authentic. Consider that it was
given in explanation and vindication of the Constitution. Consider that
the Constitution was commended for adoption by the assertion, that, on
the termination of Slavery, “the negroes could no longer be refused an
_equal share_ of representation with the other inhabitants.” In the
face of this assurance, how can it be now insisted, that, under the
simple power to regulate the suffrage, a State may deny to a whole race
that “equal share of representation” which was promised? Thus from
every quarter we are brought to the same inevitable conclusion.

Therefore I dismiss the pretension founded on the power to make
_regulations_, as I dismiss that other founded on the power to
determine _qualifications_. Each proceeds on a radical misconception.
Admit that a State may determine _qualifications_; admit that a State
may make _regulations_; it cannot follow, by any rule of logic or law,
that, under these powers, either or both, it may disfranchise a race.
The pretension is too lofty. No such enormous prerogative can be wrung
out of any such moderate power. As well say, that, because a constable
or policeman may keep order in a city, therefore he may inflict the
penalty of death,--or, because a father may impose proper restraint
upon a child, therefore he may sell him into slavery. We have read
of an effort to extract sunbeams out of cucumbers; but the present
effort to extract a cruel prerogative out of the simple words of the
Constitution is scarcely less absurd.

       *       *       *       *       *

I conclude as I began, in favor of requiring conditions from States on
their admission into the Nation; and I insist that it is our especial
duty, in every possible way, by compact and by enactment, to assure
among these conditions the Equal Rights of All, and the participation
of every citizen in the government over him, without which the State
cannot be republican. For the present I confine myself to the question
of conditions on the admission of States, without considering the
broader obligation of Congress to make Equal Rights coextensive with
the Nation, and thus to harmonize our institutions with the principles
of the Declaration of Independence. That other question I leave to
another occasion.

Meanwhile I protest against the false glosses originally fastened
upon the Constitution by Slavery, and, now continued, often in
unconsciousness of their origin, perverting it to the vilest uses of
tyranny. I protest against that exaggeration of pretension which out
of a power to make “regulations” and to determine “qualifications” can
derive an unrepublican prerogative. I protest against that pretension
which would make the asserted Equality of States the cover for a denial
of the Equality of Men. The one is an artificial rule, relating to
artificial bodies; the other is a natural rule, relating to natural
bodies. The one is little more than a legal fiction; the other is
a truth of Nature. Here is a distinction which Alexander Hamilton
recognized, when, in the debates of the Convention, he nobly said:--

    “As States are a collection of individual men, which ought we
    to respect most,--the rights of the people composing them,
    or of the artificial beings resulting from the composition?
    Nothing could be more preposterous or absurd than to sacrifice
    the former to the latter.”[234]

High above States, as high above men, are those commanding principles
which cannot be denied with impunity. They will be found in the
Declaration of Independence, expressed so clearly that all can read
them. Though few, they are mighty. There is no humility in bending to
their behests. As man rises in the scale of being while walking in
obedience to the Divine will, so is a State elevated by obedience to
these everlasting truths. Nor can we look for harmony in our country
until these principles bear unquestioned sway, without any interdict
from the States. That unity for which the Nation longs, with peace and
reconciliation in its train, can be assured only through the Equal
Rights of All, proclaimed by the Nation everywhere within its limits,
and maintained by the national arm. Then will the Constitution be
filled and inspired by the Declaration of Independence, so that the
two shall be one, with a common life, a common authority, and a common
glory.




ELIGIBILITY OF A COLORED CITIZEN TO CONGRESS.

LETTER TO AN INQUIRER AT NORFOLK, VA., JUNE 22, 1868.


    This letter appeared in a Richmond paper.

                                     SENATE CHAMBER, June 22, 1868.

  DEAR SIR,--I have your letter of the 18th, in reference to the
  eligibility of a colored man to Congress.

  I know of no ground on which he could be excluded from his seat,
  if duly elected; and I should welcome the election of a competent
  representative of the colored race to either House of Congress as
  a final triumph of the cause of Equal Rights. Until this step is
  taken, our success is incomplete.

      Yours truly,

          CHARLES SUMNER.




INDEPENDENCE, AND THOSE WHO SAVED THE ORIGINAL WORK.

LETTER ON THE SOLDIERS’ MONUMENT AT NORTH WEYMOUTH, MASS., JULY 2, 1868.


                                      SENATE CHAMBER, July 2, 1868.

  MY DEAR SIR,--I wish that I could take part in the interesting
  ceremonies to which you invite me; but my duties will keep me
  here.

  On the anniversary of the birth of our Nation you will
  commemorate the death of patriots who gave their lives that the
  Nation might live. Grateful to our fathers, who at the beginning
  did so much, we owe an equal debt to those who saved the original
  work.

  The monument which you rear will be national in its character.
  Dedicated on the anniversary of Independence, it will have for
  its special object to guard forever the memory of those through
  whom the first fruits of Independence have been secured.

  Our fathers established the National Independence; our recent
  heroes have made it perpetual through those vital principles
  which can never die. Honor to the fathers! Honor also to the
  sons, worthy of the fathers!

  Accept my best wishes; believe me, my dear Sir, very faithfully
  yours,

      CHARLES SUMNER.

  GEN. B. F. PRATT.




COLORED SENATORS,--THEIR IMPORTANCE IN SETTLING THE QUESTION OF EQUAL
RIGHTS.

LETTER TO AN INQUIRER IN SOUTH CAROLINA, JULY 3, 1868.


    The following letter, from a South Carolina paper, is one of
    many in the same sense which found its way to the public.

                                      SENATE CHAMBER, July 3, 1868.

  DEAR SIR,--I have never given any opinion in regard to the
  Senatorial question in your State, except to express regret that
  the golden opportunity should be lost of making a colored citizen
  Senator from South Carolina.

  Such a Senator, if competent, would be a powerful support to the
  cause of Equal Rights. His presence alone would be a constant
  testimony and argument. Nothing could do so much to settle the
  question of Equal Rights forever in the United States. The howl
  against the negro, which is sometimes heard in the Senate, would
  cease. A colored Senator would be as good as a Constitutional
  Amendment, making all backward steps impossible.

  I write now frankly, in reply to your inquiry, and without any
  purpose of interfering in your election. You will pardon my
  anxiety for the cause I have so much at heart.

  Accept my best wishes, and believe me, dear Sir, faithfully yours,

      CHARLES SUMNER.

  To THADDEUS K. SASPORTAS, Esq., Columbia, S. C.




FINANCIAL RECONSTRUCTION THROUGH PUBLIC FAITH AND SPECIE PAYMENTS.

SPEECH IN THE SENATE, ON THE BILL TO FUND THE NATIONAL DEBT, JULY 11,
1868.


    We denounce all forms of Repudiation as a national crime
    [_prolonged cheers_]; and the national honor requires the
    payment of the public indebtedness, _in the utmost good faith_,
    to all creditors, at home and abroad, _not only according to
    the letter, but to the spirit of the laws under which it was
    contracted_. [_Applause._]--CHICAGO PLATFORM, May, 1868.

       *       *       *       *       *

    Fundamentum est autem justitiæ fides, id est, dictorum
    conventorumque constantia et veritas.--CICERO, _De Officiis_,
    Lib. I. Cap. 7.


SPEECH.

    The Senate having under consideration the Bill for funding the
    National Debt and for the Conversion of the Notes of the United
    States, Mr. Sumner said:--

MR. PRESIDENT,--After a tempest sweeping sea and land, strewing the
coast with wrecks, and tumbling houses to the ground, Nature must
become propitious before the energy of man can repair the various
losses. Time must intervene. At last ships are launched again, and
houses are built, in larger numbers and fairer forms than before. A
tempest has swept over us, scourging in every direction; and now that
its violence has ceased, we are occupied in the work of restoration.
Nature is already propitious, and time, too, is silently preparing the
way, while the national energies are applied to the work.

To know what to do, we must comprehend the actual condition of things,
and how it was brought about. All this is easy to see, if we will only
look.

       *       *       *       *       *

It is a mistake of too constant occurrence to treat the financial
question by itself, without considering its dependence upon the
abnormal condition through which the country has passed. The financial
question, in all its branches, depends upon the political, and cannot
be separated. I might use stronger language. It is a part of the
political question; and now that Reconstruction seems about to be
accomplished, it is that enduring part which still remains.

       *       *       *       *       *

Our present responsibilities, whether political or financial, have a
common origin in that vast Rebellion, when the people of eleven States,
maddened by Slavery, rose against the Nation. As the Rebellion was
without example in its declared object, so it was without example in
the extent and intensity of its operations. It sought nothing less than
the dismemberment of our Nation and the establishment of a new power
with Slavery as its quickening principle. The desperate means enlisted
by such a cause could be encountered only by the most strenuous
exertions in the name of Country and of Human Rights. Here was Slavery,
barbarous, brutal, vindictive, warring for recognition. The tempest
or tornado can typify only feebly the ravage that ensued. There were
days of darkness and despair, when the national existence was in peril.
Rebel armies menaced the Capitol, and Slavery seemed about to vindicate
its wicked supremacy.

Looking at the scene in its political aspects, we behold one class
of disorders, and looking at it in its financial aspects, we behold
still another,--both together constituting a fearful sum-total,
where financial disorder mingles with political. Turn, first, to the
political, and you will see States, one after another, renouncing their
relations with the Nation, and constituting a new government, under
the name of Confederacy, with a new Constitution, making Slavery its
corner-stone,--all of which they sought to maintain by arms, while,
in aggravation of these perils, Foreign Powers gave ominous signs of
speedy recognition and support. Look next to the financial side, and
you will see business in some places entirely prostrate, in others
suddenly assuming new forms; immense interests destroyed; property
annihilated; the whole people turned from the thoughts of peace to
the thoughts of war; vast armies set on foot, in which the youthful
and strong were changed from producers to destroyers, while life
itself was consumed; an unprecedented taxation, commensurate with the
unprecedented exigency; and all this followed by the common incidents
of war in other countries and times,--first, the creation of a national
debt, and, secondly, the substitution of inconvertible paper as a
currency. In this catalogue of calamities, political and financial, who
shall say which was the worst? Certainly it is difficult to distinguish
between them. One grew out of the other, so that they belong together
and constitute one group, all derived ultimately from the Rebellion,
and directly depending upon it. So long as Slavery continued in arms,
each and all waxed in vastness; and now, so long as any of these
remain, they testify to this same unnatural crime. The tax-gatherer,
taking so much from honest industry, was born of the Rebellion.
Inconvertible paper, deranging the business of the country at home and
abroad, had the same monstrous birth. Our enormous taxation is only a
prolongation of the Rebellion. Every greenback is red with the blood of
fellow-citizens.

To repair these calamities, political and financial, the first stage
was the overthrow of the Rebellion in the field, thus enabling the
Nation to reduce its armaments, to arrest its accumulating debt, and
to cease anxiety on account of foreign intervention so constantly
menaced. Thus relieved, we were brought to a resting-place, and the
Nation found itself in condition to begin the work of restoration.

       *       *       *       *       *

Foremost came the suppression of Slavery, in which the Rebellion
had its origin. Common prudence, to say nothing of common humanity,
required this consummation, without which there would have been a
short-lived truce only. So great a change necessarily involved other
changes, while there was the ever-present duty to obtain from the
defeated Rebels, if not indemnity for the past, at least security for
the future. It was impossible to stop with the suppression of Slavery.
That whole barbarous code of wrong and outrage, whose first article was
the denial of all rights to an oppressed race, was grossly inconsistent
with the new order of things. It was necessary that it should yield to
the Equal Rights of All, promised by the Declaration of Independence.
The citizen, lifted from Slavery, must be secured in all his rights,
civil and political. Loyal governments, republican in form, must be
substituted for Rebel governments. All this being done, the States,
thus transformed, will assume once more their ancient relations to the
Nation. This is the work of Political Reconstruction, constituting the
new stage after the overthrow of the Rebellion.

       *       *       *       *       *

Meanwhile there has been an effort and a longing for Financial
Reconstruction also,--sometimes without sufficiently reflecting that
there can be small chance for any success in this direction until after
Political Reconstruction. Here also we must follow Nature, and restore
by removing the disturbing cause. This is the natural process. Vain
all attempt to reconstruct the national finances while the Rebellion
was still in arms. This must be obvious to all. Vain also while
Slavery still domineered. Vain also while Equal Rights are without a
sure defence against the oppressor. Vain also while the Nation still
palpitates with its efforts to obtain security for the future. Vain
also until the States are all once more harmonious in their native
spheres, like the planets, receiving and dispensing light.

Nothing is more sensitive than Credit, which is the essential element
of financial restoration. A breath will make it flutter. How can you
expect to restore the national credit, now unnaturally sensitive, while
the Nation is still uneasy from those Rebel pretensions which have cost
so much? Security is the first condition of Financial Reconstruction;
and I am at a loss to find any road to it, except through Political
Reconstruction. All this seems so plain that I ought to apologize for
dwelling on it. And yet there are many, who, while professing a desire
for an improvement in our financial condition, perversely turn their
backs upon the only means by which this can be accomplished. Never was
there equal folly. Language cannot picture it. Every denial of Equal
Rights, every impediment to a just reconstruction in conformity with
the Declaration of Independence, every pretension of a “white man’s
government” in horrid mockery of self-evident truths declared by our
fathers, and of that brotherhood of mankind declared by the Sermon on
Mars Hill, is a bar to that Financial Reconstruction without which the
Rebellion still lingers among us. So long as a dollar of irredeemable
paper is forced upon the country, the Rebellion still lives, in its
spurious progeny.

Party organization and Presidential antagonism have thus far stood
in the way, while at each stage individual perverseness has played
its part. The President has set himself obstinately against Political
Reconstruction; so also has the Democratic Party; others have followed,
according to the prejudices of their nature; and so the national
finances have suffered. Not the least of the offences of Andrew Johnson
is the adverse influence he has exerted on this question. All that he
has done from the beginning has tended to protract the Rebellion and
to extend the disorder of our finances. And yet there are many not
indifferent to the latter who have looked with indifference upon his
criminal conduct. So far as their personal interests depended on an
improved condition of the finances, they have already suffered; but
it is hard that the country should suffer also. Andrew Johnson has
postponed specie payments, and his supporters of all degrees must share
the responsibility.

Such is my confidence in the resources of our country, in the industry
of its people, and in the grandeur of its destinies, that I cannot
doubt the transcendent future. Alas that it should be interrupted by
unwise counsels, even for a day! Financial Reconstruction is postponed
only. It must come at last. Here I have no panacea that is not as
simple as Nature. I know of no device or trick or medicine by which
this cure can be accomplished. It will come with the general health of
the body politic. It will come with the renovated life of the Nation,
when it is once more complete in form, when every part is in sympathy
with the whole, and the Rebellion, with all its offspring, is trampled
out forever. In such a condition of affairs, inconvertible paper would
be an impossibility, as much as a bill of sale for a human being.

       *       *       *       *       *

Meanwhile there are certain practical points which must not be
forgotten. Foremost among these I put the absolute dependence of the
national finances upon the faithful performance of all our obligations
to the national freedmen. Pardoned Rebels will never look with
complacency upon the national debt, or the interest which testifies
semiannually to its magnitude. Their political colleagues at the North
will be apt to sympathize with them. Should the scales at any time hang
doubtful, it is to others that we must turn to adjust the balance.
Therefore, for the sake of the national finances, I insist that the
national freedmen shall be secured and maintained in Equal Rights, so
that local prejudices and party cries shall be unavailing against them.
You who have at heart the national credit, on which so much depends,
must never fail to cherish the national freedmen, treating their
enemies as if they were your enemies. Every blow at them will rebound
upon yourselves.

       *       *       *       *       *

In dealing with the financial question, there are two other points of
ever-present importance: first, the necessity of diminishing, so far as
practicable, the heavy burden of taxation so oppressive to the people;
and, secondly, the necessity of substituting specie for inconvertible
paper. Here are two objects, which, when accomplished, will add
infinitely to the wealth and happiness of the country, besides being
the assurance that the Nation has at last reached that condition of
repose so much longed for.

Before considering these two points in detail, I venture to remark that
there is one condition, preliminary in character and equally essential
to both, through which taxation will be lightened and specie payments
will be hastened. I refer to the Public Faith, which must be sacredly
preserved above all question or suspicion. The word of our Nation
must be as good as its bond; and nobody must attempt to take a tittle
from either. Nothing short of universal wreck can justify any such
bankruptcy. Let the Public Faith be preserved, and all that you now
seek will be easy.

A virtuous king of early Rome dedicated a temple on the Capitol Hill
itself to a divinity under the name of _Publica Fides_, who was
represented with a wreath of laurel about her head, carrying ears
of corn and a basket of fruit,--typical of honor and abundance sure
to follow in her footprints. In the same spirit another temple was
dedicated to the god Terminus, who presided over boundaries. The
stones set up to mark the limits of estates were sacred, and on these
very stones there were religious offerings to the god. The heathen
maledictions upon the violator were echoed also by the Hebrews, when
they said: “Cursed be he that removeth his neighbor’s landmark: and
all the people shall say, Amen.”[235] In those early Roman and Hebrew
days there was no national debt divided into bonds; there was nothing
but land. But a national bond is as well defined as a piece of land.
Here, then, is a place for the god Terminus. Every obligation is like a
landmark, not to be removed without curses. Here, also, is a place for
that other divinity, _Publica Fides_, with laurelled head, and hands
filled with corn and fruit.

Public Faith may be seen in the evil which springs from its loss and in
the good which overflows from its preservation. It is like honor: and
yet, once lost, more than dishonor is the consequence; once assured,
more than honor is the reward. It is a possession surpassing all others
in value. The gold and silver in your Treasury may be counted; it
stands recorded, dollar for dollar, in the national ledger; but the
sums which the unsuspected credit of a magnanimous nation can command
are beyond the record of any ledger. Public Faith is more than mines
of silver or gold. Only from Arabian story can a fit illustration be
found, as when, after all human effort had failed, the Genius of the
Lamp reared the costly palace and stored it with beauty. Public Faith
is in itself a treasury, a tariff, and an internal revenue, all in
one. These you may lose; but if the other is preserved, it will be
only for a day. The Treasury will be replenished, the tariff will be
renewed, the internal revenue will be restored. With Public Faith as an
unfailing law, the Nation, like Pactolus, will sweep over golden sands;
or, like Midas, it will change into gold whatever it touches. Keep,
then, the Public Faith as the “open sesame” to all that you can desire;
keep it as you would keep the philosopher’s stone of fable, having
which, you have all.

And yet, in the face of this plain commandment, on which hangs so much
of all that is most prized in national existence, we are called to
break faith. It is proposed to tax the national bonds, in violation
of the original bargain on which the money was lent. Sometimes the
tax is to be by the Nation, and sometimes by the States. The power to
do this wrong you may possess, but the right never. Do what you will,
there is one thing you cannot do: you cannot make wrong right. It is
in vain that you undertake to set aside the perpetual obligation which
you have assumed. Against every such pretension, whether by speech
or vote, there is this living duty, which will survive Congress and
politician alike. Puny as the hand of a child is the effort to undo
this original bargain. The Nation has promised six per cent. interest,
payable semiannually in coin, nor more nor less, without any abatement;
and then, having bound itself, it proceeds to guard against the States
by declaring specifically that the bonds shall be “exempt from taxation
by or under State authority.” Such is the bargain. There it is; and it
must continue unchanged, except by the consent of the parties, until
the laws of the universe tumble into chaos.

The rogue in Shakespeare exclaims, “What a fool Honesty is! and Trust,
his sworn brother, a very simple gentleman!” In equal levity it is
said, “Tax the bonds,” although, by the original bargain on which
the money was obtained, amid the trials of war for the safety of the
Nation, it was expressly stipulated that these bonds should not be
taxed. Nevertheless, tax the bonds! Of course, by taxing the bonds the
bargain is brutally broken,--and this, too, after the Nation has used
the money. Such a transaction in common life, except where bankruptcy
had supervened, would be intolerable. A proud Nation, justly sensitive
to national honor, as the great Republic through whose example liberal
institutions are commended to mankind, cannot do this thing.

The proposition to tax the bonds, in open violation of the original
bargain, is similar in spirit to that other enterprise, which, under
various discordant ensigns, proposes to pay the national bonds with
inconvertible paper. Here at once, and on the threshold, Public
Faith interposes a summary protest. On such a question debate even
is dangerous; the man who doubts is lost. The money was borrowed and
lent on the undoubting faith that it was to be paid in coin. Nothing
to the contrary was suggested, imagined, or dreamed, at the time.
Behind all forms of language, and even all omissions, this obligation
stands forth, in the nature of the case, explained and confirmed by the
history of our national loans, and by the official acts of successive
Secretaries of the Treasury interpreting the obligations of the Nation.

