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[Illustration: F. T. Stuart, Boston: WENDELL PHILLIPS]
Statesman Edition VOL. XI
CHARLES SUMNER
HIS COMPLETE WORKS
With Introduction by Hon. George Frisbie Hoar
[Illustration]
Boston
Lee and Shepard
MCM
Copyright, 1873 and 1874,
By
Charles Sumner.
Copyright, 1900,
By
Lee and Shepard.
Statesman Edition.
Limited to One Thousand Copies.
of Which This Is
No. 565
Norwood Press:
Norwood, Mass., U.S.A.
CONTENTS OF VOLUME XI.
PAGE
EXCLUSION OF WITNESSES ON ACCOUNT OF COLOR. Report in the
Senate, of the Committee on Slavery and Freedmen, February 29,
1864 1
THE MISSION TO BELGIUM. Speech in the Senate, on an Amendment
to the Consular and Diplomatic Appropriation Bill, March 15,
1864 43
CONSULAR PUPILS. Speech in the Senate, on an Amendment to the
Consular and Diplomatic Appropriation Bill, March 15, 1864 49
THE LATE HON. OWEN LOVEJOY, OF THE HOUSE OF REPRESENTATIVES.
Speech in the Senate, on the Resolutions upon his Death, March
29, 1864 54
COLORED SUFFRAGE IN THE TERRITORY OF MONTANA. Speeches in the
Senate, on an Amendment to the Bill for a Temporary Government
of that Territory, March 31 and May 19, 1864 62
CLAIMS ON FRANCE FOR SPOLIATIONS OF AMERICAN COMMERCE PRIOR
TO JULY 31, 1801. Report in the Senate, of the Committee on
Foreign Relations, April 4, 1864 70
NO PROPERTY IN MAN: UNIVERSAL EMANCIPATION WITHOUT
COMPENSATION. Speech in the Senate, on the Constitutional
Amendment abolishing Slavery throughout the United States,
April 8, 1864 173
CASTE AND PREJUDICE OF COLOR. Letter to the Young Men’s
Association of Albany, April 16, 1864 228
FINAL REPEAL OF ALL FUGITIVE SLAVE ACTS. Speech in the Senate,
on a Bill for this Purpose, April 19, 1864 229
THE NATIONAL BANKS AND THE CURRENCY. Speeches in the Senate, on
Amendments to the Bill providing a National Currency, April 27
and May 5, 1864 245
BRANCH MINTS AND COINAGE. Speech in the Senate, on the
Proposition to create a Branch Mint in Oregon, April 29, 1864 263
REFORM IN THE CIVIL SERVICE. Bill in the Senate, April 30, 1864 278
COLORED SUFFRAGE IN WASHINGTON. Remarks in the Senate, on Bills
to amend the City Charter, May 12, 26, 27, 28, 1864 284
VOTE OF BOTH HOUSES OF CONGRESS NECESSARY TO READMISSION OF
REBEL STATES. Resolution in the Senate, May 27, 1864 296
NO TAX ON BOOKS. Remarks in the Senate, on Amendment of the
Internal Revenue Bill, June 2 and 6, 1864 297
CREATION OF THE FREEDMEN’S BUREAU: A BRIDGE FROM SLAVERY TO
FREEDOM. Speeches in the Senate, on Bills and Conference
Reports creating a Bureau of Freedmen, June 8, 14, 15, 1864,
and February 13, 21, 22, 1865 301
MAKE HASTE SLOWLY: IRREVERSIBLE GUARANTIES. Speech in the
Senate, on the Recognition of Arkansas, June 13, 1864 351
MEANS FOR THE WAR THE TRUE OBJECT OF THE TARIFF. Remarks in the
Senate, on an Amendment to the Tariff Bill, June 16, 1864 376
NO TAX ON EDUCATION. Remarks in the Senate, on a Proposed Duty
on Philosophical Instruments for Colleges, June 17, 1864 378
ABOLITION OF THE COASTWISE SLAVE-TRADE. Speeches in the Senate,
on an Amendment to the Civil Appropriation Bill, June 24 and
25, 1864 380
OPENING OF THE UNITED STATES COURTS TO COLORED WITNESSES.
Speech in the Senate, on an Amendment to the Civil
Appropriation Bill, June 25, 1864 389
RECONSTRUCTION, AND ADOPTION OF PROCLAMATION OF EMANCIPATION BY
ACT OF CONGRESS. Remarks in the Senate, July 1, 1864 397
NATIONAL ACADEMY OF LITERATURE AND ART; ALSO OF MORAL AND
POLITICAL SCIENCES. Remarks in the Senate, on a Bill creating
these Two Academies, July 2, 1864 401
NO FINAL ADJOURNMENT OF CONGRESS WITHOUT INCREASED TAXATION.
Speech in the Senate, on the Resolution of Final Adjournment,
July 2, 1864 405
REJOICING IN THE DECLINE OF THE REBELLION. Remarks at a Public
Meeting in Faneuil Hall, September 6, 1864 414
REPUBLICAN PARTY AND DEMOCRATIC PARTY. Speech at a Public
Meeting at Faneuil Hall, to ratify the Republican Nominations
for President and Vice-President, September 28, 1864 418
SLAVERY AND THE REBELLION ONE AND INSEPARABLE: ISSUES OF THE
PRESIDENTIAL ELECTION. Speech before the New York Young Men’s
Republican Union, at Cooper Institute, November 5, 1864 433
EXCLUSION OF WITNESSES ON ACCOUNT OF COLOR.
REPORT, IN THE SENATE, OF THE COMMITTEE ON SLAVERY AND FREEDMEN,
FEBRUARY 29, 1864.
February 8, 1864, on the day of introducing his Amendment of
the Constitution, declaring that “all persons are equal before
the law,” Mr. Sumner asked, and by unanimous consent obtained,
leave to bring in a bill to secure equality before the law in
the courts of the United States, which was read the first and
second times by unanimous consent, and, on his motion, referred
to the Committee on Slavery and Freedmen. This was in harmony
with other efforts on an earlier day.[1] February 29th, he
reported the bill to the Senate without amendment, accompanied
by the following report, of which three thousand extra copies
were ordered to be printed for the use of the Senate. The
success of this measure appears at a later date.[2]
The Committee on Slavery and the Treatment of Freedmen, to whom
was referred Senate Bill (No. 99) entitled “A Bill to secure
equality before the law in the courts of the United States,”
have had the same under consideration, and ask leave to report.
Before making a change in our laws, it is important to consider the
nature and extent of what is proposed; especially is this the case, if
the change will be far-reaching in influence. Therefore the Committee
have thought best, in proposing to prohibit all exclusion of colored
testimony in the courts of the United States, to exhibit with some
particularity the considerations bearing on the subject.
EXCLUSION OF COLORED TESTIMONY RECOGNIZED BY CONGRESS.
Congress has never, in formal words, declared that witnesses in the
courts of the United States shall be incompetent to testify on account
of color. The abuse has arisen indirectly. But it is none the less
fastened upon the national jurisprudence. By Act of July 16, 1862, it
was provided “that the laws of the State in which the court shall be
held shall be the rules of decision as to the competency of witnesses
in the courts of the United States, in trials at Common Law, in Equity,
and Admiralty.”[3] And this rule, thus authoritatively declared, had
been practically recognized by the courts of the United States from
the beginning of the Government. It appears from the Judiciary Act
of 1789, under which the national courts were organized, that jurors
in these courts “shall have the same qualifications as are requisite
for jurors by the laws of the State of which they are citizens”; and
still further, “that the laws of the several States, except where
the Constitution, treaties, or statutes of the United States shall
otherwise require or provide, shall be regarded as rules of decision
in trials at Common Law in the courts of the United States, in cases
where they apply.”[4] Under these injunctions it was very easy, if not
natural, for the national courts to adopt the law of evidence in the
States where they were respectively held; and thus the incapacity of
colored testimony in those States where it prevailed became a rule of
evidence in the national tribunals.
It is plain that such a system made the administration of justice
differ in different States. The same statute might be successfully
administered in a State where there was no exclusion of colored
testimony, and miserably fail in another State where such exclusion
prevailed; and the same judge might be called in one court to admit the
testimony, and in another court to reject it. But the least objection
to this system is its want of uniformity. In lending the sanction of
the United States, even indirectly, to an exclusion founded on color,
all the people have been made parties to injustice.
To appreciate the true character of this proscription, we must repair
to the Slave States, where it is declared, and consider it in the
very language, legislative and judicial, by which it is maintained,
not neglecting the eccentricities of judicial opinion by which it has
been illustrated. From the statement of the rule its consequences will
become apparent. It may be proper afterwards to glance at the associate
examples of history, and also to endeavor to comprehend the reasons on
which the proscription has been vindicated.
EXCLUSION OF COLORED TESTIMONY IN THE SLAVE STATES.
The Committee begin with the statutes of the States where this
proscription prevails. Each State will be considered by itself.
(1.) In Delaware the rule assumes its mildest form, yet even there it
is indefensible. It has been expressed by Chief Justice Bayard, who, in
an opinion of the court, said: “On the introduction of Negro Slavery
into this country, it became a settled rule of law that slaves should
not be suffered to give evidence in any matter, civil or criminal,
affecting the rights of a white man.”[5] In this spirit the Revised
Code of Delaware has provided that “to give evidence against any white
person” is one of the “rights of a freeman.”[6] But the rule is thus
applied: “In criminal prosecutions, a free negro, or free mulatto, if
otherwise competent, may testify, if it shall appear to the court that
no competent white witness was present at the time the fact charged
is alleged to have been committed, or that a white witness, being so
present, has since died, or is absent from the State, and cannot be
produced: _Provided_, that no free negro or free mulatto shall be
admitted as a witness to charge a white man with being the father of
a bastard child.”[7] With this exception, the free negro or mulatto
is disqualified as a witness against a white person.[8] But colored
testimony is admissible in a case between colored persons, or against a
colored person where the other party is white.[9]
The subtilties in the application of this rule appear in a decided
case, where one of three accomplices was indicted for kidnapping a
colored boy. The latter was opposed as a witness, on the ground that
a competent white witness, an accomplice who had not been indicted,
might be produced. But the court, considering that the statute was
originally enacted to remedy injustice to free persons of color,
construed it liberally, and admitted the testimony of the colored boy,
on the ground that the commission of an offence by two or more persons
ought not to render a witness incompetent, who would be competent,
if the offence had been committed by only one person. It was further
said, that the statute, when it speaks of a competent white witness,
means not merely his competency in the common sense of the term,
but the sufficiency of his evidence under ordinary circumstances
to produce conviction,--although a jury was directed to acquit the
prisoner, unless part of the accomplice’s testimony was confirmed by
unimpeachable evidence.[10] In another case, where two white witnesses,
not accomplices, were present at an assault, the court at first
excluded the testimony of the colored person; but when it afterwards
appeared that one of them was drunk and the other did not see the whole
transaction, although both knew that a blow was struck, the testimony
of the colored person was admitted.[11]
Still further, it has been declared in Delaware, that, on indictment
of a white man for kidnapping a free colored person, the latter is not
competent to prove his freedom.[12] So, also, in an action against
a stage-coach proprietor for aiding in the escape of a slave, the
admission of the latter that he is slave of the plaintiff cannot be
received.[13] But a free colored person may make oath to his book
of original entries, and thus make it evidence even against a white
person, on the declared ground that “it would be idle [for the law] to
recognize in persons of color the right to hold property, and to obtain
redress in law and equity for injuries to person or property, if the
means of this redress be denied them.”[14]
Prior to the statute originally passed in 1799, where a white person
committed an assault on a colored woman, and there was no third person
present, the latter was held as a witness;[15] but where several white
persons were present, the colored person was held incompetent.[16]
(2.) In Maryland, the Act of 1717, Ch. 13, § 2, provides that “no negro
or mulatto slave, free negro, or mulatto born of a white woman during
his time of servitude by law, or any Indian slave, or free Indian
natives of this or the neighboring provinces, be admitted and received
as good and valid evidence in law, in any matter or thing whatsoever
depending before any court of record, or before any magistrate within
this province, wherein any Christian white person is concerned.” Yet,
nevertheless, according to this same Act, § 3, where other sufficient
evidence is wanting against any negro, in such case the testimony of
any negro may be heard and received in evidence, according to the
discretion of the several courts of record or magistrate before whom
such matter or thing against such negro shall depend, provided such
testimony do not extend to depriving them of life or member.
The same system is pursued in the later Act of 1796, Ch. 67, § 5,
which provides that manumitted slaves shall not be allowed “to give
evidence against any white person,” nor be received “as competent
evidence to manumit any slave petitioning for freedom.” But by Act of
1808, Ch. 81, § 1, it is provided, that, in all criminal prosecutions
against any negro or mulatto, slave or free, the testimony of any negro
or mulatto, slave or free, “may be received in evidence for or against
them, any law now existing to the contrary notwithstanding.”
The original Act of 1717 does not in terms extend to free mulattoes,
and the Act of 1796 does not extend to the issue of manumitted slaves.
But where “a free-born white Christian man” was convicted of felony
on the testimony of a mulatto born of a manumitted negro, there was
among the judges in the Court of Appeals such diversity of opinion on
the legality of the testimony that no decision was ever given.[17]
In another case it was decided, that, where both parties are “free
white Christian persons,” a free colored person is incompetent,[18]
although a mulatto descended in the female line from a white woman is
competent.[19]
(3.) In Virginia, the Code declares positively that “a negro or
Indian shall be a competent witness in a case of the Commonwealth
for or against a negro or Indian, or in a civil case to which only
negroes or Indians are parties, _but not in any other case_.”[20] The
decisions of the courts illustrate this proscription. Thus, it has
been adjudged that a free colored person cannot testify for a white
person, even against a colored person.[21] In another case a question
was incidentally raised on the competency of a colored convict as a
witness against another convict, with regard to an offence committed
in the penitentiary, and it was suggested that convicts generally
might be witnesses against each other.[22] This question, however,
was subsequently disposed of by a provision declaring, that, on the
prosecution of a convict, “all other convicts in the penitentiary shall
be competent witnesses for or against the accused, _except that negroes
shall not be allowed as witnesses against a white person_.”[23] They
may, however, testify in his favor.
(4.) In Kentucky, the Revised Statutes provide that “a slave, negro,
or Indian shall be a competent witness in a case of the Commonwealth
for or against a slave, negro, or Indian, or in a civil case to which
only negroes or Indians are parties, _but in no other case_. This
shall not be construed to exclude an Indian in other cases, who speaks
the English language and understands the nature and obligation of an
oath.”[24] Under this provision, as under that of Virginia, it has been
decided that a free colored person cannot be a witness for a white
person against a colored person.[25]
(5.) In North Carolina, the Revised Statutes provide that “all
negroes, Indians, mulattoes, and all persons of mixed blood descended
from negro and Indian ancestors to the fourth generation inclusive,
(though one ancestor of each generation may have been a white person,)
whether bond or free, shall be deemed and taken to be _incapable in
law to be witnesses in any case whatsoever_, except against each
other.”[26] Under this statute they cannot testify for each other in
a criminal case. But the decisions furnish curious illustrations.
Thus, when a colored person was convicted on colored testimony as
a principal felon, it was subsequently held, on trial of the white
accessory, that the record of the conviction was only _primâ facie_
evidence of guilt.[27] In another case it was held that a free colored
woman could not make affidavit charging a white man as father of her
illegitimate child,[28] although the contrary has been decided in
Kentucky, on the assumption that the act is merely preliminary to the
real controversy.[29]
(6.) In Tennessee, the Act of 1794, Ch. 1, § 32, provides that “all
negroes, Indians, mulattoes, and all persons of mixed blood descended
from negro and Indian ancestors to the third generation inclusive,
(though one ancestor of each generation may have been a white person,)
whether bond or free, shall be taken and deemed to be incapable in law
to be witnesses in any case whatever, _except against each other_:
_Provided_, That no person of mixed blood in any degree whatsoever, who
has been liberated within twelve months previously, shall be admitted
as a witness against a white person.” Under this Act, evidently
borrowed from the earlier statute of North Carolina, it was decided
that a colored person could not be a witness _for_ another colored
person. The judge who pronounced the opinion of the court seems to
confess the harshness of the rule, when he says: “The cases under this
Act in which these disqualified persons can be witnesses for each
other are when, plaintiff and defendant both being men of color, the
witnesses may at the same time be said to be reciprocally witnesses
against each of the parties. Perhaps the practice in Tennessee may have
been heretofore much more liberal than the statute. With that we have
nothing to do. As the law speaks, so it is our duty to speak.”[30] To
remedy this gross injustice, the Act of 1839, Ch. 7, § 1, was passed,
providing that such parties, “whether bond or free, shall be taken and
deemed to be good witnesses for each other in all cases, where, by the
provisions of said Act [viz. Act of 1794], they are made competent
witnesses against each other in criminal prosecutions.”[31]
(7.) In South Carolina there appears to have been no statute expressly
excluding the testimony of a slave against a white person, although the
early Act of 1740, § 39, necessarily implies this exclusion.[32] But
the rule was autochthonous. It sprang from the soil without statute.
Judge O’Neall, in an Essay on the Slave Laws, declares that “a slave
cannot testify, except as against another slave, free negro, mulatto,
or mestizo, and that without oath.”[33] But the exclusion did not bear
merely upon slaves. The judge announces that “free negroes, mulattoes,
and mestizoes cannot be witnesses or jurors in the superior courts;
… they cannot even be witnesses in inferior courts, with the single
exception of a magistrate’s and freeholder’s court, trying slaves or
free negroes, mulattoes or mestizoes, for criminal offences, and then
without oath.”[34] It appears that the Act of 1740, §§ 13, 14, on which
this custom was founded, applies only to free Indians and slaves;[35]
so that, strictly, free negroes, mulattoes, and mestizoes are not
despoiled of their right at Common Law to be heard under oath, but
the uniform practice under the Act, according to the judge, has been
otherwise.[36] On another occasion, another judge of South Carolina
says: “There is no instance in which a negro has been permitted to give
evidence, except in cases of absolute and indispensable necessity; nor,
indeed, has this court ever recognized the propriety of admitting them
in any case where the rights of white persons were concerned.”[37] In
still another case it was decided that a free person of color is not
competent in any case in a court of record, although both parties are
of the same class with himself.[38]
The rule thus rigorously declared has given rise to some strange
illustrations. Thus, for instance, in a suit to recover certain slaves
as part of a gang named, evidence was admitted that other negroes
of the defendant were accustomed to speak of those in question as
belonging to the gang.[39] In another case, where the book of a
tradesman was made up from the entries of a negro workman on a slate,
and notice was affixed to the door of the shop that all credits there
would be charged according to the negro’s entries, the Court doubted
whether the book could be evidence at all,--but if at all, only as
to the amount of work done, and then only against a person otherwise
proved to be a customer.[40]
(8.) In Georgia, as in South Carolina, there is no statute expressly
excluding the testimony of a slave where white persons are parties.
But they are excluded. The Act of 1770, declaring slaves to be
chattels personal to all intents and purposes whatsoever, provides
further, “that the evidence of any free Indians, mulattoes, mestizoes,
or negroes, or slaves, shall be allowed and admitted in all cases
whatsoever for or against another slave accused of any crime or offence
whatsoever, the weight of which evidence, being seriously considered
and compared with all other circumstances attending the case, shall
be left to the justices and jury.”[41] But where white persons are
parties, the rule of exclusion seems implied. And the same exclusion
seems also implied in the later Act of December 19, 1816, § 5, where
the rule, that “any witness shall be sworn who believes in God and a
future state of rewards and punishments,” is restricted to “the trial
of a slave or free person of color.”[42]
(9.) In Alabama the exclusion stands on positive statute. The Code
provides that “negroes, mulattoes, Indians, and all persons of mixed
blood descended from negro or Indian ancestors to the third generation
inclusive, though one ancestor of each generation may have been a white
person, whether bond or free, must not be witnesses in any cause, civil
or criminal, except for or against each other.”[43]
(10.) In Mississippi, the Act of June 28, 1822, is nearly the same in
language with the Code of Alabama on this subject.[44] But by Act of
January 19, 1830, free Indians are placed on the same footing as white
persons, and consequently can testify.[45]
(11.) In Florida the law is brief and explicit. The Act of November 21,
1828, § 16, provides that “any negro or mulatto, bond or free, shall
be a good witness in the pleas of the State for or against negroes
or mulattoes, bond or free, or in civil cases where free negroes or
mulattoes shall alone be parties, and in no other cases whatever.”[46]
(12.) In Missouri, the Revised Statutes provide that “no negro or
mulatto, bond or free, shall be a competent witness, except in pleas of
the State against a negro or mulatto, bond or free, or in civil cases
in which negroes or mulattoes alone are parties.”[47] But it has been
decided, that, if a free negro is party to the record, even though he
vouches in a white person to defend his title, colored testimony is
admissible.[48]
(13.) In Arkansas, the Revised Statutes provide that “no negro or
mulatto, bond or free, shall be a competent witness in any case, except
in cases in which all the parties are negroes or mulattoes, or in which
the State is plaintiff and a negro or mulatto, or negroes or mulattoes,
are defendants.”[49]
(14.) In Louisiana, the Revised Statutes provide that “no slave shall
be admitted as a witness, either in civil or criminal matters, for or
against a white person”; and also, “no slave shall be admitted as a
witness, either in civil or criminal matters, for or against a free
person of color, except in case such free individual be charged with
having raised, or attempted to raise, an insurrection among the slaves
of this State, or adhering to them by giving them aid or comfort in any
manner whatsoever.”[50]
The Civil Code declares “absolutely incapable of being witnesses to
testaments” “women of what age soever,” and “slaves.”[51] But the Civil
Code has provided expressly that “the circumstance of the witness
being a free colored person is not a sufficient cause to consider the
witness as incompetent, but may, according to circumstances, diminish
the extent of his credibility”;[52] so that a free colored person in
Louisiana may be a witness for or against a white person, subject to
inquiry as to the value of his testimony.
(15.) In Texas, the Act of May 13, 1846, provides that “all negroes
and Indians, and all persons of mixed blood descended from negro
ancestry to the third generation inclusive, though one ancestor of each
generation may have been a white person, shall be incapable of being a
witness in any case whatever, except for or against each other.”[53]
SUMMARY STATEMENT OF THE RULE.
From this review of the provisions in the different States it appears,
that, with slight differences, there is nevertheless a prevailing
resemblance, such as becomes the sisterhood of Slavery.
“Facies non omnibus una,
Nec diversa tamen; qualem decet esse sororum.”[54]
If the recital seems weary, it has not been superfluous, for it has
disclosed the disgusting terms of that proscription. It is difficult
to read the provisions in a single State without impatience; but the
recurrence of this injustice, expressed with such particularity in no
less than fifteen States,[55] makes impatience swell into indignation,
especially when it is considered that in every State this injustice is
adopted and enforced by the courts of the United States.
Slaves cannot testify in any of the States for or against a white
person in any case, either civil or criminal,--unless, perhaps, in
Maryland they may be allowed to testify against a white person who is
not a Christian.
Free persons of color are also, like slaves, incompetent to testify
for or against white persons, except in Delaware and Louisiana, where,
under circumstances already stated, they may testify, even though a
white person is a party.
It may be observed, also, that the statutes of Delaware, Virginia,
Kentucky, South Carolina, Georgia, Florida, Missouri, Arkansas,
Louisiana, and Texas do not expressly include Indian slaves; but
probably only a few slaves are of pure Indian blood. Those of mixed
Indian descent would undoubtedly be classed with mulattoes, and share
their incapacity.
ECCENTRICITIES OF JUDICIAL DECISIONS.
The rule is seen also in judicial decisions, which may be classed among
the eccentricities of jurisprudence. Subtilty is a common attribute of
courts, but in these cases subtilty at times becomes fantastic. Reading
them, we may well confess that truth is stranger than fiction.
Thus, although slaves are not permitted to testify, their conversation
or declarations may, under certain circumstances, be admitted in
evidence. For instance, according to a decision in Missouri, if a
white person converses with a slave, the conversation, being otherwise
admissible, may be proved by any other white person who heard it. In
this case, Judge Scott said: “That negroes cannot testify against white
persons is clear; but this rule cannot be carried so far as to exclude
the conversation of a negro with a white person, when the conversation
on the part of the negro is merely given in evidence as an inducement
and in illustration of what was said by the white person. If the
conversation of the negro had been proved by herself, then it would
clearly have been illegal. Here the State proved by competent witnesses
that certain remarks were made to the plaintiff in error in order to
show what her reply was. It is a matter of indifference by whom they
were made. All that was required was to prove by competent evidence
that they were made. That they were made is a fact which may be proved
like any other fact in the cause.”[56]
On the same principle, it has been decided that any remarks by a slave
to a white person, calling for some reply on the part of the latter,
may be proved by the testimony of white persons, in order to show the
nature of that reply, or that none was made. The question arose on an
indictment for enticing a slave, when Judge Goldthwaite said: “The
question which the Court is called upon to determine is simply whether
the admission of a white man to the truth of any statement made by a
slave in his presence and hearing can be inferred from his silence. The
rule in relation to evidence of this character, so far as we are able
to deduce it from adjudged cases and the best elementary writers, is,
that the statement must be heard and understood by the party affected
by it, that the truth of the facts embraced in it must be within his
knowledge, and that the statement must be made under such circumstances
and by such persons as naturally to call for a reply. To reject the
evidence in the case under consideration, solely on the ground that
the party making the declaration was a slave, would be in effect to
decide that under no conceivable circumstances could a statement
made by a slave call for a response from a white man,--a proposition
in direct opposition to our daily observation and experience. That
the declaration was made by a person whose condition rendered him
incompetent as a witness does not in the slightest degree affect the
principle on which evidence of this character rests. If the declaration
was made by a slave, and the party affected by it had made by his
reply a direct admission of its truth, there could be no doubt of the
admissibility of the statement and reply; and in cases of implied
admissions, the admission, instead of being made by language, is made
by the silence of the party.”[57]
There seems no end to the illustrations of this exclusion; as, for
instance, when a colored woman acted as interpreter between a testator
and the person who drafted the will. In this case, Judge Lumpkin said:
“We hold, that, if a negro interpreter, incapable by law of being
sworn, is the _only_ channel of communication between the testator and
writer of the will, and there be no other evidence of the testator’s
knowledge of its contents or his assent thereto than that which is
derived through this medium, the will cannot be executed. But if the
will be written in the presence of the testator, and, in a language
which he understands, it is read over to him, and his dictation
and approval of the instrument are interpreted by a negro in his
hearing, and in the hearing of others interested in its contents, and
he signifies no dissent thereto by signs or otherwise, but, on the
contrary, is understood to express himself satisfied, the will may be
established, especially if it appears to have been made in conformity
to the previously declared intentions of the testator as to the
disposition of his property.”[58]
It has been decided that the incapacity of a free colored person will
not prevent him, even in a proceeding against a white person, from
making an affidavit required to obtain a continuance, a new trial,
absent testimony, or bail, or from swearing to a plea of _non est
factum_. He may also bind a white person to keep the peace, or make
affidavit for a writ of _Habeas Corpus_; and generally he may make such
affidavits as may be necessary to commence a suit, or to procure such
orders or steps to be taken therein as may be required to bring on a
trial.[59] Without this capacity, he would, according to Chief Justice
Robertson, of Kentucky, “be virtually disfranchised.” But the Chief
Justice adds, that, when he is swearing to facts against a white man,
to compel him to keep the peace, “he is not a witness, but a party
swearing to what any other party may.”[60] And thus his incapacity as
witness is still recognized.
In another class of cases, where it became necessary to show the
mental condition or bodily health of the slave, his declarations have
been held to be admissible, even in a suit against a white person; but
they must be proved by white testimony. Thus, in an action for breach
of covenant in not teaching a slave bound apprentice to the business
of coach-making, the defendant having offered to prove, that, when
he wished to instruct the slave, and threatened to punish him, if he
did not apply himself, the latter, as soon as the defendant was out
of the way, would declare “that he did [not] care about learning the
trade, it was no profit to him, and if he could avoid the lash, it
was all he cared for,”--it was held by that prominent magistrate, Mr.
Justice Gaston, of North Carolina, that the declarations of the slave
were admissible, “because his disposition and temper are subjects of
investigation, and these cannot be ascertained but through the medium
of such external signs.”[61] In another case the same question occurred
under these circumstances: A slave was hired by his master to work
in certain gold mines; but, while busy at the bottom of a shaft one
hundred and eighty feet deep, he was struck on the head by an iron
drill weighing five pounds, which fell from the top, and his skull was
fractured so that trepanning became necessary, and “a large piece of
the skull-bone was cut out.” In an action by the master for damages,
Judge Pearson commented on this rule of evidence: “It being material to
ascertain the bodily condition of the slave, his complaints of headache
when exposed to the sun, and his declarations that he was unable to
work in the sun or to endure hard labor are admissible.… The statute
excluding the testimony of a slave or free person of color against a
white man has no application. The distinction between natural evidence
and personal evidence, or the testimony of witnesses, is clear and
palpable. The actions, looks, and barking of a dog are admissible as
natural evidence upon a question as to his madness. So the squealing
and grunts or other expression of pain made by a hog are admissible
upon a question as to the extent of an injury inflicted on him. This
can in no sense be called the testimony of the dog or the hog. The only
advantage of this natural evidence, when furnished by brutes, over the
same kind of evidence, when furnished by human beings, whether white or
black, is, that the latter, having intelligence, may possibly have a
motive for dissimulation, whereas brutes have not; but the character of
the evidence is the same, and the jury must pass upon its credit.”[62]
The same principle has been recognized in still another case, where
the slave died of mortification in the bowels, and no physician was
called in until the day before his death, although his illness had
continued for three weeks. On this occasion Judge Green said: “The
statement of a sick slave as to the seat of his pain, the nature,
symptoms, and effects of his malady, is as well calculated to
illustrate the character of his disease as would be the statements of
any other person. They are, therefore, equally admissible for that
purpose. But whether expressions indicating the nature and effects of
a disease uttered by the sick person are real or feigned is for the
jury to determine.”[63] And this principle has also been recognized in
suits for breach of covenant in the warranty of a slave, or for fraud
in the sale of a slave.[64] But if the master distinctly warrants the
slave sound, he is not allowed to relieve himself of liability for this
false warranty by declarations of the slave to the purchaser that he
is diseased. A curious case occurred in Kentucky, which illustrates
this principle, and also the brutality of Slavery. A poor slave woman
was very ill, when her master formed “the intention of selling her,
lest he should lose her value by death.” Notwithstanding her pitiable
condition, he succeeded in disposing of her for two hundred dollars,
one quarter in a note and the remainder in saddle-trees, on the
representation that she was “hearty and sound, and fit for business.”
Although the slave woman, before the sale, told the purchaser of her
sickness, the Court annulled the sale, and directed the note and the
price of the saddle-trees to be given up, saying: “The slave herself
told the purchaser of her sickness before the sale; and after the sale,
when informed by him that he had bought her, she stated she could not
be of any use to him, as she was near death. When it is recollected
that frequently, on such occasions, there is a strong indisposition in
such creatures to be sold, and that by stratagem, to avoid a sale, they
may frequently feign sickness, or magnify any particular complaint with
which they are affected, the purchaser might well disbelieve her story,
especially when the words of the master assured him to the contrary.
For his own statements the master is responsible, and ought not to be
permitted to release himself of responsibility for his own falsehoods
by showing that the slave at the time so far corrected him as to tell
the truth.”[65]
The principle underlying the admission of the declarations of a
slave is plainly, but brutally, expressed by Judge Pearson, of North
Carolina. We have already seen, that, according to this learned judge,
who was for the time the voice of the law, the declarations of the
slave are not to be regarded as his _testimony_, any more than the
barking of a dog or the grunting of a hog “can be called the testimony
of the dog or the hog.” The slave complains of his sickness in words,
the dog moans, the hog squeals; but the law regards these expressions
of suffering alike. They may be proved as facts by competent evidence;
but the slave himself cannot testify what his complaints were, any more
than the dog or the hog.[66]
Such are eccentricities of judicial opinion on this important
question. They are not to be regarded merely as curiosities, for they
are all adopted and enforced in the national courts; so that even the
most brutal language becomes not merely the voice of the law, but the
voice of the nation also.
CONSEQUENCES OF THIS EXCLUSION.
Thus do decisions of courts, as well as statutes, conspire to exhibit
this rule in revolting features. If we glance for one moment at its
consequences, there will be new occasion to condemn it.
Looking at it in a single aspect, consequences appear which baffle the
imagination to picture. Throughout the States where this exclusion
prevails, any white person may torture and maltreat a slave in any
conceivable manner and to any extent, or he may overwork and starve
him, or he may whip him to death, murder him in cold blood, or burn
him alive; and so long as he is the only white person present, the
laws afford him the most complete immunity from punishment, except
in Delaware and Louisiana, where also he is safe, if only slaves are
present. It is true that the same laws profess to punish the murder
of a slave as a capital offence, and also to punish severely any
mutilation or other cruel treatment of him. But such laws are nothing.
So long as the slave himself is not allowed to testify, so long the
laws will be justly obnoxious to the charge of actually authorizing a
white person to inflict any outrage upon him, even to the extent of
taking life with impunity. Every white person with only slaves about
him, or, it may be, with only colored persons, slave or free, has _a
letter of license_ to commit any outrage which passion or wickedness
may prompt.
The exposed condition of slaves, on account of incapacity to testify,
was recognized in the early legislation of South Carolina. The preamble
to Section 39 of the Act of 1740 begins as follows: “And whereas, by
reason of the extent and distance of plantations in this Province,
the inhabitants are far removed from each other, _and many cruelties
may be committed on slaves, because no white person may be present to
give evidence of the same_.”[67] Thus, even out of the mouth of South
Carolina, before this State had learned to sacrifice everything to
Slavery, we learn that “many cruelties may be committed on slaves”
under operation of this rule. But no such confession was needed. The
truth is apparent to the most superficial observer. Had South Carolina,
at that early day, followed the suggestion of her own statute, she
would have begun a career of civilization under which Slavery itself
must have disappeared.
The exposed condition of slaves on this account is curiously attested
by other statutes of the Slave States, showing that plantations far
removed from cities, and at considerable distance from each other, are
committed to the direction of _a single white overseer_, who, from
the circumstance that he is the only white person present, is placed
beyond all restraint or correction. Thus, in South Carolina,[68] in
Florida,[69] in Georgia,[70] and in Louisiana,[71] the statutes exact
the continued residence of _one white person_ on every plantation,
with a specified number of working slaves. These statutes had their
origin in no sentiment of justice or humanity, but, as appears in
early declarations, in a desire to prevent the harboring of fugitive
slaves, who might find asylum among those exclusively of their own
color. If, however, it was thought necessary for any purpose to require
by penalties the continued residence of _even one white person_ on a
slave plantation, it is reasonable to infer that there must be many
plantations where there is only one white person. And to one white
person thus situated, and thus removed from all check or observation,
the law commits the government and guardianship of slaves on a
plantation, and promises him in advance the most complete impunity for
all that he does, even to the extent of cold-blooded murder, provided
only that he is careful to let no white person see the deed.
This proscription is not confined to slaves. Free colored persons,
under operation of this rule, are exposed to the same fearful wrongs.
A white person may treat them as he treats a slave, and they are
absolutely without remedy. It would be difficult to point out any
law, the spawn of cruelty or tyranny, in ancient or modern times,
exceeding in atrocity that by which a free population is thus despoiled
of protection on account of color. It was one of the boasts of Magna
Charta that justice should be denied to no person,--“_Nulli negabimus
justitiam_”; but under this rule it is denied to a whole race.
Of course, the race, whether bond or free, which is thus despoiled,
suffers. But this is not all. Justice itself also suffers. Crime, even
against white persons in the presence of colored persons, must go
unpunished.
And yet this proscription is adopted and enforced in the courts of the
United States.
There are other aspects of this subject which invite attention.
History has her lessons. Reason also speaks with a voice that must be
heard. It becomes important, therefore, to consider this proscription,
first, in its origin and the examples of history, and, secondly, in the
grounds on which it is founded.
EXAMPLES OF HISTORY.
This proscription, or its equivalent, is traced to the earliest age. It
belongs to the Barbarism of Slavery. Even as applied to free colored
persons, it must be considered as a relic of Slavery not yet removed
out of sight.
The rule may also be treated as belonging to that system of evidence
which, in defiance of reason, undertook to declare in advance that
certain classes of witnesses were incompetent to testify,--or, in other
words, that the court and jury should not be permitted to hear what
they had to say on the issue. In the early Common Law numbers were
excluded who are now admitted to testify; and the Committee cannot err,
when they declare that the plain tendency of recent legislation, and
also of judicial decisions, in England and in the United States, has
been to limit the exclusion of witnesses, allowing the court and jury,
on hearing their testimony, to estimate its weight and value. The whole
system of exclusion was covered with ridicule by Jeremy Bentham,[72]
who exposed its irrational character. In our own country it has been
treated in a similar spirit, in a series of masterly essays on the
Rules of Evidence, by the present learned Chief Justice of Maine, Hon.
John Appleton.[73] Its origin may be traced to ignorance and prejudice.
There was a time, when, in Great Britain, at least on the borders of
England and Scotland, “an Englishman could not be a witness against a
Scot, nor a Scot against an Englishman, by reason of the enmity between
the two nations; … so that, if never so many Englishmen should with
their open eyes see a Scot commit murder, their testimony would signify
nothing, unless some Scot or other testified the same thing.”[74] But
their exclusion in this historic case was identical in principle and
consequence with that still receiving the sanction of Congress.
This whole body of cases has been despatched by Jeremy Bentham in these
words: “Exclusion put upon all persons of this or that particular
description _includes a license to commit_, in the presence of any
number of persons of that description, _all imaginable crimes_.”[75]
The Psalmist exclaims: “I said in my haste all men are liars.” But
the malediction of the Psalmist in his haste is gravely adopted in
this proscription, which undertakes to blast “all men” of a specified
description as “liars.” Assuming that all of a certain class or race
or color cannot be believed on oath, it practically says, that, though
present _in point of fact_ at any crime, they are absent _in point of
law_.
By the Mohammedan Law, no person could be convicted of adultery
without the testimony of _four male witnesses_,--a requirement which
was called by Gibbon “a law of domestic peace.”[76] The extravagance of
this requirement rendered it practically a law to prevent conviction,
not unlike the law excluding testimony. It is a disguised exclusion.
But of the two, the Mohammedan Law is the least irrational. At all
events, it does not assume the form of proscription.
The rule of exclusion, when founded on race or color, is something
more than a rule of evidence from which justice may suffer. It is a
proscription, which finds prototypes in other countries and times,
kindred in character to the persecution of the Moors in Spain, and
to that cruelty which for ages pursued the Jews everywhere, while it
reveals that insensibility to the claims of a common humanity which has
so slowly yielded to the demands of a just civilization. In France,
during the last century, even after politeness had begun to prevail,
it is recorded of a most intellectual lady, the commentator upon
Newton, Madame du Châtelet, that she did not hesitate to undress before
her male domestics, as it did not seem clear that such persons were
men.[77] But it is in the irreligious system of Caste, as established
in India, that we find the most perfect parallel. Indeed, the late
Alexander von Humboldt, in speaking of colored persons, has designated
them as a Caste;[78] and a political and juridical writer of France has
used the same term to denote not only the distinctions in India, but
those in our own country, which he characterizes as “humiliating and
brutal.”[79] But the Caste of India, by which the Brahmins and Sudras
have been kept apart, is already repudiated by Christian civilization
as “part and parcel of idolatry.” Bishop Heber, of Calcutta, says of
this injustice, it is “a system which tends more than anything else the
Devil has yet invented to destroy the feelings of general benevolence,
and to make nine tenths of mankind the hopeless slaves of the
remainder.”[80] But the language with which this accomplished bishop
condemns the heathen Caste of India is not inapplicable to that other
Caste in our own country, which, in one of its incidents, despoils the
colored person of his right to testify.
If we go back to the ancient Greeks, we find an interesting
distinction. A slave was not believed on oath; so that one is recorded
as exclaiming, in words which might be adopted in our day: “I know I
am a slave: I don’t know even what I do know.”[81] But, though not
believed on oath, his evidence was always taken with torture. On this
account his testimony appears to have been considered of more value
even than that of a freeman. Isæus, in arguing a case, said: “When
slaves and freemen are at hand, you do not make use of the testimony
of freemen; but, putting slaves to the torture, you thus endeavor to
find out the truth of what has been done.” Any person might offer his
own slave to be examined by torture, or demand the same thing of his
adversary, and the refusal of the latter was regarded as a strong
presumption against him.[82] Thus cruelly did this sharp people seek to
counteract the senseless rule of exclusion. Torture was recognized, but
justice was not absolutely sacrificed.
The Romans seem to have borrowed the practice from the Greeks, or
they were inspired to kindred cruelty. Not only slaves, but even free
persons of an inferior condition, were seldom examined except under
torture. Any person who wished the testimony of a slave might obtain
it on giving sufficient security to the master for full reparation
on account of damage from his torture. Mr. Jefferson states mildly
our own practice, in contrast with that of Rome, when he says: “With
the Romans, the regular method of taking the evidence of their slaves
was under torture; here it has been thought better never to resort to
their evidence.”[83] In the latter days of the Empire, a general rule
made the slave inadmissible as witness for or against his master or
his master’s children, except in cases of treason, where the danger
of the crime overruled ordinary considerations, and also in cases of
incest and adultery, for the good reason that _in a society where all
domestics were slaves any other evidence could hardly be procured_.[84]
But the latter reason might obviously exist in the case of any crime;
so that, on principle, when other proofs were wanting, resort might be
had to the testimony of slaves. Indeed, a learned commentator on the
Roman Law has distinctly said that this law did not admit slaves to be
witnesses, unless the cause was difficult, looking to the welfare of
the republic, _or other proofs were wanting_: “_Servos lex civilis non
patitur testes esse, … nisi causa sit ardua, ad rei publicæ spectans
utilitatem, aut aliæ desint probationes._”[85] It became customary,
in civil matters, to admit the testimony of slaves as to their own
acts, although affecting the interests of their masters; and after the
establishment of Christianity, when heresy took its place as a crime
to be dreaded as much as treason, the testimony of slaves was received
equally with regard to each.
The rule of exclusion during the Dark Ages naturally took its
character from the prevailing darkness. The Barbarians did not, in this
respect, soften the law of ancient Rome. Amidst the cares of empire
this task was attempted by Charlemagne; but how little he accomplished
may be seen in his Capitularies, where slaves are rejected as witnesses
against their masters, except in cases of treason, and even freedmen,
unless in the third generation, are not admitted to testify against
freemen.[86] And the same intolerance is attributed to the Canon Law:
“_Item placuit, ut omnes servi vel proprii liberti ad accusationem
non admittantur_.”[87] But it appears that at this time, among some
races, it was the prerogative of royal serfs, and of others not of
base condition, to have their testimony received against freemen,
especially in cases of childbirth, violence, or death by accident.[88]
And the influence of the clergy seems to have overruled this exclusion
in certain specified districts. Thus, in 1109, on the petition of the
ecclesiastics of Paris, Louis the Sixth conceded to the serfs of the
latter a perfect liberty of testifying and combating (_testificandi
et bellandi_) against freemen as well as slaves; and this important
concession was confirmed by the Pope, who declared, however, that there
ought to be a difference in the conditions governing a family of the
Church and the slaves of secular persons.[89] Although this concession
was made for the sake of the Church rather than its humble dependants,
it was an example by which the world became accustomed to receive the
testimony of slaves.
In England, under the Common Law, the rule of exclusion on account of
Slavery was never fully recognized. The villein seems to have been
admitted as a witness in all cases except against his lord. “I do not
know,” says Mr. Hallam, “that their testimony, except against their
lord, was ever refused in England.”[90] It was only in respect of
his lord that he was without rights. But he was sometimes received,
although the lord himself was a party;[91] and in criminal cases
generally it was no exception to a witness that he was a bondman.[92]
Such, even at the beginning, was the voice of the Common Law. But
with the disappearance of villenage all pretence of exclusion on this
account vanished in England, never to return.
The offensive rule seems to have found less acceptance in the
possessions of other countries than with us. It has been inferred,
after careful inquiry, that slaves in the Spanish and Portuguese
settlements are not always incompetent as witnesses, while the _Code
Noir_ of Louis the Fourteenth, amidst ungenerous prohibitions, allowed
their evidence to be heard, “as a suggestion, or unauthenticated
information, which might throw light on the evidence of other
witnesses,” and afterwards, by later edict, sanctioned the testimony
of slaves, “when white witnesses were wanting, except against their
masters.”[93] But the rule is the natural complement of Slavery; and it
cannot be disguised that it has prevailed, with corresponding degrees
of force, wherever Slavery has been recognized. Its prevalence with us
is only another illustration of the power of Slavery.
