The Project Gutenberg eBook, Charles Sumner; His Complete Works, Volume VIII (of 20), by Charles Sumner

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Title: Charles Sumner; His Complete Works, Volume VIII (of 20)

Author: Charles Sumner

Release Date: February 5, 2015 [eBook #48170]

Language: English

Character set encoding: UTF-8

***START OF THE PROJECT GUTENBERG EBOOK CHARLES SUMNER; HIS COMPLETE WORKS, VOLUME VIII (OF 20)***

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JOHN A. ANDREW

A. W. Elson & Co. Boston

Charles Sumner; his complete works, volume 8 (of 20)

[Pg i]

[Pg ii]

COPYRIGHT, 1872,
BY
CHARLES SUMNER.

COPYRIGHT, 1900,
BY
LEE AND SHEPARD.

Statesman Edition.

Limited to One Thousand Copies.

Of which this is

Norwood Press:
Norwood, Mass., U.S.A.

[Pg iii]

CONTENTS OF VOLUME VIII.

[Pg 1]
[Pg 2]

REVISION AND CONSOLIDATION OF THE NATIONAL STATUTES.

Resolution and Speech in the Senate, December 12, 1861.

[Pg 3]

MR. PRESIDENT,—It is now nearly ten years, since, on first entering this Chamber, I had the honor of presenting this identical resolution. Several times afterwards, at succeeding sessions, I brought it forward; but there was no action in regard to it, either by the Committee on the Judiciary, to which it was referred, or by the Senate. At last we have a positive recommendation from the President in his Annual Message, calling attention to the necessity of a revision of our statutes, and of reducing them to a connected text. I desire to take advantage of that recommendation, and to revive the proposition which ten years ago I first introduced.

Something in earnest, Sir, must be done. The ancient Roman laws, when first codified, were so cumbersome that they made a load for several camels. If this cannot be said of our statutes, nobody will deny that they are cumbersome, swelling to at least eleven or twelve heavy volumes, besides being most expensive. They are to be found in few public libraries, and very rarely in private libraries. They ought to be in every public library, and also in the offices of lawyers throughout the country. That can be only by reducing them in size so that they will form a single volume, which is entirely practicable,—thus rendering them easy to read and cheap to buy.

I have reason to believe, Sir, that such a work would be agreeable to the people. I am not without assurance that the people value such reading. Certainly I am justified in this conclusion, when I think of my own State; for it is within my knowledge that the statutes of Massachusetts, reduced to a single volume, as they now are,[Pg 4] have, during a very brief period, been purchased by the people at large to the extent of more than ten thousand copies.

I hope, Sir, there will be no objection founded on the condition of the country. I do not forget the old saying, that the laws are silent in the midst of arms; but I would have our Republic show by example that such is not always the case. I am sure we can do nothing better for the honor of the Administration that is ours. Indeed, should we not all look with increased pride upon our country, most cherished when most in peril, if, while dealing with a fearful Rebellion, Congress turned aside to the edification of the people in objects that are useful, among which I place that I now propose? It will be something, if, through the din of war, this work of peace proceeds, changing the national statutes into a harmonious text, and making them accessible to all.

[Pg 6]

DENIAL OF PATENTS TO COLORED INVENTORS.

Resolution and Remarks in the Senate, December 16, 1861.

MR. PRESIDENT,—If I can have the attention of the Chairman of the Committee on Patents, I will state to him why this resolution is introduced. It has come to my knowledge that an inventor of African descent, living in Boston, applied for a patent under the Constitution and laws of the land, and was refused, on the ground, that, according to the Dred Scott decision, he is not a citizen of the United States, and therefore a patent cannot issue to him. I wish the Committee to consider whether in any way that abuse cannot be removed. That is all.

[Pg 7]

THE NATIONAL ARMIES AND FUGITIVE SLAVES.

Resolution and Remarks in the Senate, December 18, 1861.

MR. PRESIDENT,—Some days ago it was my duty to expose abuses in Missouri in regard to fugitive slaves. Since then I have received communications from that State, showing great interest in the question, some of them in the nature of protest against the system adopted there. One purports to be from a slave-master, educated in a Slave State, and he speaks with bitterness of the indignity put upon the army there, and of the injury it inflicts on the cause of the Union. Another contains a passage which I shall read.

[Pg 8]

But, Sir, my special object now is, to exhibit wrong here at home rather than in distant Missouri. Brigadier-General Stone, the well-known commander at Ball’s Bluff, is adding to his disaster there by engaging in the surrender of fugitive slaves. He does this most successfully. If a fugitive slave is to be handed over to a Rebel, the General is easily victorious.

Sir, beside my constant interest in this question, beside my interest in the honor of the national army, I have a special interest at the present moment, because Brigadier-General Stone sees fit to impose this vile and unconstitutional duty upon Massachusetts troops. The Governor of my honored State has charged me with a communication to the Secretary of War, treating it as an indignity to the men, and an act unworthy of the flag. I agree with the Governor; and when I ask your attention to this outrage, I make myself his representative, as well as my own.

Others beside the Governor of Massachusetts complain. There are two German companies in one of the Massachusetts regiments, who entered into the public service with the positive understanding that they should not be put to any such discreditable and unconstitutional service. They complain, and with them all their own[Pg 9] compatriot fellow-citizens, the enlightened, freedom-loving German population throughout the country.

The complaint extends to other quarters. Here is a letter from Philadelphia, interesting and to the point. I read a short extract only.

With such communications, some official and others private, I feel that I should not do my duty, if I failed to implore the attention of the Senate to this intolerable grievance. It must be arrested. I am glad to know that my friend and colleague, the Chairman of the Committee on Military Affairs [Mr. Wilson], promises us a bill to stop this outrage. It should be introduced promptly, and passed at once. Our troops must be saved from such shame.

Mr. President,—I have no opinion to express on the case of General Stone, for I know nothing about it. Clearly he ought to be confronted with his accusers at an early day, unless, indeed, there be some reason of transcending military character, which, in the present condition of the country, at a moment of war, might render such a trial improper. Of this I do not pretend to judge; nor am I aware of evidence on which the Senate can now act.

…

I hope I shall be pardoned, if I allude to myself. A most persistent attempt has been made in newspapers to connect me with this arrest, to the extent of [Pg 11]according to me and my imagined influence the credit or the discredit of it. This is a mistake. I have been from the beginning an absolute stranger to it. The arrest was made originally without suggestion or hint from me, direct or indirect, and it has been continued without any such suggestion or hint from me. I knew nothing about it at the beginning, and know nothing about it now. There is no intimate friend or family relative of the prisoner more entirely free from all connection with it than myself.

[Pg 12]

EXPULSION OF TRUSTEN POLK, OF MISSOURI.

Resolution and Remarks in the Senate, December 18, 1861.

I do not pretend to an opinion on the genuineness of the letter. Like the Senator from Delaware, I have seen it in several newspapers, and my attention has been specially called to it by correspondents in Missouri, who write that its genuineness cannot be doubted. But this is a question for the Committee.

If I understand the Senator, his argument against the genuineness of the letter is founded on a phrase which he thinks Trusten Polk could never have written: it[Pg 13] is a phrase of doubtful style or taste, showing bad associations. I am not familiar enough with Trusten Polk to sit in judgment on his style, nor is the Senate called to any such responsibility; but we are to sit in judgment on his public conduct, and if the letter is not a forgery, there can be no question as to our duty.

Believing the inquiry important, not doubting the duty of the Senate to purge itself of traitors who have too long found sanctuary in its Chamber, and satisfied that the country justly expects this to be done, I have felt bound to introduce the resolution.

But there is more than the letter. The Senate has heard within a few days that this person has found his way to Memphis. Why is he at Memphis, when he should be at Washington?

[Pg 14]

EMANCIPATION AND THE PRESIDENT.

Letter to Governor Andrew, of Massachusetts, December 27, 1861.

[Pg 15]

THE TRENT CASE, AND MARITIME RIGHTS.

Speech in the Senate, on the Surrender of Mason and Slidell, Rebel Agents, taken from the British Mail Steamer Trent, January 9, 1862. With Appendix.

[Pg 17]

Mr. President,—The Senator has made his speech, and then withdrawn his motion; he has accomplished his object. For myself, Sir, I would rather meet this question, truly important, when presented in a practical form. The Senator treats it on an hypothesis; he assumes that Great Britain has made an arrogant demand, and then proceeds to denounce it. How does he know that any such demand has been made? Who in the Senate knows it? Who in the country knows i[Pg 24]t? I do not believe it,—will not believe it, except on evidence.

The Senator says that he is not against arbitration. How does he know that this is not the policy of the Administration? But I know nobody here who can speak for the Administration on this point.

I submit to the Senator that on both points he has spoken too swiftly. There is no evidence to justify him in belief that any arrogant demand has been made; there is no evidence that can lead him to distrust the fidelity of the Administration. Speaking for myself and nobody else, I declare my conviction that the question will be peaceably and honorably adjusted. I do not believe that it is a question for war; and I hail with gratitude the declaration of the honorable Senator in favor of arbitration. This at least is pacific in what must be called a war speech. But do not understand me as intimating that such mode is under consideration. I content myself with repeating, that the question is in safe hands, and that it will be better for us to reserve ourselves until it is presented in some practical form, or at least on evidence, and not on mere hypothesis.

[Pg 31]

SPEECH.

MR. PRESIDENT,—Every principle of International Law, when justly and authoritatively settled, is a safeguard of peace and a landmark of civilization. It constitutes part of that code which is the supreme law, above all municipal laws, binding the whole Commonwealth of Nations. Such a settlement may be by a general Congress of Nations, as at Munster, Vienna, or Paris; or it may be through the general accord of treaties; or it may be by a precedent established under such conspicuous circumstances, with all nations as assenting witnesses, that it becomes at once a commanding rule of international conduct. Especially is this the case, if disturbing pretensions, long maintained to the detriment of civilization, are practically renounced. Without congress or treaty, such a precedent is now established.

Surely it ought to be considered and understood in its true character. Undertaking to explain it, I shall speak for myself alone; but I shall speak frankly, according to the wise freedom of public debate, and the plain teachings of history on the question involved, trusting sincerely that what I utter may contribute something to elevate the honest patriotism of the country, and perhaps to secure that tranquil judgment under which this precedent will be the herald, if not the[Pg 32] guardian, of international harmony.

Two old men and two younger associates, recently taken from the British mail packet Trent, on the high seas, by order of Captain Wilkes of the United States Navy, and afterwards detained in custody at Fort Warren, are liberated and placed at the disposition of the British Government. This is at the instance of that Government, made on the assumption that the original capture was an act of violence constituting an affront to the British flag, and a violation of International Law. This is a simple outline of the facts. To appreciate the value of the precedent, other matters must be brought into view.

These two old men were citizens of the United States, and for many years Senators. Arrogant, audacious, persistent, perfidious,—one was author of the Fugitive Slave Bill, and the other was chief author of the filibustering system which has disgraced our national name and disturbed our national peace. Occupying places of trust and power in the service of the country, they conspired against it, and at last the secret traitors and conspirators became open rebels. The present Rebellion, surpassing in proportions and in wickedness any rebellion in history, was from the beginning quickened and promoted by their untiring energies. That country to which they owed love, honor, and obedience, they betrayed and gave over to violence and outrage. Treason, conspiracy, and rebellion, each in succession, acted through them. The incalculable expenditures now tasking the national resources,—the untold derangement of affairs, not only at home, but abroad,—the levy of armies without example,—the devastation of extended[Pg 33] spaces of territory,—the plunder of peaceful ships on the ocean, and the slaughter of fellow-citizens on the murderous battle-field,—such are some of the consequences proceeding directly from them.

To carry forward still further the gigantic crime of which they were so large a part, these two old men, with their two younger associates, stole from Charleston on board a Rebel steamer, and, under cover of darkness and storm, running the surrounding blockade and avoiding the national cruisers, succeeded in reaching the neutral island of Cuba, where, with open display and the knowledge of the British consul, they embarked on board the British mail packet Trent, bound for St. Thomas, whence they were to embark for England, in which kingdom one of them was to play the part of Ambassador of the Rebellion, while the other was to play the same part in France. The original treason, conspiracy, and rebellion, of which they were so heinously guilty, were all continued on this voyage, which became a prolongation of the original crime, destined to still further excess through their ambassadorial pretensions, which it was hoped would array two great nations against the United States, and enlist them openly in support of an accursed Slaveholding Rebellion. While on their way, the pretended ambassadors were arrested by Captain Wilkes, of the United States steamer San Jacinto, an accomplished officer, already well known by scientific explorations, who on this occasion acted without instructions from his Government. If in this arrest he forgot for a moment the fixed policy of the Republic, which has been from the beginning like a frontlet between the eyes, and transcended the Law of Nations, as the United States have[Pg 34] always declared it, his apology will be found in the patriotic impulse by which he was inspired, and the British examples he could not forget. They were the enemies of his country, embodying in themselves the triple essence of worst enmity,—treason, conspiracy, and rebellion; and they bore a professed ambassadorial character, which, as he supposed, according to high British authority, rendered them liable to be stopped, while, as American citizens, they were liable to seizure by the National Government in strict conformity with long continued British practice. If, in the ardor of an honest nature, Captain Wilkes erred, he might well say,—

If this transaction be regarded exclusively in the light of British precedents, if we follow the seeming authority of the British Admiralty, speaking by its greatest voice, and especially if we accept the oft repeated example of British cruisers, upheld by the British Government against the oft repeated protests of the United States, we find little difficulty in vindicating it. The act becomes questionable only when brought to the touchstone of those liberal principles which from the earliest times the American Government has openly avowed and sought to advance, and other European nations have accepted with regard to the sea. Great Britain cannot complain, except by adopting those identical principles; and should we[Pg 35] undertake to vindicate the act, it can be only by repudiating those identical principles. Our two cases will be reversed. In the struggle between Laertes and Hamlet, the combatants exchanged rapiers, so that Hamlet was armed with the rapier of Laertes, and Laertes with the rapier of Hamlet. And now, on this sensitive question, a similar exchange occurs. Great Britain is armed with American principles, while to us are left only those British pretensions which throughout our history have been constantly, deliberately, and solemnly rejected.

Earl Russell, in his despatch to Lord Lyons, communicated to Mr. Seward, contents himself by saying that “it appears that certain individuals have been forcibly taken from on board a British vessel, the ship of a neutral power, while such vessel was pursuing a lawful and innocent voyage,—an act of violence which was an affront to the British flag, and a violation of International Law.”[33] Here is positive assertion that the ship, notoriously having on board the Rebel emissaries, was pursuing a lawful and innocent voyage; but there is no specification of the precise ground on which the act is regarded as a violation of International Law. Of course, it is not an affront; for an accident can never be an affront to an individual or to a nation.

But public report, authenticated by various authorities, English and Continental, forbids us to continue ignorant of the precise ground on which this act is presented as a violation of International Law. It is admitted that a United States man-of-war, meeting a British mail steamer beyond the territorial limits of[Pg 36] Great Britain, may subject her to visitation and search; also that such man-of-war might put a prize crew on board the British steamer, and take her to a port of the United States for adjudication by a Prize Court there; but it is alleged that she would have no right to remove the individuals, not apparently officers in the military or naval service, and carry them off as prisoners, leaving the ship to pursue her voyage.[34] Under the circumstances, in the exercise of a belligerent right, the British steamer, with all on board, might have been captured and carried off; but, according to the British law officers, on whose professional opinion the British Cabinet acted, the whole proceeding was vitiated by failure to take the packet into port for condemnation. This failure is the occasion of much unprofessional objurgation; and we are emphatically and constantly reminded that the custody of the individuals in question could not be determined by a navy officer on his quarter-deck, so as to supersede the adjudication of a Prize Court. This is confidently stated by an English writer, assuming to put the case for his Government, as follows.

The same authority flourishes the same objection again.

[Pg 37]

Such declarations in an important journal, and in precise harmony with the opinions of the British law officers, seem semi-official in character.

Thus it appears that the present complaint of the British Government is not founded on any assumption by the American war steamer of the belligerent right of search,—nor on the ground that this right was exercised on a neutral vessel between two neutral ports,—nor that it was exercised on a mail steamer, sustained by subvention from the Crown, and officered in part from the royal navy,—nor that it was exercised in a case where the penalties of contraband could not attach; but it is founded simply and precisely on the idea that persons other than apparent officers in the military or naval service cannot be taken out of a neutral ship at the mere will of the officer exercising the right of search, and without any form of trial. Therefore the Law of Nations has been violated, and the conduct of Captain Wilkes must be disavowed, while men who are traitors, conspirators, and rebels, all in one, are allowed to go free.

Surely, that criminals, though dyed in guilt, should go free, is better than that the Law of Nations should be violated, especially in any rule by which war is restricted and the mood of peace is enlarged; for the Law of Nations cannot be violated without overturning the protection of the innocent as well as the guilty. On this general principle there can be no question. It is[Pg 38] but an illustration of that important maxim, recorded in the Latin of Fortescue, “Better that twenty guilty should escape than one innocent man should suffer,”[37] with this difference, that in the present case four guilty ones escape, while the innocent everywhere on the sea obtain new security. And this security becomes more valuable as a triumph of civilization, when it is considered that it was long refused, even at the cannon’s mouth.

Remember, Sir, that the question in this controversy is strictly a question of law,—precisely like a question of trespass between two neighbors. The British Cabinet began proceedings by taking the opinion of their law advisers, precisely as an individual begins proceedings in a suit at law by taking the opinion of his attorney. To make such a question a case of war, or to suggest that war is a proper mode of deciding it, is simply to revive, on a gigantic scale, the exploded Ordeal by Battle, and to imitate those dark ages when such proceeding was openly declared to be the best and most honorable mode of deciding even an abstract point of law. “It was a matter of doubt and dispute,” says a mediæval historian, “whether the sons of a son ought to be reckoned among the children of the family, and succeed equally with their uncles, if their father happened to die while their grandfather was alive. An assembly was called to deliberate on this point, and it was the general opinion that it ought to be remitted to the examination and decision of judges. But the Emperor, following a better course, and desirous of dealing honorably with his people and nobles, appointed the matter to be decided by battle between two champion[Pg 39]s.”[38] In similar spirit has it been latterly proposed, amidst the amazement of the civilized world, to withdraw the point of law, now raised by Great Britain, from peaceful adjudication, and submit it to Trial by Combat. The irrational anachronism becomes more flagrant from the inconsistency of the party making it; for it cannot be forgotten, that, in times past, on this identical point of law, Great Britain persistently held an opposite ground from that she now takes. Hereafter, in a happier moment, this exacting power may regret the swiftness with which she undertook to gird herself for unnatural combat, on a mere point of law, with a friendly nation already struggling against domestic enemies,—especially as impartial history must record that her heavy sword was to be thrown into the scale of Slavery.

The British complaint seems narrowed to a single point, although there are yet other points, on which, had the ship been carried into port for adjudication, controversy must have arisen. The four following have been presented in the case.

1. That the seizure of the Rebel emissaries, without taking the ship into port, was wrong, inasmuch as a navy officer is not entitled to substitute himself for a judicial tribunal.

2. That, had the ship been carried into port, it would not have been liable on account of the Rebel emissaries, inasmuch as neutral ships are free to carry all persons not apparently in the military or naval service of the enemy.

[Pg 40]

3. Are despatches contraband of war, so as to render the ship liable to seizure?

4. Are neutral ships, carrying despatches, liable to be stopped between two neutral ports?

These I shall consider in their order, giving special attention to the first, which is the pivot of the British complaint. If, in this discussion, I expose grievances which it were better to forget, be assured it is from no willingness to revive the buried animosities they once so justly aroused, but simply to exhibit the proud position which the United States early and constantly maintained.

A question of International Law should not be presented on any mere argumentum ad hominem. It would be of little value to show that Captain Wilkes was sustained by British authority and practice, if he were condemned by International Law as interpreted by his own country. It belongs to us now, nay, let it be our pride, at any cost of individual prepossession or transitory prejudice, to uphold that law in all its force, as it was often declared by the best men in our history, and illustrated by national acts; and let us seize the present occasion to consecrate its positive and unequivocal recognition. In exchange for the prisoners set free, we receive from Great Britain a practical assent, too long deferred, to a principle early propounded by our country, and standing forth on every page of our history. The same voice that asks for their liberation renounces in the same breath an odious pretension, for whole generations the scourge of peaceful commerce.

Great Britain, throughout her municipal history, has practically contributed to the establishment of freedom beyond all other nations. There are at least seven institutions[Pg 41] or principles which she has given to civilization: first, the trial by jury; secondly, the writ of Habeas Corpus; thirdly, the freedom of the press; fourthly, bills of rights; fifthly, the representative system; sixthly, the rules and orders of debate, constituting Parliamentary Law; and, seventhly, the principle that the air is too pure for a slave to breathe,—long ago declared, and first made a conspicuous reality, by British law. No other nation can show such peaceful triumphs. But, while thus entitled to gratitude for glorious contributions to Municipal Law, we turn with dissent and sorrow from much which she has sought to fasten upon International Law. In municipal questions, Great Britain drew inspiration from her own native Common Law, instinct with freedom; but, especially in maritime questions arising under the Law of Nations, this power seems to have acted on that obnoxious principle of the Roman Law, positively discarded in municipal questions, Quod principi placuit legis vigorem habet, and too often, under this inspiration, imposed upon weaker nations her own arbitrary will. A prerogative of the English monarch, mentioned in very express and pompous terms by early writers, was “the Custody of the Sea,” and he is frequently styled “The Sovereign Lord and Proprietor of the Sea.” But beyond these titles, the time has been when she pretended to actual sovereignty over the seas surrounding the British Isles, as far as Cape Finisterre to the south, and Vanstaten in Norway to the north. Driven from this lordly pretension, other pretensions, less local, but hardly less offensive, were avowed. The boast of “Britannia rules the waves” was practically adopted by British Prize Courts, and universal maritime rights were subjected to the special exigencies[Pg 42] of British interests. In the consciousness of strength, and with an irresistible navy, this power has put chains upon the sea.

The commerce of the United States, as it began to whiten the ocean, was cruelly decimated. American ships and cargoes, while, in the language of Earl Russell, “pursuing a lawful and innocent voyage,” suffered from British Prize Courts more than from rock or tempest. Shipwreck was less frequent than confiscation, and, when it came, was easier to bear. But the loss of property stung less than the outrage of impressment, by which foreigners, under protection of the American flag, and also American citizens, without any form of trial, and at the mere mandate of a navy officer, who for the moment acted as a judicial tribunal, were dragged from the deck which should have been to them a sacred altar. This outrage, insolently vindicated by the municipal claim of Great Britain to the services of her subjects, was enforced arrogantly and perpetually on the high seas, where Municipal Law is silent and International Law alone prevails. The belligerent right of search, derived from International Law, and justly applicable to enemy property or contraband only, and not to men, was employed for this purpose, and the quarter-deck of every English cruiser became a floating judgment-seat. The leading organ of opinion in England, on the morning after the news that the Rebels had been taken from a British ship, thus confessed the precedents of British history:—

The practice began early and was continued constantly; nor did it discriminate among its victims. It is mentioned by Mr. Jefferson, and repeated by an excellent British writer on International Law, that two nephews of Washington, on their way home from Europe, were ravished from the protection of the American flag, without any judicial proceedings, and placed, as common seamen, under the ordinary discipline of British ships of war.[40] The victims were counted by thousands. Lord Castlereagh himself admitted, on the floor of the House of Commons, that an inquiry instituted by the British Government had discovered in the British fleet three thousand five hundred men claiming to be impressed Americans,—claiming only. But while unwilling to accept this large number as all Americans, his Lordship could not deny, “that, in the great extent of the British navy, there were sixteen or seventeen hundred individuals who were there contrary to the wishes of His Majesty’s Government, and who had some rational ground for demanding their liberation, on the ground of their being subjects of the United States,”—which, I take it, is a pleonastic circumlocution to denote that at least sixteen hundred American citizens were originally kidnapped and stolen from American ships on the high seas, to undergo the servitude of the British navy: all of which can be read[Pg 44] in the Parliamentary Debates.[41] At our Department of State upwards of six thousand cases were recorded, and it was estimated that at least as many more might have occurred, of which no information had been received.[42] Thus, according to official admission of the British minister, there was reason to believe that the quarter-deck of a British man-of-war had been made a floating judgment-seat three thousand five hundred times, while, according to the records of our own State Department, it had been made a floating judgment-seat six thousand times and upwards, and each time some citizen or other person was taken from the protection of the national flag without any form of trial whatever. If a pretension so intrinsically lawless could be sanctioned by precedent, Great Britain would have succeeded in interpolating it into the Law of Nations.

The numbers sacrificed have been often denied on the other side; but candid Englishmen have made admissions which are on record. The “Edinburgh Review,” at a moment when its authority was at its height, and truth prevailed above controversy, said:—

Such words by one of us might be treated as the exaltation of patriotic indignation. Here, it is history written by the other side.

Even assuming, that, according to frequent British allegation, the persons taken were British subjects and not American citizens, which would make the act identical with that of Captain Wilkes, this only presents in stronger relief the precise point now in issue. Whether the victims were American citizens or British subjects, there was in each case the same forcible entry of our ships and taking from our decks.

Protest, argument, negotiation, correspondence, and war itself—unhappily the last reason of republics, as of kings—were all employed by the United States in vain to procure renunciation of the intolerable pretension. The ablest papers in our diplomatic history are devoted to this purpose; and the only serious war in which we have been engaged, until summoned to subdue the Rebellion, was to overcome by arms this very tyranny, which would not yield to reason. Beginning in the last century, the correspondence is at length closed by the recent reply of Mr. Seward to Lord Lyons. The long continued occasion of conflict is now happily removed, and the pretension disappears forever,—to[Pg 46] take its place among the barbaric curiosities of the past.

But I do not content myself with asserting the persistent opposition of the American Government. It belongs to the argument that I should exhibit this opposition, and the precise ground on which it was placed,—being identical with that now adopted by Great Britain. Here the testimony is complete. If you will kindly follow me, you shall see it from the beginning in the public life of our country, and in the authentic records of the National Government.

This British pretension aroused and startled the administration of Washington, and the pen of Mr. Jefferson, his Secretary of State, was enlisted against it. In a letter to Thomas Pinckney, Minister at London, dated June 11, 1792, he announced the American doctrine.

In another letter to the same minister, dated October 12, 1792, he calls attention to a case of special outrage.

At a later day, also under the administration of Washington, Mr. Pickering, at that time Secretar[Pg 47]y of State, in a letter to Rufus King, Minister at London, dated June 8, 1796, after repeating the rule proposed by Mr. Jefferson, says:—

The same pretension was put forth under the administration of John Adams, and was again encountered. Mr. Marshall, afterwards the venerated Chief Justice of the United States, and at the time Secretary of State, in his instructions to Rufus King, at London, dated September 20, 1800, says:—

The same pretension showed itself constantly under the administration of Mr. Jefferson. Throughout the eight years of his Presidency, the repeated outrages of British cruisers never for a moment allowed it to be forgotten. Mr. Madison, during this full period, was Secretary of State, and none of the varied productions of his pen are more masterly than those in which he exposed this tyranny. In the course of the discussion he showed the special hardship found in the fact that[Pg 48] sailors were taken from the ship at the mere will of an officer, without any form of judicial proceedings, and thus early presented against the pretension of Great Britain the precise objection now adopted by her. Here are his emphatic words, in the celebrated instructions to Mr. Monroe, our Minister at London, dated January 5, 1804:—

[Pg 49]

Negotiations on this principle, thus distinctly enunciated, were intrusted at London to James Monroe, afterwards President of the United States, and William Pinkney, the most accomplished master of Prize Law our country has produced. But they were unsuccessful. Great Britain persisted. In reply to a proposal of the British commissioners, as reported in a joint letter to Mr. Madison, dated at London, September 11, 1806, the plenipotentiaries declared,—

In another joint letter, dated at London, November 11, 1806, the same plenipotentiaries say:—

Again, in letter dated at London, April 22, 1807, Messrs. Monroe and Pinkney say of the British commissioners:—

The British commissioners were two excellent persons,—Lord Holland and Lord Auckland; but, though friendly to the United States in their declarations, and Liberals in politics, they were powerless.

At home the question continued to be discussed by able writers. Among those whose opinions were of the highest authority was the former President, John Adams, who, from his retirement at Quincy, sent forth a pamphlet, dated January 9, 1809, in which the British pretension was touched to the quick, and again was presented the precise objection now urged by Great Britain against the seizure of the two Rebels. Depicting the scene, when one of our ships is boarded by a British cruiser, he says:—

At last all redress through negotiation was found impossible; and this pretension, aggravated into multitudinous tyranny, was openly announced to be one of the principal reasons for the declaration of war against Great Britain in 1812. In his message to Congress, dated June 1 of that year, Mr. Madison, who was now President, thus exposed its offensive character; and his words, directed against a persistent practice, are now[Pg 51] echoed by Great Britain in the single instance which has accidentally occurred on our side.

While the war was waging, the subject was still discussed. Mr. Grundy, of Tennessee, in the House of Representatives, in a report from the Committee on Foreign Affairs, said:—

Such was the American ground, occupied from the beginning without interruption, and from the beginning most persistently contested by Great Britain.

The British pretension was unhesitatingly proclaimed in the Declaration of the Prince Regent, afterwards George the Fourth, given at the palace of Westminster, January 9, 1813.

In the semi-official counter statement presented by Alexander J. Dallas, at the time Secretary of the Treasury, entitled “Exposition of the Causes and Character of the late War,” this pretension is thus described:—

The war was closed by the Treaty at Ghent; but, perversely, the British pretension was not renounced. Other negotiations, in 1818 under President Monroe, in 1823 also under Monroe, and again in 1827 under John Quincy Adams, expressly to procure its renunciation, were all unavailing. Of these various negotiations I forbear all details; but the language of Mr. Rush, our Minister at London, who pressed this question assiduously[Pg 53] for several years, beginning with 1818, should not be omitted. The case was never stated more strongly.

At last, in 1842, at the Treaty of Washington, Mr. Webster, calmly setting aside all idea of further negotiation on this pretension, and without even proposing any stipulation with regard to it, deliberately announced the principle irrevocably adopted by our Government. It was that announced at the beginning by Mr. Jefferson. This document is one of the most memorable in our history, and it bears directly on the existing controversy, when, in exposing the British pretension, it says:—

At a later day still, on the very eve of recent events, [Pg 54]we find General Cass, as Secretary of State, in elaborate instructions to our ministers in Europe, dated June 27, 1859, declaring principles which may properly control the present question. He says:—

Such is an authentic history of this British pretension, and of the manner in which it has been met by our Government. And now the special argument formerly employed by us against an intolerable pretension is invoked by Great Britain against the error of taking two Rebel emissaries from a British packet ship. If Captain Wilkes is right, then, throughout all these international debates, extending over at least two generations, have we been wrong.

[Pg 55]

It is sometimes said, that the steam packet, having on board the Rebel emissaries, was on this account liable to capture, and therefore the error of Captain Wilkes in taking the emissaries was simply of form, and not of substance. I do not stop to consider whether an exercise of summary power, against which our nation has so constantly protested, can, under any circumstances, be an error of form merely; for the national policy, most positively declared in diplomacy, and also attested in numerous treaties, leaves small room to doubt that a neutral ship with enemy passengers, not in the military or naval service, is not liable to capture, and therefore the whole proceeding was wrong, not only because the passengers were taken from the ship, but also because the ship, howsoever guilty morally, was not guilty legally, in receiving such passengers on board. If this question were argued on English authorities, it might be otherwise; but according to American principles, the ship was legally innocent. Of course, I say nothing of the moral guilt which an indignant patriotism will find forever indelible in that ship.

In the middle of the last century, the Swiss publicist Vattel declared, that, on the breaking out of war, we are no longer under obligation to leave the enemy in free enjoyment of his rights; and this principle he applied loosely to the transit of ambassadors.[60] Sir William Scott, afterwards known in the English peerage as Lord Stowell, quoting this authority, at the beginning of the present century, let fall these words:—

And this curt proposition, though in some respects indefinite, [Pg 56]has been often since repeated by writers on the Law of Nations. On its face it leaves the question unsettled, whether the emissaries of an unrecognized Government can be stopped. But there is another case in which the same British judge, who has done so much to illustrate International Law, has used language which seems to embrace not only authentic ambassadors, but also pretenders to this character, and all others who are public agents of the enemy. Says this eminent magistrate:—

Admit that the emissaries of an unrecognized Government cannot be recognized as ambassadors, with the liabilities as well as immunities of this character, yet, in the face of these words, it is difficult to see how a Government bowing habitually to the authority of Sir William Scott, and regarding our Rebels as “belligerents,” can assert that a steam packet, conveying emissaries from these belligerents, “sent out on the public service, at the public expense,” was, according to the language of Earl Russell, “pursuing a lawful and innocent voyage.” At least, in this assertion, the British Government seems to turn its back again upon its own history, or it sets aside the facts so openly boasted with regard to the public character of these fugitives.

[Pg 57]

On this question British policy may change with circumstances, and British precedents may be uncertain, but the original American policy is unchangeable, and the American precedents which illustrate it are solemn treaties. The words of Vattel and the judgments of Sir William Scott were well known to the statesmen of the United States; and yet, in the face of these authorities, which have entered so largely into this debate, the National Government at an early day deliberately adopted a contrary policy, to which for half a century there was steady adherence. It was plainly declared that only soldiers or officers could be stopped, thus positively excluding the idea of stopping ambassadors, or emissaries of any kind, not in the military or naval service. Mr. Madison, who more than any other person shaped our national policy on Maritime Rights, has stated it on this question. In his remarkable despatch to Mr. Monroe, at London, dated January 5, 1804, he says:—

Then again, in the same despatch, this statesman says:—

And once more, in the same despatch, he says:—

In pursuance of this principle, thus clearly announced and repeated, Mr. Madison instructed Mr. Monroe to propose a convention between the United States and Great Britain containing the following stipulation:—

Mr. Monroe pressed this stipulation most earnestly upon the British Government; but, though treated courteously, he could get no satisfaction. Lord Harrowby, the Foreign Secretary, in one of his conversations, “expressed concern to find the United States opposed to[Pg 59] Great Britain on certain great neutral questions, in favor of the doctrines of the Modern Law, which he termed novelties”;[67] and Lord Mulgrave, who succeeded this accomplished nobleman, persevered in the same dissent. Mr. Monroe writes, under date of 18th October, 1805:—

Afterwards Mr. Monroe was joined in the mission to London, as we have already seen, by Mr. Pinkney, and the two united in again presenting this same proposition to the British Government.[69] It was rejected, although the ministry of Mr. Fox, who was then in power, seems to have afforded at one time the expectation of an agreement.

While these distinguished plenipotentiaries were pressing this principle at London, Mr. Madison was maintaining it at home. In an unpublished communication to Mr. Merry, the British minister at Washington, bearing date 9th April, 1805, which I extract from the files of the State Department, he declared:—

In a reply bearing date 12th April, 1805, this principle was positively repudiated by the British minister;[Pg 60] so that the two Governments were ranged unequivocally on opposite sides. And this attitude was continued. In the subsequent negotiations at London, intrusted to Mr. Rush, in 1818, we find the two powers face to face. The Foreign Secretary was the celebrated Lord Castlereagh, who, according to Mr. Rush, did not hesitate to complain,—

To which Mr. Rush replied:—

Two champions were never more completely opposed than were the two Governments on this question.

The treaties of the United States with foreign nations are in harmony with the principle so energetically proposed and upheld,—beginning with the Treaty of Amity and Commerce with France in 1778, and ending only with the Peruvian treaty as late as 1851. Here is the provision in the treaty with France, negotiated by Franklin, whose wise forethought is always conspicuous:—

[Pg 61]

The obvious effect of this stipulation is twofold: first, that enemies, unless soldiers in actual service, shall not be taken out of a neutral ship; and, secondly, that such persons are not contraband of war so as to affect the voyage of a neutral with illegality. Such was the proposition of Franklin, of whom it has been said, that he snatched the lightning from the skies, and the sceptre from tyrants. That he sought to snatch the trident also is attested by his whole diplomacy, of which this proposition is part.