       *       *       *       *       *

So much stress is laid upon the language of the five-twenties that I
cannot let it pass. The terms employed were precisely those in previous
bonds of the United States where the principal was paid in coin, some
of which are still outstanding. Had there been any doubt about the
meaning, it was fixed by the general understanding, and by special
declarations of responsible persons speaking for the Nation. On 26th
May, 1863, Mr. Harrington, the Assistant Secretary of the Treasury,
in an official letter, says: “These bonds will, therefore, be paid in
gold.” On 15th February, 1864, Mr. Field, also Assistant Secretary of
the Treasury, writes: “I am directed by the Secretary to say that it is
the purpose of the Government to pay said bonds, like other bonds of
the United States, in coin, at maturity.” On 18th May, 1864, Mr. Chase,
at the time Secretary of the Treasury, wrote: “These bonds, _according
to the usage of the Government_, are payable in coin.” Mr. Fessenden,
while Secretary of the Treasury, in his annual report to Congress,
expressed the same conclusion; and his successor, Mr. McCulloch,
in a letter of 15th November, 1866, says: “I regard, as did also my
predecessors, all bonds of the United States as payable in coin.”
There are also numerous advertisements from the Treasury, and from its
business agents, all in the same sense.

Here is a succession of authorities, embracing high functionaries of
the United States, all concurring in affixing upon these bonds the
obligation to pay in coin. As testimony to the meaning of the bonds,
it is important; but considering that all these persons represented
the National Treasury, and that they were the agents of the Nation
for the sale of these very bonds, their representations are more
than testimony. Until their authority is disowned by Congress, and
their representations discarded, it is difficult to see why their
language must not be treated as part of the contract, at least in
all sales subsequent to its publication. It must not be forgotten
that these original sales were mainly to bankers and brokers, and
in large amounts, for the purpose of resale to small purchasers
seeking investments. It was in reply to parties interested in these
resales that the letters of Assistant Secretary Field and Mr. Chase
were written, pledging the Nation to payment in coin. At the date of
these important letters Congress was in session, and, although the
opportunity was constant, there was no protest against the meaning
thus authoritatively affixed to these obligations. The bonds were
in the market, advertised and sold daily, with a value established
by the representations of these national agents; and Congress did
not interfere to set aside these representations. By subsequent
Acts similar loans were authorized, and nobody protested. There was
the supplementary clause of 3d March, 1864, for the issue of eleven
millions of these bonds, to cover an excess subscribed above the
amount authorized by the original Act. This was debated in the Senate
on the 1st of March; but you will search the “Globe” in vain for any
protest. Then came other Acts, at different dates, by which the loan
was further enlarged to its present extent, and all the time these
representations were uncontradicted. Against them there was no Act of
Congress, no protest, nothing. If this is not “acquiescence,” then I am
at a loss to know how acquiescence can be shown. Therefore do I insist
that these representations are a part of the contract by which the
Nation is bound.

It is said that in the five-twenty bonds there are words promising
interest in coin, but nothing with regard to the principal. Forgetting
the contemporary understanding and the official interpretation, and
assuming that at maturity the bond is no better than a greenback, it
becomes important to know the character of this obligation. On its
face a greenback is a promise to pay a certain number of dollars.
It is paper, and it promises to pay “dollars.” Here is an example,
which I take from my pocket: “The United States promise to pay to the
bearer _five dollars_”--not five dollars in paper, or in some other
substituted promise, but “five dollars,” which can mean nothing else
than the coin known over the world with the stamp of Spain, Mexico,
and the United States, being a fixed value, which passes current
in every zone and at the antipodes. The “dollar” is an established
measure of value, like the five-franc piece of France, or the pound
sterling of England. As well say, that, on a promise to pay so many
francs in France, or so many pounds sterling in England, you could
honestly acquit yourself by handing over a scrap of printed paper,
inconvertible in value. This could not be done. The promise in our
greenbacks carries with it an ultimate obligation to pay the silver
dollar whose chink is so familiar in the commerce of the world. The
convertibility of the greenback is for the present suspended; but when
paid, it must be in coin. To pay with another promise is to renew, and
not to discharge the debt. But the obligation in our bonds is to pay
“dollars” also, _whenever the bonds are paid_; it may be after five
years, or, in the discretion of the Nation, not till twenty years,
but, _when paid_, it must be in “dollars.” Such is the stipulation;
nor could the addition of “coin” or “gold” essentially change this
obligation. _It is contrary to reason that a bond should be paid in
an inferior obligation._ It is dishonest to force inconvertible paper
without interest in payment of an interest-bearing obligation. The
statement of the case is enough. Such an attempt disturbs the reason
and shocks the moral sense.

Between the bond and the greenback there is an obvious distinction,
doubly attested by the Act of Congress creating them both,--for they
were created together. This distinction appears, first, in the title of
the Act, and, secondly, in its provisions. According to its title, it
is “An Act to authorize the issue of United States notes, _and for the
redemption or funding thereof, and for funding the floating debt of the
United States_.”[236] In brief, greenbacks were made a legal tender,
and authority was given to fund them in these bonds. This appears
in the very title of the Act. Now the object of funding is to bring
what is uncertain and floating into a permanent form; and accordingly
greenbacks were funded and placed on interest. The bonds were a
substitute for the greenbacks; but the new theory makes the greenbacks
a substitute for the bonds. To carry forward still further the policy
of the Act, it was provided that the greenbacks might be exchanged at
once for bonds; and then, by the Act of 11th July, 1862,[237] it was
further provided that these very greenbacks “may be paid in coin,” at
the direction of the Secretary, instead of being received in exchange
for certificates of deposit, which were convertible into bonds,--thus
treating the bonds as the equivalent of coin. The subsequent repeal
of these provisions does not alter their testimony to the character
of these bonds. Thus, at every turn, we are brought to the same
conclusion. The dishonor of these obligations, whatever form it may
assume, and whatever pretext it may adopt, is nothing but Repudiation.

       *       *       *       *       *

The word _Repudiation_, now so generally used to denote the refusal to
pay national obligations, has been known in this sense only recently.
In the early dictionaries of our language it had no such signification.
According to Dr. Johnson, it meant simply “divorce,” “rejection,” as
when a man put away his wife. It began to be known in its present
sense when Mississippi, the State of Jefferson Davis, dishonored her
bonds. From that time the word has been too familiar in our public
discussions. It was not unnatural that a State mad with Slavery should
dishonor its bonds. Rejecting all obligations of humanity and justice,
it easily rejected the obligations of Public Faith. Slavery was in
itself a perpetual _repudiation_, and slave-masters were unblushing
_repudiators_. Such an example is not fit for our Nation at this great
period of its history.

It is one of the calamities of war, that, while it compels the
employment of large means, it blunts the moral sense, and breeds too
frequently an insensibility to the obligations incurred. A national
debt shares for the time the exceptional character of war itself.
Contracted hastily, it is little regarded except as a burden. At
last, when business is restored and all things assume their natural
proportions, it is recognized in its true character. The country
accommodates itself to the pressure. This time is now at hand among
us, if not arrested by disturbing influences. Unhappily, the demands
of Public Faith are met by higgling and chaffering, and we are gravely
reminded that the “bloated bond-holders” now expect more than they
gave,--forgetting that they gave in the darkness of the war, at the
appeal of the Nation, and to keep those armies in the field through
which its existence was preserved,--forgetting also that among these
bond-holders, now so foully stigmatized, were the poor, as well as the
rich, all giving according to their means. It was not in the ordinary
spirit of money-lending that those contributions were made. Love of
country entered into them, and made them more than money. If the
interest was considerable, it was only in proportion to the risk. Every
loan at that time was a contract of bottomry on the Nation,--like money
lent to a ship in a strange port, and conditioned on its arrival safe
at home,--so that it failed entirely, if Slavery, by the aid of Foreign
Powers, established its supremacy. God be praised, the enemy has been
overcome! It remains now that we should overcome that other enemy,
which, hardly less malignant than war itself, would despoil the Nation
of its good name and take from it all the might of honesty. And here
to every citizen, and especially to every legislator, I would address
those incomparable words of Milton in his sonnet to Fairfax:--

    “Oh, yet a nobler task awaits thy hand,
      (For what can war but endless war still breed?)
      Till truth and right from violence be freed,
    _And Public Faith cleared from the shameful brand_
      _Of public fraud_.”

The proposition to pay bonds in greenbacks becomes futile and fatuous,
when it is considered that such an operation would be nothing more
than the substitution of greenbacks for bonds, and not a payment of
anything. The form of the debt would be changed, but the debt would
remain. Of the twenty-five hundred millions which we now owe, whether
in greenbacks or bonds, every dollar must be paid, sooner or later,
or be ignobly repudiated. By paying the interest of the bonds in
coin, instead of greenbacks, the annual increase of the debt to this
extent is prevented. But the principal remains to be paid. If this
be attempted in greenbacks, it will be by an issue far beyond all
the demands of the currency. There will be a deluge of greenbacks.
The country must suffer inconceivably under such a dispensation. The
interest on the bonds may be stopped by the substitution, but the
currency will be depreciated infinitely beyond any such dishonest
saving. The country will be bankrupt. Inconvertible paper will
overspread the land, to the exclusion of coin or any chance of coin
for some time to come. Farewell then to specie payments! Greenbacks
will be everywhere. The multitudinous rats that swam the Rhine and
devoured Bishop Hatto in his tower were not more destructive. The cloud
of locusts described by Milton as “warping on the eastern wind” and
“darkening all the land of Nile,” were not more pestilential.

I am now brought to the practical question, to which I have already
alluded: How the public burdens shall be lightened. Of course, in
this work, the Public Faith, if kept sacred, will be a constant and
omnipresent agency, powerful in itself, and powerful also in its
reinforcement of all other agencies.

       *       *       *       *       *

It will not seem trivial, if I insist on systematic economy in the
administration of the Government. All needless expenditure must be
lopped off. Our swollen appropriations must be compressed. Extravagance
and recklessness, so natural during a period of war, must give way to
moderation and thrift. All this without any denial of what is just or
beneficent. The rule should be economy without niggardliness. Always
there must be a good reason for whatever we spend. Every dollar, as it
leaves the National Treasury, must be able to exhibit its passport.
Doubtless the army and navy can be further reduced without detriment to
the public service. Beyond this great saving there should be a constant
watchfulness against those schemes of public plunder, great and small,
from which the Nation has latterly suffered so much. All these things
are so plain as to be little more than truisms.

       *       *       *       *       *

Another help will be found in the simplification of our system of
taxation, so that it shall be less complex and shall apply to fewer
objects. In Europe taxation has become a science, according to which
the largest possible amounts are obtained at the smallest possible
inconvenience. Instead of sweeping through all the highways and byways
of life, leaving no single thing unvisited, the English system has a
narrow range and visits a few select articles only. I see no reason
why we should not profit by this example, much to the convenience of
the Government and of the citizen. The tax-gatherer will never be a
very welcome guest, but he may be less of an intruder than now. A
proper tax on two articles, whiskey and tobacco, with proper securities
for its collection, would go far to support the Government.

       *       *       *       *       *

Still another agency will be found in some proper scheme for a
diminution of the interest on our national debt, so far as this can be
done without a violation of Public Faith; and this brings me to the
very bill now before the Senate.

All are anxious to relieve the country from recurring liabilities,
which come round like the seasons. How can this be done best? First, by
the strict performance of all existing engagements, so that the Public
Faith shall be our inseparable ally; and, secondly, by funding the
existing debt in such ways as to provide a reduced rate of interest. A
longer term would justify a smaller interest. There may be differences
as to the form of the substitute, but it would seem as if something of
this kind must be done.

Immediately after the close of the war, as the smoke of battle was
disappearing, but before the national ledger was sufficiently examined
to justify a comparison between liabilities and resources, there was a
generous inclination to proceed at once to the payment of the national
debt. Volunteers came forward with their contributions for this
purpose, in the hope that the generation which suppressed the Rebellion
might have the added glory of removing this great burden. This ardor
was momentary. It was soon seen that the task was too extensive,
and that it justly belonged to another generation, with aggrandized
population and resources, in presence of which the existing debt, large
to us, would be small. Here the census has its instructive lesson.
According to the rate of increase in past years, our population will
advance in the following proportion:--

    In 1870,           42,323,341
    In 1880,           56,967,216
    In 1890,           76,677,872
    In 1900,          103,208,415
    In 1910,          138,918,526

The resources of the country, already so vast, will swell in still
larger proportions. Population increasing beyond example, improved
systems of communication expanding in every direction, and the
mechanical arts with their infinite activities old and new,--all these
must carry the Nation forward beyond any present calculation, so
that the imagination tires in the effort to grasp the mighty result.
Therefore to the future we may tranquilly leave the final settlement of
the national debt, meanwhile discharging our own incidental duty, so
that the Public Faith shall be preserved.

Here is a notable difference between the United States and other
countries, where population and resources have arrived at such a point
that future advance is very gradual. With us each decade is a leap
forward; with them it marks a gradation sometimes scarcely appreciable.
This difference must not be forgotten in the estimate of our capacity
to deal with a debt larger than that of any European power except
England. But we must confess our humiliation, as we find that our
debt, with its large interest in coin, secured by mortgage on the
immeasurable future of the Nation, is less regarded abroad than the
English debt, with its smaller interest and its more limited security.
Our sixes will command only seventy-four per cent. in the market of
London, while the three per cent. consols of England are freely bought
at ninety-four per cent. One of our bonds brings twenty per cent. less
than an English bond, although the interest on it is one hundred per
cent. more. I know no substantial reason for this enormous difference,
except in the superior credit established by England. With the national
credit above suspicion, our debt must stand as well, and, as our
multiplying resources become known, even better still. Thus constantly
are we brought to the same lesson of Public Faith.

In spite of the general discredit of our national stocks abroad,
Massachusetts fives payable in 1894 sell at the nominal price of 84,
with the pound sterling at $4.44, equal to 91½ in our gold, with the
pound sterling at $4.83. There can be no other reason for this higher
price than the superior credit enjoyed by Massachusetts; and thus again
is Public Faith exalted. Why should not the Nation, with its infinite
resources, surpass Massachusetts?

       *       *       *       *       *

The bill before us proposes a new issue of bonds, redeemable in coin
after twenty, thirty, and forty years, with interest at five per cent.,
four and one half per cent., and four per cent., in coin, exempt from
State or municipal taxation, and also from national taxation, except
the general tax on income,--these bonds to be used exclusively for
the conversion of an equal amount of the interest-bearing debt of the
United States, except the existing five per cent. bonds and the three
per cent. certificates. These proposed bonds have the advantage of
being explicit in their terms. The obligations of the Government are
fixed clearly and unchangeably beyond the assaults of politicians.

A glance at the national debt will show the operation of this measure.
The sum-total on the 1st of February, 1868, according to the statement
from the Treasury, was $2,514,315,373, being, in round numbers,
twenty-five hundred millions. Out of this may be deducted legal-tender
and fractional notes, as currency, amounting to $388,405,565, and
several other smaller items. The following amounts represent the
portions of debt provided for by this bill:--

    Six per cent., due 1881,                 $  283,676,600
    Six per cent., five-twenties,             1,398,488,850
    Seven and three tenths Treasury notes,
      convertible into five-twenty bonds at
      maturity,                                 214,953,850
                                             --------------
                                             $1,897,119,300

This considerable sum may be funded under the proposed bill.

If this large portion of the national debt, with its six per cent.
interest in coin, can be funded at a less interest, there will be a
corresponding relief to the country. But there is one way only in which
this can be successfully accomplished. It is by making the Public
Faith so manifest that the holders will be induced to come into the
change for the sake of the longer term. All that is done by them must
be voluntary. Every holder must be free to choose. He may prefer his
short bond at six per cent., or a long bond at five per cent., or a
longer at four and one half per cent., or a still longer at four per
cent. This is his affair. There must be no compulsion. Any menace
of compulsion will defeat the transaction. It will be nothing less
than Repudiation, with a certain loss of credit, which no saving of
interest can repay. You must continue to borrow on a large scale; but
who will lend to the repudiator, unless at a destructive discount? Any
reduction of interest without the consent of the holders will reduce
your capacity to borrow. A forced reduction of interest will be like
a forced loan. While seeming to save interest, you will lose capital.
Do not be deceived. Any compulsory conversion is only another form of
Repudiation. It is tantamount to this declared crime. It is the same
misdeed, taking still another shape,--as Proteus was the same heathen
god in all his various transformations. It is Repudiation under an
_alias_.

Happily the bill before us is free from any such damning imputation.
The new bonds are authorized; but the holders of existing obligations
are left free to exercise their judgment in making the change. I am
assured by those who, from practical acquaintance with business, ought
to know, that these bonds will be rapidly taken for the five-twenties.

The same bill, in its second section, sets apart $135,000,000 annually
to the payment of the interest and the reduction of the principal of
the national debt; and this is to be in lieu of a sinking fund. This is
an additional security. It is another assurance of our determination to
deal honestly.

The third section of the same bill is newer in its provisions, and,
perhaps, more open to doubt. But, though uncertain with regard to it
in the beginning, I have found that it commended itself on careful
examination. On its face it provides for a system of conversion and
reconversion. The holder of lawful money to the amount of $1,000, or
any multiple of $1,000, may convert the same into the funded debt for
an equal amount; and any holder of the funded debt may receive for the
same at the Treasury lawful money, unless the notes then outstanding
shall be equal to $400,000,000. If bonds in the funded debt shall be
worth more than greenbacks, the latter would be converted into bonds
according to the ordinary laws of trade. The latest relation of these
two is as follows: $100 greenbacks equal seventy-one dollars gold;
$100 five per cent. equal seventy-six dollars gold. If the greenbacks
are convertible into the five per cent., they will, of course, be
converted while the above relation continues. This must be so long
as the national credit is maintained abroad and the demand for our
securities continues there. By this process our greenbacks will be
gradually absorbed, and those that are not absorbed will be lifted in
value. It would seem as if bonds and greenbacks must both gain from
this business, and with them the country must gain also. Here would be
a new step to specie payments.

The bill closes with a provision authorizing contracts in coin, instead
of greenbacks, according to the agreement of parties. This authority is
in harmony with the other provisions of the bill, and is still another
step toward specie payments.

       *       *       *       *       *

I am now brought to the last branch of this discussion, in which all
the others are absorbed: I mean the necessity of specie payments, or,
in other words, the necessity of coin in the place of inconvertible
paper. Other things are means to this end: this is the end itself.
Until this is accomplished, Financial Reconstruction exists in
aspiration only, and not in reality.

The suspension of specie payments was originally a war measure, like
the suspension of the _Habeas Corpus_. It was so declared by myself at
the time it was authorized. Pardon me, if I quote my own words in the
debate on the bill:--

    “It is a discretion kindred to that under which the _Habeas
    Corpus_ is suspended, so that citizens are arrested without
    the forms of law,--kindred to that under which an extensive
    territory is declared to be in a condition of insurrection, so
    that all business with its inhabitants is suspended,--kindred
    to that, which unquestionably exists, to obtain soldiers,
    if necessary, by draft or conscription instead of the free
    offering of volunteers,--kindred to that under which private
    property is taken for public uses,--and kindred, also, to that
    undoubted discretion which sanctions the completest exercise of
    the transcendent right of self-defence.”[238]

As a war measure, it should cease with the war, or so soon thereafter
as practicable. It should not be continued a day beyond positive
exigency. While the war lasted, it was a necessity, as the war itself.
Its continuance now prolongs into peace this belligerent agency, and
projects its disturbing influence into the most distant places. Like
war, whose greatest engine it was, it is the cause of incalculable
evil. Like war, it troubles the entire Nation, deranges business, and
demoralizes the people. As I hate war, so do I hate all its incidents,
and long to see them disappear. Already in these remarks I have
pictured the financial anarchy of our country, the natural reflection
of the political; but the strongest illustration is in a disordered
currency, which is present to everybody with a dollar in his pocket.

The derangement of business may be seen at home and abroad. It is not
merely derangement; it is dislocation. Everything is out of joint.
Business has its disease also, showing itself in opposite conditions:
shrunk at times, as with paralysis; swollen at times to unhealthy
proportions, as with _elephantiasis_. The first condition of business
is stability, which is only another form of security; but this is
impossible, when nobody can tell from day to day the value of the
currency. It may change in a night. The reasonable contract of to-day
may become onerous beyond calculation to-morrow. There is no fixed
standard. The seller is afraid to sell, the buyer afraid to buy.
Nobody can sell or buy a farm, nobody can build or mortgage a house,
except at an unnatural hazard. Salaries and all fixed incomes suffer.
The pay of every soldier in the army, every sailor in the navy, every
office-holder from the President to the humblest postmaster, is brought
under this tyrannical influence. Harder still, innocent pensioners,
wards of the Nation, must bear the same doom. Maimed soldiers, bereaved
widows, helpless orphans, whose cup is already full, are compelled to
see their scanty dole shrink before their sight till it seems ready to
vanish in smoke.

A greenback is a piece of paper with a promise on its face and green
on its back, declared to be money by Act of Congress, but which the
Government refuses to pay. It is “failed paper” of the Government. The
mischief of such a currency is everywhere, enveloping the whole country
and penetrating all its parts. It covers all and enters all. It is a
discredit to the national name, from which the Nation suffers in whole
and in detail. It weakens the Nation and hampers the citizen. There is
no national enterprise which it does not impede. The Pacific Railroad
feels it. There is not a manufacture or business which does not feel it
also. There is not a town, or village, or distant place, which it does
not visit.