If you would find the country where slaves have been most completely
despoiled of the right of testimony, you will not go to Greece or
Rome, for in these classic lands the slaves were admitted to testify
in certain cases; nor will you linger even in the Dark Ages, for there
were then excepted cases; nor will you search English precedents, for
the villein was incompetent only against his lord, and not always
against him; nor will you look to the colonies of Spain, Portugal, or
France, for in all of these the cruel rule was mitigated; but you will
turn to those States of our Republic where the slave is not permitted
to testify against his master or any other white person, and where
even free colored persons, having no master, are smitten with the same
incapacity to testify against any white person.
GROUNDS FOR THIS INJUSTICE.
From examples of history the way is easy to an inquiry into the grounds
on which this proscription is founded.
The true reason may be traced to the unhappy prejudices engendered
by Slavery, and to the policy of sustaining this wrong. Indeed, it is
hardly less essential to Slavery than the lash itself. An early statute
of Virginia places the rule on the ground that none but Christians
should be witnesses, and even among these “Popish recusants convict”
were inadmissible.[94] But it is generally vindicated by dwelling on
_the degraded condition of the slave, and the interest he may have to
conceal or deny the truth_.[95] A careful examination will show that
this apology is baseless as Slavery itself.
Of course, if a witness is too degraded to feel the sanction of an
oath, his testimony should not be received. Such is the unquestionable
suggestion of reason; nor can it make any difference that the witness
is white or black. But the slave is not necessarily and universally so
degraded as to merit exclusion, nor is his interest to conceal or deny
the truth different materially from that of other persons,--although
it is undoubtedly true, that, under the instinct of self-defence, and
against the exactions of Slavery, he learns to deceive. But in every
State except South Carolina _the oath of the slave is received against
colored persons_, which could not be done, if he could not be trusted
under oath. A judge of South Carolina has vindicated the capacity of
the slave in this respect, and thus unintentionally repelled the rule
of exclusion. “Negroes, slaves or free,” says Judge O’Neall, “will
feel the sanction of an oath with as much force as any of the ignorant
classes of white people in a Christian country. They ought, too, to
be made to know, if they testify falsely, they are to be punished for
it by human laws. The course pursued on the trial of negroes, in the
abduction and obtaining testimony, leads to none of the certainties
of truth. Falsehood is often the result, and innocence is thus often
sacrificed on the shrine of prejudice.”[96] But this learned judge of
South Carolina is not alone in vindicating the propriety of examining
the slave on oath. Judge Clayton, of the High Court of Errors and
Appeals in Mississippi, in delivering the opinion of the Court, thus
expressed himself: “It is also objected, that there ought, in the case
of slaves, to be some evidence of a sense of religious accountability,
upon which the validity of all testimony rests, and that the same
presumption of such religious belief cannot be indulged in reference to
them as in regard to white persons. As to the latter, it is said the
presumption is in favor of their proper religious culture and belief in
revelation and a future state of rewards and punishments; as to slaves,
it is contended the presumption does not arise, because of a defect of
religious education. It is true, that, if the declarant had no sense
of future responsibility, his declarations would not be admissible.
But the absence of such belief must be shown. The simple elementary
truths of Christianity, the immortality of the soul and a future
accountability, are generally received and believed by this portion of
our population. From the pulpit many, perhaps all, who attain maturity,
hear these doctrines announced and enforced, and embrace them as
articles of faith.”[97]
But if slaves generally have a sufficient amount of religious belief
to supply the sanction of an oath, it is clear that they are not
so degraded as to justify their exclusion as sworn witnesses. And
the Slave States, while excluding them, have practically recognized
their fitness. Not only is the oath of a slave received in all the
Slave States except South Carolina, but he is liable to punishment
for perjury,[98] and sometimes the punishment inflicted is diabolic.
In Virginia,[99] and also in Maryland,[100] the punishment formerly
was “cropping.” In Florida, the statute appoints that the offender
“shall have his or her ears nailed to posts, and there to stand for
one hour, and, moreover, receive thirty-nine lashes on his or _her
bare back_.”[101] In Mississippi, if a colored person is found to have
given false testimony, he is “to have one ear nailed to the pillory,
and there to stand for the space of one hour, and then the said ear to
be cut off, and thereafter the other ear nailed in like manner, and
cut off at the expiration of one other hour; and, moreover, to receive
thirty-nine lashes on his or _her bare back_, well laid on, at the
public whipping-post, or such other punishment as the court shall think
proper, not extending to life or limb.”[102] But every recognition of
the oath of a slave on any occasion, and especially every punishment
of a slave for perjury, testifies to his capacity as a witness. The
barbarism of the punishment testifies also against Slavery. It is vain
to say that a slave is incompetent, when, in certain cases, he is
already accepted as witness, and visited with fiendish punishment, if
he violates his oath.
The absurdity of this pretension is illustrated by a provision in the
statutes of Kentucky, by which a slave in the penitentiary may be a
competent witness against a white convict.[103] Such was early the law
of Virginia, and even now he is competent for the white convict. Thus,
so long as a slave commits no crime, his oath is not received in court
to affect a white person even with the smallest pecuniary liability;
but let him be sent to the penitentiary as a convict for crime, and
forthwith his capacity as a witness is enlarged, and on his testimony a
white convict may be deprived of life! But, obviously, the commission
of a crime carrying with it the doom of the penitentiary must impair
rather than increase confidence in the veracity of the criminal. Such
is the absurd inconsistency in the application of this rule.
Although the rule may be properly traced to Slavery, of which it is
an important ally, yet, from considerations already presented, it
seems to follow that it is founded on a reason broader than Slavery,
suggested, however, by Slavery. According to the logic of these
considerations, the disqualification of the slave as a witness against
white persons is not founded on the fact that he is a slave, because
the disqualification, except in Delaware and Louisiana, attaches also
to free colored persons; nor is it founded on want of that religious
belief required in a sworn witness, nor on any actual disregard of his
testimony under oath, because the slave in certain cases is sworn,
and his testimony under oath is accepted in the administration of
justice, and he is punished for perjury; but it is simply, in the
last analysis, _an incapacity attached by law to persons of color_.
Indeed, the obvious inference from the remarks of Judge O’Neall[104]
is, that, in his opinion, it is not slavery, but color, which is
the ground of exclusion. But the Committee have already shown the
pernicious consequences of such proscription, and especially that the
disfranchisement of the African race operates as a liberty to all white
persons, not excepting, in most of the States, even white convicts, to
do as they please, and commit any crime in the Decalogue, “unwhipped
of justice,” if nobody but a colored person is present. It needs no
argument to establish the unreasonableness of a disqualification which,
according to the confession of its advocates, attaches to the shading
of the human skin, especially in view of the fearful cruelty that is
its natural consequence.
In Delaware and Louisiana the disqualification rests on the fact of
Slavery. In many other States the free colored persons are so few in
number that the fact of Slavery seems still to overshadow the whole
race. Assuming, then, that the disqualification is traced not merely
to the shading of the skin, but to the fact of Slavery, it is none the
less to be rejected, not only as part of Slavery, but as essentially
irrational and inhuman.
The slave feels the sanction of an oath hardly less than many white
persons of inferior condition. On grounds of reason, therefore, and
independently of prejudice, the two classes at the outset would be
entitled to an equal degree of confidence,--modified, of course, and
decreasing, as there was a manifest interest or temptation to testify
falsely. But the slave is exposed to such corrupting power less than
a white person. He can have no pecuniary interest, since he has no
right of property. And, except where his master is a party or otherwise
interested, he must be alike without hope of gain or fear of punishment
to make him swerve from the truth. Accordingly, in all cases where his
master stands indifferent, the reason for excluding the slave is not
so strong as for excluding white persons of inferior condition, since
the slave may feel the sanction of an oath as much as they, while he
is less exposed to any disturbing influence. Such, certainly, is the
conclusion justified by the facts.
The dependence of the slave upon his master must naturally subject him
peculiarly to his influence, whether from hope of reward or fear of
punishment; so that his testimony in favor of his master would always
be viewed with suspicion. If, contrary to this active interest, the
slave testifies _against_ his master, his testimony would seem to be
worthy of peculiar consideration. But even where he testifies _for_
his master, there can be no more reason for excluding his testimony
than for excluding that of a child for a father or a mother, or of
excluding that of a father or a mother for a child. Unquestionably, in
each of these cases the bias is stronger than any that can exist on the
part of a slave, as love is stronger than fear. Therefore there is no
valid reason why a slave should not be permitted to testify _for_ or
_against_ his master. The same considerations which determine the value
of other testimony will suffice with regard to him; and thus, in every
respect, the rule of exclusion becomes irrational and arbitrary.
But this rule, whether applicable to slaves or free colored persons,
is still more irrational and unwarranted when it is considered that
the testimony is submitted to the scrutiny of a jury of white persons,
under the watchful observation of a court of white persons likewise,
and that it can have no effect whatever except through assent of their
judgment. The motive which actuates the slave, whatever it may be,
whether revenge or interest or fear, must be open to discovery. It is
therefore preposterous to argue that any white person, at any time or
anywhere, especially in a Slave State, can be prejudiced by colored
testimony, or that he can be convicted by a white jury under the eye of
a white court, unless that testimony is strictly worthy of belief. The
rule of exclusion is not only an expression of tyranny and prejudice,
but an insult to the understanding, and even to common sense.
If this rule were only irrational and eccentric, it might be pardoned
to immeasurable madness, and handed over to the derision of mankind.
But even its absurdity disappears in its appalling injustice. Two
things are obvious to the most superficial observation: first, that
under its influence the slave is left absolutely without legal
protection of any kind, the victim of lawless outrage; and, secondly,
that even crimes against white persons may escape unpunished: so that
in these two important cases justice must fail. But this failure of
justice becomes intolerable, when it is considered that it is not from
accident or temporary weakness, but that it is absolutely organized by
law. Nor is it confined to slaves. It embraces in its ban free colored
persons also, without regard to intelligence, property, or relations in
life.
CONCLUSION.
Such is this proscription, as it appears (1.) in the various statutes
of the Slave States, (2.) in the eccentricities of judicial decisions,
(3.) in its consequences, (4.) in examples of history, and (5.) in
the grounds on which it is founded. Regarding it in either of these
aspects, it must be rejected. The statutes in which it is declared
and the judicial eccentricities by which it is illustrated belong to
the curiosities of an expiring barbarism. Its consequences shock the
conscience of the world. The examples of history testify against it.
The reason on which it is founded shows that it stands on nothing that
is reasonable.
It is for Congress to determine whether this proscription shall
continue in the courts of the United States,--or, in other words, if a
local rule, barbarous, irrational, and unjust, born of Slavery, shall
be allowed to exist yet longer under the national sanction.
THE MISSION TO BELGIUM.
SPEECH IN THE SENATE, ON AN AMENDMENT TO THE CONSULAR AND DIPLOMATIC
APPROPRIATION BILL, MARCH 15, 1864.
March 14th, the Senate having under consideration the bill
making appropriations for the consular and diplomatic service,
Mr. Sumner, in behalf of the Committee on Foreign Relations,
moved the following amendment:--
“That the President may, in his discretion, by and with
the advice and consent of the Senate, appoint an envoy
extraordinary and minister plenipotentiary to the kingdom
of Belgium, who shall receive no higher compensation than
is now allowed to a minister resident.”
The amendment was opposed by Mr. Fessenden, of Maine, to whom
Mr. Sumner replied.[105]
March 15th, the debate was continued, and Mr. Sumner spoke
several times. In reply to Mr. Davis, of Kentucky, he said:--
MR. PRESIDENT,--There seems a perpetual disposition in this debate
to change the issue. I stated that the issue was how we shall best
give efficiency to our representation in Europe. Now the Senator from
Kentucky says that the issue is how we shall give our minister at
Belgium an opportunity to get into a little better company. That is
his imagination. Surely it is not the way the Committee directed me to
state the case. It is not the way in which I have presented it at any
time in this discussion. I hope that Senators will not be diverted from
the real issue, which is simply, Will the public interests be promoted
by this change? The Committee answer in the affirmative, and in my
humble opinion the Committee is right.
MR. DAVIS. Will the Chairman specify in what respect the public
interest will be promoted, in what respect the efficiency of
our representative at the court of Brussels will be increased,
and in what respect the increase of his grade will render this
Government and its interests more acceptable to Leopold?
MR. SUMNER. In the same way, Sir, that the public interests are
promoted at London, and also at Paris, by a plenipotentiary instead of
a minister resident.
MR. DAVIS. According to that rule, we ought to have a
first-class minister at every court in Europe and at every
government in South America, and everywhere else where we send
diplomatic representatives.
MR. SUMNER. No,--the Senator will pardon me,--not at every court in
Europe, but only at those where we have considerable interests. It all
pivots upon that. What are our relations with different courts? With
considerable interests, we should be represented accordingly. With
inconsiderable interests only, there is no reason to raise the mission.
We have first-class missions, according to our scale of rank, at
London, Paris, Madrid, Turin, Vienna, Berlin, and St. Petersburg. And
why?
MR. DAVIS. Will the honorable Chairman tell me the relative
proportion between the commercial interests of the United
States and England, the United States and France, and the
United States and Belgium?
MR. SUMNER. There are interests of all kinds, commercial and
political, differing in different countries. I need not remind the
Senator that our interests with England and France are largely superior
to those with any other European power,--much above those with Belgium;
but if you ask me what other European power I should place next after
those two, I should hesitate, in the condition of our affairs at this
precise moment, to place any before Belgium.
MR. DAVIS. Would you not place Russia before Belgium?
MR. SUMNER. I would not exaggerate, but I am obliged to acknowledge,
in reply to the Senator, that I should hesitate at this moment to say
that even Russia was so situated as to make our minister there so
important to our present interests as our minister at Belgium. In one
word, our minister at Brussels has more to do than our minister at St.
Petersburg. Look I pray you, at the geographical position of Belgium,
its thronging, active population, its commerce, its manufactures. But
countries derive character and even power from their rulers, and this
is the happy advantage of Belgium, especially in her relations with
us. You all know that her sovereign is able to exercise a persuasive
influence over international affairs, entirely out of proportion to the
extent of territory he so wisely governs, and this influence has been
exerted at a critical moment in our favor.
I would not say a word in disparagement of any other power. But it
would be difficult, after England and France, to name any power which,
all things considered, furnishes at this moment such opportunities
of usefulness in the public service to any American plenipotentiary
as are afforded by Belgium. Would the Senator compare our interests
there with those in Prussia, one of the most respectable and highly
educated courts of the globe, or with Austria, great in military
power and physical resources? At Berlin and Vienna there is less for
our ministers to do, and less of opportunity, than at Brussels. The
geographical position of these capitals explains this difference, at
least in part.
Or, if you please, take the government of Spain, representing that
great Castilian monarchy on which it was said that the sun never set. A
Senator whispers that this was said some time ago. True; but you have
in Spain the old Castilian pride and faith born of that immense empire;
and yet our interests with Spain at this moment, or, in other words,
our opportunities in that kingdom, are not more important than in the
smaller kingdom of Belgium, which the sun covers in much less than a
single hour.
Then there is the new-born kingdom of Italy, where we have also a
plenipotentiary. Does any one suppose, that, if you put aside that
sympathy which every American feels for this interesting power, newly
dedicated to Liberty, our interests there at this moment are equal to
those with Belgium? Here again geography explains the difference.
There only remains in this review, to which the Senator invites me,
the empire of Russia, bound by many years of history to amity with
the United States, and absolutely fixed as our friend beyond any jar
of diplomacy or any jealousy of growing power. But our commercial
relations with this extensive country are inferior to those with
Belgium; and St. Petersburg is further removed from the great centre
of observation than Brussels. The Emperor of Russia is illustrious
from a transcendent act, for which his name will be blessed; but his
assured regard for us takes away all solicitude as to his policy, while
the complications of present questions in which he is involved render
his relations to other European governments less intimate than those
of King Leopold, even if the latter had not, from family and long
experience, a position of peculiar weight in the scale of European
affairs, so that Belgium under his rule has a value beyond her natural
power or territorial extent. Belgium may be small in domain, but so was
Greece; nor will any one presume to measure the influence her sovereign
may exercise by the number of square miles he governs.
But the Senator asked if there was any other government so small in
numbers where we were represented by a plenipotentiary. I have before
me, from the last almanac, the population of Chile, where we have
a plenipotentiary. It is one million five hundred and fifty-eight
thousand. Here, also, is the population of Peru, where we have a
plenipotentiary,--two million five hundred thousand.
MR. DAVIS. I believe that those missions ought to be reduced,
and I would vote to-day for the reduction of the missions to
Chile and to Peru.
MR. SUMNER. Very well; but let us take each question by itself. That
is the more practical way. When the proposition to reduce the missions
to Chile and Peru comes before the Senate, I shall be ready to meet
it, and I do not say that I shall differ from the Senator; but that
proposition is not now before us, nor is it involved even indirectly in
the pending amendment.
It is said, that, if we raise this mission, next year there will be
attempt to raise the salary. Very well; when that comes, we can meet
it. Again it is said that next year there will be attempt to raise both
mission and salary at the Hague and other places. Very well; when the
time comes,--and it must have the sanction of a committee of this body
to come before the Senate,--we will meet it. Meanwhile I ask you to
consider the actual question under debate, which is, whether you will
authorize the Government, in view of the peculiar circumstances of the
case and for the support of our interests abroad, to raise the Belgian
mission without any increase of salary. I have said this too often,
I know; but I have been driven to it by the pertinacity with which
Senators have insisted upon presenting the case in a false light.
The amendment was adopted,--Yeas 21, Nays 18,--and the bill
passed the Senate; but the House of Representatives would
not consent to raise the Belgian mission. Two different
conference committees were appointed. The first united in the
following substitute, drawn by Mr. Sumner, which would enable
the President to raise the mission in his discretion without
increase of salary: “That an envoy extraordinary and minister
plenipotentiary, appointed at any place where the United States
are now represented by a minister resident, shall receive the
compensation fixed by law and appropriated for a minister
resident, and no more.” But this was disagreed to by the House,
and at the second conference the Senate receded from the
amendment, so that it was lost.
In the next Congress it was renewed by Mr. Sumner, and
prevailed. It will be found in the Consular and Diplomatic Act
of July 25, 1866.[106]
CONSULAR PUPILS.
SPEECH IN THE SENATE, ON AN AMENDMENT TO THE CONSULAR AND DIPLOMATIC
APPROPRIATION BILL, MARCH 15, 1864.
The Senate having under consideration the Consular and
Diplomatic Appropriation Bill, an amendment was reported by Mr.
Fessenden from the Committee on Finance reviving the provision
in the Act of August 18, 1856,[107] authorizing twenty-five
consular pupils, and making an appropriation for them. The
amendment was opposed by Mr. Collamer, of Vermont, and Mr.
Reverdy Johnson, of Maryland. Mr. Sumner said in reply:--
MR. PRESIDENT,--The chief objection of the Senator from Maryland
seemed to be that we might educate these young men at the national
expense and very soon thereafter lose them,--in other words, not get
our money back. In the first place, it is very easy, by regulations
at the State Department before these appointments, to provide against
any such contingency; and I understand that Mr. Marcy, indefatigable
and ingenious as the Senator remembers he was, did, by a series of
regulations, carefully provide for this very case. Should we return
to the original law, the Secretary of State would have only to
revive those original regulations by one of his most distinguished
predecessors. I believe this a sufficient answer to the Senator.
But the Senator from Michigan [Mr. CHANDLER] has already answered him
in another way, when he asked, very pertinently, What assurance have we
that we shall enjoy the services of the cadets at West Point, or the
naval cadets now at Newport? There are certain requirements of service,
but the Senator knows well that nothing is more common than for cadets,
especially military, to pass immediately from that education they have
received at the expense of their country into occupations serving only
their private advantage.
MR. JOHNSON. That is with the consent of the Government. The
Government accepts their resignations.
MR. SUMNER. Very well; what is to hinder regulations at the Department
of State requiring the consent of the Government before these pupils
shall be released,--in short, holding them by some words of contract
for a certain term? Here let me say, that, unlike cadets, these pupils
will give the Government valuable service even while pupils.
But, Sir, passing from these considerations, allow me for a moment
to ask the attention of the Senate to this proposition in two
aspects,--the first as a carrying out of the consular and diplomatic
statute of the United States, and the second as in the nature of an
educational provision calculated to benefit our consular service abroad.
In the first aspect, the Senate will bear in mind that down to 1855 we
had no general diplomatic and consular statute. Our representation in
foreign countries went under thorough review, and the result was the
statute in our books, determining grades, adjusting salaries, and, in
one word, systematizing the whole business. Let the character of the
statute be borne in mind. But this statute, which aimed to present a
complete system, contained the provision for consular pupils.
Now, Sir, at that time and by that statute our consular salaries were
adjusted to this very provision of consular pupils. The one was in the
nature of a complement to the other. The salaries were made lower than
they otherwise would have been in certain cases, because the consuls
were to be aided by pupils with a compensation fixed by statute. But
the provision for pupils was repealed shortly afterwards, indeed before
the experiment had been tried, without, however, raising the consular
salaries in corresponding degree. It seems clear that something must
be done now. You must do one of two things,--either raise the consular
salaries or appoint consular pupils. Otherwise the original idea of the
statute fails, and our system is defective.
But this seems to be the least important aspect of the subject. A
mere question of salary, or, if you please, of system in the statute,
is trivial, to my mind, by the side of that other consideration to
which Senators have already alluded. I said that this was part of an
educational system for the advancement of our service abroad. I do not
think you can exaggerate its importance in this respect. Let any one
who has been abroad, or had personal acquaintance with those who have
been abroad, bear testimony to the abounding ignorance in our foreign
service, from the circumstance that there is nobody there, unless a
hired foreigner, acquainted with the language, the laws, or the usages
of the people about him. Sir, it is a shame that our offices abroad,
whether consular or diplomatic, are served in this inferior way. Here,
now, is a practical proposition beginning a remedy. It is simple and
direct. It seems to me that it cannot fail to be of considerable
advantage. The business of these offices will be better done, and
there will be a staff of educated experts, familiar with foreign life,
whose knowledge and experience, even if not always in the service of
Government, will pass into the capital stock and resources of the
country. Nothing is clearer than that the education of the people is a
source of national wealth, even of national power.
But the Senator from Vermont says that education is needed more in the
diplomatic service than in the consular. Granted; it is needed very
much in the diplomatic service; but because needed there, is that any
reason why we should not supply it here? The argument, it seems to me,
was hardly worthy of that Senator. Let a proposition be brought forward
for an educational system applicable to our diplomatic representatives,
and we will entertain it. Meanwhile let us act on that before us,
which, I submit, is eminently practical in character. Who are our
consuls? They are not diplomatic or political agents in the common
sense of the term; they are commercial agents. To discharge their
duties fitly, they should be familiar with the interests of commerce,
how it is conducted, and the language it employs, where they happen to
be. And permit me to say, that a great country like ours, one of whose
chief sources of wealth and of grandeur is commerce, must not hesitate
to supply the education needed to secure commercial representatives not
unworthy of the Republic they represent.
As the consul is a commercial representative, he is on this account
especially the agent of a commercial country. If our commerce were
less, our interest in having good consuls would be less. But with the
surpassing growth of our commerce this interest enlarges. To send
abroad consuls without proper education must necessarily bring the
national character into disrepute, and jeopard the concerns intrusted
to them. For the sake of our good name abroad, which is part of our
national possessions, and also for the sake of those vast commercial
concerns which encircle the globe, I hope that this proposition, which
is a small beginning in the right direction, will not be rejected.
March 16th, the debate was continued, and Mr. Sumner spoke
again. The amendment was adopted,--Yeas 20, Nays 16,--and the
bill passed the Senate. The House disagreed to the amendment,
but afterwards accepted the report of a conference committee,
authorizing the appointment of “consular clerks, not exceeding
thirteen in number at any one time, who shall be citizens of
the United States, and over eighteen years of age at the time
of their appointment, and shall be entitled to compensation
for their services respectively at a rate not exceeding
one thousand dollars per annum, to be determined by the
President.”[108]
THE LATE HON. OWEN LOVEJOY, OF THE HOUSE OF REPRESENTATIVES.
SPEECH IN THE SENATE, ON THE RESOLUTIONS UPON HIS DEATH, MARCH 29, 1864.
MR. PRESIDENT,--It is proposed to adjourn in honor of OWEN LOVEJOY,
whose recent death we mourn. Could his wishes prevail, Senators would
continue in their seats and help enact into law some one of the several
measures pending to secure the obliteration of Slavery. Such an act
would be more acceptable to him than any personal tribute.
He spoke well always, but he believed in deeds rather than words,
although speech with him was a deed. It was his contribution to that
sublime cause for which he toiled always. Words may be often “the
daughters of earth,” but there was little of earth in his. Proceeding
from a pure and generous heart, they have so far prevailed, even
during his life, that they must be named gratefully among those good
influences by which the triumph has been won. How his enfranchised soul
would be elevated, even in those abodes to which he is removed, at
knowing that his voice is still heard on earth, encouraging, exhorting,
insisting that there shall be no hesitation anywhere in striking at
Slavery,--that this unpardonable wrong, from which alone the Rebellion
draws its wicked life, must be blasted by Presidential proclamation,
blasted by Act of Congress, blasted by constitutional prohibition,
blasted in every possible way, by every available agency, and at every
occurring opportunity, so that no trace of the outrage may continue
in the institutions of the land, and especially that its accursed
footprints may no longer defile the national statute-book! In vain you
pass resolutions in tribute to him, if you neglect that cause for which
he lived, and hearken not to his voice.
Shortly before he went away from Washington to die, I sat by his
bedside. There, too, within call, was the beloved partner of his life.
He was cheerful; but his thoughts were mainly turned to his country,
whose fortunes in the bloody conflict with Slavery he watched with
intensest care. He did not doubt the great result; but he longed to be
at his post again, to teach his fellow-citizens, and to teach Congress,
how vain to expect an end of the Rebellion without making an end of
Slavery. It is only just to his fame that now, on this occasion of
commemoration, all this should be faithfully told. To suppress it would
be dishonest. I could not speak at his funeral, if I were expected to
unite in robbing his grave of any of these honors derived from his
transcendent courage and discernment in the trials of the present hour.
The Journals of the House show how faithfully he began his labors
at the present session. On the 14th of December he introduced a
bill, whose title discloses its character: “A bill to give effect
to the Declaration of Independence, and also to certain provisions
of the Constitution of the United States.” It proceeds to recite
that all men are created equal, and endowed by the Creator with the
inalienable right to life, liberty, and the fruits of honest toil;
that the Government of the United States was instituted to secure
those rights; that the Constitution declares that no person shall be
deprived of liberty without due process of law, and also provides
(Article six, clause two) that “this Constitution, and the laws of
the United States which shall be made in pursuance thereof, shall be
the supreme law of the land, and the judges in every State shall be
bound thereby, anything in the Constitution or laws of any State to
the contrary notwithstanding”; that it is now demonstrated by the
Rebellion that Slavery is absolutely incompatible with the union,
peace, and general welfare for which Congress is to provide; and it
therefore enacts that all persons heretofore held in slavery in any of
the States or Territories of the United States are declared freedmen,
and are forever released from slavery or involuntary servitude,
except as punishment for crime on due conviction. On the same day he
introduced another bill, to protect freedmen and to punish any one
for enslaving them. These were among his last public acts. And now
they testify how honestly he dealt with that _question of questions_
in which all other questions are swallowed up. It is easy to see that
he scorned the wicked fantasy that man can hold property in man.
This pernicious delusion, which is the source of such intolerable
pretensions on the part of slave-masters, and, worse still, of such
intolerable irresolution on the part of many professing opposition to
Slavery, could get no hold of him. He knew that it was a preposterous
falsehood, as wicked as false, born of prejudice and supreme credulity,
and therefore he brushed aside as cobweb all the fine-spun snares of
law or Constitution so ingeniously woven in its support. Recognizing
Freedom as the God-given birthright of all who wear the human form, he
knew no duty higher than to protect it always; and to this end law and
Constitution must minister.
He had never been a judge, and was not even a lawyer, so that the
technicalities and subtilties of the profession had no chance of
enslaving him. Besides, to a nature like his, independent and
self-poised, what were the sophisms of learning and skill, when
employed in the support of Wrong? It was enough, that, wherever Slavery
appeared, it was in defiance of that commanding law of Right, before
which all unjust pretensions, whatever form they take, must disappear
like the morning dew under the flashing arrows of the ascending sun.
From the beginning and at all times he was fixed against all compromise
with Slavery, and stood like a fortress. Sir, let it be spoken here in
his honor. He lies cold in death, but he could have no better epitaph
than this: “_Here rests one who would not compromise with Wrong_.”
When Senators and Presidents bent to the ignoble behest, he stood
firm. He was gifted to see that Slavery, unlike Tariff or Bank, did
not come within the range of compromise any more than the Decalogue
or Multiplication Table. He saw well how shamefully unconstitutional
and inhuman was the Fugitive Slave Act, in spite of every apology of
compromise, and refused it all support. He lies cold in death, but
his principles will live to sweep this unutterable atrocity from the
statute-book, which it still fills from cover to cover with blackness.
He was not only a faithful counsellor of perfect loyalty, in whom
truth was a religion and an instinct, but he was a counsellor whose
experience of mankind and of public life united with aptitude for
affairs in giving to what he said added value. He sat for several years
in the other House face to face with Slave-Masters, who then ruled the
country, so that he knew them well in every respect, but especially in
their open brutality and surpassing effrontery. During this period,
while shut out from participation in the public business, his duty was
that of champion, and nobly did he perform it. But those who watched
him under the responsibility recently cast upon a Representative of his
character observed that he developed a practical talent which rendered
him useful, not only as champion, but also as workman in the machine
of government. He was a supporter of the present Administration, and
of that declared policy which, according to the motto of Algernon
Sidney, adopted on the arms of Massachusetts, seeks “placid quiet under
Liberty,”--_placidam sub Libertate quietem_. There are few among his
associates who may not be instructed and inspired by his magnanimous
example.
He had been a lifelong soldier of Liberty, baptized into a service of
blood. While yet young, his brother, an editor in Illinois, devoted
to the slave, fell a victim to the cause he served so well. His fate
awakened a wide sympathy throughout the country, drawing Channing from
his retirement to speak at Faneuil Hall, and touching with a living
coal the lips of Wendell Phillips, whose voice then and there, for
the first time, flamed forth against Slavery. It was natural that
Owen Lovejoy should assume those vows of perpetual warfare with the
tyrant murderer which he so truly kept,--tyrant murderer of a cherished
brother,--tyrant murderer of Liberty, not only on the plantation, but
everywhere throughout the land,--tyrant murderer of the Constitution,
which guards alike the rights of States and citizens,--and tyrant
murderer of national peace, without which there can be no true
prosperity or happiness. Thus, as a soldier of Liberty, he began, and
he kept his harness on to the last.
He was one of the most amiable of men, whose heart was abundant with
goodness and gentleness, and whose countenance streamed with sunshine.
But on this account he was only the more inexorable toward a wrong so
cruel in all its influences. A child of the New Testament, he was no
stranger to the early Hebrew spirit, and had little patience with those
who, born among Northern schools and churches, strove to arrest or
mitigate the doom of Slavery. The famous curse of Meroz, so solemnly
denounced against neutrality, which had been echoed from ancient Judea
by English Puritans in their great contest, found an echo in his heart:
“Curse ye Meroz, said the angel of the Lord, curse ye bitterly the
inhabitants thereof, because they came not to the help of the Lord,
to the help of the Lord against the mighty.”[109] Of course, in this
spirit he used plain words, and did not hesitate. But if he did not
hesitate, it was because he saw clearly the path of duty. Amiability
did not make him doubt. He was a positive man, of positive principles,
who knew well how much was always lost by timid counsels, especially on
great occasions. Because there were some about him who were skeptical
and irresolute, he was not disheartened, but preserved to the last
an example of fidelity which history will piously enshrine. His own
illustrations were from the sacred writings, but a heathen poet has
given a warning which is part of the lesson of his life:--
“Old Priam’s age, or Nestor’s, may be out,
And thou, O Taurus, still go on in doubt.
Come, then, how long such wavering shall we see?
Thou mayst doubt on; but then thou’lt nothing be.”[110]
Of all doubts, there are none more painful or indefensible than those
by which human rights are put in jeopardy.
He was a Representative of Illinois, born in Maine when Maine was
part of Massachusetts, which made him a connecting link between the
East and the West. The welcome he found in the West, and his complete
fellowship with that region, while his sympathies overflowed to his
early home, attest better than arguments the ligatures binding together
these different parts of our common Union; so that, hereafter, should
any malignant spirit seek to sow strife between us, his name alone will
be a standing protest against the alienation. Born in the East, he was
honored in the West. Honored in the West, he never lost his love for
the East. But the whole country, not excepting the South, had a home in
his patriotic, hospitable, and capacious heart. He hated Slavery; but
he loved his country in every part, with heart, soul, and mind.
He was of the Old Guard of Antislavery, and we bury him with the
honors that belong to such a soldier. Flags are at half-mast, and
funeral guns are sounding in our hearts. But from his new-made grave
he speaks now to the whole vast Republic, animating all good citizens
to labor as he labored and to live as he lived, that this land may be
redeemed. Especially does he speak to the State that honored him in
life, and to those associate States constituting the mighty Northwest,
where he found the home of his mature years,--Indiana, Michigan,
Wisconsin, Iowa, Minnesota,--exhorting them to take up bravely and
without faltering the cause he made his own, that it may not lose by
his death. But, alas! the vigilance of many will be needed to supply
the place he filled.
Such a character must be mourned in Congress; but he will be mourned
throughout the country, at all those virtuous firesides where fathers,
mothers, brothers, and sisters speak of those who have helped human
happiness on earth. And there is another company, who cannot yet
pronounce his name, but, as they hear how truly he was their friend,
will rise to call him blessed. Already, unseen of men, in vast
uncounted procession, the slaves of the Union help to swell his funeral.
COLORED SUFFRAGE IN THE TERRITORY OF MONTANA.
SPEECHES IN THE SENATE, ON AN AMENDMENT TO THE BILL FOR A TEMPORARY
GOVERNMENT OF THAT TERRITORY, MARCH 31 AND MAY 19, 1864.
March 30th, the Senate having under consideration a bill, that
had already passed the House of Representatives, to provide
a temporary government for the Territory of Montana, Mr.
Wilkinson, of Minnesota, moved to amend the clause relating
to persons entitled to vote and eligible to office, so that,
instead of “every _white male inhabitant_,” it should read
“every _free male citizen_ of the United States, and those who
have declared their intention to become such.” Mr. Reverdy
Johnson at once declared that “the effect of the amendment was
to admit to the elective franchise in the proposed Territory
black men as well as white,” and, after mentioning the number
of Africans now in the United States, he proceeded to say
that “it can hardly be seriously contended, that, of that
four millions, such portion of them as have been in a state
of slavery from infancy to the present time are intelligent
enough, or likely to become intelligent enough, at once to
exercise the right of suffrage”; and he anticipated another
question, “just as likely to excite the public as the question
of the existence of Slavery in itself.”
March 31st, the amendment was adopted,--Yeas 22, Nays 17. The
debate continuing, Mr. Johnson said that the term “citizen”
was not applicable to “black men,” “because the Supreme
Court of the United States has decided, and that question
was directly before the Court in the Dred Scott case, that
a person of African descent is not a citizen of the United
States.” Mr. Wilkinson was willing it should stand according
to his amendment, and let the decision of the Supreme Court be
whatever it might. He wanted neither “white” nor “black” put
into the bill. Mr. Sumner then remarked:--
“I take it that each branch of the Government can interpret
the Constitution for itself. I think that Congress is as
good an authority in its interpretation as the Supreme
Court, and I hope that in legislation it will proceed
absolutely without respect to a decision which has
disgraced the country, and ought to be expelled from its
jurisprudence.”
Mr. Johnson vindicated the Dred Scott decision at length, and
made an elaborate eulogy of Chief Justice Taney. In the course
of his remarks, he said: “There are many men, the equals of
the honorable Senator, to say the least, intellectually, who
think that that decision was anything but an outrage.… We
have an interest, jurisprudence has an interest, justice has
an interest, the nation has an interest, in maintaining the
character of that tribunal against all unjust reproach. It is
no light thing to pronounce a decision given by such a tribunal
as that as a disgrace.… I cannot, therefore, stand still and
hear a tribunal like that assailed, as I think unnecessarily,
by anybody, and particularly by the honorable member from
Massachusetts.”
Mr. Sumner replied:--
MR. PRESIDENT,--The multiplication table tells us that two and two
make four. Now, if a tribunal honored like the Supreme Court should
undertake to declare that two and two make five, and a Senator
as distinguished as the Senator from Maryland should uphold the
high tribunal in its decision, I am not satisfied that it would be
presumptuous in me to call that decision in question. But the Dred
Scott decision was as absurd and irrational as such a reversal of the
multiplication table, besides shocking the moral sense of mankind. The
Senator will pardon the little scruple with which I denounce it. I
claim nothing for myself; I may be weak; but, according to the measure
of my abilities as God has given them to me, I enter a standing protest
against that atrocious judgment, which was false in law, and also false
in the history with which it sought to maintain its false law.
The Senator seems to imply that I am not familiar with the case. Sir,
I know it too well. I have read carefully the opinion of the Chief
Justice, which the Senator now vaunts, and I have read, also, the
opposing opinions, by the side of which that much vaunted opinion is
dwarfed into the pettiness proper to a production in such a cause,
ignoble in character, and impotent except in that little brief
authority incident to judicial rank. The Senator pleads for this
judgment in the name of jurisprudence, of justice, and of the nation.
Sir, by the same title I denounce it,--in the name of jurisprudence,
which it disgraces, of justice, which it denies, and of the nation it
has offended.
Among the influences and agencies that helped forward the present
Rebellion, and set fellow-citizens in bloody conflict with each other,
the Dred Scott decision must always be held in dismal memory. It gave
conspirators new confidence. It filled patriots for a while with
despair. It became the platform of Slavery, whose tyrannical behests
would have triumphed, had this decision been allowed to prevail. Hating
the Rebellion in its origin and all the circumstances that nursed it
into wicked being, we must hate this decision.
But the Senator wandered into eulogy of that old Supreme Court, now
departed, when Marshall was Chief Justice, and from the past claimed
consideration for the present. Sir, I have been no careless student of
that court in its great and palmy days. I know the learning, wisdom,
and ability of its judgments, and am proud that there are such pages in
the jurisprudence of my country. My sentiments toward the court of that
day are warmed, also, by personal experience. It is among the cherished
reminiscences of early life, that I was privileged to know, as a youth
might know, the illustrious magistrate whom the Senator praises so
well. He received me at his table, and allowed me to accompany him in
his morning walks to the court-room. He was a venerable character. But
I pray the Senator not to claim for the Dred Scott decision any of
the reverence justly belonging to his name. There is no question of
tribute to Chief Justice Marshall, or respect for the tribunal while he
presided over it. The Dred Scott decision is more noticed from contrast
with all that is good and great in the decisions of other days. It is
sad that the tribunal that had established such an authority among us
should do an act by which its authority has been endangered.
This whole debate is in the nature of a diversion or a deviation, and
therefore I bring it back to the precise point from which it started.
The Senator from Maryland invoked the Dred Scott decision as a reason
why Congress should not recognize colored persons as citizens. In reply
I simply asserted the right of Congress to interpret the Constitution
without constraint from the Supreme Court, and this I now repeat.
Each branch of the Government must interpret the Constitution for
itself, according to its own sense of obligation under the oath we have
all taken. And God forbid that Congress should consent to wear the
strait-jacket of the Dred Scott decision!
Mr. Johnson closed his reply by saying: “And without meaning
to offend the honorable member from Massachusetts, and with
all the personal regard which I feel for him, and recollecting
the courtesy that he has extended to me, and which I have
reciprocated from the bottom of my heart, I say to him, without
any purpose of offence, that, if I am obliged to act upon
the weight of authority upon all questions of Constitutional
Law, I shall prefer holding to the opinion of Taney than
holding to the opinion of the honorable member.” Mr. Hale,
of New Hampshire, after remarking that he differed from Mr.
Sumner, said: “I do not believe that I think any better of
that decision than he does. I think it was an outrage upon the
civilization of the age and a libel upon the law; but I do not
think it was a disgrace to the Supreme Court of the United
States.” [_Laughter._]
The bill passed,--Yeas 29, Nays 8.
* * * * *
The House of Representatives disagreed to the Senate amendment,
and a Committee of Conference was ordered, which reported
in its favor. But the House again disagreed, and, April
15th, another Committee of Conference was appointed, under
instructions, moved by Mr. Webster, of Maryland, “to agree
to no report that authorizes any other than _free white
male citizens_, and those who have declared their intention
to become such, to vote.” The vote of the House on these
instructions stood, Yeas 75, Nays 67. The Senate refused
a further conference upon the terms proposed, which were
abandoned by the House, and a conference without limitation was
agreed to. May 19th, the Conference Committee reported, in lieu
of the Senate amendment, the following clause: “All citizens of
the United States, and those who have declared their intention
to become such, and who are otherwise described and qualified
under the fifth section of the Act of Congress providing for a
temporary government for the Territory of Idaho, approved March
3, 1863.” The reference to the Idaho Act required explanation,
when the following dialogue took place.
MR. SUMNER. I should like to know the nature of the
substitute, if the Senator from Maine [Mr. MORRILL] will be
good enough to state it.
MR. MORRILL. I will state in a word that the effect of the
amendment of the Committee of Conference is to authorize
the temporary organization of the Government of Montana by
that class of persons that were authorized to organize the
Territory of Idaho.
MR. SUMNER. What class of persons was that?
MR. MORRILL. They were, as I recollect the qualification,
white citizens of the United States, and such others as
had declared their intention to become citizens. As it
now stands, the qualification in Montana will be that the
voters at the first election will be citizens of the United
States, and such as have declared their intention to be
citizens of the United States, and such as are qualified by
the fifth section of the Act organizing the Territory of
Idaho.
MR. SUMNER. That is, free white persons, I understand.
MR. MORRILL. That is what it comes to.…
MR. SUMNER. Is not the new proposition almost identical
with the original House proposition on the question of
color?
MR. MORRILL. On the question of the exclusion of colored
men it is identical. It does exclude colored men.
MR. SUMNER. I understand that the point of difference
between the two Houses was simply as to the word “white” or
“black.”
MR. MORRILL. That was the principal question, and on that
point I desire to say precisely how the Committee found the
question.…
MR. SUMNER. Then the proposition, as I understand it, is,
that the Senate shall abandon its position. Why so? Because
the House of Representatives will not abandon its position.
MR. MORRILL. No, Sir, the Senator will allow me: because
there did not seem to be any practical sense in adhering to
it; because to adhere to it defeated the bill; because to
adhere to it accomplished no earthly purpose, gave nobody
any right.
MR. SUMNER. For the other House to adhere on the other side
defeated the bill also.
MR. MORRILL. Yes.
MR. SUMNER. And the question is, Which shall adhere, the
side that is right or the side that is wrong?
MR. MORRILL. And that is the question the Committee submit
to the Senate.
MR. SUMNER. I hope the Senate will adhere to its original
position, and I believe that the assertion of that
principle at this moment is more important than the bill.
In the debate that ensued, Mr. Harlan said that he should
“vote against the report of the Committee, chiefly, however,
because he did not think there was a pressing necessity for
the organization of another Territory in that part of our
domain.” Mr. Sumner called attention to the Ordinance for the
organization of the Northwest Territory, and then said:--
It will be observed that in this Ordinance, to which we so often refer
as a commanding authority, there is no discrimination of color. Now
I ask if this is not a good precedent. Like the present bill, it was
applicable to a vast unsettled Territory. Senators may say that our
fathers, in the Ordinance, were not practical. I am not of that number.
Senators may say that our fathers, in the Declaration of Independence,
were not practical. I am not of that number. Senators may say that our
fathers, in the Constitution of the United States, which contains no
discrimination of color, were not practical. I am not of that number.
Sir, I believe that the authors of this Ordinance, and the authors of
the Declaration of Independence, and the authors of the Constitution
were eminently practical, when they excluded from those instruments
any discrimination of color. But it is said that there are no persons
in the new Territory to whom the principle is now applicable. This
can make no difference. It is something to declare a principle, and I
cannot hesitate to say that at this moment the principle is much more
important than the bill. The bill may be postponed, but the principle
must not be postponed.
MR. MORRILL. I will suggest to the Senator, if he will permit
me,--
MR. SUMNER. Certainly.
--that the statement I made about its applicability was this:
it is not by possibility applicable to any man of African
descent. There are some five or six thousand Indians, to whom
a bill in general phrase, without limitation of “white,” might
possibly apply; I do not say that it would apply to them in
this case.