But the same principle is found in succeeding treaties, sometimes with a slight change of language. In the treaty with the Netherlands, negotiated by John Adams in 1782, the exception is confined to “military men actually in the service of an enemy,”[74]; and this same exception is also found in the treaty with Sweden in 1783,[75] with Prussia in 1785,[76] with Spain in 1795,[77] with France in 1800,[78] with Colombia in 1824,[79] with Central America in 1825,[80] with Brazil in 1828,[81[Pg 62]] with Mexico in 1831,[82] with Chile in 1832,[83] with Venezuela in 1836,[84] with Peru-Bolivia in 1836,[85] with Ecuador in 1839,[86] with New Granada in 1846,[87] with Guatemala in 1849,[88] with San Salvador in 1850,[89] and in the treaty with Peru in 1851.[90]

Such is unbroken testimony, in the most solemn form, to the policy of our Government. In some of the treaties the exception is simply “soldiers,” in others it is “officers or soldiers.” Observe, too, that every treaty testifies to the opinions of the Administration that negotiated it, and of at least two thirds of the Senate that ratified it,—so that this large number of treaties constitutes a mass of authority from which there can be no appeal, embracing all the great names of our history. It is true that among these treaties there is none with Great Britain; but it is also true that this is simply because our mother country refused assent, when this principle was presented as an undoubted part of International Law which our Government desired to confirm by treaty.

Clearly and beyond all question, according to American principle and practice, the ship was not liable to capture on account of the presence of emissaries, “not soldiers or officers”; nor could such emissaries be legally taken from the ship. But the completeness of this authority is increased by the concurring testimony of the Continent of Europe. Since the Peace of Utrecht, in 1713, the policy of the Continental States has generally[Pg 63] refused to sanction the removal of enemies from a neutral ship, unless military men in actual service. And now, since this debate has commenced, we have the positive testimony of the French Government to the same principle, given with special reference to the present case. M. Thouvenel, the Minister of the Emperor for Foreign Affairs, in a recent letter communicated to Mr. Seward, and published with the papers before the Senate, earnestly insists that the Rebel emissaries, not being military persons actually in the service of the enemy, were not subject to seizure on board a neutral ship.[91]

I leave this question with the remark, that it is perhaps Great Britain alone whose position here can be brought into doubt. Originally a party to the Treaty of Utrecht, this imperial power soon saw that its provisions in favor of Maritime Rights interfered plainly with that dictatorship of the sea which Britannia was then grasping. Maritime Rights were repudiated, and her Admiralty Courts have ever since enforced this repudiation.

Still another question occurs. Beyond all doubt there were “despatches” on board the ship,—such “despatches” as rebels can write. Public report, the statement of persons on board, and the boastful declaration of Jefferson Davis in an official document that these emissaries were proceeding under appointment from him, which appointment would be a “despatch” of the highest character,—and necessarily with instructions also, being another “despatch,”—seem to place this beyond denial. Assuming such fact, very notorious[Pg 64] at the time of sailing, the ship was liable to capture and to be carried off for adjudication, according to British authorities,—unless the positive judgment of Sir William Scott in the case of the Atalanta,[92] and also the Queen’s Proclamation at the commencement of the Rebellion, enumerating “despatches” among contraband articles, are treated as nullities, or so far modified in application as to be words and nothing more. Even if the judgment be uncertain and inapplicable, the Queen’s Proclamation is not. Does it not warn British subjects against “carrying officers, soldiers, despatches, arms, military stores or materials, … for the use or service of either of the said contending parties”? And we have the authority of a recent English writer, quoted by the English press, who characterizes the conveyance of despatches as “a service, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature.”[93]

But however binding and peremptory these authorities in Great Britain, they cannot be accepted to reverse a standing policy of the United States. For the sake of precision in rights claimed and accorded on the ocean, our Government has explained in treaties what was meant by contraband. As early as 1778, in the treaty with France negotiated by Franklin, after specifying contraband articles, without including despatches, it is declared that

This was before the judgment of Sir William Scott, [Pg 65]recognizing despatches as contraband; but in other treaties subsequent to this well-known judgment, and therefore practically discarding it, after enumerating contraband articles, without specifying “despatches,” the following provision is introduced:—

Then again John Quincy Adams, in his admirable draught of a treaty for the reform of Maritime Rights, after declaring specifically what shall be “under the denomination of contraband of war,” without including “despatches,” adds:—

Thus we have not only words of enumeration without mention of “despatches,” but also words of exception. These testimonies constitute the record of our nation on this question.

Here it may be remarked, that, while decisions of British Admiralty Courts are freely cited, there are none of our Supreme Court. If any existed, they would be of the highest value; but there are none, and I can imagine no better reason than because the question is so settled by treaties and diplomacy as to be beyond judicial inquiry.

The conclusion follows, that, according to American principle and practice, the ship was not liable on account[Pg 66] of despatches on board. And here again we have the testimony of Continental Europe, if we may accept the statement of Hautefeuille, and it would seem also that of the French Government, in the recent letter of M. Thouvenel.

The French champion of neutral rights vindicates the immunity of despatches against English construction in pointed language.

But Continental testimony is not uniform. So considerable an authority as Heffter recognizes the liability of a neutral vessel for “voluntarily forwarding despatches to or for a belligerent.”[98] This is on general grounds, independent of treaty or national usage.

Even if the ship were liable, so that Captain Wilkes would have been justified in bringing the Trent into port for adjudication, it does not follow that the two Rebels could be summarily seized and taken therefrom. Here again we are brought to that American principle which condemns the pretension of seizing even enemies on board a neutral vessel, unless they[Pg 67] are soldiers in actual service, and has constantly cried out against the desecration of our decks by British officers seizing our peaceful sailors under claim of allegiance to the British crown.

There is yet another question which remains. Assuming that despatches are contraband, would their presence on board a neutral ship, sailing between two neutral ports, render the voyage illegal? The mail steamer was sailing between Havana, a port of Spain, and St. Thomas, a port of Denmark. Here again, if we bow to English precedent, the answer is prompt. The British oracle has spoken. In a well-considered judgment, Sir William Scott declares that despatches taken on board a neutral ship, sailing from a neutral country and bound for another neutral country, are contraband,—but that, where there is reason to believe the master ignorant of their character, “it is not a case in which the property is to be confiscated, although in this, as in every other instance in which the enemy’s despatches are found on board a vessel, he has justly subjected himself to all the inconveniences of seizure and detention, and to all the expenses of those judicial inquiries which they have occasioned.”[99] Such is the Law of Nations according to Great Britain.

Even if this rule had not been positively repudiated by the United States, it is so inconsistent with reason, and, in the present condition of maritime commerce, so utterly impracticable, that it can find little favor. If a neutral voyage between two neutral ports is rendered illegal on this account, then the postal facilities of the world, and the costly enterprises by which they are[Pg 68] conducted, are exposed to interruptions under which they must at times be crushed, to the infinite detriment of universal commerce. If the rule is applicable in one sea, it is applicable in all seas, and there is no part of the ocean which may not be vexed by its enforcement. It would reach to the Mediterranean and to the distant China seas as easily as to the Bahama Channel, and be equally imperative in the chops of the British Channel. Not only the stately mail steamers traversing the ocean would be subject to detention and possible confiscation, but the same penalties must attach to the daily packets between Dover and Calais. The simple statement of such a consequence, following directly from the British rule, throws instant doubt over it, which the eloquent judgment of Sir William Scott cannot remove.

Here again our way is clear. American principle and practice have settled this question also. Wheaton commences his statement of the Law of Contraband by saying, “The general freedom of neutral commerce with the respective belligerent powers is subject to some exceptions. Among these is the trade with the enemy in certain articles called contraband of war.”[100] It will be perceived that the trade must be with the enemy, not with the neutral. And here the author followed the suggestions of reason and the voice of American treaties. In the celebrated treaty with Great Britain negotiated by John Jay in 1794, after an enumeration of contraband articles, it is expressly said, “And all the above articles are hereby declared to be just objects of confiscation, whenever they are attempted to be carried to an enemy.”[101] Of course, when on the way to neutrals[Pg 69], they are free. And the early treaties negotiated by Benjamin Franklin and John Adams are in similar spirit; and in precisely the same sense is the treaty with Prussia in 1828, which in its twelfth article revives the thirteenth article of our treaty with that same power in 1799, by which contraband is declared to be detainable only when carried to an enemy. Even if this rule were of doubtful authority with regard to articles of acknowledged contraband, it is positive with regard to despatches, which, as we have already seen, are among “merchandises and things” declared free; with regard to which our early treaties secured the greatest latitude. Nothing can be broader than the words in the treaty of 1778 with France:—

But the provision in the treaty with the Netherlands of 1782 is equally broad:—

If the immunity of neutral ships needed further confirmation, [Pg 70]it would be found again in the concurring testimony of the French Government, conveyed in the recent letter of M. Thouvenel,[104]—which is so remarkable for its brief, but comprehensive, treatment of the questions involved in this controversy. I know not how others may feel, but I like to believe that this communication, when rightly understood, may be accepted as a token of friendship for us, and also as a contribution to those Maritime Rights for which France and the United States in times past have done so much together. This eminent minister does not hesitate to declare, that, if the flag of a neutral cannot completely cover persons and merchandise in a voyage between two neutral ports, then its immunity will be but a vain word.

As I conclude what I have to say on contraband in its several divisions, I venture to assert that there are two rules in regard to it which the traditional policy of our country has constantly declared, and has embodied in treaty stipulations with every power that could be persuaded to adopt them: first, that no article is contraband, unless expressly enumerated and specified as such by name; secondly, that, when such articles, so enumerated and specified, are found by the belligerent on board a neutral ship, the neutral shall be permitted to deliver them to the belligerent, whenever, by reason of bulk or quantity, such delivery is possible, and then the neutral shall, without further molestation, proceed with all remaining innocent cargo to his destination, being any port, neutral or hostile, not at the time actually blockaded.

[Pg 71]

Such was the early fixed policy of our country with regard to contraband in neutral bottoms. It is recorded in several of our earlier European treaties. Approximation to it is found in other European treaties, showing our constant effort in this direction. But this policy was not supported by the British theory and practice of International Law, especially active during the wars of the French Revolution; and to this fact may be ascribed something of the difficulty which our Government encountered in effort to secure for this liberal policy the complete sanction of European nations. But in negotiations with the Spanish-American States the theory and practice of Great Britain were less felt; and so to-day that liberal policy, embracing the two rules touching contraband, is, among all American nations, the public law, stipulated and fixed in solemn treaties. I do not quote texts, but I refer to all these treaties, beginning with the convention between the United States and Colombia in 1824. These rules, if not directly conclusive on the question of contraband, at least help to exhibit that spirit of emancipation with which our country has approached the great subject of Maritime Rights.

Of course this discussion proceeds on the assumption that the Rebels are regarded as belligerents, which is the character especially accorded by Great Britain. If they are not regarded as belligerents, then is the proceeding of Captain Wilkes indubitably illegal and void. To a political offender, however deep his guilt, though burdened with the undying execrations of all honest men, and bending beneath the consciousness of the ruin he has brought upon his country, the asylum of a foreign jurisdiction is sacred, whether on shore or sea; and [Pg 72]it is among the proudest boasts of England, at least in recent days, that the exiles of defeated democracies, as well as of defeated dynasties, have found a sure protection beneath her meteor flag. And yet this lofty power has not always accorded to other flags what she claimed for her own. One of the objections made to any renunciation of impressment by Great Britain, at the beginning of the present century, was, “that facility would be given, particularly in the British Channel, by the immunity claimed for American vessels, to the escape of traitors”[105]: thus assuming, not only that traitors—companions of Robert Emmet, in Ireland, or companions of Horne Tooke, in England—ought to be arrested on board a neutral ship, but that impressment was needed for this purpose. This flagrant instance cannot be a precedent for the United States, which has maintained the right of asylum as firmly always as it has rejected the pretension of impressment.

If I am correct in this review, then the conclusion is inevitable. The seizure of the Rebel emissaries on board a neutral ship cannot be justified, according to declared American principles and practice. There is no single point where the seizure is not questionable, unless we invoke British precedents and practice, which, beyond doubt, led Captain Wilkes into his mistake. In the solitude of his ship he consulted familiar authorities at hand, and felt that in Vattel and Sir William Scott, as quoted by eminent writers, he had guides, while the inveterate practice of the British navy lighted his way. He was mistaken. There was a better example: it was[Pg 73] the constant, uniform, unhesitating practice of his own country on the ocean, conceding always the greatest immunities to neutral ships, unless sailing to blockaded ports, refusing to consider despatches as contraband of war, refusing to consider persons other than soldiers or officers as contraband of war, and protesting always against an adjudication of personal rights by summary judgment of the quarter-deck. Had these well-attested precedents been in his mind, the gallant captain would not, even for a moment, have been seduced from allegiance to those principles which constitute part of our country’s glory.

Mr. President, let the Rebels go. Two wicked men, ungrateful to their country, with two younger confederates, are set loose with the brand of Cain upon their foreheads. Prison-doors are opened; but principles are established which will help to free other men, and to open the gates of the sea. Never before in her renowned history has Great Britain ranged herself on this side. Such an event is an epoch. “Novus sæclôrum nascitur ordo.” To the liberties of the sea this power is at last committed. To a certain extent the great cause is now under her tutelary care. If the immunities of passengers not in the military or naval service, as well as of sailors, are not directly recognized, they are at least implied; if neutral rights are not ostentatiously proclaimed, they are at least invoked; while the whole pretension of impressment, so long the pest of neutral commerce, and operating only through lawless adjudication of the quarter-deck, is made absolutely impossible. Thus is the freedom of the sea enlarged in the name of peaceful neutral rights, not only by limiting the number of persons[Pg 74] exposed to the penalties of war, but by driving from it the most offensive pretension that ever stalked upon its waves. Farewell to kidnapping and man-stealing on the ocean! To such conclusion Great Britain is irrevocably pledged. Nor treaty nor bond is needed. It is sufficient that her late appeal can be vindicated only by renunciation of early, long-continued tyranny. Let her bear the Rebels back. The consideration is ample; for the sea became free as this altered power went forth, steering westward with the sun, on an errand of liberation.

In this surrender, if such it may be called, the National Government does not even “stoop to conquer.” It simply lifts itself to the height of its own original principles. The early efforts of its best negotiators, the patriot trials of its soldiers in an unequal war, at length prevail, and Great Britain, usually so haughty, invites us to practise upon principles which she has so strenuously opposed. There are victories of force: here is a victory of truth. If Great Britain has gained the custody of two Rebels, the United States have secured the triumph of their principles.

As this result is in conformity with our cherished history, it is superfluous to add other considerations; and yet I venture to suggest that estranged sympathies abroad may be secured again by open adhesion to principles which have the support already of Continental Europe, smarting for years under British pretensions. The powerful organs of opinion on the Continent are also with us. Hautefeuille, whose earnest work on the Law of Nations[106] is the arsenal of neutral rights, has entered into this debate with a direct[Pg 75] proposition for the release of the emissaries, as a testimony to the true interpretation of International Law. Another distinguished Frenchman, Agénor de Gasparin, whose impassioned love of liberty and enlightened devotion to our country impart to his voice all the persuasion of friendship, has made a similar appeal.[107] And a journal which of itself is an authority, the Revue des Deux Mondes, declares, in words which harmonize with what I have said to-day, that, “in disavowing a capture effected by the arbitrary initiative of a naval officer, without any of the guaranties of legal justice, without the intervention and the sanction of a Court of Admiralty, the United States, far from renouncing any of their political principles, would only render homage to the doctrine which they have ever professed on the rights of neutrals.” The same distinguished journal proceeds: “It would be in reality a true triumph for this doctrine so to apply it to the profit of a nation and of a government which have always contested or violated the rights of neutrals, but which would be henceforward constrained to the abandonment of their arbitrary pretensions by the conspicuous authority of such a precedent.”[108]

Nor is this triumph enough. The sea-god will in future use his trident less; but the same principles which led to the present renunciation of early pretensions naturally conduct to yet further emancipation of the sea. The work of maritime civilization is not finished. And here the two nations, equally endowed by commerce, and matched together, while surpassing all others, in peaceful ships, may gloriously unite in setting[Pg 76] up new pillars, to mark new triumphs, rendering the ocean a highway of peace, instead of a bloody field.

The Congress of Paris, in 1856, where were assembled the plenipotentiaries of Great Britain, France, Austria, Prussia, Russia, Sardinia, and Turkey, has already led the way. Adopting the early policy of the United States, often proposed to foreign nations, this congress authenticated two important changes in restraint of belligerent rights: first, that the neutral flag shall protect enemy goods, except contraband of war; and, secondly, that neutral goods, except contraband of war, are not liable to capture under an enemy’s flag. This is much. Another proposition, for the abolition of Privateering, was defective in two respects: first, because it left nations free to employ private vessels under public commission as ships of the navy, and therefore was nugatory; and, secondly, because, if not nugatory, it was too obviously in the special interest of Great Britain, which, through her commanding navy, would be left at will to rule the sea. No change can be practicable which is not equal in advantage to all nations; for the Equality of Nations is not a dry dogma merely of International Law, but a vital sentiment common to all. This cannot be overlooked; and every proposition must be brought sincerely to its equitable test.

There is a way in which privateering may be effectively abolished without shock to the Equality of Nations. A simple proposition, assuring private property on the ocean the same immunity it now enjoys on land, will at once abolish privateering, and relieve commerce on the ocean from its greatest perils, so that, like commerce on land, it will be undisturbed, except by illegal robbery and theft. Such a proposition must[Pg 77] operate for the equal advantage of all. On this account, and in the policy of peace, always cultivated by our Republic, it has been already presented to other nations. You have not forgotten the important paper in which Mr. Marcy did this service,[109] and the favor it found with European powers, always excepting Great Britain, whose opposition was too potential. But this vast cause was never commended with more force than by John Quincy Adams, as Secretary of State, when, in a masterly despatch, he declared that “private war, banished by the tacit and general consent of Christian nations from their territories, has taken its last refuge upon the ocean, and there continues to disgrace and afflict them by a system of licensed robbery, bearing all the most atrocious characters of piracy.”[110] The Governments of Europe were invited to enter into conventions by which “all warfare against private property upon the sea is disclaimed and renounced,” and at the same time the final suppression of the slave-trade assured, so that the freedom of the sea was associated with the freedom of men.[111] In the same humane interest, Henry Clay, as Secretary of State, invited Great Britain “to agree to the abolition of privateering, and no longer to consider private property on the high seas as lawful prize of war.”[112] In such a cause the effort alone was noble.

To complete the efficacy of this reform, closing the [Pg 78]gate against belligerent pretensions, Contraband of War should be abolished, so that all ships may navigate the ocean freely, without peril or detention from the character of persons or things on board: and here I only follow the Administration of Washington, enjoining upon John Jay, in his negotiation with England, to seek security for neutral commerce, particularly “by abolishing contraband altogether.”[113] The Right of Search, which, on outbreak of war, becomes an omnipresent tyranny, subjecting every neutral ship to the arbitrary invasion of every belligerent cruiser, would then disappear. It would drop, as the chains from an emancipated slave; or rather, it would exist only as an occasional agent, under solemn treaties, in the war waged by civilization against the slave-trade; and then it would be proudly recognized as an honorable surrender to the best interests of humanity, glorifying the flag which made it.

With the consummation of these reforms in Maritime Law, war will be despoiled of its most vexatious prerogatives, while innocent neutrals are exempt from its torments. One step further is needed to complete this exemption. Commercial Blockade must be abandoned; for, while its first effects are naturally felt by the belligerent against whom directed, it soon acts with kindred hardship upon all neutrals, near or remote, whose customary commerce is interrupted,—so that the blockade of an American port may cause distress in Liverpool and Manchester, in Lyons and Marseilles, scarcely less than if these great cities were under pressure of a blockading squadron. Neutrals, it is said, must not[Pg 79] relieve belligerents, and therefore blockade is effectively a two-edged sword, wounding belligerents on the one side and neutrals on the other side,—often, indeed, wounding neutrals as much as belligerents. If not designedly so, it becomes thus mischievous from the essential vice of its character. Blockade may be called the elephant of naval warfare, as destructive, often, to friends as to foes. So palpable is this becoming, that it is doubtful if neutrals will much longer allow such backhanded agency, smiting the innocent as well as the guilty, to continue under sanction of International Law. Its extinction is needed to complete the triumph of Neutral Rights.[114]

Such a change, just in proportion to its accomplishment, will be a blessing to mankind, inconceivable in grandeur. The statutes of the sea, thus refined and elevated, will be agents of peace instead of agents of war. Ships and cargoes will pass unchallenged from shore to shore, and those terrible belligerent rights under which the commerce of the world has so long suffered will cease from troubling. In this work our country began early. Hardly had we proclaimed our own independence, before we sought to secure a similar independence for the sea. Hardly had we made a constitution for our own government, before we sought to establish a constitution similar in spirit for the government of the sea. If not prevailing promptly, it was because we could not overcome the unyielding resistance of Great Britain. And now, behold, this champion of belligerent rights has “changed his hand and checked his pride.” Welcome to[Pg 80] the new-found alliance! Welcome to the peaceful transfiguration! Meanwhile, through all present excitements, amidst all trials, beneath all threatening clouds, it only remains for us to uphold the perpetual policy of the Republic, and to stand fast on the ancient ways.

[Pg 81]

APPENDIX.

[Pg 105]

OFFICE OF SENATOR, AND ITS INCOMPATIBILITY WITH OTHER OFFICE.

Remarks in the Senate, on the Case of General Lane, of Kansas, January 13, 1862.

MR. PRESIDENT,—The Senator from Connecticut [Mr. Foster] has presented the objections to the seat of General Lane ingeniously and ably; but I must frankly confess that he fails to satisfy me. I could not resist the brief, but decisive, statement of the Senator from New York [Mr. Harris], to which we listened the other day; and the ampler argument of the Senator from New Hampshire [Mr. Clark], to which we have listened to-day, seems to leave little more to[Pg 106] be said. I shall follow the latter without adding to the argument.

The language of the Constitution applicable to the case is explicit: “No person holding any office under the United States shall be a member of either House of Congress during his continuance in office.” But the question arises, Did General Lane hold any such office after he became Senator?

Not considering the case minutely, I content myself with briefly touching two points, either of which will be sufficient to secure his seat to General Lane.

1. At the time when the military appointment was received from the President, General Lane was simply Senator elect from Kansas, and not actually Senator. This cannot be questioned. Until he took the oath at your chair, Sir, he was Senator in title only, not in function. It is true, he already exercised the franking privilege; but this he will also exercise months after his term expires. The franking privilege was all that he possessed of Senatorial functions. On this point I read what is said by Mr. Cushing, in his elaborate work on the Law and Practice of Legislative Assemblies.

[Pg 107]

It is clear that the member elect is not invested with the office until qualified by taking the oath. If illustration of this rule be needed, it will be found in the Parliamentary History of Great Britain. Soon after the Revolution of 1688, two persons returned as members refused to take the oaths and were discharged. But there is an historic precedent almost of our own day. As the long contest for Catholic Emancipation in Great Britain was drawing to a close, Mr. O’Connell was elected by the County of Clare to a seat in Parliament. Presenting himself at the bar of the House of Commons, he refused to take the Oath of Supremacy, then required of all members, and was heard at the bar in support of his claim; but the House resolved that he was not entitled to sit or vote, unless he took this oath; and as he persisted in refusal, a writ was issued for a new election. Still later, the same question arose in the case of Baron Rothschild, the eminent banker of the Jewish persuasion, who, when elected as representative for the city of London, refused to take the oaths required, and on this account was kept out of his seat, until what is known as the Jews’ Relief Bill became a law. The conclusion is irresistible, that, until the oath was taken, General Lane had not entered upon his functions as Senator; and here the argument of the Senator from Connecticut, with regard to the effect of the oath, is strictly applicable. An oath in public, at your chair, Sir, being at once of record and sealing the acceptance of an office, is very different from the informal oath taken in private, at a distance, before a local magistrate, which is in the nature of an escrow, until recorded in the proper department.

2. Even if General Lane had been Senator, invested with the functions of the office, and completely qualified[Pg 108] by taking the necessary oath, it is still clear that the military duties he had undertaken did not operate as a resignation. And here I remark, that, when it is proposed to unseat a Senator, to deprive him of a place in this body,—I might almost say to deprive him of his rank,—the evidence must be complete. It must be, according to that old phrase of the Common Law, “certainty to a certain intent in every particular.” If there be doubt, either in law or fact, the interpretation should be in his favor. But this case requires no such interpretation. It is true that General Lane had entered upon certain military duties, but he had assumed no military office under the Constitution of the United States. Colonel Baker, a late lamented member of this body, had assumed military duties also. Like General Lane, he, too, had come forward at the summons of the President. It is true that Colonel Baker acted professedly under a commission from a State. General Lane has latterly acted under a similar commission; but at the moment in question he was acting under certain informal and extra-constitutional proceedings of the President, rendered necessary by the exigencies of the hour. The President, by proclamation, undertook to organize an army. He called for volunteers, and also for additions to the regular army. All approved the patriotic act. But I am at a loss to understand how it is supposed that this proceeding can be made effective to oust a Senator of his seat. The act of the President was proper, just, and patriotic; but clearly, and beyond all question, it needed the sanction of Congress to be completely legal. Without such sanction, the army must have drawn its breath from the proclamation alone, and every commission would have been[Pg 109] merely a token of Presidential confidence, liable to be defeated, first, by the failure of Congress to sanction the proclamation, and, secondly, by refusal of the Senate to advise and consent to the nomination. It was only when the Act of July 22d was passed, that the President was authorized to appoint new Brigadier-Generals. Then it was, for the first time, that a legal addition was made to the national army, and that this very office was legally created which General Lane was charged with accepting some time in June.

I do not forget the retroactive statute passed on the last day of the session, declaring that all the acts, proclamations, and orders of the President respecting the army and navy, and calling out or relating to the militia or volunteers, are approved, and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of Congress. The clause in the Constitution against ex post facto laws has been restricted by judicial interpretation to criminal matters; but I doubt if even this much questioned interpretation would sanction such a retroactive effect as is now proposed. So much, at least, I do know: the Senate is judge, without appeal, with regard to the seats of its members; and I am sure it will not unseat a Senator by a strained application of an ex post facto statute.

The conclusion is twofold: first, that at the time in question General Lane was not a Senator; and, secondly, that at the time in question he was not a Brigadier. The whole case is unreal. It is a question between an imaginary Senator and an impossible Brigadier; or rather, it is a question whether an imagined[Pg 110] seat in this body was lost by alleged acts under an impossible military commission. The seat of the Senator did not become a reality until some days after General Lane is supposed to have vacated it; and the military commission did not become a possibility until several weeks after General Lane had abandoned it.

Of course, with this view of the law on these two decisive points, it becomes entirely unnecessary to consider the multifarious and indefinite evidence with regard to what General Lane did in the way of accepting his military commission; because nothing that he did, and nothing that he could do, under that impossible commission, would operate legally in the present case.

I have no desire to follow at length the Senator from Kentucky, but I venture to ask the attention of the Senate simply to one of the points he has presented. According to him, General Lane, when elected as Senator, by the mere fact of his election became Senator, so that the Constitution operated to create an incompatibility between the function of Senator and the new office which it is said he accepted. The Senator from Kentucky, as I understood, argued that the function of the Senator, at least for the purpose of this case, commences with his election.

Mr. Sumner. Certainly, if the Senator will allow me just to make my statement. The Senator, I say, assumes that the function of the Senator, at least for the purposes of this case, commences with his election; and in support[Pg 111] of that assumption he quotes the Constitution of the United States, as follows:—

Now, Mr. President, I most humbly submit that the clause of the Constitution just quoted is entirely inapplicable. It has nothing to do with the question. I say, with all respect to the Senator, he might as well have quoted anything else in the Constitution. It does not bear on the case. It relates to an entirely different matter. There is another associate clause which does directly bear on this question. It is as follows:—

Those are the words, Sir, governing this case, and they conduct us directly to the question, when and at what time a person becomes a member of either House. That is the simple question.

Mr. Sumner. I will finish in one moment. Clearly he becomes a member of this body, so as to discharge his duties as Senator, and to be affected with the responsibilities of Senator, only when he has taken his oath at your desk, Sir,—not one minute before. There is nothing in the Constitution, there is nothing in the practice of any parliamentary body in this country, or in any other country, I think, pointing to any different[Pg 112] conclusion. Here I cannot err. The language of the Constitution is sufficiently precise, and I feel confident that the practice of Congress and of other parliamentary bodies is sufficiently authoritative. Therefore the conclusion is inevitable, that, until the 4th of July, last summer, General Lane, chosen Senator by the people of Kansas, was simply Senator elect, possessed through courtesy of the franking privilege, but enjoying no other Senatorial function.

Now I am ready to answer any question of the Senator.

Mr. Sumner. In a certain sense I should say it was.

Mr. Sumner. I should say in a certain sense it did. I have already said that he had the franking privilege, and I presume he was entitled to the emoluments of the place, such as they are; but had he not been qualified, he could not have drawn pay. It was only by taking the oath that he was entitled to pay from the Secretary of the Senate.

Mr. Sumner. The Senator must pardon me, if I cannot assent to his conclusion. He may have been a Senator to a certain extent, but not so as to create incompatibility with another office under the Constitution.

[Pg 113]

[Pg 114]

EXPULSION OF JESSE D. BRIGHT, OF INDIANA.

Speeches in the Senate, January 21 and February 4, 1862.

MR. PRESIDENT,—The expulsion of a Senator is one of the most solemn acts which this body can be called to perform. The sentence of a court in a capital case is hardly more solemn; for, though your judgment cannot take away life, it may take away all that gives value to life. Justice herself might well hesitate to lift the scales in which such a destiny is weighed. But duties in this world cannot be avoided. When cast upon us, they must be performed, at any cost of individual pain or individual regret,—especially in the present case, where the Senate, whose good name is in question, and the country, whose welfare is at stake, forbid us to hesitate.

In other similar cases, arising out of recent events, where the Senate has already acted, the persons in question were absent, openly engaged in rebellion. There[Pg 115] was no occasion for argument or discussion. Their guilt was conspicuous, like the rebellion itself. In the present case, the person is not absent, openly engaged in rebellion. He still sits among us, taking part in the public business, voting and answering to his name, when called in the roll of the Senate. His continued presence may be interpreted in opposite ways, according to the feelings of those who sit in judgment. It may be referred to conscious innocence, or it may be referred to audacious guilt.

That he takes his place in the Senate is not, therefore, necessarily in his favor. Catiline, after plotting the destruction of Rome, took his place in the Senate, and listened to the orator who denounced the treason; nor did the Roman patriot hesitate to point his eloquence by the exclamation that the traitor even came into the Senate,—“etiam in Senatum venit.” In the history of our country there is a well-known instance of kindred audacity. Benedict Arnold, after commencing correspondence with the enemy, and before detection, appeared at the bar of a court-martial in Philadelphia, and yet, with treason not only in his heart, but already in his acts, thus spoke, without a blush: “Conscious of my own innocence and the unworthy methods taken to injure me, I can with boldness say to my persecutors in general, and to the chief of them in particular,”—and, with this introduction, he alleged patriotic service.[125] You know well the result. The traitor thus appearing and speaking in open court continued his treason. The faithful historian does not hesitate to say that “at the moment these declarations were uttered he had[Pg 116] been eight months in secret correspondence with the enemy, and was prepared, if not resolved, when the first opportunity should offer, to desert and betray his country.”[126] History teaches by example; and the instances that I adduce admonish us not to be governed merely by appearances, but to look at things as they are, and to judge according to facts, against which all present professions are of little worth.

I put aside, therefore, the argument founded on the presence of the person in question. That he still continues in the Senate, and even challenges this inquiry, does not prove his innocence any more than it proves his guilt. The question is still open, to be considered carefully, gravely, austerely, if you will, but absolutely without passion or prejudice,—anxious only that justice should prevail. Your decision will constitute a precedent, important in the history of the Senate, either as warning or encouragement to disloyalty. And since our votes are to be recorded, I am anxious that the reasons for mine should be known.

The question may be properly asked, if this inquiry is to be conducted as in a court of justice, under all the restrictions and technical rules of judicial proceedings. Clearly not. Under the Constitution, the Senate, in a case like the present, is absolute judge, free to exercise its power according to its own enlightened discretion. It may justly declare a Senator unworthy of a seat in this body on evidence defective in form, or on evidence even which does not constitute positive crime. A Senator may deserve expulsion without deserving death;[Pg 117] for in the one case the proceeding is to purge the Senate, while in the other it is punishment of crime. The motives in the two cases are widely different. This identical discretion has been already exercised at this very session, as well as the last, in the expulsion of several Senators. And the two early precedents—the first of William Blount, in 1797, and the second of John Smith, in 1807—both proceeded on the assumption that the Senate was at liberty to exercise a discretion unknown to a judicial tribunal. In the well-considered report of the Committee in the latter case, prepared by John Quincy Adams, at that time Senator, we find the following statement.

I do not stop to consider and illustrate a conclusion thus sustained by precedent as well as reason. It is obvious that the Senate may act on any evidence satisfactory to show that one of its members is unworthy of his seat, without bringing it to th[Pg 118]e test of any rule of law. It is true that the good name of the individual is in question; but so also is the good name of the Senate, not forgetting also the welfare of the country; and if there are generous presumptions of personal innocence, so also are there irresistible instincts of self-defence, compelling us to act vigorously, not only to preserve the good name of the Senate, but also to save the country menaced by traitors.

Consider, too, the position of a Senator. Elected by the Legislature of his State, he sits for six years in this body, sharing its labors, its duties, its trusts. His official term is the longest known to the Constitution. The Representative, and the President himself, pass away; but the Senator continues. In ordinary times his responsibilities are large; but now they are larger still. On every question of legislation, touching our multitudinous relations, touching our finances, our army, our navy, touching, indeed, all the issues of peace and war,—also on every question of foreign policy, whether in treaties or in propositions disclosed in executive session,—and again, on all nominations by the President, judicial, executive, military, and naval,—the Senator is called to vote; and he is free to join in debate, and to influence the votes of others. With these great responsibilities are corresponding opportunities of knowledge with regard to the counsels of the Government. These doors are often closed against the public, but they are never closed against him. This position of the Senator gives to the question of his loyalty an absorbing interest. Surely it is of no small moment to know if there be among us any person unworthy of all this confidence.

[Pg 119]

The facts in the present case are few, and may be easily stated; for, beyond certain presumptions, they are of public notoriety, and above all doubt. Indeed, the whole case can be presented as plainly and as unanswerably as a mathematical proposition or a diagram in geometry.

On the 6th of November of the last year, Abraham Lincoln of Illinois was elected President by the popular vote. The election was in every respect constitutional; and yet, in violation of all the obligations of the Constitution, and all the duties of patriotism, a movement was instantly organized in the Slave States to set aside this election, by acts of conventions, if possible, but by violence, if necessary. The movement began in South Carolina, a State always mad with treason; and before the 1st of January then next succeeding, this State formally separated from the Union, renounced the National Government, and ranged in open rebellion. Georgia, Alabama, Mississippi, and Louisiana followed; and the precise object of this rebellion was to form a new government, with Slavery as its corner-stone. The Senators of these States, one after another, abandoned their seats in this Chamber, announcing a determination to seek their respective homes, and leaving behind menaces of war, should any attempt be made to arrest their wicked purposes.