A practical instance will show one way in which individuals suffer
on an extensive scale, being generally those who are least able. I
follow an ingenious merchant, Mr. Atkinson, of Boston, whose figures
sustain his conclusion, when I insist that our present currency, from
its unstable character, operates as an _extra_ tax of more than one
hundred millions annually on the labor and business of the country;
and this vast sum is taken from the pockets of the people, not for the
support of the Government, but to swell the unreported fund out of
which the excesses of the present day are maintained. There are few
business men who would not put the annual loss in their affairs, from
the fluctuation in the currency, somewhere from one to five per cent.
One per cent. is the lowest. Mr. Hazard, of Rhode Island, puts it at
two per cent. Now the aggregate sales in the fiscal year ending June,
1867, were over eleven thousand millions ($11,000,000,000) in currency,
excluding sales of stocks or bonds. One per cent. on this prodigious
amount represents a tax of one hundred and ten millions, paid annually
by consumers, according to their consumption, and not in any degree
according to their ability. This is one instance only of the damages
annually paid on account of our currency. If we estimate the annual
tax at more than one per cent., the sum-total will be proportionally
larger. Even at the smallest rate, it is many millions more than
all the annual expenses of our Government immediately preceding the
Rebellion.

Fluctuations in the measure of value are as inconvenient and fatal
as fluctuations in the measures of length and bulk. A dollar which
has to-day one value and to-morrow another is no better than a yard
which has to-day one length and another to-morrow, or a bushel which
has to-day one capacity and another to-morrow. It is as uncertain
as “Equity” measured by the varying foot of successive chancellors,
sometimes long and sometimes short, according to the pleasant
illustration of Selden in his “Table-Talk.” Such fluctuations are more
than a match for any prudence. Business is turned into a guess, or a
game of hazard, where the prevailing anarchy is overruled by accident:--

                  “Chaos umpire sits,
    And by decision more embroils the fray
    By which he reigns; next him high arbiter
    Chance governs all.”

In such a condition of things the gamblers have the advantage. The
stock exchange becomes little better than a faro bank. By such scenes
the country is demoralized. The temptation of excessive gains leads
from the beaten path of business. Speculation without money takes the
place of honest industry, extending from the stock exchange everywhere.
The failed paper of the Government teaches the lesson of bankruptcy.
The Government refuses to take up its notes, and others do likewise.
These things cannot be without a shock to public morals. Honesty ceases
to be even a policy. Broken contracts prepare the way for crime, which
comes to complete the picture.

Our foreign commerce is not less disturbed; for here we are brought
within the sphere of other laws than our own. Gold is the standard
of business throughout the civilized world. Until it becomes again
the standard among us, we are not, according to the familiar phrase
of President Lincoln, in “practical relation” with the civilized
world. We are States out of the great Union. Our currency has the
stamp of legality at home, but it is worthless abroad. In all foreign
transactions we are driven to purchase gold at a premium, or to adopt
a system of barter which belongs to the earlier stages of commerce.
Corn, wheat, and cotton are exchanged for the products we desire, and
this traffic is the coarse substitute for that refined and plastic
system of exchanges which adapts itself so easily to all the demands of
business. Commerce with foreign powers is prosecuted at an incalculable
disadvantage. Our shipping, which in times past has been the pride of
the Nation, whitening every sea with its sails, is reduced in number
and value. Driven from the ocean by pirate flags during the Rebellion,
it cannot struggle back to its ancient supremacy until the accustomed
laws of trade once more resume their rule.

       *       *       *       *       *

There are few who will deny the transcendent evil which I have set
forth. There are few who will advocate inconvertible paper as currency.
How shall the remedy be applied? On this question, so interesting to
the business and good name of the country, there are theories without
number,--some so ingenious as to be artificial rather than natural.
What is natural is simple; and I am persuaded that our remedy must be
of this character.

The legal-tender note, which we wish to expel from our currency, has
two different characters: first, as mere currency, for use in the
transactions of business; and, secondly, as real value, from the
assurance that ultimately it will be paid in coin, according to its
promise. These two different characters may be sententiously expressed
as _availability_ and _convertibility_. The notes are now available
without being convertible. Our desire is to make them convertible,--in
other words, the equivalent of coin in value, dollar for dollar. On the
1st of June last past these notes were $388,675,802 in amount.

Discarding theories, however ingenious, and following Nature, I call
attention to a few practical points, before reverting to those cardinal
principles applicable to this subject, from which there can be no
appeal.

_First._ The present proposition for funding is an excellent measure
for this purpose, being at once simple and practical: not that it
contains any direct promise for the redemption of our currency, but
because it places the national debt on a permanent footing at a smaller
interest than is now paid. By this change three things essential to
financial reconstruction are promoted: economy, stability, and national
credit. With these once established, specie payments cannot be long
postponed.

_Secondly._ Another measure of immediate value is _the legalization of
contracts in coin_, so that henceforth all agreements made in coin may
be legally enforced in coin or its equivalent. This would establish
specie payments wherever parties desired, and to this extent begin the
much-desired change. Contracts in coin would increase and multiply,
until the exception became the rule. There would for a time be _two
currencies_; but the better must gradually prevail. The essential
equity of the new system would be apparent, while there would be a
charm in once more looking upon familiar faces long hidden from
sight, as the hoarded coin came forth. Nor can any possible injury
ensue. The legalization is applicable only to future contracts, as the
parties mutually agree. Every citizen in this respect would be a law
to himself. If he chose in his own business to resume specie payments,
he could do so. There would be a voluntary resumption by the people,
one by one. But this influence could not be confined to the immediate
parties. Beyond the contagion of its example, there would be a positive
necessity on the part of the banks that they should adapt themselves to
the exigency by the substitution of proper commercial equivalents; and
thus again we take another step in specie payments.

_Thirdly._ Another measure of practical value is _the contraction of
the existing currency_, so as to bring it on a par with coin, dollar
for dollar. Before alluding to any of the expedients to accomplish
this precious object, it is important to arrive at some idea of the
amount of currency of all kinds required for the business of the
country. To do this, we may look at the currency before the Rebellion,
when business was in its normal condition. I shall not occupy space
with tables, although they are now before me, but content myself with
results. From the official report of the Treasury it appears that on
the 1st of January, 1860, the whole active circulation of the country,
including bank circulation, bank deposits available as currency, specie
in bank, specie in Treasury, estimated specie in circulation, and
deducting reserves, amounted to $542,097,264. It may be assumed that
this sum-total was the amount of currency required at the time. From
the same official tables it appears that on the 1st of October, 1867,
the whole active circulation of the country, beginning with greenbacks
and fractional currency, and including all the items in the other
account, amounted to $1,245,138,193. Thus from 1860, when the currency
was normal, to 1867, some time after the suspension of specie payments,
there was an increase of one hundred and thirty per cent. Omitting bank
deposits for both years, the increase was one hundred and forty-six per
cent. Making due allowance for the increase of population, business,
and Government transactions, there remains a considerable portion of
this advance which must be attributed to the abnormal condition of
the currency. I follow various estimates in putting this at sixty or
seventy per cent., representing the difference of prices at the two
different periods, and the corresponding excess of currency above the
requirements of the country. Therefore, for the reduction of prices,
there must be a reduction of the currency; and this must be to the
amount of $300,000,000. So it seems, unless these figures err.

Against the movement for contraction, which is commended by its
simplicity and its tendency to a normal condition of things, we have
two adverse policies,--one, the stand-still policy, and the other,
worse yet, the policy of inflation. By the first the currency is
left _in statu quo_,--stationary,--subject to the influence of other
conditions, which may operate to reduce it. Better stand still than
move in a wrong direction. By the latter the currency is enlarged at
the expense of the people,--being at once a tax and a derangement of
values. You pamper the morbid appetite for paper money, and play the
discarded part of John Law. You blow up a bladder, without thinking
that it is nothing but a bladder, ready to burst. As the volume of
currency is increased, the purchasing power of each dollar is reduced
in proportion. As you add to the currency, you take from the dollar.
You do little more than mark your goods at higher prices, and imagine
that they have increased in value. Already the price is too high. Do
not make it higher. Already the currency is corrupted. Do not corrupt
it more. The cream has been reduced to skimmed milk. Do not let it be
reduced to chalk and water. Let there be national cream for all the
people.

Obviously any contraction of the currency must be conducted with
caution, so as to interfere as little as possible with existing
interests. It should be understood in advance, so that business may
adapt itself to the change. Once understood, it must be pursued wisely
to the end. I call attention to a few of the expedients by which this
contraction may be made.

1. Any holder may have liberty to fund his greenbacks in bonds, as he
may desire; so that, as coin increases, they will be merged in the
funded debt, and the currency be reduced in corresponding proportion.

2. Greenbacks, when received at the Treasury, may be cancelled, or they
may be redeemed directly, so far as the coin on hand will permit.

3. Greenbacks may be converted into compound-interest notes, to be
funded in monthly instalments, running over a term of years, thus
reaching specie payments within a brief period.

4. Another expedient, more active still, is the application of the coin
on hand to the payment of greenbacks at a given rate,--say $6,000,000
a month,--selecting for payment those holders who present the largest
amount of five-twenties for conversion into the long bonds at a low
rate of interest, or shall pay the highest premium on such bonds.

I mention these as expedients, having the authority of financial
names, calculated to operate in the same direction, without violent
change or spasmodic action. Under their mild and beneficent influence
the currency would be gradually reduced, so that the final step, when
taken, would be hardly felt. With so great an object in view, I do not
doubt its accomplishment at an early day, if the Nation only wills it.
“Where there is a will, there is a way”; and never was this proverb
truer than on this occasion. To my mind it is clear, that, when the
Nation wills a currency in coin, then must this victory over the
Rebellion be won,--provided always that there is no failure in those
other things on which I have also dwelt as the _conditions precedent_
of this final victory.

       *       *       *       *       *

How vain it is to expect Financial Reconstruction until Political
Reconstruction has been completed I have already shown. How vain to
expect specie payments until the Nation has once more gained its
natural vigor, and it has become _one_ in reality as in name! Let this
be, and the Nation will be like a strong man, in the full enjoyment of
all his forces, coping with the trials of life.

There must also be peace within our borders, so that there shall be no
discord between President and Congress. Therefore, so long as Andrew
Johnson is President, the return to specie payments is impossible. So
long as a great party, called Democratic, better now called Rebel, wars
on that Political Reconstruction which Congress has organized, there
can be no specie payments. So long as any President, or any political
party, denies the Equal Rights of the freedman, it is vain to expect
specie payments. Whoso would have equity must do equity; and now, if
you would have specie payments, you must do this great equity. The rest
will follow. When General Grant said, “Let us have peace,” he said
also, “Let us have specie payments.” Among all the blessed gifts of
peace there is none more certain.

Nor must it be forgotten that there can be no departure in any way
from the requirements of Public Faith. This is a perpetual obligation,
complete in all respects, and just as applicable to the freedman as
to the bond-holder. Repudiation in all its forms, direct or indirect,
whether of the freedman or the bond-holder, must be repudiated. The
freedman and bond-holder are under the same safeguard, and there is the
same certain disaster from any repudiation of either. Unless the Public
Faith is preserved inviolate, you cannot fund your debt at a smaller
interest, you cannot convert your greenbacks, you cannot comply with
the essential terms of Reconstruction. Amid all surrounding abundance
you are poor and powerless, for you are dishonored. Do not say, as
an apology, that all should have the same currency. True as this may
be, it is a cheat, when used to cover dishonor. The currency of all
should be coin, and you should lift all the national creditors to this
solid platform rather than drag a single citizen down. A just Equality
is sought by levelling up instead of levelling down. In this way the
national credit will be maintained, so that it will be a source of
wealth, prosperity, and renown.

Pardon me, if now, by way of recapitulation, I call your attention
to three things in which all others centre. The first is the _Public
Faith_. The second is the _Public Faith_. The third is the _Public
Faith_. Let these be sacredly preserved, and there is nothing of power
or fame which can be wanting. All things will pay tribute to you,
even from the uttermost parts of the sea. All the sheaves will stand
about, as in the dream of Joseph, and make obeisance to your sheaf.
Good people, especially all concerned in business, whether commerce,
banking, or labor, our own compatriots or the people of other lands,
will honor and uphold the nation which, against all temptation, keeps
its word.




NO REPRISALS ON INNOCENT PERSONS.

SPEECH IN THE SENATE, ON THE BILL CONCERNING THE RIGHTS OF AMERICAN
CITIZENS, JULY 18, 1868.


    The Senate had under consideration the Bill concerning the
    Rights of American Citizens in Foreign States, which had
    already passed the House of Representatives. As it came from
    the House it contained the following section:--

        “SEC. 3. _And be it further enacted_, That, whenever
        it shall be duly made known to the President that any
        citizen of the United States has been arrested and is
        detained by any foreign Government, in contravention of
        the intent and purposes of this Act, upon the allegation
        that naturalization in the United States does not operate
        to dissolve his allegiance to his native sovereign, or
        if any citizen shall have been arrested and detained,
        whose release upon demand shall have been unreasonably
        delayed or refused, _the President shall be, and hereby
        is, empowered to suspend, in part or wholly, commercial
        relations with the said Government, or, in case no other
        remedy is available, to order the arrest and to detain in
        custody any subject or citizen of such foreign Government
        who may be found within the jurisdiction of the United
        States, and who has not declared his intention to become a
        citizen of the United States, except ambassadors and other
        public ministers and their domestics and domestic servants;
        and the President shall without delay give information to
        Congress of any proceedings under this Act_.”

    Mr. Sumner reported an amendment, to strike out the words in
    Italic authorizing the suspension of commercial relations and
    reprisals on persons, and substitute therefor these words:--

        “It shall be the duty of the President forthwith to report
        to Congress all the circumstances of any such arrest and
        detention, and any proceedings for the release of the
        citizen so arrested and detained, that Congress may take
        prompt action to secure to every citizen of the United
        States his just rights.”

    On this amendment Mr. Sumner spoke as follows.

MR. PRESIDENT,--Before entering upon this discussion, I wish to read a
brief telegram, which came by the cable last evening, as follows:--

    “LONDON, _July 17_.--In the House, last evening, Stanley, the
    Secretary of Foreign Affairs, made an important statement in
    answer to a question asking for information. In reply, he said
    he had already sent to the United States Government a note on
    the matter of Naturalization, the substance of which was, that
    the British ministry was ready to accept the American views of
    the question. He therefore thought a misunderstanding between
    the two nations impossible.”

Add to this important information the well-known fact, that the United
States have already ratified treaties with North Germany and Bavaria,
and that we are engaged in negotiating treaties with other powers, for
the settlement of this vexed question, and we may surely approach this
discussion without any anxiety, except for the honor of our country.

Permit me to say, at the outset, that the declared object of the
present bill is all lost in certain special features, which are nothing
less than monstrous, and utterly unworthy of a generous Republic hoping
to give an example to mankind. Surely, Sir, it is noble to reach out
and protect the rights of the citizen at home and abroad; but no zeal
in this behalf should betray us into conduct which cannot be regarded
without a blush.

This bill proposes to confer upon the President prodigious powers,
such as have never been lavished before in our history. They are
without precedent. On this account alone they should be considered
carefully; and they should not be granted, unless on good reason. If
it be shown that they are not only without precedent, but that they
are inconsistent with the requirements of modern civilization, that
they are of evil example, and that they tend directly to war,--then, on
this account, we should hesitate still more before we venture to grant
them. Not lightly can a nation set itself against the requirements of
civilization; not lightly can a nation do an act of evil example; not
lightly can a nation take any step toward war. The whole business is
solemn. Nothing graver could challenge the attention of the Senate.

Two powers are conferred upon the President: first, to suspend
commercial relations with a foreign government, and, secondly, to
arrest and detain in custody any subject of a foreign government
found within the jurisdiction of the United States. The suspension of
commercial relations, and the arrest of innocent foreigners, simply
at the will of the President,--these are the two powers. It would be
difficult to imagine greater.

We have had in our own history the instance of an embargo, when all our
merchant ships were kept at home and forbidden to embark in foreign
commerce. That measure was intended to save our commerce from insult
and our sailors from impressment. This was done by Act of Congress.
I am not aware of any instance, in our own history or in the history
of any other country, where there has been a suspension of commercial
relations with any foreign power, unless as an act of war. The moment
war is declared, there is, from the fact of war, a suspension of
commercial relations with the hostile power. Commerce with that power
is impossible, and there can be no contract even between the citizens
or subjects of the two powers. But this is war. It is now proposed
to do this same thing and to call it peace. The proposition is new,
absolutely new. Not an instance of history, not a phrase in the Law
of Nations, sanctions it. I need not say how little congenial it is
with the age in which we live. The present object of good men is to
make war difficult, if not impossible. Here is a way to make war
easy. To the President is given this alarming power. In Europe war
proceeds from the sovereign: in England, from the Queen in Council;
in France, from Louis Napoleon. This is according to the genius of
monarchies. By the Constitution of our Republic it is Congress alone
that can declare war. And yet by this bill One Man, in his discretion,
may do little short of declaring war. He may hurl one of the bolts of
war, and sever the commercial relations of two great powers. Consider
well what must ensue. Suppose the bolt is hurled at England. All that
various commerce on which so much depends, all that interchange of
goods which contributes so infinitely to the wants of each, all that
shipping and all those steamers traversing the ocean between the two,
all the multitudinous threads of business by which the two peoples are
woven together, warp and woof, as in a mighty loom,--all these must be
severed.

The next power conferred on the President is like unto the first in
its abnormal character. It is nothing less than authority, in his
discretion, to make reprisals, by seizing innocent foreigners happening
to be in the United States. The more this is considered, the more it
must be regarded with distrust.

Reprisals belong to the incidents of war in the earlier ages, before
civilization had tempered the rudeness of mankind. All reprisals are of
doubtful character. Reprisals on persons are barbarous. I do not say,
that, according to the received rights of war, some terrible occasion
may not arise even for this barbarous agency; but I insist that it is
frowned upon by all the best authorities even in our own country, that
it is contrary to enlightened reason, and that it is utterly without
any recent example. Admitting that such reprisals are not entirely
discarded by writers on the Law of Nations, they are nevertheless
condemned. By the rights of war, as once declared, the lives of
prisoners taken on the field of battle were forfeit. Early history
attests the frequency of this bloody sacrifice. Who now would order the
execution of prisoners of war? The day has passed when any such outrage
can be tolerated. But it is hardly less barbarous to seize innocent
persons whom business or pleasure has brought within your peaceful
jurisdiction, under the guaranty of the Public Faith.

I am unwilling to occupy time on a matter which is so clear in the
light of modern civilization, and of that enlightened reason which is
the handmaid to civilization. And yet the present effort will justify
me in exposing the true character of reprisals, as seen in the light of
history.

Reprisals were recognized by the Greeks, but disowned by the Romans.
According to Bynkershoek, who is so much quoted on the Law of Nations,
“there is no instance of such wickedness in the history of that
magnanimous people; neither do their laws exhibit the least trace of
it.”[239] This is strong language, and is in itself a condemnation of
this whole agency. It is of the more weight, as the author is our
austerest authority on questions of the Law of Nations, giving to the
rights of war the strongest statement. According to him, reprisals
are nothing less than “wickedness” (_improbitas_), and unworthy of a
magnanimous people. During the Middle Ages, and afterwards, reprisals
were in vogue; but they never found favor. They have been constantly
reprobated. Even when formally sanctioned, they have been practically
excluded by safeguards and conditions. In a treaty between Cromwell and
the States-General there was a stipulation against reprisals, “unless
the prince whose subject shall conceive himself to have been injured
shall first lay his complaint before the sovereign whose subject is
supposed to have committed the tortious act, and _unless that sovereign
shall not cause justice to be rendered to him within three months after
his application_.”[240] This stipulation was renewed under Charles the
Second.[241] The same principle was declared by the Grand Pensionary,
De Witt, who, in the name of the United Provinces, protested, “that
reprisals cannot be granted, _except in case of an open denial of
justice_,” and “that, even in case of a denial of justice, a sovereign
cannot empower his subjects to make reprisals, _until he has repeatedly
demanded justice for them_.”[242] A similar rule was also declared in
the famous letter to the King of Prussia, in the case of the Silesian
loan, written by Murray, afterward Lord Mansfield, and much praised by
Montesquieu and by Vattel.[243] Here it is said: “The Law of Nations,
founded upon justice, equity, convenience, and the reason of the thing,
and confirmed by long usage, does not allow of reprisals, except in
case of violent injuries, directed or supported by the State, and
justice absolutely denied, _in re minime dubia_, by all the tribunals,
and afterwards by the prince.”[244] This is clear and strong. I might
quote authorities without end to the same point. I content myself
with adding the words of General Halleck, who, after saying, in his
admirable manual, that “reprisals bring us to the awful confines of
actual war,” proceeds to lay down the rule, that reprisals, even on
property, can be only “where justice has been plainly denied or most
unreasonably delayed.”[245] This rule commends itself as proper and
just. It is your duty to apply it on the present occasion. But, in
the face of the authorities in our own country, judges, jurists,
publicists, and commentators, in long array, according to whom our own
claim of allegiance is coincident with that of England,--and then,
again, in face of the well-known and much-heralded disposition of
foreign powers, including England, to settle this whole question by
treaty, is it not absurd to say that here is a case for reprisals of
any kind?