MR. SUMNER. Practically, the subject-matter of this clause is not
Indians, but the well-known African race of this continent; and it
is proposed, by specious words wrapped up in a clause borrowed from
another bill, to exclude them from the right of suffrage in this
Territory; and the argument for this injustice, as my friend from New
Hampshire [Mr. HALE] has so ably stated, is only a reproduction of that
well-known ancient argument for Slavery in the Territories. How often
were we in those days compelled to encounter the charge that we were
not practical,--that we were urging a prohibition, when there was no
occasion for it! For myself, I believe you cannot too often assert a
prohibition of Slavery, nor too often assert human rights, wherever
they may be called in question; and especially do I believe in the
importance of such assertion when you are laying the foundations of a
new community. “Just as the twig is bent the tree’s inclined.” These
are familiar words of childhood. Would my friend from Maine have the
tree that he plants grow up with a generous and protecting shelter for
all mankind, or shall it be the bent and crabbed product of unhappy
prejudices which are only a growth of Slavery? I know my friend means
no such thing; but I insist that the policy he recommends tends to such
fatal end. For myself, Sir, I am satisfied with the Declaration of
Independence; I am satisfied with the Constitution on this important
subject; and, adopting the language of our Lieutenant-General in
the field, I desire to say, “I will fight on this line to the end,
even if it takes all summer.” There is no line better than that of
human rights. While fighting on that line, I cannot err; there is no
pertinacity too great; there is no ardor that is not respectable. I
thank General Grant for these words. They express his own steadfast
purpose, and we all thank him. But each, in his sphere, may make them
his own. I make them mine, wherever human rights are in question.
The report of the Conference Committee was adopted,--Yeas 26,
Nays 13. And so this first battle for colored suffrage was lost.
CLAIMS ON FRANCE FOR SPOLIATIONS OF AMERICAN COMMERCE PRIOR TO JULY 31,
1801.
REPORT IN THE SENATE, OF THE COMMITTEE ON FOREIGN RELATIONS, APRIL 4,
1864.
April 14th, the Senate, after debate, ordered three thousand
extra copies of this report,--Yeas 23, Nays 19. Mr. Reverdy
Johnson, while urging the extra copies, remarked: “The report
is quite an elaborate one, drawn up with all the fulness
which characterizes papers of this description prepared by
the Chairman of the Committee on Foreign Relations. He has
collected together, very accurately, I have no doubt, all the
facts connected with the claims. He has given the history
of the proceedings in Congress and the proceedings of the
Executive, and has examined very fully all the principles of
law applicable to the questions which the claims present.”
The same report was subsequently adopted by the Committee on
Foreign Relations, and printed by the Senate, March 12, 1867,
and also January 17, 1870.
The Committee on Foreign Relations, to whom were referred
numerous petitions and resolutions of State Legislatures,
taken from the files of the Senate, and also the petition of
sundry citizens of New York, presented at the present session,
asking just compensation for “individual” claims on France,
appropriated by the United States to obtain release from
important “national” obligations, have had the same under
consideration, and beg leave to report.
The welfare of the Republic requires that there should he an end of
“suits,” lest, while men are mortal, these should be immortal. Such
is a venerable maxim of the law, illustrated by the case before the
Committee. The present claims have outlived all the original sufferers,
and at least two generations of those who have so ably enforced them in
the Halls of Congress. Against their unwonted vitality death has not
been able to prevail.
CHARACTER OF THESE CLAIMS.
Of all claims in our history, these are most associated with great
events and great sacrifices. First in time, they are also first in
character, for they spring from the very cradle of the Republic and
the trials of its infancy. To comprehend them, you must know, first,
how independence was won, and, secondly, how, at a later day, peace
was assured. Other claims have been personal or litigious; these
are historic. Here were “individual” losses, felt at the time most
keenly, and constituting an unanswerable claim upon France, which,
at a critical moment, were employed by our Government, like a credit
or cash in hand, to purchase release from outstanding “national”
obligations, so that the whole country became at once trustee of
these sufferers, bound, of course, to gratitude for the means thus
contributed, but bound also to indemnify them against these losses.
And yet these sufferers, thus unique in situation, have been compelled
to see all other claims for foreign spoliations satisfied, while they
alone have been turned away. At the beginning of our history, our
plundered fellow-citizens obtained compensation to the amount of many
million dollars on account of British spoliations. Similar indemnities
have been obtained since from Spain, Naples, Denmark, Mexico, and the
South American states, while, by the famous Convention of 1831, France
contributed five million dollars to the satisfaction of spoliations
under the Continental system of Napoleon. Spain stipulated to pay for
every ship or cargo taken within Spanish waters, even by the French; so
that French spoliations on our commerce within Spanish waters have been
paid for, but French spoliations on our commerce elsewhere before 1800
are still unredeemed. Such has been the fortune of claimants the most
meritorious of all.
In all other cases there has been simply a claim for foreign
spoliations, but without superadded obligation on the part of our
Government. Here is a claim for foreign spoliations, the precise
counterpart of all other claims, but with superadded obligation, on
the part of our Government, in the nature of a debt, constituting an
_assumpsit_, or implied promise to pay; so that these sufferers are not
merely _claimants_ on account of French spoliations, but they are also
_creditors_ on account of a plain assumption by the National Government
of the undoubted liability of France. The appeal of these _creditor
claimants_ is enhanced beyond the pecuniary interests involved, when we
consider the nature of this assumption, and especially that in this way
our country obtained final release from embarrassing stipulations with
France contracted in the war for national independence. Regarding it,
therefore, as _debt_, it constitutes part of that sacred debt incurred
for national independence, and is the only part now outstanding and
unpaid.
PRELIMINARY OBJECTIONS.
Before proceeding to consider the nature of existing obligations on
the part of the United States, the Committee ask attention to three
objections which they encounter on the threshold: the first, founded
on the alleged antiquity of the original claims; the second, on the
alleged character of the actual possessors; and the third, on the
present condition of the country.
I.--CLAIMS ANCIENT, BUT NOT STALE.
It is said that the claims are ancient and stale, and therefore not
to be entertained. It is true that the claims are the most ancient
of any now pending, and that they date from the very origin of our
existence as a nation. But in this respect they do not differ from
a Revolutionary pension or a Revolutionary claim. Down to this day
there is a standing committee of the Senate, entitled “Committee on
Revolutionary Claims”; but if a claim traced to the Revolution must be
rejected for staleness, there can be little use for this committee. If
these claims, after uninterrupted sleep throughout the long intervening
period, were now for the first time revived, they might be obnoxious to
this imputation. But, as from the beginning of the century they have
occupied the attention of Congress, and been sustained by speeches,
reports, and votes, it is impossible to say that they have been allowed
to sleep.
The whole case was stated with admirable succinctness, as long ago as
1807, by Mr. Marion, of South Carolina, in the report of a committee of
the House of Representatives.
“From a mature consideration of the subject, and from the
best judgment your Committee have been able to form on the
case, _they are of opinion that this Government_, by expunging
the second article of our Convention with France of the 30th
September, 1800, _became bound to indemnify the memorialists
for those just claims_ which they otherwise would rightfully
have had on the Government of France, for the spoliations
committed on their commerce by the illegal captures made
by the cruisers and other armed vessels of that power, in
violation of the Law of Nations, and in breach of treaties
then existing between the two nations; which claims they
were, by the rejection of the said article of the Convention,
forever barred from preferring to the Government of France for
compensation.”[111]
Claims thus authoritatively stated at that early day cannot be overcome
by any sleep.
It is true that these claims were pressed with less constancy and
determination at the beginning of the century than at a later day. But
there are two sufficient reasons for the change. First, the evidence
on which they are founded was less generally known at the beginning
than afterward. It was only in 1826, under the administration of John
Quincy Adams, by the communication to Congress of the ample materials
accumulated in the Archives of State, that the true strength of the
case was fully revealed. Here, in one full volume, was the documentary
history of the whole double transaction,[112] showing at once the
original obligation of France, and the substituted obligation of the
United States, reinforced by the associations of our own Revolutionary
history. A more sufficient reason for this change is found in the
fact, that for some time in the early part of the century our country
was still laboring under pressure of the Revolutionary debt. As this
pressure was gradually removed, and the national resources became more
apparent, these claims were naturally urged with more confidence,
until, on the final extinction of that debt, they occupied the
attention of the best minds in both Houses of Congress.
No single question in our history has been the subject of such a
succession of able reports. Whether counted or weighed, these reports
are equally exceptional. They are no less than forty-one in number,
twenty-two in the Senate and nineteen in the House. Among the eminent
characters whose names they bear are Edward Livingston, John Holmes,
Edward Everett, Daniel Webster, Caleb Gushing, Charles J. Ingersoll,
John M. Clayton, and Rufus Choate. Out of the whole number only three
have been adverse,--one in the Senate and two in the House. But the
three adverse reports were evasive only, besides being prior to the
communication of the decisive evidence on the subject. The thirty-six
reports since that communication were all in favor of the claims.[113]
Resolutions in favor of these claims by thirteen States, being the
original number which declared independence, have been presented to
Congress between the years 1832 and 1858. Some States, not content with
one series, have repeated their resolutions, and accompanied them with
elaborate arguments. They all tend to the conclusion that it is the
duty of Congress, without further delay, to provide for these claims;
and Senators and Representatives are earnestly requested to use their
best exertions for an Act of Congress to carry this obligation into
effect.
Memorials and petitions from the beginning testify to the sleeplessness
of these claims. On the 5th of February, 1802, only forty-six days
after the promulgation of the Convention of 1800, they began, and
they have continued from that early day down to this very session of
Congress, making in all four thousand six hundred and two. Of these,
nineteen hundred and thirty-one were in the Senate, two thousand six
hundred and seventy-one in the House. They are chiefly from original
sufferers, their executors, administrators, assigns, widows, and
heirs, residing in the large seaports from which the despoiled vessels
originally sailed; but there are some from all parts of the country,
where, in the vicissitudes of life, the representatives of original
sufferers have been carried,--all of which may be seen in the list of
these petitioners.[114]
Two several times--once under President Polk, and again under President
Pierce--both Houses of Congress concurred in an act for the relief of
these claimants; but this tardy justice was arrested by Presidential
veto.
In the face of this constant succession of reports, resolutions of
State Legislatures, and petitions, constituting not only “continual
claim,” but continual recognition of the claim,--the whole crowned by
two several Acts of Congress,--it is impossible to infer negligence in
the claimants, or, indeed, any assumption of inordinate confidence.
They have had good reason to believe that they should be successful.
Under such circumstances, the lapse of time, sometimes urged against
them, becomes an argument in their favor; for it adds constantly
recurring testimony to their merits, besides a new title from the
disappointment to which they have been doomed. Claims beginning thus
early, and thus sustained, may be ancient, but they cannot be stale.
II.--POSSESSORS OF THE CLAIMS ARE NOT SPECULATORS.
A trivial remark, which is rather slur than objection, may justify
a moment’s attention. It is sometimes said that these claims are no
longer the property of the original sufferers or their representatives,
but that they have passed, like a fancy stock, into the hands of
speculators. This remark, if it had foundation in fact, has little
in equity. It would be hardly creditable for a government to take
advantage of its own procrastination, and refuse just compensation,
because the original sufferer had been compelled by unwelcome necessity
to discount his claims.
From the nature of the case, such claims, being unliquidated, do not
readily pass from hand to hand, but remain in the original custody, as
has become apparent in ample experience. Precisely the same reflection
was cast upon the claims against Spain, Denmark, and Naples,--and,
indeed, it is cast upon long outstanding claims generally, until
it has become a commonplace of sarcasm. The records of successive
Commissions which have liquidated foreign claims afford its best
refutation. In every case these Commissions required proof of property;
but the evidence disclosed that the original sufferers, or their legal
representatives, including heirs, executors, assignees of bankrupts,
persons having a lien for advances, or underwriters, possessing in
law and equity the same right as the original sufferers, were actual
possessors of the larger part. There is no reason to suppose that it
would be otherwise with the claims for French spoliations. On the
contrary, it is believed that they remain substantially unchanged,
except by legal inheritance.
The great speculator has been Death; for there are few of these claims
that have not passed through his hands. Such a transfer cannot draw
the title into doubt, especially when we consider the character of the
petitioners whose names are spread on the journals of Congress. It is
well known that in many families these claims still exist as heirlooms,
transmitted by ancestral care in full confidence that sooner or later
they will be recognized by the Government.
III.--PRESENT CONDITION OF THE COUNTRY NO REASON AGAINST PAYMENT OF
JUST DEBTS.
It is sometimes suggested, that, even assuming the meritorious
character of these claims, yet, in the present condition of the
country, they ought to be postponed. Looking at the practical
consequences of this suggestion, it will be found, that, though
plausible in _form_, it is fatal in _substance_. Any postponement must
inevitably throw these claims into direct competition with those now
accumulating on account of losses during the Rebellion, having in their
favor the swelling sympathies of our time. It is not unjust to human
nature, if the Committee say that the distant in time, like the distant
in space, is too often out of mind. If the earlier claims are just,
they should not be exposed to the hazards of any such competition, when
feeling will be stronger than reason. From the probability of future
claims, whose shadows already commence, the argument is strengthened
for the immediate satisfaction of those now existing, especially when
we consider their character and origin.
The resources of the people are tasked to put down the Rebellion which
Slavery has aroused. Let nothing be stinted. But there is another duty
not to be forgotten. _The just debts of the Republic must be paid_, to
the last dollar. Here, also, nothing must be stinted; and the glory of
the one will be kindred to the glory of the other. The Republic will
have new title to love at home and to honor abroad, when with one hand
it overcomes the Rebellion now menacing its existence, and with the
other does justice to ancient petitioners, long neglected, constituting
the only remaining creditors left to us from the War of Independence.
STATEMENT OF THE QUESTION.
Therefore, putting aside all preliminary objections from alleged
antiquity, from the character of the actual possessors, or from the
present condition of the country, the Committee insist that the present
obligations of the United States must be determined according to
principles of justice and the facts of the case. The hearing now is as
if there had been no lapse of time since the obligations accrued, and
as if no war now existed to task the country.
Is the money justly due? To answer this question, the subject must be
considered in detail, under several heads.
_First._ Claims of citizens of the United States against France,
founded on spoliations of our commerce, as seen in their origin and
history.
_Secondly._ Counter claims of France, founded on treaty stipulations
and services rendered in the War of Independence, also as seen in their
origin and history.
_Thirdly._ The Convention of 1800 and the reciprocal release of the two
Governments, by which the “individual” claims of the petitioners were
treated as a set-off to the “national” claims of France.
_Fourthly._ The assumption by our Government of the obligations of
France, so that the United States were substituted for France, and
became liable to these petitioners as France had been liable.
After considering these heads in their order, it will be proper to
review the objections alleged against the liability of the United
States: (1.) from the semi-hostile relations between France and the
United States anterior to the Convention; (2.) from payments under
the Louisiana Treaty; (3.) from payments under the Convention with
France in 1831; (4.) from the Act of Congress annulling the early
treaties with France; (5.) from the early efforts of our Government to
obtain from France the satisfaction of these claims; and (6.) from the
desperate character attributed to these claims at the time of their
abandonment.
The question of “just compensation” will present itself last: (1.) in
the advantages secured to the United States by the sacrifice of these
claims; (2.) in the value of the losses which the claimants suffered;
and (3.) in the recommendation of the Committee.
The subject is of such importance, from the magnitude of interests
involved, and from its historic character, that the minuteness of this
inquiry will not be regarded as superfluous.
I.
CLAIMS OF AMERICAN CITIZENS IN THEIR ORIGIN AND HISTORY.
The history of French spoliations on our commerce is a gloomy chapter,
where a friendly power, assuming the name of Republic, shows itself
fitful, passionate, and unjust. This conduct is more remarkable, when
it is considered, that, only a short time before, France, while yet
a kingdom, contributed treasure and blood to sustain our national
independence. And yet an explanation may be found in the extraordinary
temper of the times. By a generous uprising of the people the
kingdom was overthrown, and then, as the alarmed royalties of Europe
intervened, the head of the monarch was flung to them as a gage of
battle. The gage had been accepted in advance, and all those royalties,
by successive treaties, entered into coalition against France. The
fleets of England came tardily into the great contest, but their
presence gave to it a new character, and enveloped ocean as well as
land in its flames. The growing commerce of the United States suffered
from both sides, but especially from France, driven to frenzy by the
British attempt, in the exercise of belligerent rights, to starve a
whole nation.
French feelings were still further aroused against the United States,
when, instead of friendship and alliance, France was encountered by the
Proclamation of Neutrality launched by Washington on the 22d April,
1793, where he undertook, in behalf of the United States, to “adopt
and pursue a conduct friendly and impartial toward the belligerent
powers.”[115] Here, according to France, was a failure not only of
that proper sympathy due from us, but even of solemn duties pledged by
those early treaties which helped to secure the national independence.
This failure, which became afterward the occasion of counter claims,
contributed to the exasperations of the time.
An early apology, addressed to the American minister at Paris by
the French Government, attests the spoliations which had begun, and
discloses also their indefensible character, unless the common language
spoken by the English and ourselves was a sufficient excuse. Here are
the exact words:--
“We hope that the Government of the United States will
attribute to their true cause the abuses of which you complain,
as well as other violations of which our cruisers may render
themselves guilty in the course of the present war. _It must
perceive how difficult it is to contain within just limits the
indignation of our marines, and, in general, of all the French
patriots, against a people who speak the same language and
having the same habits as the free Americans._ The difficulty
of distinguishing our allies from our enemies has often been
the cause of offences committed on board your vessels; all that
the Administration could do is to order indemnification to
those who have suffered, and to punish the guilty.”[116]
Thus recklessly did these spoliations begin. The National Convention
associated itself with this injustice, when, on the 9th May, 1793,
only seventeen days after the Proclamation of Neutrality, but before
it had arrived in France, a retaliatory decree was issued in response
to the British attempt at starvation,--arresting all neutral vessels
laden with provisions and destined to an enemy port. The decree itself
did not disguise that it was a violation of neutral rights; but
the necessity of the hour was pleaded, _and indemnity was promised
to neutrals suffering by its operation_.[117] Unwilling to await
the dilatory performance of this promise, our minister at Paris
remonstrated against the application of the decree to vessels of the
United States. Amidst vacillations of the National Convention, which,
under the urgency of our minister, at one time seemed to relent, the
decree continued to be enforced against property of American citizens.
Here were spoliations, confessed at the time to be in violation of
neutral rights, which still rise in judgment.
As this intelligence reached the United States, our whole commerce
was fluttered. Merchants hesitated to expose ships and cargoes to
such cruel hazards. It was necessary that something should be done to
enlist again their activity. The National Government _came forward
voluntarily_, with assurance of protection and redress, in a circular
letter, dated 27th August, 1793, when Mr. Jefferson, the Secretary of
State, in the name of the President, used the following language: “I
have it in charge from the President to assure the merchants of the
United States concerned in foreign commerce or navigation, that due
attention will be paid to any injuries they may suffer on the high seas
or in foreign countries, contrary to the Law of Nations or to existing
treaties, and that, on their forwarding hither well-authenticated
evidence of the same, _proper proceedings will be adopted for their
relief_.”[118] This circular was confirmed by President Washington,
in his message of December 5, 1793, where he speaks as follows: “The
_vexations and spoliation_ understood to have been committed on our
vessels and commerce by the cruisers and officers of some of the
belligerent powers appeared to require attention. The proofs of these,
however, not having been brought forward, the description of citizens
supposed to have suffered were notified, that, on furnishing them to
the Executive, _due measures would be taken to obtain redress of the
past_ and more effectual provisions against the future.”[119] Here,
then, was a double promise from the National Government, and under
its encouragement our merchants resumed their commerce, venturing
once more upon the ocean. Their Government had tempted them, and, on
the occurrence of “injuries on the high seas,” these good citizens,
according to instructions, made haste to lodge with the Department of
State the “well-authenticated evidence of the same.” Their children and
grandchildren are waiting, even now, the promised redress.
Thus, at the very beginning, these spoliations were recognized by
both Governments in their true character. The National Convention,
even in its arbitrary edict, confessed them. The Administration of
Washington, in its solemn assurance of protection, also confessed them.
Offspring of wrongful violence in the heat of war, they were regarded
on both sides as indefensible. Ministers, in this respect, reflected
the sentiments of the two Governments. Fauchet, the French minister at
Philadelphia, in a communication to the Secretary of State, under date
of March 27, 1794, expressed himself in this manner: “If any of your
merchants have suffered any injury by the conduct of our privateers,
(a thing which would be contrary to the intention and express orders
of the Republic,) they may with confidence address themselves to the
French Government, which will never refuse justice to those whose
claims shall be legal.”[120] Mr. Morris, our minister at Paris, under
date of March 6, 1794, gave vent to his feelings: “These captures
create great confusion, _must produce much damage to mercantile men_,
and are a source of endless and well-founded complaint. Every post
brings me piles of letters about it from all quarters, and I see no
remedy.… In the mean time, if I would give way to the clamors of the
injured parties, I ought to make demands very like a declaration of
war.”[121] But M. Buchot, the French Commissioner of Foreign Relations,
addressed Mr. Morris the following soothing words, under date of July
5, 1794: “The sentiments of the Convention and of the Government
towards your fellow-citizens are too well known to you to leave a doubt
of _their dispositions to make good the losses which the circumstances
inseparable from a great revolution may have caused some American
navigators to experience_.”[122] Such was the testimony, at that day,
of ministers on both sides.
Meanwhile, Genet, the French minister, was recalled, at the instance
of President Washington, on account of presumptuous interference in
our affairs, especially hostile to the Proclamation of Neutrality; and
John Jay reached London to negotiate the treaty of 1794 which goes
under his name. The latter event added to the exasperation of France.
But Mr. Monroe, who took the place of Mr. Morris at Paris, was full
of sympathy for the new republic, even when he frankly discharged
his unpleasant duties. In a communication to the Committee of Public
Safety, under date of October 18, 1794, he exposed “a frightful picture
of difficulties and losses, equally injurious to both countries, and
which, if suffered to continue, will unavoidably interrupt for the
time the commercial intercourse between them.”[123] Notwithstanding
this strong language, his influence was thought to have prevailed so
far that President Washington ventured to announce, in a confidential
message of February 28, 1795, good news for our plundered merchants.
“It affords me,” he said, “the highest pleasure to inform Congress
that perfect harmony reigns between the two republics, _and that those
claims are in a train of being discussed with candor, and of being
amicably adjusted_.”[124] This perfect harmony was short-lived, and the
hopes flowering from it were nipped.
The rumor of Mr. Jay’s negotiations with England had already produced
uneasiness in France; but when the treaty, on its ratification, in
October, 1795, was finally divulged, there was an outburst against us.
The treaty was pronounced to be in violation of existing engagements
with France, and our whole policy was openly branded by the President
of the Directory, in reply to Mr. Monroe, as a “condescension of the
American Government to the wishes of its ancient tyrants.”[125] The
Directory refused to receive Charles Cotesworth Pinckney, sent by our
Government in place of James Monroe. Meanwhile, by a succession of
cruel edicts, it unleashed all its cruisers to despoil our commerce,
and cry havoc wherever they sailed. On the 2d July, 1796, it was
declared that “the French Republic will treat neutral vessels, either
as to confiscation, as to searches, or capture, _in the same manner
as they shall suffer the English to treat them_.”[126] The indefinite
terms of this edict were justly denounced by our Government, as “giving
scope for arbitrary constructions, and consequently for unlimited
oppression and vexation.”[127] These results were soon manifest. With
contagious injustice, the French commissioners at San Domingo reported
to the Government at home, “that, having found no resource in finance,
and knowing the unfriendly disposition of the Americans, and to avoid
perishing in distress, they had armed for cruising, and that already
eighty-seven cruisers were at sea, and that for three months preceding
the Administration had subsisted and individuals been enriched with
the products of those prizes.”[128] So extensively did this brutality
prevail, that it was announced that American vessels “no longer entered
the French ports, _unless carried in by force_.”[129]
This spirit of hostility broke forth in another edict of the
Directory, which became at once a universal scourge to American
commerce. This fulmination, bearing date March 2, 1797, after
enlarging the list of contraband, and ordaining other measures of
rigor, proceeds to declare all American vessels lawful prize, if
found without a _rôle d’équipage_, or _circumstantial list_ of the
crew:[130] all of which was in violation of existing treaties, and also
of American usage, which notoriously did not require, among a ship’s
papers, any such list. No edict was so comprehensive in its sweep;
for, as all our vessels were without this safeguard, they were all
defenceless. Numberless spoliations ensued, so absolutely lawless and
unjust that John Marshall did not hesitate to record of them in his
journal, under date of December 17, 1797, “The claims of the American
citizens for property captured and condemned for want of a _rôle
d’équipage_” constituted “_as complete a right as any individuals ever
possessed_.”[131] This right, thus complete, according to the judgment
of our great authority, enters into a large part of the claims still
pending before Congress.
As if to perfect this strange, eventful history, a third edict, at
once inhospitable and unjust, was launched by the Directory, January
18, 1798, prohibiting “every foreign vessel which in the course of her
voyage shall have entered into an English port from being admitted
into a port of the French Republic, except in case of necessity,” and,
still further, handing over to condemnation “every vessel found at sea
loaded in whole or in part with merchandise the production of England
or of her possessions.”[132] This edict was promptly denounced by the
American plenipotentiaries newly arrived at Paris. In earnest, vigorous
tones, they said that it invaded at the same time the interests and
the independence of neutral powers,--_that it took from them the
profits of an honest and lawful industry_, as well as the inestimable
privilege of conducting their own affairs as their own judgment might
direct,--and that acquiescence in it would establish a precedent for
national degradation, authorizing any measures power might be disposed
to practise.[133] Our plenipotentiaries depicted the spirit in which
French spoliations had their origin, and the humiliating consequences
of submission to the outrage; but the personal sufferers are, down to
this day, without redress.
Perplexed and indignant, the United States constituted a special
mission of three eminent citizens, Mr. Pinckney, Mr. Marshall, and Mr.
Gerry, who were charged to secure indemnity for these spoliations.
In his elaborate instructions, dated July 15, 1797, the Secretary of
State, Mr. Pickering, lays down the following rule of conduct: “In
respect to the depredations on our commerce, the principal objects
will be to agree on an equitable mode of examining and deciding
the claims of our citizens, and the manner and periods of making
them compensation.… The proposed mode of adjusting those claims, by
commissioners appointed on each side, is so perfectly fair, we cannot
imagine that it will be refused.” Although this reparation was not
made “an indispensable condition of the proposed treaty,” yet the
plenipotentiaries were enjoined “not to renounce these claims of our
citizens, _nor to stipulate that they be assumed by the United States
as a loan to the French Government_.”[134] Thus fully were these claims
recognized at the time by our Government, and most carefully placed
under the protection of our plenipotentiary triumvirate.
The triumvirate found the French Republic in no mood of justice.
Bonaparte was then triumphant at the head of the army of Italy, and
Talleyrand was exhibiting his remarkable powers at the head of the
foreign relations of France. Victory had given confidence, and the
exulting Republic was standing tiptoe, more disposed to strike than
negotiate, unless it could dictate, and implacable always towards
England and all supposed to sympathize with that power. After exactions
and humiliations hard to bear, the plenipotentiaries were compelled
to return home without any official reception by the intoxicated
Government to which they were accredited, but not before they had
encountered the masterly ability of Talleyrand, who, in reply to their
statement of the claims of the United States, presented the counter
claims of France. Though in Paris merely on sufferance, they had
unofficial interviews with various agents of the Republic, and even
with Talleyrand himself; but without dwelling on details not pertinent
to the occasion, it is enough to say, that, while refusing to offer
a loan or bribe, they were able to declare frankly “that France had
taken violently from America more than fifteen millions of dollars,
and treated us in every respect as enemies”;[135] and also to receive
from Talleyrand a concession, recorded in one of their despatches, that
“some of those claims were probably just,” with the inquiry, “whether,
if they were acknowledged by France, we could not give a credit as to
the payment,--say, for two years?”[136] Here again was an admission not
to be forgotten.
The return of our disappointed plenipotentiaries was aggravated by
circumstances which an eminent Continental writer has not hesitated
to brand as “unique in the annals of diplomacy.”[137] They had been
invited to contribute a _gratification_ of twelve hundred thousand
francs, and the whole desperate intrigue, conducted by persons known
in the correspondence as W, X, Y, Z, was unveiled to the world. The
country was indignant, and war seemed imminent. By various acts of
legislation Congress entered upon preparations, summoning Washington
from retirement to gird on his sword once more as Lieutenant-General.
The claims for French spoliations were never absent from mind. By
Act of the 28th May, 1798, public vessels of the United States were
authorized to capture all “armed vessels sailing under authority or
pretence of authority from the Republic of France,” “_which shall
have committed_, or which shall be found hovering on the coasts of
the United States for the purpose of committing, _depredations on
the vessels belonging to citizens thereof_”; and this statute was
introduced by a preamble asserting “_depredations on the commerce
of the United States_, … in violation of the Law of Nations and
treaties between the United States and the French nation.” By Act of
June 13, 1798, all commercial intercourse was suspended between the
United States and France, until “the Government of France … shall
clearly disavow, and shall be found to refrain from, _the aggressions,
depredations, and hostilities which have been and are by them
encouraged and maintained against the vessels and other property of
the citizens of the United States_.” By Act of June 25, 1798, merchant
vessels of the United States were authorized to resist search or
seizure by any French armed vessel, to repel assaults, and to capture
the aggressors, until “the Government of France … shall disavow, and
shall cause the commanders and crews of all armed French vessels _to
refrain from, the lawless depredations and outrages hitherto encouraged
and authorized by that Government against the merchant vessels of the
United States_.” By Act of July 7, 1798, the treaties with France were
declared to be no longer obligatory on the United States; and this
statute was introduced by a preamble asserting that “_the just claims
of the United States for reparation of injuries_ have been refused, and
their attempts to negotiate an amicable adjustment of all complaints
between the two nations have been repelled with indignity.” Thus, by
express words, in repeated acts, did Congress recognize these claims.
By such vigorous measures were the rights of these claimants asserted,
while the country assumed an attitude of defence. The French Directory
became less intolerable, and negotiations were invited again, with
assurance that the former rudeness should not be renewed. John Adams
was President, and for the sake of peace he seized the opportunity of
this overture, by appointing Chief Justice Ellsworth, Patrick Henry,
and William Vans Murray as a second plenipotentiary triumvirate to
France. As Mr. Henry declined, Mr. Davie, of North Carolina, was
substituted in his place. In adjusting the instructions President Adams
himself took a personal part, as appears by a letter to the Secretary
of State, where he says: “The principal points, _indeed all the
points_, of the negotiation were so minutely considered and _approved
by me and all the heads of department_ that nothing remains but to
put them into form and dress: this service I pray you to perform as
promptly as possible.”[138] But “all the points” were three only: 1st,
Indemnity for spoliations of American commerce; 2d, The unquestionable
wrong of seizing American vessels for want of the paper known to
French law as _rôle d’équipage_; 3d, The refusal to renew the treaty
guaranty of the French West Indies. Such were the _ultimata_ originally
settled by the President and his cabinet on the 11th of March, 1799,
and afterwards fully developed in the elaborate instructions of Mr.
Pickering, dated 22d October, 1799, which, after announcing that “the
conduct of the French Republic would well have justified an immediate
declaration of war on the part of the United States,” proceeded to
declare, as the first point, that the plenipotentiaries, “_at the
opening of the negotiation_, will inform the French ministers that the
United States expect from France, _as an indispensable condition of the
treaty_, a stipulation to make to the citizens of the United States
_full compensation for all losses and damages_ which they shall have
sustained by reason of irregular or illegal captures or condemnations
of their vessels and other property.” And the instructions end, as
they began, by declaring, first among the terms, “that an article be
inserted for establishing a board with suitable powers to hear and
determine the claims of our citizens, _and binding France to pay or
secure payment of the sums which shall be awarded_.”[139] Observe the
positiveness of the assertion.
These instructions attest the interest of our Government. Placed first
among the _ultimata_ adopted in the councils of President Adams, these
indemnities were placed first in the diplomatic instructions. There is
yet other evidence of the character and amount of the spoliations. The
Secretary of State, in a report to Congress, dated January 18, 1799,
after attributing them to French feeling on account of the British
treaty, proceeds to characterize them in remarkable words: “Yet that
treaty had been made by the French Government its chief pretence for
those unjust and cruel depredations on American commerce which have
brought distress on multitudes and ruin on many of our citizens, and
occasioned _a total loss of property to the United States of probably
more than twenty millions of dollars_.”[140] Such were the outrages for
which our plenipotentiaries were to seek redress.
The Directory had ceased; but on reaching Paris the plenipotentiaries
were cordially received by Talleyrand, the citizen minister of Foreign
Affairs, who without delay presented them to the First Consul as he
was about to mount for that wonderful campaign which, opening with the
passage of the Alps, closed at Marengo. Negotiations commenced at once,
Joseph Bonaparte, elder brother of the First Consul, and afterward King
of Spain, being at the head of the commission on the part of France.
“Appreciating,” as they announced, “the value of time,” the American
plenipotentiaries, in a brief note, on the 7th of April,--the very day
when the exchange of powers was completed,--proposed “an arrangement
_to ascertain and discharge the equitable claims of the citizens_ of
either nation upon the other, whether founded on contract, treaty,
or the Law of Nations”; all of which was to be done in order “to
satisfy the demands of justice, and render a reconciliation cordial
and permanent.”[141] Thus instantly were these claims presented. The
French plenipotentiaries in their prompt reply admitted that “_the
first object_ of the negotiation ought to be the determination of the
regulations, and the steps to be followed, for _the estimation and
indemnification of injuries for which either nation may make claim for
itself_ or for any of its citizens.”[142] Here was the suggestion of
claims, not only “individual,” but also “national,” under which loomed
the counter claims of France.
The American plenipotentiaries, while professing to be free from
“apprehension of an unfavorable _balance_,” protested against the
consideration of any “national” claims until some “convenient
stage of the negotiation, after it shall be seen what arrangement
would be acceptable for _the claims of citizens_.”[143] The French
plenipotentiaries rejoined by enforcing “national” as well as
“individual” claims.[144] The issue seemed to be made. On the one side
were the “individual” claims of American citizens, on the other side
the “national” claims of France. The American plenipotentiaries were
not authorized to recognize the “national” claims alone. The French
plenipotentiaries were not authorized to recognize the “individual”
claims, without a previous recognition on our part of the “national”
claims. At last, after various efforts at harmony, it was officially
announced that “the negotiation was at a stand on the part of France,”
as her plenipotentiaries were constrained by instructions of the First
Consul to make “the acknowledgment of former treaties the basis of
negotiation _and the condition of compensation_.”[145] The First Consul
was then on the Italian slope of the Alps, about to pounce upon the
astonished Austrians. Claims and counter claims were of little concern
to him.
Thus far the Committee have exhibited our claims in their origin and
history. The time has come to change the scene, and to exhibit those
counter claims which played such part in the successive negotiations,
and finally produced that memorable _dead-lock_, when the two powers
stood face to face with antagonist pretensions, unable to go forward,
and unwilling to go backward.
II.
COUNTER CLAIMS OF FRANCE, THEIR ORIGIN AND HISTORY.
The counter claims of France differ widely from the claims of American
citizens. They were not “individual,” but “national,” being founded
on alleged violations of treaty stipulations assumed by the United
States in return for the aid of France in the establishment of national
independence. During the protracted controversy between the two
republics they were detailed in numerous official notes; but they were
brandished by Talleyrand, with offensive skill and effect, in the very
faces of our insulted plenipotentiaries, under date of March 18, 1798,
when, while driving them from Paris, he insisted “_that the priority of
grievances and complaints belonged to the French Republic_,” and “that
these complaints and these grievances were as real as numerous, long
before the United States had the least grounded claim to make.”[146]
Careful inquiry enables us to see that this allegation, thus
confidently uttered, was not without a certain foundation; and here we
revert to the history of our country.
The triumph with which the War of Independence happily ended came
tardily, after seven years of battle, suffering, and exhaustion; but
it was hastened, if not assured, by the generous alliance of France.
From Bunker Hill to Saratoga the war was checkered with gloom, which
even the surrender of Burgoyne did not suffice to dispel. Then came
the dreary winter of Valley Forge, when soldiers of Washington, after
treading the snows barefoot, were obliged, for want of blankets,
to huddle all night by the fires, and even the stout heart of the
commander-in-chief bent so far as to announce, in formal letter to
Congress, that, “unless some great and capital change suddenly takes
place, the army must inevitably be reduced to one or other of these
three things,--starve, dissolve, or disperse.”[147] But the scene
changed with the glad tidings that France, by solemn treaty, signed
by Franklin, February 6, 1778, had bound herself to “guaranty to the
United States their liberty, sovereignty, and independence, absolute
and unlimited.” The camp broke forth with the mingled joy of soldier
and patriot, as it turned gratefully to Lafayette, already by the side
of Washington, glorious forerunner of armies and navies promised to our
cause. Congress took up the strain, and, by unanimous vote, ratified
the treaty which opened to our country the gates of the Future.
It is difficult to estimate the value of this treaty in money,
especially when we consider its consequences. According to the report
of Calonne, the French Minister of Finance, the war which ensued in
the support of this guaranty cost France fourteen hundred and forty
millions of francs, or about two hundred and eighty millions of
dollars. But French blood, more costly than money, was shed on land and
sea in the same cause, until at last the army of Cornwallis surrendered
at Yorktown to the allied forces of Rochambeau and Washington, and the
war closed by the recognition of our national independence. If liberty
be priceless, if life be priceless, then was the aid lavished by France
infinite beyond calculation.
The engagements were not all on the side of France. Beyond gratitude
due for this powerful alliance, were express obligations solemnly
assumed by the United States, not only in the Treaty of Alliance,
but also in the Treaty of Amity and Commerce negotiated on the same
day. These obligations, constituting the consideration of the weighty
contract, were of two classes: first, a guaranty by the United States
of the possessions of France in America; and, secondly, important
privileges for the armed ships of France, with a promise of American
convoy to French commerce.
1. The terms of the guaranty are as follows:--
“The two parties guaranty, _mutually_, from the present time
_and forever_, against all other powers, to wit: The United
States to His Most Christian Majesty, _the present possessions
of the crown of France in America_, as well as those which
it may acquire by the future treaty of peace; and His Most
Christian Majesty guaranties, on his part, to the United
States, _their liberty_, _sovereignty_, _and independence,
absolute and unlimited_, as well in matters of government as
commerce, and also their possessions, and the additions or
conquests that their Confederation may obtain during the war
from any of the dominions now or heretofore possessed by Great
Britain in North America.”[148]
To fix more precisely the sense of this article, it was further
stipulated, that,--
“_In case of a rupture_ between France and England, the
reciprocal guaranty shall have its full force and effect the
moment such war shall break out; and if such rupture shall
not take place, the mutual obligations of the said guaranty
shall not commence until the moment of the cessation of the
present war between the United States and England shall have
ascertained their possessions.”[149]
The possessions of France in America at this date were the islands
of San Domingo, Martinique, Guadeloupe, St. Lucia, St. Bartholomew,
Deseada, Mariegalante, St. Pierre, Miquelon, and, on the main-land,
Cayenne,--each and all of which the United States guarantied to France
_forever_, being a _continuing guaranty_, so far as this term of law
is applicable to an international transaction, which, beginning “in
case of a rupture between France and England,” was operative after “the
cessation of the present war between the United States and England,”
and was to continue “forever.”
The terms of the “guaranty” are general, and it was “forever.” Even if
limited to _defensive_ war, it would be difficult to say that France
was not engaged in such a war, with the added incident that it was
a war by a combination of kings to overcome a republic. France was
alone, with the royalties of Europe embattled against her. Only after
the execution of the King England joined this array, lending to it
invincible navies. But, according to official avowals, it was what King
George called “the atrocious act recently perpetrated at Paris”[150]
that finally prompted the part she undertook, and her real object, in
the language of Mr. Fox, was no other than “the destruction of the
internal Government of France.”[151] The case was unprecedented; but
it is difficult to say that it did not come under the “guaranty.” The
_casus fœderis_ had occurred. If France did not exact performance,
that is no reason why our obligations should be disowned, when, at the
present moment, we are trying to arrive at some appreciation of their
extent. A careful examination of the treaty shows that the “guaranty”
became primarily obligatory on the occurrence of _a rupture between
France and England_. Nothing is said or suggested as to the character
of the war, whether offensive or defensive. It is enough that there
was “a rupture.” In such a case, the “guaranty,” according to the
illustration of Cicero, was, _tanquam gladius in vagina_, at the
disposal of France. Our Secretary of State, even while seeking to limit
its application, seems to have seen it prospectively in this light,
when, in his instructions of July 15, 1797, to our plenipotentiaries,
Messrs. Pinckney, Marshall, and Gerry, he said, “Our guaranty of the
possessions of France in America will perpetually expose us to the
risk and expense of war, or to disputes and questions concerning our
national faith.”[152]
2. The Treaty of Amity and Commerce contained a succession of
mutual stipulations, by which the United States undertook,--_first_,
to protect and defend by their ships of war, or convoy, any or all
vessels belonging to French subjects, so long as they hold the same
course, “against all attacks, force, and violence, in the same manner
as they ought to protect and defend” the vessels of citizens of the
United States;[153] _secondly_, to open their ports to French ships
of war and privateers with their prizes, and to close them against
those of any power at war with France, except when driven by stress of
weather, and then “all proper means shall be vigorously used that they
go out and retire from thence as soon as possible”;[154] _thirdly_,
according to French construction, to allow French privateers “to fit
their ships, to sell what they have taken, or in any other manner
whatsoever to exchange their ships, merchandise, or any other lading,”
while privateers in enmity with France are forbidden even to victual
in ports of the United States.[155] As if to round and complete these
engagements, it was further stipulated on the part of the United
States, in a Consular Convention, which, after many perplexities of
diplomacy baffling the tried skill of Franklin, was finally signed by
Mr. Jefferson, in 1788, as a postscript to the earlier treaties, that
French consuls and vice-consuls in the United States should have power
and jurisdiction on board French vessels in civil matters, with the
entire inspection over such vessels, their crews, and the changes and
substitutions there to be made.[156]
Such, briefly recited, were the solemn engagements of the United
States, sanctioned by treaties, as the price of independence. So
long as France remained at peace with all the world, especially with
Great Britain, these engagements slept unnoticed, but ready, at the
first blast of war, to spring into life. At length the blast was
heard, perhaps as never before in human history, echoing from capital
to capital, and sounding a crusade of monarchical Europe against
republican France. Of all the foreign ministers at Paris, the minister
of the United States alone remained: the rest had fled.
The minister of the United States saw the danger lowering upon his own
country. In a letter to the Secretary of State, dated December 21,
1792, after presenting a rapid sketch of the rising of Europe against
France, he adds: “The circumstance of a war with Britain becomes
important to us in more cases than one”; and he then alludes to “the
question respecting the _guaranty_ of American possessions, especially
if France should attempt to defend her islands.”[157] Notoriously,
Gouverneur Morris sympathized little with the French Republic, but,
against all arguments for non-compliance with our original engagements,
because the Government with which they were made had ceased to exist,
his sensitive nature broke forth in the “wish that all our treaties,
however onerous, may be strictly fulfilled according to their true
intent and meaning,” which he followed in language foreign to the
phrases of diplomacy, by picturing “the honest nation as that which,
like the honest man,
‘Hath to its plighted faith and vow forever firmly stood;
And though it promised to its loss, yet makes that promise good.’”[158]
In harmony with this exclamation of the plenipotentiary are the words
of Vattel, an authority much quoted at the time: “To refuse an ally the
succors we owe him, without any good ground of dispensation, is doing
him an injury, … and there being a natural obligation to repair the
damage caused by our fault, and especially by our injustice, we are
bound to indemnify an ally for all the losses he may have sustained
from our unjust refusal.”[159]
Since the signature of the treaties times had changed, and men had
changed with them. There was no bad faith on either side, in the
ordinary sense of the term, but intervening events and exigencies
of self-defence had driven each into unexpected inconsistencies of
conduct. If on one side there was neglect of original engagements,
there was on the other equal neglect of international duties. The
tornado in mad career uprooted old landmarks, and each was striving
to find new lines of reciprocal relations. Franklin, signing the
“guaranty,” did not expect so soon to call down upon his country the
lightnings of an embattled world; nor did France, while formally
conceding neutral rights on the ocean and assuring our national
independence, expect so soon to become the plunderer of our commerce.
But the great tragedy would have been less complete, if its domineering
Nemesis had suffered the two republics to dwell in harmony together.
They were whirled, on each side, into those questionable acts out of
which have sprung the claims and counter-claims now under consideration.
A new French minister was at hand, accredited to President Washington,
with fresh instructions. Differences on the obligations of the guaranty
appeared in the Cabinet,--some holding that no necessity for decision
existed, as France had made no demand,--and others, that, the Treaty of
Alliance being plainly defensive, the guaranty did not apply to a war
begun by France. After ample discussion, the Proclamation of Neutrality
was adopted, April 22, 1793, destined to become a turning-point in our
history. Chief Justice Marshall, whose opportunities of information
were unquestionable, lets us know that the Proclamation “was intended
to prevent the French minister from demanding _the performance of the
guaranty contained in the Treaty of Alliance_.”[160] But before the
Proclamation reached France, orders were issued there for the capture
and confiscation of enemy goods on board neutral vessels; whereas it
was stipulated with the United States that free ships should make free
goods; so that, even if the denial of the guaranty was wrong, and the
Proclamation, according to French accusation, “insidious,” the United
States were not the first to offend.