Meanwhile military preparations were commenced by the Rebel States, who made haste to take military possession of forts and other property belonging to the National Government within their borders. Already, before the 1st of January, the Palmetto flag was raised over the custom-house and post-office at Charleston; it[Pg 120] was also raised over Castle Pinckney and Fort Moultrie, in the harbor of Charleston, which, together with the national armory, then containing many thousand stands of arms and military stores, were occupied by Rebel troops in the name of South Carolina. At Charleston everything assumed the front of war. The city was converted into a camp. The small garrison under Major Anderson, after retreating from Fort Moultrie to Fort Sumter, was besieged in the latter fortress. Powerful batteries were erected to sustain the siege. From one of these batteries, on the 9th of January, a shot was fired at the United States steamship Star of the West, with the national flag at her mast-head, bearing reinforcements for the garrison, and the discomfited steamship put back to New York. The darling desire was to capture Fort Sumter, and various plans were devised for this purpose. One Rebel proposed to take the fort by floating to it rafts piled with burning tar-barrels, thus, as was said, “attempting to smoke the American troops out, as you would smoke a rabbit out of a hollow.” Another was for filling bombs with prussic acid, and sending them among the national troops. Another thought that it might be taken without bloodshed,—through silver, rather than shell,—simply by offering each soldier ten dollars of Rebel money. Another proposed a floating battery, through which, under cover of the stationary batteries, and with the assistance of an armed fleet, an attack might be made, while from some convenient point a party of sharpshooters would pick off the garrison, man by man, and thus give opportunity to scale the walls. But such a storming, it was admitted, could be accomplished only at a fatal sacrifice of life, and it was finally determined that the better way was[Pg 121] by protracted siege and starvation. Such, at this early day, were the propositions discussed in Charleston, and through the journals there advertised to the country.

The same spirit of rebellion, animating similar acts, appeared in the other Rebel States. On the 3d of January, Fort Pulaski, a fortress of considerable strength near Savannah, was occupied by Rebel troops of Georgia, acting under orders from the Rebel Governor. On the 4th of January, the national arsenal at Mobile, with arms, barrels of powder, and other munitions of war, was seized by Rebel troops of Alabama, as was also Fort Morgan on the same day. On the 11th of January, the marine hospital, two miles below New Orleans, was seized by Rebel troops of Louisiana, and the patients of the hospital, numbering two hundred and sixteen, were ordered away to make quarters for the Rebels,—thus repeating the indefensible atrocity of Napoleon, when, near Dresden, he seized an insane asylum for his troops, and set its inmates loose, saying, “Turn out the mad.”[128] On the 12th of January, Fort Barrancas and the navy-yard at Pensacola, with all their ordnance stores, were obliged to surrender to armed Rebels of Florida and Alabama, the commandant reporting to the National Government, “Having no means of resistance, I surrendered, and hauled down my flag.” On the 24th of January, the national arsenal at Augusta, in Georgia, also surrendered, upon demand of the Rebel Governor. On the 31st of January, the national branch mint, containing $389,000, and the national sub-treasury, containing $122,000, were seized at New Orleans by the Rebel authorities. Such, most briefly told, are some of the positive incidents[Pg 122] of actual war through which the Rebellion became manifest. And you also know, that, throughout the anxious period, when these things were occurring, the National Capital was menaced by the Rebels, proposing especially to disperse Congress, to drive away the National Government, and to seize the National Archives. Nor can you forget that Lieutenant-General Scott, then at the head of our army, under the exigencies of the time, changed his head-quarters from New York to Washington, where he gave his best powers to the national defence,—organizing the local militia, summoning the national troops, planting cannon, and in every way preparing to meet the threatened danger.

Meanwhile these Rebel States, having declared their separation from the National Government and forcibly seized its strongholds and other property within their borders, proceeded to constitute themselves into a political conglomerate, under the title of Confederate States. Their Constitution was adopted on the 8th of February, and the same day Jefferson Davis, of Mississippi, was elected President and commander-in-chief of the armies, and Alexander H. Stephens, of Georgia, Vice-President. Shortly afterwards, on the 21st of February, the President of the Rebellion nominated a Cabinet, in which Toombs, of Georgia, was Secretary of State, Memminger, of South Carolina, Secretary of the Treasury, and Walker, of Alabama, Secretary of War. To this extent had the Rebellion gone. No longer a mere conspiracy, no longer a simple purpose, no longer a mere outbreak, it was an organized body, or rather several organized bodies massed into one, and affecting the character and substance of government. Remember, too, that in all its doings and pretensions it was a Rebel governm[Pg 123]ent, set in motion by conspiracy and sustained by declared Rebellion, which openly disowned the National Government, openly seized the national forts, and openly dishonored the national flag. Of this flagrant Rebellion Jefferson Davis became the chosen chief, as he had already been for a long time the animating spirit. In him the Rebellion was incarnate. He was not merely its civil head, but its military head also. It was he who made cabinets, commanded armies, and gathered munitions of war. His voice and his hand were voice and hand of the Rebellion itself. By his own eminent participation, and the superadded choice of the Rebels, he had become its chief, as much as the old Pretender was chief of the disastrous Rebellion in Great Britain, crushed on the field of Culloden,—as much as Satan himself, when seated on his throne and rallying his peers of state, was chief of an earlier rebellion.

That transcendent outrage, in itself the culmination of the Rebellion, destined to arouse at last a forbearing people, had not yet occurred; but it was at hand. Fort Sumter had not been openly assailed; but the hostile batteries were ready, and the hostile guns were pointed, simply waiting the word of Rebel command, not yet given.

Precisely at this moment, on the 1st of March, 1861, Jesse D. Bright, at the time a Senator of the United States, addressed the following letter to the chief of the Rebellion.

And now, before considering the letter, look well at the parties and their respective positions. It is written by a person at the time Senator, and addressed to a person at the time chief of the Rebellion, in behalf of an unknown citizen, owner of a great improvement in fire-arms. It is proper to mention, as additional facts which will not be questioned, that the author had been for a long time in notorious personal relations with the conspicuous authors of the Rebellion, especially with Jefferson Davis and John Slidell,—that he had notoriously sympathized with them in those barbarous pretensions for Slavery which constitute the Origin and Mainspring of the Rebellion,—and that he had always voted with them in the Senate. All this is notorious; and if the old maxim, Noscitur a sociis, or, according to our familiar English, “A man is known by the company he keeps,” be not entirely obsolete, then this inquiry must commence with a presumption against such an intimate associate of the Rebels. But, while looking at the author, we must not forget the humble citizen intrusted with the letter. It is a fact, as I understand, that he has been since arrested for treason, and is now in the hands of the law, charged with the highest crime known to justice, while the author still occupies a seat in the Senate. Perhaps this is only another illustration of the saying of Antiquity, that the law is a cobweb,[Pg 125] holding the weak, but which the powerful break through with impunity. The agent is now in custody; the principal is yet in the Senate. So much at present with regard to the parties.

Next comes the letter itself. And here mark, if you please, first, the date, which is the 1st of March. This was at the very moment when the Rebellion was completely organized, and had assumed at all points the undisguised front of war. By various acts of violence it had forcibly dispossessed the National Government of all its military posts in the whole extensive region, except Fort Sumter and Fort Pickens, which it held in siege,—while, by other formal acts, it had assumed to dispossess the National Government of all jurisdiction, civil or military, throughout this region. That such acts constituted “levying of war,” within the meaning of the Constitution, is too plain for argument. This phrase, borrowed from the early statute of Edward the Third, has received positive interpretation in the country of its origin, according to which its meaning is clear. There is no better authority than Sir William Blackstone, who, when considering what is “levying of war,” says: “This may be done by taking arms, not only to dethrone the king, but under pretence to reform religion or the laws, or to remove evil counsellors, or other grievances, whether real or pretended: for the law does not, neither can it, permit any private man or set of men to interfere forcibly in matters of such high importance.”[129] And Lord Mansfield, Chief-Justice of England, on the trial of Lord George Gordon, declared it to be “the unanimous opinion of the Court, that an attempt, by intimidation and violence, to force the repeal of a[Pg 126] law, was a levying war against the king, and high treason.”[130] I quote these authorities simply that this statement may not rest at any point on my assertion. At the date of this letter, then, there was actual levying of war by Jefferson Davis and his associates against the Government of the United States. And let me add, that this levying of war was not merely that moderate constructive levying of war described by Blackstone, but open, earnest, positive war, backed by armies and by batteries.

You will next observe the address of this letter. It is “To His Excellency, Jefferson Davis, President of the Confederation of States.” Bestowing upon this Pretender the title of “His Excellency,” the author certainly exhibits a courtesy—at least in form—which usage does not allow the President of the United States. It is well known, that, at the organization of the Government, the title of “Excellency,” together with all other titles, was, after debate, carefully rejected for our Chief Magistrate; but the author of this treasonable letter will not deny anything to the Chief of the Rebellion. His profusion appears at once, and his first words become a confession. Not by titles of courtesy do loyal Senators address a traitor. There has been a King of England who on one occasion was called only Charles Stuart, and there has been a King of France who on one occasion was called only Louis Capet; and these great instances show how even the loftiest and most established titles are refused, where treason is in question. Titles are sometimes insincere; but a title voluntarily bestowed testifies at least to the professions of him who bestows it. It is a token of respect, and an invitation to good-[Pg 127]will, proceeding directly from the author. And in this spirit was this letter begun.

Not content with bestowing upon this Pretender a title of courtesy denied to our own President, the author proceeds to bestow upon him a further title of office and of power. He addresses him as “President of the Confederation of States,”—meaning the very States then engaged in levying war upon the National Government. So far as this author can go, just to the extent of his authority, the Pretender is recognized as President, and the Rebel States are described by the very title which, in defiance of the National Government, they assume. Our own Government steadfastly refuses this recognition. Foreign nations thus far follow substantially the policy of our own Government; but the author of this letter, at the time Senator, makes haste to offer recognition.

Perhaps this double criticism on the address of the letter may seem unimportant. It might be so, if the address had been used in conversation or debate, although then it would be tolerable only if used in derision. But it becomes important, when used directly to the Pretender himself; for then it signifies respect and recognition, while it discloses the mood of the author.

Look next at the contents, or the letter itself, and all that is implied in the address you will find painfully verified. The disloyalty which crops out in titles of courtesy and recognition becomes full-blown in the letter itself, whether we regard its general character or its special import; and I shall now consider these in their order.

In general character the letter is correspondence with a public enemy, in open war with our own country; or[Pg 128] rather let me say it is correspondence with a public rebel. It is obvious that all correspondence of such a character, even without considering its special import, is open to suspicion. Throughout history it has been watched with jealous judgment, as in the cases of Bolingbroke and Atterbury in England, of Pichegru and Fouché in France. Tried even by those technical rules which in the present inquiry we reject, it may help to complete the evidence of treason itself. The well-chosen language of the Constitution, borrowed from an early resolution of the Continental Congress, by whom it was borrowed from the early English statute, authorizes this conclusion. According to the Constitution, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Here are two classes of cases: the first is levying war, which Jefferson Davis, as we have already seen, was notoriously doing at the date of this letter; and the second is adhering to enemies, giving them aid and comfort. Even if mere correspondence with an enemy would not bring the author within the scope of these words, clearly and beyond all question such correspondence is calculated to give at least moral aid and comfort to the enemy. Nor is it to be disregarded on this occasion, even if it does not reach the technical requirement of treason. If we listen to the Supreme Court of the United States in the case of Bollman, we find this tribunal declaring, that, “if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued[Pg 129] in the general conspiracy, are to be considered as traitors.”[131] Assuming the previous league, it cannot be doubted that an act of sympathy and friendship, though minute or remote, extended to persons in rebellion, would be evidence to bring the offender within the cautious grasp of the Constitution, even on technical grounds. If in the present case there was no previous league, there was at least a previous and most notorious fellowship, kindred to a league, by which the author was morally linked to the conspirators.

But the letter in question is a letter of sympathy and friendship, from beginning to end,—such a letter as only one friend could write to another friend. Dated at Washington on the 1st of March, it was calculated, if received by the Pretender, to give him hope and confidence, by inspiring the idea that here in the Senate Chamber there was at least one person still wearing this high trust, who, forgetting all that was due to his country, and forgetting all that was due to the Rebellion, reached forth his hand in friendly salutation. Dated at Washington on the 1st of March, it was calculated, if received, to awaken doubt of the loyalty of the Senate itself, and to encourage belief that here, in this sanctuary of the Constitution, treason might hatch undisturbed. So are we all knit together, that we are strengthened by human sympathy; and the Pretender would have felt new vigor, as the strength of the American Senate was transfused through the declared sympathies of an acknowledged member. The patriot soul recoils from the ancient traitor who flashed a signal torch from a beleaguered citadel; but one of our own number, who yet sits among us, has done this very[Pg 130] thing.

Such is the necessary conclusion with regard to this letter, if we look at its general character. But when we consider its special import, the conclusion is still more irresistible. The letter clearly comes within the precise text of the Constitution. It is flat treason. I use no soft words, for the occasion does not allow it. Adhering to the enemy, giving them aid and comfort, must be proved by some overt act, of which Blackstone states the following instances: “As by giving them intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like.”[132] Such are precise words of this authority, and I do not stop to enforce them. But this letter is an overt act of adherence, giving aid and comfort, identical with the instances mentioned by Blackstone. Read it. “Allow me to introduce to your acquaintance,” so says the letter, “my friend Thomas B. Lincoln, of Texas.” The bearer of the letter is commended as a friend of the writer: but a friend is something more than associate or confederate; he is almost part of one’s self. Thus accredited, his errand is next announced: “He visits your capital mainly to dispose of what he regards a great improvement in fire-arms.” Mark the words “your capital.” Such is the language of an American Senator, writing to the Pretender, whose standard of Rebellion was then flying at Montgomery, in Alabama, which is thus deferentially designated as his capital. Observe next the declared object of the visit. It is “to dispose of what he regards a great improvement in fire-arms.” Thus does an American Senator send actual, open, unequivocal aid to th[Pg 131]e Chief of the Rebellion. It is true, he does not send him rifles or cannon; but he sends him “a great improvement in fire-arms,” through which rifles and cannon and other instruments of death, then preparing to be employed by Rebel hands against the patriot armies of the Republic, might be made more deadly. What are a few rifles, or a few cannon, by the side of such a comprehensive gift? When France, through the disguised agency of a successful dramatist,[133] sent ordnance and muskets to our Revolutionary fathers, she mixed herself positively in the contest, and, under the Law of Nations, Great Britain was justified in regarding her conduct as an act of war. And when an American Senator, without disguise, sends “a great improvement in fire-arms” to the Rebel chief, then engaged in levying war against his country, he mixes himself in the Rebellion, so that under Municipal Law he is a traitor. This conclusion is harsh, and I state it painfully; but it is according to the irresistible logic of the law and the facts.

But the letter contains other language to aggravate its guilt. Not content with sending the “great improvement in fire-arms,” the bearer is thus accredited to the Rebel chief: “I commend him to your favorable consideration, as a gentleman of the first respectability, and reliable in every respect.” An American citizen going forth on an errand of treason is thus exalted by an American Senator. The open traitor is announced as “a gentleman of the first respectability.” This is much to say of anybody; it is too much to say of an open traitor. But he is “reliable in every respect.” All language is to be con[Pg 132]strued with reference to the matter which it concerns. The bearer of this letter, going forth on an errand of treason, is “reliable in every respect”; and as the universal contains the special, he is reliable especially for the purposes of his treason: and this is the commendation which he bears to the Rebel chief from an American Senator.

Such a letter naturally begins, “My dear Sir,”—for the Chief of the Rebellion is evidently dear to the writer. That such a letter should be signed, “Very truly yours, Jesse D. Bright,” is natural also, and the words are not mere form. The author evidently, according to the contents of the letter,—as appears alike in its general character and its special import,—belongs to the Rebel chief, and is one of his “own.” In writing to the Rebel chief, he honestly begins, “My dear Sir,” and honestly closes, “Very truly yours”; but a person thus beginning and thus closing a letter of treason, volunteered to the declared enemy of his country, can hardly expect welcome to the confidential duties of this body.

Of course, in this inquiry, I assume the genuineness of the letter. If this letter were to be considered on technical grounds, the evidence would not be disdained even under the conservative words of our Constitution, according to which “no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” We have had the confession of the writer in open Senate, following similar confession in a supplementary letter, to which reference has been made in this debate. There can be no doubt on this point, and the writer must[Pg 133] stand or fall by this letter, unless something has occurred since which can be accepted in extenuation of the unfortunate transaction.

It is true that the bearer of the letter was not able to present it. Before consummating his errand of treason, he was arrested by the watchful officers of the law, and, as we have already seen, is now in custody. The agent is in the hands of the law, while we debate on the seat of his principal. At the risk of introducing a superfluous topic, I cannot forbear adding that the crime of the principal was perfect when he wrote the letter and delivered it to his agent. It was expressly decided in England long ago, that a treasonable communication, “though intercepted, is an overt act of treason”; and this early principle was repeated by the Court of King’s Bench, speaking by the voice of Lord Mansfield, in the case of Dr. Hensey,[134] and again by the same court, under Lord Kenyon, in the case of William Stone.[135] It is completely applicable to the present case, even if our inquiry proceeded on technical grounds.

But the history of the transaction is not yet complete. Other incidents have occurred since, which are strangely offered in extenuation of the original crime. At the arrest of the agent, towards the close of last summer, the letter was found among his papers. Of course it excited much attention and some feeling. This was natural. At last the author, who still sits among us, addressed a second letter to his late colleague in this body [Mr. Fitch].

[Pg 134]

Mr. Sumner. Very well. The letter, dated “At my Farm, September 7, 1861,” proceeds as follows: “The letter to which you refer is no doubt genuine. I have no recollection of writing it; but if Mr. Lincoln,” the bearer of the letter, “says I did, then I am entirely satisfied of the fact; for I am quite sure I would have given, as a matter of course, just such a letter of introduction to any friend who had asked it.” Thus, as late as the 7th of September, in the retirement of his farm, the original letter was approved and sanctioned. I would not exaggerate the effect of this second letter, as I need not exaggerate any point in this unhappy case; but, in view of the character of the original letter, the second letter can only be considered as marking either stolid hardihood of guilt or stolid insensibility to those rules of duty without which no man can be a good citizen; but either way, it only adds to the offensive character of the original transaction, and makes the duty of the Senate more plain.

I do not dwell on other topics of this second letter, because, though exhibiting bad temper and bad principles, they do not necessarily conduct to treason. The author is welcome to express “utter contempt for Abolitionism,” and also to declare his early and constant opposition to what he calls “the entire coercive policy of the Government.” Such declarations may render him an unsafe counsellor, but they do not stamp him as traitor. And it belongs to us, while purging this body of disloyalty in all its forms, to maintain at all hazards that freedom of speech which is herald and safeguard of all other freedom.

[Pg 135]

There is other testimony which aggravates the case still further. Not content with writing the traitorous letter, on the 1st of March, 1861, not content with approving and sanctioning this letter on the 7th of September, the author very recently rose in the place yet conceded to him in this Chamber, and deliberately said: “I have done nothing that I would not do over again under the same circumstances, and that I am not prepared to defend here or elsewhere.”[136] These words were uttered on this floor, in debate on another case which occurred as late as the 7th of January of this year. Thus was the original act of the 1st of March again affirmed, and the relations existing at that time with the Rebel chief proclaimed and vindicated; and all this in the American Senate, without a blush. Alas for that sensitive virtue which is the grace and strength alike of individuals and of communities! Surely it was wanting in him who could thus brave a just judgment: I fear it was wanting also in ourselves, when he was permitted to go without instant rebuke.

But I hear the suggestion, that at the date of this letter war was not yet flagrant, and that the author did not anticipate an actual conflict of arms. The first part of this suggestion is notoriously false. War had already begun, in the seizure of forts, and in the muster of Rebel armies; nay, more, in the very presence of the author, the gage of battle was flung down on this floor by Senators leaving to take part in the Rebellion. This has been unanswerably shown by the Senator from Minnesota [Mr. Wilkinson]. But the second part of the suggestion attributes to the author an ignorance of the[Pg 136] well-known condition of things, inconsistent with his acknowledged intelligence. If the progress and development of the Rebellion had been in secret, if it had been masked by an impenetrable privacy, if it had been shrouded in congenial darkness, then this apology might be entitled to attention. But the Rebellion was open and complete; and on the 1st of March it was armed from head to foot, and in battle array against the National Government. Such was the actual condition of things, patent, certain, conspicuous to the whole country. And permit me to say that any apology now offered on pretext of ignorance shows simply a disposition to evade a just responsibility at any hazard of personal character.

I note the further suggestion, that the letter was written in carelessness, or in heedlessness, if you please, and without treasonable intent. Of course such a suggestion must be futile; for every man is presumed to know the natural consequences of his conduct. This is the rule of law, and the rule of patriotism. No man can be admitted to set up any carelessness or heedlessness as apology for treason. And I doubt not you will all agree with me, that a patriot Senator cannot be careless or heedless, when his country is in peril.

But I catch yet another suggestion, that this letter is trivial and insignificant to justify the condemnation of a Senator. Then, indeed, is disloyalty trivial; then is treason itself trivial. It is true, the letter is curt; it contains a single short paragraph only; but I have yet to learn that crime is measured by paragraphs or sentences, and that treason may not be found in a few words as well as in many. True, also, the letter is familiar in tone; but treason is a subtle wickednes[Pg 137]s, which sometimes stalks in state and sometimes shuffles in homely disguise. It is our duty to detect and to judge it, whatever form it takes.

Mr. President, let me not be unjust,—let me not lean even ungently against an offender; but you will pardon me, if I add, that against precise testimony, and in the face of unquestioned facts, I can find little in any present professions of loyalty to be accepted even in extenuation of the offence. The duty of the Senate depends upon former conduct, and not upon present professions. It is difficult to imagine any present professions which can restore the confidence essential to the usefulness of a Senator. It is in the hour of trial and doubt that men show themselves as they are, laying up for the future weal or woe,—and not afterwards, when all temptation to disloyalty is lost in the assured danger it must encounter, and when all positions have become fixed by events. Nor do I forget that mere professions have too often been a cover for falsehood. I refer again to the story of Benedict Arnold. After making his escape from the fort which he was about to betray, and finding shelter on board the British frigate, the Vulture, then swimming in the North River, he addressed a letter to General Washington, which begins as follows.

Perhaps these very words might now be repeated by the person whose seat is in question. He may not fancy being classed with Benedict Arnold; but the professions of that fugitive traitor are identical with the professions to which we have listened on this floor. There is still another letter to General Washington from the same quarter, only a few days later, that is equally suggestive. Arnold protests against the arrest and impending execution of Major André, who, he says, acted under his directions, and his promise of protection; and he adds, “As commanding officer in the department, I had an undoubted right to transact all these matters,”[138]—precisely as the person whose seat is in question avers in letter and debate that he had undoubted right to open that traitorous correspondence with the Chief of the Rebellion. But I proceed no further with this parallel.

Sir, if the present question were to be decided on grounds of sympathy, it would be pleasant to record our names so as to give the least personal pain. But we should act weakly and ignobly, if on any such ground we failed in the double duty now so urgent,—first, to the Senate, of which we are members, and next, to that country which has a right to our truest and most unhesitating devotion. If there be among us any person still enjoying the confidential trusts, legislative, diplomatic, and executive, of this Chamber, who, since Rebellion hoisted its flag and pointed its cannon, has failed in that loyalty which is an inviolable obligati[Pg 139]on,—even though his offence may not have the deepest dye of treason,—he is unworthy of a seat in the Senate; and be assured, Sir, that our country, which knows so well how to pardon all that is pardonable, expects that no such person, whatever his present professions, shall be recognized any longer as Senator.

Do not hesitate, then. The case is clear, and impartial history will so record it. No argument, no apology, no extenuation can remove or mitigate its requirements. There is a courage which belongs to this peaceful Chamber as much as to the battle-field, and now is the occasion for it. Above all, let no false tenderness substitute sympathy for judgment; and remember well, that, while casting out a faithless Senator, you will elevate the Senate and inspire the country.

Mr. President,—The Senator from Indiana [Mr. Bright], in the speech he has just made, referred to his personal relations with myself, and intimated, if he did not charge, that there had been some personal question or difference between us. Sir,——

Mr. Sumner. Excuse me.

Mr. Sumner. Let me finish. Sir, that is not the fact. Since I have been a member of this body, now more than ten years, it has been my fortune to mix in the debates on important public questions. On these[Pg 140] occasions I have encountered, as the record shows, the opposition of that Senator, and of his constant associates in this body, all of them now in open rebellion. With the Senator and his constant associates I never had personal question or difference. Therefore, when the Senator asserts any such thing, or suggests it, he goes entirely beyond the record, and I could not allow the debate to close to-night without interposing my positive denial.

Sir, I have approached this painful question free from all personal prejudice. I have no feeling against the Senator. There has been nothing in our past relations to turn the scales by a feather’s weight.

Mr. President,—This debate is about to close; but before the vote is taken I wish briefly to review it, and to show again that there is but one conclusion which can truly satisfy the Senate or the country. If your last judgment in this case were not of incalculable importance both for the Senate and the country, helping to elevate the one and to inspire the other, I should not venture again to claim your attenti[Pg 141]on. Such a precedent, so fruitful in good influences, should be completely commended and vindicated, that it may remain forever a commanding example.

Among all who have spoken, we naturally yield precedence on this occasion to the Senator from Indiana [Mr. Bright]. His speech was not long, but it afforded ample ground for regret, if not for condemnation. It showed offensively the same spirit which is found in the original letter; nor did it suggest anything in apology, except that the bearer of the letter was his lifelong friend, and that, when writing the letter, he did not dream of war: in other words, an act of unquestionable disloyalty was put under the double cloak of lifelong friendship and professed ignorance. The real condition of things was not noticed, while he sought to serve a friend. Because the bearer of the letter was his lifelong friend, and because the Senator did not see war ahead, therefore he was justified in sending forth this lifelong friend on an errand of disloyalty, ay, of treason itself, and of making him the instrument of aid and comfort to an organized rebellion. Of course such an argument shows weakness, and not strength; and the very weakness out of which it sprung naturally became impassioned and unjust. If any personal feeling could disturb that perfect equanimity which with me, on this occasion, is a sentiment and a duty, I might complain of that vindictive tone which broke forth, not only in personal imputation, but also in menace that what I said on the case of the Senator I dared not say again here or elsewhere; but I make no complaint. It is sufficient for me that I spoke in the conscious discharge of duty, and that I know of nothing in the vindictive tone or in the menace of the Senator[Pg 142] that can interfere with such duty, as I understand it. Therefore I put aside what he has said, whether of personal imputation, or of personal menace, or of argument; for they all leave him worse than if he had continued silent.

I put aside also the elaborate argument, lasting for more than a whole day, of the Senator from Kentucky [Mr. Davis], practically exalting Slavery above the Constitution, and, while life is sacrificed and property is taken, while great rights are trodden down and all human energies are enlisted in defence of our country, insisting that Slavery alone is too sacred to be touched. Sir, I put aside this argument, because it is utterly out of place and irrelevant; and I trust it is not my habit in debate to ramble from that straight line which is the shortest way to the desired point. There is a time to sow and a time to reap; and there will be a time to discuss the constitutional power of Congress to end this Rebellion, even if, in so doing, it is constrained to end Slavery itself.

I put aside, also, the suggestion of the Senator from New York [Mr. Harris], to the effect that the Senator from Indiana is now on trial, that our proceedings are judicial, and that the evidence before us is insufficient to satisfy the requirements of such a case. Surely this assumption proceeds on a mistake. The Senator from Indiana is not on trial, in the ordinary understanding of that term; nor are our proceedings judicial; nor is the evidence insufficient for the case. Under the Constitution, each House, with the concurrence of two thirds, may expel a member; but this large discretionary power is given simply for the protection of the body in the exercise of an honest and honorable self-defence. The[Pg 143] Senate itself is on trial just as much as the Senator; and permit me to say that the Senate will condemn itself, if it allow any person to continue among its members who has forfeited that peculiar confidence in his loyalty which is essential to his usefulness as Senator. It is vain to say that the evidence is insufficient. Technically and judicially it may be so; but according to all legislative precedents and all the rules of common life it is obviously sufficient, for it is beyond all practical doubt. My friend from New York did not hesitate at this session to vote for the expulsion of Breckinridge, of Polk, and of Johnson, without one scrap of evidence that he would recognize as a judge on the bench. How can he require evidence now which he did not require then?

I put aside, also, the argument of the Senator from Pennsylvania [Mr. Cowan], so carefully and elaborately stated, to the effect that on the 1st of March, when the disloyal letter was written, there was no war actually existing between the Rebel States and the United States. Even if this assumption were correct, even if the United States were still hesitating what course to adopt, nothing is clearer than this: the Rebel States were in rebellion,—organized, armed, and offensive,—with the avowed purpose of overthrowing the National Government within their borders; and such rebellion was, beyond all question, a levying of war under the Constitution of the United States, so that all adherence to it, giving aid and comfort, was treason itself. But even if not disposed to admit actual levying of war on the part of the Rebels,—though of this there can be no doubt,—there was surely preparation and purpose so to do; and any contribution to such preparation and[Pg 144] purpose was disloyalty, if not treason. Clearly, Jefferson Davis at that time was a traitor, at the head of traitors. What, then, can be thought of a Senator who offered arms to him?

I put aside, also, the suggestion of the Senator from New Jersey [Mr. Ten Eyck], founded on the language of the President in his inaugural address of the 4th of March. It is true that the President spoke of the Rebels in generous, fraternal words, such as became the Chief Magistrate of a great people, not yet renouncing the idea of conquering by kindness, and not forgetting that Leviathan was tamed by a cord. But, whatever the language of the President, it is none the less clear that the Rebellion at that very moment was completely organized by a succession of overt acts, which fixed the treasonable position of its authors, and especially of its chief, to whom the letter offering arms was addressed.

I put aside, also, the argument of the Senator from California [Mr. Latham], especially that part founded on the tolerance shown to treason, when uttered here by the retiring Rebels. Nobody questions that treason was uttered on this floor, or that treasonable counsels went forth from this Chamber. But the Senate was then controlled by the associates of the Senator of Indiana, and it was not in our power to check or chastise the traitors. It is within the recollection of many that those utterances were heard on this side of the Chamber, not only with indignant patriotism, but with bitter, stinging regret at the abject condition of the Senate, then so entirely in the hands of traitors that we were obliged to hear in silence. Surely such utterances, wicked with treason, constituting the very voice of the Rebellion, cannot be an apology for the disloyal[Pg 145] letter of the Senator; nor can silence, when we were powerless to act, be any argument for silence now that power and responsibility are ours.

I agree with the Senator from Illinois [Mr. Browning], that the whole conduct and declaration of the author may be legitimately employed to elucidate the character of this letter; but I found no supplementary charge on such conduct or declaration. Others may use the argument that the Senator has declared himself against coercion of the Rebel States, or that he has refused to vote the necessary means for the suppression of the Rebellion; but I use no such argument. Much as I lament such a course, and justly obnoxious as I regard it, yet I cannot consider it as an argument for expulsion of the Senator. Freedom of debate is among the triumphs of modern civilization; and it shall never be impaired by any vote or word of mine. To this freedom I have held fast, when almost alone in this body; and what I have steadily vindicated for myself against all odds I shall never deny to another. Therefore, if I am the judge, there is no Senator who will not always be perfectly free to speak and vote as he thinks best on every question that shall legitimately arise; but beyond this immunity he must not go. He shall not talk treason; he shall not parley with rebellion; he shall not address to it words of sympathy and good-will; especially, he shall not recognize its chief in his pretended character of President, nor shall he send him improved fire-arms to be employed in the work of treason.

Putting aside all these considerations, the case against the Senator from Indiana is clear. All apologies, all excuses, utterly fail. It is vain to say that the bearer[Pg 146] of the letter was his lifelong friend, as it is vain to say, also, that the Senator did not dream that there would be war. The first apology is as feeble as the second is audacious. If the Senator did not dream that there would be war, then why send arms to the chief of the Rebellion? To Jefferson Davis as a private citizen, to Jefferson Davis as a patriot Senator, there was no occasion or motive for sending arms. It was only to Jefferson Davis as chief of the Rebellion that arms could be sent; and to him, in that character, they were sent. But even if the Rebellion were not at that time manifest in overt acts,—as it clearly was,—still the sending of arms was a positive provocation and contribution to its outbreak, especially when the arms were sent by a Senator. And now, at the risk of repetition, I say again, it is not necessary that the war should have been commenced on the part of the United States. It is enough, that, on the part of Jefferson Davis, at the date of the letter, there was actual levying of war, or, at least, a purpose to levy war; and in either of these two cases, the latter as well as the former, the guilt of the Senator offering arms is complete,—call it treason, or simply disloyalty, if you will.

It is vain that you seek to surround the Senatorial letter-writer with the technical defences of a judicial tribunal. This will not do. They are out of place. God grant, that, in the administration of justice, a citizen arraigned for his life may always be presumed innocent till he is proved guilty! But, while zealously asserting this presumption in a criminal trial, I utterly deny it in the present case. The two proceedings are radically unlike. In the one we think most of the individual; in the other we think most of the Sen[Pg 147]ate. The flag-officer of a fleet, or the commander of a garrison, when only suspected of correspondence with the enemy, is without delay deprived of command; nor can any technical presumption of innocence be invoked in his defence. For the sake of the fleet, for the sake of the garrison, which must not be betrayed, it is your duty to see that he is deprived of command. Nor can a suspected Senator, with all his confidential trusts, legislative, diplomatic, and executive, expect any tolerance denied to a suspected flag-officer, or to a suspected commander of a garrison. If not strong, pure, and upright in himself, he must not expect to find strength, purity, and uprightness in any presumption of innocence, or in any technical rule of law. For the sake of the Senate, he must be deprived of his place. Afterwards, should he be arraigned at law, he will be allowed to employ all the devices and weapons familiar to judicial proceedings.

There is another illusion into which the Senator has fallen; and it seems to me that the Senator from New York, and perhaps other Senators, have followed him. It is the assumption, that, in depriving the Senator of his seat, we take from him something that is really his. This is a mistake. A Senator is simply a trustee. The Senator is trustee for Indiana. But his fidelity as trustee is now drawn in question; and since no person is allowed to continue as trustee whose character is not above suspicion,—inspired uberrimâ fide, according to the language of the law,—the case of the Senator should obviously be remanded to the State for which he still assumes to act. Should he be wronged by expulsion, then will that State promptly return him to his present trust, and our judgment will[Pg 148] be generously reversed. The Senator has no right for himself here; he does not represent himself; but he represents his State, of which he is the elected, most confidential trustee; and when his fidelity is openly impeached, there is no personal right which can become his shield. Tell me not of the seat of the Senator. Let the Senator be cautious in language. By courtesy the seat may be his; but in reality the seat belongs to Indiana; and this honored State, unsurpassed in contributions to the patriot armies of the Republic, may justly protest against longer misrepresentation on this floor by a disloyal Senator.

But the Senator from Pennsylvania [Mr. Cowan] exclaims—and the Senator from New York follows him—that the offence of the Senator is “treason or nothing.” For myself, I have no hesitation in expressing the conviction that it is treason. If it be not treason in a Senator to send arms to an open traitor, whom he at the same time acknowledges in his traitorous character, then it were better to blot out the crime of treason from our statute-book, and to rase its definition from the Constitution. Sir, it is treason. But even if not treason according to all the technical requirements of that crime, obviously and unquestionably it is an act of disloyalty so discreditable, so unworthy, and so dangerous as to render the duty of the Senate imperative. Is it nothing that the Senator should write a friendly letter, make open acknowledgment, and offer warlike aid to a public traitor? Is it nothing, that, sitting in this Chamber, the Senator should send to the chief of the Rebellion words of sympathy and arms of power? Is it nothing that the Senator should address the traitor in terms of courtesy and official respect? Is it nothing[Pg 149] that the Senator should call the traitor “His Excellency,” and should hail him “President of the Confederation of States”? And is it nothing that the Senator should offer to the traitor thus addressed what of all things he most coveted, to be turned against the Constitution which the Senator has sworn to support?