In the early days reprisals were directed against persons as well as
property. Even against property it was done with hesitation, only in
cases free from all doubt, and after ample appeal to the sovereign for
justice. Against persons it was done very rarely. Grotius, our greatest
master, who brought the rules of International Law to the touchstone of
reason, asserts that all reprisals are vindicated by custom rather than
by Nature. His language is, that this rule “is not indeed authorized
by Nature, but generally received by custom.”[246] Since then the
tendency has been to a constant mitigation of this pretension, even as
regards property. Without burdening this discussion with cases, which
are numerous, I give a summary of Wheaton in these words: “It appears
to be the modern rule of international usage, that property of the
enemy found within the territory of the belligerent state, or debts due
to his subjects by the Government or individuals, at the commencement
of hostilities, are not liable to be seized and confiscated as prize of
war.”[247] This rule, which is applicable to the condition of things
on the breaking out of war, attests the care with which the modern Law
of Nations watches the rights of individuals, and how it avoids making
them suffer. Thus even debts are not liable to seizure. How much more
should an innocent person be exempt from any such outrage!

It is when we consider the modern rule with regard to persons, instead
of property, that we are impressed still more by its benignity. Here I
quote, first a British authority, and then an American. Mr. Phillimore,
the author of the very elaborate and candid treatise on the Law of
Nations, so full of various learning, after admitting that reprisals,
“strictly speaking, affect the persons as well as the goods,” proceeds
to say, that, “in modern times, however, they have been chiefly
confined to goods”; and then adds, in words worthy of consideration
now, that “it is to be hoped that the reprisal of persons has fallen,
with other unnecessary and unchristian severities, into desuetude; _and
certainly, to seize travellers, by way of reprisal, is a breach of the
tacit faith pledged to them by the State, when they were allowed to
enter her borders_.”[248] The same enlightened conclusion is expressed
by Dana, in his excellent notes to Wheaton, as follows: “The right of
making reprisals is not limited to property, but extends to persons;
_still, the practice of modern times discountenances the arrest and
detention of innocent persons strictly in the way of reprisal_.”[249]
Thus do British and American publicists concur in homage to a common
civilization.

If we look at the reason of the modern rule which spares persons, we
shall find it in two different considerations, each of controlling
authority: first, that an innocent person cannot be seized in a foreign
country without a violation of the Public Faith; and, secondly, that no
private individual can be justly held responsible for the act of his
Government. On the first head Vattel speaks as follows: “The sovereign
who declares war can no more detain the subjects of the enemy who are
found in his states at the time of the declaration than he can their
effects. _They have come into his dominions on the Public Faith._ In
permitting them to enter his territories and continue there he tacitly
promised them full liberty and full security for their return.”[250]
In the same sense Halleck says, “Travellers and passing guests are in
general excepted from such liability.”[251] Here again Grotius speaks
with the authority of a Christian lawgiver, saying that by the Law of
Nations there can be no reprisals “on travellers or sojourners.”[252]
The other reason was assigned by Mr. Webster, in his correspondence
with the British Government in relation to the “Caroline.” The British
Government having acknowledged the act of McLeod in burning this vessel
as their act, Mr. Webster at once declared, that, after this avowal,
the individuals engaged in it could not be held personally responsible,
and he added words worthy of memory at this juncture: “The President
presumes that it can hardly be necessary to say that the American
people, not distrustful of their ability to redress public wrongs by
public means, _cannot desire the punishment of individuals, when the
act complained of is declared to have been an act of the Government
itself_.”[253] Weighty words, by which our country is forever bound.
The same principle is adopted by Halleck, in his text-book, when he
says, “No individual is justly chargeable with the guilt of a personal
crime for the act of the community of which he is a member.”[254] All
these authorities furnish us the same lesson, and warn against the
present proposition. Shall we at the same time violate the Public
Faith and wreak a dishonorable vengeance on an innocent traveller or
sojourner, making him the scapegoat of his country? Shall we do this
outrage to the stranger within our gates?

Another argument may be found in the extent to which reprisal on
persons has been discarded by modern precedents. It is denounced,
not only by authority, but also by practice. I have already said
that the proposition to suspend commercial relations is without
an example in history. The other proposition is without example
since the hateful act of the first Napoleon, condemned afterward by
himself, when, at the breaking of the short-lived Peace of Amiens, he
seized innocent Englishmen who happened to be in France, and detained
them as prisoners, precisely as is now proposed under the present
bill. Among the numerous victims of this tyrannical decree was Lord
Elgin, the father of the late Sir Frederick Bruce, on his return
from Constantinople, where he had been ambassador. There was also an
ingenious scholar, of feeble health, but exquisite attainments, Joseph
Forsyth, author of one of the best books ever written on Italy.[255]
He, too, was seized. In the preface to his admirable work his family
have recorded the outrage. Read it, if you would know the judgment that
awaits such a transaction. There is also another record in the pages of
the English historian who has pictured the events of that time.

    “This declaration of war was immediately followed by an act as
    unnecessary as it was barbarous, and which contributed more,
    perhaps, than any other circumstance to produce that strong
    feeling of animosity against Napoleon which pervaded all
    classes of the English during the remainder of the contest. Two
    French vessels had been captured, under the English letters
    of marque, in the Bay of Audierne, and the First Consul made
    it a pretence for ordering the arrest of all the English then
    travelling in France between the ages of eighteen and sixty
    years. Under this savage decree, unprecedented in the annals
    of modern warfare, above ten thousand innocent individuals,
    who had repaired to France in pursuit of business, science, or
    amusement, on the faith of the Law of Nations, which never
    extended hostilities to persons in such circumstances, were at
    once thrown into prison, from whence great numbers of them were
    never liberated till the invasion of the Allies in 1814.”[256]

Napoleon himself, at a later day, when reason resumed its sway,
condemned the act. In his conversations at St. Helena with Las Cases,
he said: “The greater part of these English were wealthy or noble
persons, who were travelling for their amusement. The more novel the
act was, _the more flagrant its injustice_, the more it answered my
purpose.”[257] Here, then, was an admission that the act was at once
novel and unjust. The generals that surrounded him at the time most
reluctantly enforced it. From the Memoirs of the Duchess D’Abrantès,
we learn how poignantly her gallant husband, Junot, took it to heart
and protested. He was unwilling to have anything to do with such an
infamy. Recovering at last from the stupor caused by the order, the
brave soldier said: “My General, you know not only my attachment to
your person, but my absolute devotion to everything which concerns
you. It is that devotion which induces me to hesitate at obeying your
orders, before imploring you to take a few hours to reflect on the
measure which you have now commanded.… Demand my blood; demand my life;
I will surrender them without hesitation; but to ask a thing which
must cover us with---- … I am sure, that, when you come to yourself,
and are no longer fascinated by those around you, who compel you to
violent measures, you will be of my opinion.”[258] Every word of this
earnest expostulation may now be justly addressed to the Senate. You,
too, Senators, should you unhappily yield to those who now insist upon
violent measures, will regret the surrender. You will grieve that your
country has been permitted through you to fall from the great example
which it owes to mankind. Save your country; save yourselves.

Suppose the law is passed, and the authority conferred upon the
President. Whom shall he seize? What innocent foreigner? What trustful
traveller? What honored guest? It may be Mr. Dickens, or Mr. Trollope,
or Rev. Newman Hall; or it may be some merchant here on business,
guiltless of any wrong and under the constant safeguard of the Public
Faith. Permit me to say, Sir, that, the moment you do this, you will
cover the country with shame, of which the present bill will be the
painful prelude. You will be guilty of a barbarism kindred to that of
the Abyssinian king Theodorus. You will degrade the national name,
and make it a byword of reproach. Sir, now is the time to arrest this
dishonor. See to it by your votes that it is impossible forever.

Sir, it is hard to treat this pretension with composure. Argument,
denunciation, and ridicule are insufficient. It must be trampled under
foot, so as to become a hissing and a scorn. With all the granting
of legislation, it is solemnly proposed that good men shall suffer
for acts in which they had no part. Innocence is no excuse against
the present pretension. The whole attempt is out of time; it is an
anachronism, no better than the revival of the _Prügel-knabe_, who
was kept at the German courts of former days to receive the stripes
which the prince had merited for his misdeeds. Surely, if anybody is
to suffer, let it be the offending Government, or those who represent
it and share its responsibilities, instead of private persons, who
in no way represent their Government, and may condemn it. Seize the
ambassador or minister. You will then audaciously violate the Law of
Nations. The absurdity of your act will be lost in its madness. In the
seizure which is now proposed there will be absurdity to make the world
shake with laughter, if for a moment it can cease to see the flagrant
cruelty and meanness of your conduct.

    A debate ensued, which ran into the next day, in the course of
    which Mr. Conness, of California, insisted that the striking
    out of the reprisals clause would impair the efficiency of
    the bill, and make it nothing but “air.” At the close of the
    debate, immediately before the vote on the amendment, Mr.
    Sumner summed up his objection as follows:--

My objection to the text of the bill which it is proposed to strike out
is, that it is a proposal of unutterable barbarism, which, if adopted,
would disgrace this country.

    The question, being taken by yeas and nays, resulted,--Yeas 30,
    Nays 7; as follows:--

    YEAS,--Messrs. Anthony, Buckalew, Cattell, Chandler, Cole,
    Conkling, Corbett, Cragin, Davis, Fessenden, Harlan, Harris,
    Henderson, Howe, Kellogg, McDonald, Morgan, Morrill of Vermont,
    Osborn, Patterson of New Hampshire, Patterson of Tennessee,
    Pomeroy, Rice, Sumner, Trumbull, Van Winkle, Vickers, Willey,
    Williams, and Wilson,--30.

    NAYS,--Messrs. Conness, Nye, Sprague, Stewart, Thayer, Tipton,
    and Whyte,--7.

    For the section thus amended, Mr. Williams, of Oregon, moved a
    substitute; whereupon the debate was resumed, and Mr. Sumner
    spoke again.

The amendment of the Senator, and the remarks that he has made,
it seems to me, go on a mistaken hypothesis. They accept the idea
that there has been some failure on the part of our Government with
reference to citizens abroad.

    MR. WILSON [of Massachusetts]. Is not that true?

MR. SUMNER. I think it is not true; and if time would allow now, I
could go into the evidence and show that it is not true. I have the
documents here. But we are entering upon this question to-night with
an understanding, almost a compact, that there shall be no debate. I
do not wish to break that compact. But here are documents lying on my
table containing all the facts of record with regard to every American
citizen who has been taken into custody abroad. Examine that record,
and you will see how strenuous and steadfast our Government has been.

Permit me to say that the argument of the Senator from Oregon [MR.
WILLIAMS] proceeds on a misunderstanding of the facts. There is no
occasion now for any such legislative prompting to the Government of
the United States.

    MR. WILLIAMS. I should like to ask the Senator a question.

MR. SUMNER. Certainly.

    MR. WILLIAMS. Why is it, if everything has been so smooth and
    so placid upon this subject, that both of the political parties
    of this country have seen proper to put in their platforms
    resolutions in reference to the rights of American citizens
    abroad?

MR. SUMNER. I have not said that things were placid or smooth; but I
have said that our Government has been strenuous and steadfast in the
maintenance of the rights of American citizens, whether native-born
or naturalized; and the record will show the truth of what I say.
Where has there been a failure? Has it been in Germany? Read the
correspondence, running now over several years, between the United
States and the different powers of Germany, and see the fidelity with
which the rights of our naturalized citizens have been maintained there.

I wish to be as brief as possible. If the Senator will take the trouble
to read the documents on the table, he will see that among all the
numerous applications made by the United States to the Government of
Prussia, the leading power of Germany, there is hardly an instance
where this power did not meet us kindly and generously. I speak
according to the record. I have been over every one of these cases; and
I must say, as I read them I felt a new gratification in the power of
my country, which made itself felt for the protection of its citizens
in those distant places, and also a new sense of the comity of nations.
A letter went forth from one of our ministers, and though at that time
this difficult question of expatriation was still unsettled, yet, out
of regard to our country, or out of regard, it might be, sometimes, to
the personal character of our minister, the claim was abandoned. You
can hardly find an instance----

    MR. CONNESS rose.

MR. SUMNER. Will the Senator let me finish my sentence?

    MR. CONNESS. Certainly.

MR. SUMNER. You can hardly find an instance in that voluminous
correspondence where the claim has been persisted in on the part of
the Prussian Government. The abstract question was left unsettled; but
the individual was left free, without claim of allegiance or military
service. All this was anterior to the treaty, by which this whole
question is happily settled forever.

But it is not my purpose to discuss the conduct of foreign Governments.
My simple aim is to show the conduct of our own. That was the point
with which I began. I said that it needed no quickening such as the
Senator from Oregon proposes to apply. There is no evidence that our
Government has not been persistent and earnest for the protection of
its citizens abroad, whether native-born or naturalized, and I alluded
to Prussia only by way of illustration. Pass that by. We have then the
greater and more complex case of England. But I would rather not enter
upon this. Here are the documents on my table, the passages all marked,
which would illustrate the conduct of the British Government and the
British tribunals toward every one of these persons whose names have
been brought in question. I do not wish to go into this question. I
should be misunderstood; and it is not necessary. I am speaking now of
the conduct of our own Government, rather than of the conduct of any
other Government. Mark, Sir, my reply to the Senator from Oregon was,
that our Government did not need any additional power or any additional
impulse to activity in this behalf. Already it has the power to do
everything permitted by the Law of Nations, and it ought not to do
anything else.

    Mr. Conness followed in support of the bill, and to a
    correction from Mr. Sumner retorted:--

        “The honorable Senator would be very quick to demand
        the interference of all the powers of this Government
        in behalf of an arrested American citizen, if he were
        black. But, Sir, those arrested happen to be of another
        color,--not a color which appeals to his sympathies, but
        a color that allows him to belittle their arrest and
        incarceration,--that enables him to say here in the Senate
        that our Government have done everything that they could
        do, all that was necessary. It is true in his judgment,
        I have no doubt; for, if you only write letters, if you
        only publish and utter productions of the brain, if you
        only present views, the honorable Senator is satisfied.
        Those are his means, except when the progress through the
        thoroughfares of the city or the country of an American
        citizen of African descent is involved. Then views are at
        once thrown to the dogs, and he demands the interference of
        the Government, the police authority; if it be a railroad
        company, repeal their acts of incorporation! No matter how
        much capital stands in the way,--it may be $10,000,000 that
        is affected,--repeal their acts at once! How dare they
        impiously set up their tyranny over one human being who is
        stamped with American citizenship?… The law as proposed to
        be passed under the direction of the honorable Chairman of
        the Committee on Foreign Relations amounts to nothing.…
        I hope, without detaining the Senate any longer, that we
        shall not add to our too great delay upon these questions
        the offence and insult that the passage of this Act would
        be as proposed by the Committee.[259]

    To this attack Mr. Sumner replied as follows:--

I hesitate very much to say another word; and yet I think the Senate
will pardon me, if I make a brief reply to the charge, so absolutely
unjust, of the Senator from California. He throws upon me the reproach
of indifference to foreigners. Sir, I deny the imputation, and
challenge comparison on this head with any Senator on this floor. Here
I know that I am without blame. Sir, you do not forget that more than
ten years ago there was a storm that passed over this country which
had a name more familiar than polite: I mean Know-nothing-ism. It was
everywhere, and enveloped my own State. At that time I had the honor
of holding the position which I now hold. Did I yield to this storm,
when it was carrying all before it? Sir, at that time I went down to
Faneuil Hall, and in the presence of one of the largest audiences
ever there assembled, and knowing well the prevailing sentiment, I
made a speech vindicating the rights of emigrants to our country and
promising them welcome. I have that speech here now, and I will read a
few sentences from it. This was on the 2d of November, 1855,--nearly
thirteen years ago. Pardon me for reading this record of other days;
but I am justified by the attacks to which I have been exposed. If
any foreign-born citizen is disposed to hearken to the Senator from
California impeaching me, I ask him to bear in mind how I stood for his
rights at another time, when there were fewer ready to stand for them
than now. I read from this forgotten speech, as reported at that time.

    Mr. Sumner read the first two paragraphs on the thirteenth page
    of the pamphlet edition.[260]

Such was my argument for the rights of the foreign-born among us. To
all of them I offered such welcome as I could:--

    “There are our broad lands, stretching towards the setting
    sun; let them come and take them. Ourselves children of the
    Pilgrims of a former generation, let us not turn from the
    Pilgrims of the present. Let the home founded by our emigrant
    fathers continue open in its many mansions to the emigrants of
    to-day.”[261]

Sir, those were the words which I uttered in Faneuil Hall at a time
when the opposition to foreigners was scouring over the whole country.
Others yielded to that tempest, but I did not yield. All my votes
in this Chamber, from the first day that I entered it down to this
moment, have been in the same direction, and for that welcome which
I thus early announced. Never have I missed an occasion to vote for
their protection; never shall I miss any such occasion. I was the
first in the Senate to announce the essential incompatibility between
the claim of perpetual allegiance and the license of unlimited
emigration which we had witnessed, saying that every Irishman or German
leaving with the consent of his Government was a living witness to
the hollowness of the original pretension. And now I am most anxious
to see expatriation a law as well as a fact. If I do not adopt the
expedients proposed, it is because I regard them as less calculated to
produce the much-desired result than other means equally at hand, to
the end that the rights of our naturalized citizens may find adequate
safeguard everywhere. The present bill can do little good, and may
do harm. It will not protect a single citizen; but it may be a drag
on those pending negotiations by which the rights of all will be
secured. Too studious of the Law of Nations, perhaps, to be willing to
treat it with distrust or neglect, I look to that prevailing agency
rather than to the more limited instrumentality of Municipal Law. It
is the province of Municipal Law to determine rights at home,--how a
foreign-born person may be naturalized in our country,--how he may be
admitted to all the transcendent privileges of American citizenship;
but it belongs to another system of law to determine what shall be his
privileges, should he return to the country which gave him birth. We
may, by our declarations, by our diplomacy, by our power, do much; but
it is by our treaties that we shall fix all these rights in adamant.
The Senator seems to have no higher idea than to write them in the
fleeting passions of party. My vote will never be wanting to elevate
them above all such fitful condition, and to place them under the
perpetual sanction of International Law,--the only law which can bind
two different powers. Sir, the Senator from California shall not go
before me; he shall not be more swift than I; he shall not take one
single step in advance of me. Be the person Irish or German or African
or Chinese, he shall have from me the same equal protection. Can the
Senator say as much?




THE CHINESE EMBASSY, AND OUR RELATIONS WITH CHINA.

SPEECH AT THE BANQUET BY THE CITY OF BOSTON TO THE CHINESE EMBASSY,
AUGUST 21, 1868.


    The year 1868 was memorable for the Chinese Embassy, with
    Hon. Anson Burlingame at its head, which, arriving first at
    Washington by the way of San Francisco, negotiated a treaty
    with the United States, and then visited Europe. The abundant
    hospitality with which it was received throughout the United
    States was marked at Boston by a distinguished reception and
    entertainment on the part of the municipal authorities. August
    20th, the Embassy was received by Hon. Nathaniel B. Shurtleff,
    Mayor, and escorted in public procession through the principal
    streets, and with the customary diplomatic salutes, to the
    Parker House, where they were lodged as the guests of the city.
    The next day at noon they were publicly received at Faneuil
    Hall, which was decorated for the occasion. In the evening
    they were entertained at a banquet at the St. James Hotel,
    where were present about two hundred and twenty-five gentlemen,
    including the City Government.

    The company is thus described in the official report:--

        “Hon. Nathaniel B. Shurtleff, Mayor, presided. On his right
        were seated Hon. Anson Burlingame, Chief of the Embassy;
        His Excellency Alexander H. Bullock, Governor of the
        Commonwealth; Teh Lao-yeh, English Interpreter attached to
        the Embassy; Hon. Charles Sumner, Chairman of the Committee
        on Foreign Relations of the United States Senate; Hon.
        Caleb Cushing; Major-General Irwin McDowell, U. S. A.;
        Commodore John Rodgers, U. S. N.; Charles G. Nazro, Esq.,
        President of the Board of Trade. On the left of the Mayor
        were seated Chih Ta-jin, Associate Minister; Mr. McLeavy
        Brown, Secretary to the Embassy; Sun Ta-jin, Associate
        Minister; M. Émile Dechamps, Secretary to the Embassy; Fung
        Lao-yeh, English Interpreter; Ralph Waldo Emerson, LL.D.;
        Rev. George Putnam, D. D.; Mr. Edwin P. Whipple.