On the day of the Proclamation came news by the journals that Genet,
the new French minister, had landed in South Carolina, where, amid
the darkest days of the Revolution, Lafayette had also first landed.
Full of conviction that France had only to make herself heard in
order to be sustained, Genet exalted himself conspicuously above the
Government. By instructions from the Executive Council of the French
Republic, dated 17th of January, 1793, he was enjoined “to penetrate
profoundly the sense of the treaties of 1778, and to watch over the
articles favorable to the commerce and navigation of the United States,
and to make the Americans consider engagements which might appear
onerous _as the just price of the independence which the French nation
had secured to them_.” Not content with existing safeguards, the new
minister was to negotiate a supplementary treaty, to fix more surely
“the _reciprocal guaranty_ of the possessions of the two powers.”[161]
In this spirit he commenced a turbulent career, charging offensively
that the President, before knowing what the minister had to communicate
from the French Republic, was in a hurry “to proclaim sentiments on
which decency and friendship should at least have drawn a veil,”--that
he “took on himself to give to our treaties arbitrary interpretations
absolutely contrary to their true sense,” and that “he left no other
indemnification to France for the blood she spilt, for the treasure she
dissipated, in fighting for the independence of the United States, but
the illusory advantage of bringing into their ports the prizes made on
their enemies without being able to sell them,”--and that the Secretary
of War, on his communication of the wish of the Windward Islands “to
receive promptly some fire-arms and some cannon, which might put into
a state of defence _possessions guarantied by the United States_, had
the front to answer, with an ironical carelessness, that the principles
established by the President did not permit him to lend so much as a
pistol.”[162] In another letter, the French minister, under date of
June 8, 1793, requires that “the Federal Government should observe the
public engagements contracted, and give to the world the example of a
true neutrality, which does not consist in the cowardly abandonment
of friends at the moment when danger menaces.”[163] And in still
another letter, dated June 22, 1793, he declares that “it is in the
conventional compacts, collectively, that we ought to seek contracts
of alliance and of commerce simultaneously made, if we wish to take
their sense and interpret faithfully the intentions of the people who
cemented them, and of the men of genius who dictated them.”[164] All
of which was followed by another letter, dated November 14, 1793, in
which the minister says categorically: “I beg you to lay before the
President of the United States, as soon as possible, the decree and the
inclosed note, and to obtain from him the earliest decision, _either as
to the guaranty I have claimed the fulfilment of for our colonies_, or
upon the mode of negotiation of the new treaty I was charged to propose
to the United States, and which would make of the two nations but one
family.”[165] At last Genet was recalled, but the question of our
engagements with France could not be dismissed. It was more menacing
than any minister. Without it all the turbulence of Genet would have
been as the idle wind.
And yet, for a while, each party seems to have practised a certain
reserve. Genet stormed, but the Government at home was tranquil. The
“guaranty” was suspended, even in discussion. France forbore to press
it, and the United States were happy to avoid the over-shadowing
question. The Secretary of State, in instructions to Mr. Monroe, dated
June 10, 1794, while “insisting upon compensation for the captures
and spoliations of our property and injuries to the persons of our
citizens by French cruisers,” was careful to add: “If the execution
of the _guaranty_ of the French islands by force of arms should be
propounded, you will refer the Republic of France to this side of
the water.”[166] Mr. Monroe, in his correspondence, under date of
September 15, 1794, says: “This Republic had declined calling on us
to execute the guaranty, from a spirit of magnanimity, and strong
attachment to our welfare”; but he reveals his anxiety lest an attempt
to press our case “might give birth to sentiments of a different
kind, and _create a disposition to call on us to execute that of the
Treaty of Alliance_.”[167] In another letter, dated November 7, 1794,
describing an interview with the very able Diplomatic Committee, our
plenipotentiary confesses the embarrassment he encountered, when M.
Merlin three times asked, “Do you insist upon _our_ executing the
treaty?” and he gives his reply, that he “was not instructed by the
President to insist on it, nor did he insist on it”; and he avows that
in his opinion such insistence would have been impolitic, as “exciting
a disposition to press us on other points, _upon which it were better
to avoid any discussion_.”[168] There is other testimony of this
nature, unnecessary to produce. Suffice it to say, that for some time
there was a lull, soon to be followed by a storm.
French forbearance is more remarkable, when it is considered that
the occasion for the “guaranty” had begun to be urgent. Even before
Howe’s great victory of June, over the French fleet, the British navy
swept the sea, rendering all French possessions insecure. Martinique,
San Domingo, St. Lucia, and Guadeloupe were lost to the Republic in
the spring of 1794, so that the British historian has written: “Thus,
in little more than a month, the French were entirely dispossessed of
their West India possessions, with hardly any loss to the victorious
nation.”[169] But the “guaranty” was invoked by the impatient
colonists, who, without waiting the slower movement of the French
Republic, appealed directly to our Congress for “divers necessary
succors, of provision, ammunition, and even men,” and in impassioned
language pictured “England come to take possession of the French
colonies in the name of a king without dominions, and North America,
witness to that political perfidy, not able to lend a helping hand
against an unworthy treachery.”[170] The French Government at home
did not share the fury of the colonists. According to Mr. Monroe, in
his letter of December 2, 1794, whatever may have been their desires
at a previous stage, they did not now wish us to “embark with them
in the war,” but “would rather we would not, from an idea it might
diminish their supplies from America,” and “if the point depended on
them, they would leave us to act in that respect according to our own
wishes”; at the same time they looked to us for “aid in the article
of money.”[171] This moderation, although a temporary waiver, was in
no respect a renunciation of rights. According to Mr. Jefferson, in a
letter written some months after his retirement from the Cabinet, and
addressed to Mr. Madison, under date of April 3, 1794, the “guaranty”
was still obligatory. “As to the guaranty of the French islands,” he
wrote, “whatever doubts may be entertained of the moment at which we
ought to interpose, yet _I have no doubt but that we ought to interpose
at a proper time_, and declare both to England and France that these
islands are to rest with France, and that we will make _a common cause_
with the latter for that object.”[172] Such was American testimony.
The West India islands were lost without causing an apparent smart
at home; but it was different, when the news came of Mr. Jay’s
negotiation in England. The Republic was stung to the quick, and,
when the treaty became known, did not conceal its indignant anger.
In a formal note, dated March 9, 1796, it set forth its complaints,
dwelling especially upon the “inexecution of the treaties,” and upon
the formation of the recent treaty with Great Britain, in which the
United States “knowingly and evidently sacrificed their connections
with the Republic.”[173] In conversation with Mr. Monroe, the French
minister said “that France had much cause of complaint against us,
independently of our treaty with England, but that by this treaty
ours with them was annihilated.”[174] The year closed with the recall
of Mr. Monroe, and with a notice from the French Government “that
it will no longer recognize nor receive a Minister Plenipotentiary
from the United States, _until after a reparation of the grievances
demanded of the American Government_, and which the French Republic
has a right to expect”; and then, adding ingratitude to the list of
our offences, it declared an equal expectation “that the successors of
Columbus, Raleigh, and Penn, always proud of their liberty, will never
forget that _they owe it to France_.”[175] Meanwhile, M. Adet, the
French plenipotentiary in Philadelphia, was addressing our Government
in similar strain, calling for the discharge of our engagements, and
heaping reproaches: “The undersigned, Minister Plenipotentiary of the
French Republic, now fulfils to the Secretary of State of the United
States a painful, but sacred duty. _He claims, in the name of American
honor, in the name of the faith of treaties, the execution of that
contract which assured to the United States their existence_, and which
France regarded as the pledge of the most sacred union between two
people the freest upon earth.” And he charges the Government of the
United States with “sacrificing France to her enemies,” “forgetting the
services that she had rendered it,” and “throwing aside the duty of
gratitude, as if ingratitude was a Governmental duty.”[176] From this
time forward the claims of the United States never failed to encounter
the counter-claims of France.
The mutual coquetry which characterized the two Governments during the
mission of Mr. Monroe gave way to mutual recrimination and repulsion,
where France took the lead. M. Adet was recalled from Philadelphia.
Mr. Pinckney was sent away from Paris. Besides the earlier decree,
announcing that the Republic would treat all neutrals in the same
manner as they suffered the English to treat them, other fatal
blows were now dealt at our commerce, letting loose a new brood of
spoliations destined to swell the catalogue of our claims, by a decree
pronouncing the stipulations of the treaty of 1778 which concerned the
neutrality of the flags altered and suspended in their most essential
points by the treaty with England, greatly enlarging the list of
contraband, declaring Americans in the service of England pirates,
and authorizing the seizure of all American vessels without a _rôle
d’équipage_, which, notoriously, no American vessel ever carried, so
that practically our flag was delivered over to the depredations of
every French cruiser.[177]
Then came that plenipotentiary triumvirate, Messrs. Pinckney,
Marshall, and Gerry, who were particularly instructed by our
Government, while urging the multiplied claims of our citizens,
already valued at “more than twenty millions of dollars,” to propose
“a substitute for the reciprocal guaranty,” or, “if France insists on
the mutual guaranty, to aim at some modification of it,”--“instead of
troops or ships of war, to stipulate for a moderate sum of money or
quantity of provisions, at the option of France: the provisions to be
delivered at our own ports, in any future _defensive_ wars; the sum of
money, or its value in provisions, not to exceed two hundred thousand
dollars a year, during any such wars.”[178] Here was recognition of
the “guaranty,” and a sum offered for release from its requirements.
But the French Republic, drunk with triumph and maddened with anger,
was in no mood for negotiation. It met our plenipotentiaries with an
intrigue already mentioned as unparalleled in diplomacy, and, after
tolerating their presence for a while at Paris, without conceding an
official reception, sent them away, disappointed and dishonored. Even
in the informal relations which were permitted, Talleyrand, in the
name of the Republic, advanced and vindicated the counter-claims of
France. Without dwelling at length on his argument, it is enough to
quote certain words in a letter to Mr. Gerry, of June 10, 1798: “_The
French Republic desires to be restored to the rights which its treaties
with your Republic confer upon it, and through those means it desires
to assure yours. You claim indemnities; it equally demands them_; and
this disposition, being as sincere on the part of the Government of
the United States as it is on its part, will speedily remove all the
difficulties.”[179] Thus plainly was the case stated. It was not denied
that indemnities were due to the United States, but it was insisted
that they were also due to France.
The two countries, once allies, were now in the most painful
relations. Washington was no longer President; but his Farewell
Address, in some of its most important parts, was evidently inspired
by the counter-claims of France, especially when he warned his
fellow-countrymen “to steer clear of _permanent alliances_ with any
portion of the foreign world, _so far as we are now at liberty to do
it_,”--“to have with foreign nations as little _political_ connection
as possible,”--“to be constantly awake against the insidious wiles of
foreign influence,”--and then asked in well-known words, “Why quit our
own, to stand upon foreign ground? Why, by _interweaving our destiny
with that of any part of Europe_, entangle our peace and prosperity
in the toils of European ambition, rivalship, interest, humor, or
caprice?”[180] In these remarkable words, where the same tone, if not
the same lesson, recurs, we discern the undissembled anxieties of
the hour. By the guaranty and other stipulations of 1778, our peace
and prosperity had been entangled, even if our destiny had not been
interwoven, in distant toils. France was urgent and brutal. War seemed
impending. At last another triumvirate of plenipotentiaries, Messrs.
Ellsworth, Davie, and Murray, was commissioned to attempt again the
adjustment of complications that had thus far baffled the wisdom of
Washington; but compensation for the “individual” claims of American
citizens was required as an indispensable condition.
Such are the counter-claims of France in origin and history. And now
again we are brought to the very point where the Committee had arrived
in exhibiting the claims of our citizens. The plenipotentiaries on each
side have met to negotiate, while the First Consul has gone to Marengo.
On each side they are equally tenacious. There is a dead-lock. How this
was overcome belongs to the next chapter.
III.
ADJUSTMENT BETWEEN THE UNITED STATES AND FRANCE BY THE SET-OFF AND
MUTUAL RELEASE OF CLAIMS AND COUNTER-CLAIMS.
The rules of duty and of conduct between individuals are applicable
also to nations, and the proceedings on this occasion illustrate
this principle. The two parties could not agree. Clearly, then, for
the sake of harmony, it was essential to postpone both claims and
counter-claims, for some future negotiation, or, if this were not
done, to treat them as a set-off to each other. Such, unquestionably,
would have been the action between individuals. But the history of
this negotiation shows the adoption of these two modes successively.
Postponement was first tried, but it gave way at last to _set-off_,
by virtue of which the _international_ controversy was closed. This
conclusion was reached slowly and by stages, as is seen in a simple
narrative of the negotiation.
The plenipotentiaries on each side evinced a disposition to provide
for reciprocal claims; but the claims specified by the American
plenipotentiaries were those of “_citizens_ of either nation,” while
those specified by the French plenipotentiaries were those which
“either nation may make for _itself_ or for any of its citizens.”[181]
In this difference of specification was the germ of the antagonism soon
developed, especially when the American plenipotentiaries proposed to
recognize the treaties and Consular Convention as existing only to
July 7, 1798,[182] the date of the statute by which Congress undertook
to annul them. This distinction seems to have been unnecessary, for
the French spoliations were clearly as much in contravention of
the Law of Nations as of the treaties. But it furnished the French
plenipotentiaries opportunity of declaring, under date of May 6,
1800, that “the mission of the Ministers Plenipotentiary of the
French Republic has pointed out to them the Treaties of Alliance,
Friendship, and Commerce, and the Consular Convention, _as the only
foundations of their negotiations_”; that “upon these acts has arisen
the misunderstanding, and it seems proper that upon these acts union
and friendship should be established.”[183] Thus were the treaties put
forward by France; and our plenipotentiaries, writing to their own
Government, May 17, 1800, represent her as persistent: “Our success
is yet doubtful. The French think it hard to indemnify for violating
engagements, _unless they can thereby be restored to the benefits of
them_.”[184] But on this point our Government was inexorable.
The return of the First Consul from Italy was signalized by fresh
instructions to the French plenipotentiaries, who proceeded to declare,
under date of August 11, 1800, that “the treaties which united France
and the United States are not broken,” and that their first proposition
is “to stipulate a full and entire recognition of the treaties, and
the reciprocal engagement of compensation for damages resulting on
both sides from their infraction.” Here, again, the “individual”
claims of citizens of the United States were doomed to encounter the
“national” claims of France. And this communication concluded with
a formal proposition in these words: “Either the ancient treaties,
with the privileges resulting from priority and the stipulation of
reciprocal indemnities, or a new treaty, assuring equality without
indemnity.”[185] Thus it stood: Claims and Counter-Claims.
The American plenipotentiaries were driven to choose between
abandonment of the negotiations and abandonment of their instructions.
It was clear, from French persistency, that the treaties, with all the
counter-claims, must be recognized, or the indemnities, with all the
claims, must be sacrificed. The American plenipotentiaries then took
the extraordinary responsibility of a proposition which discloses not
only their earnest desire for a settlement, but also their sense of
pressure from France. It was nothing less than a price, in money, for
release from certain stipulations; but this was to be accomplished by
“a reciprocal stipulation for _indemnities limited to the claims of
individuals_.”[186] The French plenipotentiaries, in reply, insisted
upon recognition of the treaties in general terms, and also the rights
of their privateers in our ports; yet they offered to commute the
guaranty for a sum of money.[187] The American plenipotentiaries,
hampered by the recent treaty with Great Britain, were obliged to
reject this proposition; but, after requiring the satisfaction of
“individual” claims, they offered, in general terms, that “the former
treaties be renewed and confirmed, and have the same effect as if
no misunderstanding between the two powers had intervened”; and
further, that, _in consideration of eight millions of francs_, the
United States should be released from the guaranty, and also from
those other articles relating to prizes which had caused so much
embarrassment.[188] Then the French plenipotentiaries assumed a new
position in the following reply, September 4, 1800.
“_To the Ministers Plenipotentiary of the United States at
Paris_:--
“We shall have the right to take our prizes into the ports of
America.
“A commission shall regulate the indemnities which either of
the two nations may owe to the citizens of the other.
“_The indemnities which shall be due by France to the citizens
of the United States shall be paid for by the United States.
And in return for which, France yields the exclusive privilege
resulting from the 17th and 22d articles of the Treaty of
Commerce, and from the rights of guaranty of the 11th article
of the Treaty of Alliance._
“BONAPARTE.
“C. P. CLARET-FLEURIEU.
“ROEDERER.”[189]
Here was the first proposition of _set-off_. On the one side were
“indemnities due by France to citizens of the United States,” and on
the other side were “privileges and rights” under the treaties; but it
will not fail to be remarked that _the indemnities due by France were
to be paid by the United States_. This proposition proceeded on the
idea that the counter-claims of France were at least equal in value to
the claims of the United States, and that the release of the former
was a sufficient consideration for the assumption of the latter. But
this was entirely beyond the powers of the American plenipotentiaries,
who, in their reply, pronounced it “inadmissible.”[190] It revealed
the desire of France to escape any payment of money, as only a few
days later was openly avowed by the French plenipotentiaries, “giving
as one reason the utter inability of France to pay, in the situation
in which she would be left by the present war.”[191] This declared
inability served to explain the difficulties encountered by the
American plenipotentiaries. Evidently there was a “foregone conclusion”
against any payment by France. The counter-claims furnished the needed
_substitute_. But, as these were “national,” while the claims of the
United States were “individual,” there could be no just _set-off_
between them, unless the American Government assured to its citizens
the payment of what was due from France, according to the proposition
of the French plenipotentiaries.
The American plenipotentiaries were disheartened. Nothing in their
instructions enabled them to meet the new and unexpected turn of
affairs. The treaty they had striven for seemed to elude their
grasp. In their journal, under date of September 13, 1800, is the
record, that, “being now convinced that the door was perfectly closed
against all hope of obtaining indemnities with any modifications of
the treaties, it only remained to be determined whether, under all
circumstances, it would not be expedient to attempt _a temporary
arrangement_.”[192] The French plenipotentiaries did not consider
this proposition, without insisting, “first, that a stipulation of
indemnities carries with it the full and entire admission of the
treaties, and, secondly, that the relinquishment of the advantages
and privileges stipulated by the treaties, by means of the reciprocal
relinquishment of indemnities, would prove to be the most advantageous
arrangement, and also the most honorable to the two nations.”[193]
Here, again, was a proposition of _set-off_, which was repeated in
other different forms.
The dead-lock which clogged the negotiation, even at the beginning,
was now complete. The American plenipotentiaries announced at home
that they were driven to quit France, or to find some other terms of
adjustment.[194] The latter alternative prevailed, and the negotiation
was renewed, with the understanding that the parties put off to
another time the discussion of indemnities and the treaties.[195] The
other questions furnished no ground of serious controversy; and the
conferences proceeded tranquilly, from day to day, till September 30,
1800, resulting in what was entitled a “_Provisional_ Treaty.” The
title revealing its temporary character was subsequently changed, at
the request of the French plenipotentiaries, to that of “Convention,”
which it now bears in the statute-book.
The Convention, after declaring in its first article that “there shall
be a firm, inviolable, and universal peace, and a true and sincere
friendship, between the French Republic and the United States of
America,” proceeds to stipulate as follows.
“ART. II. The Ministers Plenipotentiary of the two parties
not being able to agree at present respecting the Treaty
of Alliance of 6th February, 1778, the Treaty of Amity and
Commerce of the same date, and the Convention of 14th of
November, 1788, nor upon the indemnities mutually due or
claimed, the parties will negotiate further on these subjects
at a convenient time; and until they may have agreed upon
these points, the said treaties and convention shall have no
operation, and the relations of the two countries shall be
regulated as follows.”[196]
Here the disagreement with regard to the early treaties and the
indemnities mutually due or claimed is specifically declared, and it
is then provided that “_the parties_ will negotiate further on these
subjects at a convenient time,”--meaning, of course, that hereafter,
at a more auspicious moment, and with other plenipotentiaries, “the
parties” will attempt to reconcile this disagreement. The whole
subject, with its seven years of controversy and heart-burning, was
postponed. Claims and counter-claims were left to sleep, while the
spirit of peace descended upon the two countries.
The Convention was signed at Morfontaine, the elegant country
home of Joseph Bonaparte, and the occasion was turned into a
festival,--illustrated afterwards by the engraving of Piranesi,--where
nothing was wanting that hospitality could supply. The First Consul
was there, with his associates in power; also Lafayette, rescued from
his Austrian dungeon and restored to France; and there also were the
plenipotentiaries of both sides, with American citizens then in France,
all gathered in brilliant company to celebrate the establishment of
concord between the two republics.[197] The First Consul proposed as
a toast, “_To the manes of the French and the Americans who died on
the field of battle for the independence of the New World_”; so that
even at this generous festival, to grace a reconciliation founded on
the postponement of claims and counter-claims, the youthful chief,
whose star was beginning to fill the heavens, proclaimed the undying
obligations of the United States to France. This strain has been
adopted by M. Thiers, who, after referring to this convention as the
first concluded by the Consular Government, says: “It was natural that
the reconciliation of France with the different powers of the globe
should begin with _that republic to which she had in a measure given
birth_.” The great historian, while thus recording our obligations to
France, shows how claims and counter-claims had been postponed. “The
First Consul,” he says, “had allowed the difficulties relative to the
Treaty of Alliance of the 6th of February, 1778, to be adjourned;
but, on the other hand, he had required the adjournment of the claims
of the Americans relative to captured vessels.”[198] In this summary
the stipulations at the signature of the Convention are accurately
stated. Though imperfect, it was the first in that procession of peace,
embracing Lunéville, Amiens, and the Concordat, which for a moment
closed the Temple of Janus, whose gates had been left open by the
Revolution in France.
The ratification by the First Consul followed the celebration at
Morfontaine, so that the Convention, with its postponement of mutual
claims, was definitely accepted by France. It was otherwise in the
United States, where the result did not find favor. The postponement
of a controversy is not a settlement, and here was nothing but
postponement, leaving the old cloud hanging over the country, ready
to burst at the motion of England or France. It was important that
the early treaties, with their entangling engagements, should cease,
even as a subject of future negotiation. In this spirit, the Senate,
on the submission of the Convention for ratification, expunged the
second article, providing that “the parties will negotiate further on
these subjects,” and limited the Convention to eight years. On the 18th
of February, 1801, President Adams, by proclamation countersigned by
John Marshall, as Secretary of State, published the Convention as duly
ratified, “saving and excepting the second article,” which was declared
“to be expunged, and of no force or validity.”[199] The precise effect
of this proceeding was not explained, and it remained to see how it
would be regarded in France.
Were the claims on France abandoned? This was the question which
occupied the attention of our minister, Mr. Murray, when charged to
exchange with France the ratifications of the Convention as amended by
the Senate. Reporting to the Government at home his conference with
the French plenipotentiaries, he said, “I fear that they will press an
article of formal abandonment on our part, _which I shall evade_.”[200]
He hoped, to keep still another chance for indemnities. On the other
hand, the French plenipotentiaries feared that an unconditional
suppression of the second article would leave them exposed to the
claims of the United States without chance for their counter-claims;
but they did not object to a mutual abandonment of indemnities,
which Mr. Murray admitted would “always be _set off_ against each
other.”[201] At last the conclusion was reached, and on the 31st of
July, 1801, the Convention was ratified by the First Consul, with the
limitation to eight years, and with the retrenchment of the second
article, according to the amendment by the Senate, the whole with a
proviso by the First Consul “THAT BY THIS RETRENCHMENT THE TWO STATES
RENOUNCE THE RESPECTIVE PRETENSIONS WHICH ARE THE OBJECT OF THE SAID
ARTICLE.”[202] Such were the important words of final settlement. What
had been left to inference in the amendment of the Senate was placed
beyond question by this French proviso. Claims and counter-claims were
not merely suspended; they were formally abandoned. The Convention,
with this decisive modification, was submitted to the Senate by
President Jefferson, and again ratified by a vote of twenty-two yeas
to four nays. On the 21st of December, 1801, it was promulgated by the
President in the usual form, with its supplementary proviso, and all
persons were enjoined to observe and fulfil the same, “and every clause
and article thereof.”[203]
One aspect of this result cannot fail to arrest attention. Here was a
release of all outstanding obligations of the United States under those
famous treaties which assured National Independence. The joy with which
those heralds of triumph were first welcomed in camp and Congress has
been portrayed; and now a kindred joy prevailed, when the country,
anxious and sorely tried, was at last set free from their obligations,
and American commerce, venturing forth again from its banishment,
brought back its treasures to pour them into the lap of the people.
Strange fate! There was joy at the birth of these treaties, and joy
also at their death. But it was because their death had become to us,
like their birth, a source of national strength and security.
Thus closed a protracted controversy, where each power was persistent
to the last. Nothing could be more simple than the adjustment, and
nothing more equitable, _if we regard the two Governments only_. The
claims of each were treated as a _set-off_ to the claims of the other,
and _mutual releases_ were interchanged, so that each, while losing
what it claimed, triumphed over its adversary. But the triumph of the
United States was at the expense of American citizens. Nothing is
without price; and new duties, originating in this triumph, sprang into
being.
IV.
ASSUMPTION OF CLAIMS BY THE UNITED STATES, AND SUBSTITUTION OF UNITED
STATES FOR FRANCE.
Then came the assumption by our Government of the original obligations
of France, and its complete _substitution_ for France _as the
responsible debtor_. This liability was distinctly foreseen by the
American plenipotentiaries, Messrs. Pinckney, Marshall, and Gerry, as
appears in their words, under date of October 22, 1797: “We observed to
M. Bellamy, that none of our vessels had what the French termed a _rôle
d’équipage_, and that, if we were to surrender all the property which
had been taken from our citizens in cases where their vessels were
not furnished with such a rôle, _the Government would be responsible
to its citizens for the property so surrendered_, since it would be
impossible to undertake to assert that there was any plausibility in
the allegation that our treaty required a _rôle d’équipage_.”[204]
This admission, so important in this discussion, was so clearly in
conformity with correct principles, that it was naturally made, even
without special instructions.
Had the claims been “national” on each side, no subsequent question
could have occurred, for each would have extinguished the other in all
respects forever. It was the peculiarity of this case, that on one
side the claims were “national,” and on the other side “individual.”
But a _set-off_ of “individual” claims against “national” claims must,
of course, leave that Government responsible which has appropriated
the “individual” claims to this purpose. The set-off and mutual
release are between nation and nation; but if the claims on one
side are only “individual,” and not “national,” the nation which by
virtue of this consideration is released from “national” obligations
must be _substituted_ for the other nation as debtor, so that every
“individual” with claims thus appropriated may confidently turn to
it for satisfaction. On this point there can be no doubt, whether we
regard it in the light of common sense, reason, duty, Constitution, or
authority.
1. According to _common sense_, any “individual” interest appropriated
to a “national” purpose must create a debt on the part of the nation,
still further enhanced, if, through this appropriation, the nation is
relieved from outstanding engagements already the occasion of infinite
embarrassment, and hanging like a drawn sword over the future.
2. According to _reason_, any person intrusted with the guardianship
of particular interests becomes personally responsible with regard
to them, especially if he undertakes to barter them against other
interests for which he is personally responsible. Thus, an attorney,
sacrificing the claims of his clients for the release of his own
personal obligations, becomes personally liable; and so also the
trustee, appropriating the trust fund for any personal interest,
becomes personally liable. All this is too plain for argument; but
it is applicable to a nation as to an individual. In the case now
before your Committee, our Government was attorney to prosecute
“individual” claims of citizens, and also trustee for their benefit,
to watch and protect their interests; so that it was bound to all the
responsibilities of attorney and trustee, absolutely incapacitated
from any act of personal advantage, and compelled to regard all that
it obtained, whatever form of value it might assume, whether money or
release, as a trust fund for the original claimants.
3. _Duty_, also, in harmony with reason, enjoins upon Government the
protection of citizens against foreign spoliations and the prosecution
of their claims to judgment. Such are powerless as “individuals.”
Their claims are effective only when adopted by the nation. This duty,
so obvious on general principles, was reinforced in the present case
by the special undertaking of Mr. Jefferson, already adduced, when
he announced that he had it “in charge from the President to assure
the merchants of the United States concerned in foreign commerce or
navigation, that due attention will be paid to any injuries they
may suffer on the high seas or in foreign countries.”[205] Such a
duty, thus founded, and thus openly assumed, could not be abandoned,
on any inducement proceeding from France, without a corresponding
responsibility toward those citizens whose interests were allowed
to suffer. A waiver of national duty, especially where made for the
national benefit, must entail national obligation.
4. The _Constitution_ also plainly requires what seems so obvious to
common sense, reason, and duty, when it declares that “private property
shall not be taken for public use _without just compensation_.” Here
“private property,” to a vast amount, was taken for “public use,”
involving the peace and welfare of the whole country; and down to this
day the sufferers are petitioning Congress for that “just compensation”
solemnly promised by the Constitution.
5. _Public law_ is also in harmony with the Constitution. According
to Vattel, the sovereign may, in the exercise of his right of eminent
domain, dispose of the property, and even the person, of a subject,
by treaty with a foreign power; “but,” says this eminent authority,
“as it is for the public advantage that he thus disposes of them, the
state is bound to indemnify the citizens who are sufferers by the
transaction.”[206] Words more applicable to the present case could not
be employed.
6. The authority of great names confirms this liability. Among those
who took part in the negotiations with France, none but Mr. Pickering
and Chief Justice Marshall still lingered on the stage when the subject
was finally pressed upon Congress. Mr. Pickering was Secretary of State
under Washington and Adams, and drew the instructions. His testimony is
explicit. Without giving his statement at length, it will be enough to
quote these words, in a letter dated November 19, 1824:--
“Thus the Government _bartered_ the _just claims_ of our
merchants on France, to obtain a relinquishment of the French
claim for a restoration of the old treaties, especially the
burdensome Treaty of Alliance, by which we were bound to
guaranty the French territories in America. On this view of
the case, it would seem _that the merchants have an equitable
claim for indemnities from the United States_.… It follows,
then, that, if the relinquishment had not been made, the
present French Government would be responsible. Consequently,
the relinquishment by our own Government having been made in
consideration that the French Government relinquished its
demand for a renewal of the old treaties, _then it seems
clear, that, as our Government applied the merchants’ property
to buy off those old treaties, the sums so applied should be
reimbursed_.”[207]
Chief Justice Marshall, who was one of the plenipotentiaries that
attempted to secure payment from France, and afterward, as Secretary
of State, countersigned the proclamation of President Adams first
promulgating the Convention of 1800, has borne testimony similar to
that of Mr. Pickering. In conversation with Mr. Preston, of South
Carolina, he said, that, “having been connected with the events of that
period, and conversant with the circumstances under which the claims
arose, _he was, from his own knowledge, satisfied that there was the
strongest obligation on the Government to compensate the sufferers by
the French spoliations_.”[208]
Hon. B. Watkins Leigh, an ancient Senator from Virginia, relates that
the same eminent authority said in his presence, “distinctly and
positively, that _the United States ought to make payment of these
claims_.” This declaration made a particular impression upon Mr. Leigh,
because he had been unfavorable to the claims.
7. The obligation of the United States may be inferred also from _the
declared justice_ of the claims which had been renounced. On this point
the authority is equally explicit.
Of course, in urging them upon France, earnestly and most assiduously,
by successive plenipotentiaries, there was a plain adoption of them as
just. But even after their abandonment they continued to be recognized
as just.
Hon. Robert R. Livingston, plenipotentiary at Paris, in his
correspondence shortly after the abandonment, shows his discontent. In
a note to the Minister of Exterior Relations he speaks compendiously
of “the payment for illegal captures, with damages and indemnities on
one side, and the renewal of the Treaty of 1778 on the other, as of
_equivalent value_.”[209] And in a despatch, under date of January 13,
1802, he says he has “always considered the sacrifices we have made of
an immense claim as _a dead loss_.”[210] But this “dead loss” fell upon
“individuals,” and not upon the “nation.”
Mr. Madison, as Secretary of State, in a despatch to Hon. Charles
Pinckney, our minister at the court of Spain, under date of February 6,
1804, upholds the justice of the claims in significant words:--
“The claims from which France was released were _admitted by
France_, and the release was for _a valuable consideration_
in a correspondent release of the United States from certain
claims on them.”[211]
Thus, according to official declaration, the claims of American
citizens were “admitted by France,” but they were released for
_a valuable consideration_ which first inured to the benefit of
the Government of the United States. _Equitably, that valuable
consideration must belong to the claimants._
Mr. Clay, as Secretary of State under John Quincy Adams, made a report,
which had the sanction of the latter, where he fully affirms the
justice of the claims:--
“The pretensions of the United States arose out of the
spoliations, under color of French authority, in contravention
to law and existing treaties. Those of France sprung from the
Treaty of Alliance of the 6th February, 1778, the Treaty of
Amity and Commerce of the same date, and the Convention of the
14th of November, 1788. Whatever obligations or indemnities
from those sources either party had a right to demand were
respectively waived and abandoned, _and the consideration which
induced one party to renounce his pretensions was that of the
renunciation by the other party of his pretensions_. What was
the value of the obligations and indemnities so reciprocally
renounced can only be matter of speculation.”[212]
Mr. Clay concludes by declaring that the Senate, to which his report is
addressed, was most competent to determine how far the appropriation of
the indemnities due to American citizens was “a public use of private
property, within the spirit of the Constitution, and whether equitable
considerations do not require some compensation to be made to the
claimants.”
There is one other authority, of commanding character, not to be
forgotten. It is Hon. Edward Livingston, jurist, statesman, and
diplomatist, who, though not engaged in the negotiations, knew them as
contemporary, and afterward, as Senator, made a report, accepted ever
since as an authentic statement of the whole case, in which he says:--
“The Committee think it is sufficiently shown that the claim
for indemnities was surrendered _as an equivalent_ for the
discharge of the United States from its heavy national
obligations, and for the damages that were due for their
preceding non-performance of them. If so, can there be a doubt,
independent of the constitutional provision, that the sufferers
are entitled to indemnity? Under that provision _is not this
right converted into one that we are under the most solemn
obligation to satisfy?_ … To lessen the public expenditure is a
great legislative duty; to lessen it at the expense of justice,
public faith, and constitutional right would be a crime.
Conceiving that all these require that relief should be granted
to the petitioners, they pray leave to bring in a bill for that
purpose.”[213]
This list of authorities may be closed with that of the Emperor
Napoleon, who, at St. Helena, dictated to Gourgaud the following
testimony:--
“The suppression of this article [2d of the Convention] at once
put an end to the privileges which France had possessed by the
Treaty of 1778, _and annulled the just claims which America
might have made for injuries done in time of peace_. This was
exactly what the First Consul had proposed to himself, in
fixing these two points _as equiponderating each other_.”[214]
Thus the head of the French Government at the time of the Convention
unites with the statesmen of our own country in attaching value to
these claims.
* * * * *
To all this array of argument and authority the Committee see no
answer. They follow its teaching, when they adopt the conclusion, in
which so many previous committees have already joined, that these
individual claims were originally just, and that the Government of the
United States, having appropriated them for a “national” purpose, was
substituted for France as debtor.
OBJECTIONS.
Assuming the obligation of the United States, the question occurs,
What sum should be applied by Congress to its liquidation? But before
proceeding to this point, the Committee will glance at what is urged
sometimes against this obligation, so far at least as they are aware of
opposition.
* * * * *
Objections of a preliminary character have been already considered; but
there are others belonging properly to this stage of the inquiry.
Curiously, the two main objections most often adduced answer each
other flatly. It is sometimes insisted that the claims were invalid,
by reason of the abnormal relations between France and the United
States anterior to the Convention of 1800, pronounced to be a state of
war; and then, again, it is sometimes insisted that these claims were
provided for in the subsequent Convention of 1803 for the purchase of
Louisiana. But, if the claims were really invalid, as has been argued,
it is absurd to suppose that France would have provided for them; and
if they were really provided for, it is equally absurd to suppose that
they were invalid. The two objections might be dismissed as equally
unreasonable; but, since they have been made to play a conspicuous
part, especially in Presidential vetoes, the Committee will occupy a
brief moment in considering them.
Other objections, founded on the later Convention of 1831, on the Act
of Congress annulling the French treaties, on the early efforts of the
United States to procure satisfaction from France, and on the alleged
desperate character of the claims, will be considered in their order.
I.--WAR DID NOT EXIST BETWEEN THE UNITED STATES AND FRANCE.
The anomalous relations between France and the United States anterior
to the Convention of 1800 did not constitute a state of war so as to
annul all pending claims. The contrary assertion is inconsistent with
(1.) the facts of the case, (2.) the declarations of the two parties,
and (3.) the nature of the Convention.
Before considering these several topics, it may be remarked, that,
had there been a state of war, it would not follow that all prior
rights otherwise valid were annulled, so at least as not to be revived
at the close of the war. On one important occasion, the contrary has
been held by our Government in its negotiations with Great Britain.
The provision relative to the fisheries which appears in the Treaty of
1783 was not noticed in the Treaty of Ghent; and yet the United States
did not hesitate to insist afterwards, that, though interrupted by the
War of 1812, it remained in full force after the termination of the
war. Doubtless, claims bearing the open cause of war, and failing to
be recognized in the treaty of peace, are annulled; for the treaty is
the settlement of pending controversies between the two powers. But
the claims in question were not the open cause even of the anomalous
relations between the United States and France, and they did not fail
to have such recognition in the convention terminating those relations
as to exclude all idea that they were annulled by war, or any other
antecedent facts. It is not necessary to consider the effect of war,
for it is easy to establish that war did not exist.
1. The facts of the case are all inconsistent with war. There was no
declaration of war on either side; and, still further, throughout the
whole duration of the troubles the tribunals of each country were open
to citizens of the other, as in times of peace; so that a citizen of
the United States was not an “alien enemy” in the courts of France, nor
a Frenchman an “alien enemy” in the courts of the United States. This
fact, which was presented by Mr. Clayton in his masterly discussion of
the question, is most suggestive, if not conclusive.
It is true that diplomatic and commercial intercourse was suspended,
that the two powers armed, and that on both sides force was employed.
But this painful condition of things, though naturally causing great
anxiety, did not constitute war. One power may, in its own discretion,
suspend diplomatic and commercial intercourse with another; it may
assume all the harness of war, and even use force in retaliation,
retortion, or reprisal; but all this falls short of war, _especially
when public acts and declarations show that war was not intended_. Such
conduct tends to war, and, if continued, naturally ends in war. But it
is not of itself that terrible transformation by which one nation, with
all its people, is converted into the enemy of another nation, with all
its people, so that every citizen of the one becomes the enemy of every
citizen of the other, and all pending rights and contracts between them
disappear, at least for a time.
If war be the extinguisher of claims, it is because, in theory, the
claimant is supposed to have opportunity for reparation by seizing the
property of the enemy, wherever he can find it on the high seas. But no
reprisals against France were authorized by the United States; no war
on private property was permitted; so that the only principle on which
war is the extinguisher of claims fails to apply.
But not even an act of war constitutes war. The two parties determine
if war exists. To their public acts and mutual declarations we repair
for interpretation of their conduct.
2. On the part of the United States _the declarations are explicit_
that war did not exist, although it seemed imminent. Congress was
convened in May, 1797, to deliberate on the threatening aspect of
affairs, and adopt measures of public defence, which were continued
in 1798 and 1799; but in all this series of acts there is constant
and sedulous negation of the state of war. The Act of May 28, 1798,
after reciting that “armed vessels sailing under authority or pretence
of authority from the Republic of France have committed depredations
on the commerce of the United States, and have recently captured the
vessels and property of citizens thereof on and near the coasts,”
proceeds to authorize the seizure of any such armed vessel; but
nothing is said of war.[215] Another Act, bearing date the same day,
authorizes a provisional army, “_in the event of a declaration of war_
against the United States, or of actual invasion of their territory
by a foreign power, or of imminent danger of such invasion discovered
in the opinion of the President to exist, _before the next session of
Congress_.”[216] The Act of June 13, 1798, to continue in force only
till the end of the next session, and renewed February 9, 1799, for a
limited term, suspended commercial relations between the two countries,
under penalties of forfeiture;[217] but such acts, however menacing,
are absolutely inconsistent with an existing state of war, which of
itself, without any additional act, suspends all commercial relations
between the belligerent parties. The Act of June 25, 1798, authorizes
our merchant vessels to subdue and capture any French armed vessel
_from which an assault or other hostility shall be first made_.[218]
The Act of July 6, 1798, respecting alien enemies, begins with the
words of limitation, “_Whenever there shall be a declared war_ between
the United States and any foreign nation.”[219] The Act of July 7,
1798, declares the treaties no longer “legally obligatory”;[220] but
if war existed, such an act would have been superfluous. The Act of
July 16, 1798, authorizes augmentation of the army “for and during the
continuance of _the existing differences_ between the United States and
the French Republic.”[221] The Act of March 2, 1799, also authorizes
augmentation of the army, “_in case war shall break out_.”[222] Another
Act, passed the next day, provides that certain troops authorized by
the Act shall not be raised, “_unless war shall break out_ between the
United States and some European prince, potentate, or state.”[223]
And as late as February 20, 1800, while our envoys were on the way
to Paris, another Act was passed, providing that further enlistments
should be suspended, “_unless_, in the recess of Congress, and during
the continuance of _the existing differences_ between the United
States and the French Republic, _war shall break out_ between the
United States and the French Republic.”[224] All these cumulative
measures refer to war, not as actually existing, but only as a future
possibility. Meanwhile there were “existing differences” only. Finally,
on the 14th of May, 1800, four months before the signature of the
Convention, and when the plenipotentiaries on each side were at a
dead-lock, another Act was passed, authorizing the abandonment of the
military preparations set on foot in contemplation of the contingency
of war.[225] Such is a synopsis of testimony from Congressional
legislation. And now, when it is considered that Congress alone, under
the Constitution, has power to declare war, that it never made any
declaration of war against France, and that throughout this whole
period of trouble, in its whole series of acts, it expressly negatived
the fact of war, is it not impossible to assert, that, according to the
understanding of our Government, war actually existed? What Congress
did, and what it failed to do, answer in the affirmative.
The declarations of the Executive are as explicit as the declarations
of Congress. In the instructions to our plenipotentiaries, under date
of October 22, 1799, the Secretary of State, after mentioning the
spoliations of France, says: “This conduct of the French Republic would
well have justified an immediate declaration of war on the part of the
United States; but, _desirous of maintaining peace_, and still willing
to leave open the door of reconciliation with France, _the United
States contented themselves with preparations for defence_ and measures
calculated to protect their commerce.”[226] These plenipotentiaries
declared to the French, under date of April 11, 1800, that the Acts of
Congress, “_far from contemplating a coöperation with the enemies of
the Republic_, did not even authorize reprisals upon her merchantmen,
but were restricted solely to the giving of safety to their own,
till a moment should arrive when their sufferings could be heard and
redressed.”[227] Again, in a despatch to our minister in England,
under date of September 20, 1800, the Secretary of State, who was none
other than John Marshall, says: “The aggressions sometimes of one and
sometimes of another belligerent power have forced us _to contemplate
and to prepare for war as a probable event_”:[228] not as an actual
event already arrived, but only as a probable event. In the face of
such declarations, who can say that war existed?
On the part of France the declarations are equally explicit. It is
true, that, on the 12th September, 1800, in conversation, the French
plenipotentiaries let drop fitful words, to the effect, that, “if
the question could be determined by an indifferent nation, such a
tribunal would say that the present state of things was war on the
side of America, and that no indemnities could be claimed.”[229] But
the context shows, that, to avoid the payment of these indemnities,
they were driven to every possible subterfuge; and the whole
suggestion is contrary to all the admissions of the French Government,
both in the executive and legislative branches. Indeed, these very
plenipotentiaries of France, in a formal communication to the American
plenipotentiaries, under date of August 11, 1800, declared that “_the
state of misunderstanding_ which has existed for some time between
France and the United States, by the act of some agents rather than by
the will of the respective Governments, _has not been a state of war,
at least on the side of France_.”[230] We have already seen that it
was not on the side of the United States. Then again, under date of
December 12, 1801, they contented themselves with characterizing the
relations of the two powers at this period as “_almost hostile_.”[231]
At an earlier day, Talleyrand, as Minister of Exterior Relations, had
written, under date of August 28, 1798: “France has a double motive,
as a nation and as a republic, not to expose to any hazard the present
existence of the United States. Therefore it never thought of making
war against them; … _and every contrary supposition is an insult to
common sense_.”[232] When the Convention, in its final form, was laid
before the Legislative Assembly, one of the French plenipotentiaries
charged with its vindication announced in a speech, November 26, 1801,
that “it had terminated _the misunderstanding_ between France and
America,” which, he said, had become such “that it was necessary the
reconciliation should be hastened, if it was desired that it _should
not become very difficult_.” A report was also made to the Legislative
Assembly by M. Adet, formerly French minister to the United States, in
which it is declared: “_There had not been any declaration of war_.