Sir, the case is too plain for argument. You cannot argue that two and two make four, that a straight line is the shortest distance between two points, or that the sun shines in the sky. All these are palpable to reason or to sense. But, if I did not see before me honored Senators, valued friends, who think otherwise, I should say that to the patriot soul it is hardly less palpable that a Senator, acknowledging in friendly correspondence the chief of a Rebellion set on foot in defiance of the United States, and sending to him arms, whose only possible use was in upholding the Rebellion, has justly forfeited that confidence which is as much needed as a commission to assure his seat in this Chamber. The case is very plain, and we have taken too much time to consider it. We have been dilatory when we ought to have been prompt, and have hearkened to technical defences when we should have surrendered to that indignation which disloyalty is calculated to arouse.

The Senator from New Hampshire [Mr. Clark] has reminded us—as John Quincy Adams reminded another generation—of that beautiful work of Art in the[Pg 150] other wing of the Capitol, where the Muse of History, with faithful pen, registers the transactions of each day, and he trusted that over against the record of past disloyalty another page might beam with the just judgment that followed. But there is another work of Art, famous as Art itself, and proceeding from its greatest master, which may admonish us precisely what to do. The ancient satrap Heliodorus, acting in the name of a distant sovereign, entered that sumptuous temple dedicated to the true God, where stood the golden candlesticks and hung the veil which was yet unrent, and profanely seized the riches under protection of the altar itself, when suddenly, at the intercession of the high priest, an angelic horseman armed with thongs is seen to dash the intruder upon the marble pavement, and to sweep him with scourges from the sacred presence. Now that disloyalty, in the acknowledged name of a distant traitor, intrudes into this sanctuary of the Constitution, and insists upon a place at our altar, there should be indignant chastisement, swift as the angelic horseman that moves immortal in the colors of Raffaelle. In vain do you interpose appeals for lenity or forbearance. The case does not allow them. I know well the beauty and the greatness of charity. For the Senator I have charity; but there is a better charity due to the Senate, whose solemn trusts are in jeopardy; and even if you do not accept completely the saying of Antiquity, which makes duty to country the great charity embracing all other charities, you will not deny that it is at least a commanding obligation, by the side of which all that we owe the Senator is small. And, Sir, let us not forget, let the precious example be present in our souls, that He who taught[Pg 151] the beauty and the greatness of charity was the first to scourge the money-changers from the temple of the Lord.

[Pg 152]

ANSWER OF A WITNESS CRIMINATING HIMSELF.

Remarks in the Senate, on the Bill relating to Witnesses before Committees, January 22, 1862.

MR. PRESIDENT,—There seems to be much inquiry as to the Common Law on this question, and various points are presented.

It is asked, for instance, whether a witness is obliged to answer, where his answer will render him infamous. I know the differences on this point, but cannot doubt that by the Common Law the witness is obliged to answer in such a case,—most certainly, if the question is relevant and material.

Again, it is asked if a witness is permitted to determine for himself whether to answer the question proposed. Here also the Common Law, when properly interpreted, is clear. The witness cannot be the final judge. He must submit to the decision of the Court, which will determine whether his answer may[Pg 153] criminate him, by revealing either guilt or a possible link in the evidence of guilt.

But then, Mr. President, why speak of the Common Law? Why revert to these antiquarian inquiries, when we have the Constitution of the United States specifically dealing with this very question? In the fifth article of the Amendments it is provided that “no person shall be compelled in any criminal case to be a witness against himself.” Such are the very words of the Constitution, derived from the Common Law, but imparting precision and limitation to the Common Law. Now it seems to me it will be enough, if, on this occasion, we follow the text of the Constitution. As in the pending proposition there is nothing inconsistent with the Constitution, we need not ransack the wide and ancient demesnes of the Common Law to stir up difficulties. Whatever the rule at Common Law, plainly under the Constitution its operation is restricted to a “criminal case,” leaving a case of infamy untouched.

I am free to say, Sir,—and what I am about to remark is particularly in answer to the Senator from New York [Mr. Harris],—that, if this question were presented independent of the Constitution, I should be little disposed to follow the Common Law. In my judgment the Common Law is less wise here than it ought to be. I cannot but think that the jurisprudence of other civilized countries, derived from the Roman Law, supplies a better rule. There is no other civilized jurisprudence under which a witness is excused from answering any question, though the answer may affect his character or honor, or even render him criminal. The Common Law, at an early day, under a generous inspiration, adopted a contrary principle, which,[Pg 154] crossing the ocean with our forefathers, is embodied in the text of the Constitution. Finding it there, I accept it; certainly I do not quarrel with it; but I cannot consent that it shall receive any expansion, especially interfering with the public interests. I hope the bill may pass as it comes from the House, without amendment. It is a good bill.

[Pg 155]

LIMITATION OF DEBATE IN THE SENATE.

Remarks in the Senate, on a Five Minutes’ Rule, January 27 and 29, 1862.

I am glad the Senator has modified his rule, so far as it bears on the length of speeches. He thinks a speech of five minutes long enough. If all had the happy faculty of my distinguished friend, who so easily speaks to the point, I doubt not it would be long enough; but we must take Senators as they are, according to our experience, and allow for their ways. Besides, such a rule would be a departure from the constant policy of the Senate.

[Pg 156]

I must confess that I hesitate to place among Rules of the Senate a limitation of debate to five minutes,—not that I desire in our conversations on business to exceed that allowance. Personally I am content with what pleases my associates; but I doubt the expediency of such a rule, which thus far is a stranger among us.

Limitations of debate in various forms play a large part in the other Chamber. Shall they begin here, even in the small way proposed? A five minutes’ rule is not the previous question, with its death-dealing garrote, but it is a limitation of debate, and the Senate has from the beginning set itself against any such restriction, insisting always upon the largest latitude and amplest opportunity.

If there were any obvious good to be accomplished by such a rule, if there were any exigency seeming to require the sacrifice, I should welcome it; but I put it to Senators, whether experience in Executive Session does not show that it is unnecessary. I cannot doubt that the very business contemplated by the rule would be discussed directly, plainly, briefly, according to the essential nature of the question, even without any restriction. But, if unnecessary, why make a change which will look so ill that it were better to bear inconvenience rather than have such a deformity?

It is enough, if on a critical occasion we are able to close our doors, leaving the great privilege of debate unchecked, to be employed as sword or buckler, according to the promptings of patriotism and the conscience of Senators.

[Pg 157]

INDUSTRIAL EXHIBITION AT LONDON.

Speech in the Senate, on the Joint Resolution providing for Representation there, January 31, 1862.

MR. PRESIDENT,—The Senator from New Hampshire [Mr. Hale] objects to the joint resolution, but he assigns no reason. When I make a personal appeal to him, he declines to answer. Of course, that is according to his right. He may be silent, though we are always too happy when he speaks. It becomes my duty, therefore, to explain the resolution, which I shall do in few words.

At the extra session of Congress in July last, a joint resolution was adopted in the following words:—

[Pg 158]

The resolution passed Congress, and was approved by the President on the 27th of July. Under it a Commission was organized by the President, with the Secretary of State as Chairman. Associated with him were eminent gentlemen from different walks of life, from different parts of the country——

Mr. Sumner. All parts,—the West, the North, and the East.

Mr. Sumner. You will find the names on the printed list. At a meeting in Washington, a sub-committee was organized for the direction of business. Through this sub-committee a correspondence has been conducted with persons all over the country interested in the Exhibition, and industrial products have been gathered at New York, to be forwarded to London; but their proceedings are stopped for want of means, and the actual question is simply this: Will the Senate allow the business already commenced under their auspices to fail, or will they make the needful appropriation to carry it forward?

There is at least one precedent. Ten years ago witnessed an industrial exhibition in London, which attracted the attention of the civilized world. There was no provision in advance by the Government of the United States for any representation there; but patriotic citizens came forward at the last moment, volunteered money and representation, and through their activity we became honorably known there,—so, indeed, I think I may say, as to gain renown for our industrial products. I would not exaggerate; but nobody can forget the triumph of the American reaper or the American[Pg 159] mower. I believe I state what cannot be denied, when I say, that, through the representation of American industry at that exhibition, we gained not only fame abroad, but new fields of activity for our industry, and new markets for our homely, but most useful products.

Now there is to be another exhibition, and the question is, whether our country shall be represented. An appropriation is needed for this purpose. The Committee, after most careful deliberation, not acting, I assure you, hastily, came to the conclusion that our country should be represented there, and they recommended the appropriation of the modest sum of $35,000. Persons interested in the subject desired a larger appropriation. The Committee concluded in favor of $35,000, as the utmost they would ask from Congress at the present time. Accordingly they have made that recommendation, believing it for the general welfare.

I do not know the objection of my friend from New Hampshire. Perhaps he is against any representation. If so, I can understand that he should oppose the appropriation. But is his objection founded on grounds of economy peculiar to the present moment, or is it because he is against such appearance at any time? If founded on grounds of economy peculiar to the present moment, I must say I cannot enter into his idea. Nobody more completely than myself can appreciate the importance of bending every corporal and intellectual agent to the work of putting down the Rebellion; but I am unwilling that meanwhile all the glorious and beneficent arts of peace should slumber. Nor would I, even while pushing this war to victory, cease to watch with guardian care the industrial interests of my country. Those interests, I am sure, will be advanced, if we[Pg 160] allow them to be represented at this great centre of industry; and so will all the national resources increase and multiply. And this is not simply because the exhibition is in London, or because it may open a market in London, but because through London we approach all the great markets of the world; and while making our products known in the great metropolis, we make them known wherever civilization extends. The exhibition will be an immense fair, to which exhibitors can have access only through their respective governments. I am unwilling to deprive American citizens of this opportunity.

I assume, therefore, that my friend cannot be against contributing to this exhibition simply on grounds peculiar to this moment. It must be on some other broader, more general ground. I must say that I cannot enter into that idea, either. If it was good for us to be represented ten years ago,—and I believe all, after the exhibition, were satisfied that it was good for us,—I believe it better now. Surely, all this my friend has at heart. I hope he will not forget that the interests of farmers, the interests of inventors, the interests of mechanics, the interests of all who toil and of all who produce,—in one word, the great diversified interests of the people, cannot fail to be promoted by this opportunity. And here is reason enough for the small outlay.

[Pg 161]

ORDER IN BUSINESS: EACH QUESTION BY ITSELF.

Remarks in the Senate, February 6, 1862.

MR. PRESIDENT,—It seems clear that the discussion in which we are launched is a departure from the question before the Senate. The pending bill is “to define the pay and emoluments of certain officers of the army, and for other purposes,” and an amendment is moved to reduce and regulate Congressional mileage. By what process of association the two are brought together it is not easy to see. Certainly nobody looking for light on Congressional mileage would think of exploring our army legislation.

My experience teaches me the advantage, not to say the beauty of order, in the business of legislation, as in all other business. There is a proper place for everything, and everything should be in its proper place. Especially should things plainly incongruous be kept apart, and without commixture. But what more unreasonable than the commixture proposed? Each measure may be good in itself, but the two do not [Pg 162]go together. They are without natural or logical connection. One is not the incident of the other, nor in any respect germane to the other. They should be in separate bills, and be discussed separately.

Here we are in high debate on the Army Bill, and all at once the subject is changed, although the original bill is still before the Senate. But Congressional mileage is enough by itself. Already it has occupied the attention of the country, has been discussed in the newspapers, and especially in the other House. It is a Serbonian bog, not indeed “where armies whole have sunk,” but only Members of Congress. Are you ready, while considering another question, to revive this debate, making it the accident of another, with which it has nothing to do? Is it advisable? Is it according to the natural order of business?

[Pg 163]

STATE REBELLION, STATE SUICIDE; EMANCIPATION AND RECONSTRUCTION.

Resolutions in the Senate, February 11, 1862. With Appendix.

Whereas certain States, rightfully belonging to the Union of the United States, have, through their respective Governments, wickedly undertaken to abjure all those duties by which their connection with the Union was maintained, to renounce all allegiance to the Constitution, to levy war upon the National Government, and, for the consummation of this treason, have unconstitutionally and unlawfully confederated together with the declared purpose of putting an end, by force, to the supremacy of the Constitution within their respective limits;

And whereas this condition of insurrection, organized by pretended Governments, openly exists in North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, Tennessee, and Virginia,—except[Pg 164] in Eastern Tennessee and Western Virginia,—and the President of the United States, in a proclamation duly made in conformity with an Act of Congress, has declared the same to exist throughout this territory, with the exceptions already named;

And whereas the extensive territory thus usurped by these pretended Governments and organized into a hostile confederation belongs to the United States, as an inseparable part thereof, under the sanctions of the Constitution, to be held in trust for the inhabitants in the present and future generations, and is so completely interlinked with the Union that it is forever dependent thereupon;

And whereas the Constitution, which is the supreme law of the land, cannot be displaced within this territory, but must ever continue the supreme law thereof, notwithstanding the doings of any pretended Governments, acting singly or in confederation, hostile to its supremacy: Therefore,—

[Pg 169]

APPENDIX.

[Pg 181]

TREASURY NOTES A LEGAL TENDER.

Speech in the Senate, on the Clause making Treasury Notes A Legal Tender, February 13, 1862.

MR. PRESIDENT,—I am sorry to ask the attention of the Senate at this late hour; but the importance of the question must be my apology.

In what I say I shall confine myself exclusively to a single feature of the present bill. Others may regret that the exigencies of the country were not promptly met by taxation,—or that at the beginning a different system was not organized by the Treasury, through which the national securities might have found a readier market,—or that the national credit was not sustained, at the period of bank suspension, by the resolute redemption of the Government securities in coin at any present sacrifice. But it is useless to discuss these questions. The time for such discussion has passed. The Tax Bill is not yet matured. The system adopted by the Treasury cannot be changed at once, if it were desirable. It is too late to organize the redemption of the national securities in coin on the daily application of holders. Meanwhile the exigencies of Government have become imperative. Money must be had.

And we are told that the credit of Government can be saved only by an act that seems like a forfeiture of credit. Paper promises are to be made a legal tender, like gold and silver; and this provision is to be ingrafted on the present bill authorizing the issue of Treasury notes to the amount of $150,000,000.

[Pg 183]

All confess that they vote for this proposition with reluctance, while to many it seems positively unconstitutional. Of course, if unconstitutional, there is an end of it, and all discussion of its character is superfluous. I am compelled by candor to declare that the doubts which perplex me do not proceed from the Constitution. If the question of constitutionality were in all respects novel, or, as lawyers phrase it, of first impression, then I might join with friends in their doubts. But it seems to me that the constitutional power of Congress to make Treasury notes a legal tender was settled as long ago as when it was settled that Congress might authorize the issue of Treasury notes; for from time immemorial the two have gone together, one as incident of the other, and, unless expressly severed, they naturally go together.

It is true that in the Constitution there are no words expressly conferring upon Congress the power to make Treasury notes a legal tender; but there are no words expressly conferring upon Congress the power to issue Treasury notes. If we consult the text, we find it as silent with regard to one as with regard to the other. There is no silence with regard to the States, which are expressly prohibited to “emit bills of credit,” or “make anything but gold and silver coin a tender in payment of debts.” Treasury notes are “bills of credit”; and this prohibition is imperative on the States. The inference is just, that this prohibition, expressly addressed to the States, was not intended to embrace Congress indirectly, as it obviously does not embrace it directly. The presence of the prohibition, however, shows that the subject was in the minds of the framers of the Constitution. If they failed to extend it still further, it is reasonable to conclude that they left the whole[Pg 184] subject in all its bearings to the sound discretion of Congress, under the ample powers intrusted to it.

The stress so constantly put upon the prohibitions addressed to the States will justify me in introducing the opinion of Mr. Justice Story, in his Commentaries.

Plainly, no inference adverse to the powers of the National Government can be drawn from these prohibitory clauses; for, whatever may be these powers, there will be a fixed and uniform value throughout the United States.

As we proceed, the case becomes more clear. The States are prohibited to issue “bills of credit”; but there is no such prohibition on the National Government, which may do in the premises what the States cannot do. The failure to prohibit is equivalent to a recognition of the power. In other words, the National Government may issue “bills of credit,” which have been characterized by no less a person than Chief-Justice Marshall, in pronouncing the opinion of the Supreme Court, when he said: “To ‘emit bills of credit’ conveys to the mind the idea[Pg 185] of issuing paper intended to circulate through the community for its ordinary purposes as money, which paper is redeemable at a future day.” And then again the learned Chief Justice said: “The term has acquired an appropriate meaning; and ‘bills of credit’ signify a paper medium, intended to circulate between individuals, and between Government and individuals, for the ordinary purposes of society.”[170] This “money” and “paper medium” the States are prohibited from emitting; but there is no such prohibition on the National Government,—as there is not a single word to prohibit the National Government from determining what shall be a legal tender.

From the proceedings of the National Convention it appears that a clause in the first draught of the Constitution empowering Congress to “emit bills on the credit of the United States” was after discussion struck out. In the debate on this clause, Mr. Madison asked: “Will it not be sufficient to prohibit the making them a tender? This will remove the temptation to emit them with unjust views.” Mr. Mason said, “Though he had a mortal hatred to paper money, yet, as he could not foresee all emergencies, he was unwilling to tie the hands of the [National] Legislature. He observed, that the late war could not have been carried on, had such a prohibition existed.” Mr. Mercer was “opposed to a prohibition of it altogether. It will stamp suspicion on the Government to deny it a discretion on this point.” Mr. Butler remarked, that “paper was a legal tender in no country in Europe. He was urgent for disarming the Government of such a power.” Mr. Mason was “still averse to tying the hands of the Legislature [Pg 186]altogether. If there was no example in Europe, as just remarked, it might be observed, on the other side, that there was none in which the Government was restrained on this head.” Mr. Gorham was “for striking out, without inserting any prohibition.” And this view finally prevailed.[171] Thus it appears that the suggestion was made to prohibit the making of bills a tender; but this suggestion was not acted on, and no such prohibition was ever moved. It is evident that the Convention was not prepared for a measure so positive. Less still was it prepared for a prohibition to emit bills. Such is the record. While all words expressly authorizing bills were struck out, nothing was introduced in restriction of the powers of Congress on this subject.

Thus was the whole question practically settled; and the usage of the Government has been in harmony with this settlement. Treasury notes were issued during the war of 1812, and in the monetary crisis of 1837, also during the war with Mexico, and constantly since, so that the power to issue them cannot be drawn into doubt. If there was any doubt originally, unquestioned practice, sanctioned by successive Congresses, has completely removed it. I do not stop to consider whether the power is derived primarily from the power “to borrow money,” or the power “to regulate commerce,” or from the unenumerated powers. It is sufficient that the power exists.

But I see not how to escape the conclusion, that, if Congress is empowered to issue Treasury notes, it may affix to these notes such character as shall seem safe and proper, declaring the conditions of their circulation and the dues for which they shall be received. Grant the first power, and the rest must follow. Careful you will be in the exercise of this power, but, if you choose[Pg 187] to take the responsibility, I see no check in the Constitution.

The history of our country furnishes testimony, which has been gathered with extraordinary minuteness in an elaborate opinion by Mr. Justice Story.[172] I follow mainly his authority, when I set it forth.

It appears that the phrase “bills of credit” was familiarly used for bank-notes as early as 1683 in England, and also as early as 1714 in New England. But the first issue in America was in 1690, by the Colony of Massachusetts, and the occasion—identical with the present—was to pay soldiers, returning unexpectedly from an unsuccessful expedition against Canada. These notes were from two shillings to ten pounds, and were receivable for dues at the Treasury. Their form was as follows: “This indented bill of ten shillings, due from the Massachusetts Colony to the possessor, shall be in value equal to money, and shall be accordingly accepted by the Treasurer, and Receivers subordinate to him, in all public payments, and for any stock at any time in the Treasury.” Here followed the date, and the signatures of the Committee authorized to issue these notes.[173] Such was their depreciation, that these notes could not command money or commodities at money price, although the historian, Hutchinson, who has recorded these interesting facts, does not hesitate to say that they had better credit than King James’s leather money in Ireland only a short time before.[174] Being of small amount, they were soon absorbed in the payment[Pg 188] of taxes. But this example did not stand alone.

The facility with which paper money is created renders it difficult to withstand the temptation, unless a Government is under the restraint of correct principles of finance, which at that early day were utterly unknown. An excuse for Massachusetts may be found in the general poverty at that time, the lack of precious metals, and the distance from marts of trade. In 1702 there was another issue of bills of credit, for £15,000, which, by a subsequent Act, in 1712, were made a tender for private debts. Under the continued cry of scarcity of money, bills of credit were again issued in 1716, to the amount of £150,000, to be lent, for a limited period, to inhabitants, whose lands were mortgaged as security. These were not made a tender; but they were receivable at the Treasury in discharge of taxes, and also of mortgage debts. Other bills were afterwards issued, so that paper money was common. The historian who has exposed this condition of things does not hesitate to liken this currency to pretended values stamped on leather or paper, and declared to be receivable in payment of taxes and in discharge of private debts. The natural consequence was a fatal depreciation, so that an ounce of silver, worth in 1702 six shillings and eight pence, in 1749 was equivalent to fifty shillings of this paper currency.[175] At the present moment I do not seek to exhibit the character of this currency, but simply the original association between bills of credit and the idea of a tender.

But Massachusetts was not alone. The neighboring colony of Rhode Island, as early as 1710, followed her example, and in 1720 made her bills a tender in[Pg 189] payment of all debts, except certain debts specified. Connecticut issued bills at different periods, beginning with 1709, some of which were made a tender, and some not. New York began in the same year, substantially following Massachusetts; and her bills were generally made a tender. In 1722 Pennsylvania issued bills, secured on mortgage, and made a tender. In 1739 Delaware did likewise, making her bills a tender. So also did Maryland, in 1733, to the amount of £90,000; but other bills were issued by Maryland, in 1769, which were not made a tender.

The example of Virginia is more conspicuous, although not so early in time. The very term, “Treasury notes,” now used as the equivalent of “bills of credit,” first appears in her colonial legislation, when, in 1755, they were made a tender in payment of debts.[176] There were successive emissions in 1769, 1771, and 1773, which were not made a tender,—and then in 1778, and at other times afterwards, which were made a tender. That these “Treasury notes” were deemed “bills of credit” is demonstrated by the legislation of the State, especially by the Act of May, 1780, which, after reciting that the exigencies of the war require the further emission of paper money, authorizes new “Treasury notes,” and proceeds to punish with death any person who shall forge “any bill of credit or Treasury note to be issued by virtue of this Act.”[177]

I find that North Carolina, as early as 1748, sent forth bills of credit which were made a tender, and many subsequent emissions were authorized. South Carolina began in 1703; but these bills, bearing interest at twelve per cent, do not seem to have been[Pg 190] made a tender. Others issued by this colony, at different times afterwards, were made a tender. In 1760 Georgia authorized bills of credit on interest, and secured by mortgage of the property of the receivers, which were made a tender.

The extensive employment of paper money in New England aroused the jealousy of the Imperial Parliament, which, by the Act of 25th June, 1751,[178] expressly forbade the issue of any “paper bills, or bills of credit,” except for certain specific purposes, or upon certain specified emergencies. The Act constantly speaks of these two as equivalent expressions, thus seeming to show that “bills of credit,” in their true meaning, were what is familiarly called “paper money,” with the incidents of such money. But the Act proceeds to limit these incidents by declaring expressly that “no paper currency, or bills of credit,” issued under it, shall be a tender in payment of any private debts or contracts whatsoever, with a proviso that nothing therein contained should make any bills then subsisting a tender. That Parliament should deem it necessary, by special enactment, to take from bills of credit the character of a tender, attests the customary association between these two ideas.

During the Revolutionary War, under the exigencies of that time, with a country without resources and a treasury without money, bills of credit, known as Continental money, were issued by Congress. But, while receivable in discharge of taxes and other public dues, they were not made a tender by Congress, although the States were recommended to make them such.

[Pg 191]

Mr. Sumner. At the adoption of the National Constitution, the people, to their wide-spread cost, had become familiar with bills of credit and their incidents, while all conversant with Colonial history must have known the part which bills of credit played for nearly a century, not only as a help to currency, but as a tender, constituting paper money. And yet, with all this ample knowledge,—present certainly to the framers of the Constitution, if not to the people,—no express words on this subject were introduced into the text of the Constitution, except with regard to the States. The conclusion from this silence, under all the circumstances, is strong, if not irresistible.

But the omission of the Constitution with regard to bills of credit was practically supplied by Congress, which has not hesitated to assume the existence of the power. If the Constitution failed to speak, Congress has not failed; and the exercise of this power cannot now be questioned, without unsettling our whole financial system. But we have seen that throughout our Colonial history the tender was a constant, though not inseparable, incident of the bill of credit,—that, indeed, it was so much part of the bill of credit that the Imperial Parliament positively interfered to separate the two, and, while sanctioning the bill of credit, forbade the tender. And now, if this historical review is properly apprehended, if it is not entirely out of place, it must conduct to the conclusion, that, whatever may be the present question of policy, the power to make Treasury notes a tender has precisely the same origin in the Constitution with the power to create Treasury notes. It is true that you may exercise one power and decline the other; but if you assume the power to issue bills of[Pg 192] credit, I am at a loss to understand how you can deny the power to make them a tender. The two spring from the same fountain. You may refuse to exercise one or both; but you cannot insist upon one, under the Constitution, and reject the other.

Assuming the constitutionality of this proposition, or rather declining to admit the satisfactory force of the constitutional arguments against it, I am brought to a question which has, for me, more of difficulty and doubt: I mean the policy of exercising the power at this moment. It is not too much to say that this question concerns the national character, as well as the national welfare, while intelligent and patriotic men differ earnestly with regard to it. Decide it as we may, we cannot escape anxiety on the subject. Take which way we will, we cannot escape the just sense of responsibility. Seeking the truth only, and jealous of that good name which is to a Government one of its best possessions, I shall consider the question frankly; nor shall I disguise any of the difficulties which it presents, whether from principle or from experience. This is not the time for concealment, and I insist, that, if the power is exercised, its true character shall be understood. I invoke, also, the examples of history, to make us pause; but it will be my duty to show that there are other examples calculated to sustain the Government in the policy it now so urgently recommends.

If the Treasury notes of the United States were at this moment convertible into coin, there would be no occasion to declare them a tender; for they would be everywhere, at least in our own country, as good as coin. But the suspension of the banks was followed by[Pg 193] suspension of the Treasury, and its notes are now inconvertible paper, which it is proposed to sustain artificially by declaring them a tender. If this proposition be adopted, the Treasury will be enabled to substitute bits of engraved paper for money. Of course, such a proposition, on its face, is obnoxious to objections that make upon me an impression not to be disguised.

Looking at the history of paper money, especially in our own country, we find no encouragement. Its evils were vividly portrayed by the “Federalist,”[179] and have been powerfully presented in this debate by the Senator from Vermont [Mr. Collamer]. Congress, during the Revolution, began, as early as 1775, with bills to the amount of $3,000,000, on their face declaring the bearer entitled to receive the sum specified in “Spanish milled dollars, or the value thereof in gold or silver,” according to a certain resolution of Congress. The bills were receivable for taxes, and the thirteen colonies were pledged for their redemption. Other emissions followed, and, as their credit began to fail, Congress went so far as to declare that whoever refused to receive this paper in payment should “be deemed, published, and treated as an enemy of his country.”[180] As the paper continued to depreciate, Congress became more violent in its support, and even ventured to recommend it as of peculiar value. “Let it be remembered,” said Congress, “that paper money is the only kind of money which cannot ‘make unto itself wings and fly away.’”[181] The sum-total of these bills at last reached upwards of three hundred millions, which in 1780 became so utterly worthless in the hands[Pg 194] of their possessors that they ceased to circulate, and have ever since been treated only as curiosities, without positive value. No serious proposition for their redemption has ever been made.

The French assignats, amounting to the enormous sum-total of nine thousand million dollars,[182] issued during the fiery excitements of the Great Revolution, shared the fortunes of American Continental money, passing into the limbo of “things transitory and vain.” Perhaps there is not a country on the European continent, which, during the fearful wars that followed, did not encounter the same experience. I have heard it said that old soldiers in Denmark lighted their pipes with paper money, which had become to them only the record of a broken promise.

Power of all kinds is liable to abuse, and experience shows that the power to issue inconvertible paper is no exception to this prevailing law. The issue may be moderate at first, and sustained by plausible reasons, but it breaks soon into excess. Of course, actual value, or its equivalent, is the life of money, giving to it a circulating quality; and when money begins to be suspected, it loses its circulating quality. But inconvertible paper, even when made a tender, has no actual value, and circulates only because Government commands its circulation. It has no present worth beyond the engraving; therefore all ordinary checks to undue issue of money are wanting. Nothing exists to prevent excess and consequent depreciation; and this danger is verified by history. I refer to it now that I may[Pg 195] not seem indifferent to any of the perplexities which surround us.

In some countries a legal tender is gold and silver; in others it is gold alone. In England, since 1816, gold, and not silver, has been the tender for sums of forty shillings and upwards; and since 1833 the notes of the Bank have been a tender for sums over five pounds, everywhere except at the Bank itself and its branches. But it is to be borne in mind that both these metals have positive value in the market equivalent to that of coin; so that coin is value itself. But convertible paper is not value itself; it is only the representative of value; while it is doubtful if inconvertible paper can be called the representative of anything in particular. These considerations are not decisive of the policy now proposed, but they justly incline us to a prudent hesitation.

If we are not deterred by the bad examples of history, or by the acknowledged danger of excess and consequent depreciation,—if we are willing to take the chance of seeing Treasury notes in the same list with Continental money and French assignats, and of having returned soldiers in old age light their pipes with the worthless paper,—if these suggestions are put aside as exaggerated or irrelevant, I ask you not to forget that a constant aim of good government is to secure the immediate convertibility of paper into coin. But, instead of securing such immediate convertibility, or taking any steps towards it, you will for the present renounce it.

Pardon my frankness, Sir, if I declare that the present proposition, when examined carefully, seems too much like bad faith. I say it seems: I would not speak too strongly. Is there not bad faith towards creditors, who are compelled to receive what is due in a depreciated[Pg 196] currency? Is there not bad faith towards all abroad, who, putting trust in our integrity, national and personal, have sent their money to this country in gold or its equivalent? And just in proportion as this is so, you cannot doubt that we shall suffer alike in character and resources too; for what resource is greater to a nation or to an individual than a character for integrity? The present proposition must be followed soon by others,—even to the extent of $1,000,000,000. But where shall this vast amount be obtained, and at what cost, when it is seen that we have already undertaken to authorize inconvertible paper as a tender? Credit is volatile and sensitive, and will not yield to force. Do you propose the right way to win the delicate possession? It will not come to you from abroad, where money usually abounds. Will it salute you here at home? And is it good economy to obtain the amount you seek by a policy which will create a disturbing impediment to all your efforts for the larger amounts soon to be required? I put these questions without answering them. It is sufficient for me that I open the difficulties before us; and here I follow the Senator from Maine [Mr. Fessenden], Chairman of the Committee on Finance, who commenced this debate.

In courts of law, experts are summoned to testify on questions of science or art within their special knowledge. If, on this occasion, experts in finance or currency were summoned, I do not know that we should be much enlightened; for, according to my observation, there are such differences among them, and, as the Senator from Maine [Mr. Fessenden] has pleasantly told us, such differences even in the same person, one day and the day after, that it is difficult to place reli[Pg 197]ance in their counsels. Some tell us that making Treasury notes a tender will be most beneficent; others insist that it will be dishonorable and pernicious. On each side strong words are employed. Which shall we follow?

Crossing the sea, we find similar differences, not, of course, with regard to the present proposition, which is not yet known there, but with regard to the principles entering into this debate. In England the general subject has occupied much attention. As late as 1857 it was brought before a distinguished Parliamentary Committee, and their Report is remarkable for the testimony of numerous witnesses whose experience and knowledge give authority to their opinions. The Report is a financial monument. But among these witnesses are some who were little disturbed by an inconvertible currency, although the weight of testimony was the other way.

Nobody was more positive than Nathaniel Alexander, Esq., head of the firm of Alexander & Co., India merchants. His attention being called to the proper means against the effects of panic on the Bank of England, he proposed, as an assistance to the Bank, another currency, inconvertible, and a tender for Government dues, under Act of Parliament. From its inconvertible character, such a currency, he said, would not be reached by panic, and would therefore contribute to the security of the Bank.[183] This testimony seems to maintain the principle of the present proposition; and I quote it, as showing that the proposition is not entirely without practical authority.

John Twells, Esq., a London banker for upwards of fifty years, also testified in favor of an inconvertible note under sanction of Government, and a legal tender.[Pg 198] Here are his answers to two questions.

Two other questions and answers may be given.

Another witness was Mr. Edward Capps, who described [Pg 199]himself as engaged in the surveying and building trade for thirty years, so that his attention had been directed to the influence of credit on the manner in which buildings are erected in London. He, too, testified in favor of inconvertible paper. Here are some of his answers.

Against these witnesses was the testimony of a person perhaps the highest living authority on this question. I refer to Lord Overstone, known before his elevation to the peerage as Mr. Jones Loyd, the eminent banker, whose life makes him practically acquainted with this subject, while his liberal studies and various experience add to the solidity of his judgment. His testimony on this occasion, extending over almost three days, occupies nearly one hundred folio pages. Writers on finance have quoted it ever since, and practical men have accepted it as a guide. In reply to questions by the Committee, he declared himself strongly opposed to the issue of Government notes not payable in specie on demand. In his opinion “they would generate a state of utter confusion which could not be tolerated for three months.”[189] Then again:—

Here are his answers to other questions.

But the testimony of Lord Overstone, strong as it was, against an inconvertible currency, still admitted a possible occasion for departure from it; and here his testimony bears directly on the pending proposition. Alluding to the well-known suspension of specie payments by the Bank of England in 1797, he says:—

If this authoritative testimony be accepted in favor of a constant specie currency, it is unquestionably important as recognizing grounds of exception,—as, according to the language of the witness, if the country were “suddenly exposed to the calamity of a very large foreign force occupying its soil, or to the calamity of a very formidable and serious civil insurrection.” In these exceptions there is matter for much reflection. Strong as we may be against any questionable currency, we must not be insensible to a possible limitation even of this just principle. In short, we must be content with the best we can command. And here history[Pg 203] affords valuable illustrations in conformity with this testimony.

In 1745, the alarm occasioned by the advance of the Highlanders, under the Pretender, as far as Derby, led to a run upon the Bank of England; and in order to gain time, the directors, while continuing to pay in specie, adopted the device of paying in shillings and sixpences. But, next to the retreat of the enemy, their best relief was found in a resolution by the merchants and traders of the city, declaring their willingness to receive bank-notes in payment of any sum due, and pledging their utmost endeavors to make all payments in these bank-notes. This proceeding, it is perceived, was prompted by the pressure of civil disturbance. But the most authentic case is that of 1797, when the Bank, under pressure of political events, was prohibited, by Order in Council, issued on Sunday, the 26th of February, from paying their notes in cash, until the sense of Parliament should be taken on the subject. At the meeting of Parliament, after much discussion, it was agreed to continue the suspension till six months after the signature of a definitive treaty of peace, thus positively recognizing the existence of war as a reason for this departure from principle. A recent English writer vindicates this act as follows.

Unhappily, the definitive treaty of peace, on which the restoration of specie payments depended, was not consummated till 1815, so that throughout this long period there was an inconvertible currency, which even the sanction of Parliament did not save, in 1814, from a discount of twenty-five per cent. But peace did not bring specie at once. The routine of paper had become too strongly fixed, and it was only through the remarkable efforts of Sir Robert Peel, in 1819, that an Act of Parliament was passed requiring the payment of specie at the Bank in 1823. Such is the practical testimony of British experience.