        “Among the other distinguished guests present were: Dr.
        Oliver Wendell Holmes; Hon. Nathaniel P. Banks, Hon.
        George S. Boutwell, and Hon. Ginery Twichell, Members
        of Congress; Rev. Thomas Hill, D. D., President of
        Harvard College; Hon. George S. Hillard, United States
        District Attorney; Hon. George O. Brastow, President of
        the Senate; Hon. Harvey Jewell, Speaker of the House
        of Representatives; Brevet Major-General H. W. Benham,
        and Brevet Major-General J. G. Foster, U. S. Engineer
        Corps; Major-General James H. Carleton, U. S. A.; Brevet
        Brigadier-General Henry H. Prince, Paymaster U. S. A.;
        Major-General James A. Cunningham, Adjutant-General;
        Hon. Henry J. Gardner, Ex-Governor of the Commonwealth;
        Hon. Josiah Quincy; Hon. Frederic W. Lincoln, Jr.; Dr.
        Peter Parker, formerly Commissioner to China; Hon. Isaac
        Livermore; Sr. Frederico Granados, Spanish Consul; Mr. G.
        M. Finotti, Italian Consul; Mr. Joseph Iasigi, Turkish
        Consul; Hon. Marshall P. Wilder, President of the Board
        of Agriculture; Rev. N. G. Clark, D. D., Secretary of
        the Board of Foreign Missions; and many of the leading
        merchants and professional men of Boston.”

    At the banquet speeches were made by the Mayor, Mr. Burlingame,
    Governor Bullock, Mr. Sumner, Mr. Cushing, Mr. Emerson, General
    Banks, Mr. Nazro, and Mr. Whipple.

    The Mayor announced as the fifth regular toast, “The
    Supplementary Treaty with China,” and called upon Mr. Sumner to
    respond. Mr. Burlingame had already said in his speech, while
    declining any elaborate exposition of the Treaty: “No, Sir,--I
    leave the exposition of that treaty to the distinguished
    Senator on my right, who was its champion in the Senate, and
    who procured for it a unanimous vote.”

    Mr. Sumner said:--

MR. MAYOR,--I cannot speak on this interesting occasion without first
declaring the happiness I enjoy at meeting my friend of many years in
the exalted position he now holds. Besides this personal relation, he
was also an honored associate in representing the good people of this
community, and in advancing a great cause, which he championed with
memorable eloquence and fidelity. Such are no common ties.

The splendid welcome now offered by the municipal authorities of Boston
is only a natural expression of prevailing sentiments. Here his labors
and triumphs began. In your early applause and approving voices he
first tasted of that honor which is now his in such ample measure. He
is one of us, who, going forth into a strange country, has come back
with its highest trusts and dignities. Once the representative of a
single Congressional district, he now represents the most populous
nation of the globe. Once the representative of little more than a
third part of Boston, he is now the representative of more than a third
part of the human race. The population of the globe is estimated at
twelve hundred millions; that of China at more than four hundred and
sometimes even at five hundred millions.

If in this position there be much to excite wonder, there is still
more for gratitude in the unparalleled opportunity it affords. What
we all ask is opportunity. Here is opportunity on a surpassing
scale,--employed, I am sure, to advance the best interests of the
human family; and if these are advanced, no nation can suffer. Each
is contained in all. With justice and generosity as the reciprocal
rule,--and nothing else can be the aim of this great Embassy,--there
can be no limits to the immeasurable consequences. Nor can I hesitate
to say that concessions and privileges are of less consequence than
that spirit of friendship and good neighborhood, embracing alike the
distant and the near, which, once established, renders all else easy.

The necessary result of the present experiment in diplomacy will be to
make the countries it visits better known to the Chinese, and also to
make the Chinese better known to them. Each will know the other better,
and better comprehend that condition of mutual dependence which is
the law of humanity. In relations among nations, as in common life,
this is of infinite value. Thus far, I fear the Chinese are poorly
informed with regard to us. I am sure we are poorly informed with
regard to them. We know them through the porcelain on our tables, with
its lawless perspective, and the tea-chest, with its unintelligible
hieroglyphics. There are two pictures of them in the literature of
our language, which cannot fail to leave an impression. The first is
in “Paradise Lost,” where Milton, always learned, even in his poetry,
represents Satan descending in his flight

                “on the barren plains
    Of Sericana, where _Chineses_ drive
    With sails and wind their cany wagons light.”[262]

The other is in that admirable “Discourse on the Study of the Law of
Nature and Nations,” where Sir James Mackintosh, in words of singular
felicity, points to “the tame, but ancient and immovable civilization
of China.”[263] It is for us at last to enlarge these pictures, and to
fill the canvas with life.

I do not know if it has occurred to our honored guest that he is not
the first stranger who, after sojourning in this distant, unknown
land, has come back loaded with its honors, and with messages to the
Christian powers. He is not without a predecessor in his mission.
There is another career as marvellous as his own. I refer to the
Venetian Marco Polo, whose reports, once discredited as the fables
of a traveller, are now recognized among the sources of history, and
especially of geographical knowledge. Nobody can read them without
feeling their verity. It was in the latter part of the far-away
thirteenth century that this enterprising Venetian, with his father
and uncle, all merchants, journeyed from Venice, by the way of
Constantinople, Trebizond on the Black Sea, and Central Asia, until
they reached first the land of Prester John, and then that golden
country known as Cathay, where the lofty ruler, Kublaï Khan, treated
them with gracious consideration, and employed young Polo as his
ambassador. This was none other than China, and the lofty ruler,
called the Grand Khan, was none other than the first of its Mongolian
dynasty, having his imperial residence in the immense city of Kambalu,
or Peking. After many years of illustrious service, the Venetian,
with his companions, was dismissed with splendor and riches, charged
with letters for European sovereigns, as our Bostonian is charged
with similar letters now. There were letters for the Pope, the King
of France, the King of Spain, and other Christian princes. It does
not appear that England was expressly designated. Her name, so great
now, was not at that time on the visiting list of the distant Emperor.
Such are the contrasts in national life. Marco Polo reached Venice,
on his return, in 1295, at the very time when Dante, in Florence,
was meditating his divine poem, and Roger Bacon, in England, was
astonishing the age with his knowledge. These were his two greatest
contemporaries, constituting with himself the triumvirate of the
century.

The return of the Venetian to his native city was attended by incidents
which have not occurred among us. Bronzed by long residence under the
sun of the East, wearing the dress of a Tartar, and speaking his native
language with difficulty, it was some time before his friends could be
persuaded of his identity. Happily there is no question on the identity
of our returned fellow-citizen; and surely it cannot be said that
he speaks his native language with difficulty. A dinner was spread
at Venice as here at Boston, and now, after the lapse of nearly six
hundred years, the Venetian dinner still lives in glowing description.
Marco Polo, with his companions, appeared first in long robes of
crimson satin reaching to the floor, which, when the guests had washed
their hands, were changed for other robes of crimson damask, and then
again, after the first course, for other robes of crimson velvet,
and at the conclusion of the banquet, for the ordinary dress worn by
the rest of the company. Meanwhile the other costly garments were
distributed among the attendants at the table. In all your magnificence
to-night, Mr. Mayor, I have seen no such largess. Then were brought
forward the coarse threadbare garments in which they had travelled,
when, on ripping the lining and patches with a knife, costly jewels,
in sparkling showers, leaped forth before the eyes of the company, who
for a time were motionless with wonder. Then at last, says the Italian
chronicler, every doubt was banished, and all were satisfied that these
were the valiant and honorable gentlemen of the house of Polo. I do not
relate this history to suggest any such operation on the dress of our
returned fellow-citizen. No such evidence is needed to assure us of his
identity.

The success of Marco Polo is amply attested. From his habit of speaking
of “millions” of people and “millions” of money, he was known as
_Messer Millioni_, or the millionaire, being the earliest instance in
history of a designation so common in our prosperous age. But better
than “millions” was the knowledge he imparted, and the impulse he
gave to that science which teaches the configuration of the globe and
the place of nations on its face. His travels, dictated by him, were
reproduced in various languages, and, after the invention of printing,
the book was multiplied in more than fifty editions. Unquestionably
it prepared the way for the two greatest geographical discoveries of
modern times,--the Cape of Good Hope, by Vasco da Gama, and the New
World, by Christopher Columbus. One of his admirers, a French _savant_,
does not hesitate to say, that, “when, in the long series of ages,
we seek the three men who, by the magnitude and influence of their
discoveries, have most contributed to the progress of geography or
the knowledge of the globe, the modest name of the Venetian traveller
finds a place in the same line with those of Alexander the Great and
Christopher Columbus.”[264] It is well known that the imagination of
the Genoese navigator was fired by the revelations of the Venetian, and
that, in his mind, the countries embraced by his transcendent discovery
were none other than the famed Cathay, with its various dependencies.
In his report to the Spanish sovereigns, Cuba was nothing else than
Zipangu, or Japan, as described by the Venetian, and he thought himself
near a Grand Khan,--meaning, as he says, a king of kings. Columbus
was mistaken. He had not reached Cathay or the Grand Khan; but he had
discovered a new world, destined in the history of civilization to be
more than Cathay, and, in the lapse of time, to welcome the Ambassador
of the Grand Khan.

The Venetian, returning home, journeyed out of the East, westward; our
Marco Polo, returning home, journeyed out of the West, eastward. And
yet they both came from the same region: their common starting-point
was Peking. This change is typical of the surpassing revolution under
whose influence the Orient will become the Occident. Journeying
westward, the first welcome is from the nations of Europe; journeying
eastward, the first welcome is from our Republic. It remains that this
welcome should be extended, until, opening a pathway for the mightiest
commerce of the world, it embraces within the sphere of American
activity that ancient ancestral empire, where population, industry, and
education, on an unprecedented scale, create resources and necessities
on an unprecedented scale also. See to it, merchants of the United
States, and you, merchants of Boston, that this opportunity is not lost.

And this brings me, Mr. Mayor, to the Treaty, which you invited me
to discuss. But I will not now enter upon this topic. If you did not
call me to order for speaking too long, I fear I should be called
to order in another place for undertaking to speak of a treaty not
yet proclaimed by the President. One remark I will make, and take
the consequences. The Treaty does not propose much; but it is an
excellent beginning, and, I trust, through the good offices of our
fellow-citizen, the honored plenipotentiary, will unlock those great
Chinese gates which have been bolted and barred for long centuries.
The Embassy is more than the Treaty, because it prepares the way for
further intercourse, and helps that new order of things which is among
the promises of the Future.

    Mr. Burlingame’s sudden death, at St. Petersburg, February 23,
    1870, arrested the remarkable career he had begun, leaving
    uncertain what he might have accomplished for China with
    European powers, and also uncertain the possible influence he
    might have exercised with the great nation he represented, in
    opening its avenues of approach, and bringing it within the
    sphere of Western civilization.




THE REBEL PARTY.

SPEECH AT THE FLAG-RAISING OF THE GRANT AND COLFAX CLUB, IN WARD SIX,
BOSTON, ON THE EVENING OF SEPTEMBER 14, 1868.


I find a special motive for being here to-night in the circumstance
that this is the ward where I was born and have always voted, and where
I expect to vote at the coming election. Here I voted twice for Abraham
Lincoln, and here I expect to vote for Grant and Colfax. According
to familiar phrase, this is my ward. This, also, is my Congressional
District. Though representing the Commonwealth in the Senate, I am
not without a representative in the other House. Your Congressional
representative is my representative. Therefore I confess a peculiar
interest in this ward and this district.

In hanging out the national flag at the beginning of the campaign,
you follow the usage of other times; but to my mind it is peculiarly
appropriate at the present election. The national flag is the emblem
of loyalty, and the very question on which you are to vote in the
present election is whether loyalty or rebellion shall prevail. It is
whether the national flag shall wave gloriously over a united people
in the peaceful enjoyment of Equal Rights for All, or whether it shall
be dishonored by traitors. This is the question. Under all forms of
statement or all resolutions, it comes back to this. As during the war
all of you voted for the national flag, while some carried it forward
in the face of peril, so now all of you must vote for it, and be ready
to carry it forward again, if need be, in the face of peril.

As loyalty is the distinctive characteristic of our party, so is
disloyalty the distinctive characteristic of the opposition. I would
not use too strong language, or go beyond the strictest warrant of
facts; but I am obliged to say that we cannot recognize the opposition
at this time as anything else but the Rebel Party in disguise, or the
Rebel Party under the _alias_ of Democracy. The Rebels have taken the
name of Democrats, and with this historic name hope to deceive people
into their support. But, whatever name they adopt, they are the same
Rebels who, after defeat on many bloody fields, at last surrendered to
General Grant, and, by the blessing of God and the exertions of the
good people, will surrender to him again.

I am unwilling to call such a party democratic. It is not so in any
sense. It is not so according to the natural meaning of the term, for
a Democrat is a friend of popular rights; nor is it so according to
the examples of our history, for all these disown the policy of the
opposition. Thomas Jefferson was an original Democrat; but he drew with
his own hand the Declaration of Independence, which announces that
all men are equal in rights, and that just government stands only on
the consent of the governed. Andrew Jackson was another Democrat; but
he put down South Carolina treason with a strong hand, and gave the
famous toast, “The Union, it must be preserved.” These were Democrats,
representative Democrats, boldly announcing the Equal Rights of All
and the Unity of the Nation. Thus looking at the word, in its natural
bearing or in the great examples of our history, we find it entirely
inapplicable to a party which denies equal rights and palters with
Rebellion itself. Such a party is the Rebel Party, and nothing else;
and this is the name by which it should be known.

Look at the history of their leaders,--Rebels all, Rebels all. I
mention those only who take an active part. A party, like a man, is
known by the company it keeps. What a company! Here is Forrest, with
the blood of Fort Pillow still dripping from his hands; Semmes, fresh
from the Alabama, glorying in his piracies on our commerce; Wade
Hampton, the South Carolina slave-master and cavalry officer of the
Rebellion; Beauregard, the Rebel general, who telegraphed for the
execution of Abolition prisoners; Stephens, Toombs, and Cobb, a Georgia
triumvirate of Rebels; and at the head of this troop is none other than
Horatio Seymour of New York, who, without actually enlisting in the
Rebellion, dallied with it, and addressed its fiendish representatives
in New York as “friends.” A party with such leaders and such a chief is
the Rebel Party.

Such a party, so filled and permeated with treason, cannot utter any
shibboleth of loyalty. Every loyal word must stick in its throat, as
“Amen” stuck in the throat of Macbeth, after the murder of his royal
guest. Therefore, I say again, let it be called the Rebel Party. This
is a truthful designation, stamping upon the party its real character.
By this name I now summon it to judgment. If I could make my voice
heard over the Republic, it should carry everywhere this just summons.
It should go forth from this schoolhouse, traversing the land, echoing
from valley to valley, from village to village, from town to town, and
warning all who love their country against a party which is nothing but
a continuation of the Rebellion. How can such a party pretend to hang
out the national flag? I do not wonder that its Presidential candidate
has cried out in his distress, “Press the financial question!” Yes,
press anything to make the country forget the disloyalty of the
party,--anything to divert attention from the national flag, which they
would dishonor. But on the financial question, as everywhere else, they
are disloyal. Repudiation is disloyalty, early taught by Jefferson
Davis in his own State, and now adopted by the Rebel Party, North and
South.

Here I come back to the point with which I began. Hang out the national
flag! It is the flag of our country, our whole country, beaming
with all its inseparable stars, and proclaiming in all its folds
the strength, the glory, and the beauty of Union. Let that flag be
the light to your footsteps. _By this conquer!_ And surely you will
conquer. The people are not ready to join with Rebels or submit to
Rebel yoke. They will stand by the flag at the ballot-box, as they
stood by it on the bloody field. History has recorded the triumphant
election of Abraham Lincoln, as the representative of Loyalty against
Rebellion. Thank God, it will soon make the same joyful record with
regard to Grant and Colfax, the present representatives of Loyalty
against Rebellion.

Every man must do his duty, each in his way, according to his
ability,--some by voice, and others by efforts of a different kind,
but all must work and vote. The cause is that of our country and its
transcendent future, pictured in the flag. And permit me to remind you
that our Congressional District has obligations it cannot forget. It
must be true to itself and to its own example. At the last Presidential
election there was a report, which travelled all the way to Washington,
that ours was a doubtful district. On the evening of the election,
as soon as the result was known, I had the happiness of telegraphing
to the President that in this district the majority was some five
thousand for himself and Mr. Hooper. It so happened that it was the
first despatch received from any quarter announcing the triumph of that
great day. On reading it, the President remarked, with his humorous
point: “Five thousand majority! If this is a specimen of the doubtful
districts, what may we expect of the whole country?” This victory must
be repeated. There must be another five thousand majority; and let
General Grant, like Abraham Lincoln, measure from our majority the
majorities throughout the country, giving assurance that the Rebel
Party is defeated and utterly routed in its last desperate struggle.
This is Beacon Hill, the highest point of Boston, where in early days
were lighted the beacon fires which flashed over the country. The fires
which we light on Beacon Hill will be of congratulation and joy.




ENFRANCHISEMENT IN MISSOURI: WHY WAIT?

LETTER TO A CITIZEN OF ST. LOUIS, OCTOBER 3, 1868.


    The following letter appeared in the _St. Louis Democrat_.

                                           BOSTON, October 3, 1868.

  DEAR SIR,--I am pained to learn that there can be any question
  among good Republicans with regard to the enfranchisement of
  the colored race, especially as declared in the Constitutional
  Amendment now pending in Missouri. When shall this great question
  be settled, if not now? Why wait? Why prolong the agony? There is
  only one way in which it can be settled. Why not at once? All who
  vote against it only vote to continue the agitation, which will
  never end except with the establishment of the Equal Rights of
  All.

  Only in this way can the Declaration of Independence be
  vindicated in its self-evident truths. As long as men are
  excluded from the suffrage on account of color, it is gross
  impudence for any nation to say that they are equal in rights. Of
  course, men are not equal in strength, size, or other endowments,
  physical or mental; but they are equal in rights, which is what
  our fathers declared. They are equal before God, equal before the
  divine law; they should be made equal before human law. Equality
  before the Law is the true rule.

  How can any possible evil result from a rule which is so natural
  and just? There can be no conflict of races where there is no
  denial of rights. It is only when rights are denied that conflict
  begins. See to it that all are treated with justice, and there
  will be that peace which is the aspiration of good men. For the
  sake of peace I pray that this great opportunity be not lost.

  I hear a strange cry about the supremacy of one race over
  another. Of course I am against this with my whole heart and
  soul. I was against it when it showed itself in the terrible
  pretensions of the slave-master; and now I am against it, as it
  shows itself in the most shameful oligarchy of which history
  has made mention,--an oligarchy of the skin. Reason, humanity,
  religion, and common sense, all reject the wretched thing. Even
  if the whites are afraid that the blacks will become an oligarchy
  and rule their former masters, this is no reason for a continued
  denial of rights. But this inquietude on account of what is
  nicknamed “negro supremacy” is as amusing as it is incredible.
  It is one of the curiosities of history. Occupied as I am at
  this moment, I should be tempted to put aside all other things
  and journey to the Mississippi in order to look at a company of
  whites who will openly avow their fear of “negro supremacy.” I
  should like to see their pallid faces, and hear the confession
  from their own trembling lips. Such a company of whites would be
  a sight to behold. Falstaff’s sorry troops were nothing to them.

  Such foolish fears and foolish arguments cannot prevail against
  the great cause of Equal Rights. Spite of all obstacles and all
  prejudices, this truth must triumph. Was it not declared by our
  fathers? What they declared is a promise perpetually binding on
  us, their children.

  Accept my best wishes, and believe me, dear Sir, faithfully yours,

      CHARLES SUMNER.




ISSUES AT THE PRESIDENTIAL ELECTION.

SPEECH AT THE CITY HALL, CAMBRIDGE, OCTOBER 29, 1868.


    At the Republican State Convention, held at Worcester,
    September 9, 1868, of which Hon. George S. Boutwell was
    President, the following was the last resolution of the
    platform, which was unanimously adopted:--

        “That the public life of the Honorable Charles Sumner,
        during three terms of service in the Senate of the United
        States, has fully justified the confidence which has been
        successively reposed in him; that his eloquent, fearless,
        and persistent devotion to the sacred cause of Human
        Rights, as well in its early struggles as in its later
        triumphs,--his beneficent efforts, after the abolition of
        Slavery, in extirpating all the incidents thereof,--his
        constant solicitude for the material interests of the
        country,--his diligence and success, as Chairman of the
        Senate Committee on Foreign Affairs, in vindicating the
        policy of maintaining the just rights of the Government
        against foreign powers, and at the same time preserving
        peace with the nations,--all present a public record
        of rare usefulness and honor; and that his fidelity,
        experience, and honorable identification with our national
        history call for his reëlection to the high office in which
        he has rendered such illustrious service to his country and
        to mankind.”