Commissions granted by the President to attack the armed vessels of
France are not to be regarded as a declaration of war. The will of the
President does not suffice to put America in a state of war. In order
to this a positive declaration of Congress is requisite. _None has ever
existed._” And these legislative documents, so positive in character,
are introduced by the learned editor in words which fitly characterize
the international relations to which they refer, when he says that
“they will serve to make known the causes which _momentarily disturbed
the harmony_ of the two states.”[233] True enough. Unhappily, the
harmony of the two states was disturbed, but war did not exist.
3. The terms of the Convention, and the final conditions of
ratification, also, exclude the idea of war. Although beginning with
a declaration that “there shall be a firm, inviolable, and universal
peace,” borrowed, in precise words, from Mr. Jay’s treaty with Great
Britain, the Convention of 1800 did not purport to be a treaty of
peace; nor, indeed, as first executed, did it pretend to settle the
questions between the two powers, except by postponing them to “a
convenient time.” A war annulling claims could not be treated in this
way. The American Senate admitted as much, when it limited the duration
of the Convention to eight years, which, had war previously existed,
would have turned the Convention into a truce. The First Consul
confessed the same, when he added his far-reaching proviso, for which,
of course, there would have been no occasion, if the claims of American
citizens had been annulled by war; and again he testified, in his words
at St. Helena, where he speaks of this Convention as having “annulled
the _just claims_ which America might have made for _injuries done in
time of peace_.” Thus falls the objection, so often urged, founded
on the alleged existence of war. Strange, that, while so utterly
untenable, it should gain a single supporter! There is one remark which
belongs to the close of this topic. Even if France had affirmed that
war existed, yet the United States constantly denied it at the time,
both by legislative and executive acts; so that our Government is
obviously estopped against its recognition, even if it fails to feel
the indecency of such an excuse for any further denial of justice.
II.--THESE CLAIMS NOT EMBRACED IN THE LOUISIANA CONVENTION.
The objection that these claims were provided for in the Convention
of 1803, for the purchase of Louisiana, is equally groundless. It is
difficult to understand how such a pretext was ever made; but the
history of this question shows the strange shifts of opposition,
especially when without restraint from knowledge of the subject. The
most superficial glance shows that the two Conventions related to two
different classes of claims. Those abandoned in 1800 were on account
of spoliations, and in the nature of “torts.” Those protected in
1803 were “debts.” When it is considered how steadfastly the French
plenipotentiaries in 1800 opposed the recognition of the claim for
“torts,” and how the First Consul, by his positive proviso, required
their renunciation, it is most unreasonable to assume that in 1803
they were formally recognized. This assumption becomes still more
unreasonable, when it is understood that only at a comparatively recent
period was the idea first broached; that it is without support in the
documentary history of the Convention, or in any contemporary opinion;
that it escaped the attention of the Board of Commissioners appointed
under the Convention, as it escaped the attention of successive
Secretaries of State, and also of Congressional Committees, reporting
on the subject, until thus tardily it was brought forward as a last
resort of opposition.
The Convention of 1800, which sacrificed the claim for “torts,” kept
alive certain pending claims for “debts.”
“ART. V. The _debts contracted_ by one of the two nations with
individuals of the other, or by the individuals of one with
the individuals of the other, _shall be paid_, or the payment
may be prosecuted, in the same manner as if there had been no
misunderstanding between the two states. _But this clause shall
not extend to indemnities claimed on account of captures or
confiscation._”[234]
It will be observed how carefully the claims for spoliation were
excluded from the benefit of this provision, which is limited
positively to “debts.” Though apparently plain, the French Government
found difficulties in its execution. Vexatious delays were interposed,
and “debts” were treated little better than “claims,” so that our
minister at Paris, Hon. Robert R. Livingston, was constrained to
address the French Government, under date of March 25, 1802: “The
fifth article of the treaty says, expressly, they shall be paid; but
justice and good faith say it, independent of the treaty. Yet they
remain unsatisfied; nor is the most distant hope as yet afforded them
of when or how they will be paid.”[235] Such was the spirit of other
correspondence. At last, by one and the same transaction, Louisiana was
purchased, and these “debts” were provided for. The plenipotentiaries
of the United States, Mr. Livingston and Mr. Monroe,--the latter for
a second time plenipotentiary,--undertook to pay eighty millions of
francs for the purchase, of which sixty millions were for France, and
the remaining twenty millions for the payment of “debts” secured by the
Convention of 1800; and these terms were embodied in a treaty and two
associate conventions of the same date.
The treaty contained the terms of cession. One of the conventions
regulated the terms of purchase, and the other provided that “_the
debts_ due by France to citizens of the United States, _contracted
before the 30th September, 1800_, shall be paid” according to certain
regulations. It will be observed that these words descriptive of the
“debts” are not unlike those employed in the fifth article of the
Convention of 30th September, 1800.
The new Convention regulating the payment of “debts” begins with a
preamble, setting forth the desire of the President and of the First
Consul, “_in compliance with the second and fifth articles_ of the
Convention of the 30th September, 1800, to secure the payment of the
sum due by France to the citizens of the United States.” From the
association of these two articles some hastily infer a purpose to
revive the “claims” abandoned in the famous second article. But such
revival, instead of being “in compliance” with that article, or,
according to the corresponding French words of the Convention, _en
exécution_ of that article, would be in direct contradiction of it.
The allusion to the second article is obviously to carry into the
Louisiana Convention the original exclusion of the spoliation “claims.”
If any doubt could arise on this allusion, taken by itself, it would
disappear, when we consider that the fifth article is both _inclusive_
and _exclusive_. It includes “debts contracted,” which are to be
paid, and it excludes “indemnities claimed on account of captures or
confiscations,” which are not to be paid. Thus the language of the
preamble is justified, and the Convention is _in compliance_ with both
the second and fifth articles of the original Convention.
If we examine the Louisiana Convention carefully, we find that
“debts” alone are provided for. The first article, as we have already
seen, declares, “_the debts_ due by France to citizens of the United
States, contracted before the 30th September, 1800, shall be paid
according to the following regulations.” The second article describes
“_the debts_ provided for by the preceding article” as comprised in
a conjectural note. The third article declares how “the said debts
shall be discharged by the United States.” The fourth article more
specifically defines _the debts_ as follows: “It is expressly agreed
that the preceding articles shall comprehend _no debts_ but such as
are due to citizens of the United States who have been and are yet
creditors of France, for _supplies_, for _embargoes_, and _prizes made
at sea_ in which the appeal has been properly lodged within the time
mentioned in the said Convention, 30th September, 1800.” The fifth
article explains further the prizes intended in the fourth article, as
follows: “The preceding articles shall apply only, 1st, to captures of
which the Council of Prizes shall have ordered restitution, it being
well understood that the claimant cannot have recourse to the United
States otherwise than he might have had to the Government of the
French Republic, and only in case of insufficiency of the captors; 2d,
_the debts_ mentioned in the said fifth article of the Convention of
1800, the payment of which has been heretofore claimed of the actual
Government of France, and for which the creditors have a right to
the protection of the United States. The said fifth article does not
comprehend prizes whose condemnation has been or shall be confirmed.”
Under the first head, the class of captures is here defined. It was
those only where the Council of Prizes had ordered restitution, being
captures not warranted by the laws of France. Such cases were included
among “debts,” because the decree of the Council of Prizes ordering
restitution instantly created, on the part of the owner, a claim on
the captor for the property or its value; and where the captor was
“insufficient,” the Government assumed the debt. _And this is the only
class of captures provided for in the Louisiana Convention_. Under the
second head are specified “_the debts_ mentioned in the fifth article,”
with an express declaration that it “does not comprehend prizes whose
condemnation has been or shall be confirmed.” Thus in every article and
at every stage the spoliation claims are excluded from the benefit of
the Louisiana Convention.
Such was the contemporary conclusion of our minister at Paris, Mr.
Livingston, who, in his letter to the French Government of April
17, 1802, said: “The fifth article expressly stipulates that _all
debts_ due by either Government to the individuals of the other shall
be paid. But as this would also have included _the indemnities for
captures and condemnations previously made_, and it was the intention
of the contracting parties, by the second article, to preclude this
payment, as depending on a future negotiation, _it was necessary to
except from this promise of payment all that made the subject of the
second article_: … as to the payment of indemnities for embargoes
in consequence of the cargoes being put in requisition, or with a
view to any other political measure which carried with it nothing
hostile to the United States, no controversy ever arose between the
plenipotentiaries of the two nations.”[236]
Surely this objection may be dismissed.
III.--THESE CLAIMS NOT EMBRACED IN THE CONVENTION OF 1831 WITH FRANCE.
Another objection has been started, kindred to the last, also in
kindred ignorance. It is said that these claims were embraced in the
later Convention of 1831 with France, under Louis Philippe. No mistake
can be greater.
That Convention opens with these words: “The French Government,
_in order to liberate itself completely from all the reclamations
preferred against it by citizens of the United States_ for unlawful
seizures, captures, sequestrations, confiscations, or destructions of
their vessels, cargoes, or other property, engages to pay a sum of
twenty-five millions of francs to the Government of the United States,
who shall distribute it _among those entitled_, in the manner and
according to the rules which it shall determine.”[237]
This provision must be interpreted in the light of preceding treaties,
especially of that which had occupied so much attention. They are all
_in pari materia_, and therefore, according to a familiar rule of
jurisprudence, must be taken together. But the Convention of 1800,
by the proviso of the First Consul at its ratification, _liberated
France completely_ from all liability for the claims now in question,
so that they ceased to be valid against her. Therefore these claimants
could not be “among those _entitled_” under the later Convention. This
interpretation is confirmed by the judgment of the French Government,
and also by the judgment of our own Commissioners under the Convention.
Mr. Rives, our minister at Paris, writing to Mr. Van Buren, the
Secretary of State at the time, under date of February 18, 1831, says:
“From what I have been able to learn of ----’s report, it is favorable
throughout to the principle of our claims. It excludes, however, the
claims of American citizens in the nature of debt or of supplies, as
being alien to the general scope of the controversy between the two
Governments,--and also American claims of every description originating
previous to the date of the Louisiana arrangement, in 1803, which has
been invariably alleged by this Government to be in full satisfaction
of all claims then existing.”[238]
Our own Commissioners, sitting at Washington, reported to the Secretary
of State, under date of December 30, 1835, that they had required every
person seeking _to entitle_ himself under the Convention to show that
his “claim remained unimpaired and in full force against France at the
date of the Convention of 1831.”[239] But the claims in question did
not come within this category. Clearly, they were not “unimpaired and
in full force against France.”
All this is apparent on the face; but it was demonstrated by the
action of the Commissioners. The experiment was made with regard to
captures prior to the ratification of the Convention of 1800, and no
less than one hundred and four cases were submitted to the board. All
but four were rejected. The first rejections, in point of time, were
January 11, 1833, in two different cases, when we have the following
entries: “Caroline, captured February 10, 1798,--rejected,--_the vessel
having been captured before the 30th September, 1800_”; “Brig Orlando,
captured March 1, 1800,--rejected,--_the capture having been made
anterior to the 30th September, 1800_.”[240] The indemnities allowed by
the Commissioners were mainly for captures under the decrees of Berlin,
Milan, Rambouillet, and Trianon,--that succession of sweeping edicts
by which Napoleon at the height of power enforced his Continental
system. There were four awards for captures after the signature of
the Convention of 1800, and before its ratification. As such cases,
occurring during this intermediate period, were plainly saved from the
renunciation of the Convention of 1800,[241] and yet were not included
in the Convention of 1803, they came naturally within the scope of
the Convention of 1831. The claims in question had no such advantage.
Renounced in 1800, they were not adopted in 1831. But, ceasing to be
claims upon France, they have become claims upon the United States.
IV.--THESE CLAIMS NOT AFFECTED BY THE ACT OF CONGRESS ANNULLING THE
FRENCH TREATIES.
Then it is said that the French treaties were annulled by Act of
Congress, so as to render the set-off and mutual release a mere form,
and nothing else. This objection, also, proceeds in ignorance of the
question.
It is true, the United States, by Act of Congress, July 7, 1798,
declared the treaties heretofore concluded with France _no longer
obligatory_.[242] But the question still remained as to the effect of
this Act. Not purporting to be retrospective, all obligations under the
treaties at that date were fixed, whether on the part of the United
States or on the part of France. Therefore France, besides constant
liability under the Law of Nations, was liable also under the treaties
for all depredations anterior to this date, and the United States
were liable for all non-performance of obligations anterior to this
date. Assuming that the treaties were annulled, it is evident that the
anterior claims of each were not in any way affected; so that there was
still, even under the treaties, occasion for set-off and mutual release.
The depredations upon our commerce were not merely in violation of
ancient treaties, but also of the Law of Nations; so that, even if
the treaties were annulled, yet the Law of Nations remained with its
obligations and remedies. Our plenipotentiaries were instructed to
obtain compensation for captures and condemnations contrary to the Law
of Nations generally received in Europe, or to stipulations of treaty,
so long as the latter “remained in force.” As the treaties “remained in
force” until July 7, 1798, we were unquestionably liable to France for
indemnities to that day. Before that day the West India islands were
lost. Before that day we excluded French privateers and their prizes
from our ports. All proper damages for these things must have entered
into the French account against us. Therefore the annulling Act of
Congress could affect only the _quantum_ of consideration on both sides
at the set-off and mutual release, and not the fact of consideration.
But it is more than doubtful if the annulling Act could have the
effect attributed to it. Can one of two parties render a contract
void by mere declaration to that effect? Between two individuals this
cannot be done. Could it be done between two nations? Mr. Jefferson
thought not. At least, there is a report from him on another occasion
completely covering this case. These are his words: “It is desirable
in many instances to exchange mutual advantages by legislative acts
rather than by treaty; because the former, though understood to be in
consideration of each other, and therefore greatly respected, yet, when
they become too inconvenient, can be dropped at the will of either
party; _whereas stipulations by treaty are forever irrevocable but
by joint consent, let a change of circumstances render them ever so
burdensome_.”[243] Chief Justice Marshall quotes another opinion, where
a treaty was declared to be not only the law of the land, but a law of
a superior order, “because it not only repeals past laws, _but cannot
itself be repealed by future ones_.”[244] Such authority would seem
to settle this question, especially reinforced as it is by the Law of
Nations; for it must not be forgotten that the obligation of treaties
is determined by International Law rather than by Municipal Law.
Even supposing the Act of Congress had succeeded in annulling the
treaties, its effect, as regards France, was not so much to discharge
her claims as to make them perfect. In plain terms, it was a final
determination on our part not to fulfil the treaties. The circumstances
of the time, perhaps, rendered it necessary; but your Committee cannot
fail to observe, that, according to all principles of justice and the
established usage of nations, this very determination consummated the
right of France to indemnities for non-observance of the treaties. On
our part there was no longer any pretence to fulfil the treaties; so
that this very Act of Congress, which is cited to excuse us, may be
cited to condemn us.
Whatever the law of this case, even assuming, that, according to
good opinions, the treaties were annulled on the 7th July, 1798, it
is perfectly clear that at the negotiation of 1800 they were treated
by France as obligatory. On these she founded her counter-claims.
The present narrative shows her persistency. As often as our claims
were urged, her counter-claims were pressed in reply. And why ask
the renunciation of the treaties, if the Act of Congress had already
annulled them? Why, further, offer a large sum of money for release
from their obligations? Whatever the effect of the annulling Act
in the judgment of the American plenipotentiaries, it is clear
that they regarded the treaties as a cloud to be removed. And it
is equally clear that the French plenipotentiaries to the last
maintained the obligations of the treaties. The instructions of the
First Consul, before entering upon his Italian campaign, were to make
“the acknowledgment of former treaties the basis of negotiation and
the condition of compensation.”[245] It was the finality of these
instructions which at the time caused the dead-lock already described.
Thus, on the part of the United States, the obligation of the treaties
was denied subsequently to July 7, 1798, while on the part of France it
was affirmed as an indispensable condition down to the negotiation.
Therefore, on the part of the United States, there were claims under
the treaties anterior to July 7, 1798, and also under the Law of
Nations generally. On the part of France there were counter-claims
under the treaties down to the negotiation. Each side was tenacious.
Neither would yield. The time for compromise arrived. Then came the
set-off and mutual release. The transaction was between two nations,
but it was identical in character with transactions often occurring
between two individuals.
V.--EARLY PERSISTENCY TO SECURE INDEMNITIES FROM FRANCE NO GROUND OF
EXEMPTION FROM PRESENT LIABILITY.
The persistent efforts of our Government, anterior to the Convention of
1800, are sometimes brought forward as sufficient reason for present
indifference. This also is a mistake.
It is true that our Government exerted itself much. Considering
its comparative immaturity, it deserves credit for the courage and
determination with which it labored. But it must not be forgotten
that in all it did, even for the recovery of indemnities, it acted
under the duties and instincts of national defence. Our commerce was
despoiled, to the detriment of American citizens. But this grievance,
which went on assuming larger proportions, proceeded directly from the
_hostile spirit_ of France, aroused by alleged infraction of national
obligations on our part; so that behind the question of indemnities
rose always the question of self-defence. France made reprisals because
the United States refused compliance with solemn treaties, and, as is
usual in such cases, individual citizens were the sufferers. Defending
the interests of its citizens, the country itself was defended. To
abandon these interests, especially without securing an abandonment
of French pretensions, would have been an abandonment of the country,
leaving it the dishonored victim of untold exactions without end.
If this be correct,--and your Committee do not see how it can be
controverted,--there can be no boast of extraordinary efforts, all
of which, whatever form they assumed, were in the performance of a
patriotic duty, simple as the filial devotion of Cordelia, “according
to her bond, nor more nor less.”
And now the fidelity of that early day, when duty was done, is the
apology for infidelity to-day, when duty is left undone; and those
patriotic efforts are vouched as a title to present exemption.
Because the Government was zealous for indemnities when France was
responsible, _argal_ it may be indifferent now, when the United States
are substituted for France. Or has it come to this,--that it is
right to be zealous in pressing a foreign Government, but not right
to be zealous against ourselves, _when substituted for that foreign
Government_, as in the present case? Beyond the misconception of
public duty apparent in this pretence, it forgets the true state of
the question. Here, again, we are brought to the Convention of 1800,
when both claims and counter-claims were adjusted. If the claims on
our side had been deliberately rejected, or if our Government had been
compelled to withdraw, as in a case of nonsuit, the case might have
been otherwise. There was no rejection, and no nonsuit, but, as has
been so fully shown, a set-off and mutual release, by which each party
accorded to its adversary just as much as it claimed for itself. So
far as the two Governments were concerned, claims and counter-claims
were extinguished, and neither could look to the other; but it did
not follow that American citizens, whose “individual” claims had been
appropriated to extinguish “national” obligations, were cut off from
appeal to their own Government. On the contrary, the very zeal for
these claimants, while they looked to France, is still due in their
behalf, now that, by the action of their own Government, they must look
to their country.
It is sometimes said in sarcasm that it is easy to be generous at the
expense of another; but in this case, now that the responsibility
has been transferred to our own country, it is not a question of
generosity, but of debt. The property of these claimants is actually in
the hands of our Government, like assets paid over and deposited “for
whomsoever it may concern,”--or, to use a more pungent illustration,
like certain property to which there can be no valid title against
the original owner. Stolen goods may be followed wherever found. But
the vessels of these claimants were stolen by France, and at last are
found in the hands of our own Government. Will the Government hold them
against the real owners? For nearly ten years it denounced the conduct
of France. How, then, can it profit by this conduct at the expense of
its own citizens? If the receiver is as bad as the original offender,
how can the Government expect to escape the indignant condemnation it
fastened upon France? Least of all, how can any early persistency to
recover this property excuse its detention now?
VI.--THESE CLAIMS NEVER DESPERATE, SO AS TO BE OF NO VALUE.
Kindred to the last objection is the assertion that the claims were
intrinsically desperate, so as to be of no value,--an objection as
humiliating as false.
It is humiliating, because it assumes that claims solemnly declared
just, both by the executive and legislative branches,--the former
by successive acts of diplomacy, and the latter by successive Acts
of Congress,--were of “no value.” If this were true, then was our
Government, when it sued these claims, guilty of national _barratry_,
for which it would deserve to be thrown over the bar of nations. It was
a stirrer of false suits. Such an imputation is an impeachment of the
national character.
But it is false. The claims were never “desperate,” except so far
as they were doomed to meet the counter-claims of France. On the
contrary, they were intrinsically just, and their justice was often
admitted even by France, who advanced against them her own pretensions
under the treaties. And when the set-off and mutual release occurred,
their validity was solemnly recognized; nay, more, they were paid to
the United States. Such is the inconsistency of objectors, insisting
that claims thus recognized and paid were so far “desperate” as to be
of “no value,” when they were of sufficient value to form the sole
consideration of release from immeasurable national obligations. If you
would find a measure of value for the American claims, you must look
to the counter-claims of France, not forgetting that all the vehemence
with which these were sustained testifies unmistakably to our claims.
If we may judge from our national history, there is no reason to doubt
that these claims, if not released by our Government, would have been
fully satisfied by France afterwards. It is in the nature of claims
on foreign powers to seem desperate. Such was the case, as is well
remembered, with the claims on Denmark, on Spain, and on Naples; but
all these have been paid. _No just claim by the American Government can
be desperate._ What claims could seem more desperate than those under
the arbitrary, wide-spreading edicts of Napoleon Bonaparte in his pride
of place? But President Jackson, when Louis Philippe had become King,
made an appeal, as he expressed it, “to the justice and magnanimity
of regenerated France,”[246] and even these claims, accruing under
a Government which had ceased to exist, were satisfied. The claims
in question had as much intrinsic equity, and were more intimately
associated with the national sentiments. Asserting that they would
have been paid, the Committee are sustained not only by the reason of
the case, but by the judgment of the disinterested historian of our
country, who thus concludes his account of the Convention of 1800, and
its final ratification with the proviso of the First Consul:--
“Had the treaty been ratified in its original shape, the
sufferers by the spoliations of the French might, perhaps,
before now, have obtained that indemnity from the French
Government which they have ever since been asking of their own,
but which has hitherto been unjustly withheld.”[247]
There is no statute of limitations between nations; so that these
claims would have been as valid against France in 1831 as they
unquestionably were in 1800. A nation like the United States has
only “to bide its time,” and the day of justice will come. Indeed,
President Jackson, when dwelling on the negotiations with France in
1831, bore testimony to the vitality of American claims on foreign
powers, when he said that the new Convention would be “an encouragement
for perseverance in the demands of justice, by this new proof, that,
if steadily pursued, they will be listened to, and admonition will
be offered to those powers, if any, which may be inclined to evade
them, _that they will never be abandoned_.”[248] These words of Andrew
Jackson are a sufficient answer to the present objection.
ALL OBJECTIONS ANSWERED.
Such are the objections to the responsibility of the United States. The
Committee believe that they have all been answered, so that the claims
stand above impeachment or question, as a debt to be liquidated and
paid. It only remains to consider what sum should be appropriated for
this purpose.
JUST COMPENSATION.
The “just compensation” to be paid by the United States may be
regarded, according to the classical report of Mr. Livingston, in two
lights: _first_, the value of the advantages to the United States at
the expense of these claimants; and, _secondly_, the actual losses
sustained by these claimants. Neither is proposed as an absolute
measure. A glance at each will enable us to arrive, by approximation,
at a proper result.
VALUE OF ADVANTAGES TO THE UNITED STATES.
It is impossible to estimate in money the advantages to the United
States. Beyond the great boon of assured peace, under which our
commerce, no longer exposed to spoliation, put forth at once more than
its original life, two specific objects were gained: _first_, exemption
from all outstanding engagements and liabilities of every nature under
the early treaties with France; and, _secondly_, the establishment
of a new Convention, which, while rejecting much-debated claims and
counter-claims, provided positive advantages to the United States,
among which was that payment of “debts” subsequently assured by the
Louisiana Convention.
If the United States could be held responsible to France for the
treasure lavished on national independence, in pursuance of these
original treaties, there would be an item of fourteen hundred and
forty millions of francs, or about two hundred and eighty millions of
dollars.[249] The brave lives sacrificed for us cannot be estimated
in any account; but France did not forget them. Even amidst the
congratulations at Morfontaine in honor of the Convention, the First
Consul reminded the joyous company of the sacrifice. Beyond the toast
he proposed in honor of those who fell in battle for the independence
of the New World, there is no record of what was said by the successful
general of France; but old Homer, in one of his most touching passages,
had already spoken for him:--
“Life is not to be bought with heaps of gold;
Not all Apollo’s Pythian treasures hold,
Or Troy once held in peace and pride of sway,
Can bribe the poor possession of a day.
Lost herds and treasures we by arms regain,
And steeds unrivalled on the dusty plain;
But from our lips the vital spirit fled
Returns no more to wake the silent dead.”[250]
Under the sod of America, and under the waves of the Atlantic,
Frenchmen were sleeping whose lives had been given to the support of
our cause. If France did not forget them, let it be spoken in her
honor; but we cannot forget them, as we try to state the great account
between our two countries. Their swords, if flung into the scales,
whatever “heaps of gold” we might bring, would forever turn the balance
against us.
But how estimate the value of release from the “guaranty”
retrospectively and prospectively, as well for past failures as future
liabilities? It was often urged that the guaranty bound the United
States to the support of France only in the event of a defensive
war, and that the war in which she had been engaged was not of this
character. But it is more than doubtful if either proposition can be
maintained. The guaranty on its face has no limitation. And even if
it had such limitation, who will venture to say that the war in which
France drove back her multitudinous assailants, reinforced by the
navies of England, was not defensive? If France did not at once require
the execution of the guaranty, it was none the less a vital obligation.
That our Government appreciated the embarrassments, if not the
obligations, which the guaranty entailed, has already been shown by the
Committee. But there are certain words that may be fitly quoted again.
In the instructions of our Secretary of State to the first triumvirate
of plenipotentiaries at Paris, under date of July 15, 1797, it is
admitted that “our guaranty of the possessions of France in America
will perpetually expose us to the risk and expense of war, or to
disputes and questions concerning our national faith.” On this account
the plenipotentiaries were instructed to obtain its release, and “on
the part of the United States, instead of troops or ships of war, to
stipulate for a moderate sum of money or quantity of provisions, at
the option of France, … not to exceed two hundred thousand dollars
a year.”[251] This was moderate; but it was a recognition of the
guaranty, and of its practical value. The next triumvirate, at the
negotiation of 1800, offered more. They proposed to buy out the
guaranty by a payment of five millions of francs, or one million
of dollars.[252] It is needless to say that both these offers were
rejected.
It would be as difficult to measure in money the value of that
guaranty, retrospectively and prospectively, as to measure in money
our obligations to France in the assurance of national independence.
The liabilities for failure prior to 1800, if pressed, would not have
been inconsiderable. But had the guaranty continued so as to constrain
the United States throughout the long war that followed, ending at
Waterloo, what arithmetic can calculate the damage? Nay, more,--if, at
the present moment, any such guaranty bound us to France, who would not
feel that it was an obligation from which we must be released at any
price?
Besides the obligations of “guaranty,” were other engagements with
regard to French armed ships in our ports which had proved most
onerous. Here, also, was alleged failure on our part; and there was
the prospect of infinite embarrassment, if not of open war, unless
these obligations were cancelled. To keep them would cause collision
with England; not to keep them would cause collision with France. Our
plenipotentiaries offered, in the negotiation of 1800, three millions
of francs for release from these obligations.[253] This moderate offer
was rejected also.
France continued stubborn, insisting upon the ancient treaties, with
all consequent indemnities. At last, by the propositions of the 4th
of September, 1800, already exhibited by your Committee, a measure
of value was affixed to our engagements and liabilities. France
undertook to release us from all these on condition that we would
pay the indemnities due to our citizens, thus treating claims and
counter-claims as equivalent in value. It was required positively
that “the indemnities which shall be due by France to the citizens
of the United States _shall be paid for by the United States_.”[254]
In consideration of release from the treaties, the United States
were to assume the obligations of France to American claimants. How
this proposition, rejected at first, eventually prevailed in the
Convention and its successive amendments has been already explained.
It is mentioned now only to show the value of these engagements and
liabilities.
ACTUAL LOSSES TO CLAIMANTS.
The practical question remains, as to the actual losses of the
claimants. Here the evidence is precise and full.
Our own Government, when pressing these claims upon France, gave an
official estimate of their value. On one occasion it put them above
fifteen million dollars.[255] Afterward it put them at twenty million
dollars. The latter estimate is found in a report from the Secretary of
State to Congress, under date of January 18, 1799, where it speaks of
“unjust and cruel depredations on American commerce, which have brought
distress on multitudes and ruin on many of our citizens, and occasioned
_a total loss of property to the United States of probably more than
twenty millions of dollars_.”[256] Inquiry into the losses confirms
this statement. From evidence presented to committees in former
years, and now belonging to history, it has been estimated that there
were _eight hundred and ninety-eight vessels_ included in the claims
released to France.[257]
The American vessels despoiled by France between 1792, the outbreak of
the European war, and July 31, 1801, when the Convention of 1800, with
its proviso, was ratified by Napoleon Bonaparte, have been reckoned
at two thousand two hundred and ninety, embracing as follows: first,
vessels captured by the French; secondly, vessels captured by the
French and Spaniards conjointly; thirdly, vessels detained by embargo
at Bordeaux. The following list shows how the account stands.
_List of Vessels in different Classes despoiled by France._[258]
Whole number 2,290
From which deduct as follows:--
1. Vessels paid for by special decrees of France 14
2. Vessels paid for under the Convention of 1803, viz.:--
For embargoes 103
For contracts 270
For prize causes under order of restitution 6
---- 379
3. Vessels rejected under Convention of 1803, viz.:--
For contracts or supplies 102
For prize causes 26
---- 128
4. Vessels paid for by Spain under the Florida treaty
of 1819 173
5. Vessels rejected under Florida treaty 191
6. Vessels paid for under Convention with France of
July 4, 1831, being for captures between the
signing and ratification of the Convention of
1800 4
7. Vessels rejected for want of merit, neglect of claimants,
loss of proof, and other contingencies,
reckoned at 503
---- 1,392
------
898
Thus we are brought to the number of _eight hundred and ninety-eight
vessels_ bartered to France.
To arrive at the value of these vessels, the Committee have been led
to look at the estimate of vessels under conventions with other powers
for the payment of similar claims. Here is a list allowed by different
powers, with the average of each vessel:--
Vessels. Averages.
Great Britain 217 $47,672.81
Spain 40 8,136.49
France 357 10,504.20
Spain 320 15,625.00
Denmark 112 5,987.17
France 361 12,984.71
Naples 51 37,745.00
Spain 20 30,000.00
Mexico 64 31,658.43
Colombia 5 21,474.53
------ ----------
1,547 $221,788.34
From this list it appears that Mexico has paid as high an average as
$31,000 for each vessel; Naples, $37,000; and Great Britain, $47,000.
The general average of the whole list is $19,000.
If the vessels despoiled by France were estimated according to the
highest average, namely, that of vessels despoiled by Great Britain,
the sum-total would swell to no less than $42,206,000; estimated
according to the general average, the amount is $17,062,000.
But the valuation which has been deemed most satisfactory is that
presented in the indemnity paid by Spain for the French spoliations
on our commerce in her ports during this period, amounting, for 173
vessels, to $2,845,619, being an average of $16,500 for each vessel.
Adopting this average, we have as the aggregate value of the 898
vessels yielded to France under the Convention of 1800, and lost to our
merchants, the sum of $14,817,000,--nearly _fifteen million dollars_.
This estimate, tested by the official statements, fixing the
spoliations in October, 1797, at fifteen millions, and in January,
1799, at twenty millions, will appear at least not excessive,--adding
for the continued spoliations during the succeeding two years and a
half to July, 1801, only the very moderate allowance of two and one
half millions, (being in the ratio of but one fourth the increase
for the fifteen months between the two former dates,) and deducting
payments. Here are the figures:--
Official estimate of January, 1799 $20,000,000
Additional to July, 1801, say 2,500,000
----------
$22,500,000
Deduct therefrom--
1. Vessels paid for by France, fifty-two cases,
at the average $16,500 $858,000
2. Debts paid under Convention of 1803 3,750,000
3. French spoliations, paid for under treaty
with Spain of 1819 2,845,619
----------
7,453,619
----------
Sum-total, after deductions $15,046,381
If to this estimate interest be added, even at the smallest rate, the
losses of these sufferers will assume vastly larger proportions. More
than sixty years have run their course since the United States, by a
public act and for a valuable consideration, became their debtor. From
the beginning the country has enjoyed without price all the “national”
benefits originally secured at their expense, as part of the national
capital with its bountiful income, while these claimants have been shut
out from their property, and all its just profits. If interest be due
on any national debt, it is difficult to see why it is not due here.
Never was a case stronger. Nor is there any doubt with regard to the
rule. According to the best authorities, whether publicists or courts,
interest is justly due. Though swelling the national liability, it is
none the less an item in the case.
It will be borne in mind that these claims are under the Law of
Nations. As such, the rule of damages is under that law, and not
Municipal Law. Therefore the Committee resort to the Law of Nations.
Among all the authorities, none has spoken more fully and clearly than
Rutherforth; nor is there any one whose words on this point are oftener
cited. Here is the rule:--
“In estimating the damages which any one has sustained, where
such things as he has a perfect right to are unjustly taken
from him, or withholden, or intercepted, we are to consider not
only the value of the thing itself, but the value likewise of
the fruits or profits that might have arisen from it. He who is
the owner of the thing is likewise the owner of such fruits or
profits. So that it is as properly a damage to be deprived of
them as it is to be deprived of the thing itself.”[259]
Grotius says substantially the same.[260] So does Vattel, who declares
that claimants may obtain “what is due, _together with interest and
damages_.”[261] And Wheaton copies Vattel.[262] The Supreme Court of
the United States gives the same rule with nearly equal simplicity:--
“The prime cost, or value of the property lost at the time of
the loss, and, in case of injury, the diminution in value by
reason of the injury, _with interest upon such valuation_,
affords the true measure for assessing damages.”[263]
Such is the law of interest, and the Committee refer to it as
illustrating the accumulated losses which await satisfaction at the
hands of Congress.
RECOMMENDATIONS OF THE COMMITTEE.
The Committee, impressed by the original justice of these claims
and the present obligation of the United States, do not hesitate to
recommend their liquidation and payment at an early day, as they would
recommend the discharge of a national debt. While setting forth the
unanswerable evidence of their value, they content themselves with
the recommendation made many years ago, and repeated by successive
committees of both Houses of Congress, limiting the appropriation to
a sum not exceeding five million dollars, without interest, to be
distributed by a board of commissioners _pro rata_ among the claimants,
according to the provisions of the bill reported herewith. The
limitation is a departure from strict justice, but it is part of the
additional sacrifice which seems to be expected by Congress from these
long-suffering claimants.
In deference to the Secretary of the Treasury,[264] who, when consulted
thereupon, objected to the creation of a stock for this special
purpose, as provided in former bills, it is proposed that the money be
paid whenever Congress shall make an appropriation therefor.
By positive description the bill is made to cover claims for
illegal captures and condemnations prior to July 31, 1801, the date
of the final ratification of the Convention. But, by positive words
of exclusion, it is provided that the bill shall not cover claims
originally embraced in the Louisiana Convention of 1803, in the treaty
with Spain of 22d February, 1819, or in the Convention with France of
July 4, 1831; so that, in point of fact, the bill is carefully limited
to those original claims which, after postponement by the second
article of the Convention of 1800, were, at its final ratification,
definitely renounced by the United States, in consideration of
equivalent renunciations from France.
CONCLUSION.
The Committee have now finished the review which, in the discharge of
public service, they were called to make. Approaching a much vexed
question without prejudice, they have striven to consider it with
candor, in the hope of ascertaining and exhibiting the requirements
of duty. The conclusion they have adopted, in harmony with so many
previous committees of both houses, and also with Congress itself,
which has twice enacted a law for the satisfaction of these claims, is
now submitted to the judgment of the Senate.
How the Committee have reached this conclusion is seen by a final
glance at the field that has been traversed. Putting aside the three
preliminary objections to these claims,--(1.) that they are ancient
and stale, (2.) that they have passed into the hands of speculators,
and (3.) that they should be postponed on account of the present
condition of public affairs,--the Committee have considered in order
four principal topics: _First_, the claims of American citizens on
France, as they appear in the history of the times; _secondly_, the
counter-claims of France, as they, too, appear in the history of the
times; _thirdly_, how the “individual” claims of American citizens
were sacrificed to procure release of the “national” claims of France
by a proceeding in the nature of set-off and mutual release; and,
_fourthly_, how the United States, for a valuable consideration,
assumed the obligations of France, so as to become completely
responsible therefor. Not content with showing affirmatively the
merits of the claimants, the Committee next examined all known
objections to the asserted responsibility of the United States,
establishing negatively: (1.) that the relations between France and
the United States were at no time such as to constitute a state of
war, invalidating the claims; (2.) that they were not embraced in
the Convention for the purchase of Louisiana; (3.) that they were
not embraced in the later Convention of 1831; (4.) that the alleged
annulling of the French treaties by Act of Congress did not affect
them; (5.) that the early efforts of our Government with France,
for their satisfaction, furnish no ground of exemption from present
liability; and (6.) that the claims, at the time of their abandonment,
were not desperate, so as to be without value.
With the removal of all known objections, the way was open to consider
the extent of “just compensation” under three different heads: (1.)
the advantages secured to the United States by the sacrifice of these
claimants; (2.) the actual losses of these claimants; and (3.) the
final recommendations of the Committee.
Such is the whole case in its divisions and subdivisions. There is
one reflection which belongs naturally to the close. These claims have
survived several generations, entwining themselves each year with the
national history. Meanwhile the Republic, for whose advantage they
were sacrificed, has outgrown the puny condition of that early day,
when its commerce was the prey of France, and even the sacred debt
for independence was left unpaid. These claimants have been called to
remark the glorious transformation by which the weak has become strong
and the poor has become rich; with glistening eye they have followed
the flag of the country, as it was carried successfully in every sea;
with sympathetic heart they have heard the name of the country sounded
with honor in every land; and now they joyfully witness the unexampled
resources with which it upholds the national cause against an
unexampled rebellion;--but these claimants have been called to observe,
especially, how, for many years, unchecked by hindrances, the National
Government labored successfully with foreign powers to secure justice
for despoiled citizens, until all nations--Great Britain, Spain,
Denmark, Naples, Holland, Mexico, Colombia, Peru, and Chile--have
yielded to persistent negotiation, and even France has paid indemnities
to our citizens for spoliations subsequent to these very claims. All
this history these claimants have observed with pride; but how can they
forbear to exclaim at the sacrifice required of them,--that they alone,
the pioneers of our commercial flag, are compelled “in suing long to
bide,” while part of the debt for national independence is cast upon
their shoulders, and the whole country enjoys priceless benefits at
their expense? Well may these disappointed suitors, hurt by unfeeling
indifference to their extensive losses, and worn with endless delay,
cry out in bitterness of heart, “Give us back our ships!” But this
cannot be done. It only remains that Congress should pay for them.
APPENDIX.
LIST OF REPORTS OF COMMITTEES.
--+------+-----------------+-------+---------+----------------+--------
N | | | | | |
u | | | | | |
m |Where | By whom |Commit | Date. | Bills and |Detailed
b |repor-| reported. |-tee. | | reports. |reports.
e | ted. | | | | |
r.| | | | | |
--+------+-----------------+-------+---------+----------------+--------
1|House |Mr. Giles[265] |Select |April 22,| |R.
| | | |1802 | |
2|House |Mr. Marion |Select |Feb. 18, |Favorable |R.
| | | |1807 | |
3|Senate|Mr. Roberts |Claims |Mar. 3, |Adverse |R. 124
| | | |1818 | |
4|House |Mr. Russell |Foreign|Jan. 31, |Adverse |R. 32
| | |Affairs|1822 | |
5|House |Mr. Forsyth |Foreign|Mar. 25, |Adverse |R. 94
| | |Affairs|1824 | |
6|Senate|Mr. Holmes |Select |Feb. 8, |Favorable |R. 48
| | | |1827 | |
7|House |Mr. E. Everett |Foreign|May 21, |Favorable |R. 264
| | |Affairs|1828 | |
8|Senate|Mr. Chambers |Select |May 24, |Favorable |R. 206
| | | |1828 | |
9|Senate|Mr. Chambers |Select |Feb. 11, |Favorable, bill |R. 76
| | | |1829 | |
10|House |Mr. E. Everett |Foreign|Feb. 16, |Favorable |R. 82
| | |Affairs|1829 | |
11|Senate|Mr. E. Livingston|Select |Feb. 22, |Favorable, bill |R. 68
| | | |1830 | |
12|Senate|Mr. E. Livingston|Select |Dec. 21, |Favorable, bill |R. 32
| | | |1830 | |
13|Senate|Mr. Wilkins |Select |Jan. 26, |Favorable, bill |
| | | |1832 | |
14|Senate|Mr. Chambers |Select |Dec. 20, |Favorable, bill |
| | | |1832 | |
15|Senate|Mr. Webster[266] |Select |Dec. 10, |Favorable, bill |
| | | |1834 | |
16|House |Mr. E. Everett }|Foreign|Feb. 21,{|Favorable }|R. 121
| |Mr. Cambreleng }|Affairs|1835 {|Adverse }|
17|House |Mr. Howard |Foreign|Jan. 20, |Favorable, bill |R. 445
| | |Affairs|1838 | |
18|House |Mr. Cushing |Indivi-|Mar. 31, |Favorable |
| | |dual |1838 | |
19|House |Mr. Cushing }|Foreign|April 4,{|Favorable, bill}|R. 343
| |Mr. Pickens }|Affairs|1840 {|Minority Adv’s }|
20|House |Mr. Cushing |Foreign|Dec. 29, |Favorable, bill |R. 16
| | |Affairs|1841 | |
21|Senate|Mr. Choate |Foreign|Jan. 28, |Favorable, bill |
| | |Relat’s|1842 | |
22|Senate|Mr. Archer |Foreign|Jan. 5, |Favorable, bill |
| | |Relat’s|1843 | |
23|House |Mr. C. J. |Foreign|April 17,|Favorable, bill |
| | Ingersoll |Affairs|1844 | |
24|Senate|Mr. Choate |Foreign|May 29, |Favorable, bill |
| | |Relat’s|1844 | |
25|Senate|Mr. Choate |Foreign|Dec. 23, |Favorable, bill |
| | |Relat’s|1844 | |
26|Senate|Mr. J. M. |Select |Feb. 2, |Favorable, bill |
| | Clayton[267] | |1846 | |
27|House |Mr. Tru. |Foreign|July 13, |Favorable, bill |
| | Smith[268] |Affairs|1846 | |
28|Senate|Mr. Morehead |Select |Feb. 10, |Favorable, bill |R. 144
| | | |1847 | |
29|House |Mr. Tru. Smith |Foreign|Jan. 4, |Favorable, bill |
| | |Affairs|1848 | |
30|Senate|Mr. Tru. |}Select|Feb. 5, {|Favorable, bill}|R. 44
| | Smith[269] |} |1850 {|Minority Adv’s }|
| |Mr. Hunter |} | | |
31|House |Mr. Buel |Foreign|June 14, |Favorable, bill |R. 355
| | | |1850 | |
32|Senate|Mr. Bradbury }|Select |Jan. 14,{|Favorable, bill}|R. 26
| |Mr. Felch }| |1852 {|Minority Adv’s }|
33|Senate|Mr. Hamlin[270] |Select |Jan. 17, |Favorable, bill |
| | | |1854 | |
34|House |Mr. Bayly[271] |Foreign|Jan. 4, |Favorable, bill |
| | |Affairs|1854 | |
35|House |Mr. Pennington |Foreign|Mar. 3, |Favorable, bill |
| | |Affairs|1857 | |
36|Senate|Mr. |Select |Feb. 4, |Favorable, bill |R. 53
| | Crittenden[272]| |1858 | |
37|House |Mr. Clingman |Foreign|May 5, |Favorable, bill |
| | |Affairs|1858 | |
38|House |Mr. Royce |Foreign|Mar. 29, |Favorable, bill |R. 259
| | |Affairs|1860 | |
39|Senate|Mr. Crittenden |Select |June 11, |Favorable, bill |
| | | |1860 | |
40|Senate|Mr. Sumner |Foreign|Jan. 13, |Favorable, bill |
| | |Relat’s|1862 | |
41|Senate|Mr. Sumner |Foreign|Jan. 20, |Favorable, bill |
| | |Relat’s|1863 | |
--+------+-----------------+-------+---------+----------------+--------
NO PROPERTY IN MAN: UNIVERSAL EMANCIPATION WITHOUT COMPENSATION.
SPEECH IN THE SENATE, ON THE CONSTITUTIONAL AMENDMENT ABOLISHING
SLAVERY THROUGHOUT THE UNITED STATES, APRIL 8, 1864.
The property in horses was the gift of God to man at the
creation of the world; the property in slaves is property
held and acquired by crime, differing in no moral aspect from
the pillage of a freebooter, and to which no lapse of time
can give a prescriptive right--JOHN QUINCY ADAMS, _Speech at
Bridgewater_, November 6, 1844.
* * * * *
Swift with her Pand she issued and unclosed
The loathsome sties wherein the swine reposed.