The experience of France is similar. I do not now refer to the old assignats, but to a modern instance. Beyond question, the Bank of France is conducted with caution and skill; but no caution and skill are adequate to counteract the influence of a sudden revolution, especially like that of 1848, when the Republic was declared. The Bank made large advances to the Provisional Government. This obligation, combined with distrust universally prevalent, occasioned so severe a drain of gold, that, to prevent the total exhaustion of its vaults, the Bank was authorized by Government decree of 16th[Pg 205] March, 1848,—just three weeks after the Revolution,—to suspend specie payments, while its notes were at the same time made a legal tender. To prevent abuse, possible in such a condition of things, a maximum of issues was fixed at three hundred and fifty million francs. Such precautions were proper; but the fact of the authorized suspension remains an example of history. The prompt return to the true system is not without encouragement.

If these instances are entitled to consideration, they seem to show, that, according to the experience of other countries, Government may be compelled at times to relax the rigor of its requirements with regard to convertible paper. But they do not fix the limitation to the exercise of this extraordinary discretion. That the discretion exists is important in the present debate.

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.

But, while recognizing the existence of the discretion in the last resort, under the law of necessity, the question still remains if this necessity actually exists. And now, as I close, I shall not cease to be frank. Is i[Pg 206]t necessary to incur all the unquestionable evils of inconvertible paper, forced into circulation by Act of Congress,—to suffer the stain upon our national faith, to bear the stigma of a seeming repudiation, to lose for the present that credit which in itself is a treasury, and to teach debtors everywhere that contracts may be varied at the will of the stronger? Surely there is much in these inquiries to make us pause. If our country were poor or feeble, without population and without resources, if it were already drained by a long war, if the enemy had succeeded in depriving us of the means of livelihood, then we should not even pause. But our country is rich and powerful, with a numerous population, busy, honest, and determined, abounding in unparalleled resources of all kinds, agricultural, mineral, industrial, and commercial; it is yet undrained by the war in which we are engaged, nor has the enemy succeeded in depriving us of any means of livelihood. It is hard, very hard, to think that such a country, so powerful, so rich, and so beloved, should be compelled to adopt a policy of even questionable propriety.

If I mention these things, if I make these inquiries, it is because of the unfeigned solicitude which I feel with regard to this measure, and not with the view of arguing against the exercise of a constitutional power, when, in the opinion of the Government to which I give my confidence, the necessity for its exercise has arrived. Surely we must all be against paper money, we must all insist upon maintaining the integrity of the Government, and we must all set our faces against any proposition like the present, except as a temporary expedient, rendered imperative by the exigency of the hour. If it has my vote, it will be only because I am unwilling to refuse[Pg 207] the Government especially charged with this responsibility that confidence which is hardly less important to the public interests than the money itself. Others may doubt if the exigency is sufficiently imperative; but the Secretary of the Treasury, whose duty it is to understand the occasion, does not doubt. In his opinion the war requires this sacrifice. Uncontrollable passions are let loose to overturn the tranquil conditions of peace. Meanwhile your soldiers in the field must be paid and fed. There can be no failure or postponement. A remedy is proposed which at another moment you would reject. Whatever the national resources, they are not now within reach, except by summary process. Reluctantly, painfully, I consent that the process shall issue.

And yet I cannot give such a vote without warning the Government against the dangers from such an experiment. The medicine of the Constitution must not become its daily bread. Nor can I disguise the conviction that better than any device of legal tender will be vigorous, earnest efforts for the suppression of the Rebellion, and the establishment of the Constitution in its true principles over the territory which the Rebellion has usurped.

[Pg 208]

LOYALTY A QUALIFICATION REQUIRED IN A SENATOR.

Speeches in the Senate, February 18 and 26, 1862.

[Pg 209]

I desire, Mr. President, to make one single remark. It is said that the proposition before the Senate is without precedent. New occasions teach new duties; precedents are made when the occasion requires. Never before has any person appeared to take a seat in this body whose previous conduct and declarations, as disclosed to the Senate, gave reasonable ground to distrust his loyalty. That case, Sir, is without precedent. It behooves the Senate to make a precedent in such an unprecedented case. At this very moment we are engaged in considering if certain Senators shall not be expelled for disloyalty; and it seems to me we shall do our duty poorly, if we receive a new comer with regard to whose loyalty there is reasonable suspicion.

MR. PRESIDENT,—Over each House of Congress, while in session, floats the flag of the Union. So long as that flag ripples above our end of the Capitol, the passing stranger knows that the Senate is engaged in loyal service to the Republic. In no other country is the national flag thus employed; and I remember to have heard a distinguished artist[199]—who, unhappily, no longer lives except in his works, some of which are near us—remark that this custom was to him the most original and picturesque feature of Washington. The national flag, symbolizing the labors of Congress, seemed to have a double beauty, reminding him not only of country, but also of the patriotic service in which those the people trusted were then engaged.

The Senate is now in session, performing its allotted duties, and the national flag is over it. I need not enlarge on these duties, legislative, diplomatic, and executive. They are present to your minds. Suffice it to say, that not a law can be passed, not a treaty can be ratified, not a nomination to office can be confirmed, without the action of the Senate. And now you are to determine the plain question, if this body, with these exalted, various, and most confidential trusts, and actually sitting beneath the flag of the Union, is so utterly powerless and abject, that, before admitting a person to participation in these trusts, it can make no inquiry with regard to his loyalty, and cannot even consider evidence tending to show that he is false to the flag[Pg 211] now waving over us. Sir, if this be so, if the Senate is really in this condition of imbecility, if its doors must necessarily swing open to any traitor, even, presenting himself with a certificate in his pocket, let the flag drop, and no longer symbolize the loyal service in which we are engaged. The Report of the Committee, expressed in simple English, without circumlocution or equivocation, is, “Free admission to traitors here, and no questions asked.” In other words, the claimant of a seat in the Senate can enter and take it without question with regard to loyalty. He can freely participate in these most important trusts, with the flag of the Union waving over him, and nobody shall ask in advance whether he is true to that flag.

But it is argued by the Senator of New York [Mr. Harris], that the Constitution having provided for the expulsion of a Senator by a vote of two thirds, there can be no inquiry on the threshold, except with regard to the qualifications of age, citizenship, and inhabitancy of the State whose certificate he bears. If this be true, then open, flaunting treason is not a disqualification, and the traitor, if allowed to go at large, may present his certificate and proceed to occupy a seat among us. A proposition is sometimes answered simply by stating it; and it seems to me that this is done in the present case. The Constitution was the work of wise and practical men, and they were not guilty of the absurdity which such an interpretation attributes to them. They did not announce that a disloyal man, or, it may be, a traitor, may enter this Chamber without opposition, and then intrench himself securely behind the provision requiring a vote of two thirds for his expulsion; they did not declare that the[Pg 212] mere certificate of a Senator is an all-sufficient passport to shield a hateful crime itself from every inquiry; nor did they insist that disloyalty in this high place is to be treated so tenderly as not even to be touched, until, perhaps, it is too late. This whole argument, that the claimant must be admitted to the Senate and then judged afterwards, is more generous to the claimant than just to the Senate; it is more considerate of personal pretensions than of public interests. To admit a claimant charged with disloyalty, in the hope of expelling him afterwards, is a voluntary abandonment of the right of self-defence, which belongs to the Senate as much as to any individual. The irrational character of such abandonment is aptly pictured in a Parliamentary speech reproduced in curious verses, more expressive than poetical, and once quoted by Mr. Webster:—

But the Senate is asked to do this very thing. Instead of shutting the door and keeping disloyalty out, we are asked to let it in and see if we can get it out again.

If we look closely at the Constitution, we cannot hesitate. It is assumed by the Committee that there are but three qualifications for a Senator, and these words are quoted:—

[Pg 213]

According to these words, the three qualifications are (1) age, (2) citizenship, and (3) inhabitancy of the State he assumes to represent. These qualifications are not questioned, because they are grouped in a special clause of the Constitution; and every applicant, on presenting himself here, is subjected at once to these tests. But it is a mistake to suppose that these are the only qualifications imposed. There is another, mentioned in a later part of the Constitution, more important than either of the others; so that, though last in place, it is first in consequence. It is loyalty, which I affirm is made a qualification under the Constitution; and we have already seen, that, even if the organic law were silent, it is so essential to the fitness of a Senator for his trusts, that the Senate, in the exercise of its discretion, ought to require it. But the language of the Constitution leaves no room for doubt.

The words establishing loyalty as a qualification are as follows:—

These words are explicit in requiring the oath to support the Constitution. And the first statute of the First Congress, approved June 1, 1789, and standing at the head of our statute-book, provides for the administration of the oath as follows:—

[Pg 214]

Thus by the Constitution, explained by the earliest statutes, must the oath to support the Constitution be administered to a Senator previous to his taking his seat. But the oath is simply evidence and pledge of loyalty; and this evidence and pledge constitute a condition precedent to admission. As loyalty is more important than age or citizenship or inhabitancy, it has been put under the solemn safeguard of an oath. So far from agreeing with the Committee, or with the Senator from New York [Mr. Harris], that it is not named among “qualifications,” it seems to me that it stands first among them. Of course, it is vain to say that it is not expressly called a “qualification.” Let us ascend from words to things. It is made a qualification in fact, call it by what name you will. Men are familiarly said to “qualify” for an office, when they take the necessary oath of office; so that the language of common life becomes an interpreter of the Constitution. Sir, loyalty is among constitutional “qualifications” of a Senator.

Resting on this conclusion, and assuming that disloyalty is a constitutional disqualification, the single question remains as to the time when evidence with regard to it may be considered. Now, as the Senate[Pg 215], under the Constitution, is exclusive judge of the qualifications of its members, the time when it shall consider a case is obviously within its own discretion, according to the exigency. It may take up the case early or late, before or after the administration of the oath. Under ordinary circumstances, where the case turned upon a question of age or citizenship or inhabitancy, it would be reasonable, and according to usage, that the claimant should be admitted under his certificate, which is prima facie evidence of the requisite qualifications. In such a case the public interests would not suffer, for the disqualification is rather of form than of substance. But where the disqualification is founded on disloyalty, it is obvious that the public interests might be seriously compromised, if the claimant were allowed any such privilege,—for the disqualification is of substance, and not of form. Disloyalty must not find a seat in the Senate, even for a day; nor can any claimant charged with disloyalty complain that the Senate refuses welcome to its trusts.

The oath required to support the Constitution is on its face an oath of loyalty, and nothing else. The claimant may declare willingness to take it; but such declaration is not an answer to evidence showing disloyalty, unless you are ready to admit present professions to be a sufficient cloak for disloyalty, or, it may be, treason, in the past. On a question of such importance, with positive evidence against his loyalty, the claimant cannot expect permission to purge himself on his oath. The issue is distinctly presented, if he has not already committed himself, so that his oath to support the Constitution is entitled to no consideration. Sir Edward Coke pronounces generally, that “an[Pg 216] infidel cannot be sworn,”—a doctrine which has been since mitigated in our courts. But whatever the rule on this subject in our courts, it is reasonable that an infidel to our Government, an infidel to our Constitution, should not be permitted by the Senate to go through the mockery of swearing to support the Constitution; nor should a person charged with such infidelity be permitted to take the oath, unless able to remove the grounds of the charge. The oath is administered by the President of the Senate at your desk, Sir, in the presence of the Senators; and the solemnity of the occasion is an additional argument against administering it to any person whose loyalty is not above suspicion. There is a German treatise entitled, “On the Lubricity and Slippery Uncertainty of the Suppletory Oath,”—being the oath of a litigant party in his own case. But an oath to support the Constitution by a claimant charged with disloyalty would be open to suspicion, at least, of lubricity and slippery uncertainty not creditable to the Senate.

We are told in the Epistle to the Hebrews that an oath is “the end of the whole dispute”;[203] but this of course assumes that the oath is above question. If not above question, it is wrong to allow the oath,—at least in the Senate of the United States, which is the exclusive judge of its own proceedings.

I say nothing of the facts in the present case; nor do I venture to suggest any judgment on the final weight to which they may be entitled. I confine myself to the simple question as to the duty of inquiry at the present stage of proceedings.

[Pg 217]

It is my earnest hope that the claimant will be able to purge himself, and show that he is a loyal citizen. Meanwhile I do not wish to prejudge him; I have not prejudged him; I have come to no conclusion on the facts; but I have come to a perfect, fixed, and irreversible conclusion on the duty of the Senate at this time to enter into this inquiry, and to ascertain from the evidence whether he is loyal or not.

MR. PRESIDENT,—I am unwilling to speak again in this debate. Nothing but a sense of duty makes me break silence. But I am determined that this Chamber of high trust, so carefully guarded by the Constitution, shall not be opened to disloyalty, if any argument, any persuasion, or any effort of mine can[Pg 218] prevent it.

Of course, in this debate something is assumed. It is simply this: that the evidence touching the loyalty of the claimant is not valueless; that it merits attention; that it affords probable cause, if I may adopt the phrase of the Roman Law, for distrust; that it is enough to put a party on the defensive. If this be the case, if all these affidavits, verified by the certificate so numerously signed, are not put aside as baseless, then the Senate must inquire into the charge. The result of the inquiry may be one way or another; but the inquiry must be made. Not to make it is abandonment of present duty; and not to assert the power is abandonment of an essential right of self-defence.

I have listened to the various arguments pressing the Senate to disarm itself, as they have been presented by able Senators, especially by the Senator from Maine [Mr. Fessenden] and the Senator from Wisconsin [Mr. Howe]; and I have felt, as I listened, new confidence in the constitutional power of the Senate to protect itself at all times against disloyalty, and in the duty to exercise this constitutional power at any time, early or late, in its completest discretion.

But it is said,—and I believe the Senator from Maine first presented this argument, which has been urged so strongly by the Senator from Wisconsin,—that, if we reject the present claimant, Oregon will be without a representative. And if we expel him, will not Oregon be without a representative? Surely this is no reason for hesitation in either case. I, too, desire a representative for Oregon; but I know full well that a disloyal representative is no representative,—or rather, Sir, is worse than no representative. In sustaining such a re[Pg 219]presentative, you sacrifice substance to form,—you abandon the living principle, content with the dead letter,—you “keep the word of promise to the ear, and break it to the hope,”—you offer to the people of Oregon a stone, when they demand bread. In the name of the people of Oregon, whose wishes are manifest in the papers before us, I protest against the pretension that they can be represented by a disloyal person. Misrepresentation is not and never can be representation.

But it is said,—and I believe the Senator from Maine made the argument,—that the evidence against the claimant, if sustained, might justify expulsion, but will not justify refusal of admission to take the oath.

Mr. Sumner. The Senator says, that, if the same language had been used while he was a Senator, it might justify expulsion. That is enough, Sir; and yet the Senator argues that it will not justify the Senate in refusing to open its doors, when he presents himself for admission. In plain terms, the Senate may pronounce the stigma of expulsion, but not the judgment of exclusion. A similar absurdity would be to say, that in private life an offence would justify kicking an intruder down stairs, but would not justify refusing him admission to our house. It is enough to state this case. Nothing can be clearer in the light of reason—and I say also of the Constitution—than that it is the duty of the Senate to meet disloyalty on the threshold,—to say to it, wherever it first shows itself, that this Chamber[Pg 220] is no place for it. The English orator pictured his desolation, when he said that he was alone, and had none to meet his enemies in the gate.[204] Desolate will be the Senate, when it cannot meet disloyalty in the gate.

But the Senator from Maine complains, and the Senator from Vermont [Mr. Collamer] joins in the complaint, that the claimant is not allowed to purge himself by his oath,—thus using a technical phrase of the law, applicable chiefly to suspected persons. Not allowed to purge himself! Rather say, Sir, not allowed to perjure himself. For, in view of the testimony on your table, the inference is, unhappily, too strong, that in any oath to support the Constitution he must perjure himself. I say this with pain, and anxious not to prejudge the case, but simply because the facts, as they stand without contradiction, leave no opportunity for any other conclusion.

Since complaint is made by learned lawyers that the claimant is not allowed to purge himself, I desire to adduce a legal analogy on this question. It is well known that by the Common Law a person is not permitted to take an oath who does not believe in God. This is the general principle; but when we look at the application, we see how completely it illustrates the present case. If a person is known to have openly and recently declared disbelief, he will not be permitted to purge himself by his oath, for the reason that his own declarations are decisive.

[Pg 221]

Here again is additional illustration from the annotations to the great work of Phillipps on the Law of Evidence.

I would not press this illustration too far. But it seems to me clear, that, if you accept the declarations of a person as decisive against his religious belief, they must be accepted as equally decisive with regard to his political belief. An oath to support the Constitution presupposes political belief, as much as the oath itself presupposes religious belief.

Pardon me, Sir, but I cannot refrain from astonishment that Senators, learned lawyers, should be willing to treat the oath to support the Constitution as an oath of purgation, an oath of defecation, an oath of purification,—by which a suspected person may cleanse himself, by which an evil spirit may be cast out. Sir, it is no such thing. Such is not the oath of the Constitution. By that oath the accepted Senator dedicates himself solemnly to the Constitution. It is not an oath of purgation, as Senators insist, but an oath of consecration. To such an oath may be fitly applied the words of the ancients, when they spoke of the oath as “the greatest pledge of faith among men.”

[Pg 222]

I would not be carried into technicalities; but, since Senators insist that this oath is merely of purgation, I venture to add, that, according to early writers, there were two forms of oaths,—one technically styled “the oath of expurgation,” sometimes the ex officio oath, by which persons were bound to answer all questions, even to the extent of accusing themselves or intimate friends. This oath was much used and abused in the days of Queen Elizabeth. At an earlier day it was administered to an Archbishop of York charged with murder, and no less than one hundred compurgators were sworn with him. The other is what is called “the promissory oath,” which is the oath of the sovereign, the magistrate, the judge, the senator. Obviously this is widely different from the oath by which a person clears himself from suspicion, or cleanses his name.

There is another oath, with a peculiar title: I mean the custom-house oath. You all know something of this oath, which is taken hastily, without solemnity or question, and is now an acknowledged nuisance and mockery, against which people petition Congress. By such oaths, “sworn is the tongue, but unsworn is the mind.” With such oaths for seed, perjury is the natural harvest. If Senators who have spoken in this debate can have their own way, you will degrade the solemn oath of the Constitution to the same class, and make it the seed of similar harvest.

For myself, I am determined, so far as my vote or voice can go, that the oath shall mean something, and that it shall be kept solemn and above suspicion. It shall not be degraded to be an oath of purgation or a custom-house oath, but shall be in all simplicity what is regarded by the Constitution an oath of office, in itself the pure and truthful expression of assured lo[Pg 223]yalty,—not of loyalty still in question, still doubtful, so that people openly testify against it. And where there is evidence seriously impeaching the loyalty of a claimant, he shall not take that oath, with my consent, until the impeachment is removed. Sir, I am not insensible to the attractions of comedy, when well performed on the stage; but there is a place for everything, and I am unwilling to sit in my seat here and witness the comedy proposed. The Senate is to resolve itself into a theatre, under the management of grave Senators,—the Senator from New York, the Senator from Maine, and other Senators,—and we are to see the play proceed. The claimant from Oregon crosses the floor, and, under honorable escort, approaches the desk, takes the oath, and kisses the book. The title of the play is borrowed from a forgotten old English drama: “Treason made Easy; or, An Oath no Great Thing.”

It ill becomes the Senate at this moment to do or to forbear anything by which the standard of loyalty can be lowered. If it justly expects loyalty from others, if it requires loyalty in its soldiers and officers, surely it ought to set an example in its own members. Toward itself, at least, it cannot be too austere in requirement. Wherever about us disloyalty shows itself, whether in the Senate or in its lobby, whether already intrenched in this Chamber or struggling to enter in, whether planted at these desks or still standing in the gate, we have one and the same duty to perform. We must inquire into its character, and if it be found unworthy of trust, we must chastise it or exclude it. This is the least we can do.

[Pg 224]

Mr. President,—The Senate will observe that the resolution declares that the Senator from Oregon has been found by a Committee of the Senate to be disloyal. Now, Sir, I have no desire to discuss the facts of this case. But, in order to exhibit the urgency of this question, it is my duty to exhibit the conclusions of the Committee, set forth in their Report, as follows.

Of these propositions the first two had the sanction of the Senator from Virginia [Mr. Willey], while all three had the sanction of the rest of the Committee, being the Senator from New Hampshire [Mr. Clark], the Senator from Indiana [Mr. Wright], the Senator from Michigan [Mr. Howard], and the Senator from Ohio [Mr. Sherman]. Thus, in a Special Committee of five, raised expressly to consider this case, raised, too, after protracted discussion in the Senate, four of the Committee united in all the conclusions of the Report, and the dissenting member united in the first two conclusions. And this Report is, if possible, entitled to additional consideration, when it is known that the Senator from Oregon himself appeared before the Committee. On these accounts I accept the Report, and do not wish to go into it or behind it. It is with me the solemn verdict of a jury duly impanelled for the trial of a cause.

But if the Committee is the jury, the Senate is the court; and it remains that judgment should be entered.

I hear a voice saying that we must not take time for this question. Pray, Sir, what time is needed? The time has been already taken. The hearing has been had, the verdict is rendered.

Pray, why not take time? We are engaged in war to put down disloyalty. For this we set armies in the field, and contend in battle with our own fellow-citizens. For this we incur untold debts. For this we are preparing to incur untold taxation. Sir, all this is simply to put down disloyalty. And yet, when a committee of this body, after careful inquiry, solemnly declares a Senator disloyal to the National Government, we are[Pg 226] told that there is no time to consider the question. Sir, I am against disloyalty, wherever it shows itself, whether in belligerent States, sheltered and strengthened by numbers, or sitting here, with all the privileges of this Chamber. Others will do as they please; but I cannot remain silent, while disloyalty, already exposed by our own Committee, is allowed a seat in our councils, open and secret. In not acting, you will discredit the Report of the Committee, or show that the Senate is indifferent to the character of its members. I will have no part in any such thing.

[Pg 227]

HELP FOR MEXICO AGAINST FOREIGN INTERVENTION.

Report from the Committee of Foreign Relations upon the Draught of a Convention with Mexico, February 19, 1862.

On the 2d of September, 1861, Mr. Seward, in a despatch to Mr. Corwin, at Mexico, announced that the President greatly desired the political status of Mexico as an independent nation to be permanently maintained; that the events communicated by Mr. Corwin alarmed him, and he conceived that the people of the United States would scarcely justify him, were he to make no effort for preventing so great a calamity on this continent as would be the extinction of that neighbor republic; that he had therefore empowered Mr. Corwin to negotiate a treaty with Mexico for the assumption by the United States of the interest, at three per cent, upon the funded debt of that country, the principal of which was understood to be about sixty-two[Pg 229] millions of dollars, for the term of five years from the date of the decree recently issued by Mexico suspending such payment, provided that Mexico could pledge to the United States its faith for the reimbursement of the money, with six per cent interest, to be secured by special lien upon all the public lands and mineral rights in the several Mexican States of Lower California, Chihuahua, Sonora, and Cinaloa, the property so pledged to become absolute in the United States at the expiration of the term of six years from the time when the treaty went into effect, if such reimbursement were not made before that time. The President felt that this course was rendered necessary by circumstances as new as they are eventful, and seeming to admit of no delay.

Mr. Seward proceeds to say, that his instructions are conditional upon the consent of the British and French Governments to forbear action against Mexico, on account of failure or refusal to pay the interest in question, until after the treaty had been submitted to the Senate, and, if ratified, then so long thereafter as the interest is paid by the United States.

Mr. Seward adds, that his instructions are not to be considered as specific, but general, subject to modification as to sums, terms, securities, and other points.

Mr. Corwin, in an earlier despatch, dated at Mexico, 29th July, 1861, and addressed to Mr. Seward, had already suggested the policy he was now authorized to pursue, and proposed a lien on the public lands and mineral rights in the provinces mentioned by Mr. Seward. From such arrangement, in his opinion, two consequences would follow: first, all hope of extending the domain of a separate Southern republic in this quarter or in Central America would be extinguished; and,[Pg 230] secondly, any further attempt to establish European power on this continent would cease to occupy either England or Continental Europe.

Afterwards, in a despatch, dated at Mexico, November 29, 1861, Mr. Corwin enclosed to Mr. Seward the project of a treaty between the United States and Mexico, by which the United States were to lend Mexico five millions of dollars, payable in monthly instalments of one half million a month,—also the further sum of four millions of dollars, payable in sums of one half million every six months; the whole to be secured by mortgage on the public lands, mineral rights, and Church property of Mexico, for the realization of which a board of five commissioners was to be organized, three to be appointed by Mexico and two by the United States, holding sessions in the city of Mexico until the debt and interest were fully discharged. No reference was made in the proposed treaty to the consent of the British and French Governments, mentioned by Mr. Seward as a condition, nor to the application of the money, when received by Mexico; nor does anything on this subject appear in the accompanying despatch.

The President, by his Message of December 17, 1861, submitted the draught of this treaty to the Senate for their advice. Afterwards, by another Message, of January 24, 1862, he called their attention to it again, in the following language.

[Pg 231]

Meanwhile, Great Britain, France, and Spain, by a Convention, dated at London, October 31, 1861, have entered into an alliance, the declared object of which is “to demand from the authorities of the Republic of Mexico more efficacious protection for the persons and properties of their subjects, as well as a fulfilment of the obligations contracted by the Republic of Mexico.” The high contracting parties engaged not to seek for themselves, in the employment of coercive measures, any acquisition of territory, nor any special advantage, and not to exercise in the internal affairs of Mexico any influence of a nature to prejudice the right of the Mexican nation to choose and to constitute freely the form of its government. Desiring that the measures they intend to adopt should not bear an exclusive character, and being aware that the Government of the United States, on its part, has, like them, claims upon the Mexican Republic, they further agree that our Government shall be invited to join in the Convention.

Mr. Seward, in a despatch, dated at Washington, December 4, 1861, declined to join in the Convention, saying, “that the United States prefer, as much as lies in their power, to maintain the traditional policy recommended by the Father of their country, confirmed by successful experience, and which forbids them to make an alliance with foreign powers.”

In pursuance of this Convention, the naval and military forces of the three great powers have assembled at San Juan de Ulua, and the flags of the three powers now float over the castle. The Government of Mexico has[Pg 232] rallied the people to resistance, and there is at this moment the prospect of a prolonged and exhausting contest. The occasion seems to have arrived, when the aid proposed by Mr. Seward, in his despatch of September 2, 1861, may be of decisive value to Mexico. To the United States it may also be of great importance, if it could be the means of removing from Mexico the pressure of hostile armaments, and placing a neighbor republic in a more tranquil and independent condition. If the Allied Powers desire security for their claims, and nothing else, then a reasonable provision of this nature ought to be satisfactory, so far as any question arises from the claim.

The debt of Mexico to the Allied Powers may be stated, in round numbers, as follows.

Of course, payment or guaranty of this large mass on our part is out of the question; nor was it contemplated by the United States in the original instructions to Mr. Corwin. It was proposed to make such payment as[Pg 233] would afford present relief to Mexico, and secure the forbearance of the Allied Powers. To this end, Mr. Seward offered to assume the interest of the Mexican debt for the term of five years. But the unfunded claims in the foregoing list, entitled “immediate,” it is understood, are pressed with equal energy by the Allied Powers. If these were satisfied, and provision made for the interest, the United States would have the following liabilities.

Other outstanding claims of the Allied Powers are not included in either of these lists. It is proposed that these should be provided for by a sinking fund, at the rate of 10 per cent a year for ten years, as follows.

[Pg 234]

The assumption of all these liabilities for a long period would throw upon the United States a burden too great for the present moment, although, perhaps, not out of proportion to the anticipated advantages. If anything be done on our part, it must be more moderate. The offer of Mr. Seward for five years, if accepted, would devolve upon the United States a responsibility sufficiently large; and this responsibility ought to be kept within a limitation, of which $15,000,000 should be a maximum.

But there are two conditions to be required by the United States, before the assumption of any such responsibility. The first is the assent of the Allied Powers, and the acceptance on their part of the friendly offers proposed. Unless the Allied Powers are parties to the transaction, it would be productive only of embarrassment and loss, without accomplishing any permanent good to the United States or to Mexico.

The other essential condition is, that security should be given by Mexico for the liabilities assumed. It is not too much to expect such security; nor is Mexico, as is well known, disinclined to give it. Her creditors are now foreclosing their demands, at the cost, perhaps, of her national existence, and she turns to the United States for help. Not merely friendship, but a continental policy, affecting our own cherished interests, prompts us to afford such help, so far as in our power. In asking for security, we simply follow the rules of prudence, whether between individuals or nations.

The security proposed by Mr. Corwin on the public lands, minerals, and Church property of Mexico, would require the appointment of a board or mixed commission for the management and disposition of this property. This necessity adds to the compl[Pg 235]ications of such security.

The security proposed by Mr. Seward, on the public lands and mineral rights in the several provinces of Lower California, Chihuahua, Sonora, and Cinaloa, is simple, and it is understood that in some of this territory there is vast mineral wealth. The province of Lower California is unquestionably the territory of Mexico most interesting to the United States in a military and naval point of view.

Another security, perhaps less manageable, but more interesting still, would be the right of way across the Isthmus of Tehuantepec, with a mortgage on the adjoining public lands of the Isthmus. Estimated by its pecuniary value, this security would not be large; but there can be no doubt of its political and commercial value.

Still another security would be a pledge by Mexico of 25 per cent, or perhaps a larger percentage, of the customs or other revenues.

It is not easy to say positively, at this distance from the scene of operations, and with the information before the Committee, what is the most practicable form of security. Perhaps it is advisable to leave the matter to the careful discretion of our minister at Mexico, under instructions from the President, with the explicit understanding that the United States decline any territorial acquisition, and seek the consolidation of Mexico, without dismemberment of any kind.

Such are the main features of the question on which the President has asked the advice of the Senate. With more precise information on the matters involved, it might be proper for the Senate to enter upon details in its answer. But such information, especially with[Pg 236] regard to actual relations, now daily changing, between Mexico and the Allied Powers, can be obtained only on the spot. It is evident, therefore, that the Senate can do little more than indicate an opinion on what has already been done, and declare the proper principles on which a negotiation with Mexico should be conducted, without presuming to fix in advance all its terms. Much must be left to the discretion of our minister there, and to the instructions he will receive from the President.

The Committee recommend the passage of the following resolution.

[Pg 238]

NO RECOGNITION OF THE FUGITIVE SLAVE BILL.

Motion and Remarks in the Senate, February 25, 1862.

I desire to move an amendment, which I believe will carry out the idea of the Senator from Kansas. I concur with that Senator in all he has said in relation to the Fugitive Slave Bill. I have never called it a law, hardly an act. I regard it simply as a bill, still a bill, having no authority under the Constitution. There is no unsoundness in that instrument out of which such excrescence can grow. That is my idea; I believe it is the idea of the Senator from Kansas. Therefore I concur with him in any criticism upon legislation seeming even in the most indirect way to recognize the existence of a thing which can have, thank God, under the Constitution, when properly interpreted, no legal existence. Therefore, if the language introduced in this bill has the effect which the Senator supposes, if it does in any way recognize the existence of that bill, certainly I am against it; and when I listened to the remarks of the Senator, and critically examined the language, I must say I feared that there was some implication or other on our part in favor of that bill. I therefore propose an amendment which shall remove all such[Pg 239] implication or possibility of recognition on our part, while, at the same time, I believe it will carry out completely, adequately, in every respect, the idea of the Senator from Illinois in the measure now under consideration. The language here is as follows.

I propose to strike out all after the word “before,” in the sixteenth line, down to the word “that,” in the nineteenth line, being these words,—

and instead thereof insert—

so that the sentence will read,—

This language, as I believe, carries out completely the idea of the Senator from Illinois in the measure before us. I think it also carries out the idea of the Senator from Kansas. It gives all proper efficacy to the language of the statute; at the same time it does not compromise[Pg 240] any of us, in this age of Christian light, by a new recognition, direct or indirect, of the Fugitive Slave Bill.

Mr. Sumner. As long as this statute lasts.

Mr. Sumner. I hope so, certainly,—forever.

[Pg 241]

OUR GERMAN FELLOW-CITIZENS, AND A TRUE RECONSTRUCTION.

Letter to the German Republican Central Committee of New York, February 25, 1862.

[Pg 243]

STATE SUICIDE AND EMANCIPATION.

Letter to a Public Meeting at the Cooper Institute, New York, March 6, 1862.

[Pg 247]

REMOVAL OF DISQUALIFICATION OF COLOR IN CARRYING THE MAILS.

Bill in the Senate, March 18, 1862, and Incidents.

That, from and after the passage of this Act, no person, by reason of color, shall be disqualified from employment in carrying the mails; and all Acts and parts of Acts establishing such disqualification, including especially the seventh section of the Act of March 3, 1825, are hereby repealed.

[Pg 251]

RANSOM OF SLAVES AT THE NATIONAL CAPITAL.

Speech in the Senate, on the Bill for the Abolition of Slavery in the District of Columbia, March 31, 1862.

[Pg 253]

[Pg 257]

SPEECH.

MR. PRESIDENT,—With unspeakable delight I hail this measure and the prospect of its speedy adoption. Though only a small instalment of that great debt to an enslaved race which we all owe, yet will it be recognized in history as a victory of humanity. At home, throughout our own country, it will be welcomed[Pg 258] with gratitude, while abroad it will quicken the hopes of all who love Freedom. Liberal institutions will gain everywhere by the abolition of Slavery at the national capital. Nobody can read that slaves were once sold in the markets of Rome, beneath the eyes of the Sovereign Pontiff, without confessing the scandal to religion, even in a barbarous age; and nobody can hear that slaves are now sold in the markets of Washington, beneath the eyes of the President, without confessing the scandal to liberal institutions. For the sake of the national name, if not for the sake of justice, let the scandal cease.

In early discussions of this question many topics were introduced that obtain little attention now. It was part of the tactics of Slavery to claim absolute immunity. Indeed, without such immunity it had small chance to exist. Such a wrong, so utterly outrageous, could find safety only where protected from inquiry. Therefore Slave-Masters always insisted that petitions against its maintenance at the national capital were not to be received, that it was unconstitutional to touch it even here within the exclusive jurisdiction of Congress, and that, if it were touched, it should be only under the auspices of the neighboring States of Virginia and Maryland. On these points elaborate arguments were constructed, useless to consider now. Whatever the opinions of individual Senators, the judgment of the country is fixed. The right of petition, first vindicated by the matchless perseverance of John Quincy Adams, is now beyond question, and the constitutional power of Congress is hardly less free from doubt. It is enough to say on this point, that, if Congress cannot abolish Slavery here, then there is no[Pg 259] power anywhere to abolish it here, and this wrong will endure always, lasting as the capital itself.

As the moment of justice approaches, we are called to meet a different objection, inspired by generous sentiments. It is urged, that, since there can be no such thing as property in man, especially within the exclusive jurisdiction of Congress, therefore all held as slaves at the national capital are justly entitled to freedom without price or compensation of any kind,—or, at least, that any money paid should be distributed according to an account stated between master and slave. If this question were determined according to divine justice, so far as we may be permitted to contemplate such a judgment, it is obvious that nothing can be due to the master, and that any money paid belongs rather to the slave, who for generations has been despoiled of every right and possession. If we undertake to audit this fearful account, pray what sum shall be allowed for the prolonged torments of the lash? what treasure shall be voted to the slave for wife ravished from his side, for children stolen, for knowledge shut out, and for all the fruits of labor wrested from him and his fathers? No such account can be stated. It is impossible. Once begin the inquiry, and all must go to the slave. It only remains for Congress, anxious to secure this great boon, and unwilling to embarrass or jeopard it, to act practically, according to its finite powers, in the light of existing usage, and even existing prejudice, under which these odious relations have assumed the form of law; nor can we hesitate at any forbearance or sacrifice, provided Freedom is established without delay.