    The report of the _Boston Daily Advertiser_ stated that
    “the reading of the resolutions was accompanied by repeated
    applause,--the last one, relating to Mr. Sumner, calling forth
    a perfect tempest of approval.”

       *       *       *       *       *

    January 19, 1869, Mr. Sumner was reëlected Senator for the
    term of six years, beginning with March 4th following, by the
    concurrent vote of the two Houses of the Legislature. The vote
    was as follows:--

            _In the Senate._

        Charles Sumner,     37
        Josiah G. Abbott,    2

            _In the House._

        Charles Sumner,    216
        Josiah G. Abbott,   15
        Nathaniel P. Banks,  1


SPEECH.

FELLOW-CITIZENS,--If I have taken little part in the present canvass,
you will do me the justice to believe that it is from no failure of
interest in the cause for which I have so often pleaded; nor is it from
any lukewarmness to the candidates. The cause is nothing less than our
country redeemed from peril and dedicated to Human Rights, so as to
become an example to mankind. The candidates are illustrious citizens,
always loyal to this great cause, both of surpassing merit, and one
of unequalled renown in the suppression of the Rebellion. In this
simple statement I open the whole case. The cause would commend any
candidates, and I might almost add that the candidates would commend
any cause.

It is only in deference to my good physician that I have thus far
forborne those customary efforts to which I was so strongly prompted;
and now I speak in fear of offending against his rules. But I am
unwilling that this contest shall close without my testimony, such as
it is, and without mingling my voice with that general acclaim which is
filling the land.

       *       *       *       *       *

Indulge me still further while for a moment I allude to myself. The
Republican State Convention has by formal resolution presented me
for reëlection to the Senate, so that this question enters into
the larger canvass. Meeting my fellow-citizens now, it would not
be out of order, I believe, nor should I depart from any of the
proprieties of my position, if I proceeded to give you an account of
my stewardship during the term of service about to expire. But when
I consider that this extends over six busy years, beginning while
the Rebellion still raged and continuing through all the anxious
period of Reconstruction,--that it embraces nothing less than the
Abolition of Slavery, and all the steps by which this transcendent
measure was promoted and consummated, also the various efforts for the
establishment of Equal Rights, especially in the court-room and at the
ballot-box, thus helping the fulfilment of the promises originally
made in the Declaration of Independence,--that it embraces, besides,
all the infinite questions of taxation, finance, railroads, business
and foreign relations, including many important treaties, among which
was that for the acquisition of the Russian possessions in North
America,--and considering, further, how these transactions belong to
the history of our country, where they are already read, I content
myself with remarking that in all of them I have borne a part, I trust
not unworthy of the honored Commonwealth whose representative I am; and
here I invite your scrutiny and candid judgment.

Possibly some of the frequent criticism to which I have been exposed is
already dulled by time or answered by events. A venerable statesman,
eminent in the profession, once rebuked me for the term _Equality
before the Law_, which I had taken from the French, as expressing more
precisely than the Declaration of Independence that equality in rights
which is all that constitutions or laws can secure. My learned critic
had never met this term in the Common Law, or in the English language,
and therefore he did not like the innovation. In the same spirit other
efforts have been encountered, often with virulence, especially those
two fundamentals of Reconstruction,--first, the power of Congress over
the Rebel States, whether as territories, or provinces, or as States
having no republican government, or, according to the language of
President Lincoln, “out of their proper practical relation with the
Union,”[265] and, secondly, the necessity of lifting the freedman into
Equal Rights, civil and political, so as to make him a part of the body
politic. Who can forget the clamor at these two propositions? All this
has happily ceased, except as an echo from Rebels and their allies,
whose leading part is a protest against the power of Congress and the
equal rights of the freedman.

       *       *       *       *       *

Though formal criticism has tardily died out, there is sometimes a
warning against men of “one idea,” with a finger-point at myself. Here
I meet my accuser face to face. What duty have I failed to perform? Let
it be specified. What interest have I neglected? Has it been finance?
The “Globe” will show my earnest and elaborate effort at the beginning
of the war, warning against an inconvertible currency, and a similar
effort made recently to secure the return to specie payments. Has it
been taxation, or commerce, or railroads, or business in any of its
forms, or foreign relations, with which, as Chairman of the Senate
Committee on this subject, I have been particularly connected? On all
of these I refer to the record. What, then, have I neglected? It is
true, that, while bearing these things in mind and neglecting none,
I felt it a supreme duty to warn my country against the perils from
Slavery, and to insist upon irreversible guaranties for the security of
all, especially those freedmen whom we could not consent to sacrifice
without the most shameful ingratitude. As the urgency was great, I
also was urgent. In season and out of season, at all times, in all
places, here at home and in the Senate, I insisted upon the abolition
of Slavery, and the completion of this great work by the removal of its
whole brood of inequalities, so that it should not reappear in another
form. But my earnestness and constancy only imperfectly represented
the cause. There could be no excess,--nothing too strong. The Republic
was menaced; where was the limit to patriotic duty? Human Rights were
in jeopardy; who that had a heart to feel could be indifferent? Nobody
could do too much. This was not possible. No wisdom too great, no voice
too eloquent, no courage too persevering. Of course, I claim no merit
for effort in this behalf; but I appeal to you, my fellow-citizens,
that the time for reproach on this account is past. We must be
“practical,” says the critic. Very well. Here we agree. But, pray, who
has been “practical”? Is it those laggards, who, after clinging to
Slavery, then denied the power of Congress, and next scouted the equal
rights of the freedman? Permit me to say that the “practical” statesman
foresees the future and provides for it.

Whoever does anything with his whole heart makes it for the time his
“one idea.” Every discoverer, every inventor, every poet, every artist,
every orator, every general, every statesman, is absorbed in his work;
and he succeeds just in proportion as for the time it becomes his
“one idea.” The occasion must not be unworthy or petty; but the more
complete the self-dedication, the more effective is the result. I know
no better instance of “one idea” pursued to a triumphant end than when
our candidate, after planning his campaign, announced that he meant “to
fight it out on this line, if it took all summer.” Here was no occasion
for reproach, except from Rebels, who would have been glad to see him
fail in that singleness of idea which gave him the victory. There are
other places where the same singleness is needed and the idea is not
less lofty. The Senate Chamber has its battles also; and the conflict
embraces the whole country. Personally, I have nothing to regret,
except my own inadequacy. I would have done more, if I could. Call it
“one idea.” That idea is nothing less than country, with all that is
contained in that inspiring word, and with the infinite vista of the
same blessings for all mankind.

       *       *       *       *       *

From these allusions, suggested by my own personal relations, I come
directly to the issues of this canvass. Others have presented them so
fully that there is less need of any minute exposition on my part, even
if the heralds of triumph did not announce the certain result. But you
will bear with me while I state briefly what is to be decided. This may
be seen in general or in detail.

Speaking generally, you are to decide on the means for the final
suppression of the Rebellion, and the establishment of security for
the future. Shall the Rebellion which you have subdued on the bloody
field be permitted to assert its power again, or shall it be trampled
out, so that its infamous pretensions shall disappear forever? These
general questions involve the whole issue. If you sympathize with the
Rebellion, or decline to take security against its recurrence, then
vote for Seymour and Blair. I need not add, that, if you are in earnest
against the Rebellion, and seek just safeguards for the Republic, then
vote for Grant and Colfax. The case is too plain for argument.

It may be put more precisely still: _Shall the men who saved the
Republic continue to rule it, or shall it be handed over to Rebels and
their allies?_ Such is the simple issue, stripped of all hypocritical
guise; for here, as in other days, the real question is concealed by
the enemy. The plausible terms of Law and Constitution, with even the
pretence of generosity, now employed to rehabilitate the Rebellion, are
unmasked by the witty touch of “Hudibras,” whose words are as pointed
now as under Charles the Second:--

    “What’s liberty of conscience,
    I’ th’ natural and genuine sense?
    ’Tis to restore, with more security,
    Rebellion to its ancient purity.”[266]

On the one side are loyal multitudes, and the generous freedmen
who bared themselves to danger as our allies, with Grant still at
their head; and on the other are Rebels, under the name of the
Democratic Party, all dripping with blood from innumerable fields of
slaughter where loyal men gasped away life,--from Fort Pillow, from
Andersonville, from pirate decks,--hurrying, with Seymour at their
head, to govern the Republic in the name of the Lost Cause. Not so
fast, ye men of blood! Stand back! They who encountered you before will
encounter you again.

I would not make this statement too strong. I wish to keep within
bounds. But the facts are too patent to admit of doubt. Yes, it is the
old Democracy, which, after giving to the Rebellion its denationalizing
pretension of State Rights, and all its wicked leaders, from Davis to
Forrest and Semmes,--after thwarting every measure for its suppression
as “unconstitutional,” from the Proclamation of Emancipation to
the firing of a gun or the condemnation of Vallandigham,--after
interfering with enlistments also as “unconstitutional,”--after
provoking sympathetic riots,--after holding up “blue lights” for
the guidance of the enemy,--after hanging upon the country like a
paralysis,--and after, finally, under the lead of Seymour, declaring
the war a “failure,”--this same Democracy, still under the lead of
Seymour, champions the Lost Cause. Under the pretence of restoring
Rebels to rights, it seeks to restore them to power; and this is the
very question on which you are to vote. The Tories at the end of
the Revolution were more moderate. They did not insist upon instant
restoration to rights forfeited by treason; nor did they bring forward
a candidate against Washington. This is reserved for the Tories of our
day.

       *       *       *       *       *

All this is general. Descending to details, we find that the issue now
presented reappears in other questions. Of these none is more important
than that of the Reconstruction Acts, which have been openly assailed
as “unconstitutional, revolutionary, and void.”[267] In nothing more
than in this declaration, associated with the letter of its candidate,
do we behold the audacity of the Rebel Party. Even while professing
allegiance and asking your vote, they proclaim war in a new form.
Instead of _Secession_ maintained by arms, it is now _Nullification_
maintained by arms. In no other way can we interpret the party
platform, and the programme of Mr. Blair, when, with customary
frankness, he calls upon the President “to declare these Acts null
and void, compel the army to undo its usurpations at the South, and
disperse the carpet-bag State governments.”[268] Here is Nullification
with a vengeance,--that very Nullification which, in a much milder
type, made Andrew Jackson threaten to hang its authors high as Haman.
Secession is declared to be settled by the war; but Nullification is
openly recognized. What is the difference between the two? The answer
is plain. Secession is war out of the Union; Nullification is war in
the Union. And this is the open menace of the Rebel Party.

       *       *       *       *       *

The Reconstruction Acts err from what they fail to do rather than from
what they do. They do too little rather than too much. They should have
secured a piece of land to the landless freedman, whose unrewarded toil
has mingled for generations in the soil; and they should have secured
a system of common schools open to all. In these demands, as in every
other measure of Reconstruction, I would do nothing in severity or
triumph, nothing to punish or humble. Nor is it only in justice to the
freedman, who has a bill against his former master for unpaid wages,
and also against the country for an infinite debt, but it is for the
good of all constituting the community, including the former master.
Nothing can be truer than that under such influences society will be
improved, character will be elevated, and the general resources will be
enlarged. Only in this way will the Barbarism of Slavery be banished,
and a true civilization organized in its place. Our simple object is
expressed in the words of Holy Writ: “Let us build these cities, and
make about them walls and towers, gates and bars, while the land is
yet before us.”[269] By contributing to this work, by laboring for its
accomplishment, by sending it our God-speed, we perform a service at
once of the highest charity and the highest patriotism, which hereafter
the children of the South, emancipated from error, will rejoice to
recognize. With Human Rights under a permanent safeguard, there can
be no limit to prosperity. As under this sunshine the land yields
its increase and the gardens bloom with beauty, while commerce and
manufactures enjoy a new life, they will confess that we did well for
them, and will hail with pride the increased glory of the Republic. If,
as in ancient Rome, we demanded the heads of senators and orators,--if,
as in England, we took the life and estate of all traitors,--if, as in
Germany, we fatigued the sword with slaughter, and cried “havoc,”--if,
as in France, we set up guillotines, and worked them until the blood
stood in puddles beneath,--if, as in all these historic countries, we
acted in pitiless vengeance,--if in anything we have done or attempted
there was one deed of vengeance,--then we, too, might deserve a
chastening censure. But all that we have done, next after the safety
of the Republic, is for the good of those who were our enemies, and
who despitefully used us. Never before was clemency so sublime; never
before was a rebel people surrounded by beneficence so comprehensive.
Great as was the Republic in arms, it is greater still in the majesty
of its charity.

So far as the Reconstruction Acts have been assailed, I am ready to
defend them against all comers. And I repel at the outset every charge
or suggestion of harshness. They are not harsh, unless it is harsh to
give every man his due. If they are harsh, then is beneficence harsh,
then is charity harsh. It is only by outraging every principle of
justice, stifling every sympathy with Human Rights, and discarding
common sense, and, still further, by forgetting all the sacred
obligations of country, that we can submit to see political power in
the hands of Rebels. No judgment is too terrible for us, if we consent
to the sacrifice. For the sake of the freedman, for the sake of his
former master, for the sake of all, and for the sake of the Republic,
this must not be. Therefore were the Reconstruction Acts adopted by
immense majorities in both Houses of Congress as the guaranty of peace.
The aspiration of our candidate was in every line and word, “Let us
have peace.”

       *       *       *       *       *

Two questions are presented by the enemies of these Acts: first, on the
Power of Congress; and, secondly, on the Equal Rights of the Freedman.

       *       *       *       *       *

Too often have I asserted the plenary power of Congress with arguments
that have never been answered, to feel it necessary now to occupy
time on this head. The case may be proved in so many ways that it is
difficult to know which to select. Whether the power is derived from
the necessity of the case, because the Rebel States were without
governments, which is the reason assigned by Chief Justice Marshall
for the jurisdiction of Congress over the Territories,--or from the
universal rights of war, following the subjection of belligerents
on land,--or from the obligation of the United States to guaranty
a republican government to each State,--or from the Constitutional
Amendment abolishing Slavery, with its supplementary clause conferring
upon Congress power to enforce this abolition,--whether the power is
derived from one or all of these bountiful sources, it is clear that it
exists. As well say that the power over the Territories, the war power,
the guaranty power, and the power to enforce the abolition of Slavery,
do not exist; as well say that the Constitution itself does not exist.

If any confirmation of this irresistible conclusion were needed, it
might be found in the practical admissions of Andrew Johnson, who,
while perversely usurping the power of Reconstruction, did it in the
name of the Nation. In the prosecution of this usurpation, he summoned
conventions of delegates made eligible by his proclamation, and chosen
by electors invested by him with the right of suffrage; and through
these conventions, to which he gave the law by telegraphic wire,
he assumed to institute local governments. Thus has Andrew Johnson
testified to the power of the Nation over Reconstruction, while, with
an absurdity of pretension which history will condemn even more than
any contemporary judgment, he assumed that he was the Nation. His
usurpation has been overthrown, but his testimony to the power of the
Nation remains. When the Nation speaks, it is by Congress,--as the
Roman Republic spoke by its Senate and people, _Senatus Populusque
Romanus_, in whose name went forth those great decrees which ruled the
world.

In considering the constitutionality of the Reconstruction Acts,
there is a distinction, recognized by repeated judgments of the
Supreme Court, which has not been sufficiently regarded, even by our
friends. The Rebel Party, especially in their platform at New York,
forget it entirely. They tell us that the Reconstruction Acts are
“unconstitutional, revolutionary, and void,” and Wade Hampton boasts
that he prompted this declaration. I have already exhibited the
power of Congress in four different sources; but beyond these is the
principle, _that Congress, in the exercise of political powers, cannot
be questioned_. So says the Supreme Court. Thus it has been decided,
in general terms, “that the action of _the political branches_ of the
Government in a matter that belongs to them is conclusive.”[270] And
in the famous case of _Luther_ v. _Borden_, it is announced, that,
where the National Government interferes with the domestic concerns
of a State, “the Constitution of the United States, as far as it has
provided for an emergency of this kind, _has treated the subject as
political in its nature, and placed the power in the hands of that
department_”; and it is further added, that “its decision is binding
on every other department of Government, and could not be questioned
in a judicial tribunal.”[271] In the face of these peremptory words,
it is difficult to see what headway can be made in contesting the
validity of the Reconstruction Acts, except by arms. If ever a question
was political, it is this. It is political in every aspect, whether
regarded as springing from the necessity of the case, from the rights
of war, from the obligation to guaranty a republican government, or
from the power to enforce the abolition of Slavery. Never before was
any question presented so completely political. Reconstruction is as
political as the war, or as any of the means for its conduct. It is
political from beginning to end. It is nothing, if not political.
Therefore, by unassailable precedents under the Constitution, are these
Acts fixed and secured so that no court can touch them,--nothing but
the war which Mr. Blair has menaced.

       *       *       *       *       *

The Equal Rights conferred upon the freedman are all placed under
this safeguard. Congress has done this great act of justice, and,
thank God, it cannot be undone. It has already taken its place in the
immortal covenants of history, and become a part of the harmonies of
the universe. As well attempt to undo the Declaration of Independence,
or suspend the law of gravitation. This cannot be. The bloody horrors
of San Domingo, where France undertook to cancel Emancipation, testify
with a voice of wail that a race once lifted from Slavery cannot be
again degraded. Human Rights, when at last obtained, cannot be wrested
back without a conflict in which God will rage against the oppressor.

But I do not content myself with showing the essential stability of
this measure of Reconstruction. I defend it in all respects,--not
only as an act of essential justice, without which our Nation would
be a deformity, but as an irresistible necessity, for the sake of
that security without which peace is impossible. It is enough that
justice commanded it; but the public exigency left no opportunity
for any fine-spun system, with educational or pecuniary conditions,
even if this were consistent with the fundamental principle that “all
just government stands only on the consent of the governed.” As the
strong arms of this despised race had been needed for the safety of
the Republic, so were their votes needed now. The cause was the same.
Without them loyal governments would fail. They could not be organized.
To enfranchise those only who could read and write or pay a certain
tax was not enough. They were too few. All the loyal are needed at the
ballot-box to counterbalance the disloyal.

       *       *       *       *       *

It was at this time, and under this pressure, that conditions,
educational or pecuniary, were seen to be inadmissible; and many,
considering the question in the light of principle, were led to ask,
if, under any circumstances, such conditions are just. Surely an
unlettered Unionist is better than a Rebel, however learned or wise,
and on all practical questions will vote more nearly right. If there
is to be exclusion, let it be of the disloyal, and not of the loyal.
Nobody can place the value of education too high; but is it just
to make it the prerequisite to any right of citizenship? There are
many, whose only school has been the rough world, in whom character
is developed to a rare degree. There are freedmen unable to read or
write who are excellent in all respects. If willing to reject such
persons as allies, can you justly exclude them from participation in
the Government? Can you justly exclude any good citizen from such
participation?

It is recorded of the English statesman, Charles James Fox, that, after
voting at a contested election, and finding his coachman, who had
driven him to the polls, voting the other way, he protested pleasantly
that the coachman should have told him in advance how he was to
vote, that the two might have paired off and stayed at home. Here is
Fox at the polls neutralized by his coachman. A similar incident is
told of Judge Story, here in Cambridge. Both stories have been used
to discredit suffrage by the people. They have not this effect on
my mind. On the contrary, I find in them a beautiful illustration
of that Equality before the Law which is the promise of republican
institutions. At the ballot-box the humblest citizen is the equal of
the great statesman or the great judge. If this seems unreasonable, it
must not be forgotten that the eminent citizen exercises an influence
which is not confined to his vote. It extends with his fame or
position, so that, though he has only a single vote, there are many,
perhaps multitudes, swayed by his example. This is the sufficient
compensation for talent and education exerted for the public weal,
without denying to anybody his vote. The common man may counterbalance
the vote of the great statesman or great judge, but he cannot
counterbalance this influence. The common man has nothing but his vote.
Who would rob him of this?

       *       *       *       *       *

Thus far I have shown the Reconstruction Acts to be constitutional,
natural, and valid, in contradiction to the Rebel platform, asserting
them to be “unconstitutional, revolutionary, and void.” But these Acts
may be seen in other aspects. I have shown what they accomplish. See
now what they prevent; and here is another series of questions, every
one of which is an issue on which you are to vote.

       *       *       *       *       *

Are you ready for the revival of Slavery? I put this question plainly;
for this is involved in the irreversibility of the Reconstruction
Acts. Let these be overthrown or abandoned, and I know no adequate
safeguard against an outrageous oppression of the freedman, which
will be Slavery under another name. The original type, as received
from Africa and perpetuated here, might not appear; but this is not
the only form of the hateful wrong. Not to speak of peonage, as it
existed in Mexico, there is a denial of rights, with exclusion from
all participation in the Government and subjection to oppressive
restraints, which of itself is a most direful slavery, under which the
wretched bondman smarts as beneath the lash. And such a slavery has
been deliberately planned by the Rebels. It would be organized, if
they again had power. Of this there can be no doubt. The evidence is
explicit and authentic.