…
They men became, but younger than before,
More beauteous far, and far majestic more.
_Odyssey_, tr. SOTHEBY, Book X. 398-407.
* * * * *
The Christian religion is equal in its operation, and is
accommodated to every nation on the globe. It robs no one of
his freedom, violates none of his inherent rights, on the
ground that he is a slave by nature, as pretended; and it well
becomes your Majesty to banish so monstrous an oppression from
your kingdoms in the beginning of your reign, that the Almighty
may make it long and glorious.--LAS CASAS, _Address before
Charles V.: Prescott’s History of the Conquest of Mexico_, Vol.
I. p. 379, Note.
* * * * *
In a clause of his will Cortés expresses a doubt whether it is
right to exact personal service from the natives, and commands
that a strict inquiry shall be made into the nature and value
of such services as he had received, and that in all cases a
fair compensation shall be allowed for them. Lastly, he makes
this remarkable declaration: “It has long been a question,
whether one can conscientiously hold property in Indian slaves.
Since this point has not yet been determined, I enjoin it on my
son Martin and his heirs that they spare no pains to come to an
exact knowledge of the truth, as a matter which deeply concerns
the conscience of each of them, no less than mine.”--CORTÉS,
_his Testament_: Ibid., Vol. III. p. 345.
* * * * *
Mais certes, s’il y a rien de clair et d’apparent en la nature,
et en quoy il ne soit pas permis de faire l’aveugle, c’est cela
que nature, le ministre de Dieu et la gouvernante des hommes,
nous a tous faits de mesme forme, et, comme il semble, à mesme
moule, afin de nous entrecognoistre tous pour compaignons, ou
plus tost frères.--LA BOËTIE, _De la Servitude Volontaire_:
Œuvres, ed. Feugère, (Paris, 1846,) p. 26.
* * * * *
Quand est-ce donc un homme de Dieu goûtera le plaisir de la
liberté dans toute son étendue? Quand il ne la goûtera que dans
ses frères affranchis.--BOSSUET, _Panégyrique de Saint Pierre
Nolasque_, Point II.
* * * * *
Et qu’on ne dise pas, qu’en supprimant l’esclavage, le
Gouvernement violeroit la propriété des colons. Comment
l’usage, ou même une loi positive, pourroit-elle jamais donner
à un homme un véritable droit de propriété sur le travail, sur
la liberté, sur l’être entier d’un autre homme innocent, et
qui n’y a point consenti? En déclarant les nègres libres, _on
n’ôteroit pas au colon sa propriété_; on l’empêcheroit de faire
un crime, et l’argent qu’on a payé pour un crime n’a jamais
donné le droit de le commettre.--CONDORCET, _Note 109 sur les
Pensées de Pascal_.
* * * * *
Allegiance to that Power that gives us the _forms_ of men
commands us to maintain the _rights_ of men; and never yet was
this truth dismissed from the human heart,--never in any time,
in any age,--never in any clime where rude man ever had any
social feeling, or where corrupt refinement had subdued all
feelings; never was this one unextinguishable truth destroyed
from the heart of man, placed as it is in the core and centre
of it by his Maker, that man was not made the property of
man.--RICHARD BRINSLEY SHERIDAN, _Speech on the Trial of Warren
Hastings_, June 6, 1788: _Moore’s Memoirs of Sheridan_ (London,
1825), Vol. I. p. 505.
* * * * *
In each of these cases [the United States and Russia] the
slaves and the serfs are not ripe for freedom; no enslaved
people ever are; and to wait, before you bestow liberty or
political rights, till the recipients are fit to employ them
aright, is to resolve not to go into the water till you can
swim. You must make up your mind to encounter many very
considerable evils at first, and for some time, while men are
learning to use the advantages conferred on them.--ARCHBISHOP
WHATELY, _Annotations to Bacon’s Essays_: Essay XXI., _Of
Delays_.
* * * * *
Non-seulement ma liberté est à moi, par la seule grâce de
Dieu, comme ma vie, et personne n’en peut disposer à ma place,
mais je ne suis pas maître d’en disposer moi-même. Ce n’est pas
assez de dire, que la liberté est un droit: la liberté est un
devoir.--JULES SIMON, _La Liberté_, Tom. I. p. 26.
* * * * *
The first public movement for an Amendment of the National
Constitution, abolishing Slavery, was a resolution presented
by the devoted Abolitionist, Henry C. Wright, and adopted by
the American Antislavery Society at its anniversary meeting
in Philadelphia, December 4, 1863. In a letter to Mr. Sumner,
January 13, 1870, Mr. Wright recounted the history of this
resolution, which he set forth, prefixing the original in the
handwriting of Mr. Sumner:--
“That the voice of the people is heard through petitions
to Congress, and this Convention earnestly recommend that
this voice be raised in petitions for an Amendment of the
Constitution, declaring that Slavery shall be forever
prohibited within the limits of the United States.
“CHARLES SUMNER.
“ON BOARD OF STEAMBOAT EMPIRE STATE.”
Mr. Wright adds:--
“This is in your hand. On the back, in my hand, are the
words: ‘Saloon of Steamer Empire State, on Long Island
Sound, Wednesday, A. M., December 2, 1863. Adopted by the
American Antislavery Society, at its thirtieth anniversary
or third decade meeting, held in Philadelphia, December
3d and 4th, 1863. Adopted December 4th, Friday. Presented
by Henry C. Wright, of Boston, and adopted by the Society
without a dissenting voice.’
“HENRY C. WRIGHT.”
Mr. Wright afterwards communicated these facts to the press.
December 14, 1863, in the House of Representatives, Mr. Ashley,
of Ohio, introduced a Constitutional Amendment abolishing
Slavery, in these terms:--
“Slavery is hereby forever prohibited in all the States of
the Union, and in all Territories now owned or which may
hereafter be acquired by the United States.”
On the same day, Mr. Wilson, of Iowa, introduced another, in
these terms:--
“Slavery, being incompatible with a free Government, is
forever prohibited in the United States, and involuntary
servitude shall be permitted only as a punishment for
crime.”
January 11, 1864, in the Senate, Mr. Henderson, of Missouri,
proposed the following amendment:--
“Slavery or involuntary servitude, except as a punishment
for crime, shall not exist in the United States.”
This was referred to the Committee on the Judiciary.
February 8th, while the Committee had the question still under
consideration, Mr. Sumner proposed an Amendment as follows:--
“ARTICLE --. Everywhere within the limits of the United
States, and of each State or Territory thereof, all persons
are equal before the law, so that no person can hold
another as a slave.”
Mr. Sumner moved the reference of the joint resolution
containing his Amendment to the Select Committee on Slavery
and Freedmen, of which he was Chairman. Mr. Trumbull thought
it had better go to the Committee on the Judiciary, to which
the other proposition had been referred. Mr. Sumner remarked,
that already petitions against the Fugitive Slave Act had
been reported from the Committee on the Judiciary with the
recommendation that they be referred to the other Committee,
that the terms of the resolution raising this Committee were
broad enough to cover every proposition relating to Slavery,
and that, in fact, petitions relating to a Constitutional
Amendment had already been referred to this Committee. If after
this statement the Senator desired that the joint resolution
should be referred to the Committee of which he was the
honored head, Mr. Sumner consented with the greatest pleasure.
Mr. Trumbull expressed the opinion that “the appropriate
Committee for all propositions to change the Constitution was
the Judiciary Committee,” and in this opinion Mr. Doolittle
concurred. Mr. Sumner was perfectly willing to follow the
suggestion made. His chief desire was that the Committee would
“act upon it soon.”
Meanwhile Mr. Saulsbury, of Delaware, moved that the joint
resolution be indefinitely postponed, which was lost,--Yeas 8,
Nays 31. It was then referred to the Committee on the Judiciary.
February 10th, Mr. Trumbull reported back the two joint
resolutions, and the various petitions on the subject, with
a substitute, as an amendment to the joint resolution of Mr.
Henderson, in the following terms:--
“SECTION 1. Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.
SECTION 2. Congress shall have power to enforce this
article by appropriate legislation.”
February 17th, Mr. Sumner, inferring from the report of
the Committee a disposition to follow the Ordinance for the
Northwest Territory, and also thinking it desirable to expel
from the Constitution clauses alleged to concern Slavery,
gave notice of the following substitute, the first clause of
which is modelled precisely on the famous prohibition in the
Ordinance.
“ARTICLE 13.
“SECTION 1. There shall be neither slavery nor involuntary
servitude anywhere in the United States, or within the
jurisdiction thereof, otherwise than in the punishment of
crimes whereof the party shall have been duly convicted;
and the Congress may make all laws which shall be necessary
and proper to enforce this prohibition.
“SECTION 2. In the third paragraph of the second section
of the first article, concerning the apportionment of
Representatives, the following words shall be struck out,
so as to be no longer a part of the Constitution, namely:
‘Which shall be determined by adding to the whole number of
free persons, including those bound to service for a term
of years, and excluding Indians not taxed, three fifths of
all other persons,’ except the words ‘excluding Indians
not taxed,’ which shall be allowed to remain, so that the
whole clause shall read: ‘Representatives and direct taxes
shall be apportioned among the several States which may be
included within this Union according to their respective
numbers, excluding Indians not taxed.’
“SECTION 3. The whole of the third paragraph of the
second section of the fourth article, in the words hereto
appended, shall be struck out, so as to be no longer a part
of the Constitution, namely: ‘No person held to service or
labor in one State, under the laws thereof, escaping into
another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such
service or labor may be due.’”
March 28th, the Senate, as in Committee of the Whole,
proceeded to consider the joint resolution, the pending
question being the substitute of the Committee. Mr. Trumbull
opened the debate by an elaborate speech, in which he said: “If
we are to get rid of the institution of Slavery, we must have
some more efficient way of doing it than by the Proclamations
that have been issued or the Acts of Congress which have been
passed.… Sir, in my judgment, the only effectual way of ridding
the country of Slavery, and so that it cannot be resuscitated,
is by an Amendment of the Constitution, forever prohibiting it
within the jurisdiction of the United States. It is reasonable
to suppose, that, if this proposed Amendment passes Congress,
it will within a year receive the ratification of the requisite
number of States to make it a part of the Constitution. That
accomplished, and we are forever freed of this troublesome
question.… We take this question entirely away from the
politics of the country; we relieve Congress of sectional
strifes; and, what is better than all, we restore to a whole
race that freedom which is theirs by the gift of God, but which
we for generations have wickedly denied them.” Mr. Wilson,
of Massachusetts, made an effective speech, whose character
appears in its title, as published: “The Death of Slavery
is the Life of the Nation.” Then followed, on successive
days, speeches from Mr. Davis, of Kentucky, Mr. Saulsbury,
of Delaware, Mr. McDougall, of California, Mr. Hendricks,
of Indiana, and Mr. Powell, of Kentucky, all against the
Amendment. Mr. Davis declared that “the most operative single
cause of the pending war was the intermeddling of Massachusetts
with the institution of Slavery,” and it was an “objection of
overruling weight, that no revision of the Constitution, in any
form, ought to be undertaken under the auspices of the party in
power.” Mr. Saulsbury said: “Immediately after the Flood, the
Almighty condemned a whole race to servitude. He said, ‘Cursed
be Canaan!’” In behalf of the Amendment were able speeches
by Mr. Clark, of New Hampshire, Mr. Howe, of Wisconsin, Mr.
Reverdy Johnson, of Maryland, Mr. Harlan, of Iowa, Mr. Hale, of
New Hampshire, and Mr. Henderson, of Missouri.
April 8th, the last day of debate, Mr. Sumner made the speech
which follows this Introduction.
* * * * *
During the discussion there were several votes. Mr. Davis
moved as a substitute, “No negro, or person whose mother or
grandmother is or was a negro, shall be a citizen of the United
States, or be eligible to any civil or military office or to
any place of trust or profit under the United States.” This
was lost,--Yeas 5, Nays 32. Mr. Davis then proposed to add to
the first section of the proposed article: “But no slave shall
be entitled to his or her freedom under this Amendment, if
resident, at the time it takes effect, in any State the laws of
which forbid free negroes to reside therein, until removed from
such State by the Government of the United States.” This was
rejected without a division. Mr. Davis further proposed to add
at the end of the second section, that, “when this Amendment of
the Constitution shall have taken effect by freeing the slaves,
Congress shall provide for the distribution and settlement of
all the population of African descent in the United States
among the several States and Territories in proportion to the
white population of each State and Territory.” This also was
rejected without a division, as was another Amendment by him
concerning the election of President and Vice-President. Mr.
Powell moved to add to the first section: “No slave shall be
emancipated by this article, unless the owner thereof shall be
first paid the value of the slave or slaves so emancipated.”
This was rejected,--Yeas 2, Nays 34.
Mr. Sumner offered his substitute in these terms:--
“All persons are equal before the law, so that no person
can hold another as a slave; and the Congress may make all
laws necessary and proper to carry this article into effect
everywhere within the United States and the jurisdiction
thereof.”
Concerning the Amendment of the Committee he remarked:--
“It starts with the idea of reproducing the Jeffersonian
Ordinance. I doubt the expediency of reproducing that
Ordinance. It performed an excellent work in its day, but
there are words in it which are entirely inapplicable to
our time. They are the limitation, ‘otherwise than in the
punishment of crimes whereof the party shall have been duly
convicted.’ Now, unless I err, there is an implication from
those words that men may be enslaved as a punishment of
crimes whereof they shall have been duly convicted. There
was a reason for that at the time; for I understand that
it was the habit in certain parts of the country to doom
persons as slaves for life as a punishment for crime, and
it was not proposed to prohibit this habit. But Slavery
in our day is something distinct, perfectly well known,
requiring no words of distinction outside of itself. Why,
therefore, add the words, ‘nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted’? To my mind they are entirely
surplusage. They do no good there, but absolutely introduce
a doubt.
“In placing a new and important text in our Constitution
we cannot be too careful. We should consider well that
the language adopted in this Chamber to-day will in all
probability be adopted in the other House, and it must be
adopted, also, by three fourths of the Legislatures of
the States. Therefore we have every motive, the strongest
inducement in the world, to make that language as perfect
as possible. I do not hesitate to say, that I object to
the Jeffersonian Ordinance, even if presented here in its
original text. But now I am brought to the point that
the proposition of the Committee is not the Jeffersonian
Ordinance, except in its bad feature. In other respects, it
discards the language of the Jeffersonian Ordinance, and
also its collocation of words.”
Mr. Trumbull replied, that the Committee, upon discussion and
examination, had come to their conclusion. “I do not know,”
he said, “that I should have adopted these precise words, but
a majority of the Committee thought they were the best words;
they accomplish the object; and I cannot see why the Senator
from Massachusetts should be so pertinacious about particular
words.” He hoped Mr. Sumner would withdraw his proposition.
Mr. Howard, of Michigan, wished as much as Mr. Sumner
to use significant language that cannot be mistaken or
misunderstood; but he preferred to dismiss all reference to
French constitutions or French codes, and “go back to the
good old Anglo-Saxon language employed by our fathers in the
Ordinance of 1787, an expression which has been adjudicated
upon repeatedly, which is perfectly well understood both by the
public and by judicial tribunals.”
Mr. Sumner withdrew his proposition, which he called a
“suggestion” only, and also “a sincere effort to contribute
as much as he could to improve the proposition in form,” but
could not resist the appeal of his friend, the Chairman of the
Committee. He forbore to press any amendment.
Mr. Sumner often regretted that he had not insisted upon a vote
on striking out the clause giving implied sanction to slavery
or involuntary servitude as “a punishment for crime.”
April 8th, on the passage of the joint resolution, the vote
stood, Yeas 38, Nays 6, when the Vice-President announced that
the joint resolution, having received the concurrence of two
thirds of the Senators present, was passed.
May 31st, the joint resolution was taken up in the House of
Representatives. Mr. Holman, of Indiana, objected to its second
reading, and the Speaker stated the question, “Shall the joint
resolution be rejected?” On this question the vote stood, Yeas
55, Nays 76; and the joint resolution was not rejected. An
excited debate occupied several days.
June 15th, the vote was taken, and it stood, Yeas 95, Nays
66, not voting 21. So the joint resolution failed, two
thirds not voting in its favor. Mr. Ashley, of Ohio, a most
strenuous supporter of the Constitutional Amendment, changed
his vote from the affirmative to the negative, so as to move
a reconsideration, which motion he made in the evening, and
it was duly entered on the Journal, thus holding the joint
resolution in suspense. The session of Congress closed without
further action.
At the next session the President in his Annual Message
reminded Congress of the pending Constitutional Amendment, and
recommended its “reconsideration and passage,” adding, that by
the recent election the will of the majority was “most clearly
declared in favor of such Constitutional Amendment.” January
6, 1865, on motion of Mr. Ashley, the House of Representatives
took up his motion to reconsider the vote of rejection.
The debate, which was opened by him in an earnest speech,
proceeded, with some interruptions, until January 31st, when
he called the previous question on the motion. Mr. Stiles,
of Pennsylvania, moved to lay the motion to reconsider on
the table, which was lost,--Yeas 57, Nays 111. The previous
question was then ordered. On the motion to reconsider, the
vote stood, Yeas 112, Nays 57, not voting 13; but, a majority
being sufficient for this purpose, the motion to reconsider
was agreed to. The question then recurred on the passage of
the joint resolution, when, on motion of Mr. Ashley, the
previous question was ordered. Before this was done, he stated
that to hasten a vote he had declined speaking. Mr. Brown,
of Wisconsin, asked him to yield, so that he might “offer a
substitute for the joint resolution.” Mr. Ashley could not
yield; he had a substitute himself, which he should much prefer
to the original joint resolution, but he did not offer it. On
its final passage the vote stood, Yeas 119, Nays 56, not voting
8. So the two thirds required by the Constitution having voted
in its favor, the joint resolution was passed.
All possible preparation had been made for the vote, and the
attendance was unusually large, both of Representatives and
spectators. The people throughout the country awaited the
result with profound interest. The announcement by the Speaker
was received with an outburst of enthusiasm in the Chamber.
The Republican Representatives sprang to their feet and
applauded with cheers and clapping of hands. The spectators in
the crowded galleries followed the example, and for several
minutes the Chamber was a scene of joy and congratulation. Mr.
Ingersoll, of Illinois, then said, “In honor of this immortal
and sublime event, I move that the House do now adjourn”; and
the House adjourned.
The joint resolution submitting the Constitutional Amendment
bears date February 1, 1865. It now remained that the Amendment
should be ratified by the Legislatures of three fourths of
the several States, there being at the time thirty-six. A
certificate, announcing that this had been done, was issued
by the Secretary of State, December 18, 1865, and from this
date the Amendment became part of the Constitution. President
Lincoln, who had watched this event with absorbing interest,
did not live to witness the final result.
* * * * *
Mr. Sumner saw so clearly the delay incident to a
Constitutional Amendment, and even the uncertainty with regard
to its passage by Congress and adoption by the States, that,
while supporting it cordially, he did not relax meanwhile his
efforts for Congressional legislation against Slavery. Even if
Congress could not be induced, in the exercise of its powers,
to decree the death of the public enemy, he hoped that at least
it would not hesitate to use all other powers to limit and
weaken it, so that, should the Constitutional Amendment fail,
or be postponed, Slavery would be in a condition from which
it could not recover. His main postulate, that Slavery was
contrary to Nature, and an outlaw, was important in sustaining
action against it, whether by Constitutional Amendment or
Congressional legislation. In the course of debate on another
question, Mr. Sherman spoke incidentally of the Constitutional
Amendment as “the main proposition,” when Mr. Sumner at once
remarked:--
“The main proposition, Sir, is to strike Slavery wherever
you can hit it; and I tell the Senator he will not
accomplish his purpose, if he contents himself merely with
a Constitutional Amendment. I am for a Constitutional
Amendment; I have made the proposition in several forms:
but how long will it take to carry that Amendment
through both Houses of Congress, and then carry it to
its final consummation in the votes of the Legislatures
of three fourths of the several States, according to the
requirements of the Constitution? Are we to postpone action
on all these questions until that possibly distant day? No,
Sir!”[273]
The speech which follows was published originally under the
title, “Universal Emancipation without Compensation.” In the
edition of the Loyal Publication Society of New York the title
was “No Property in Man.” These two titles present fundamental
principles of special significance at that time. They were in
the nature of answer to the clamor for compensation.
SPEECH.
MR. PRESIDENT,--If an angel from the skies or a stranger from another
planet were permitted to visit this earth and to examine its surface,
who can doubt that his eyes would rest with astonishment upon the
outstretched extent and exhaustless resources of this republic,
young in years, but already rooted beyond any dynasty in history? In
proportion as he considered and understood all that enters into and
constitutes the national life, his astonishment would increase, for he
would find a numerous people, powerful beyond precedent, without king
or noble, but with the schoolmaster instead. And yet the astonishment
he confessed, as all these things unrolled before him, would swell into
marvel, as he learned that in this republic, arresting his admiration,
where is neither king nor noble, but the schoolmaster instead, there
are four million human beings in abject bondage, degraded to be
chattels, under the pretence of property in man, driven by the lash
like beasts, despoiled of all rights, even the right to knowledge
and the sacred right of family, so that the relation of husband and
wife is impossible and no parent can claim his own child, while all
are condemned to brutish ignorance. Startled by what he beheld,
the stranger would naturally inquire by what authority, under what
sanction, and through what terms of law or constitution, this fearful
inconsistency, so shocking to human nature itself, continues to be
upheld. His growing wonder would know no bound, when he was pointed
to the Constitution of the United States, as final guardian and
conservator of this peculiar and many-headed wickedness.
“And is it true,” the stranger would exclaim, “that, in laying the
foundations of this republic dedicated to human rights, all these
wrongs were positively established?” He would ask to see that
Constitution, and to know the fatal words by which the sacrifice was
commanded. The trembling with which he began its perusal would be
succeeded by joy as he finished; for he would find nothing in that
golden text, not a single sentence, phrase, or word even, to serve as
origin, authority, or apology for the outrage. And then his wonder,
already knowing no bound, would break forth anew, as he exclaimed,
“Shameful and irrational as is Slavery, it is not more shameful or
irrational than the unsupported interpretation which makes your
Constitution final guardian and conservator of this terrible and
unpardonable apostasy.”
Such a stranger, coming from afar, with eyes that no local bias had
distorted, and with understanding no local custom had disturbed, would
naturally see the Constitution in its precise text, and would interpret
it in its true sense, without prepossession or prejudice. Of course he
would know, what all jurisprudence teaches and all reason confirms,
that human rights cannot be taken away by any indirection, or by any
vain imagining of something intended, but not said, and, as a natural
consequence, that Slavery exists, if exist it can at all, only by
virtue of _positive text_, and that what is true of Slavery is true
also of all its incidents; and the enlightened stranger would insist,
that, in every interpretation of the Constitution, that cardinal
principle must never for a moment be out of mind, but must be kept ever
forward as guide and master, that _Slavery cannot stand on inference_,
nor can any support of Slavery stand on inference. Thus informed, and
in the light of pervasive principle,--
“How far that little candle throws his beams!”--
he would peruse the Constitution from beginning to end, from its
opening Preamble to its final Amendment, and then the joyful opinion
would be given.
There are three things he must observe: first and foremost, that the
dismal words “Slave” and “Slavery” do not appear in the Constitution;
so that, if the unnatural pretension of property in man lurk anywhere
in that text, it is under a feigned name, or an _alias_, which is
cause of suspicion, while an imperative rule renders its recognition
impossible. Next, he would consider the Preamble, which is the key
to open the whole succeeding instrument; but here no single word
is found which does not open the Constitution to Freedom and close
it to Slavery. The object of the Constitution is announced to be
“in order to form a more perfect union, establish justice, insure
domestic tranquillity, provide for the common defence, promote the
general welfare, and secure the blessings of _liberty_ to ourselves
and our posterity”; all of which, in every particular, is absolutely
inconsistent with Slavery. And, thirdly, he would observe those
time-honored, most efficacious, chain-breaking words in the Amendments:
“_No person shall be deprived of_ life, _liberty_, or property,
_without due process of law_.” Scorning all false interpretations and
glosses fastened upon the Constitution in support of Slavery, and with
these three things before him, he would naturally declare that there
was nothing in the original text on which this appalling wrong could
be founded anywhere within the sphere of its operation. With wonder he
would ask again by what strange delusion or hallucination the reason
had been so far overcome as to recognize Slavery in the Constitution,
when plainly it is not there, and cannot be there. The answer is
humiliating, but easy.
People find in texts of Scripture the support of their own religious
opinions or prejudices; and, in the same way, they find in texts of the
Constitution the support of their political opinions or prejudices. And
this may not be in either case because Scripture or Constitution, when
truly interpreted, supports such opinions or prejudices, but because
people are apt to find in texts simply a reflection of themselves.
Most clearly and indubitably, whoever finds support of Slavery in the
National Constitution has first found such support in himself: not that
he will hesitate, perhaps, to condemn Slavery in words of approved
gentleness, but because, from unhappy education, or more unhappy
insensibility to the wrong, he has already conceded to it a certain
traditional foothold of immunity, which he straightway transfers from
himself to the Constitution. In dealing with this subject, it is not
the Constitution, so much as human nature itself, which is at fault.
Let the people change, and the Constitution will change also; for the
Constitution is but the shadow, while the people are the substance.
Thank God, under influence of the struggle for national life, and in
obedience to its incessant exigencies, the people have changed, and
in nothing so much as on Slavery. Old opinions and prejudices have
dissolved, and that traditional foothold Slavery once possessed is
gradually weakening, until now it scarcely exists. Naturally this
change must sooner or later show itself in the interpretation of the
Constitution. But it is already visible even there, in the concession
of powers over Slavery formerly denied. The time, then, has come when
the Constitution, so long interpreted for Slavery, may be interpreted
for Freedom. This is one stage of triumph. Universal emancipation,
which is at hand, can be won only by complete emancipation of the
Constitution itself, which has been so long degraded to wear chains
that its real character is scarcely known.
Sometimes the concession is made on the ground of _military
necessity_. The capacious war powers of the Constitution are invoked,
and it is said that in their legitimate exercise Slavery may be
destroyed. There is much in this concession,--more even than is
imagined by many from whom it proceeds. It is war, say they, which
puts these powers in motion; but they forget, that, wherever Slavery
exists, there is perpetual war,--that Slavery itself is a _state of
war_ between two races, where one is for the moment victor,--pictured
accurately by Jefferson as “permitting one half the citizens to trample
on the rights of the other, transforming those into despots and these
into enemies.”[274] Therefore, wherever Slavery exists, even in seeming
peace, the war powers may be invoked to terminate a condition which is
internecine, and to overthrow pretensions hostile to every attribute of
the Almighty.
It is not on military necessity alone that the concession is made.
Many, as they read the Constitution now, see its powers over Slavery
more clearly than before. The old superstition is abandoned; and they
join with Patrick Henry, when, in the Virginia Convention, he declared
the power of manumission accorded to Congress. He did not hesitate to
argue against the adoption of the Constitution, because it accorded
this power. And shall we be less perspicacious for Freedom than this
Virginia statesman for Slavery? Discerning the power, he confessed his
dismay: let us confess our joy.
We have already seen that Slavery finds no support in the Constitution.
Glance now at positive provisions by which it is brought completely
under control of Congress.
* * * * *
1. First among the powers of Congress, and associated with the power
to lay and collect taxes, is that to “provide for the common defence
and general welfare.” It is questioned whether this is a substantive
power, or simply incident to that with which it is associated. But
it is difficult, if not absurd, to insist that Congress has not this
substantive power. Shall it not provide for the common defence? Shall
it not regard the general welfare? If powerless to do these things in a
great crisis, it had better abdicate. In the Virginia Convention, Mr.
George Mason, a most decided opponent of the Constitution, said: “That
Congress should have power to provide for the general welfare of the
Union _I grant_.”[275] The language of Patrick Henry, to which allusion
has just been made, was more explicit. He foresaw that this power would
be directed against Slavery, and did not hesitate to declare:--
“Slavery is detested. We feel its fatal effects. We deplore it
with all the pity of humanity. Let all these considerations,
at some future period, press with full force on the minds of
Congress; let that urbanity which, I trust, will distinguish
America, and the necessity of national defence,--let all these
things operate on their minds; they will search that paper [the
Constitution] and see if they have power of manumission. And
have they not, Sir? Have they not power _to provide for the
general defence and welfare_? May they not think that these
call for the abolition of slavery? May they not pronounce all
slaves free? And will they not be warranted by that power? This
is no ambiguous implication or logical deduction. _The paper
speaks to the point. They have the power in clear, unequivocal
terms, and will dearly and certainly exercise it._”[276]
Language could not be more positive. To all who ask for the power of
Congress over Slavery, here is a sufficient answer; and remember that
this is not my speech, but the speech of Patrick Henry, who says that
the Constitution “speaks to the point.”
* * * * *
2. Next comes the fountain, “Congress shall have power to declare war,
to raise and support armies, to provide and maintain a navy.” A power
like this is from its nature unlimited. In raising and supporting an
army, in providing and maintaining a navy, Congress is not restricted
to any particular class or color. It may call upon all, and authorize
that _contract_ which the Government makes with an enlisted soldier.
But such contract would be in itself an act of manumission; for a slave
cannot make a contract. And if the contract be followed by actual
service, who can deny its completest efficacy in enfranchising the
soldier-slave and his whole family? Shakespeare, immortal teacher,
gives expression to an instinctive sentiment, when he makes Henry the
Fifth, on the eve of the victory at Agincourt, encourage his men by
promising,--
“For he to-day that sheds his blood with me
Shall be my brother; be he ne’er so vile,
This day shall gentle his condition.”
* * * * *
3. There is still another clause: “The United States shall guaranty
to every State in this Union _a republican form of government_.” Here
again is a plain duty. But the question recurs, What is a republican
form of government? John Adams, in the correspondence of his old age,
says:--
“The customary meanings of the words _republic_ and
_commonwealth_ have been infinite. They have been applied to
every government under heaven,--that of Turkey and that of
Spain, as well as that of Athens and of Rome, of Geneva and San
Marino.”[277]
But the guaranty of a republican form of government must have
a meaning congenial with the purposes of the Constitution. If a
government like that of Turkey, or even that of Venice, could come
within the scope of this guaranty, it would be of little value; it
would be words, and nothing more. Evidently, it must be construed so
as to uphold the Constitution, according to all the promises of its
Preamble; and Mr. Madison has left a record, first published to the
Senate by the distinguished Senator from Vermont [Mr. COLLAMER], of
the Committee on the Library, showing that it was originally suggested
in part by the fear of Slavery,[278] so that in construing it we must
not forget the disturbing influence. The Preamble and the record are
important, disclosing the real intention. But no American need be at
loss to designate some of the distinctive elements of a republic,
according to the idea of American institutions. These are found, first,
in the Declaration of Independence, by which it is solemnly announced
“that all men are endowed by their Creator with certain unalienable
rights; that among these are life, liberty, and the pursuit of
happiness.” And they are found, secondly, in that other guaranty and
prohibition of the Constitution, in harmony with the Declaration: “_No
person_ shall be deprived of life, _liberty_, or property, _without due
process of law_.” Such are essential elements of “a republican form
of government,” which cannot be disowned without disowning the very
muniments of our liberties; and these the United States are bound to
guaranty. But all these, when set in motion, make Slavery impossible.
It is idle to say that this result was not anticipated. It would be,
then, only another illustration that our fathers “builded better than
they knew.”
* * * * *
4. Independent of the guaranty, there is the other clause just quoted,
in itself a source of power: “_No person_ shall be deprived of life,
_liberty_, or property, _without due process of law_.” This was part of
the Constitutional Amendments proposed by the First Congress, under the
popular demand for a Bill of Rights. Though brief, it is a whole Bill
of Rights. Liberty can be lost only by “due process of law,”--words
borrowed from the ancient liberty-loving Common Law, illustrated by our
master in law, Lord Coke, but best explained by the late Mr. Justice
Bronson, of New York, in a judicial opinion:--
“The meaning of the section, then, seems to be, that _no member
of the State shall be disfranchised, or deprived of any of his
rights or privileges_, unless the matter shall be adjudged
against him upon trial had according to the course of the
Common Law.… The words ‘due process of law,’ in this place,
cannot mean less than a prosecution or suit instituted and
conducted according to the prescribed forms and solemnities for
ascertaining guilt or determining the title to property.”[279]
Such is the protection thrown by the Constitution over every “person,”
without distinction of race or color, class or condition. There can
be no doubt about the universality of the protection. All, without
exception, come within its scope. The natural meaning is plain; but
there is an incident of history which makes it plainer still, excluding
all possibility of misconception. A clause of this character was
originally recommended as an Amendment by two Slave States, Virginia
and North Carolina, and by a slave-trading State, Rhode Island; but it
was restricted by them to _freemen_, thus: “No _freeman_ ought to be
deprived of his life, _liberty_, or property, but by _the law of the
land_.”[280] When the recommendation came before Congress, the word
“person” was substituted for “freeman,” and the more searching phrase
“due process of law” was substituted for “the law of the land.” In
making this change, rejecting the recommendation of slave-owning and
slave-trading States, the authors of this Amendment revealed their
purpose, that _no person_ wearing the human form should be deprived
of _liberty_ without due process of law; and the proposition was
adopted by the votes of Congress, and then of the States, as part of
the Constitution. Clearly, on its face, it is an express guaranty of
personal liberty, and an express prohibition of its invasion anywhere.
In the face of this guaranty and prohibition,--for it is both,--how
can any “person” be held as slave? Sometimes it is argued that
this provision must be restricted to places within the exclusive
jurisdiction of the National Government. Such formerly was my own
impression, often avowed in this Chamber; but I never doubted its
complete efficacy to render Slavery unconstitutional in all such
places, so that “no person” could be held as a slave at the national
capital or in any national territory. Constitutionally, Slavery has
always been an outlaw, wherever that provision of the Constitution
was applicable. Nobody doubted that it was binding on the national
courts; and yet it was left unexecuted, a dead letter, killed by the
predominant influence of Slavery, until at last Congress was obliged by
legislative act to do what the courts failed to do, and to terminate
Slavery in the national capital and national territories.
In this transcendent guaranty and prohibition there are no words of
exclusive jurisdiction. All is broad and general as the Constitution
itself; and since this provision is in support of human rights, it
cannot be restricted by any interpretation. There is no limitation in
it, and nobody can supply any such limitation, without encountering
the venerable maxim of law, _Impius et crudelis qui Libertati non
favet_,--“Impious and cruel is he who does not favor Liberty.” Long
enough have courts and Congress merited this condemnation. The time
has come when they should merit it no longer. The Constitution should
become a living letter under the predominant influence of Freedom. This
conviction has brought petitioners to Congress, during the present
session, asking that the Constitution shall be simply executed against
Slavery, and not altered. Ah, Sir, it would be a glad sight to see
that Constitution, which we have all sworn to support, interpreted
generously, nobly, gloriously for Freedom, so that everywhere within
its influence the chains should drop from the slave! If it be said
that this was not anticipated at its adoption, I remind you of Patrick
Henry, when, at the time, he said, “The paper speaks to the point.”
No doubt, it does speak to the point, especially with the Amendments
immediately thereafter adopted. Cicero preferred to err with Plato
rather than to think right with other men. And pardon me, if, when my
country is in peril from Slavery, and human rights are to be rescued, I
prefer to err with Patrick Henry, in assuming power for Freedom, rather
than to think right with Senators who hesitate in such a cause.
* * * * *
Mr. President, thus stands the case. There is nothing in the
Constitution on which Slavery can rest, or find any the least support.
Even on the face of that instrument it is an _outlaw_; but if we look
further into its provisions, we find at least four distinct sources
of power, which, if executed, must render Slavery impossible, while
the Preamble makes them all vital for Freedom: first, the power to
provide for the common defence and general welfare; secondly, the power
to raise armies and maintain navies; thirdly, the power to guaranty
a republican form of government; and, fourthly, the power to secure
_Liberty_ against all restraint without due process of law. But all
these provisions are something more than powers; _they are duties
also_. And yet we are constantly and painfully reminded that pending
measures against Slavery are unconstitutional. Sir, this is an immense
mistake. _Nothing against Slavery can be unconstitutional._ It is
hesitation that is unconstitutional.
And yet Slavery still exists, in defiance of all these requirements;
nay, more, in defiance of reason and justice, which can never be
disobeyed with impunity, it exists, the perpetual spoiler of human
rights and disturber of the public peace, degrading master as well
as slave, corrupting society, weakening government, impoverishing
the very soil itself, and impairing the natural resources of the
country. Such an outrage, so offensive in every respect, not only
to the Constitution, but also to the whole system of order by which
the universe is governed, can be nothing but _a national nuisance_,
which, for the general welfare, and in the name of justice, ought to
be abated. But at this moment, when it menaces the national life, it
is not enough to treat Slavery merely as a nuisance, for it is much
more. It is a public enemy and traitor, wherever it shows itself, to be
subdued, in the discharge of solemn guaranties of Government, and in
the exercise of unquestionable and indefeasible rights of self-defence.
All now admit that in the Rebel States it is _a public enemy and
traitor_, so that the Rebellion is seen in Slavery, and Slavery is
seen in the Rebellion. But Slavery throughout the country, everywhere
within the national limits, is a living Unit, one and indivisible,--and
thus even outside the Rebel States it is the same public enemy and
traitor, lending succor to the Rebellion, and holding out “blue lights”
to encourage and direct its operations. But whether national nuisance
or public enemy and traitor, it is obnoxious to the same judgment, and
must be abolished.
If, in abolishing Slavery, injury were done to the just interests of
any human being, or to rights of any kind, there might be something
to “give us pause,” even against these irresistible requirements. But
nothing of the kind can ensue. No just interests and no rights can
suffer. It is the rare felicity of such an act, as well outside as
inside the Rebel States, that, while striking a blow at the Rebellion,
and assuring future tranquillity, so that the Republic shall be no
longer a house divided against itself, it will add at once to the value
of the whole fee simple wherever Slavery exists, will secure individual
rights, and will advance civilization itself.
There is another motive at this time. Embattled armies stand face
to face, one side fighting for Slavery. The gauntlet that has been
flung down we have taken up in part only. Abolishing Slavery entirely,
we take up the gauntlet entirely. Then can we look with confidence
to Almighty God for His blessing upon our arms. “Till America comes
into this measure,” said John Jay during the Revolution, “her prayers
to Heaven for Liberty will be impious.”[281] So long as we sustain
Slavery, so long as we hesitate to strike at Slavery, the heavy
battalions of our armies will fail. Sir Giles Overreach, attempting to
draw his sword, found it “glued to the scabbard with wronged orphans’
tears.” God forbid that our soldiers shall find their swords “glued”
with the tears of the slave!
One question, and only one, rises in our path,--and this simply because
the national representatives have been so long drugged and drenched
with Slavery, which they have taken in all forms, whether of dose or
douche, that, like a long-suffering patient, they are still sunk under
its influence. I refer, of course, to the talk of compensation, under
the shameful assumption that there can be property in man. Sir, there
was a moment when I was willing to pay for Emancipation largely, or at
least to any reasonable amount; but it was _as ransom_, and never as
compensation. Thank God, that time has passed, never to return,--and
simply because money is no longer needed for the purpose. Our
fathers, under Washington, never paid the Algerines for our enslaved
fellow-citizens, except as ransom; and they ceased all such tribute,
when emancipation could be had without it. Such must be our rule. Any
other would impoverish the Treasury for nothing. The time has come
for the old tocsin to sound, “Millions for defence, not a cent for
tribute!” Ay, Sir; millions of dollars--with millions of strong arms
also--for defence against Slave-Masters; but not a cent for tribute to
Slave-Masters.
If money is paid as compensation, clearly it cannot be awarded to
the master, who for generations robbed the slave of his toil and
all its fruits, so that, in justice, he may be treated as trustee
of accumulated earnings with interest never paid over. Any money as
compensation must belong, every dollar, to the slave. If the case were
audited in Heaven’s chancery, there must be another allowance for
prolonged denial of inestimable rights. Loss of wages may be estimated;
but where is the tariff or price-current by which to determine
those greater losses which have been the lot of every slave? Mortal
arithmetic is impotent to assess the fearful sum-total. In presence of
this infinite responsibility, the whole question must be referred to
that other tribunal where master and slave are equal, while Infinite
Wisdom tempers justice with mercy. There is a Persian tradition of
Mahomet once saying that the greatest mortification at the Day of
Judgment will be when the pious slave is carried to Paradise and the
wicked master condemned to Hell.[282] It is only with finite powers
that we on earth can imitate Divine Justice.
The theory of compensation is founded on the intolerable assumption
of property in man, an idea which often intrudes into these debates,
sometimes from open vindicators, and sometimes from others, who, while
yielding, yet reluctantly yield, and thus their conduct is “sicklied
o’er” with Slavery. Sir, parliamentary law must be observed; but, if in
a parliamentary assembly indignant hisses are ever justifiable, they
ought to break forth at every mention of this thing, whatever form it
takes,--whether of arrogant claim, or mildest suggestion, or equivocal
hint. Impious toward God, and infidel toward man, it is disowned by
conscience and reason alike; nor is there any softness of argument or
of phrase by which its essential wickedness can be disguised. “The fool
hath said in his heart there is no God”; but it is kindred folly to say
there is no Man. The first is Atheism, and the second is like unto the
first. If in this world a man owns anything, it is himself. This is
his great patrimony, alike from his earthly father and his Father in
Heaven. It is indefeasible and perpetual,--not to be sold, not to be
bought. Always owning himself, he cannot be owned by another.[283]
No man can make black white or wrong right; nor can any Congress or any
multitude overcome the everlasting law of justice.
According to a well-known and capital principle of jurisprudence,
stolen property cannot be sold, and the attempt to sell it, knowing
the primary abstraction, is a crime. The form of sale is impotent, and
the title does not pass. Wherever he finds his property, the original
owner may resume it as his own. The pawnbroker who has received it in
pledge must release his hold; the purchaser who has paid the price
must give it up. But can a stolen man be sold? Is there any form of
sale which is not impotent to complete this great transfer, so as to
give it the semblance of validity against the original owner? Can the
title pass? Infinitely absurd and unnatural is the pretext that a man
may reclaim his stolen coat wherever he finds it, but cannot reclaim
himself! Is the coat more than the man? Slavery asserts that it is;
and the whole country says the same, when it sanctions the return of a
fugitive slave. But this pretension is only a further outgrowth of that
appalling tyranny which begins by denying the right of a man to himself.
The Christian Church, by beautiful, glorious example, testifies
from earliest days against this pretension. Hermes, Prefect of Rome,
converted to Christ, comes to church on Easter with twelve hundred and
fifty slaves, whom after baptism he sets free. Chromatius, another
Prefect of Rome, under Diocletian, also a convert, gives liberty after
baptism to fourteen hundred, while he proclaims, “They who begin to be
children of God must not be slaves of men.” St. Germain, the admirable
Bishop of Paris, on receiving alms, cries out, “Thanks be to God, we
can now ransom a slave!” This list might be extended. Better even
than such personal testimony is the same sentiment manifest in social
institutions. St. Theodore, illustrious in the Eastern Church, imposed
this rule upon its monasteries: “You must never employ slaves, neither
in personal service, nor in affairs of the convent, nor in culture
of the earth; _the slave is a man created in the image of God_.” The
Church of the West was not less earnest. St. Benedict of Aniane, the
second of the name in canonization, would not allow convents to be
served by a slave. In the bosom of these retreats, as also in the
priesthood, the former slave mingled with the former lord, nor was
there any obstacle between him and the bishop’s crosier. Onesimus, once
the slave of Philemon, and hailed as brother beloved by Paul, is said
to have become bishop of Ephesus.[284]
In the testimony of the Christian Church there is one character of
precious example: I refer to Pope Gregory, justly meriting by his life
the title of Great, which has been preserved by history. Through him
England first tasted the blessings of Christianity. Fair-haired Saxons
from the distant island, standing for sale in the market of Rome,
enlisted his sympathy. When told that they were Angles, he exclaimed,
“Not Angles, but Angels,”--“_Non Angli, sed Angeli_”--and he insisted
on their ransom and instruction to become the apostles of their
countrymen. Under his auspices St. Augustin commenced the work, so that
the conversion of England may be traced to the sympathies aroused by
English slaves on the banks of the Tiber. A letter from St. Gregory
shows the spirit in which he acted. Giving freedom to two bondmen,
he wrote these commanding words: “Since our Redeemer, Maker of the
whole creation, being hereto propitiated, has been pleased to assume
human flesh, that, by the grace of his divinity, the chain of slavery
wherewith we were held captive being broken, he might restore us to
pristine liberty, it is well that men whom Nature from the beginning
has brought forth free and the law of nations has subjected to the
yoke of servitude, should by benefit of manumission be restored to the
liberty wherein they were born.”[285] And do not these words speak to
us now?