[Pg 260]

Testimony and eloquence have been accumulated against Slavery; but on this occasion I shall confine myself precisely to the argument for the ransom of slaves at the National Capital; although such is Slavery that it is impossible to consider it in any single aspect without confronting its whole many-sided wickedness, while the broad, diversified field of remedy is naturally open to review. At some other time the great question of emancipation in the States may be more fitly considered, together with those other questions where the Senator from Wisconsin [Mr. Doolittle] has allowed himself to take sides so earnestly,—whether there is an essential incompatibility between the two races, so that they cannot live together except as master and slave? and whether the freedmen shall be encouraged to exile themselves to other lands, or rather continue their labor here at home? Enough for the present to consider Slavery at the National Capital. And here we are met by two inquiries, so frankly addressed to the Senate by the clear-headed Senator from Kansas [Mr. Pomeroy]: first, Has Slavery any constitutional existence at the national capital? and, secondly, Shall money be paid to secure its abolition? The answer to these two inquiries will make our duty clear. If Slavery has no constitutional existence here, then more than ever is Congress bound to interfere, even with money; for the scandal must be peremptorily stopped, without any postponement, or any consultation of the people on a point which is not within their power.

It may be said, that, whether Slavery be constitutional or not, nevertheless it exists, and therefore this inquiry is superfluous. True, it exists as a monstrous fact; but it is none the less important to consider[Pg 261] its origin, that we may understand how, assuming the form of law, it was able to shelter itself beneath the protecting shield of the Constitution. When we see clearly that it is without any such just protection, that the law which declares it is baseless, and that in all its pretensions it is essentially and utterly brutal and unnatural, we shall have less consideration for the Slave Tyranny, which, in satisfied pride, has thus far—not without compunction at different moments—ruled the national capital, reducing all things here, public opinion, social life, and even the administration of justice, to its own degraded standard, so as to fulfil the curious words of an old English poet:—

It is true, there can be no such thing as property in man: and here I begin to answer the questions propounded by the Senator from Kentucky [Mr. Davis]. If this pretension is recognized anywhere, it is only another instance of custom, which is so powerful as to render the idolater insensible to the wickedness of idolatry, and the cannibal insensible to the brutality of cannibalism. To argue against such a pretension seems to be vain; for the pretension exists in open defiance of reason as well as of humanity. It will not yield to argument; nor will it yield to persuasion. It must be encountered by authority. It was not the planters in the British islands or in the French islands who organized emancipation, but the distant governments across the sea, far removed from local prejudice, which[Pg 262] at last forbade the outrage. Had these planters been left to themselves, they would have clung to the pretension, as men among us still cling to it. In making this declaration against the idea of property in man, I say nothing new. An honored predecessor of the Senator from Maryland [Mr. Kennedy], whose fame as a statesman was eclipsed, perhaps, by his more remarkable fame as a lawyer,—I mean William Pinkney, and it is among the recollections of my youth that I heard Chief Justice Marshall call him the undoubted head of the American bar,—in a speech before the Maryland House of Delegates, spoke as statesman and lawyer, when he said:—

And Henry Brougham spoke not only as statesman and lawyer, but as orator also, when, in the British Parliament, he uttered these memorable words:—

It has been sometimes said that the finest sentence of the English language is that famous description of Law with which Hooker closes the first book of his “Ecclesiastical Polity”; but I cannot doubt that this wonderful denunciation of an irrational and inhuman pretension will be remembered hereafter with higher praise; for it gathers into surpassing eloquence the waking and immitigable instincts of Universal Man.

If I enter now into analysis of Slavery, and say familiar things, it is because such exposition is an essential link in the present inquiry. Looking carefully at Slavery as it is, we find that it is not merely a single gross pretension, utterly inadmissible, but an aggregation of gross pretensions, all and each utterly inadmissible. They are five in number: first, the pretension of property in man; secondly, the denial of the marriage relation,—for slaves are “coupled” only, and not married; thirdly, the denial of the paternal relation; fourthly, the denial of instruction; and, fifthly, the appropriation of all the labor of the slave and its fruits by the master. Such are the five essential elements which we find in Slavery; and this fivefold barbarism, so utterly indefensible in every point, is maintained for the single purpose of compelling labor without wages. Of course such a pretension is founded in force, and nothing else. It begins with the kidnapper in Guinea or Congo, traverses the sea with the pirate slave-trader in his crowded hold, and is continued here by virtue of laws representing and embodying the same brutal force that prevailed in the kidnapper[Pg 264] and the pirate slave-trader. Slavery, wherever it exists, is the triumph of force, sometimes in the strong arm of an individual, and sometimes in the strong arm of law, but in principle always the same. Depending upon force, he is master who happens to be stronger,—so that, if the slave were stronger, he would be master, and the master would be slave. Beyond all doubt, according to reason and justice, every slave possesses the same right to enslave his master that his master possesses to enslave him. If this simple statement of unquestionable principles needed confirmation, it would be found in the solemn judgments of courts. Here, for instance, are the often quoted words of Mr. Justice McLean, of the Supreme Court of the United States: “Slavery is admitted by almost all who have examined the subject to be founded in wrong, in oppression, in power against right.”[217] And here are the words of the Supreme Court of North Carolina: “Such services [of a slave] can only be expected from one who has no will of his own, who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect.”[218] And the Supreme Court of the United States, by the lips of Chief Justice Marshall, has openly declared, in a famous case, read the other day by the Senator from Kentucky [Mr. Davis], that “Slavery has its origin in force.”[219] Thus does it appear by most authoritative words, that this monstrous Barbarism is derived not from reason, or nature, or justice, or goodness,[Pg 265] but from force, and nothing else.

Here in the national capital, under the exclusive jurisdiction of Congress, the force which now maintains this unnatural system is supplied by Congress. Without Congress the “uncontrolled authority” of the master would cease. Without Congress the master would not be master, nor would the slave be slave. Congress, then, in existing legislation, is the power behind, which enslaves our fellow-men. Therefore does it behoove Congress, by proper, instant action, to relieve itself of this painful responsibility.

The responsibility becomes more painful, when it is considered that Slavery exists at the national capital absolutely without support of any kind in the Constitution: and here again I answer the Senator from Kentucky [Mr. Davis]. Nor is this all. Situated within the exclusive jurisdiction of the Constitution, where State rights cannot prevail, it exists in open defiance of most cherished principles. Let the Constitution be rightly interpreted by a just tribunal, and Slavery must cease here at once. The decision of a court would be as potent as an Act of Congress. And now, as I confidently assert this conclusion, which bears so directly on the present question, pardon me, if I express the satisfaction with which I recur to an earlier period, shortly after I entered the Senate, when, vindicating the principle now accepted, but then disowned, that Freedom and not Slavery is National, I insisted upon its application to Slavery everywhere within the exclusive jurisdiction of the Constitution, and declared that Congress might as well undertake to make a king as to make a slave.[220] That argument has never been answered; it cannot be[Pg 266] answered. Nor can I forget that this same conclusion, having such important bearings, was maintained by Mr. Chase, while a member of this body, in that masterly effort where he unfolded the relations of the National Government to Slavery,[221] and also by the late Horace Mann, in a most eloquent and exhaustive speech in the other House, where no point is left untouched to show that Slavery in the national capital is an outlaw.[222] Among all the speeches in the protracted discussion of Slavery, I know none more worthy of profound study than those two, so different in character and yet so harmonious in result. If authority could add to irresistible argument, it would be found in the well-known opinion of the late Mr. Justice McLean, in a published letter, declaring the constitutional impossibility of Slavery in the National Territories, because, in the absence of express power under the Constitution to establish or recognize Slavery, there was nothing for the breath of Slavery, as respiration could not exist where there was no atmosphere. The learned judge was right, and his illustration was felicitous. Although applied at the time only to the Territories, it is of equal force everywhere within the exclusive jurisdiction of Congress; for within such jurisdiction there is no atmosphere in which Slavery can live.

If this question were less important, I should not occupy time with its discussion. But we may learn to detest Slavery still more, when we see how completely it instals itself here in utter disregard of the Constitution, compelling Congress ignobly to do its bidding.[Pg 267] The bare existence of such a barbarous injustice in the metropolis of a Republic gloriously declaring that “all men are entitled to life, liberty, and the pursuit of happiness,” is a mockery which may excite surprise; but when we bring it to the touchstone of the Constitution, and consider the action of Congress, surprise is deepened into indignation.

How, Sir, was this foothold secured? When and by what process did the National Government, solemnly pledged to Freedom, undertake to maintain the Slave-Master here in the exercise of that force, or “unrestrained power” which swings the lash, fastens the chain, robs the wages, sells the child, and tears the wife from the husband? A brief inquiry will show historically how it occurred: and here again I answer the Senator from Kentucky.

The sessions of the Revolutionary Congress were held, according to the exigencies of war or the convenience of members, at Philadelphia, Baltimore, Lancaster, York, Princeton, Annapolis, Trenton, and New York. An insult at Philadelphia from a band of mutineers caused an adjournment to Princeton, in 1783, which was followed by the discussion, from time to time, of the question of a permanent seat of government. On the 7th of October, 1783, a motion was made by Mr. Gerry, of Massachusetts, “That buildings for the use of Congress be erected on the banks of the Delaware, near Trenton, or of the Potomac, near Georgetown, provided a suitable district can be procured on one of the rivers as aforesaid for a federal town, and that the right of soil, and an exclusive or such other jurisdiction as Congress may direct, shall be vested in the United States.”[223] Thus [Pg 268]did the first proposition of a national capital within the exclusive jurisdiction of Congress proceed from a representative of Massachusetts. The subject of Slavery at that time attracted little attention; but at a later day, in the Constitutional Convention, this same honored representative showed the nature of the jurisdiction which he would claim, according to the following record: “Mr. Gerry thought we had nothing to do with the conduct of the States as to slaves, but ought to be careful not to give any sanction to it.”[224] In these words will be found our own cherished principle, Freedom National, Slavery Sectional, expressed with homely and sententious simplicity. There is something grateful and most suggestive in the language employed, “we ought to be careful not to give any sanction to it.” In the first Congress under the Constitution, the same representative, during the debate on the Slave-Trade, gave further expression to this same conviction, when he said that “he highly commended the part the Society of Friends had taken; it was the cause of humanity they had interested themselves in.”[225]

The proposition of Mr. Gerry in reference to a national capital, after assuming various forms, subsided. But in 1785 three commissioners were appointed “to lay out a district of not less than two nor exceeding three miles square, on the banks of either side of the Delaware, not more than eight miles above or below the lower falls thereof, for a federal town.”[226] At the Congress which met at New York two years later,[Pg 269] unsuccessful efforts were made to substitute the Potomac for the Delaware. The commissioners, though appointed, never entered upon their business. At last, by the adoption of the Constitution, the subject was presented in a new form, under the following clause: “The Congress shall have power to exercise exclusive legislation, in all cases whatsoever, over such district, not exceeding ten miles square, as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States.” From the records of the Convention it does not appear that this clause occasioned debate. But it broke out in the earliest Congress. Virginia and Maryland, each, by acts of their respective Legislatures, tendered the ten miles square, while similar propositions were made by citizens of Pennsylvania and New Jersey. After long and animated discussion, Germantown, in Pennsylvania, was on the point of being adopted, when the subject was postponed till the next session. Havre de Grace and Wright’s Ferry, both on the Susquehanna, Baltimore, on the Patapsco, and Connogocheague, on the Potomac, divided opinions. In the course of the debate, Mr. Gerry, who had first proposed the Potomac, now opposed it. He pronounced it highly unreasonable to fix the seat of government where nine States out of the thirteen would be to the northward, and adverted to the sacrifice the Northern States were ready to make in going as far south as Baltimore. An agreement seemed impossible, when the South suddenly achieved one of those political triumphs by which its predominance in the National Government was established.

Pending at this time was the great and trying proposition to assume the State debts, which, being at first[Pg 270] defeated through Southern votes, was at last carried by a “compromise,” according to which the seat of government was placed on the Potomac, thus settling the much vexed question. Mr. Jefferson, in a familiar account, thus sketches the “compromise.”

Such was one of the earliest victories of Slavery in the name of “Compromise.” It is difficult to estimate the evil consequences thus entailed upon the country.

The bill establishing the seat of government, having already passed the Senate, was adopted by the House of Representatives, after vehement debate and many calls of the yeas and nays, by a vote of thirty-two to twenty-nine, on the 9th of July, 1790. A district of territory, not exceeding ten miles square, on the river Potomac, was accepted for the permanent seat of the Government of the United States: “Provided, nevertheless, that the operation of the laws of the State within such district shall not be affected by this acceptance, until the time fixed for the removal of the Government thereto, and[Pg 271] until Congress shall otherwise by law provide.”[228] Here, it will be seen, was a positive saving of the laws of the States for a limited period, so far as Congress had power to save them, within the exclusive jurisdiction of the Constitution; but there was also complete recognition of the power of Congress to change these laws, and an implied promise to assume the “exclusive legislation in all cases whatsoever” contemplated by the Constitution.

In response to this Act of Congress, Maryland, by formal act, ceded the territory now constituting the District of Columbia “in full and absolute right, and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon,”—provided that the jurisdiction of Maryland “shall not cease or determine, until Congress shall by law provide for the government thereof.”[229]

In pursuance of this contract between the United States of the one part and Maryland of the other part, expressed in solemn statutes, the present seat of government was occupied in November, 1800, when Congress proceeded to assume that complete jurisdiction conferred in the Constitution, by enacting, on the 27th of February, 1801, “that the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of the said District which was ceded by that State to the United States, and by them accepted for the permanent seat of government.”[230] Thus at one stroke all existing laws of Maryland were adopted by Congress in gross, and from that time forward became the laws of the United States at the national capital. Although known historically as laws of Maryland, they ceased at once[Pg 272] to be laws of that State, for they draw their vitality from Congress alone, under the Constitution of the United States, as completely as if every statute had been solemnly reënacted. And now we see precisely how Slavery obtained its foothold.

Among the statutes of Maryland thus solemnly reënacted in gross was the following, originally passed as early as 1715, in colonial days.

Slavery cannot exist without barbarous laws in its support. Maryland, accordingly, in the spirit of Slavery, added other provisions, also reënacted by Congress in the same general bundle, of which the following is an example.

At a later day the following kindred provision was added, in season to be reënacted by Congress in the same code.

And such is the law for Slavery at the national capital.

It will be observed that the original statute which undertakes to create Slavery in Maryland does not attaint the blood beyond two generations. It is confined to “all negroes and other slaves,” and their “children,” “during their natural lives.” These are slaves, but none others, unless a familiar rule of interpretation is reversed, and such words are extended rather than restrained. And yet it is by virtue of this colonial statute, with all its ancillary barbarism, adopted by Congress, that slaves are still held at the national capital. It is true that at the time of its adoption there were few slaves here to whom it was applicable. For ten years previous, the present area of Washington, according to received tradition, contained hardly five hundred inhabitants, all told, and these were for the most part laborers distributed in houses merely for temporary accommodation. But all these musty, antediluvian, wicked statutes, of which you have seen a specimen, took their place at once in the national legislation, and under their supposed authority slaves multiplied, and Slavery became a national institution. And it now continues only by virtue of this Slave Code borrowed from early colonial days, which, though flagrantly inconsistent with the Constitution, has never yet been repudiated by Court or Congress.

I have said that this Slave Code, even assuming it applicable to slaves beyond the “natural lives” of two generations, is flagrantly inconsistent with the Constitution.[Pg 274] On this point the argument is so plain that it may be shown like a diagram.

Under the Constitution, Congress has “exclusive legislation in all cases whatsoever” at the national capital. The cession by Maryland was without condition, and the acceptance by Congress was also without condition; so that the territory fell at once within this exclusive jurisdiction. But Congress can exercise no power except in conformity with the Constitution. Its exclusive jurisdiction in all cases whatsoever is controlled and limited by the Constitution, out of which it is derived. Now, looking at the Constitution, we find, first, that there are no words authorizing Congress to establish or recognize Slavery, and, secondly, that there are positive words which prohibit Congress from the exercise of any such power. The argument, therefore, is twofold: first, from the absence of authority, and, secondly, from positive prohibition.

Of course, a barbarism like Slavery, having its origin in force and nothing else, can have no legal or constitutional support except from positive sanction. It can spring from no doubtful phrase. It must be declared by unambiguous words, incapable of a double sense. Here I repeat an argument which I have presented before, when on other occasions arraigning the pretensions of Slavery under the Constitution, but which, so long as Slavery claims immunity, cannot be allowed to drop out of sight. It begins with the great words of Lord Mansfield, who, in the memorable case of Somerset, said: “The state of Slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law.… It is so odious that nothing can be suffered to support it but[Pg 275] positive law.”[234] This principle has been adopted by tribunals even in slaveholding States.[235] But I do not stop to dwell on these authorities. Even the language, “exclusive legislation in all cases whatsoever,” cannot be made to sanction Slavery. It wants those positive words, leaving nothing to implication, which are obviously required, especially when we consider the professed object of the Constitution, as declared in its Preamble, to “establish justice and secure the blessings of liberty.” There is no power in the Constitution to make a king, or, thank God, to make a slave; and the absence of all such power is hardly more clear in one case than in the other. The word king nowhere occurs in the Constitution, nor does the word slave. But if there be no such power, then all Acts of Congress sustaining Slavery at the national capital must be unconstitutional and void. The stream cannot rise higher than the fountain head; nay, more, nothing can come out of nothing; and if there be nothing in the Constitution authorizing Congress to make a slave, there can be nothing valid in any subordinate legislation. It is a pretension which has thus far prevailed simply because Slavery predominated over Congress and courts.

To all who insist that Congress may sustain Slavery in the national capital I put the question, Where in the Constitution is the power found? If you cannot show where, do not assert the power. So hideous an effrontery must be authorized in unmistakable words. But where are the words? In what article, clause, or line? They cannot be found. I challenge their production. Insult not human nature by pretending that[Pg 276] its most cherished rights can be sacrificed without solemn authority. Remember that every presumption and every leaning must be in favor of Freedom and against Slavery. Remember, too, that no nice interpretation, no strained construction, no fancied deduction, can suffice to sanction the enslavement of our fellow-men. And do not degrade the Constitution by foisting upon its blameless text the idea of property in man. It is not there; and if you think you see it there, it is simply because you make the Constitution a reflection of yourself.

A single illustration will show the absurdity of this pretension. If, under the clause giving to Congress “exclusive legislation” at the national capital, Slavery may be established, and under these words Congress is empowered to create slaves instead of citizens, then, under the same words, it may do the same thing in the “forts, magazines, arsenals, dock-yards, and other needful buildings” belonging to the United States, wherever situated, for these are all placed within the same “exclusive legislation.” The extensive navy-yard at Charlestown, in the very shadow of Bunker Hill, may be filled with slaves, with enforced toil to take the place of that cheerful, well-paid labor whose busy hum is the best music of the place. Such an act, however consistent with slaveholding tyranny, would not be regarded as constitutional at Bunker Hill.

If there were any doubt on this point, and the absence of all authority were not perfectly clear, the prohibitions of the Constitution would settle the question. It is true that Congress has “exclusive legislation” within the District; but the prohibitions to grant titles of nobility, to pass ex post facto laws, to pass bills of attainder, and to establish religion, are unquestionable[Pg 277] limitations of this power. There is also another limitation, equally unquestionable. It is found in an Amendment proposed by the First Congress, on the recommendation of several States, as follows:—

This prohibition, according to the Supreme Court, is obligatory on Congress.[236] It is also applicable to all claimed as slaves; for, in the eye of the Constitution, every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave, is a person. Of this there is no question. But a remarkable incident of history confirms the conclusion. As originally recommended by Virginia, North Carolina, and Rhode Island, this proposition was restricted to the freeman. Its language was,—

Of course, if the word freeman had been adopted, this clause would be restricted in its effective power. Deliberately rejecting this limitation, the authors of the Amendment recorded their purpose that no person, within the national jurisdiction, of whatever character, shall be deprived of liberty without due process of law. The latter words are borrowed from Magna Charta, and they mean without due presentment, indictment, or other judicial proceedings. But Congress, undertaking to support Slavery at the national capital, enacts that persons may be deprived of liberty there without[Pg 278] any presentment, indictment, or other judicial proceedings. Therefore every person now detained as a slave in the national capital is detained in violation of the Constitution. Not only is his liberty taken without due process of law, but, since he is tyrannically despoiled of all the fruits of his industry, his property also is taken without due process of law. You talk sometimes of guaranties of the Constitution. Here is an unmistakable guaranty, and I hold you to it.

Bringing the argument together, the conclusion may be briefly stated. The five-headed barbarism of Slavery, beginning in violence, can have no legal or constitutional existence, unless through positive words expressly authorizing it. As no such positive words are found in the Constitution, all legislation by Congress supporting Slavery must be unconstitutional and void, while it is made still further impossible by positive words of prohibition guarding the liberty of every person within the exclusive jurisdiction of Congress.

A court properly inspired, and ready to assume that just responsibility which dignifies judicial tribunals, would at once declare Slavery impossible at the national capital, and set every slave free,—as Lord Mansfield declared Slavery impossible in England, and set every slave free. The two cases are parallel; but, alas! the court is wanting here. The legality of Slavery in England was affirmed in professional opinions by the ablest lawyers; it was also affirmed on the bench. England was a Slave State, and even its newspapers were disfigured with advertisements for the sale of human beings, while the merchants of London, backed by great names in the law, sustained the outrage. Then appeared Granville Sharp, the philanthropist, who,[Pg 279] pained by the sight of Slavery, and especially shocked by the brutality of a slave-hunt in the streets of London, was aroused to question its constitutionality in England. For two years he devoted himself to anxious study of the British Constitution in all its multifarious records. His conclusion is expressed in these precise words: “The word slaves, or anything that can justify the enslaving of others, is not to be found there, God be thanked!”[238] Thus encouraged, he persevered. By his generous exertions the negro Somerset, claimed as a slave by a Virginia gentleman then in London, was defended, and the Court of King’s Bench compelled to that immortal judgment by which Slavery was forever expelled from England, and the early boast of the British Constitution became a practical verity. More than fourteen thousand persons, held as slaves on British soil—four times as many as are now found in the national capital—became instantly free, without price or ransom.

The good work that our courts thus far decline remains to be done by Congress. Slavery, which is a scandalous anomaly and anachronism here, must be made to disappear from the national capital,—if not in one way, then in another. A judgment of court would be simply on the question of constitutional right, without regard to policy. But there is no consideration of right or of policy, from the loftiest principle to the humblest expediency, which may not properly enter into the conclusion of Congress. The former might be the triumph of the magistrate,—the latter must be that of the statesman. But whether from magistrate or from statesman, it will constitute an epoch in[Pg 280] history.

But the question is asked, Shall we vote money for this purpose? I cannot hesitate. Two considerations are with me prevailing. First, the relation of master and slave at the national capital has from the beginning been established and maintained by Congress everywhere in sight, and even directly under its own eyes. The master held the slave; but Congress, with strong arm, stood behind the master, looking on and sustaining. Not a dollar of wages has been taken, not a child stolen, not a wife torn from her husband, without the hand of Congress. If not partnership, there is complicity on the part of Congress, through which the whole country has become responsible for the manifold wrong. Though always protesting against its continuance, and laboring earnestly for its removal, yet gladly do I accept my share of the prospective burden. And, secondly, even if not all involved in the manifold wrong, nothing is clearer than that the mode proposed is the gentlest, quietest, and surest in which the beneficent change can be accomplished. It is therefore the most practical. It recognizes Slavery as an existing fact, and provides for its removal. And when I think of the unquestionable good we seek, of all its great advantages, of the national capital redeemed, of the national character elevated, and of the righteous example we shall set, and when I think, still further, that, according to a rule alike of jurisprudence and morals, Liberty is priceless, I cannot hesitate at any appropriation within our means by which all these things of incalculable value can be promptly secured.

[Pg 281]

As I find no reason of policy adverse to such appropriation, so do I find no objection in the Constitution. I am aware that it is sometimes asked, Where in the Constitution is the power to make such appropriation? But nothing is clearer than that, under the words conferring “exclusive legislation in all cases whatsoever,” Congress may create freemen, although it may not create slaves. And of course it may exercise all the powers necessary to this end, whether by a simple act of emancipation or a vote of money. If there could be any doubt on this point, it would be removed, when we reflect that the abolition of Slavery, with all the natural incidents of such an act, has been constantly recognized as within the sphere of legislation. It was so regarded by Washington, who, in a generous letter to Lafayette, dated May 10, 1786, said: “It certainly might and assuredly ought to be effected, and that, too, by legislative authority.”[239] Through legislative authority Slavery has been abolished in State after State of our Union, and also in foreign countries. I have yet to learn that the power of Congress for this purpose at the national capital is less complete than that of any other legislative body within its own jurisdiction.

But, while not doubting the power of Congress in any of its incidents, I prefer to consider the money we pay as in the nature of ransom rather than compensation, so that Freedom shall be acquired rather than purchased; and I place it at once under the sanction of that commanding charity proclaimed by prophets and enjoined by apostles, which all history recognizes and the Constitution cannot impair. From time immemorial every Government has undertaken to ransom from [Pg 282]captivity, and sometimes a whole people has felt the general resources well bestowed in the ransom of its prince. Religion and humanity have both concurred in this duty as more than usually sacred. “The ransom of captives is a great and excellent office of justice,” exclaims one of the early Fathers. And the pious St. Ambrose insisted upon breaking up even the sacred vessels of the Church, saying: “The ornament of the sacraments is the redemption of captives.”

Among the most beautiful incidents of the early Church is that of St. Ambrose. There had been hesitation, but the divine Emancipationist broke forth: “What! you will not sell the vessels of gold, and you leave for sale the living vessels of the Lord! The ornament of the sacraments is the redemption of captives. Let the cup ransom from the enemy him whom the blood ransoms from sin.”[240] Happily, this spirit prevailed. At the report of Christians compelled to wear out their days as captives in Algiers, Tunis, or Morocco, or, it might be, among the Moors of Spain or the merchants of Genoa and Venice, it assumed practical form. Two Frenchmen, Jean de Matha and Pierre Nolasque, born on the coast of the Mediterranean, conceived the idea of a special order vowed to the redemption of Christian slaves. The first founded, in 1199, the order of the Holy Trinity, known often as Mathurins; the second, acting under the patronage of Spain, founded the order of Our Lady of Mercy. Upon both these orders Bishops and Popes bestowed approbation and encouragement, while, for more than six centuries, they devoted themselves to this Christian charity, often, according to the vow assumed, giving themselves as hostages[Pg 283] for the ransomed captive. It is related, that, in 1655, the Order of Mercy in Algiers alone ransomed more than twelve thousand slaves, leaving in pledge a large number of its members, faithful to the vow, “In Saracenorum potestate in pignus, si necesse fuerit ad redemptionem Christi fidelium, detentus manebo.” Thus did these pious fathers give not only money, but themselves.[241]

The duty thus commended has been exercised by the United States under important circumstances, with the coöperation of the best names of our history, so as to be beyond question. The instance may not be familiar, but it is decisive, while, from beginning to end, it is full of instruction.

Who has not heard of the Barbary States, and of the pretension put forth by them to enslave white Christians? Algiers was the chief seat of this enormity, which, through the insensibility or incapacity of Christian States, was allowed to continue for generations. Good men and great men were degraded to be captives, while many, neglected by fortune, perished in barbarous Slavery. Even in our colonial days, there were Americans whose fate, while in the hands of these slave-masters, excited general sympathy. Only by ransom was their freedom obtained. Perhaps no condition was more calculated to arouse indignant rage. And yet the disposition so common to palliate Slavery in the National Capital showed itself with regard to Slavery in Algiers; and, indeed, the same arguments to soften public opinion have been employed in the two instances. The parallel is so complete, that I require all your trust to believe that what I read is not an apology for Slavery[Pg 284] here. Thus, a member of a diplomatic mission from England, who visited Morocco in 1785, says of the Slavery which he saw: “It is very slightly inflicted”; and “as to any labor undergone, it does not deserve the name.”[242] And another earlier traveller, after describing the comfortable condition of the white slaves, adds, in words to which we are accustomed: “I am sure we saw several captives who lived much better in Barbary than ever they did in their own country.… Whatever money in charity was ever sent them by their friends in Europe was their own.… And yet this is called insupportable slavery among Turks and Moors! But we found this, as well as many other things in this country, strangely misrepresented.”[243] A more recent French writer asserts, with a vehemence to which we are habituated from the partisans of Slavery among us, that the white slaves at Algiers were not exposed to the miseries which they represented; that they were well clad and well fed, much better than the free Christians there; that special care was bestowed upon those who became ill; and that some were allowed such privileges as to become indifferent to freedom, and even to prefer Algiers to their own country.[244] Believe me, Sir, in stating these things I simply follow history; and I refer to the volume and page or chapter of the authorities which I quote, that the careful inquirer may see that they relate to Slavery abroad, and not to Slavery at home. If I continue to unfold this strange, eventful story, it will be to exhibit the direct and constant intervention of Congress for the ransom of slaves; but the story itself is an argument[Pg 285] against Slavery, pertinent to the present occasion, which I am not unwilling to adopt.

Scarcely was national independence established, when we were aroused to fresh efforts for the protection of enslaved citizens. Within three years no less than ten American vessels were seized. At one time an apprehension prevailed that Dr. Franklin, on his way home from France, had been captured. “We are waiting,” said one of his French correspondents, “with the greatest impatience to hear from you. The newspapers have given us anxiety on your account, for some of them insist that you have been taken by the Algerines, while others pretend that you are at Morocco, enduring your slavery with all the patience of a philosopher.”[245] Though this apprehension happily proved without foundation, it soon became known that other Americans, less distinguished, but entitled to all the privileges of new-born citizenship, were suffering in cruel captivity. At once the sentiments of the people were enlisted in their behalf. Newspapers pleaded, while the corsairs were denounced sometimes as “infernal crews,” and sometimes as “human harpies.” But it was through the stories of victims who had succeeded in escaping from bondage that the people were most aroused. As these fugitive slaves touched our shores, they were welcomed with outspoken sympathy. Glimpses opened through them into the dread regions of Slavery gave a harrowing reality to all that conjecture or imagination had pictured. True, indeed, it was that our own white brethren, entitled like ourselves to all the rights of manhood, were degraded in unquestioning obedience to an arbitrary[Pg 286] taskmaster, sold at the auction-block, worked like beasts of the field, and galled by the manacle and lash. As the national power seemed yet inadequate to compel their liberation, it was attempted by ransom.

Generous efforts at Algiers were organized under the direction of our minister at Paris, and the famous Society of Redemption, having its origin in the thirteenth century, offered aid. Our agents were blandly entertained by the great slave-dealer, the Dey, who informed them that he was familiar with the exploits of Washington, and, as he never expected to set eyes on this hero of Freedom, expressed a hope, that, through Congress, he might receive a full-length portrait of him, to be displayed in the palace at Algiers. Amidst such professions the Dey still clung to his American slaves, holding them at prices beyond the means of the agents, who were not authorized to exceed two hundred dollars a head,—being not unlike in amount that proposed in the present bill; and I beg to call the attention of the Senator from Maine [Mr. Morrill], who has the bill in charge, to the parallel.

Their redemption engaged the attention of the National Government early after the adoption of the Constitution. It was first brought before Congress by petition, of which we find the following record.

[Pg 287]

An interesting report on the situation of these captives was made to the President by the Secretary of State, December 28, 1790, where he sets forth the efforts for their redemption at such prices as would not “raise the market,”—it being regarded as important, that, in “the first instance of a redemption by the United States, our price should be fixed at the lowest point.”[247] I quote the precise words of this document, which will be found in the State Papers of the country, and I call special attention to them as applicable to the present moment. Our price should be fixed at the lowest point, and we should do nothing to raise the market. The parallel becomes more complete, when it is known that the white slaves at Algiers were about the same in number with the black slaves at Washington whose redemption is now proposed. The report of Mr. Jefferson was laid before Congress, with the following brief message from the President.

It does not appear that there was question in any quarter with regard to the power of Congress. The broad recommendation of the President was to provide on behalf of the slaves what should seem most expedient.

Another report from the Secretary of State, entitled “Mediterranean Trade,” and communicated to Congress[Pg 288] December 30, 1790, relates chiefly to the same matter. In this document are different estimates with regard to the price at which our fellow-citizens might be ransomed and peace purchased. One person, who had long resided at Algiers, put the price at sixty or seventy thousand pounds sterling: this was the lowest estimate. Another, also long, and still, a resident there, said that it could not be less than a million dollars,—which is the sum proposed in the present bill. Mr. Jefferson, after considering the subject at some length, concludes as follows.

Among the papers accompanying the report is a letter from Mr. Adams, minister at London, from which I take important words.

This is the very sum now needed for our great affair.

In pursuance of these communications, the Senate tendered its advice to the President in a resolution.

In a subsequent message, February 22, 1791, the President said:—

The same subject was presented again to the Senate by President Washington, in the following inquiry, May 8, 1792.

The Senate promptly replied by a resolution declaring it would approve such treaty of ransom.[254] And Congress, by Act of May 8, 1792, appropriated a sum of fifty thousand dollars for this purpose.[255] Commodore Paul Jones was intrusted with the mission to Algiers, charged with the double duty of making peace and of securing the redemption of our citizens. In his letter[Pg 290] of instructions, June 1, 1792, Mr. Jefferson considers the rate of ransom.”

In the same instructions Mr. Jefferson says:—

Commodore Paul Jones—called Admiral in the instructions—died without entering upon these duties, and they were afterwards undertaken by Colonel Humphreys, our minister at Lisbon, honored especially with the friendship of Washington, and an accomplished officer of his staff during the Revolution. The terms demanded by the Dey were such as to render the mission unsuccessful.

Meanwhile the Algerines seized other of our citizens, who are described as “employed as captive slaves on the most laborious work, in a distressed and naked situation.”[258] One of their number, in a letter [Pg 291]to the President, dated at Algiers, November 5, 1793, says:—

At this time one hundred and nineteen American slaves in Algiers united in a petition to Congress, dated December 29, 1793, where they say:—

The country was now aroused. A general contribution was proposed. People of all classes vied in generous effort. Newspapers entered with increased activity into the work. At public celebrations the toasts, “Happiness for all,” and “Universal Liberty,” were proposed, partly in sympathy with our wretched white fellow-countrymen in bonds. On one occasion, at a patriotic festival in New Hampshire, they were distinctly remembered in the toast: “Our brethren in slavery at Algiers. May the measures adopted for their redemption be successful, and may they live to rejoice with their friends in the blessings of liberty!”[261] The clergy, too, were enlisted. A fervid appeal by the captives themselves was[Pg 292] addressed to ministers of the Gospel throughout the United States, asking them to set apart a special Sunday for sermons in behalf of their enslaved brethren. Literature added her influence, not only in essays, but in a work, which, though now forgotten, was among the earliest of the literary productions of our country, reprinted in London at a time when few American books were known abroad. I refer to the story of “The Algerine Captive,” which, though published anonymously, like other similar works at a later day, is known to have been written by Royall Tyler, afterwards Chief Justice of Vermont. Slavery in Algiers is here delineated in the sufferings of a single captive,—as Slavery in the United States has been since depicted in the sufferings of “Uncle Tom”; but the argument of the early story was hardly less strong against African Slavery than against White Slavery. “Grant me,” says the Algerine captive—who had been a surgeon on board a ship in the African slave-trade—from the depths of his own sorrows, “once more to taste the freedom of my native country, and every moment of my life shall be dedicated to preaching against this detestable commerce. I will fly to our fellow-citizens in the Southern States; I will on my knees conjure them, in the name of humanity, to abolish a traffic which causes it to bleed in every pore. If they are deaf to the pleadings of Nature, I will conjure them, for the sake of consistency, to cease to deprive their fellow-creatures of freedom, which their writers, their orators, Representatives, Senators, and even their Constitutions of Government, have declared to be the unalienable birthright of man.”[262] In such words was the cause of Emancipation pleaded[Pg 293] at that early day.