I have here a Congressional document, containing the cruel legislation
of the Rebel States immediately after the close of the Rebellion,
under the inspiration of the Johnson governments.[272] Here are its
diabolical statutes, fashioned in the spirit of Slavery, with all that
heartlessness which gave to Slavery its distinctive character. The
emancipated African, shut out from all participation in the Government,
despoiled of the ballot, was enmeshed in a web of laws which left him
no better than a fly in the toils of a spider. If he moved away from
his place of work, he was caught as a “vagrant”; if he sought work
as a mechanic or by the job, he was constrained by the requirement
of a “license”; if he complained of a white man, he was subjected to
the most cunning impediments; if he bought arms for self-defence, he
was a violator of law;--and thus, wherever he went, or whatever he
attempted, he was a perpetual victim. In Mississippi he could not
“rent or lease any lands or tenements except in incorporated towns or
cities,” thus keeping him a serf attached to the soil of his master.
Looking at these provisions critically, it appears, that, while
pretending to regulate vagrants, apprentices, licenses, and civil
rights, the freedman was degraded to the most abject condition; and
then, under a pretence for the public peace, he was shut out from
opportunities of knowledge, and also from keeping arms, while he was
subjected to odious and exceptional punishments, as the pillory, the
stocks, the whipping-post, and sale for fine and costs. Behind all
these was violence, assassination, murder, with the Ku-Klux-Klan
constituting the lawless police of this new system. The whole picture
is too horrible; but it is true as horrible. In the face of this
unanswerable evidence, who will say that it was not proposed to revive
Slavery? To call such a condition Liberty is preposterous. If not a
slave of the old type, the freedman was a slave of a new type, invented
by his unrepentant master as the substitute for what he had surrendered
to the power of the Nation. Beginning with a caste as offensive and
irreligious as that of Hindostan, and adding to it the pretensions of
an oligarchy in government, the representatives of the old system were
preparing to trample upon an oppressed race. The soul sickens at the
thought.

       *       *       *       *       *

With all this indubitable record staring us in the eyes, with the daily
report of inconceivable outrage darkening the air, with wrong in every
form let loose upon the long-suffering freedman, General Lee breaks the
respectable silence of his parole to deny that “the Southern people
are hostile to the negroes, and would oppress them, if in their power
to do it.” The report, he asserts, is “entirely unfounded,”--that
is the phrase,--“entirely unfounded”; and then he dwells on the old
patriarchal relation, with the habit from childhood of “looking upon
them with kindness” (witness the history of Slavery in its authentic
instances!); and then he insists that “the change in the relations of
the two races has wrought no change in feelings towards them,” that
“without their labor the land of the South would be comparatively
unproductive, and therefore _self-interest would prompt the whites
of the South to extend to the negroes care and protection_.” Here
is the threadbare pretension with which we were so familiar through
all the dreary days of the old Barbarism, now brought forward by the
Generalissimo of the Rebellion to vindicate the new,--and all this with
an unabashed effrontery, which shows, that, in surrendering his sword,
he did not surrender that insensibility to justice and humanity which
is the distinctive character of the slave-master. The freedman does not
need the “care and protection” of any such person. He needs the rights
of an American citizen; and you are to declare by your votes if he
shall have them.

       *       *       *       *       *

The opposition to the Reconstruction Acts manifests itself in an
inconceivable brutality, kindred to that of Slavery, and fit prelude
to the revival of this odious wrong. Shall this continue? Outrage in
every form is directed against loyal persons, without distinction of
color. It is enough that a man is a patriot for Rebels to make war upon
him. Insulted, abused, and despoiled of everything, he is murdered on
the highway, on the railway, or, it may be, in his own house. Nowhere
is he safe. The terrible atrocity of these acts is aggravated by the
rallying cries of the murderers. If the victim is black, then it is a
“war of races”; if white, then he is nothing but a “carpet-bagger”;
and so, whether black or white, he is a victim. History has few scenes
of equal guilt. Persecution in all its untold cruelties, ending in
martyrdom, rages over a wide-spread land.

If there be a “war of races,” as is the apologetic defence of the
murderers, then it is war declared and carried on by whites. The
other race is inoffensive and makes no war, asking only its rights.
The whole pretension of a “war of races” is an invention to cover the
brutality of the oppressors. Not less wicked is the loud-mouthed attack
on immigrants, whom Rebels choose to call “carpet-baggers,”--that is,
American citizens, who, in the exercise of the rights of citizenship,
carry to the South the blood, the capital, and the ideas of the North.
This term of reproach does not belong to the Northerner alone. The
carpet-bag is the symbol of our whole population: there is nobody who
is not a “carpet-bagger,” or at least the descendant of one. Constantly
the country opens its arms to welcome “carpet-baggers” from foreign
lands. And yet the cry ascends that “carpet-baggers” are to be driven
from the South. Here permit me to say, that, if anybody is driven from
anywhere, it will not be the loyal citizen, whether old or new.

On all this you are to vote. It will be for you to determine if there
shall be peace between the two races, and if American citizens shall
enjoy everywhere within the jurisdiction of the Republic all the rights
of citizenship, free from harm or menace, and with the liberty of
uttering their freest thoughts.

There is another issue at this election. It is with regard to the
unpatriotic, denationalizing pretensions of State Rights. In their
name was the Rebellion begun, and now in their name is every measure
of Reconstruction opposed. Important as are the functions of a State
in the administration of local government, especially in resisting an
overbearing centralization, they must not be exalted above the Nation
in its own appropriate sphere. Great as is the magic of a State, there
is to my mind a greater magic in the Nation. The true patriot would not
consent to see the sacrifice of the Nation more than the true mother
before King Solomon would consent to see the sacrifice of her child.
It is as a Nation--all together making one--that we have a place at
the council-board of the world, to excite the pride of the patriot and
the respect of foreign powers. It is as a Nation that we can do all
that becomes a civilized government; and “who dares do more is none.”
But all this will be changed, just in proportion as any State claims
for itself a sovereignty which belongs to all, and reduces the Nation
within its borders to be little more than a tenant-at-will,--just
in proportion as the National Unity is assailed or called in
question,--just in proportion as the Nation ceases to be a complete
and harmonious body, in which each State performs its ancillary part,
as hand or foot to the natural body. There is an irresistible protest
against such a sacrifice, which comes from the very heart of our
history. It was in the name of “the good people of these Colonies,”
called “one people,” that our fathers put forth the Declaration of
Independence, with its preamble of Unity, and its dedication of the new
Nation to Human Rights. And now it is for us, their children, to keep
this Unity, and to perform all the national promises thus announced.
The Nation is solemnly pledged to guard its Unity, and to make Human
Rights coextensive with its boundaries. Nor can it allow any pretension
of State Rights to interfere with this commanding duty.

       *       *       *       *       *

There is still another issue, which is subordinate to Reconstruction
and dependent upon it, so, indeed, as to be a part of it. I refer to
the Financial Question, with the menace of Repudiation in different
forms. Let the Reconstruction Acts be maintained in peace, in other
words, let peace be established in the Rebel States, and the menace
of Repudiation will disappear from the scene,--none so poor to do
it reverence. If it find any acceptance now, it is only in that
revolutionary spirit which assails all the guaranties of peace.
Repudiation of the Reconstruction Acts, with all their securities for
Equal Rights, is naturally followed by repudiation of the National
Debt. The Acts and the Debt are parts of one system, being the means
and price of peace. So strongly am I convinced of the potency of this
influence, that I do not doubt the entire practicability of specie
payments on the fourth of July next after the inauguration of General
Grant.

Nay, more, it is my conviction, not only that we _can_ have specie
payments at that time, but that we _ought_ to have them. If we can,
we ought; for this is nothing but the honest payment of what we owe.
A failure to pay may be excused, but never justified. Our failure
was originally sanctioned only under the urgency of war; but this
sanction cannot extend beyond the urgency. It is sometimes said that
necessity renders an action just, and Latin authority is quoted: _Id
enim justissimum quod necessarium_. But it is none the less untrue.
Necessity may excuse an action not in itself just, but it is without
the force to render it just; for justice is immutable. The taking of
the property of another under the instigation of famine is excused,
and so is the taking of the property of citizens by the Government
during war,--in both cases from necessity. But as the necessity ceases,
the obligations of justice revive. Necessity has no rights, but only
privileges, which disappear with the exigency. Therefore do I say that
the time has passed when the Nation can be excused for refusing to
pay according to its promise. But it is vain to expect this important
change from a political party which emblazons Repudiation on its
banners.

       *       *       *       *       *

It is in two conspicuous forms that Repudiation flaunts: first, in
the barefaced proposition to tax the bonds, contrary to the contract
at the time the money was lent; and the other, not less barefaced, to
pay interest-bearing bonds with greenbacks, or, in other words, mere
promises to pay without interest.

       *       *       *       *       *

The exemption from taxation was a part of the original obligation,
having, of course, a positive value, which entered into the price of
the bond at the time of subscription. This additional price was taken
from the pocket of the subscriber and transferred to the National
Treasury, where it has been used for the public advantage. It is so
much property to the credit of the bond-holder, which it is gravely
proposed to confiscate. Rebel property you will not confiscate; but you
are considering how to confiscate that of the loyal citizen. Taxation
of the bonds is confiscation.

The whole case can be stated with perfect simplicity. To tax the
bonds is to break the contract _because you have the power_. It is an
imitation of the Roman governor, a lieutenant of Cæsar, who, after
an agreement by the people of Gaul to pay a certain subsidy monthly,
arbitrarily changed the number of months to fourteen. The subtraction
from the interest by taxation is kindred in dishonesty to the increase
of the Gaulish subsidy by adding to the months. Of course, in private
contracts between merchant and merchant no such thing could be done.
But there can be no rule of good faith binding on private individuals
which is not binding on the Nation, while there are exceptional reasons
for extraordinary scrupulousness on the part of the Nation. As the
transaction is vast, and especially as the Nation is conspicuous, what
is done becomes an example to the world which history cannot forget.
A Nation cannot afford to do a mean thing. There is another reason,
founded on the helpless condition of the creditor, who has no power to
enforce his claim, whether of principal or interest. It was Charles
James Fox who once exclaimed against a proposition kindred to that now
made: “Oh, no, no! His claims are doubly binding who trusts to the
rectitude of another.” This is only according to an admitted principle
in the Laws of War, constraining the stronger power to the best of
faith in dealing with a weaker power, because the latter is without the
capacity to redress a wrong. This benign principle, borrowed from the
Laws of War, cannot be out of place in the Laws of Peace; and I invoke
it now as a sufficient protection against taxation of the bonds, even
if common sense in its plainest lessons, and the rule of right in its
most imperious precepts, did not forbid this thing.

The cheat of paying interest-bearing bonds in promises without interest
is kindred in character to that of taxing the bonds. It is flat
Repudiation. No subtlety of technicality, no ingenuity of citation, no
skill in arranging texts of statutes, can make it anything else. It is
so on the face, and it is so the more the transaction is examined. Here
again I invoke that rule of conduct to a weaker party, and I insist,
that, if, from any failure of explicitness excluding all contrary
conclusion, there can be any reason for Repudiation, every such
suggestion must be dismissed as the frightful well-spring of disastrous
consequences impossible to estimate, while it is inconsistent with that
Public Faith which is the supreme law.

Elsewhere I have considered this question so fully,[273] that I content
myself now with conclusions only. Do you covet the mines of Mexico and
Peru, the profits of extended commerce, or the harvest of your own
teeming fields? All these and more you will multiply infinitely, if
you will keep the Public Faith inviolate. Do you seek stability in the
currency, with the assurance of solid business, so that extravagance
and gambling speculations shall cease? This, too, you will have through
the Public Faith. Just in proportion as this is discredited, the Nation
is degraded and impoverished. If nobody had breathed Repudiation,
we should all be richer, and the national debt would be at a lower
interest, saving to the Nation millions of dollars annually. Talk of
taxation; here is an annual tax of millions imposed by these praters of
Repudiation.

Careless of all the teachings of history, you are exhorted to pay the
national debt in greenbacks, knowing that this can be done only by
creating successive batches, counted by hundreds of millions, which
will bring our currency to the condition of Continental money, when a
night’s lodging cost a thousand dollars, or the condition of the French
_assignats_, the paper currency of the Revolution, which was increased
to a fearful amount, precisely as it is now proposed to increase ours,
until the story of Continental money was repeated. Talk of clipping
the coin, or enfeebling it with alloy, as in mediæval times; talk of
the disgraceful frauds of French monarchs, who, one after another in
long succession, debased their money and swore the officers of the Mint
to conceal the debasement; talk of persistent reductions in England,
from Edward the First to Elizabeth, until coin was only the half of
itself; talk of unhappy Africa, where Mungo Park found that a gallon
of rum, which was the unit of value, was half water;--talk of all
these; you have them on a colossal scale in the cheat of paying bonds
with greenbacks. If not taught by our own memorable experience, when
Continental money, which was the currency of the time, was lost, like
the river Rhine at its mouth, in an enormous outstretched quicksand,
then be taught by the experience of another country. Authentic history
discloses the condition to which France was reduced. Carlyle, in his
picturesque work on the Revolution, says: “There is, so to speak, no
trade whatever, for the time being. _Assignats_, long sinking, emitted
in such quantities, sink now with an alacrity beyond parallel.” The
hackney-coachman on the street, when asked his fare, replied, “Six
thousand livres.”[274] And still the _assignats_ sunk, until at last
the nation was a pauper. The Directory, invested for the time with
supreme power, on repairing to the palace of the Luxembourg, found it
without a single article of furniture. Borrowing from the door-keeper
a rickety table, an inkstand, and a sheet of letter-paper, they
draughted their first official message, announcing the new government.
There was not a solitary piece of coin in the Treasury; but there
was a printing-press at command. _Assignats_ were fabricated in the
night, and sent forth in the morning wet from the press.[275] At last
they ended in nothing,--but not until a great and generous people was
enveloped in bankruptcy and every family was a sufferer. Bankruptcy
has its tragedies hardly inferior to those which throb beneath the
“sceptred pall.”

Similar misconduct among us must result in similar consequences, with
all the tragedies of bankruptcy. Not a bank, not a corporation, not
an institution of charity, which would not suffer,--each sweeping
multitudes into the abyss which it could not avoid. Business would
be disorganized, values would be uncertain; nobody would know that
the paper in his pocket to-day would buy a dinner to-morrow. There is
no limit to the depreciation of inconvertible paper. Down, down it
descends, as the plummet, to the bottom, or up, up, as the bubble in
the air, until, whether down or up, it disappears. It is hard to think
of the poor, or of those who depend on daily wages, under the trials of
this condition. The rich may, for the time, live from their abundance;
but the less favored class can have no such refuge. Therefore, for the
poor, and for all who labor, do I now plead, when I ask that you shall
not hearken to this painful proposition.

I plead, also, for the business of the country. So long as the currency
continues in its present uncertainty, it cannot answer the demands
of business. It is a diseased limb, no better than what is known in
India as a “Cochin leg,” or an excrescence not unlike the pendulous
goitre which is the pitiful sight of an Alpine village. But it must
be uncertain, unless we have peace. Therefore, for the sake of the
currency, do I unite with our candidate in his longing. Business must
be emancipated. How often are we told by the lawyers, in a saying
handed down from antiquity, that “a wretched servitude exists where the
law is uncertain”! But this is not true of the law only. Nothing short
of that servitude which denies God-given rights can be more wretched
than the servitude of an uncertain currency. And now that, by the
blessing of God, we are banishing that terrible wrong which was so long
the curse and shame of our Nation, let us apply ourselves to this other
servitude, whose yoke we are all condemned to bear in daily life.

Looking into the travels of Marco Polo in the thirteenth century, you
will find that he encountered in China paper money on a large scale,
being an inconvertible currency standing on the credit of the Grand
Khan, not unlike our greenbacks. Describing the celestial city of
Kin-sai, the famous traveller says, “The inhabitants are idolaters,
and they use paper money”; and then describing another celestial city,
Ta-pin-zu, he says, “The inhabitants worship idols, and use paper
money.”[276] I know not if Marco Polo intended by this association
to suggest any dependence of paper money upon the worship of idols.
It is enough that he puts them together. To my mind they are equally
forbidden by the Ten Commandments. If one Commandment enjoins upon us
not to worship any graven image, does not another say expressly, “Thou
shalt not steal”?

       *       *       *       *       *

There is another consideration, which I have reserved for the last, and
which I would call an issue in the pending election. It is nothing less
than the good name of the Republic, and its character as an example
to the Nations. All this is directly in question. If you are true
to the great principles of Equal Rights, declared by our fathers as
the foundation of just government,--if you stand by the freedman and
maintain him in well-earned citizenship,--if you require full payment
of the national debt in coin, principal and interest, at the pleasure
of the holder, so that the Republic shall have the crown of perfect
honesty, as also of perfect freedom,--I do not doubt that it will
exercise a far-reaching sway. Nothing captivates more than the example
of virtue,--not even the example of vice. _By this sign conquer_: by
fidelity to declared principles, by the performance of all promises,
by a good name. Then will American history supply the long-sought
definition of a Republic, and our Western star will illumine the
Nations.

Reverse the picture, let the Rebel Party prevail, and what do we
behold? The bonds of the Nation repudiated, and the Equal Rights of the
freedman, which are nothing but bonds of the Nation, repudiated also.
Alas! the example of the Republic is lost, and our Western star is
quenched in darkness. But this cannot be without a shock, as when our
first parents tasted the forbidden fruit:--

    “Earth felt the wound; and Nature from her seat,
    Sighing through all her works, gave signs of woe
    That all was lost.”

The shock will begin at home; but it will spread wherever there are
hearts to thrill with anguish. The struggling people in foreign lands,
now turned to us with hope, will sink in despair as they observe the
disastrous eclipse.

I would not seem too confident in the destinies of my country; but
I cannot doubt, that, if only true to herself, there is nothing too
vast for her peaceful ambition. Here again I catch the aspiration of
our leader in war, “Let us have peace.” Out of peace will spring all
else. Abroad there will be welcome and acceptance, with the might
of our example constantly increasing. At home there will be safety
and opportunity for all within our borders, with freedom of speech,
freedom of the press, freedom of travel, and the equal rights of
citizenship, like the rights of the national creditor, all under the
perpetual safeguard of that Public Faith which is the golden cord of
the Republic. Let despots break promises, but not our Republic. A
Republic is where every man has his due. Equality of rights is the
standing promise of Nature to man, and the Republic has succeeded to
this promise.

In harmony with the promise of Nature is the promise of our fathers,
recorded in the Declaration of Independence, to which the Republic has
succeeded also. It is the twofold promise, first, that all are equal in
rights, and, secondly, that just government stands only on the consent
of the governed,--being the two great political commandments on which
hang all laws and constitutions. Keep these truly, and you will keep
all. Write them in your statutes; write them in your hearts. _This
is the great and only final settlement of all existing questions._
Under its kindly influence the past Rebellion will disappear, alike in
its principles and its passions; future Rebellion will be impossible;
and there will be a peace never to be disturbed. To this sublime
consecration of the Republic let me aspire. With nothing less can I be
content.




FOOTNOTES


[1] _Ante_, Vol. I. pp. 314, 315.

[2] Sermo CCXCIX. § 6: Opera, ed. Benedict., (Paris, 1836-39,) Tom. V.
col. 1785.

[3] History of the World, Book V. ch. I: Works, (Oxford, 1829,) Vol.
VI. p. 4.

[4] Of Reformation touching Church Discipline in England, Book II.:
Works, (London, 1851,) Vol. III. p. 55.

[5] Essay upon the Original and Nature of Government: Miscellanea, Part
I.: Works, (London, 1720,) Vol. I. p. 100.

[6] “La totalité des personnes nées ou naturalisées dans un pays, et
vivant sous un même gouvernement.”

[7] Decline and Fall of the Roman Empire, ed. Milman, (London, 1846,)
Ch. II. Vol. I. p. 37.

[8] See his Essay, as amplified in the successive editions, variously
entitled, “The National Polity is the Normal Type of Modern Government:
A Fragment”; “Nationalism: A Fragment of Political Science”; and
“Fragments of Political Science on Nationalism and Inter-Nationalism”:
the first two without date,--the last, New York, 1868.

[9] Menenius Agrippa. Livii Hist. Lib. II. c. 32.

[10] Journal of the House of Representatives, p. 133, October 24, 1765.
Hutchinson’s History of Massachusetts, Vol. III. p. 472.

[11] Hazard’s Historical Collections, Vol. II. p. 2. Palfrey’s History
of New England, Vol. I. p. 624.

[12] Winthrop, History of New England, ed. Savage, Vol. II. p. 100.

[13] Ibid., p. 160.

[14] Plan of Union: Franklin’s Works, ed. Sparks, Vol. III. pp. 36,
seqq.

[15] Bancroft, History of the United States, Vol. IV. p. 126.

[16] Franklin to Governor Shirley, December 22, 1754: London Chronicle,
Feb. 6-8, 1766, Vol. XIX. p. 133; London Magazine, Feb. 1766, Vol.
XXXV. p. 95. See also Franklin’s Works, ed. Sparks, Vol. III. p. 66.