Foremost of all in history who have vindicated human liberty, and
associated their names with it forevermore, stands John Milton,
Secretary of Oliver Cromwell, and author of “Paradise Lost.” Cradled
under a lawless royalty, he helped to found and support the English
Commonwealth, while in all that he wrote he pleaded for human
rights,--now in defence of the English people, who had beheaded their
king, and now in immortal poems which show how wisely and well he loved
the cause he had made his own. Nowhere has the assumption of property
in man been encountered more completely than in the conversation
between the Archangel and Adam, after the former had pictured a hunter
whose game was “men, not beasts”:--
“O execrable son, so to aspire
Above his brethren, to himself assuming
Authority usurped, from God not given!
He gave us only over beast, fish, fowl
Dominion absolute; that right we hold
By His donation; but man over men
He made not lord, such title to Himself
Reserving, human left from human free.”[286]
Every assertor of this property puts himself in the very place of
the hunter of “men, not beasts,” described as “execrable son, so
to aspire.” The language is not too strong. “Execrable” is the
assumption,--“execrable” wherever made: “execrable” on the plantation,
“execrable” in this Chamber, “execrable” in every form it takes,
“execrable” in all its consequences, especially “execrable” as an
apology for hesitation against Slavery. The assumption, wherever it
shows itself, must be beaten down under our feet, like Satan himself,
in whom it has its origin.
Again, we are brought by learned Senators to the Constitution, which
requires that there shall be “just compensation,” where “private
property” is taken for public use. But, plainly, here the requirement
is absolutely inapplicable, for there is no “private property” to
take. Slavery is but a bundle of barbarous pretensions, from which
certain persons are to be released. At what price shall the bundle be
estimated? How much shall be paid for the controlling pretension of
property in man? How much allowed for that other pretension to shut
the gates of knowledge, and keep the victim from the Book of Life? How
much given for ransom from the pretension to rob a human being of his
toil and all its fruits? And, Sir, what “just compensation” shall be
voted for renouncing that Heaven-defying pretension, too disgusting
to picture, which, trampling on the most sacred relations, makes wife
and child the wretched prey of lust and avarice? Let these pretensions
be renounced, and Slavery ceases to exist; but there can be no “just
compensation” for any such renunciation. Heart, reason, religion, the
Constitution itself, rise in judgment against it. As well vote “just
compensation” to the hardened offender who renounces disobedience to
the Ten Commandments, and promises that he will cease to steal, cease
to commit adultery, and cease to covet his neighbor’s wife! Ay, Sir,
there is nothing in the Constitution to sanction any such outrage. Such
an appropriation would be unconstitutional.
Mr. Madison said in the Convention that it was “wrong to admit in
the Constitution the idea that there could be property in men.”[287]
Of course it was wrong. It was criminal and unpardonable. Thank God,
it was not done. But Senators admit this “idea” daily. They take it
from themselves, and then introduce it where Mr. Madison said it was
“wrong.” But if “wrong” at the adoption of the Constitution, how
much worse now! There is no instinct of patriotism, as there is no
conclusion of reason, which must not be against the abomination; and
yet, Sir, it is allowed to enter into these debates. Sometimes it
stalks, and sometimes it skulks; but whether stalking or skulking, it
must be encountered with the same indignant rebuke, until it ventures
no longer to show its head.
Putting aside, then, all objection, whether from open opposition or
lukewarm support, the great question recurs, that question which
dominates this debate, How shall Slavery be overthrown? The answer
is threefold: first, by the courts, declaring and applying the true
principles of the Constitution; secondly, by Congress, in the exercise
of the powers belonging to it; and, thirdly, by the people, through
an Amendment of the Constitution. Court, Congress, people, all may be
invoked; and the occasion justifies the appeal.
* * * * *
1. Let the appeal be made to the courts. But, alas! one of the saddest
chapters in our history is the conduct of judges, lending themselves
to the support of Slavery. Injunctions of the Constitution, guaranties
of personal liberty, and prohibitions against its invasion have all
been forgotten. Courts, which should be asylums of Liberty, have been
changed into strongholds of Slavery; and the Supreme Court of the
United States, by final decision as shocking to the Constitution as
to the public conscience, proclaimed itself tutelary stronghold of
all. It was part of the national calamity, that, under the influence
of Slavery, Justice, like Astræa of old, fled. But now, at last, in
a regenerated Republic, with Slavery waning, and the people rising
in judgment against it, let us hope that the judgments of courts may
be reconsidered, and the powers of the Constitution in behalf of
Liberty fully exercised, so that human bondage shall no longer find an
unnatural support from the lips of judges,--
“and ancient fraud shall fail,
Returning Justice lift aloft her scale.”
Sir, no court can afford to do an act of wrong. Its business is
justice; and when, under any apology, it ceases to do justice, it loses
those titles to reverence otherwise so willingly bestowed. There are
instances of great magistrates openly declaring disobedience to laws
“against common right and reason,” and their names are mentioned with
gratitude in the history of jurisprudence. There are other instances of
men holding the balance and the sword, whose names are gathered into
a volume as “atrocious judges.” If our judges, cruelly interpreting
the Constitution in favor of Slavery, do not come into the latter
class, they can claim no place among those others who have stood for
justice, like the rock on which the sea breaks in idle spray. Vainly
do you attempt to frame injustice into a law, or to sanctify it by any
judgment of court. From Cicero we learn, that, “if commands of the
people, if decrees of princes, if _opinions of judges_ were sufficient
to constitute right, then were it right to commit highway robbery,
right to commit adultery, right to set up forged wills.”[288] And
Augustine tells us, with saintly authority, that what is unjust cannot
be law.[289] Every law and every judgment of court, to be binding, must
have at its back the everlasting, irrepealable law of God. Doubtless
the model decision of the American bench, destined to be quoted
hereafter with most honor, because the boldest in its conformity with
great principles of humanity and social order, was that of the Vermont
judge who refused to surrender a fugitive slave _until his pretended
master could show a title-deed from the Almighty_.
But courts have no longer occasion for such boldness. They need not
step outside the Constitution. It is only needed that they should
follow just principles in its interpretation. Let them be guided by a
teacher like Edmund Burke, who spoke as follows:--
“_Men cannot covenant themselves out of their rights and their
duties_; nor by any other means can arbitrary power be conveyed
to any man. _Those who give to others such rights perform acts
that are void as they are given.…_ Those who give and those who
receive arbitrary power are alike criminal, and there is no man
but is bound to resist it to the best of his power, wherever
it shall show its face to the world. It is a crime to bear it,
when it can be rationally shaken off.”[290]
Or let them be guided by that other teacher, Lord Chatham, when he
said:--
“With respect to the decisions of courts of justice, I am
far from denying them their due weight and authority; yet,
placing them in the most respectable view, I still consider
them, not as law, but as an evidence of the law; and before
they can arrive even at that degree of authority, it must
appear that they are founded in and confirmed by reason,--that
they are supported by precedents taken from good and moderate
times,--that they do not contradict any positive law,--that
they are submitted to without reluctance by the people,--that
they are unquestioned by the legislature (which is equivalent
to a tacit confirmation),--_and, what in my judgment is by far
the most important, that they do not violate the spirit of the
Constitution_.”[291]
Or let them go back to that early Spanish testimony against the
Slave-Trade and Slavery, when De Soto, in lectures at Salamanca, thus
spoke:--
“It is affirmed that the unhappy Ethiopians are by fraud or
force carried away and sold as slaves. If this is true, neither
those who have taken them, nor those who purchased them, nor
those who hold them in bondage can ever have a quiet conscience
till they emancipate them, _even if no compensation should be
obtained_.”[292]
Or, let them accept the unanswerable judgment of that acute moralist,
the late Archbishop Whately, who in simple words shows the superior
title of the slave:--
“A slave cannot fairly be called a thief for taking anything
from his master, or for stealing his own liberty. He may be
considered as in an enemy’s country, in the midst of those who
recognize no rights of his as against them, and who therefore
have no rights as against him.”[293]
If courts were thus inspired, it is easy to see that Slavery would
disappear under righteous judgment.
* * * * *
2. Unhappily, courts will not perform the duty of the hour, and we
turn elsewhere. Appeal must be made to Congress; and here, as has been
fully developed, the powers are ample, unless in their interpretation
you surrender in advance to Slavery. By a single brief statute,
Congress may sweep Slavery out of existence. Patrick Henry saw and
declared, that, under the influence of a growing detestation of Slavery
and the increasing “urbanity” of the people, this must be expected,
while all the capacious war powers proclaim trumpet-tongued that it can
be done constitutionally, and the peace powers echo back the war powers.
Here we encounter again the “execrable” pretension of property in man,
with the attendant claim of “just compensation” for the renunciation of
Heaven-defying wrongs. But this is no more incident to abolition by Act
of Congress than by Amendment of the Constitution; so that, “if just
compensation” can be discarded in one case, it can be in the other. But
the votes on the latter proposition already taken in the Senate testify
that it is discarded. Sir, let the “execrable” pretension never again
be named, except for condemnation, no matter how or when it appears, or
what form it takes. Let the “idea,” originally branded as so “wrong”
that it could not find place in the Constitution, never find place in
our debates.
Even if Congress be not prepared for that single decisive measure
promptly ending this whole question and striking Slavery to death,
there are other measures by which the end may be hastened. The towering
Upas may be girdled, even if not felled at once to earth. Already, by
Acts of Congress, Slavery is abolished in the national capital and in
the national territories. This is not enough.
The Fugitive Slave Bill, conceived in iniquity, and imposed upon the
North as a badge of subjugation, may be repealed.
The coastwise Slave-Trade may be deprived of all support in the
statute-book.
The traffic in human beings, as an article of “commerce among the
States,” may be extirpated.
And, above all, that odious rule of evidence, so injurious to justice
and discreditable to the country, excluding the testimony of colored
persons, may be abolished, at least in national courts.
And there is one other thing to be done. The enlistment of colored
persons must be encouraged by legislation in every possible form; for
enlistment is emancipation. That contract whereby the soldier-slave
promises service at hazard of life, like the contract of marriage,
fixes the equality of the parties, which Congress, for the national
defence, and the national character also, will sacredly maintain.
All these things at least may be done, and, when they are done, Heaven
and Earth will be glad, for they will have assurance that all will be
done.
* * * * *
3. Nor will even these suffice. The people must be summoned to confirm
the whole work. It is for them to put the capstone upon the sublime
structure. An Amendment of the Constitution may do what courts and
Congress decline to do, or, even should they act, it may cover their
action with its panoply. Such an Amendment will give completeness and
permanence to Emancipation, while bringing the Constitution into avowed
harmony with the Declaration of Independence. Happy day, long wished
for, destined to gladden those beatified spirits who have labored on
earth to this end, but died without the sight!
And yet I would not indiscreetly take counsel of our hopes. From the
nature of the case, such an Amendment cannot be consummated at once.
Time must intervene, with opportunities of opposition. It can pass
Congress only by a vote of two thirds in both branches; and then it
must be adopted by the Legislatures of three fourths of the States.
Even under most favorable circumstances, it is impossible to say when
it can become part of the Constitution. Too tardily, I fear, for all
the good that is sought. Therefore I am not content with this measure
alone. It postpones till to-morrow what ought to be done to-day; and I
much fear that it will be made the apology for indifference to other
efforts of direct practical value,--as if it were pardonable to neglect
for a day the duties we owe to Human Rights.
“To-morrow, and to-morrow, and to-morrow
Creeps in this petty pace from day to day,
To the last syllable of recorded time;
And all our yesterdays have lighted fools
The way to dusty death.”
When will rise that to-morrow’s sun, to witness that other sun filling
the land with the light of Freedom?
For myself, let me confess, that, in presence of the mighty events
now thronging, I feel how insignificant is any individual, whether
citizen or Senator; and yet, humbly longing to do my part, I would not
put off till to-morrow what ought to be done to-day,--especially can I
not consent to this great postponement. Our fellow-men are in bonds:
they must be relieved. Most beautiful that ancient story, where the
philosopher, while on a mission to a great king for the release of
captives, being invited to sup, replied in the famous words of Ulysses,
“O Circe! what man of a right mind could let himself touch meat or
drink before he had ransomed his companions and beheld them with his
eyes?” The philosopher did not speak in vain. The captives were set
free at once.[294]
Beyond my general desire to see an act of universal emancipation, at
once and forever settling this great question, so that it may no longer
be the occasion of strife between us, there are two other objects ever
present to my mind as a practical legislator: first, to strike at
Slavery wherever I can hit it; and, secondly, to clear the statute-book
of all existing supports of Slavery, so that this great wrong may find
nothing there to which it can cling for life. Less than this, at the
present moment, when Slavery is still menacing, would be abandonment of
duty.
So long as a single slave continues anywhere beneath the flag of the
Republic, I am unwilling to rest. Too well I know the vitality of
Slavery with its infinite capacity of propagation, and how little
Slavery it takes to make a Slave State with all the cruel pretensions
of Slavery. The down of a single thistle is full of all possible
thistles, and a single fish is said to contain many millions of eggs,
so that the whole sea may be stocked from its womb.
* * * * *
The modern founder of political science, Machiavelli, writer as well
as statesman, in his most instructive work, the Discourses on Livy, has
a chapter entitled, “For a Republic to have long life, it is necessary
to bring it back often to its origin”:[295] where he shows how the
native virtue in which a Republic was founded becomes so far corrupted
that in process of time the body-politic is destroyed,--as in the case
of the natural body, where, according to the doctors of medicine,
something is daily added, from time to time requiring cure. The
remarkable publicist teaches under this head that Republics are brought
back to their origin, and to the principles in which they were founded,
by pressure from without, where prudence fails within; and he affirms
that the destruction of Rome by the Gauls was necessary, in order that
the Republic might have a new birth, with new life and new virtue,--all
of which ensued, when the barbarians were driven back. If the
illustration is fanciful, there is wisdom in the counsel; and now the
time has come for its application. The Gauls are upon us, not from a
distance, but domestic Gauls, flinging their swords, like Brennus, into
the scales; and we, too, may profit by the occasion to secure for the
Republic a new birth, with new life and new virtue. Happily, the way
is easy; for there is no doubt of its baptismal vows, or the declared
sentiments of its origin. There is the Declaration of Independence:
let its solemn promises be redeemed. There is the Constitution: let
it speak according to the promises of the Declaration. Let it speak,
and the last act of the great American tragedy will be ended, while
the stage is piled with corpses. From its early beginning in the hold
of the Dutch ship on its way to Jamestown, as the Pilgrims in the
Mayflower were on their way to Plymouth, down to this bloody Rebellion,
Slavery has been a prolonged tragedy. History and Art will hereafter
portray the scenes. Nor can its death be otherwise than an epoch, not
only for our own country, but for mankind. Slavery in its distant
origin was the substitute for death. The slave was allowed to live,
but without the rights of man. Instead of death in the grave with
its insensibility and decay, there was death in life with constant
degradation and suffering. Hence in all ages the awakened sympathies of
the good and humane,--heard sometimes in sorrow for the unhappy fate of
an individual, and then in appeal for a race.
How truly affecting are the words of Homer, depicting the wife of
Hector toiling as bondwoman at the looms of her Grecian master,--or
those other undying words which exhibit man in Slavery as shorn of half
his worth! The story of Joseph sold by his brothers has been repeated
in every form, touching innumerable hearts. Borrowed from the Bible, it
figured in the moralities of the Middle Ages and in the later theatre
of France. How genius triumphed over Slavery is part of this testimony.
Æsop, the fabulist,--one of the world’s greatest teachers, if not
lawgivers,--was a slave; so also was Phædrus, the Roman fabulist, whose
lessons are commended by purity and elegance; and so, too, was Alcman,
the lyric, who shed upon Sparta the grace of poesy. To these add
Epictetus, sublime in morals,--and Terence, incomparable in comedy, who
gave to the world that immortal verse, which excited the applause of
the Roman theatre, “I am a man, and nothing which concerns mankind is
foreign to me.” Nor should it be forgotten that the life of Plato was
checkered by Slavery.
In later days the sympathy is more for a race than for individuals.
Unhappily, the ban of color has become a certificate of Slavery, and a
large portion of the human family, whose offence was a skin darkened by
the hand of God, has been degraded to the condition of chattels. The
sympathies once awakened only for illustrious gifts are now bestowed
upon suffering humanity, marking an advance in civilization. To be a
man is a sufficient title-deed for the rights of man, which we seek to
establish. But their triumph among us will be the certain herald of
triumph everywhere. In other places Slavery may linger yet a little
longer; but its death here will make its continued existence impossible
wherever civilization prevails.
* * * * *
Mr. President, the immediate question before us is on the proposition
to prohibit Slavery in our country by Constitutional Amendment; and
here I hope to be indulged with regard to the form it should take. A
new text of the Constitution cannot be considered too carefully even in
this respect, especially when it is nothing less than a new article of
Freedom. For a moment we are performing something of that duty which
belongs to the _conditores imperiorum_, placed foremost by Lord Bacon
in “the degrees of sovereign honor,”[296] and “words” become “things.”
From the magnitude of the task we may naturally borrow circumspection,
and I approach this part of the question with suggestion rather than
argument.
Let me say frankly that I should prefer a form of expression different
from that having the favor of the Committee. They have selected what
was intended for the old Jeffersonian Ordinance, sacred in our history,
although, let me add, they have not imitated it closely. But I must be
pardoned, if I venture to doubt the expediency of perpetuating in the
Constitution language which, if it have any signification, seems to
imply that “Slavery or involuntary servitude” may be provided for “the
punishment of crime.” Instances anterior to the Constitution show the
origin of this exception. In the absence of penitentiaries, Slavery was
a punishment adjudged by courts. According to early Colonial records in
Massachusetts, one William Andrews “was censured to be severely whipped
and delivered up as a slave to whom the Court shall appoint.”[297]
But it cannot be intended to sanction such judgment now. There can be
no reason why Slavery should not be forbidden positively and without
exception, especially as “imprisonment” cannot be confounded with this
“peculiar” wrong. If my desires could prevail, I would put aside the
Ordinance, and find another form.
I know nothing better than this:--
“All persons are equal before the law, so that no person can
hold another as a slave: and the Congress shall have the power
to make all laws necessary and proper to carry this declaration
into effect everywhere within the United States and the
jurisdiction thereof.”
By the latter clause the declaration is plainly applicable to the
States, while the earlier words assert the equality of all persons
before the law,--a fruitful principle, assuring to all the same rights.
_Inter pares non est potestas_, “Among equals there is no superiority,”
is a received maxim of law, expressing a natural truth. Therefore,
where all are equal, there can be no Slavery; so that, in declaring
equality before the law, you make Slavery, alike with superiority,
impossible. This language, though unknown to the Common Law and new in
our country, has a fixed place in modern constitutional history. To
understand how it has reached its present authority we must repair for
a moment to France, so rich in experience and in genius.
Bills of Rights in England were moderate in terms, compared with our
Declaration of Independence, and with the Declarations of Rights first
announced by France in the throes of terrible revolution, and since
recognized among the permanent triumphs of that prodigious outbreak.
Until this period there had been no written Constitution in France,
though since there have been many in succession. The earliest, in
September, 1791, was preceded by a Declaration of Rights, proposed by
Lafayette, which, after setting forth that “ignorance, forgetfulness,
or contempt of the rights of man are the sole causes of public evils
and of the corruption of Governments,” undertakes to announce what it
calls “the natural rights of man, inalienable and sacred”; and this is
done--
“To the end that this Declaration, being constantly present to
all the members of the social body, may incessantly recall to
them their rights and their duties; to the end that the acts of
the legislative power, and those of the executive power, being
every moment capable of comparison with the object of every
political institution, may be more respected by them; to the
end that the claims of the citizens, being henceforth founded
on simple and incontestable principles, may always turn to the
maintenance of the Constitution and to the happiness of all.”
This too elaborate, but instructive preamble, is followed by an
article with a generality of expression not unlike that of our own
Declaration:--
“ARTICLE I. Men are born and continue free and _equal in
rights_.”
In the sixth article of the Declaration this is explained by declaring
that the law “ought to be the same for all, whether it protect, whether
it punish,” and then it speaks of “all citizens being _equal in its
eyes_.”[298]
In June, 1793, another Constitution was adopted, which, after a brief
preamble, opens with these articles:--
“ARTICLE I. The object of society is the common happiness.
Government is instituted to guaranty to man the enjoyment of
his natural and imprescriptible rights.
“ARTICLE II. These rights are equality, liberty, security,
property.
“ARTICLE III. _All men are equal_ by nature and _before the
law_.”[299]
Here the new statement begins to appear. Men are equal by nature and
before the law.
“Equal before the law.” This term, which, by its essential accuracy
and self-limitation, excludes all uncertainty, exaggeration, or
vagueness, was already known in the literature of France. Voltaire,
whose wonderful genius was so peculiarly French, with that constant
clearness which is the boast of the French language, had used it in
one of his philosophical poems, where political truth is commended
in the manner of Pope. The first of these was in 1734, on “Equality
of Conditions,” where he says, “Mortals are equal; their mask is
different”; and then, “To have the same rights to happiness, this is
for us the perfect and only equality”;[300] thus, like our Declaration
of Independence, placing “the pursuit of happiness” among natural
rights. This assertion of equal rights was defined in the poem on “The
Law of Nature,” addressed to Frederick, King of Prussia, and written in
1752, where he says, “_The law_ in every State ought to be universal;
_mortals_, whoever they may be, _are equal before it_.” But I cite the
precise words:--
“_La loi_ dans tout État doit être universelle:
Les mortels, quels qu’ils soient, _sont égaux devant elle_.”[301]
This happy statement naturally passed from the poem to the Constitution.
It was much to declare equality; it was more still to do it with
accuracy of form defying assault. This conquest of the Revolution
assumed its most precise enunciation on the restoration of the
Bourbons, when it appeared as the first article in the Constitutional
Charter of Louis the Eighteenth, promulgated in 1814.
“ARTICLE I. _Frenchmen are equal before the law_, whatever may
otherwise be their titles and their ranks.”[302]
And it was repeated by Napoleon, April 22, 1815, on his return from
Elba.[303]
At the installation of Louis Philippe as king, in August, 1830, with
Lafayette by his side, the same declaration was placed at the head of
the Constitutional Charter.[304]
Meanwhile this expression passed from France into the Constitutions
of other countries: of Holland, in 1801, where the declaration was,
“All members of society are equal before the law, without distinction
of rank or birth”;[305] of the Grand Duchy of Warsaw, created by
Napoleon in 1807, where we meet these terms: “Slavery is abolished;
all citizens are equal before the law”;[306] of the Canton of Zug,
in Switzerland, in 1814, where, among “General Principles,” is the
article, “All the citizens of the Canton are equal before the law,
and there are no subjects in the Canton of Zug”;[307] of Bavaria, in
1818, where “equality of the rights of the citizens before the law”
is enumerated in the preamble among “the principal features of the
Constitution”;[308] of Bolivia, in South America, where in 1825 we meet
the words, “All citizens are equal before the law”;[309] of Portugal,
in 1826, where it is declared, “The law is equal for all, whether it
protects, whether it punishes”;[310] of Brazil, where in the same year
was a similar declaration;[311] and then of Greece, not only in the
Provisional Constitution of 1822, but in the permanent Constitution
of 1827, when the Greek nation “proclaims before God and before man
its political existence and its independence,” and then among its
fundamental principles declares, “All Greeks are equal before the
law.”[312]
The French Revolution of 1830 quickened this statement anew. Belgium
adopted it in 1831,[313] and even Austria in 1849; the latter power as
follows: “All subjects are equal before the law, and judged according
to the same fundamental rights”;[314] and Sardinia, in 1848, as
follows: “All natives of the kingdom, whatever their titles or their
rank, are equal before the law.”[315] The same words reappear in the
Fundamental Statute of Italy, in 1861, when that classical land became
a nation.[316]
Doubtless the extensive adoption of this formula testifies to its
value in expressing an important principle, being nothing less than
the primal truth declared by our fathers. All will confess its
comparative precision. The sophistries of Calhoun, founded on the
obvious inequalities of body and mind, are all overthrown by this
simple statement, which, though borrowed latterly from France, is older
than French history. I have had occasion before to remind the curious
student that the ancient Greek of Herodotus supplies a single word for
this phrase, when it is said that “the Government of the many has the
most beautiful name of ἰσονομία,” or _equality before the law_.[317]
The father of history was right. The name is most beautiful. But he
did not see all its beauty; nor did the three Persian satraps, whose
dialogue he reports,[318] know how great a truth was revealed. Not till
after generations and ages had passed was _equality before the law_
authoritatively declared; and now, while involving it as a rule, we
repair to that bountiful Greek tongue, which, at that early day, by a
single word, anticipated our modern exigency. Such a word, originally
adopted in our Declaration of Independence, would have superseded
criticism.
Enough has been said to explain the origin of a term which has played
an important part. Though traced to distant antiquity, and now adopted
in various countries, it derives its modern authority from France,
where it is the “well-ripened fruit” of unprecedented experience in
the discussion of great problems in political science. Naturally, it
does not come from England; for the idea finds little favor in that
hierarchical kingdom. In France Equality prevails more than Liberty: in
England Liberty more than Equality. Here among us both should find a
home; and such a declaration as I now propose, embodying _Liberty and
Equality_, will keep the double idea perpetual in the public mind and
conscience, “to warn, to comfort, and command.” The denial of Liberty
in the Rebel States begins with the denial of Equality; so that our
work is not completely done without the assertion of both principles.
* * * * *
In making Equality the fundamental principle, underlying Liberty
itself, I follow reason and authority. Clearly, where all are equal,
there can be no Slavery. Equality makes Slavery impossible, while it
broadens Liberty into that community of right which is the essence of
Republican Government. A remarkable French writer, La Boëtie, whose
short life was brightened by the friendship of Montaigne, well exhibits
the dependence of Liberty upon Equality. In his little work, “Voluntary
Servitude,” which inspires astonishment in all who read it, while
vindicating and exalting Liberty as derived from Nature, and setting
forth how “this good mother” has given to us all the whole earth for
a home, has lodged us all in the same house, has fashioned us all
according to the same pattern, so that each can see and recognize one
in another, and then, alluding to the gift of voice and speech for our
better mutual acquaintance and fraternity, also to the means by which
Nature ties and binds so strongly the knot of our alliance and society,
also to the manifestation in all things that she did not wish so much
to make us all united as all one, the precocious philosopher declares:
“There can be no doubt that we are all naturally free, _since we are
all companions_, and it cannot fall into any human head that Nature has
put anybody in slavery, _having put us all in company_.”[319] Here is
exhibited that controlling Equality which has prevailed in France.
A recent English publicist and professor exhibits also the
predominance of this principle: I refer to Mr. Maine, who, in his
work on “Ancient Law,” after tracing it to the jurisconsults of the
Antonine era, and asserting that it “is one of a large number of legal
propositions which in progress of time have become political,” attests
the influence of France, which, according to him, is seen in our
own Declaration of Independence, where what he calls “the specially
French assumption,” that all men are born equal, is joined with what
he calls “the assumption more familiar to Englishmen,” that all men
are born free; and he adds, that, “of all the ‘principles of 1789,’ it
is the one which has been least strenuously assailed, which has most
thoroughly leavened modern opinion, and which promises to modify most
deeply the constitution of societies and the politics of states.”[320]
And now I venture to suggest that this guiding principle be recognized
by us in words commended by usage and intrinsic character.
* * * * *
Should the Senate not incline to this form, there is still another I
would suggest:--
“Slavery shall not exist anywhere within the United States or
the jurisdiction thereof; and the Congress shall have power to
make all laws necessary and proper to carry this prohibition
into effect.”
This is simple, and avoids all language open to question. The word
“Slavery” is explicit, and describes precisely what you propose to
blast. There is no doubt with regard to its signification. It cannot
be confounded with “the punishment of crime”; for imprisonment is not
Slavery; nor can any punishment take the form of a wrong which stands
by itself, peculiar, terrible, outrageous. Therefore nothing about
punishment should find place in the rule we now ordain. Beyond this I
would avoid technicality, which is out of place in such a text; and
here I am encouraged by other examples. An early Constitution of France
prohibited Slavery in every form, when it said: “Every man can engage
his time and his services, but he cannot sell himself, nor be sold;
his person is not alienable property.”[321] That of the Greek nation
was equally thorough: “It is not permitted in Greece to sell or to
buy men; every slave, whatever may be his nation or religion, is free
from the time he puts foot on Greek territory.”[322] Nothing can be
simpler than this prohibition in the Bavarian Constitution: “Servitude
is everywhere suppressed”;[323] or than this in the Constitution of
Wurtemberg: “Serfdom is forever abolished”;[324] or than this in the
Constitution of the French Republic in November, 1848: “Slavery cannot
exist upon any French soil.”[325] Nor can anything be more simple and
thorough than these words from Hayti: “Slaves cannot exist on the
territory of the Republic. Slavery there is forever abolished.”[326]
Naturally a Republic of enfranchised slaves made this the first article
of its Constitution, while sense as well as instinct supplied the form.
And, Sir, in all these historic instances you will remark that there is
nothing technical.
If the Senate is determined to follow the Jeffersonian Ordinance, then
I prefer that it should be the Ordinance actually, and not as reported
by the Committee. And I would complete the work by expelling from the
Constitution all those words so often misconstrued, perverted, and
tortured to a false support of Slavery.
But while desirous of seeing the great rule of Freedom we are about
to ordain embodied in a text which shall be like the precious casket
to the more precious treasure, yet I confess that I feel humbled by my
own endeavors. And whatever the judgment of the Senate, I am consoled
by the thought that the most homely text containing such a rule will be
more beautiful far than any word of poet or orator, and will endure to
be read with gratitude, when the lofty dome of this Capitol, with the
statue of liberty which crowns it, has crumbled to earth.
CASTE AND PREJUDICE OF COLOR.
LETTER TO THE YOUNG MEN’S ASSOCIATION OF ALBANY, APRIL 16, 1864.
The managers of the Young Men’s Association of Albany, after
excluding from their lecture-room all persons not of an
approved color, invited Mr. Sumner to speak on Lafayette. He
returned the following answer.
SENATE CHAMBER, April 16, 1864.
SIR,--You invite me to deliver an address on Lafayette before the
Young Men’s Association of Albany. In view of a recent incident
in the history of your Association, I am astonished at the
request.
I cannot consent to speak of Lafayette, who was not ashamed to
fight beside a black soldier, to an audience too delicate to sit
beside a black citizen. I cannot speak of Lafayette, who was a
friend of universal liberty, under the auspices of a society
which makes itself the champion of caste and vulgar prejudice.
I have the honor to be, Sir, your obedient servant,
CHARLES SUMNER.
C. W. DAVIS, Esq., _Cor. Sec., &c., Albany_.
FINAL REPEAL OF ALL FUGITIVE SLAVE ACTS.
SPEECH IN THE SENATE, ON A BILL FOR THIS PURPOSE, APRIL 19, 1864.
December 10, 1863, Mr. Sumner gave notice of his intention
to introduce a bill to repeal all acts for the rendition of
fugitive slaves.
February 8, 1864, in pursuance of previous notice, Mr. Sumner
asked and obtained leave to introduce the bill above mentioned,
which was read twice by its title, and referred to the Select
Committee on Slavery and Freedmen.
February 29th, Mr. Sumner reported from the Committee a bill
with an accompanying report, of which ten thousand extra copies
were ordered to be printed.[327] There was a minority report by
Mr. Buckalew, of Pennsylvania, which was also printed in equal
number.
The bill was in the following terms:--
“A Bill to repeal all acts for the rendition of fugitives
from service or labor.
“_Be it enacted by the Senate and House of Representatives
in Congress assembled_, That all Acts of Congress, or parts
of Acts, providing for the rendition of fugitives from
service or labor, be and the same are hereby repealed.”
March 7th, Mr. Sumner asked the Senate to take up the bill,
with a view to make it the special order for a future day.
This motion was agreed to, and then, on his further motion, it
was made the special order for March 9th. The disposition to
delay showed itself the next day, when Mr. Davis, of Kentucky,
proposed to make another question a special order for the same
time. Mr. Sumner reminded him that the repeal of the Fugitive
Slave Act was a special order at that time. Mr. Davis replied,
“I suppose that can wait a little.” Mr. Sumner: “I do not wish
to have that wait at all. It is a disgrace to the country
and the statute-book which we want to get rid of.” When it
was called up at the appointed time, Mr. Davis expressed a
desire for postponement, and then, on motion of Mr. Sumner,
at the suggestion of Mr. Hendricks, of Indiana, it was made
the special order for March 16th, at one o’clock. Owing to the
pendency of an Appropriation Bill, as unfinished business, on
this day, it lost its place.
March 18th, Mr. Sumner, finding that Mr. Davis was not ready
to proceed with his remarks, moved to make the bill the
special order for March 22d, at one o’clock. This motion was
lost,--Yeas 19, Nays 20. Mr. Sumner then said: “I now deem it
my duty to give notice that I shall take every proper occasion
to call the bill up, and press its consideration upon the
Senate.”
Meanwhile the attention of the Senate was occupied by other
things, especially by the Constitutional Amendment abolishing
Slavery.
April 18th, Mr. Sumner appealed to Mr. Fessenden, who had
charge of the Legislative Appropriation Bill, then under
consideration, to yield, so that the other bill could be
considered. At this time he said: “The Senator says it will
make a great deal of debate. I doubt if it will. I think the
topic has already been amply discussed in connection with other
matters. I have several times yielded to amiable pressure,
reluctantly, always against my own sense of duty, but from
desire to oblige associates in this body. One Appropriation
Bill has been interposed, on the motion of the Senator from
Maine, which has taken several days. Now, I submit, the time
has come when this bill ought to be considered. Let us give one
day to it, at least. I say this with reluctance, because I see
that the Senator has come prepared to go on with his bill, and
I respect so much the order of business and the preparations
of Senators to do their part, that I do not interfere, except
most reluctantly. I am for the Appropriation Bill. The Senator
knows that I am ever in my seat to sustain all his motions on
Appropriation Bills; but this bill is committed to my care, and
I therefore ask him to allow it to be proceeded with to-day.
There is in the Appropriation Bill an innate vitality; it
cannot lose by delay; the public interests cannot suffer; but I
do not doubt that all these, and the good name of the country,
suffer by every day’s delay in the repeal of the Fugitive Slave
Act.” Mr. Fessenden said that Mr. Sumner was “at liberty, if
he chose, to move that that bill be taken up and this be laid
aside,” and that he should ask the judgment of the Senate.
April 19th, Mr. Sumner moved that the Senate proceed with the
bill, and this motion was agreed to,--Yeas 26, Nays 10. The
Senate, as in Committee of the Whole, considered the bill,
and it was reported to the Senate without amendment, ordered
to be engrossed for a third reading, and was read the third
time, without a division, and without a word of debate. It only
remained to put the question on its final passage, when Mr.
Foster, of Connecticut, remarked that he was “not prepared to
see this bill passed just now”; he had “supposed the Senator
from Massachusetts was to address the Senate upon it.” Mr.
Sumner had “not the least desire to address the Senate”; he did
“not wish to say a word upon it.” Mr. Foster “did not apprehend
that the bill was to be put on its passage at the present time,
and expected to say something upon it.” Mr. Pomeroy, of Kansas,
remarked, “We may as well pass the bill now.” The Chair put
the question, and the yeas and nays were ordered, when Mr.
Hendricks spoke against the bill. He said: “It may be that our
fathers erred in the agreement among themselves that a fugitive
slave should be returned; it may be that it was a mistake on
their part; but while their agreement stands, and while my oath
is upon my conscience to respect that agreement, I cannot vote
for a bill like this.” The debate was opened.
Mr. Sherman, of Ohio, had “some doubt about the expediency
of now repealing the law of 1793.” Mr. Sumner said that the
Committee “felt that we had better make a clean thing, purify
the country, and lift it before foreign nations, which could
be only by washing our hands of Slavery.” Mr. Sherman was “not
guided exactly by the motives of the honorable Senator from
Massachusetts”; he would “give to the people of the Southern
States, the few that are left who have the right to enforce
the Constitution against us, their constitutional rights fully
and fairly.” According to him, “the law of 1793 was framed by
the men who framed the Constitution,” and “has been declared
to be valid and constitutional by every tribunal that has
acted upon it.” Mr. Sumner replied, that “it was declared to
be unconstitutional in certain particulars by the Supreme
Court of the United States in the Prigg case, and it is among
the records in the life of Judge Story, who gave the opinion
in that case, that the fatal objection of a failure to give
a trial by jury in a case of human freedom was never argued
before the Court, and that he personally considered it an
open question.” Mr. Sherman preferred “not to repeal the law
of 1793, about the constitutionality of which he had little
doubt.” Mr. Sumner replied, “Then the Senator has little doubt
that under the Constitution a human being may be given over
to Slavery without a trial by jury.” Mr. Sherman “would not
go into the discussion of that question.” Finding that the
bill had passed the stage when it could be amended, he moved
to reconsider the vote ordering it to be engrossed and read a
third time, which was done, when he moved to add these words:--
“Except the Act approved February 12, 1793, entitled ‘An
Act respecting fugitives from justice and persons escaping
from the service of their masters.’”
Mr. Henderson, of Missouri, proposed to repeal the Act of 1850,
leaving the Act of 1793 in force. Mr. Sherman thought “we had
better repeal all the laws on the subject except the Act of
1793.” Mr. Reverdy Johnson said: “The Constitution as it is
now, according to my interpretation of it, not only authorized
the passage of the Act of 1793 and the passage of the Act of
1850, but made it the duty of Congress to pass some law of that
description.” Mr. Sumner followed.
MR. PRESIDENT,--I shall not be carried into extended debate, but shall
content myself with replying directly to what has been said on the
other side.
There is, first, the Senator from Ohio [Mr. SHERMAN], who intervened
to arrest the generous purpose of the Senate, as it was about to vote,
by a motion to preserve the old Act of 1793. Strange that now, while
we are in deadly conflict with Slavery, it should be proposed to keep
alive an ancient support of Slavery. For the Senator gravely insists,
and the Senator from Maryland [Mr. REVERDY JOHNSON] insists with him.
But the Senator from Ohio does not seem aware of the character of the
statute he would preserve. Let me remind him that by this enactment,
towards which he is so tender, a fellow-man may be hurried before a
magistrate and doomed to Slavery without trial by jury. Can this be
constitutional? Will the Senator sanction such a thing?
Then the other Senator, who is so familiar with our jurisprudence,
takes exception to the statement that Mr. Justice Story admitted that
the constitutionality of the Act of 1793 had never been affirmed by the
Supreme Court. He thinks that this learned judge never made any such
statement. But he is mistaken. Here is a volume containing the Life and
Letters of Joseph Story, carefully prepared and published by his son. I
turn to the passage.
“One prevailing opinion, which has created great prejudice
against this judgment, is, that it denies the right of a person
claimed as a fugitive from service or labor to a trial by
jury. This mistake arises from supposing the case to involve
the general question as to the constitutionality of the Act of
1793. But in fact no such question was in the case, and the
argument that the Act of 1793 was unconstitutional, because
it did not provide for a trial by jury according to the
requisitions of the sixth [seventh] article in the Amendments
to the Constitution, having been suggested to my father, on his
return from Washington, _he replied, that this question was
not argued by counsel nor considered by the Court, and that he
should still consider it an open one_.”[328]
Evidently, according to this authentic record by his son, the necessity
of a trial by jury was not argued by counsel nor considered by the
Court, while the judge for himself declared that he should consider it
an “open” question; so that the constitutionality of the Act in this
important respect has not been affirmed. But the Senate is now asked
to affirm it. We are asked to vote that a fellow-man be handed over to
Slavery without trial by jury. To me this proposition is hateful beyond
the power of words to express.
But the Senator, not content with affirming the constitutionality of
the Act of 1793, has plunged into a general discussion on the fugitive
clause of the Constitution. He insists laboriously that it was intended
to cover fugitive slaves. When I reminded him that its authors might
have intended it to cover fugitive slaves, without succeeding in
their attempt, he still insists that it does cover fugitive slaves.
Well, Sir, there I meet him point-blank. I insist, that, whatever the
original intention of the framers of that clause, they did not leave it
so as to cover fugitive slaves. It remains a question of construction,
and the language employed is not applicable to fugitive slaves. It
does not describe them, and cannot by any just tribunal be extended to
embrace them. If the prepossessions of the Senator were more evenly
balanced, I should not doubt his judgment on this point, which in the
light of jurisprudence is so clear.
There is a rule of interpretation which the Senator will not call
in question. Where any language is open to two constructions,
one beneficent and the other odious, _that which is odious must
be rejected_. I do not stop to adduce authorities. The rule is
unquestionable, and the authorities are ample. But keep in mind the
conclusion: that which is odious must be rejected. Now the Senator
has already admitted that the language of the clause is applicable
to apprentices. Very well. That is enough. In its application to
apprentices, redemptioners, and the like, it is exhausted, so that it
cannot be made to cover a slave without offending against the rule
requiring us to adopt the construction least odious. And, Sir, if we go
further and closely scan the clause, we find that the words employed
are all applicable to a relation of _contract_ or _debt_, and not to a
relation founded on _force_. The clause is applicable to a “person,”
and not to a _thing_, and this “person” is to be surrendered on claim
of the person to whom his service or labor may be _due_. But, clearly,
no labor or service can be _due_ from slave to master. The whole
pretension is an absurdity. And if you give to this word its legitimate
application, you must restrict it to a case of _contract_ or _debt_. In
this reply I omit the argument founded on history, and the well-known
opinions of leading minds in the Convention, confining myself to the
text of the Constitution.
But the Senator dwells especially on the words “held to service
or labor in one State _under the laws thereof_,” and triumphantly
declares that slaves were included under this language. Here again he
is mistaken. Apprentices and redemptioners were held under “laws”;
but I need not remind the Senator of the admission repeatedly made
on this floor by Mr. Mason, author of the last Fugitive Slave Act,
that there were no “laws” for Slavery in any Slave State,--at least,
that none could be produced. Besides, as a jurist, the Senator surely
will recollect the ancient truth, that injustice cannot be “law,” but
is always to be regarded as an “abuse” or a “violence,” even though
expressed in the form of “law.” In presence of this principle, which
has the sanction of as great a lawyer as St. Augustine, and in the
face of the positive assertion of Mr. Mason, that no “law” for Slavery
can be found in the Slave States, what becomes of the argument of the
Senator? Sir, the case is clear. No ingenuity of honest effort can
ever make the words cited by the Senator, or any other words in that
much debated clause, sanction Slavery and the hunting of slaves. To
proceed with his argument, the Senator must begin by setting aside
those commanding rules of interpretation which are binding on him as
on myself. If, where words are susceptible of two significations, one
beneficent and the other odious, the former only can be taken, then
must the Senator restrict this clause to that signification which is
not odious. And again, if every word is always to be construed so as
most to favor Liberty, then must the Senator follow implicitly this
rule. But these two rules make it impossible to torture the clause into
any _odious_ or _tyrannical_ signification. They keep it clean and pure
from Slavery.
Sir, one feels humbled by the necessity of this discussion,--that at
this late day he should be called to vindicate the Constitution of his
country against glosses and interpretations in the interest of Slavery.
Pardon me, if, for a moment, leaving the two Senators who seek to foist
Slavery into the Constitution, I turn to the question itself, not so
much for argument as for statement. If I seem to repeat, it is because
there are certain points which I desire to impress upon the Senate.
To my mind nothing is clearer than that, according to unquestionable
rules of interpretation, the clause of the Constitution, whatever the
alleged intent of its authors, cannot be considered applicable to
slaves. Such is Slavery, that, from the nature of the case, it cannot
be sanctioned or legalized except by “positive” words. _It cannot stand
on inference._ This rule, which no reasoning can shake, drove Lord
Mansfield to his great judgment in Somerset’s case. African Slavery had
for two generations prevailed in England. Eminent lawyers and judges
had pronounced it legal. Some of the brightest names in Westminster
Hall had given to it the support of professional opinion and the seal
of judicial decision. At last a person at that time unknown, Granville
Sharp, struck by the injustice of Slavery, devoted himself to consider
the grounds on which its legality was recognized. He studied the laws
of England, and all the various evidences of its Constitution. In the
course of these studies he was gratified to find that there was no
_positive_ establishment of African Slavery in England, and, indeed,
that the words “Slave” and “Slavery” were nowhere to be found in the
British Constitution. He next applied himself to the powerful array
of well-known rules of interpretation, requiring, in case of doubt or
question, that the interpretation should be on the side of Liberty,
and especially that any man was “impious” and “cruel” who did not
favor Liberty. Impiety and cruelty are not light burdens for an honest
conscience. The conclusion was irresistible, that Slavery could not
exist in England.
But the unanswerable argument of Granville Sharp was rejected at first
by the bar, who regarded it as an attempted innovation. The direct
precedents and the weight of authority were the other way, and this
with most lawyers is enough. Harvey said that no person above “forty”
accepted his discovery of the circulation of the blood. And Granville
Sharp found himself in the same predicament. But this good man was not
disheartened. He knew well that there was no statute of limitations
against principles, and, better still, that principles must finally
prevail over precedents. Principles are immortal, and bloom with
perpetual youth: precedents are mortal, and die from age, decrepitude,
and decay. Against principles precedents may for a while prevail; but
the time comes when that which is mortal must yield to that which is
immortal. In this conviction he persevered, until at last lawyers were
convinced, and then the court pronounced in his favor.