From his distant mission at Lisbon, Colonel Humphreys, yet unable to reach Algiers, joined in this appeal by a letter to the American people, dated July 11, 1794. Taking advantage of the general interest in lotteries, and particularly of the custom, not then condemned, of employing these to obtain money for literary or benevolent purposes, he suggests a grand lottery, sanctioned by the United States, or particular lotteries in individual States, to obtain the means required for the ransom of our countrymen. He then asks:—

Meanwhile the Government was energetic through all its agents, at home and abroad; nor was any question raised with regard to constitutional powers. In the animated debate which ensued in the House of Representatives, an honorable member said, “If bribery would not do, he should certainly vote for equipping a fleet.”[263] At last, by Act of Congress of the 20th March, 1794, a million dollars was appropriated for this purpose, being the identical sum now proposed for a similar purpose of redemption; but it was somewhat masked under the language, “to defray any expenses which[Pg 294] may be incurred in relation to the intercourse between the United States and foreign nations.”[264] On the same day, by another Act, the President was authorized “to borrow, on the credit of the United States, if in his opinion the public service shall require it, a sum not exceeding one million of dollars.”[265] The object was distinctly avowed in the instructions of Mr. Jefferson, 28th March, 1795, “for concluding a treaty of peace and liberating our citizens from captivity.” In other instructions, 25th August of the preceding year, the wishes of the President are thus conveyed:—

The negotiation being consummated, the first tidings of its success were announced to Congress by President Washington in his speech at the opening of the session, 8th December, 1795.

The treaty was signed at Algiers, 5th September, 1795. It was a sacrifice of pride, if not of honor, to the[Pg 295] necessity of the occasion. Among its stipulations was one even for annual tribute to the barbarous Slave Power.[268] But, amidst all its unquestionable humiliation, it was a treaty of Emancipation; nor did our people consider nicely the terms on which this good was secured. It is recorded that a thrill of joy went through the land on the annunciation that a vessel had left Algiers having on board the Americans who had been captives there. The largess of money, and even the indignity of tribute, were forgotten in gratulations on their new-found happiness. Washington, in his speech to Congress of December 7, 1796, thus solemnly dwelt on their emancipation:—

Other treaties were made with Tripoli and Morocco, and more money was paid for the same object, until at last, in 1801, the slaveholding pretensions of Tripoli compelled a resort to arms. By a document preserved in the State Papers of our country, it appears that from 1791, in the space of ten years, appropriations were made for the liberation of our people,[Pg 296] reaching to a sum-total of more than two millions of dollars.[270] To all who question the power of Congress, or the policy of exercising it, I commend this account, in its various items, given with authentic minuteness. If we consider the population and resources of the country at the time, as compared with our present gigantic means, the amount will not be deemed inconsiderable.

The pretensions of Tripoli brought out Colonel Humphreys, the former companion of Washington, now at home in retirement. In an address to the public, he called again for united action, saying:—

Then commenced those early deeds by which our arms became known in Europe,—the best achievement of Decatur, and the romantic expedition of Eaton. Three several times Tripoli was attacked; and yet, after successes sometimes mentioned with pride, our country consented by solemn treaty to pay sixty thousand dollars for the freedom of two hundred American slaves, and thus again by money obtained[Pg 297] Emancipation.[272] But Algiers was governed by Slavery as a ruling passion. Again our people were seized. Even the absorbing contest with Great Britain could not prevent an outbreak of indignant sympathy for those in bonds. A naval force, promptly despatched to the Mediterranean, was sufficient to secure the freedom of the American slaves without ransom, and the further stipulation that hereafter no Americans should be made slaves, and that “any Christians whatsoever, captives in Algiers,” making their escape and taking refuge on board an American ship of war, should be safe from all requisition or reclamation.[273] Decatur, on this occasion, showed character as well as courage. The freedmen of his arms were welcomed on board his ship with impatient triumph. Thus, by war, and not by money, was Emancipation this time obtained.

At a later day, Great Britain, weary of tribute and ransom, directed her naval power against the Barbary States. Tunis and Tripoli each promised Abolition, but Algiers sullenly refused, until compelled by irresistible force. Before night, on the 27th August, 1816, the fleet fired, besides shells and rockets, one hundred and eighteen tons of powder and fifty thousand shot, weighing more than five hundred tons. Amidst the crumbling ruins of walls and citadel, the cruel Slave Power was humbled, and by solemn stipulation consented to the surrender of all slaves in Algiers, and the abolition of White Slavery forever. This great triumph was announced by the victorious admiral in a despatch to his Government, where he uses words of rejoicing worthy of the occasion.

[Pg 298]

And thus ended White Slavery in the Barbary States. A single brief effort of war put an instant close to the wicked pretension. If, in looking back upon its history, we find much to humble our pride, if we are disposed to mourn that the National Government stooped to ransom men justly free without price, yet we cannot fail to gather instruction from this great precedent. Slavery is the same in essential character, wherever it exists,—except, perhaps, that it has received new harshness here among us. There is no argument against its validity at Algiers not equally strong against its validity at Washington. In both cases it is unjust force organized into law. But in Algiers it is not known that the law was unconstitutional, as it clearly is here in Washington. In the early case, Slavery was regarded by our fathers only as an existing fact; and it is only as an existing fact that it can be regarded by us in the present case; nor is there any power of Congress, generously exerted for those distant captives, which may not be invoked for the captives in our own streets.

Mr. President, if, in this important discussion, which seems to open the door of the future, I confine myself to two simple inquiries, it is because practically they[Pg 299] exhaust the whole subject. If Slavery be unconstitutional in the national capital, and if it be a Christian duty, sustained by constitutional examples, to ransom slaves, then your swift desires will not hesitate to adopt the present bill. It is needless to enter upon other questions, important perhaps, but irrelevant. It is needless, also, to consider the objections which Senators have introduced, for all must see that they are but bugbears.

If I seem to dwell on details, it is because they furnish at each stage instruction and support; if I occupy time on a curious passage of history, it is because it is more apt even than curious, while it sometimes holds the mirror up to our own wickedness, and sometimes even seems to cry out, “Thou art the man!” I scorn to argue the obvious truth that the slaves here are as much entitled to freedom as the white slaves that enlisted the early energies of the new-born nation. They are men by the grace of God, and this is enough. There is no principle of the Constitution, and no rule of justice, which is not as strong for one as for the other. Consenting to the ransom proposed, you recognize their manhood, and if authority be needed, you find it in the example of Washington, who did not hesitate to employ a golden key to open the house of bondage.

Let this bill pass, and then will be accomplished the first practical triumph of Freedom, for which good men have longed, dying without the sight,—for which a whole generation has petitioned, and for which orators and statesmen have pleaded. Slavery will be banished from the national capital. This metropolis, bearing a venerated name, will be exalted, its evil spirit cast out, its shame removed, its society refined, its courts made just, its revolting ordinances swept away, and even its[Pg 300] loyalty assured. If not moved by justice to the slave, then be willing to act for your own good and in self-defence. If you hesitate to pass this bill for the blacks, then pass it for the whites. Nothing is clearer than that the degradation of Slavery affects the master as well as the slave; while also recent events testify, that, wherever Slavery exists, there Treason lurks, if it does not flaunt. From the beginning of this Rebellion, Slavery has been constantly manifest in the conduct of the masters, and even here in the national capital it is the traitorous power encouraging and strengthening the enemy. This power must be suppressed at every cost; and if its suppression here endangers Slavery elsewhere, there will be new motive for determined action.

Amidst all present solicitudes, the future cannot be doubtful. At the national capital Slavery will give way to Freedom. But the good work will not stop here: it must proceed. What God and Nature decree Rebellion cannot arrest. And as the whole wide-spread tyranny begins to tumble, then, above the din of battle, sounding from the sea and echoing along the land, above even the exultations of victory on hard-fought fields, will ascend voices of gladness and benediction, swelling from generous hearts, wherever civilization bears sway, to commemorate a sacred triumph, whose trophies, instead of tattered banners, are ransomed slaves.

[Pg 301]

REBEL BARBARITIES, AND THE BARBARISM OF SLAVERY.

Resolution and Remarks in the Senate, April 1, 1862.

MR. PRESIDENT,—We have all been shocked, during the last few days, by the evidence that has accumulated with regard to the treatment of our dead at Manassas.

Instead of those honorable rites which in all ages generous soldiers have been glad to bestow upon enemies fallen in battle, we are disgusted by barbarities reminding us of savage life. Bodies have been dug up, and human bones carried off as trophies. The skull of a gallant Massachusetts soldier has been converted into the drinking-cup of a Georgia colonel, that he may, far away among his slaves, renew the festive barbarism of another age under the name of “The Feast of Skulls.”

It is obvious, Sir, that we are now in conflict with beings who belong to a different plane of civilization from ourselves, and it is important that this unquestionable[Pg 302] fact should be made known to the country and to the world.

All familiar with recent events will remember the effect with which that great minister, Cavour, when on the eve of the war for Italian liberation, put forth his circular, setting forth the outrages of the Austrian soldiers on the Italian inhabitants. Through that appeal, Sir, he secured the general sympathy of Europe and of the civilized world. Our cause needs no such document; but I am anxious, nevertheless, for the sake of history, that the record should be made.

Let it be made, also, that the country and mankind may see how Slavery in all its influences is barbarous,—barbarous in peace, barbarous in war, barbarous always, and nothing but barbarism.

[Pg 304]

TESTIMONY OF COLORED PERSONS IN THE DISTRICT OF COLUMBIA.

Remarks in the Senate, on the Emancipation Bill, April 3, 1862.

MR. PRESIDENT,—In addressing the Senate on this bill, urging the duty of ransom, I exposed an early, inhuman, and wicked statute of Maryland, belonging to that offensive mass originally adopted at the time of the cession as the law of the District, and ever since recognized, although never voted on, and having only a surreptitious authority. I refer to that unjust statute making colored persons incompetent to testify, where a white is a party. I quoted the precise words, still the law of the District.[276] No language of mine is strong enough to express the detestation such a contrivance is calculated to arouse in every bosom not entirely given over to injustice.

The time has come for a change. At least, while providing for the release of those now detained in Slavery,—unconstitutionally, as I hold,—we must see that the proceedings are without embarrassment from that outrageous statute. I propose an amendment, and here I have the consent of my friend, the chairman of the Committee [Mr. Morrill], in the hope of removing this grievance in the inquiries under the bill.

[Pg 305]

The bill provides for something like a tribunal, as follows:—

Under this provision the old Maryland statute is left in full force. This should not be.

[Pg 307]

INDEPENDENCE OF HAYTI AND LIBERIA.

Speech in the Senate, on the Bill to authorize the Appointment of Diplomatic Representatives to the Republics of Hayti and Liberia, April 23, 1862.

[Pg 309]

[Pg 311]

SPEECH.

MR. PRESIDENT,—The independence of Hayti and Liberia has never been acknowledged by our Government down to this day. It is within the province of the President to do this at any time, either by receiving a diplomatic representative or by sending one. The action of Congress is not necessary, except so far as an appropriation is needed to sustain a mission. But the President has seen fit, in his Annual Message, to invite such action. By this bill Congress will associate itself with him in the acknowledgment, which, viewed only as an act of justice, comity, and good neighborhood, must commend itself to all candid minds.

In all respects Hayti and Liberia fulfil the requirements of International Law. Our acknowledgment can raise no question with any foreign power. Independent in fact, and with a civil government in successful operation, these two Republics are entitled to hospitable recognition in the Family of Nations, according to the rule already established by our Government.

In proposing to appoint diplomatic representatives, we necessarily contemplate the negotiation of treaties and the establishment of friendly relations with these two Republics under the sanctions of International Law, and according to the usage of nations. If it be important that such treaties should be negotiated and such relations be established, then the present bill [Pg 312]is entitled to support. Thus far our Government, habitually hospitable to all newly formed republics, has turned aside from Hayti and Liberia, although the former has been an independent power for nearly sixty years, and the latter for nearly fifteen. Our national character has suffered from such conduct, while important commercial relations with these countries have continued without the customary support of treaties or the active protection afforded by the presence of an honored representative. It is time to end this anomalous state of things.

The arguments for the recognition of Hayti loom like her own mountains as the mariner approaches the beautiful island, rising higher and higher, while the head of the last purple peak is lost in the clouds; and the arguments for the recognition of Liberia are not inferior in character.

It was my purpose originally to consider this question in some of its larger aspects, to trace the character and history of the two Republics, to exhibit the struggles in our own country for the acknowledgment of their independence, and to vindicate this act in its manifest relations to civilization. I am happy to believe that such a discussion is unnecessary, and shall therefore content myself with a few considerations exclusively practical in character, and especially in reply to the assertion that diplomatic representatives are not needed in our concerns with these two Republics.

Hayti is one of the most charming and important islands in the world, possessing remarkable advantages in size, situation, climate, soil, productions, and mineral wealth. In length, from east to west, it is about three hundred and thirty-eight miles; and in breadth, from[Pg 313] north to south, it varies from one hundred and forty-five miles to seventeen. Its circumference, without including bays, measures eight hundred and forty-eight miles. Its surface, exclusive of adjacent islands, is estimated at thirty thousand five hundred and twenty-eight square miles,—being about the area of Ireland, and nearly half that of New England. In size it is so considerable as to attract attention among the islands of the world. In situation it is commanding, being at the entrance to the Gulf of Mexico, and within easy reach of all the islands there. In climate it is salubrious, with natural heats tempered by sea-breezes. In soil, it is rich with tropical luxuriance, various with mountains and plains, watered by numerous rivers, and dotted with lakes. In productions it is abundant beyond even the ordinary measure of such favored regions. The mountains yield mahogany, satin-wood, and lignum-vitæ, while the plains supply all the bountiful returns of the tropics, including bananas, oranges, pine-apples, coffee, cacao, sugar, indigo, and cotton. Among the minerals are gold, silver, platinum, mercury, copper, iron, sulphur, and several kinds of precious stones. Such, in brief, is the physical character of this wonderful island, which, like Ireland, is a “gem of the sea.”

Originally discovered by Christopher Columbus, who named it Hispaniola, or Little Spain, the island was for a long time among the most valued possessions of Spain, from which power the western portion, known as Hayti, passed to France. Throwing off the government of the latter country, the Republic of Hayti for nearly sixty years has maintained its independence before the world, and performed honorably all its duties in the family of nations. At one time it embraced the whole island: at[Pg 314] present it occupies a portion only, with a population of six hundred thousand.

The Republic of Liberia extends along the western coast of Africa for a space of five hundred miles, beginning at the British colony of Sierra Leone, with an average breadth of fifty miles, between latitude 4° 20´ and 7° 20´ north, embracing an area of thirty thousand square miles, being almost precisely the area of Hayti,—so that these two regions, one an island and the other a strip of African sea-coast, are of equal geographical extent. I say nothing of the origin of this republic, although it cannot be contemplated without the conviction that perhaps it is one of the most important colonies ever planted. At last civilization obtains foothold in Africa, almost under the equator.

In soil and productions, if not in climate, this region is hardly less favored than Hayti. Though so near the equator, the mercury seldom rises above ninety degrees in the shade, and never falls below sixty. Most of the productions in one are also found in the other. But Liberia abounds in iron ore. Copper and other metals are said to exist in the interior. It is, however, in sugar, cotton, coffee, and palm-oil that Liberia seems destined to excel. A person familiar with the country reports that it “bids fair to become one of the greatest sugar-producing countries in the world.” The population embraces some fifteen thousand persons, emigrants, or their children, from the United States, with a large native population, held in subjection and already won toward civilization, amounting to more than two hundred thousand.

[Pg 315]

With two countries like these the argument for treaties is strong, without pursuing the inquiry further. But it becomes irresistible, when we consider the positive demands of our commerce in these quarters. Even in spite of coldness, neglect, and injustice, our commercial relations have grown there to great importance. If assured of the customary protection afforded by treaties and the watchful presence of a diplomatic representative, they must become of greater importance still.

I have in my hands a tabular statement of our commerce and navigation with foreign countries for the year ending June 30, 1860, arranged according to amount, so that the country with the largest commercial intercourse stands first. This authentic testimony has been prepared at the Treasury Department, under my directions, for this occasion. Though most interesting and instructive, it is too minute to be read in debate. Here, under one head, are the exports from the United States; under another head, the imports; and, under other heads, the number of ships and tonnage: the whole so classified that we see at a glance the relative importance of foreign countries in their commercial relations with the United States.[280] Such a statement is in itself an argument.

It is to exhibit the precise position of Hayti and Liberia in the scale that I introduce this table. When it is said that out of seventy-one countries Hayti stands the twenty-seventh, and Liberia at least helps to make the twenty-ninth, this is not enough. It must be observed[Pg 316] that there are no less than ten countries, like Canada and Cuba, which, though enumerated separately, belong to other nationalities. If these are excluded, or added to their proper nationalities, Hayti will rank as seventeenth, and Liberia will take her place as nineteenth. But if we examine this table in detail, we find the important relative position of these two countries amply sustained. Confining ourselves for the present to Hayti, we have these remarkable results.

Hayti, in exports received from us, stands next to Russia. The exports to Hayti are $2,673,682; while those to Russia amount to $2,786,835. But the imports from Hayti are $2,062,723, while those from Russia are only $1,545,164. In number of vessels employed, Hayti is much the more important to us. Only sixty vessels are employed between the United States and Russia, while four hundred and ninety are employed between the United States and Hayti. So that, in importance of commercial relations, Hayti stands above Russia, where we have been constantly represented by a Minister Plenipotentiary of the highest class, with a Secretary of Legation, and have at this moment no less than eight consuls besides.

According to this table, there are no less than fifteen countries with which the United States maintain diplomatic relations, although lower than Hayti in the scale of commerce and navigation. This is not all. In point of fact, there are at least three other countries, where we are now represented by a Minister Resident, which do not appear in any commercial tables: I refer to Switzerland, Paraguay, and Bolivia. So that there are as many as eighteen countries of less commercial importance than Hayti, with which the United States[Pg 317] are now in diplomatic relations.

The exports to Austria, including Venice, where we are represented by a Minister Plenipotentiary of the first class, with a Secretary of Legation and three consuls, are less than one half our exports to Hayti, while the number of ships in this commerce is only forty-five, being four hundred and forty-five less than in our commerce with Hayti. The exports to Peru, where we are represented also by a Minister Plenipotentiary of the first class, with a Secretary of Legation and five consuls, are still less than those to Austria.

In this scale of commerce and navigation Hayti stands above Prussia, where we are represented by a Minister Plenipotentiary, and also above Sweden, Turkey, Central America, Portugal, the Papal States, Japan, Denmark, and Ecuador, where we are represented by Ministers Resident. It also stands above the Sandwich Islands, where we are represented by a Commissioner. Of these there are several whose combined commerce with the United States is inferior to that of Hayti. This is the case with Sweden, Turkey, Portugal, Japan, Denmark, and Ecuador, which altogether do not equal Hayti in commercial relations with the United States.

Our combined exports to Turkey in Europe and Turkey in Asia are nearly two millions less than to Hayti; and yet, with this Mohammedan Government we have felt it important within a few weeks to negotiate a treaty of commerce.

The commerce with China is among the most valuable we possess, and the ships engaged in it are of large size; but in number they are inferior to those engaged in trade with Hayti. And yet at China we[Pg 318] have a Minister Plenipotentiary of the first class, with a salary of twelve thousand dollars, an interpreter with a salary of five thousand dollars, two consuls with salaries each of four thousand dollars, one other consul with a salary of three thousand five hundred dollars, two other consuls with salaries each of three thousand dollars, and two other consuls paid by fees.

Perhaps the comparison between Hayti and the Sandwich Islands is the most instructive. Both are islands independent in government,—Hayti with a population of six hundred thousand, the Sandwich Islands with a population of little more than seventy thousand. The exports to Hayti, as we have already seen, are $2,673,682, while the exports to the Sandwich Islands are only $747,462. And the difference in navigation is as great. In commerce with Hayti there are four hundred and ninety ships, with an aggregate of 82,360 tons, while in commerce with the Sandwich Islands there are only eighty-five ships, with an aggregate of 35,368 tons. And yet, at the Sandwich Islands, with this inferior population, inferior commerce, and inferior navigation, we are represented by a Commissioner, with a salary of seven thousand five hundred dollars, one consul with a salary of four thousand dollars, another consul with a salary of three thousand dollars, and still another paid by fees.

Nor is the interest in the trade with Hayti confined to any particular State or section of the United States. From other authentic tables it appears that the New England States send fish and cheap cottons,—Pennsylvania and the Western States send pork,—Vermont, New York, Ohio, and Illinois send beef, butter, and cheese,—Philadelphia and Boston send soap and cand[Pg 319]les,—while Maine sends lumber, and in times past Southern States have sent rice and tobacco.

Of fish Hayti in 1859-60 took from us 55,652 cwt., being much more than was taken by any other country, except Cuba, which took 59,719 cwt., and much more than was taken by all the rest of the West Indies. Of cotton manufactures Hayti took from us to the value of $227,717, being more than was taken by many other countries together, and nearly double the amount taken by Cuba and Porto Rico together, the two remaining, but valuable, American possessions of Spain. Of butter Hayti took 211,644 pounds, of cheese 121,137 pounds, of lard 675,163 pounds,—but of soap she took 2,602,132 pounds, being three times as much as was taken by any other country. Cuba, which stands next, took only 867,823 pounds, while Mexico took only 66,874 pounds.[281]

Such are some of the articles, which I mention that you may see the distribution of this commerce in our own country, as well as the extent to which, though pursued under difficulties, it has already gone.

The practical advantages from the recognition of Hayti were directly urged upon the National Government by one of its agents, even during the unfriendly administration of President Pierce. I refer to the consular return of John L. Wilson, commercial agent at Cape Haytien, under date of June 5, 1854, as follows.

[Pg 320]

This is certainly strong testimony, although, when we consider his political relations, testimony from an unwilling witness. There is other testimony of a similar character. In the text of the elaborate report by the Department of State, from which the above is taken, is found the following weighty opinion.

As late as June 25, 1850, a law was in force which subjected the vessels of all countries not acknowledging the independence of Hayti to an additional duty of ten per cent. American vessels, being within its operation, could not compete with the vessels of other nations, even in exporting to Hayti our own staples. Then, again, there was a tariff, that took effect in January, 1850, under which there was a most injurious discrimination against our trade. A despatch[Pg 321] at that period from Aux Cayes to the Department of State says: “While the citizens of France are scarcely affected in their importations to Hayti, the Americans here import, and our merchants at home export, scarcely any article that is free.” And yet, in the face of these annoyances, and notwithstanding the embarrassments which they occasioned, our merchants have secured at least a moiety of the foreign trade of Hayti. With the encouragements bestowed on our relations with other countries, we shall enjoy a much larger proportion.[284]

If any additional motive were needed, it might be found in the political condition of the West India Islands, and the present movements in Mexico. Spain, quickened by ancient pride, has begun to recover her former foothold,[285] and it is sometimes supposed that France is willing to profit by imagined change of sentiment in her favor. Thus far the Republic of Hayti has been left without sympathy or support from our country. That it is able to sustain itself so well gives assurance of still greater strength, when surrounded by more auspicious circumstances. Nor is the influence of Hayti to be neglected in adjusting that balance of power which is daily becoming of increased importance in the West Indies. It may be of value to us that this republic should be among our friends, while it cannot be doubted that our friendship will contribute to Haytien security against danger from any quarter whatsoever. It will be remembered that Mr. Canning boasted, somewhat grandly, that he called a new world into existence[Pg 322] to redress the balance of the old,—alluding in this way to the acknowledgment of the Spanish colonies. In the same spirit, and without any exaggeration, may it be said that by the acknowledgment of Hayti we shall provide a check to distant schemes of ambition, which have latterly menaced an undue predominance in the West Indies. In this view, the present proposition has a political importance which it is difficult to measure. It becomes a pledge of permanent peace, as well as of commerce; but it can have this character only if made effective, sincerely and honestly, according to the usage of nations.

Of the many colonies following our example and independence Hayti was the first, and yet, by strange perversity, is not even now recognized by our Government. We are told that the last shall be first and the first shall be last. This, surely, is a case where the first is last. It remains to be seen, if, under the genial influence of such recognition, Hayti may not become, among all independent colonies, first in importance to us, as it was first in accepting our example.

In acknowledging the independence of Hayti, we follow too tardily the lead of other nations. France for a long time hesitated, as Spain hesitated, to acknowledge the independence of her colonies. This concession was made in 1825, under Charles the Tenth, while Hayti stipulated by treaty to pay one hundred and fifty million francs, as well for the recognition as for indemnification to colonial proprietors. It was natural that the mother country should hesitate; but when France abandoned all claim, every objection to recognition by other nations ceased. Accordingly, this republic has been recognized, if not cordially welcomed, by Great Bri[Pg 323]tain, France, Spain, Prussia, Denmark, Holland, Belgium, Portugal, Sweden, Hanover, Italy, and even by Austria, all of whom have representatives there, duly chronicled in the Almanach de Gotha.

Thus far I have confined myself to the case of Hayti. But Liberia has claims of its own. If our commercial relations with this interesting country are less important, they are nevertheless of such consequence as to require protection, while this republic may properly look to us for parental care.

The commercial tables by which I have illustrated so completely the relative importance of Hayti are less precise with regard to Liberia, inasmuch as this republic, owing to unhappy prejudices in recent Administrations, was not allowed a separate place in the tables, but was concealed under the head of “Other Ports in Africa.” From authentic sources I learn that the exports from the single port of Monrovia for the year 1860 amounted to near $200,000, while those from the whole republic amounted to as much as $400,000.

I forbear details with regard to the commerce of Liberia. It is enough that it is already considerable, and is increasing in value, although Great Britain, by a treaty, and the cultivation of friendly relations, has done something to divert this commerce from the United States. But it is not too late for us to enter into a treaty, and to establish similar friendly relations. If, beyond the impulse of self-interest, we need anything to quicken us, we shall find it in the judgment of Henry Clay, who, in a letter dated Ashland, October 18, 1851, uses these positive words:—

[Pg 324]

In taking this step, and entering into a treaty with Liberia, we only follow the example of commercial nations. Nor can I doubt that we must in this way essentially promote our own commercial interests. Liberia is so situated, that, with the favor of the National Government, it may become the metropolitan power on the whole African coast, so that the growing commerce of that continent will be to a great degree in its hands.

I do not dwell at length on the general advantages from the recognition of these two powers, nor do I enlarge on the motives of justice. I mean to state the case simply, without introducing any topic which can justly cause debate in this body. It is enough that the acknowledgment is required for our own good. Happily, in benefiting ourselves we shall promote the interests of others.

There is one consequence which I cannot forbear to specify. Emigrants to these Republics will be multiplied by such recognition, while every emigrant, when happily established, will create an additional demand for the productions of our commerce, and contribute to the number of American keels which plough the ocean.

And there is yet one other consequence, which ought to be presented expressly. Our commerce will be put at once under the solemn safeguard of treaty, so that it will enjoy that security which is essential to its perfect prosperity, and can no longer suffer from discriminating duties or hostile legislation, aroused by a just sensibility[Pg 325] at our persevering illiberality. If you would have such treaties, you must begin by an acknowledgment of independence.

Sir, there is one business only which can suffer by this measure: I mean that of counterfeit money. You know, Sir, that, by a familiar rule of International Law, declared by the Supreme Court of the United States,[286] it belongs exclusively to the political department of the Government to determine our relations with a foreign country. And since our Government refuses to acknowledge Hayti, our courts of justice are obliged to do so likewise; so that, when criminals are arraigned for counterfeiting the money of Hayti, they decline all jurisdiction of the offence. As Hayti is not a nation, it cannot have money. Such is the reasoning, and the counterfeiters go free. It is said that during the past thirty years millions of false dollars have in this way been put in circulation. A case has occurred only recently, where the counterfeiter was promptly discharged, while the witness alone seemed to be in danger. It is time that such an outrage should be stopped.

It may be said that the same objects can be obtained by consuls, instead of commissioners. It is clear that it is not the habit of the United States to enter upon negotiations and open friendly relations with foreign states through consuls. And it is also clear, that, according to the usage of nations, consuls are not entitled to the same consideration with diplomatic representatives. Their influence is less, whether in dealing with the Government to which they are accredited, or with the representatives of other powers at the same place. On this point I content myself with reading the words[Pg 326] of Mr. Wheaton.

It may be true that negotiations are sometimes conducted by consuls, but very rarely; and the exceptions testify to the prevailing policy. Ministers are the received agents of diplomacy. Any other agent must be inferior in weight and character. If this be true,—and it is undeniable,—then obviously the objects now proposed can be most fitly and effectively accomplished only by diplomatic representatives. And since what is worth doing is worth well doing, I hope there will be no hesitation. Here again the example of the great European powers may properly influence us. England, France, and Spain have diplomatic representatives at Hayti, who are reputed to discharge their responsible duties with activity and ability. All these have the advantage of subsisting treaties. Our treaty remains[Pg 327] to be negotiated. To do this in such a way as to secure for our various interests all proper advantages must be our special aim. Any further neglect on our part can be nothing less than open abandonment of these various interests. Too long already has this sacrifice been made.

Mr. President, a full generation has passed since the acknowledgment of Hayti was urged upon Congress. As an act of justice too long deferred, it aroused even then the active sympathy of multitudes, while as an act for the benefit of our commerce it was ably commended by eminent merchants of Boston and New York without distinction of party. It received the authoritative support of John Quincy Adams, whose vindication of Hayti was associated with his best labors in the other House. The right of petition, which he steadfastly maintained, was long ago established. Slavery in the national capital is now abolished. It remains that this other triumph shall be achieved. Petitioners, who years ago united in this prayer, and statesmen who presented the petitions, are dead. But they will all live again in the good work they generously began.

Mr. President, this is the statement I have to make on this important question. As I know that the Senator from Kentucky [Mr. Davis] desires to move an amendment, I shall not ask a vote to-day; but I propose that the further consideration of the bill be postponed until to-morrow at half past twelve o’clock, when I hope we may have a vote upon it.

Mr. Sumner. Mr. President, the Senate will bear me witness, that, in presenting this important question yesterday, I made no allusion to the character of the population in the two Republics. I made no appeal on account of color. I did not allude to the unhappy circumstance in their history, that they had once been slaves. It is the Senator from Kentucky who introduces this topic. And not only this, Sir, he follows it by alluding to some possible difficulties—I hardly know how to characterize them—which may occur in social life, should the Congress of the United States undertake at this late day, simply in harmony with the Law of Nations, and following the policy of civilized communities, to pass this bill. I shall not follow the Senator on those sensitive topics. I content myself with a single remark. More than once I have had the opportunity of meeting citizens of these Republics, and I say nothing beyond the truth when I add that I have found them so refined and so full of self-respect as to satisfy me that no one of them charged with a mission from his Government can seek any society where he will be not entirely welcome. Sir, the Senator from Kentucky may banish all personal anxiety. No representative[Pg 330] from Hayti or Liberia will trouble him.

But the proposition of the Senator makes a precise objection to the bill, which I am ready to meet. He insists that we shall be represented by consuls only, and not by diplomatic agents. Yesterday, in the remarks I had the honor of addressing to the Senate, I anticipated this very objection. I quoted then the authoritative words of Mr. Wheaton in his work on the Law of Nations, where he sets forth the distinction between ministers and consuls, and shows the greater advantage from a representation by one than by the other. I follow up that quotation now by reading from another work. It is a treatise on International Law and the Laws of War by General Halleck; and as I quote this authority, which is not yet much known, I venture to remark that I doubt if there is any recent contribution to the literature of the Law of Nations of more practical value. In a few words he states the character of consuls. I quote from him as follows.

The Committee who had the subject in charge, taking it into careful consideration,—as I believe the Senator from Kentucky, who is a member of the Committee, will confess,—deliberately reached the conclusion that it was advisable for the United States at present to be represented at each of those Republics by a person of diplomatic character. The Committee put aside the proposition that we should be represented merely by a consul. It was felt that such an officer would not adequately do all that our country might justly expect to have done. Nor is this all. We were guided also by the precedents of our Government. There are eighteen different states lower down in the scale of commerce and navigation with the United States, where we are now represented by diplomatic representatives. One of these, as I explained yesterday, is the Sandwich Islands, with a population of only seventy thousand, and with a commerce and navigation vastly inferior to that between the United States and Hayti.

Mr. Sumner. Possibly. I go into no inquiry on that point. Suffice it to say we already have these eighteen diplomatic representatives, and one of these is at the Sandwich Islands, with a population, a commerce, and navigation inferior to those of Hayti. Besides, at the Sandwich Islands we have three consuls highly paid. If we have too many, let us reduce the list, but do not commence our economies on Hayti and[Pg 332] Liberia.

The Committee in their conclusion followed the usage of nations, and also the example of the great powers at Hayti. In presenting this measure, I make no appeal on account of an oppressed race. I urge it simply as an act for our own good. We go about the world hunting up the smaller powers, where to make treaties and to place diplomatic representatives, under the temptation of petty commercial advantage. Thus far we have stood aloof from two important opportunities of extending and strengthening our influence. It is time to change.

[Pg 336]

FINAL SUPPRESSION OF THE SLAVE-TRADE.

Speech in the Senate, on the Treaty with Great Britain, April 24, 1862.

MR. PRESIDENT,—Already a slave-trader has been executed at New York, being the first in our history to suffer for this immeasurable crime.[290] English lawyers dwell much upon treason to the king, which they denounce in a term borrowed from ancient Rome as lese-majesty; but the slave-trade is treason to man, being nothing less than lese-humanity. Much as I incline against capital punishment, little as I am disposed to continue this barbarous penalty, unworthy of a[Pg 337] civilized age, I see so much of good in this example at the present moment, that I reconcile myself to it without a pang. Clearly it will be a warning to slave-traders, and also notice to the civilized world that at last we are in earnest, while it helps make the slave-trade detestable. Crime is seen in the punishment, and the gallows sheds upon it that infamy which nothing short of martyrdom in a good cause can overcome.

The important treaty now before the Senate is to enforce on a large scale final judgment against the slave-trade. It is to do with many what has just been done with an individual. Our flag is desecrated by this hateful commerce; ships equipped in New York are tempted by its cruel gains. To stop this has been impossible, while Slavery prevailed in the National Government. How could our courts judge the slave-trader, how could the National Government set itself against the hateful commerce, while Slavery occupied all the places of power? But this is changed. If Emancipation is yet longer delayed, Slavery is at least dislodged from its predominant influence. Therefore is the way free for action against the slave-trade.

The treaty proceeds on the idea of earnest work, and it recognizes two especial agencies, each of which has been discussed between the two Governments in former years, but has always failed of adoption. The first is a mutual and restricted right of search, and the second is the well-known system of mixed courts, for the enforcement of the treaty.

The treaty has just been read, so that I need not recite in detail the terms of these two provisions. I pass at once to the consideration of their origin and[Pg 338] necessity.

There was a time when our country was open and earnest against the slave-trade. A well-known provision of the Constitution, classed among original compromises, restrained Congress from prohibiting it prior to the year 1808; but, just so soon as it had the power, Congress acted. Its promptitude justified the enthusiasm with which Judge Story in his Commentaries remarks: “It is to the honor of America that she should have set the first example of interdicting and abolishing the slave-trade in modern times.”[291] By Act of Congress, bearing date as early as March 2, 1807, and to take effect January 1, 1808, the importation of slaves into the United States was prohibited, under penalties of imprisonment, fine, and forfeiture. These were increased by Act of Congress of April 20, 1818. But mild and moderate enactments were not enough; and at length, by Act of May 15, 1820, Congress was constrained to declare the slave-trade piracy, and to punish it with death. Since then this offence has stood in the catalogue of capital crimes.

Already this immense subject had occupied the attention of the great European powers. In the Treaty of Paris in 1814, Great Britain and France united against what was denounced as “a species of commerce equally repugnant to the principles of natural justice and the lights of the times.”[292] This was followed by the Treaty of Ghent, at the close of the same year, in which the United States and Great Britain denounced the traffic[Pg 339] in slaves as “irreconcilable with the principles of humanity and justice,” and promised their best endeavors for its suppression.[293] Then came the Treaty of Vienna, where the great powers joined in declaring it “repugnant to the principles of humanity and of universal morality.”[294] These were declarations only. The next attempt was to find a system of action, which should be effective against the Protean monster in the many metamorphoses it was able to assume, and here England nobly took the lead.