[17] Wells’s Life of Samuel Adams, Vol. II. pp. 90, 94.

[18] Ibid., p. 94.

[19] Journals of Congress, October 14, 1774, Vol. I. pp. 28, 29.

[20] The Federalist, ed. J. C. Hamilton, Historical Notice, pp. xii,
xiv, lix.

[21] Wordsworth, The Excursion, Book IV. 138, 139.

[22] Letter to Jefferson, November 12, 1813: Works, Vol. X. p. 79.

[23] Proceedings of a Convention of Delegates from several of the
New England States, held at Boston, August 3-9, 1780: edited from an
original MS. Record in the New York State Library, with an Introduction
and Notes, by Franklin B. Hough, Albany, 1867, pp. 50, 51.

[24] Address and Recommendations to the States by the United States in
Congress assembled, (Philadelphia, 1783,) p. 9. Journal of Congress,
April 26, 1783, Vol. VIII. pp. 194, seqq.

[25] Writings of Washington, ed. Sparks, Vol. VIII. pp. 567, 568,
Appendix.

[26] Ibid., pp. 441, 443.

[27] Ibid., pp. 504, 505.

[28] Resolution of Congress, October 10, 1780: Journal, Vol. VI. p. 215.

[29] The Federalist, ed. J. C. Hamilton, Historical Notice, pp. xxii,
lviii.

[30] Ibid., p. xxiv.

[31] Resolutions, July 21, 1782: Hamilton’s Works, ed. J. C. Hamilton,
Vol. II. pp. 201-204.

[32] Journal, February 21, 1787, Vol. XII. p. 17.

[33] Sketches of American Policy, (Hartford, 1785,) Part IV. See also
Introduction to Debates in the Federal Convention: Madison Papers, Vol.
II. p. 708.

[34] Life, by his Son, William Jay, Vol. I. pp. 249, 250. See also
Letter to John Lowell, May 10, 1785: Ibid., p. 190.

[35] See, _ante_, p. 274.

[36] Letter to Edmund Randolph, April 8, 1787: Madison Papers, Vol. II.
pp. 631, 632.

[37] Writings, ed. Sparks, Vol. IX. pp. 187, 188.

[38] Letter to John Jay, March 10, 1787: Life of Jay, by his Son, Vol.
I. p. 259.

[39] Debates, May 30, 1787: Madison Papers, Vol. II. p. 748.

[40] Debates, July 7th: Ibid., p. 1049.

[41] Debates, July 5th: Ibid., p. 1030.

[42] Debates, June 19, 1787: Madison Papers, Vol. II. pp. 904, 905.

[43] Debates, June 7th: Ibid., p. 817.

[44] Debates, June 19th: Ibid., p. 907.

[45] Debates, June 29th: Ibid., p. 995.

[46] Debates, June 30th: Ibid., p. 1010; see also p. 1011.

[47] March 16, 1785: Journal, Vol. X. p. 79.

[48] Debates, June 25th: Madison Papers, Vol. II. pp. 946, 950.

[49] Journal of Congress, September 28, 1787, Vol. XII. p. 165.

[50] Works of Daniel Webster, Vol. III. p. 474.

[51] Elliot’s Debates, (2d edit.,) Vol. III. p. 29.

[52] Elliot’s Debates, Vol. III. p. 22.

[53] Ibid., p. 44.

[54] Hamilton’s History of the National Flag of the United States, p.
55.

[55] Ibid., pp. 65, 66.

[56] Hamilton’s History of the National Flag, p. 30.

[57] Ibid., p. 110.

[58] For the original of these devices see the Pennsylvania Gazette,
May 9, 1754; copies of the others are presented in Hamilton’s History
of the National Flag, Plate II.

[59] Hamilton’s History of the National Flag, pp. 72-79.

[60] The Thracians: Herodotus, Lib. V. c. 3.

[61] Dr. Francis Lieber, who narrated the incident to Mr. Sumner.

[62] Locke, Essay concerning Human Understanding, Book III. ch. 2, § 8.

[63] Cratylus, 389 A.

[64] Diary of John Adams: Works, Vol. II. p. 367.

[65] Journal, June 17, 1775, Vol. I. p. 122.

[66] Writings, ed. Sparks, Vol. III. p. 491, Appendix.

[67] Letter to the President of Congress, December 20, 1776: Ibid.,
Vol. IV. p. 236.

[68] See, _ante_, p. 31.

[69] Journal of Congress, September 28, 1787, Vol. XII. p. 165.

[70] Writings, ed. Sparks, Vol. XII. p. 218.

[71] Isaiah, xl. 26.

[72] Revelation, iii. 12.

[73] Job, xxxviii. 35.

[74] Geographica, Lib. IV. cap. 1, §§ 2, 14.

[75] Marlow, Edward the Second, Act V. Sc. 1.

[76] Proclamation, December 10, 1832: Executive Documents, 22d Cong. 2d
Sess., H. of R., No. 45, p. 85.

[77] Speech in the Senate, in Reply to Mr. Simmons, of Rhode Island,
February 20, 1847: Works, Vol. IV. pp. 358, 357.

[78] Section 24.

[79] Address at the Consecration of the National Cemetery at
Gettysburg, November 19, 1863: McPherson’s Political History of the
United States during the Rebellion, p. 606.

[80] From a toast by Charles P. Sumner at the State Celebration of the
Fiftieth Anniversary of American Independence, in the Doric Hall of the
State House in Boston, July 4, 1826.

[81] Note to § 776, Vol. I. pp. 433, 434, 3d edit.

[82] Act to prescribe an Oath of Office, July 2, 1862: Statutes at
Large, Vol. XII. p. 502.

[83] Pleas of the Crown, Vol. I. p. 484.

[84] 3 Institutes, p. 139.

[85] Criminal Law, Vol. I. § 652.

[86] Ibid., § 655.

[87] Statutes at Large, Vol. I. p. 112.

[88] Catilina, Cap. XXXIX.

[89] Bramston, The Art of Politics, 162-165. See, _ante_, Vol. VI. p.
350; Vol. XI. p. 6

[90] View of the Constitution, (Philadelphia, 1825,) Chap. XXI. p. 206.

[91] Commentaries on the Constitution, § 775, Vol. II. p. 247.

[92] Second edition (Philadelphia, 1829).

[93] See, _post_, p. 93.

[94] Madison Papers, Vol. III. pp. 1572, 1573.

[95] Elliot’s Debates, (2d edit.,) Vol. III. p. 498.

[96] See, _ante_, Vol. XIV. pp. 15, seqq.

[97] Lex Parliamentaria Americana: Elements of the Law and Practice of
Legislative Assemblies in the United States, (2d edit.,) § 302.

[98] Trial of Judge Peck, Appendix, p. 499.

[99] 4 Institutes, pp. 14, 15.

[100] Commentaries, Vol. I. p. 181.

[101] Speech on Conciliation with America, March 22, 1775: Works,
(Boston, 1866-67,) Vol. II. p. 125. Besides the importations into
the Colonies from England, where, according to Lowndes, no less than
six editions had been published prior to the date of this speech, an
edition was printed in Philadelphia in 1771-72, with a subscription, as
appears by the list accompanying it, of nearly sixteen hundred copies.

[102] Lords’ Standing Orders: May’s Parliamentary Practice, (5th
edit.,) p. 221.

[103] May, Parliamentary Practice, Ibid.

[104] Ibid.

[105] Lex Parliamentaria Americana, (2d edit.,) § 288.

[106] Report from the Committee appointed to inspect the Lords’
Journals, Appendix, No. I. (Extract from Foster’s Crown Law): Burke’s
Works, (Boston, 1866-67,) Vol. XI. p. 126.

[107] Ibid., p. 129, note.

[108] Ibid., p. 132.

[109] Lives of the Chancellors, (4th edit., London, 1856,) Vol. I. p.
15, note.

[110] Ibid., p. 15.

[111] Lives of the Chancellors, (4th edit.,) Vol. I. pp. 14, 15.

[112] Ibid., Vol. II. p. 229.

[113] Ibid.

[114] Campbell, Lives of the Chancellors, (4th edit.,) Vol. III. p. 156.

[115] Campbell, Lives of the Chancellors, (4th edit.,) Vol. III. p. 270.

[116] Ibid., p. 281.

[117] History of the Rebellion, (Oxford, 1826,) Book III., Vol. I. p.
381.

[118] Campbell, Lives of the Chancellors, (4th edit.,) Vol. IV. p. 68.

[119] Lives of the Chancellors, (4th edit.,) Vol. IV. p. 145.

[120] Ibid., p. 139.

[121] Ibid., p. 147.

[122] Campbell. Lives of the Chancellors, (4th edit.,) Vol. V. p. 46.

[123] Ibid., p. 102.

[124] Ibid., p. 106.

[125] Ibid., pp. 109, 114.

[126] Campbell, Lives of the Chancellors, (4th edit.,) Vol. V. p. 207.

[127] Ibid., p. 257.

[128] Ibid., p. 259.

[129] Ibid., p. 269.

[130] Ibid., p. 377.

[131] Howell’s State Trials, Vol. XVI. col. 768.

[132] Lives of the Chancellors, (4th edit.,) Vol. VI. p. 94.

[133] Campbell, Lives of the Chancellors, (4th edit.,) Vol. VI. p. 316.

[134] Ibid., Vol. I. p. 15, note.

[135] Twiss, Life of Eldon, Vol. I. p. 319.

[136] Congressional Debates, 19th Cong. 1st Sess., col. 759, 760, May
18, 1826.

[137] June 7, 1826.

[138] June 27, 29, 1826.

[139] Onslow, No. I.: National Intelligencer, June 27, 1826.

[140] Ibid.

[141] D’Ewes’s Journals, p. 683.

[142] Lex Parliamentaria Americana, (2d edit.,) § 294.

[143] Ibid., § 300.

[144] Hansard’s Parliamentary History, April 15, 1640, Vol. II. col.
535.

[145] Hatsell’s Precedents, (London, 1818,) Vol. II. p. 242.

[146] Hansard’s Parliamentary History, Vol. XXXVI. col. 915.

[147] Barclay’s Digest of the Rules of the House of Representatives,
&c., p. 44.

[148] Barclay’s Digest, p. 114.

[149] Ibid.

[150] Cushing, Lex Parliamentaria Americana, (2d edit.,) § 306.

[151] Proceedings on the Impeachment of William Blount, p. 28.

[152] Commentaries, (2d edit.,) § 803, Vol. I. p. 560.

[153] Annals of Congress, 5th Cong., July 8, 1797, col. 44.

[154] See, _ante_, Vol. VIII. pp. 12, 13: Expulsion of Trusten Polk.

[155] Wooddeson, Lectures, Vol. II. p. 602.

[156] Speeches of the Managers and Counsel in the Trial of Warren
Hastings, ed. Bond, Vol. I. p. 4.

[157] Ibid., pp. 183, seqq.

[158] Constitutional History of England, (2d edit.,) Chap. XII., Vol.
II. p. 554.

[159] No. LXV.

[160] View of the Constitution, (2d edit.,) p. 211.

[161] Commentaries, (2d edit.,) Vol. I. §§ 746, 764.

[162] History of the Constitution, pp. 260, 261.

[163] Speech in the House of Representatives, June 17, 1789, on the
Bill for establishing the Department of Foreign Affairs: Annals of
Congress, 1st Cong. 1st Sess., col. 498.

[164] Speech at St. Louis, September 8, 1866: McPherson’s Political
History of the United States during Reconstruction, p. 140.

[165] Rolls of Parliament, Vol. III. p. 244, § 7,--cited in Report from
the Committee of the House of Commons appointed to inspect the Lords’
Journals, April 30, 1794: Burke’s Works, (Boston, 1866-67,) Vol. XI. p.
11.

[166] Report from the Committee to inspect the Lords’ Journals: Burke’s
Works, Vol. XI. p. 12.

[167] 4 Institutes, p. 15. Burke, Vol. XI. p. 13.

[168] Crown Law, Discourse IV., pp. 389, 390. Burke, Vol. XI. p. 28.

[169] Burke’s Works, Vol. XI. p. 13.

[170] Lords’ Journals, Vol. IV. p. 133. Burke’s Works, Vol. XI. p. 14.

[171] Howell’s State Trials, Vol. XV. col. 467. Lords’ Journals, March
14, 1709-10, Vol. XIX. p. 107.

[172] Howell’s State Trials, Vol. XV. col. 471.

[173] Ibid., col. 473. Lords’ Journals, March 23, 1709-10, Vol. XIX. p.
121.

[174] Burke’s Works, Vol. XI. pp. 19, 20.

[175] Howell’s State Trials, Vol. XV. col. 877.

[176] Ibid., col. 883, 884.

[177] Howell’s State Trials, Vol. XV. col. 885.

[178] Ibid., col. 886.

[179] Ibid., col. 887.

[180] Lords’ Journals, March 19, 1715-16, Vol. XX. p. 316.

[181] Speeches of the Managers and Counsel in the Trial of Warren
Hastings, ed. Bond, Vol. I. p. 10.

[182] The Federalist, No. LXV.

[183] Burke’s Works, Vol. XI. p. 60.

[184] Burke’s Works, Vol. XI., p. 64.

[185] Ibid.

[186] Rationale of Judicial Evidence, Book IX. Part I. Ch. 3: Works,
ed. Bowring, (Edinburgh, 1843,) Vol. VII. p. 338.

[187] Omychund _v._ Barker, 1 Atkyns, R., 49.

[188] Mayor of Hull _v._ Horner, Cowper, R., 108.

[189] Burke’s Works, Vol. XI. p. 63.

[190] Fortescue, De Laudibus Legum Angliæ, Cap. XLII.

[191] Commentaries, Vol. II. p. 94.

[192] Blackstone, Commentaries, Vol. IV. p. 286.

[193] Speech on the Lords’ Amendments to the Bill for the Regulation of
Trials in Cases of Treason, December 11, 1691: Hansard’s Parliamentary
History, Vol. V. col. 678.

[194] Secretary Seward to Provisional Governor Marvin of Florida,
September 12, 1865: McPherson’s Political History of the United States
during Reconstruction, p. 25.

[195] Howell’s State Trials, Vol. III. col. 1421.

[196] Coleridge.

[197] Statutes at Large, Vol. XIV. pp. 430-432.

[198] Section 1.

[199] Aldridge _v._ Williams, 3 Howard, R., 24.

[200] See, _ante_, p. 147.

[201] Bacon, Upon the Statute of Uses, Introductory Discourse: Works,
ed. Spedding, (Boston, 1864,) Vol. XIV. p. 285.

[202] Statutes at Large, Vol. I. p. 415.

[203] Statutes at Large, Vol. XII. p. 656.

[204] Bill to repeal the 1st and 2d Sections of an Act to limit the
Term of Office of certain Officers therein named. See Congressional
Debates, 23d Cong. 2d Sess., 1834-35, col. 361, 418-491, 495-539,
552-571, 576. Ibid., 24th Cong. 1st Sess., 1835-36, col. 52, 367.

[205] Act of February 25, 1863, Sec. 1: Statutes at Large, Vol. XII.
pp. 665, 666.

[206] Sec. 5: Statutes at Large, Vol. XIV. p. 92.

[207] Howell’s State Trials, Vol. IV. col. 1070.

[208] Life, by Roger North, (London, 1826,) Vol. I. p. 20.

[209] 5 Wheaton, R., 291, seqq.

[210] 1 Cranch, R., 137, seqq.

[211] Speech of Sir James Marriott, Admiralty Judge, in the House of
Commons, March 15, 1782: Hansard’s Parliamentary History, Vol. XXII.
col. 1184.

[212] _Ante_, pp. 148, seqq.

[213] Commentaries, Vol. II. p. 94.

[214] Ibid., Vol. III. p. 43.

[215] Speeches of the Managers and Counsel in the Trial of Warren
Hastings, ed. Bond, Vol. I. p. 11.

[216] Preface to Shakespeare: Works, (Oxford, 1825,) Vol. V. p. 118.

[217] History of the Rebellion, (Oxford, 1826,) Vol. IV. pp. 91, 92.

[218] Act of March 6, 1820: Statutes at Large, Vol. III. p. 548.

[219] Works, Vol. III. pp. 263, 264.

[220] Ibid., p. 264.

[221] Argument in the Case of Jones _v._ Vanzandt, pp. 62, 63.

[222] Debates in the Federal Convention, May 30, 1787: Madison Papers,
Vol. II. p. 751.

[223] Ibid.

[224] Ibid.

[225] Ibid., p. 752.

[226] Debates, June 11th: Ibid., p. 841.

[227] Debates, June 29th: Madison Papers, Vol. II. p. 995.

[228] Debates, June 8th: Ibid., p. 826.

[229] Debates, June 19th: Ibid., p. 902.

[230] No. XLIII. § 8.

[231] Commentaries on the Constitution, (2d edit.,) Vol. I. § 694.

[232] Elliot’s Debates, Vol. III. p. 367.

[233] The Federalist, No. LIV.

[234] Debates in the Federal Convention, June 29, 1787: Madison Papers,
Vol. II. p. 993.

[235] Deuteronomy, xxvii. 17.

[236] Act of February 25, 1862: Statutes at Large, Vol. XII. pp.
345-348.

[237] Statutes at Large, Vol. XII. p. 532.

[238] Speech in the Senate, February 13, 1862: _ante_, Vol. VI. p. 343.

[239] Quæstiones Juris Publici, tr. Du Ponceau, Lib. I. Cap. 24, p. 182.

[240] Bynkershoek, Quæst. Jur. Pub., tr. Du Ponceau, Lib. I. Cap. 24,
p. 185.

[241] Ibid.

[242] Halleck, International Law, Ch. XII. § 29, p. 310.

[243] Wheaton, Elements of International Law, ed. Lawrence, (Boston,
1863,) p. 528, note.

[244] Bynkershoek, Quæst. Jur. Pub., tr. Du Ponceau, Lib. I. Cap. 24,
p. 188, note.

[245] International Law, Ch. XII. § 11, p. 297.

[246] De Jure Belli ac Pacis, Lib. III. Cap. II. § V. 2.

[247] Elements of International Law, ed. Lawrence, (Boston, 1863,) Part
IV. Ch. I. § 9, p. 529.

[248] Commentaries upon International Law, Part IX. Ch. II. § 19, Vol.
III. pp. 23, 24.

[249] Wheaton’s Elements of International Law, ed. Dana, p. 370, note.

[250] Le Droit des Gens, Liv. III. Ch. 4, § 63.

[251] International Law, Ch. XII. § 16, p. 302.

[252] De Jure Belli ac Pacis, Lib. III. Cap. II. § VII. 2.

[253] Mr. Webster to Mr. Fox, April 24, 1841: Works, Vol. VI. p. 253.
See also Phillimore, International Law, Part IX. Ch. III. § 38, Vol.
III. p. 53.

[254] International Law, Ch. XII. § 10, p. 296.

[255] Remarks on Antiquities, Arts, and Letters, during an Excursion in
Italy, in the Years 1802 and 1803.

[256] Alison, History of Europe, (Edinburgh, 1843,) Ch. XXXVII. Vol. V.
pp. 113, 114.

[257] Mémorial de Sainte-Hélène, Tom. VII. pp. 32, 33. Alison, Vol. V.
p. 114.

[258] Junot, Mme., Duchesse d’Abrantès, Mémoires sur Napoléon, Tom. VI.
pp. 398-403. Alison, Vol. V. p. 115, note.

[259] Congressional Globe, 40th Cong. 2d Sess., Part V. p. 4331.

[260] Works, Vol. IV. pp. 78-80.

[261] Works, Vol. IV. p. 78.

[262] Paradise Lost, Book III. 437-439.

[263] Miscellaneous Works, (London, 1851,) p. 170.

[264] Walckenaër, in the Biographie Universelle, Tom. XXXV. p. 222,
art. Polo.

[265] Speech on Victory and Reconstruction, April 11, 1865: McPherson’s
Political History of the United States during the Rebellion, p. 609.

[266] Hudibras, Part III. Canto I. 1303-6.

[267] Resolutions of the National Democratic Convention, July,
1868: McPherson’s Political History of the United States during
Reconstruction, p. 368.

[268] Letter of F. P. Blair to Col. James O. Brodhead, June 30,
1868: McPherson’s Political History of the United States during
Reconstruction, p. 381.

[269] 2 Chronicles, xiv. 7.

[270] Williams _v._ Suffolk Insurance Co.: 13 Peters, R., 420.

[271] 7 Howard, R., 42.

[272] Laws in relation to Freedmen: Executive Documents, 39th Cong. 2d
Sess., Senate, No. 6, pp. 170, seqq.

[273] Speech on Financial Reconstruction, _ante_, pp. 445, seqq.

[274] Carlyle’s French Revolution, (New York, 1867,) Book IX. Ch. 4.

[275] Thiers, Histoire de la Révolution Française, (Paris, 1837,) Tom.
VIII. p. 15: Directoire, Chap. I.

[276] Travels of Marco Polo, ed. Marsden, (London, 1818,) pp. 353, 354,
521, 547.