Lord Castlereagh instructed the Duke of Wellington, the British ambassador at Paris, to obtain from France the concession of a mutual right of search for the enforcement of the denunciation in which they were agreed; but this was found unwelcome to the French Government, and therefore not pressed at the time. Such was the beginning of the proposition, which, after various fortunes, is at last recognized in the treaty now before us.

Meanwhile negotiations were opened on our side particularly with Great Britain. These seem for a time to have had the sanction not only of the Executive, but of Congress, or at least of the House of Representatives. Messages from the President, calling attention to the slave-trade, were answered by reports from special committees of the House of Representatives. One of these, made February 9, 1821, concluded with a resolution, “That the President of the United States be requested[Pg 340] to enter into such arrangements as he may deem suitable and proper with one or more of the maritime powers of Europe for the effectual abolition of the African slave-trade.” The report, while declaring that “to efface this reproachful stain from the character of civilized mankind would be the proudest triumph that could be achieved in the cause of humanity,” proceeds to announce, in words applicable to the present moment, that “this happy result, experience has demonstrated, cannot be realized by any system, except a concession by the maritime powers to each other’s ships of war of a qualified right of search.”[295] Another report, by a select committee of the House, April 12, 1822, adopted the resolution of the previous committee, and also the recommendation of a mutual right of search, adding, that it could not be doubted “that the people of America have the intelligence to distinguish between the right of searching a neutral on the high seas in time of war, claimed by some belligerents, and that mutual, restricted, and peaceful concession by treaty, suggested by your Committee, and which is demanded in the name of suffering humanity.”[296]

Then came the devoted efforts of Charles Fenton Mercer, an admirable representative of Virginia, who exposed this terrible traffic with a pathos not to be forgotten. On his motion, another resolution was adopted, February 28, 1823, by a vote of one hundred and thirty-one yeas to only nine nays, calling upon the President to enter into negotiations “for the effectual abolition of the African slave-trade, and its ultimate denunciation as piracy, under the Law of Nations, by the consent of the civilized world.”[297] The character of this resolution was impaired by the rejection of an amendment, “and that[Pg 341] we agree to a qualified right of search,”[298] which was a falling off from the recommendations of the two committees.

The Executive responded to Congress, and, under instructions from John Quincy Adams, Secretary of State, a treaty was negotiated with Great Britain, bearing date March 13, 1824, in which it was stipulated that the ships of the two powers might “cruise on the coasts of Africa, of America, and of the West Indies, for the suppression of the slave-trade,” and empowering them under certain restrictions to detain and capture vessels engaged in this traffic.[299] Important in substance, this treaty became important historically. Although the clause quoted appeared in the original draught sent out from Washington, yet the treaty was ratified by the Senate only on the condition that the words “of America” were struck out, thus excluding operations of British cruisers along the whole extent of American coast.[300] This was fatal to the treaty, as the British Government would not accept the condition. The case is memorable, not only as a check to negotiations for the suppression of the slave-trade, but as a conspicuous instance, where the Senate, in dealing with a power like Great Britain, did not shrink from asserting its prerogative under the Constitution, not less decisive than the tribunitial veto.

Thus it stood. Our own Government had proposed a modified search on the coast of America, but this was point-blank refused by the Senate. It appears that the[Pg 342] proposition was made contrary to the judgment of Mr. Adams. His sense of wrong from the long-continued search exercised by British cruisers was so keen that he would not willingly furnish any excuse for its revival; and such, it was feared, might be the concession. Afterwards, in the revelations which he sometimes made to the House of Representatives, he declared his repugnance to this negotiation, and the way it was overcome. The same repugnance, doubtless, influenced Senators in the vote on the treaty, increased by a growing sentiment for Slavery, which the debates on the Missouri Compromise had quickened.

Mr. Adams’s statement made in debate at a later day lets us behind the scenes at an important period. After describing the proposition for a mutual right of search, the veteran said:—

This statement from an eminent quarter shows how at another time the opposition to a mutual right of search became manifest. It is for the Senate to determine if the time has not come for this opposition to cease.

Not disheartened by failure with the United States, Great Britain pursued her honorable policy, enlisting Government after Government, until nearly all the maritime powers of Europe, moved by a common sentiment of humanity, had conceded a mutual and restricted right of search, with the single object of suppressing the slave-trade. The famous Quintuple Treaty of 1841 between the great powers consecrated the same principle on a wider theatre; but, owing to the extraordinary efforts of General Cass, our Minister at Paris, France was induced to withhold her assent, yielding, I fear, to an irritated Anglophobia and to the growing pretensions of Slavery. The treaty was duly ratified by Great Britain, Russia, Prussia, and Austria. As a substitute, stipulations for naval coöperation were adopted between Great Britain and France,—also between Great Britain and the United States. And still Great Britain persevered in this glorious championship, until, in 1850, it was her boast that she stood party to no less than twenty-four treaties denouncing the slave-trade, of which ten conceded a mutual right of search and mixed courts, twelve conceded search with trial only before home tribunals, and two provided for naval coöper[Pg 344]ation.[302]

This summary brings us to the present treaty, where we find a mutual and restricted right of search and mixed courts for certain purposes, but with the trial of criminals only before home tribunals.

If at an earlier day there was reason to be sensitive about any concession of the right of search, especially to Great Britain, always so exacting on the ocean, that day has happily passed. The reason ceasing, so also should the opposition cease. Even if the acknowledged power of the United States and the enlightened opinion of the civilized world did not remove the liability to abuse, making it so absolutely impossible as not to be an element in the case, we cannot forget a recent signal event, when Great Britain openly renounced that tyrannous pretension which so stirred the soul of the whole American people, never again to assert it. This was done in solemn demand for the rendition of Mason and Slidell, who had been taken by a national cruiser, acting in precise conformity with early and constant British practice. Therefore on this account there need be no solicitude. Conceding search for the suppression of the slave-trade, we furnish no excuse and open no door for that other search, always so justly offensive, which finally brought war in its train. Such a concession now is only an addition to international policy demanded by the civilization of the age.

Nor need there be any jealousy on account of Slavery; for this power is disappearing. If, unhappily, it is not yet extinct, if it still lingers in prolonged malignant[Pg 345] existence, it has ceased to sway the National Government. Therefore I see no reason why the sensibilities of its partisans should be consulted.

Another possible objection to the treaty is more technical. This also was presented by John Quincy Adams, when he spoke of mixed courts “as inconsistent with our Constitution,”[303] because the judges are not appointed, nor do they hold office, according to its well-known requirements. But this objection, if entitled to any consideration, is mitigated in the present treaty, which hands over the slave-trader for trial in the home courts of the captor, leaving to the mixed courts only the condemnation and destruction of the slave-ship. But whatever doubts might have prevailed at an earlier period, when the question was less understood, it is plain now that this objection is wholly superficial and untenable. Besides courts known to the Constitution and subject to its requirements, there are others extra-constitutional, like courts in the Territories, where the judges hold for four years instead of during good behavior, and yet are recognized by the Supreme Court of the United States.[304] Like Territorial courts, mixed courts are plainly extra-constitutional, standing on the treaty power and the practice of nations,—as courts martial are also extra-constitutional, standing on the war power and the practice of nations.

Among frequent means for the determination of international [Pg 346]questions are mixed courts or mixed commissions in various forms, where different nations are represented. Such tribunals are the natural incident of treaties, and were recognized as such at the beginning of our history. Nor is it easy to see how treaties can be consummated without their ancillary help. A mixed commission, where our country was represented, sat at London under Jay’s Treaty, deciding numerous cases; and similar commissions have been sitting ever since. The Jay Commission was originally criticized on the ground that judicial power cannot be vested except according to the Constitution,[305]—being the very objection to mixed courts in anti-slave-trade treaties, that occupied so much attention at a later day, and to which I am now replying. But nobody now doubts that this commission was proper. The proposed tribunal, though differing in purpose, proceeds from the same fountain of power. It is kindred in character and origin. Now, without considering if the objection to mixed courts is not equally strong against a crowned head as arbitrator, as when the French Emperor sat in judgment on the long-pending litigation between the United States and Portugal in the General Armstrong case, it is obvious that all the international tribunals constituted by treaty, whether an emperor or a commissioner, are sustained by unbroken usage as well as by reason. To insist that the restrictions of the Constitution, evidently intended for the national judicature, are applicable to these outlying tribunals, is to limit the treaty power and to curtail the means of justice beyond the national[Pg 347] jurisdiction. Mixed courts are familiar to International Law, and our country cannot afford to reject them, least of all on a discarded technicality which would leave us isolated among nations.

It remains only that we make haste to ratify the treaty, nor miss the great opportunity. A moment lost is a concession to crime. Therefore must we be prompt.

Foreign nations will not fail to recognize this open pledge to Human Rights, and the Rebels will discern a new sign of the national purpose. Abroad and at home we shall be strengthened. The Rebellion itself will feel the blow, and ambitious Slavery foresee its doom.

[Pg 349]

ENFORCEMENT OF EMANCIPATION IN THE DISTRICT.

Resolution and Remarks in the Senate, April 28, 1862.

MR. PRESIDENT,—In offering the resolution, I felt that I was doing good service to the Commissioners appointed to carry out our recent measure of Emancipation, and I felt also that I was helping to correct possible abuses in anticipation of its operation.

I have been sorry to hear of efforts during the last few weeks to run able-bodied slaves out of the District. Slavery is often called a patriarchal institution, and I am anxious to see how many of the patriarchs, in avoidance of the action of Congress, have transported slaves beyond the reach of its beneficent power. Such an outrage ought to be exposed. I confess that I find no[Pg 350] good reason for delicacy towards persons so guilty. I am sure that freedom and truth will be gainers, when such conduct is laid bare. I cannot doubt that the object proposed is important.

These statistics should be brought before the Senate, if not before the country. They will be needed by the Commissioners, and I am sure they will do something to illustrate the character of Slavery.

[Pg 351]

THE CONDUCT OF OUR GENERALS TOWARDS FUGITIVE SLAVES.

Speech in the Senate, on a Resolution of Inquiry, May 1, 1862.

MR. PRESIDENT,—Some time has elapsed since we listened to the persuasive speech of the Senator from Iowa [Mr. Grimes], but, unhappily, the subject is fresh still. The character, if not the efficiency, of our armies is concerned in the complete enforcement of the late legislation with regard to slaves. If this legislation be set at defiance, or evaded, I think that our military strength will be impaired, and I am sure that our good name must suffer.

I am grateful to the Senator from Iowa for the frankness with which he exposed and condemned the recent orders of several of our generals.

One of these officers, though last from California, was originally of Massachusetts. He served honorably in the Mexican War, and, I believe, is an excellent soldier. His present position as a general is due partly to my exertions. I pressed his appointment. But, had I for[Pg 352] a moment imagined he could do what he has just perpetrated, he would never have had my support. When an officer falls bravely in defence of his country, honest pride mingles with the regret that we feel. But when an officer falls as General Hooker has now fallen, there is nothing but regret. He has fallen, although not dead. I say this with pain; but I cannot say less.

The order of General Hooker has been quoted by the Senator from Iowa [Mr. Grimes]. I ask leave to read part of a letter which I have received from his camp.

This letter expresses feelings natural to a humane bosom. In contrast with General Hooker, I call attention to the course of General Doubleday, whose head-quarters are here in Washington. I read his order.

General Doubleday acted bravely at Fort Sumter; but he did not render a truer service to his country on that occasion than he has now done in this order. If this example were followed everywhere in our camps, we should at least save ourselves from shame, if we did not secure victory.

Other generals at the West think they do their duty best, when they serve Slavery. There is General McCook, of whom we have the following sad report, on the authority of a paper at Nashville, recounting th[Pg 354]e visit of a slave-hunter to his camp.

Can we listen to such a statement and not feel indignant at the levity with which human freedom is treated?

Yet similar cases multiply. There is the provost-marshal of Louisville, who seems to be a disgrace to our army, if we may believe the following report.

But, Sir, an incident has occurred under General Buell’s command which cannot be read without a blush. Here it is, as described in the letter of a s[Pg 355]oldier who was more than a witness, even a party to it. I find this letter in a newspaper, but it has been furnished to me in manuscript by the person to whom it is addressed.

Of General Buell I know nothing personally; but such an incident must fill us with distrust. He may possess military talent, he may be a thunderbolt of war; but it is clear that he wants that just comprehension of the times and that sympathy with humanity without which no officer can do his complete duty.

But General Buell may, perhaps, shelter himself behind the instructions of his superior officer; and this brings me to the famous Order No. 3 of Major-General Halleck. I have it in my hands, and quote these words:—

[Pg 357]

In this order, so strangely inconsistent, absurd, unconstitutional, and inhuman, the General perversely perseveres. In every aspect it is bad. It wants common sense, as well as common humanity. It is unworthy a man of honor and a soldier.

It is inconsistent with itself, inasmuch as the General proclaims that he “comes to restore, not to violate, the Constitution and the laws,” and then proceeds to a direct violation of them. In the same order he says: “It does not belong to the military to decide upon the relation of master and slave: such questions must be settled by the civil courts.” And then, in the face of this declaration, he proceeds to say that “no fugitive slaves will be admitted within our lines or camps.” But pray, Sir, how can such persons be excluded from lines or camps without deciding that they are fugitive slaves? This flat and discreditable inconsistency is in harmony with the whole order.

But worse than its inconsistency is its absurdity. This watchful, prudent General proposes to exclude all fugitive slaves from his camps. In other words, he shuts out all opportunities of information with regard to the enemy naturally afforded by this class of deserters. They may come charged with knowledge of movements and plans; but the General will not receive them, because they are slaves. They may be able to disclose the secret of a campaign; but the General will not have it, because they are slaves. If we have failed thus far in knowledge of the enemy’s designs, it is because this absurd policy has prevailed.

General Halleck may be instructed by General McDowell, whose opposite conduct shines in a despatch published in the papers.

[Pg 358]

Here are two negroes coming into camp with important information, both of whom General Halleck’s order would repel and drive back to bondage. And he may be instructed by the despatch of General Wool, just received, announcing our success at New Orleans, the news of which came by a “fugitive black.” The General adds: “The negro bringing the above reports that the Rebels have two iron-clad steamers nearly completed, and that it is believed that the Merrimac will be out to-morrow.” But all this information would be shut out by General Halleck. Can absurdity be more complete?

But worse than inconsistency or absurdity is its positive unconstitutionality. What right, under the Constitution, has this General to set himself up as judge in cases of human freedom? Where does he find his power? By whom has he been invested with this attribute? It is the boast of the National Constitution that all are “persons.” The National Constitution so regards everybody, and surrounds everybody with the safeguards of “persons,” even to the extent of declaring that “no person shall be deprived of liberty without[Pg 359] due process of law.” And yet the army is gravely told to treat certain persons as slaves. Of course this cannot be without sitting in judgment most summarily on human freedom. How does the General know that they are slaves? On what evidence? Because they are black? Why may they not be free blacks? General Halleck would reverse the true presumption. He assumes Slavery, when he ought to assume Freedom. In the eye of the Constitution all are freemen until proved to be slaves, no matter of what color. The only question to be asked concerns loyalty. Are you loyal or rebel? If loyal, then welcome to the hospitality and protection of our camps. If rebel, then surrender to our arms. Be these the inquiries, with this rule, and the Union we seek to restore will not be indefinitely postponed.

But worse than its unconstitutionality is the inhumanity of this order, so shocking to the moral sense. This General, professing to fight the battle of the Constitution with the commission of the Republic, speaks of “the concealment of slaves” in the same class with “pillaging, marauding, and stealing.” I complain of this confusion of language, showing an insensibility to human rights. It is like those shameful advertisements which garnish Southern newspapers, where “the boy Tom” and “the girl Sally” are to be sold in the same lot with “horses, mules, cattle, and swine.” That such an order should be put forth in the name of our country may justly excite indignation.

On these various grounds I object to this order. In this criticism, which I make with sincere sorrow, I confine myself to the order. General Halleck is reputed an able officer, and I am sure he is an able lawyer. I do not intend to question his various capacity. But I do protest against his perverse violation of the Constitution[Pg 360] to carry out a miserable and disgraceful proslavery policy; and I protest against his being allowed to degrade the character of our country. Sir, we are making history. Every victory adds something to that history; but such an order is worse for us than defeat. More than any defeat it will discredit us with posterity, and with the friends of liberal institutions in foreign lands. I have said that General Halleck is reputed an able officer; but, most perversely, he undoes with one hand what he does with the other. He undoes by his orders the good he does as a general. While professing to make war upon the Rebellion, he sustains its chief and most active power, and degrades his gallant army to be the constables of Slavery.

How often must I repeat that Slavery is the constant Rebel and universal enemy? It is traitor and belligerent together, and is always to be treated accordingly. Tenderness to Slavery now is practical disloyalty and practical alliance with the enemy.

Believe me, Sir, against the officers named to-day I have no personal unkindness. I should much prefer to speak in their praise; but I am in earnest. While I have the honor of a seat in the Senate, no success, no victory, shall be apology or shield for a general who insults human nature. From the midst of his triumphs I will drag him forward to receive the condemnation which such conduct deserves.

[Pg 361]

NO NAMES OF VICTORIES OVER FELLOW-CITIZENS ON REGIMENTAL COLORS.

Resolution in the Senate, May 8, 1862.

RESOLVED, That, in the efforts now making for the restoration of the Union and the establishment of peace throughout the country, it is inexpedient that the names of victories obtained over our fellow-citizens should be placed on the regimental colors of the United States.

[Pg 363]

BOUNTY LANDS FOR SOLDIERS OUT OF REAL ESTATE OF REBELS.

Resolution in the Senate, May 12, 1862.

RESOLVED, That the Select Committee on the confiscation of Rebel property be directed to consider the expediency of providing that our soldiers engaged in the suppression of the Rebellion may be entitled to bounty lands out of the real estate of the Rebels.

[Pg 364]

TESTIMONY OF COLORED PERSONS IN JUDICIAL PROCEEDINGS FOR CONFISCATION AND EMANCIPATION.

Resolution in the Senate, May 12, and Remarks, June 28, 1862.

RESOLVED, That the Select Committee on the confiscation of Rebel property be directed to consider the expediency of providing, that, in all judicial proceedings to confiscate the property and free the slaves of Rebels, there shall be no exclusion of any witness on account of color.

This bill is to operate in the Slave States. But, with the rule of evidence prevailing there, I see insuperable difficulties in the way of conviction. If Congress choose to authorize criminal proceedings against Rebels, as is done by this bill, then in good faith they must see that[Pg 365] the proceedings are not entirely nugatory, through failure of evidence, under the operation of an irrational rule of exclusion.

But the Senator will not forget that there are other slaves besides those of the master under trial, as well as colored persons who are not slaves. Whether slaves or not, even if freemen, the Senator knows well that there is one cruel rule of evidence everywhere in the Rebel States, which excludes the testimony of colored persons.

[Pg 366]

THE LATE HON. GOLDSMITH F. BAILEY, REPRESENTATIVE FROM MASSACHUSETTS.

Speech in the Senate, on his Death, May 15, 1862.

MR. PRESIDENT,—The last Representative of Massachusetts snatched away by death during the session of Congress was Robert Rantoul, Jr. Ripe in years and brilliant in powers, this distinguished person tardily entered these Halls, and he entered them not to stay, but simply to go. Congress was to him only the antechamber to another world. Since then ten years have passed, and we are now called to commemorate another Representative of Massachusetts snatched away by death during the session of Congress. Less ripe in years and less brilliant in powers, Mr. Bailey occupied less space in the eyes of the country; but he had a soul of perfect purity, a calm intelligence, and a character of his own which inspired respect and created attachment; and he, too, was here for so brief a term that he seems only to have passed through these Halls on his way, without, alas! the privilege of health as he passed.

Born in 1823, Mr. Bailey had not reached that stage of life, when, according to a foreign proverb, a man has given to the world his full measure;[311] and yet he had given such measure of himself as justified largely the confidence of his fellow-citizens. This was the more remarkable, as he commenced life without those advantages[Pg 367] which assure early education and open the way to success. At two years of age he was an orphan, of humble parentage and scanty means. From school he followed the example of Franklin, and became a printer. There is no calling, not professional, which to an intelligent mind affords better opportunities of culture. The daily duties of the young printer are daily lessons. The printing-office is a school, and he is a scholar. As he sets types, he studies, and becomes familiar at least with language and the mystery of grammar, orthography, and punctuation, which, in early education, is much; and if he reads proofs, he becomes a critic. At the age of twenty-two our young printer changed to a student of law, and in 1848 was admitted to the bar.

In the very year of his admission to the bar the question of Slavery assumed unprecedented proportions, from the efforts made to push it into the Territories of the United States. Although he took no active part in the prevailing controversy, it must have produced its impression on his mind. It was to maintain prohibition of Slavery in the Territories, and to represent this principle, that he was chosen to Congress.[312] In a speech at the time he upheld this cause against the open opposition of its enemies and the more subtle enmity of those who disparaged the importance of the principle. Never had Representative a truer or nobler constituency. It was of Worcester, that large central county of Massachusetts, and broad girdle of the Commonwealth, which, since this great controversy began, has been always firm and solid for Freedom. To represent a people so intelligent, honest, and virtuous was in itsel[Pg 368]f no small honor.

But with this honor came those warnings which teach the futility of all honor on earth. What is honor to one whom death has already marked for his own? As life draws to its close, the consciousness of duty done, especially in softening the lot of others, must be more grateful than anything which the world alone can supply. Even the spoiler, Death, cannot touch such a possession. And this consciousness rightly belonged to the invalid who was now a wanderer in quest of health. Compelled to fly the frosts of his Massachusetts home during the disturbed winter of 1860, when these civil commotions were beginning to gather, he journeyed nearer to the sun, and in the soft air of the Mexican Gulf found respite, if not repose. There he was overtaken by that blast of war, which, like

swept over the country. Escaping now from the menace of war in Florida, as he had already escaped from the menace of climate in Massachusetts, he traversed the valley of the Mississippi, and succeeded in reaching home. At the session of Congress called to sustain the Government he appeared to take his seat; but a hand was fastened upon him which could not be unloosed. Again he came to his duties here during the present session; for while the body was weak, his heart was strong. He often mourned his failing force, because it disabled him from speaking and acting at this crisis. He longed to be in the front rank. Yet he was not a cipher. He was a member of the Committee on Territories in the House of Representatives, and its Chairman[313] relates that this dying Re[Pg 369]presentative was earnest to the last that his vote should be felt for Freedom. “Let me know when you wish my vote, and, though weak, I shall surely be with you,” said the faithful son of Massachusetts. This is something for his tombstone; and I should fail in just loyalty to the dead, if I did not mention it here.

As a member of this Committee, he put his name to a report which became at once a political event. In the uneventful life of an invalid, who was here for a few weeks only, it should not be passed over in silence. By a resolution adopted on the 23d of December, 1861,[314] the Committee on Territories was instructed “to inquire into the legality and expediency of establishing Territorial Governments within the limits of the disloyal States or districts.” After careful consideration of this momentous question, the Committee reported a bill to establish temporary provisional governments over the districts of country in rebellion against the United States.[315] This bill assumed two things, which, of course, cannot be called in question: first, that throughout the Rebel region the old loyal State Governments had ceased to exist, leaving no person in power there whom we could rightfully recognize; and, secondly, that the Constitution of the United States, notwithstanding all the efforts of Rebellion, was still the supreme law throughout this region, without a foot of earth or an inhabitant taken from its rightful jurisdiction. Assuming the absence of State Governments and the presence of the National[Pg 370] Constitution, the bill undertook, through the exercise of Congressional jurisdiction, to supply a legitimate local government, with a governor, legislature, and court; but it expressly declared that “no act shall be passed, establishing, protecting, or recognizing the existence of Slavery; nor shall said temporary government, or any department thereof, sanction or declare the right of one man to property in another.” In a succeeding section it was made the duty of the authorities “to establish schools for the moral and intellectual culture of all the inhabitants, and to provide by law for the attendance of all children over seven and under fourteen years of age not less than three months in each year.” With a thrill of joyful assent Mr. Bailey united with the majority of the Committee in this bill. It was his last public act, almost his only public act in Congress, and certainly the most important of his public life. As a record of purpose and aspiration it will not be forgotten.

To such a measure he was instinctively moved by the strength of his convictions and his sense of the practical policy needed for the support of the Constitution. He had no indulgence for the Rebellion, and saw with clearness that it could be ended only by the removal of its single cause. His experience at the South added to his appreciation of the true character of Slavery, and increased his determination. He did not live to see this Rebellion subdued, but he has at least left his testimony behind. He has taught by what sign we are to conquer. He has shown the principle which must be enlisted. Better than an army is such a principle; for it is the breath of God.

Mr. Bailey was clear in understanding, as he was pure in heart. His life was simple, and his manners[Pg 371] unaffected. His, too, were all the household virtues which make a heaven of home, and he was bound to this world by a loving wife and an only child. He was happy in being spared to reach his own fireside. Sensible that death was approaching, he was unwilling to continue here among strangers, and, though feeble and failing, he was conveyed to Fitchburg, where, after a brief period among kindred and friends, he closed his life. His public place here is vacant, and so also is his public place in Massachusetts. But there are other places also vacant: in his home, in his business, and in his daily life among his neighbors, in that beautiful town scooped out of the wooded hills, where he was carried back to die.

I offer resolutions identical with those offered by myself, and adopted by the Senate, on the death of Robert Rantoul.

[Pg 372]

USE OF PARCHMENT IN LEGISLATIVE PROCEEDINGS.

Resolution and Speech in the Senate, on the Enrolment of Bills, May 16, 1862.

MR. PRESIDENT,—There is a usage of Congress which must strike all coming here for the first time, whether as members or spectators. It is the usage, after bills have passed both Houses, of copying them on rolls of parchment, when they receive the signatures of the Speaker of the House, the President of the Senate, and the President of the United States. Under our rules this is called enrolling, although in England, where it originated, it was known, down to its recent abolition there, as engrossing.

I have said that it is calculated to arrest attention. This is because to most persons it is a novelty, although old in itself. On inquiry, I do not learn that it is continued in any of our States except Massachusetts. In[Pg 373] the new States of the West it has never been known. The question which I now submit is, Whether it is wise for Congress to continue this embarrassing form, already discontinued, or never adopted, by the State Legislatures?

Among the Joint Rules of the two Houses is the following, entitled “Enrolled Bills.”

This was adopted as early as 6th August, 1789. Shortly before this date, at the recommendation of Senators Morris, Carroll, Langdon, Read, and Lee, a joint resolution was passed, requiring the Secretary of the Senate and the Clerk of the House, within ten days after the passing of every Act of Congress, to authenticate printed copies thereof, and lodge them with the President.[316] In September, 1789, a statute was passed to provide for the safe keeping of the acts, records, and seal of the United States, by the first section of which the Department of Foreign Affairs was changed to the Department of State. The Secretary of the Department thus remodelled was made custodian of all bills, orders, resolutions, or votes of Congress approved by the President, or having become laws or taken effect without his approval, with directions to publish the same in the newspapers, to cause one printed copy to be delivered to each Senator and Representative, and two[Pg 374] printed copies, duly authenticated, to be sent to the Governor of each State, and to “carefully preserve the originals.”[317] This latter service has been executed by binding the enrolled copies of the acts of each session in separate volumes, without rolling or folding the skins of parchment, and depositing them in a fire-proof vault, under the immediate charge of an officer of the State Department, known as Clerk of the Rolls.

The enrolment of bills requires special care, and sometimes even delays legislation. From the haste with which the transcription is often made and the amendments are embodied, errors naturally occur. Perhaps these cannot be entirely avoided by copies on paper. Indeed, nothing can supersede the necessity of great vigilance, whether paper or parchment be employed.

The main reason for enrolment on parchment, when first adopted by Congress, was English example. Technical phrases, tautologous terms, absurdities of law Latin and law French, all these, together with our jurisprudence, were borrowed directly from England, and with them came parchment, the use of which antedated these peculiarities. Of course it was before the manufacture of paper in England, which was not earlier than the reign of Henry the Seventh, and it was continued long after the manufacture had rendered it unnecessary.

In Antiquity other substances were employed; but among European nations in modern times, previous to the invention of paper, parchment prevailed. In England, every manuscript, every book, every deed, every indenture, every contract, every record, judici[Pg 375]al or other, was on parchment. So, also, was Magna Charta, wrung from King John in 1215, and still exhibited as a venerable curiosity in the British Museum. It must have been the case with the statutes and proceedings of Parliament; for, in fact, there was little else on which they could be written. These proceedings, together with the statutes, constituted what were called the Rolls of Parliament,—Rotuli Parliamentorum,—and they were preserved apart, with other parchment records. There is a verse of Scripture which has been quoted as describing the place where they were kept: “Darius the king made a decree, and search was made in the house of the rolls, where the treasures were laid up.”[318]

The durability of parchment is attested by the manuscripts which illumine the great libraries of Europe. Among the treasures of the Vatican is a Virgil of the fourth century, and in the National Library of Paris is a Prudentius of an early date, both in a condition to survive the structures in which they are preserved. Abbeys, convents, churches, built with pious skill, have crumbled to dust, while their parchments continue to defy the tooth of Time. But this peculiar durability, so important before the invention of printing, when copies were few, has played its part.

Parchment soon gave way to paper in judicial proceedings and records, probably from considerations of economy and convenience; but it continued longer in parliamentary proceedings. The Journals of the House of Lords, which have always been held to be public records, were formerly “recorded every day on rolls of parchment.”[319] The original usage with regard to the[Pg 376] Journals of the other House seems to have been different; for we find in 1621, the year after the sailing of our Pilgrim Fathers, an express order that the Journals of the House of Commons “shall be reviewed and recorded on rolls of parchment.”[320] Notwithstanding the order, this usage does not appear to have prevailed with the Commons, and it was long ago discontinued by the Lords. But the statutes continued to be engrossed on parchment, and placed in the custody of the “Master of the Rolls.”

According to English practice, engrossment took place after the report. But at last, in 1848, it was thought advisable to make a change. The whole subject occupied committees of both Houses, and finally of Parliament itself. Even at the cost of details which may be wearisome, I present the history of these proceedings, which will be interesting, at least, as showing the care which presided over this transition, and also a possible guide to us.

On the 4th of September, 1848, the day before the prorogation of Parliament, it was ordered in the House of Lords,—

The Clerk Assistant, thus directed to report, was [Pg 377]John George Shaw Lefevre, Esquire, brother of the accomplished Speaker of the House of Commons.

On the third day of the next session, February 6, 1849, the Lord Chancellor informed the House of Lords,—

A select committee to consider the proposed change, was appointed, consisting of the Lord Chancellor, Lord Privy Seal, Duke of Richmond, Earl of Shaftesbury, Lord Beaumont, and Lord Monteagle of Brandon.

It is probable that they adopted at once the suggestions of the Clerk Assistant, as, within a few hours after their appointed meeting, their Chairman, the Lord Chancellor, reported to the House of Lords, February 8, 1849, that the Committee had met and considered the subject-matter referred to them, and united in recommending, “That it is expedient to discontinue the present system of engrossing, and to alter the present system of enrolling bills”; and they reported provisions, in lieu thereof, to which I shall refer.

The House of Lords adopted the report, passed the resolutions, and ordered that they be communicated to the Commons at a conference, and their concurrence desired.[323]

On the 9th of February, managers of the conference were appointed. Those representing the House of Lords were the Lord Privy Seal, Earl Waldegrave, Earl Saint Germans, Viscount Hawarden, Lord Bishop of Hereford,[Pg 378] Lord Beaumont, and Lord Monteagle of Brandon. The managers representing the House of Commons were Sir George Grey, Sir Robert Peel, Sir Robert Harry Inglis, Mr. Herries, Mr. Wilson Patten, Mr. Bernal, Sir John Yarde Buller, the Earl of Lincoln, Mr. Attorney-General, the Earl of Arundel and Surrey, Mr. Thornely, Mr. Maitland, Mr. Hume, Mr. Mackenzie, the Judge Advocate, and Sir John Young.

Omitting other details, I come at once to the resolutions afterwards adopted in both Houses.

Later in the same session of Parliament, the House of Commons passed the following resolution, which was agreed to by the House of Lords on the 31st of July, 1849.

Thus in England the old system of engrossing and [Pg 380]enrolling has disappeared. It is true that the bill, in its last stage, is printed on vellum; but the ancient cumbersome proceeding is abolished.

I have referred especially to English practice, because ours was originally derived from it. But the example of a nation so truly enlightened as France may be properly adduced also. The ordinances of the kings of France were engrossed on parchment down to the reign of Louis the Fourteenth, when his great minister, Colbert, contented himself with having them copied in a fair hand on folio paper, and bound in large volumes. The voluminous ordinances of the Grand Monarch on the Government of Canada, and of the Mississippi Valley, then recently discovered, are still preserved in the Archives de la Marine at Paris, each one bearing the signature of the sovereign, and countersigned by his minister. Thus in France, even before the great changes of the Revolution, parchment was discarded, and I am not aware that it is now used either in judicial or legislative proceedings. The records and documents, all fairly copied on paper, are admirably preserved, untouched by time or damage of any kind, and in better condition than some of our own public documents written within the last ten years. I do not forget that the clerks of the last century wrote with carefully prepared ink on linen paper. Bad ink and cotton paper must, of course, be avoided, especially where metallic pens are employed to tear the surface and open the way for the deleterious fluid.

If disposed to follow the examples of England and France, and of our own States in their local Legislatures, we shall make a change. Nor is there any reason[Pg 381] of utility or convenience in favor of parchment. I know that a vellum page is a luxury, coveted always by the refined book-collector; but it has long since ceased to be anything else. Paper is good enough and durable enough for all practical purposes. Volumes of the fifteenth century, among the first fruits of the newly discovered art of printing, are found now in as good condition as when their paper was first blackened by types; and there are manuscripts, not merely on parchment, but also on paper, older than the discovery of America, in as good condition as the Journals of the Senate.

Even if paper were less permanent than parchment, the latter becomes entirely superfluous since the practice was established of printing the statutes under the supervision of the Government. It is well known that public statutes require no proof besides the printed statute-book.[326] This was an original principle of English law, which has been adopted and fortified among us. Professor Greenleaf, who is such authority on the Law of Evidence, thus exhibits the value of the printed copy:—

Summing up the whole case, we find that the present [Pg 382]system has its origin in ancient usage, the reason of which has long since ceased; that there is no necessity for its continuance; that it is contrary to convenience; that it is contrary to the example of France, and even of England, whence it was derived; that it is contrary to the usage of our own States, in their legislative action; and that a change would do something, at least, to simplify our proceedings.

Paper is of all qualities, and of every degree of durability. Besides rags, there are many other substances out of which it is made, so that even the increasing demand meets a corresponding supply. It is always cheap, and entirely convenient. To reject it for parchment is as if we imitated the early Arabs, and inscribed our statutes on the shoulder-blades of sheep. The skin is less antediluvian than the bone, but both are out of place in our age.

Should the change be deemed advisable, it might be made by substituting the words “linen paper” for “parchment,” in the sixth Joint Rule. This would be simple enough: but the phrases “engrossed” and “enrolled” would still remain in the rules, although the occasion for them had passed. In the British Parliament, the old form of question, “That this bill be engrossed,” which always followed after the Committee of the Whole, is now dispensed with;[328] and it seems to me that we might do something to simplify our proceedings in this respect, also.

I have here a complete collection of bills, as printed, at their different stages in the two Houses of Parliament, as follows.

[Pg 383]

Bill as delivered to each member of the House of Commons.

House copy of bill originating in the Commons.

Bill as presented by the Commons to the Lords, after passing the Commons.

Bill as delivered to each peer.

House copy of bill originating in the Lords.

Bill as presented by the Lords to the Commons, after passing the Lords.

Bill on vellum, as passed both Houses, and ready for the royal assent.

All these I shall, if he will allow me, hand over to the Chairman of the Committee on Enrolled Bills, who will do something, I trust, for the improvement of our rules in this respect.

FOOTNOTES

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