The judgment of Lord Mansfield constitutes a landmark of law, to be
remembered proudly, when all his contributions to commercial law and
general jurisprudence are forgotten. It was a contribution to the
British Constitution and to human rights. Like every principle of
Natural Law, it approves itself at once to the reason and conscience.
And this authority I now invoke in the interpretation of the Fugitive
Clause.
* * * * *
I have already said too much. The argument on both sides is presented
in the two reports of the Committee, or rather in the report of the
Committee and the “views of the minority.” Senators, I doubt not, have
already made up their minds, which no discussion can change. Of course,
some may vote against the acts on one ground and some on another. The
arguments are numerous. It is enough, if on any ground they vote to
remove this shame from our statute-book.
I do not enter into details of the constitutional argument, whether
Congress has power under the Constitution to legislate on this subject,
or whether it may confide this great trust to a single magistrate
without trial by jury. These are grave questions, worthy of debate,
into which I am ready to enter, if the occasion requires. But I
forbear. Often, in other times, I have discussed these questions in the
Senate and before the people; but the time for discussion is passed.
And permit me to confess my gladness in this day. I was chosen to
the Senate for the first time immediately after the passage of the
infamous Act of 1850. If at that election I received from the people
of Massachusetts any special charge, it was to use my best endeavors
to secure the repeal of this atrocity. I began the work in the first
session that I was here. God grant that I may end it to-day!
Mr. President, one word more. The suggestion is too often made that
this measure is not practical. Not practical! It is the favorite
phrase. But this depends upon what Senators consider practical.
If it be practical to relieve the people from an unconstitutional
and oppressive statute,--if it be practical to take away a badge of
subjugation imposed by slave-masters during a brutal supremacy,--if it
be practical to secure the good name of the Republic, still suffering
immeasurably from this outrage,--if it be practical, at this moment of
our own severe trial, to substitute justice for oppression, and thus
secure the favor of Providence,--and, finally, if it be practical to
strike at Slavery wherever we can hit it, and to relieve ourselves
of all responsibility for this terrible wrong,--then is this measure
eminently practical. It is as practical as justice, as practical as
humanity, as practical as duty, which cannot be postponed.
But, independently of its intrinsic justice, this measure is
recommended by an expediency of the highest character. I blush to
plead in this way, but the occasion must be my apology. Senators are
not aware how much our country suffers in the judgment of civilized
nations from that accursed statute, which now for more than ten years
has been a byword and hissing among men. Genius in some of its rarest
creations has made it known, literature and art in every form have
lent themselves to expose it, while the unutterable atrocities it has
sanctioned have been carefully gathered together and circulated abroad
as testimony against republican institutions. Since the outbreak of
the Rebellion this statute has been constantly adduced by our enemies
abroad, as showing that we are no better than Jefferson Davis and
his slavemonger crew; for Slavery never shows itself worse than in
the slave-hunter. Only within a few days there has appeared at New
York, published for the fair, a photograph copy of a letter of the
late Alexander von Humboldt, containing the following words: “I have
the warmest attachment to your beautiful and liberal city, New York,
but have earnestly and deeply regretted that Webster, whom I long
respected, more than favored that _shameful_ law which still persecuted
colored men after they had regained by flight their natural, inborn
liberty, of which they had been robbed by Christians.” Humboldt was
our friend, but he could not forbear characterizing this statute as
“shameful.” Be assured, Sir, it is a burden for the national cause
abroad which it ought not to bear. For the sake of our cause, and that
it may have new strength in the swelling sympathies of the civilized
world, it should be repealed at once, without hesitation.
I confess, Sir, another motive. At this moment of severe trial, I wish
my country to put itself right with that Supreme Power which holds
in its hands the destinies of nations. It is as true in the life of
nations as in the life of individuals, that, if you would have equity,
you must do equity; but the great equity which we must do is found in
justice to an oppressed race. It is vain that you complain of disaster
to your arms, of colored soldiers and their brave officers cruelly
treated at Fort Wagner, of colored soldiers and their brave officers
massacred at Fort Pillow, if yourselves continue to set the example
of injustice. The story of the Israelites is revived, and plague
after plague is sent, sounding forever the old commandment, “Let my
people go.” If the plagues sent already are not enough, another and
yet another will visit us. There is one assurance of obedience which
you can give. It is to expunge from your statute-book all support of
Slavery. Be in earnest here, and you will be practical. Then, having
done equity, you may fearlessly ask for equity.
I have already said more than I intended. It was my purpose to leave
the Senate without a word of argument or persuasion. The case to my
mind is too clear, and I thought the time had come for votes. And now,
as I conclude, I forbear to press all constitutional objections, and
present the whole question on a single ground. Slavery has struck at
the national life. Let us strike back wherever we can smite the great
offender, and above all let us purify the statute-book, so that there
shall be nothing there out of which this terrible wrong can derive
support. In the discharge of this duty, all Fugitive Acts should be
repealed. The argument against one is the same against all.
The amendment of Mr. Sherman was adopted,--Yeas 24, Nays 17.
Mr. Saulsbury moved an amendment of two sections concerning
arrests without due process of law,--Yeas 9, Nays 27. Mr.
Conness, of California, then said: “I do not wish to cast a
vote for this measure in its present shape. I had intended,
before the debate closed, if it was debated, to say something
on the subject. I do not design that now; and as the Senate
have seen fit to amend the bill, I cannot vote for it. At
present, therefore, I move that it lie on the table.” Mr.
Sumner hoped the Senator would “withdraw that motion.” Mr.
Conness: “For what reason?” Mr. Sumner: “For the reason that we
get something by this bill.” The motion to lay on the table was
lost,--Yeas 9, Nays 31. The Democrats, and Mr. Conness, voted
in the affirmative.
* * * * *
April 20th, the Senate proceeded with the bill, when Mr.
Foster, of Connecticut, made an elaborate speech, especially
vindicating the Act of 1793, in the course of which he was
frequently interrupted by Mr. Sumner in answer to points of the
argument. He was followed by Mr. Gratz Brown, of Missouri, who
concluded by saying: “I cannot support this bill as it has been
amended. I cannot support any bill that recognizes as right and
proper any Fugitive Slave Act; and I shall therefore refuse
to give it my sanction, if it comes to a vote upon the final
passage in its present shape.”
April 21st, Mr. Van Winkle, of West Virginia, seized the
opportunity to speak at length on the question of the war.
Mr. Howard, of Michigan, moved an amendment at the end of the
bill:--
“But no person found in any Territory of the United States,
or in the District of Columbia, shall be deemed to have
been held to labor or service, or to be a slave; nor shall
he or she be removed under said Act of 1793; and the fourth
section of said Act is hereby repealed.”
Mr. Doolittle, of Wisconsin, moved an executive session.
Mr. Sumner suggested that it should be an hour later. Mr.
Brown thought the bill could not be finished that evening.
Mr. Fessenden did not like to interfere with this bill, but
he must give notice, that, if the bill were not disposed of
that afternoon, or by one o’clock the next day, he must then
move to go on with the Army Appropriation Bill. Mr. Sumner
hoped “we might go on for at least another hour.” Mr. Conness
“did not understand the anxiety of his honorable friend from
Massachusetts in pressing this bill in its present condition.”
Mr. Pomeroy hoped Mr. Sumner would let the bill go over;
there were half a dozen amendments to be proposed. Mr. Sumner
replied: “Very well; if the friends of the measure request
that it shall not be pressed to-day, I will not throw myself
in their way.” Accordingly, on the motion of Mr. Conness, it
was postponed to April 27th, and made the special order at one
o’clock; but it was then superseded by the unfinished business
of the day preceding, being the National Currency. With the
amendment fastened upon his bill, keeping alive the Act of
1793, Mr. Sumner was not encouraged to press it, and he waited
the action of the House of Representatives.
* * * * *
June 6th, in the House of Representatives, Mr. Morris, of New
York, reported from the Committee on the Judiciary a bill in
the following terms.
“AN ACT to repeal the Fugitive Slave Act of eighteen
hundred and fifty, and all Acts and Parts of Acts for the
Rendition of Fugitive Slaves.
“_Be it enacted by the Senate and House of Representatives
in Congress assembled_, That sections three and four of an
Act entitled ‘An Act respecting fugitives from justice and
persons escaping from the service of their masters,’ passed
February twelve, seventeen hundred and ninety-three, and an
Act entitled ‘An Act to amend, and supplementary to, the
Act entitled “An Act respecting fugitives from justice and
persons escaping from the service of their masters,” passed
February twelve, seventeen hundred and ninety-three,’
passed September, eighteen hundred and fifty, be, and the
same are, hereby repealed.”
After some skirmishing, the bill was ordered to be engrossed
and read a third time. It was then vehemently denounced,
and a series of motions was made to delay or stave off its
passage. At last Mr. Morris allowed its postponement to June
13th, on which day, after further denunciation, it passed the
House,--Yeas 90, Nays 62.
* * * * *
June 15th, the House bill was laid before the Senate, when Mr.
Sumner said: “I am instructed by the Committee on Slavery and
Freedmen to move the immediate passage of that bill. The Senate
understands it; the House of Representatives has acted on it;
there is no need of debate; and I ask to have it voted on at
once.” Mr. Hale, of New Hampshire, objected, as he wanted the
morning hour for morning business. Mr. Powell, of Kentucky,
moved its reference to the Committee on the Judiciary. Mr.
Sumner wished it referred to the Committee on Slavery and
Freedmen. The Senate refused to order the reference to the
Committee on the Judiciary,--Yeas 14, Nays 21. Then, on motion
of Mr. Sumner, it was referred to the other Committee. Mr.
Sumner, anticipating such a reference, had already obtained
from the Committee authority to report it promptly, without
amendment, which he did at once, and asked for immediate
action. Objection being made, the bill was not considered at
that time.
June 21st, Mr. Sumner moved that the Senate proceed with the
House bill, which, after earnest debate, was ordered,--Yeas 25,
Nays 17. The Senate then took a recess till evening, when other
business was considered, including the question of opening the
street cars.
June 22d, Mr. Sumner moved to proceed with the House bill. Mr.
Hale, of New Hampshire, opposed the motion, as he desired the
Senate to take up some naval bills. The motion was lost,--Yeas
14, Nays 22. In the evening session, Mr. Sumner moved again
to proceed with the House bill. Mr. Chandler said: “I will
spend to-night with great pleasure with the Senator from
Massachusetts on his bill; but to-morrow I shall demand the
day for the Committee on Commerce.” Mr. Saulsbury moved to
adjourn, saying, “Let us have one day without the nigger.” The
motion was lost,--Yeas 8, Nays 28. Mr. Reverdy Johnson wished
to secure an opportunity for Mr. Davis to speak, and he was
now absent. Mr. Sumner replied: “The Senator from Kentucky
has had ample notice. He knew that this bill would be moved
as soon as I could get the floor.” Mr. Johnson insisted, when
Mr. Sumner said: “The public business cannot wait. Again and
again has this measure been postponed in deference to the
Senator from Kentucky.” The motion to proceed with the bill
was adopted,--Yeas 26, Nays 12. Mr. Lane, of Indiana, then
moved to proceed with executive business. Mr. Powell said: “You
cannot get a vote to-night.” Mr. Sumner: “Let us try.” Mr.
McDougall: “It is not possible to take a vote to-night.” Mr.
Howard and Mr. Wade: “We can get it by morning.” Mr. McDougall:
“It cannot be done.” The motion for an executive session was
lost,--Yeas 15, Nays 22. Mr. Saulsbury then moved that the
bill be indefinitely postponed, and the question resulted,
Yeas 11, Nays 25. Mr. Lane again moved an executive session,
which motion was lost,--Yeas 16, Nays 22. Mr. Powell then moved
that the bill be postponed until the first Monday of December
next. Pending this motion, Mr. Riddle, of Delaware, moved an
adjournment, which was lost,--Yeas 12, Nays 22. In the course
of these dilatory motions, Mr. Sherman remarked that he was
willing to give Mr. Davis an opportunity to be heard, and then
said: “If Senators propose to resort to these parliamentary
tactics, these interminable propositions for delay, merely
to defeat a vote upon a bill which the majority have a right
to pass, I am perfectly willing now to go into a contest of
physical endurance.” At last the bill was reported to the
Senate without amendment, with the understanding that Mr. Davis
should be heard upon it the next day, when Mr. Powell withdrew
his motion, and, after the consideration of executive business,
the Senate adjourned.
June 23d, Mr. Davis addressed the Senate at length. Mr.
Saulsbury moved to strike out all after the enacting clause
and insert the words of the Constitution concerning fugitives
from service, with the addition: “And Congress shall pass all
necessary and proper laws for the rendition of all such persons
who shall so as aforesaid escape.” The motion was lost,--Yeas
9, Nays 29. Mr. Johnson moved to amend the bill so as to keep
alive the Act of 1793, saying: “The amendment, as the Senate
will see, makes this bill like the one that we passed after
debate.” This motion was also lost,--Yeas 17, Nays 22. So the
Senate reversed its former decision on that question. The bill
was then passed by the vote, Yeas 27, Nays 12, and was approved
by the President June 28th.
Here was the end of all Fugitive Slave Acts, and another blow
at Slavery.
THE NATIONAL BANKS AND THE CURRENCY.
SPEECHES IN THE SENATE, ON AMENDMENTS TO THE BILL PROVIDING A NATIONAL
CURRENCY, APRIL 27 AND MAY 5, 1864.
April 26th, the Senate having under consideration the bill
to provide a National Currency secured by a pledge of United
States bonds, and to provide for the circulation and redemption
thereof, the Committee on Finance reported an amendment to
strike out this clause,--
“And nothing in this Act shall be construed to prevent the
taxation by States of the capital stock of banks organized
under this Act, the same as the property of other moneyed
corporations, for State or municipal purposes; but no
State shall impose any tax upon such associations, or
their capital, circulation, dividends, or business, at
a higher rate of taxation than shall be imposed by such
State upon the same amount of moneyed capital in the hands
of individual citizens of such State: _Provided_, That no
State tax shall be imposed on any part of the capital stock
of such association invested in the bonds of the United
States, deposited as security for its circulation,”--
and insert instead thereof another clause, which, after
providing for payments to the Treasurer of the United States
“in lieu of all other taxes,” further declared,--
“_Provided_, That nothing in this Act shall be construed to
prevent the market value of the shares in any of the said
associations, held by any person or body corporate, from
being included in the valuation of the personal property of
such person or corporation in the assessment of all taxes
imposed by or under State authority for State or other
purposes, but not at a greater rate than is assessed upon
other moneyed capital in the hands of individual citizens
of such State; and all the remedies provided by State
laws for the collection of such taxes shall be applicable
thereto: _Provided, also_, That nothing in this Act shall
exempt the real estate of associations from either State,
county, or municipal taxes, to the same extent, according
to its value, as other real estate is taxed.”
Mr. Sumner saw in the report of the Committee a deference to
the State banks which he feared might imperil the national
system, and he made an effort to secure for the national banks
the largest immunity, believing it important to the national
credit.
Early in the debate he spoke,[329] and Mr. Fessenden replied to
him.
April 27th, Mr. Sumner spoke again.
MR. PRESIDENT,--This question seems to me very simple. The country
is now engaged in mortal struggle to establish itself as a nation.
It has gone forth to meet Rebellion organized in the name of State
Rights. In preparing ourselves for this unparalleled contest, we are
compelled to look about in every direction to increase our army, to
enlarge our navy, and to multiply our financial resources; but at every
stage we are encountered by objections in the name of State Rights. No
single proposition is brought forward, having for object the salvation
of the Republic by infusing new energy and new vitality, which is
not encountered in the name of State Rights. And now, Sir, while
considering how to secure financial stability, we are doomed again to
encounter the oft-repeated objection. The Rebellion began in State
Rights, and all opposition to the measures conceived to crush it is in
the name of State Rights. It is hard that we should be obliged to meet
State Rights not only on the battle-field, but also in this Chamber.
The Senator from Vermont [Mr. COLLAMER] complained that it
was proposed to sequester so large an amount of property from
State taxation. The sum-total of property thus sequestered is
$300,000,000[330]; but has the Senator considered how much is
sequestered by other agencies to save this Republic? There is the army
with all the material of war, there is the navy with all the material
of the navy,--all sequestered. Who complains that this vast material,
now counted far beyond $300,000,000, is sequestered from State
taxation? Does any Senator, in the name of State Rights, claim that
the enlarged navy of the Republic, as it floats into a Northern port,
shall be brought within the sphere of local taxation, whether State
or municipal? Does any Senator say that all the vast material of war,
ammunition, cannon, and the like, deposited, for the time being, in any
particular locality, shall fall within the sphere of State or municipal
taxation? Or does any Senator insist that the public securities shall
be left exposed to State taxation? No Senator makes any such complaint.
But the complaint is reserved for the present occasion, when it is
proposed to create a new agency for the currency of the country.
I know not how the exemption can be sanctioned in one case and not in
the other. The reason applicable to one is applicable to the other.
It is said that the army and navy are for war, and naturally share
exemptions incident to war and its preparations. But it would be
difficult to say, that, in this crisis, what you do for the finances
is not essentially a war measure, entitled to all the consideration
accorded to such measures in a moment of war. What are your army and
navy without a Treasury? Milton, in one of his sublimest sonnets, has
aptly pictured that statesmanship which was able
“to advise how War may, best upheld,
Move by her two main nerves, iron and gold,
In all her equipage.”[331]
In these few words the very likeness is given. All who hear them will
confess their truth.
Now, Sir, no Senator complains because we protect the nerve of iron;
but the Senator from Vermont registers complaints because it is
proposed to protect the much more delicate nerve of gold. What is worth
doing is worth well doing; and if it be worth while to organize the
finances of this Republic by the proposed banking system, it is worth
while to do it well; and can you do it well, if, at the very moment of
its organization, you leave its most sensitive part exposed to hostile
influence?
The precedent for this exemption is complete. Already you exempt the
public stocks and securities from local taxation. Pray, Sir, tell me
what policy justifies such exemption which is not equally strong for
the exemption of shares in the national banks. Clearly, it was to
commend your national stocks that you established the exemption; and
for the same reason I ask you now to establish this other exemption.
It is strange that the vast sequestration of the national stocks
from State taxation should have been made with so little doubt, when
Senators question so pertinaciously this smaller sequestration. If it
was proper in one case, it is in the other. If it was necessary in one
case, it is in the other.
If you allow the State to interfere with the proposed system by
taxation in any way, may they not embarrass it? Where shall they stop?
Where will you run a line? Undoubtedly, according to the Supreme Court,
they cannot tax the bank directly. This would be unconstitutional. But
it is said that they may tax the shares. Now I raise no constitutional
question. It may be that a tax on shares is constitutional. But I shall
not consider it on this ground. I am now arguing against the policy of
such tax. It is a question of expediency which I raise, for the sake of
the system we are about to establish. But here the rule seems clear.
Every consideration urged against taxing the bank directly may be urged
against taxing the shares. If it be bad policy in one case, it must be
in the other.
I suppose there is no judgment of our Supreme Court which has been
more admired than that in the case of _M’Culloch_ v. _The State of
Maryland_.[332] It was pronounced by Chief Justice Marshall, and is as
good a specimen of that “pure reason” which belonged to this magistrate
as any that can be named. In the course of this elaborate judgment
all the topics were considered which enter so peculiarly into this
debate. It was there insisted that the tax was unconstitutional. But
the words of the Chief Justice seem intended for the present occasion.
His object, from beginning to end, was to keep the bank safe from the
hostile acts of the States. It was a great effort to uphold a national
institution against State Rights. It was, permit me to say, an answer
in advance to the Senator from Vermont. I do not like to trouble the
Senate, but there are passages so pertinent that I will read them.
Here, for instance, the Chief Justice considers the ground of exemption.
Mr. Sumner then proceeded at some length to analyze the
judgment of Chief Justice Marshall, reading important parts of
it; and he then said:--
Now, Sir, every consideration, every argument, which goes to sustain
this great judgment, may be employed against the proposed concession
to the States of the power to tax this national institution in any
particular, whether directly or indirectly. The reason of the judgment
is as strong against an indirect tax as against a direct tax.
After showing the character of the new system as an instrument
of national credit, as the Navy-Yard and the Mint are
instruments for the public service, he proceeded:--
The very measure under consideration seeks to create a new currency
by a system of national banks which shall supersede the existing State
banks as agents of currency. Of course the new system must begin in
rivalry with the State banks, which in many cases will be hostile. This
is no inconsiderable impediment. But this impediment will be increased,
if the national banks be exposed to local taxation. It is an untried
experiment upon which you are entering. On every account it should be
made under the most favorable circumstances,--precisely as when we
put stock in the market. The national banks should be commended in
every possible way. But, instead, it is proposed to fasten upon them
a liability, which, if it do not cause people to avoid them, will at
least keep them in rivalry with the State banks, so that the new system
cannot become truly effective. It seems to me that there is but one
practical course. Naturally, all who are against the proposed system
will favor any limitation or burden to impair its efficiency. But all
who are for the system, and wish to see it doing all the good it can,
will take care that it is not compelled to carry weight. The whole case
may be briefly summed up. Would you place the national credit on a sure
foundation? Are you for the national banks as a proper agency to this
end? If these two objects interest you, then, I say, do not allow them
to be sacrificed in subserviency to State Rights.
Mr. Fessenden followed in an earnest speech, vindicating the
report of the Committee, to which Mr. Sumner replied.[333] The
debate continued for several days.
* * * * *
May 5th, as a substitute for the amendment of the Committee,
Mr. Sumner moved the following:--
“In lieu of all other taxes on the capital, circulation,
deposits, shares, and other property, every association
shall pay to the Treasurer of the United States, in the
months of January and July, a duty of one per cent each
half-year from and after the first day of January, 1864,
upon the average amount of its notes in circulation, and a
duty of one half of one per cent each half-year upon the
average amount of its deposits, and a duty of one half of
one per cent each half-year, as aforesaid, on the average
amount of its capital stock beyond the amount invested
in United States bonds; and in case of default in the
payment thereof by any association, the duties aforesaid
may be collected in the manner provided for the collection
of United States duties of other corporations, or the
Treasurer may reserve the amount of such duties out of the
interest as it may become due on the bonds deposited with
him by such defaulting association. And each association
shall, within ten days from the first days of January
and July of each year, make a return, under the oath of
its president or cashier, to the Treasurer of the United
States, in such form as he may prescribe, of the average
amount of its notes in circulation, and of the average
amount of its deposits, and of the average amount of its
capital stock beyond the amount invested in United States
bonds, for the six months next preceding the first days
of January and July, as aforesaid; and in default of such
return, and for each default thereof, each defaulting
association shall forfeit and pay to the United States the
sum of two hundred dollars, to be collected either out of
the interest as it may become due to such association on
the bonds deposited with the Treasurer, or, at his option,
in the manner in which penalties are to be collected of
other corporations under the laws of the United States;
and in case of such default, the amount of the duties
to be paid by such association shall be assessed upon
the amount of notes delivered to such association by the
Comptroller of the Currency, and upon the highest amount of
its deposits and capital stock, to be ascertained in such
other manner as the Treasurer may deem best. _Provided_,
That nothing in this Act shall exempt the real estate of
associations from either State, county, or municipal taxes,
to the same extent, according to its value, as other real
estate is taxed: _Provided, also_, That all taxes imposed
by this or any future Act on banking associations organized
under national legislation shall be applied exclusively to
the payment of the interest and principal of the national
debt of the United States.”
It will be perceived that the special object of this amendment
was to keep the taxation of the national banks in the hands
of the National Government. In this aim Mr. Sumner was
sustained by Mr. Chase, the Secretary of the Treasury, who,
in a communication to the Chairman of the Senate Committee of
Finance, May 9, 1864, said:--
“Under ordinary circumstances there might be no insuperable
objection to leaving the property organized under
the national banking law subject, as are almost all
descriptions of property, to general taxation, State,
national, and municipal; but, in the present condition of
the country, I respectfully submit that this particular
description of property should be placed in the same
category with imported goods before entry into general
consumption, and be subjected to exclusive national
taxation.”
Mr. Sumner spoke in the same vein.
MR. PRESIDENT,--At last, in this discussion, it is clear that we have
come to the place where the road branches in two opposite directions:
one toward the support of the whole country, and of that improved
currency essential not only to the general welfare, but also to the
common defence; and the other toward State rights, State taxation, and
State banks. Which road will you take, Sir?
Or, stating the case in a different way, it is a question between the
national credit, involving the interests of all, on the one side, and
certain local pretensions on the other side. It is a question between
the whole and a part,--between the life of the Republic and a small
percentage of taxation which Senators claim for their States. The enemy
is at our gates,--gold is at 180,--and yet Senators hesitate.
All are watching, at this moment, the movement of our forces under
General Grant, and are longing for victory. Nothing that the country
can do to make him strong is left undone. Men, money, supplies,
everything is lavished; and only the day before yesterday the Senate
voted another $25,000,000.
There is another field, where the battle is bloodless, but scarcely
less important: I mean the field of finance. If our pecuniary resources
fail, it is doubtful if the army and navy must not fail also. But
victory on this field would give triumphant strength and vigor to all
the operations of Government. There is no argument for the army and
navy--ay, Sir, for the present support of the Lieutenant-General of the
United States, in the field at the head of our military forces--which
at this moment is not equally applicable to the support of the
Secretary of the Treasury at the head of our _financial forces_.
How different the treatment of these two officers! Everything is given
to the one, almost without debate; but little is given to the other
without higgling at every stage.
There are movements pending in the field of national finance hardly
less important than those in the field of war. A defeat in finance
would be little less disastrous than a defeat in war.
Under these circumstances, and at this critical moment, a measure is
brought forward whose real character is discerned in its title: “_To
provide a national currency_ secured by a pledge of United States
bonds, and to provide for the circulation and redemption thereof.” The
primary object of this bill is not, therefore, to establish national
banks, but to secure the national currency. For the sake of the
currency a system of national banks is to be established; they are the
means to the end. But the end sought is an improved currency. Sir, this
must not be forgotten. If it were a mere question of a national bank,
if it were a question between two rival systems, Senators might take
sides. But who will hesitate to give all that is needed, even all that
is asked by the proper authorities, for an improved currency? You may
seem to give much, when you abandon sources of State taxation; but you
can give nothing that will not be returned tenfold, a hundred-fold,
when the currency at last becomes fixed and uniform.
Glance only for a moment at the incalculable advantages of a sound
currency. Gold will assume its normal place, business will be sure,
values will be fixed, fluctuations will cease, inflated prices will
pass away. There is not a mart of commerce, there is not a village in
the whole country, that will not feel the change. But this great boon
cannot be assured without corresponding effort. Like victory in the
field of battle, it must be fought for and paid for.
And now, when victory seems within reach, when an improved currency is
already begun, Senators hesitate in conceding those facilities without
which victory is doubtful. They set up claims for their States, and
insist upon certain rights of taxation. If this were a season of peace,
I could appreciate the pretension; but when I consider the peril of
the country, filling us all with such anxiety,--when I consider that
its very being is assailed, and that it is to be defended on the field
of finance just as much as on the field of battle,--I feel that every
endeavor to hamper the pending measure differs little in character
from an effort to hamper our soldiers in the field. We spare nothing
essential to our armies; we should spare nothing essential to our
currency. Men and money both are necessary; both must be cherished and
protected with equal patriotic care.
…
Sir, I am unwilling to be misunderstood. I have no feeling except of
kindness for the State banks, especially when they keep within the
proper sphere of banks, and do not undertake to supply a currency for
the country. But at this moment, when we are seeking to create a new
currency, which shall be the foundation of national credit, and of
national character too, I confess that I have little sympathy with
anything that puts itself in the way. The State banks have performed
their task as agents of currency, and the time has come for them to
abdicate,--or, if they do not abdicate, at least to conform to the new
system.
I do not stop to inquire if any paper issued by State banks as currency
can be constitutional,--to consider if the States, which cannot coin
money, can yet put paper in circulation as money. I content myself with
insisting, that, whatever the constitutional merits of this question,
it is no longer expedient that States should be invested with the
power. We must have another system. The best interests of the whole
country require it, especially at this time of national peril.
It is clear that the State banks are not competent to meet the crisis.
They cannot do the business required. Besides, they are in the way.
Putting their notes in circulation almost at will, the currency is
inflated beyond control. Depreciation naturally ensues. Bankruptcy may
follow.
When I say that the State banks are in the way, I do not use too
strong language. Authentic tables show the extent to which during the
last year the currency has been affected by their interference. I hold
in my hand a statement from the Bank Reports for 1862, page 208, and
for 1863, page 210. At the risk of wearying the Senate, I will read it.
_Statement of the Circulation of the Banks in certain States, on or
about 1st January, 1862 and 1863._
1862. 1863.
Maine $4,047,780 $6,488,478
New Hampshire 2,994,408 4,192,034
Vermont 2,522,687 5,621,851
Massachusetts 19,517,306 28,957,630
Rhode Island 3,306,530 6,413,404
Connecticut 6,918,018 13,842,758
---------- ----------
$39,306,729 65,516,155
39,306,729
----------
Total increase in New England States $26,209,426
Being over sixty-six and two thirds per cent.
Similarly in New York, Pennsylvania, and New Jersey, we find the
circulation, on or about 1st January:--
1862. 1863.
New York $30,553,020 $39,182,819
Pennsylvania 16,384,643 27,689,504
New Jersey 3,927,535 8,172,398
---------- ----------
$50,865,198 $75,044,721
50,865,198
----------
Total increase in New York, Pennsylvania, and
New Jersey, $24,179,523
Being over forty-seven per cent.
_Aggregate Increase in the Principal Eastern States._
1862. 1863.
New England $39,306,729 $65,516,155
New York, Pennsylvania, and New
Jersey 50,865,198 75,044,721
---------- ----------
$90,171,927 $140,560,876
90,171,927
----------
Aggregate increase in Eastern States $50,388,949
Being over fifty-five and three fourths per cent.
These tables speak. They show the range within which the State banks
undertake to operate, and their consequent interference with the
national system. If it be said that in certain parts of the country,
as in New England and New York, the State banks have performed good
service, I reply, that, even admitting all that is claimed, the service
is local and incomplete. It does not embrace the West.
The present endeavor is to provide a remedy for this trouble by a
comprehensive national system, discharging the function performed
by the State banks, and embracing the whole country. It is called
national because it belongs to the nation, and not to any particular
State, and because its origin, aim, and inspiration are all national.
It is conceived in no hostility or unkindness to the State banks,
but in a patriotic purpose to do what can be done to secure what all
desire,--a national currency. The State banks will be welcome to a
place in the system, like State troops coming forward for the defence
of the Republic; but they cannot be tolerated, if they stand aloof, or
refuse to take the post assigned them. At a moment of peril, when the
Government is bending all its energies to save the national currency, a
mutiny among State banks will be hardly less disastrous than a mutiny
among State troops. Every murmur or mutter of such mutiny ought to be
repressed at once. All should be summoned to perfect and harmonious
coöperation in that cause which embraces the whole country, in every
walk of life, whether military or civil.
I know not how others are impressed, but to my mind it is difficult
to imagine anything, short of those everlasting principles of human
freedom involved in this war, which should at this moment be more
carefully watched than the currency of the country. Let this be safe,
and everything will be safe,--army, navy, and the whole national
cause. Such a currency will constitute an epoch in the history of
the country,--ay, Sir, in the history of the world. There have been
ministers in other countries and other times whose names are immortal
from association with commercial reforms. Colbert was the founder of
the commercial system of France; Peel was the founder of free trade
in England. But the present Secretary of the Treasury, when the new
system is at last triumphant over all obstacles, including the mutiny
of State banks and the lukewarmness of Senators, may boast that he
has given a currency to his country. Next after the great gift of
human freedom there is nothing greater he could give,--nothing that
comes home so completely to the business and bosoms of the people,
rich and poor, throughout our wide-spread empire. An improved currency
is like sunshine, penetrating every corner of the land, under which
commerce, business, comfort, civilization, life itself, will put forth
blossom and fruit. Nobody in the community too high, nobody too low,
not to feel the new-found boon filling every household and travelling
on every highway. But it is seen now in another aspect. An improved
currency is like a new levy of national troops, a new navy afloat, a
new contribution of supplies. It is the herald and assurance of untold
success. In itself it is a present daily victory,--fruitful parent of
victory everywhere.
Such is the object proposed,--important at any time, inconceivably
important at this moment. And the question recurs, Are you for a
national, life-giving currency, or are you for the State banks? You
cannot be for both; one must yield to the other. If you are for the
former, you must abandon the State banks, or compel them to enlist in
the national cause.
Massachusetts--which has a larger bank capital in proportion to her
population than any other State, and, moreover, looks to taxation of
this capital as a chief source of income--has already, by her patriotic
Governor, volunteered support to the national banks.
Here Mr. Sumner quoted from the Address of Governor Andrew to
the Legislature of Massachusetts, January 9, 1863.
Such is the testimony of Massachusetts, by the lips of her brave Chief
Magistrate. Seeing the object before us, he raises no question of State
rights, presents no claim of State taxation, makes no plea for State
banks.
Sir, it is vain to think that you can keep both systems at the same
time. One must yield to the other. But if you sincerely desire the
national system to prevail, then must you so endow and protect it that
it will be commended to the public, and that investments will naturally
seek it. Therefore every privilege you confer, every immunity you give,
every exemption you establish in its favor, must naturally contribute
to its strength, and make it more effective for its transcendent
purposes.
This is the day of sacrifice. Families are offering sons and brothers.
States are giving their citizens, and every citizen is contributing
according to his means to the safety of the Republic. But there is one
other sacrifice now required: it is the sacrifice of the State banks as
agents of currency; and this sacrifice requires that the local taxation
should be suspended with regard to the national currency, and that all
the proceeds of such local taxation should be passed to the credit of
the whole country. You must do for the national currency precisely what
you do for the national securities. Here are the words of the statute:--
“And all stock, bonds, and other securities of the United
States, held by individuals, corporations, or associations,
within the United States, _shall be exempt from taxation by or
under State authority_.”[334]
The reason which sustains the exemption in this case is equally
applicable in the other.
But we have other exemptions from local taxation.
There are the imports of the country, which no State or municipality
can tax.
There are the army and navy, and all the material of war,--ships, arms,
munitions, commissariat supplies,--all exempt from local taxation.
There are the public lands of the United States, which no local
authority can touch.
There is the Mint, which is untaxed.
There are the public buildings in Washington, the National Capitol, the
Executive Mansion, the offices of the heads of Departments, covering
large spaces of ground, all secured from local taxation.
But no reason can be assigned for exemption in these cases that does
not prevail with regard to the currency. Nay, at this juncture, when
our object is, above all things, to secure a national currency, the
reason for exemption is of special and unanswerable force.
We have more than once been warned not to slay the goose that lays
the golden egg,--meaning by this goose the State banks. But all who
use this illustration forget that there is another bird, which lays
such eggs as no State banks can hatch,--eggs not merely of gold, but
of victory. It is the _national credit_, which Senators seem willing
to abandon, if not to slay; and it is the national credit which I now
insist shall be preserved at all hazards.
Mr. President, I was not a sharer in the counsels that originated this
measure. Had I been consulted, I know not that I should have originally
advised the experiment in its actual form. Clearly, something was
necessary for the sake of the currency, and for the sake of the
country; and after proper consideration the present system was adopted.
Operations under it have already commenced; $60,000,000 of capital
have been organized according to its requirements. It is too late to
retreat. It only remains that you should go forward, not sluggishly,
heavily, reluctantly, but bravely, confidently. The financial
enterprise already begun must be finished and protected. Here I cannot
hesitate. If the system is to be maintained, if it is not to be utterly
abandoned, it must be placed under the most favorable auspices, so at
least that it may not fail from any want of care on our part. It should
be made strong in itself, and then it should be surrounded with an
atmosphere congenial and friendly. For this reason I shall vote to keep
it free from all State hostility and even State rivalry, that it may
become in reality, as in name, wholly national.
Sir, I am told that it will be unpopular to make this sacrifice,
and ancient ghosts are paraded through this Chamber to frighten us
from duty. Naturally, all who are against the proposed system will be
against the seeming sacrifice. But the people are too intelligent not
to see what is demanded by the best interests of the national currency;
and unless I greatly err, they will insist that what we do shall be
so done as to make our work most effective and most triumphant, to
the end that victory may be certain. It is on no narrow ground that
I make my appeal. I speak for a national currency which shall be to
the whole country like the horn of abundance; and I plead for it now,
as essential not only to the general welfare, but also to the common
defence.
Mr. Fessenden replied to Mr. Sumner with severity. On the other
hand, Mr. Chandler, of Michigan, recognized as a business man,
said: “The country owes the Senator from Massachusetts a debt
of gratitude for his patriotism and statesmanship. He has
risen above small matters, above local, petty interests, and
has come up to the standard of the broadest statesmanship, in
the argument he has just delivered, which is one of the ablest
financial arguments ever delivered on this floor.”
Mr. Sumner’s amendment was lost,--Yeas 11, Nays 24. The
amendment of the Committee was then agreed to,--Yeas 29, Nays 8.
BRANCH MINTS AND COINAGE.
SPEECH IN THE SENATE, ON THE PROPOSITION TO CREATE A BRANCH MINT IN
OREGON, APRIL 29, 1864.
The Senate having under consideration a bill to establish Assay
Offices at Carson City, in the Territory of Nevada, and Dalles
City, in the State of Oregon, Mr. Nesmith, of Oregon, moved to
strike out the section establishing an Assay Office at Dalles
City, and insert several sections establishing a Branch Mint
there, instead. This was contrary to the recommendation of the
Finance Committee, and also to communications from Mr. Pollock,
the Director of the Mint at Philadelphia, and Mr. Chase,
Secretary of the Treasury, sustained by Mr. Fessenden in the
Senate.
* * * * *
April 29th, Mr. Sumner spoke.
MR. PRESIDENT,--When this subject was under consideration before, I
voted with the Committee, partly because it is my habit to vote with
committees on matters within their special consideration, and partly
because at the time I was under the impression that their report was
justified by correct principles. Subsequent reflection has induced me
to hesitate in this conclusion.
Much dependence has been placed upon the report of the Director of
the mint at Philadelphia. Now, Sir, if he had contented himself with
giving an opinion against establishing a mint in Oregon, without
assigning reasons, I might have respected his opinion; but when he puts
forward as his first great objection that the multiplication of mints
will tend to “national disintegration,” I confess that I join with
the Senator from Oregon [Mr. NESMITH] in distrusting his conclusion.
What confidence can anybody have in anything founded on such premises,
which experience, if not reason, shows to be false? Why, Sir, the
author of this opinion forgets that in the country most centralized in
the world, where all the agencies of Government converge in a single
capital,--I mean France,--there have been for a long time, even within
its comparatively contracted borders, more than half a dozen different
mints. Besides a magnificent central mint at Paris, there are, or
were very recently, auxiliary mints at Lyons, Marseilles, Bordeaux,
Lille, Rouen, and Strasbourg. I never heard that this multiplicity
tended toward “national disintegration.” France still continues one
and indivisible; and I doubt if there would be any difference in this
respect, even if there were a mint in every one of her eighty-six
Departments. Really, the Director of the Philadelphia mint ought to
have borne in mind the famous instructions of Lord Mansfield to the
colonial magistrate, and contented himself with an opinion without
assigning reasons.
There is a different consideration, to which I confess that I am not
insensible. It is the importance of a correct and finished coinage,
which it seems natural to suppose best promoted by a single mint. On
this point I am disposed to agree with the Director. But our Government
has not acted on this principle.
If circumstances favored the consolidation of the national coinage
at a single mint, I can conceive that there would be advantages of
an unquestionable character. Indeed, if we repair to France, where
the mints have been in times past so numerous, we find that these
advantages have not been denied. I suppose that the most authoritative
testimony on this subject, whether we look at it in the light of theory
or of practice, is found in that country; and if we seek special
authorities, there is nothing so instructive or ample as the report
of Dumas and De Colmont, made in 1839, under a commission from the
French Minister of Finance. This document, with its minute disclosures
on the operations of mints, was for some time kept secret in France.
I have understood that only _twelve copies_ were printed for the use
of the Commission, who were placed under a solemn obligation not to
divulge it. But I believe it found its way to publicity at the time of
the Parliamentary inquiry into the Mint in 1849, which resulted in a
valuable blue-book.
The testimony of Dumas is for a single mint. He dwells especially
on two considerations,--economy, and the perfection of the coinage;
and these he places above local interests demanding multiplicity of
mints. The figures by which he illustrates the superior economy are
very striking. _These assume that the metal is already delivered at
the mint_,--a point not to be forgotten on the present occasion.
Beyond his own opinion on the question of perfection, Dumas quotes the
testimony of Basterrèche, Regent of the Bank of France, who, after
an examination of the subject as long ago as 1800, very positively
declared that “the perfection of labor which ought to distinguish a
great nation imperiously required a single mint, placed under the
immediate superintendence of the Government.” And he also quotes the
testimony of Humann, Minister of Finance, who, in presenting his
budget in 1835, declared that the Paris mint was adequate to do all
the coinage required in France,--that the concentration of labor
there would promote improvement in the processes of production,--that
in this way the Government would be relieved from the expense of
different establishments,--that all the money from the same mint would
be identical in character, and in proportion as it acquired perfection
would be less exposed to counterfeiting,--and, in fine, that the
superintendence of the Government would be a guaranty of security,
which does not exist where the work is distributed in a large number
of establishments. Such was the testimony of the minister, adopted by
the illustrious authority in science, Dumas. Perhaps the case could not
be stated stronger. Yet it did not prevail in 1800, when it was first
given,--nor in 1835, nor in 1839,--even in France, where the tendency
to concentration is so active, where the facilities for it are so
great, and the disposition to take counsel of science is so confirmed.
And surely there must be a reason why it did not prevail.
Dumas says, in rather contemptuous phrase, that “on one side is a petty
local interest, in a great degree imaginary.”[335] But if this “petty
local interest” were of sufficient importance to prevail for so long
a time in France, against such influences, it must be because there
was something of intrinsic strength in its character. I allude thus
minutely to this testimony, because I would not keep anything out of
the discussion calculated to shed light, and because it seems to me
that the long-continued practice of France, in spite of such testimony,
must not be disregarded in our endeavors to arrive at a true policy.
Thus far our Government has followed the teachings from the practice
of France, rather than from its science on this subject. It renounced,
some time ago, the policy of a single mint, acting, it may be supposed,
under other considerations of a controlling character. The statute of
March 3, 1835, entitled “An Act to establish branches of the Mint of
the United States,”[336] provides for mints at New Orleans, Charlotte,
in North Carolina, and Dahlonega, in Georgia,--the two latter for
coinage of gold only. Since then there has been provision for mints at
San Francisco, Denver, and Carson City.
I have not before me the most recent statement of the production at
these different mints; but this is not necessary for illustration. If
we take the year 1851, we find that the number of pieces, gold, silver,
and copper, produced that year, was as follows:--
Philadelphia 24,985,736
New Orleans 3,527,000
Charlotte 105,366
Dahlonega 83,856
So that mints were kept up at the two latter places merely to
manufacture a very small amount of coin, and the reason assigned was,
that gold was produced in the neighborhood.
Looking at the cost of production at these different places, we find
that at Philadelphia it was only forty-two hundredths per cent,--at
New Orleans, one and eight hundredths per cent,--at Charlotte, three
and fifty-five hundredths per cent,--at Dahlonega, three and thirteen
hundredths per cent. But, great as was the economy at Philadelphia,
compared with that at the other mints, we find that at the Paris mint
the same production costs one half less.
If we look further at the mints of Charlotte and Dahlonega, it is easy
to see how every consideration of economy was against them. With a
single Munich press in the mint at Charlotte, the whole annual coinage
there would have been accomplished in thirty-five hours; and with a
similar press at Dahlonega, the whole annual coinage there would have
been accomplished in less than twenty-eight hours! Experience shows
that one Munich press will coin in a day of ten hours, allowing one
sixth of the time for stoppages and accidents, thirty thousand pieces.
Of course the coinage at these two places must have been at an expense
much beyond that of Philadelphia. It would be more economical for the
Treasury to pay the cost of transporting the gold from these places
to Philadelphia. And doubtless this would be done, if the question of
economy were alone involved.
I refer to these instances as illustrations of the policy already
adopted. I need not say that they do not commend themselves to my
judgment, especially when it is considered that in all probability
the coinage at these mints, besides being expensive, was also of an
inferior quality.
But the vast products of gold in distant California presented the
question in a new form. Unexpectedly, the early prodigies of Mexico
and Peru were renewed. Private persons were suddenly enriched. Gold
was turned up like clods of earth, or washed from sands deposited by
mountain torrents. Where gold so abounded, the currency of the country
was naturally in this metal, which thus performed its double function
of merchandise and money. Should all this treasure be sent far away
to Philadelphia for coinage? The answer of reason, convenience, and
commerce was clearly against such enforced transportation. A mint
became a necessity. Even assuming that the coinage could be executed
with more economy and perfection at Philadelphia, it is evident that
the local interests of California were too important to be neglected.
The mint was established, and during the last year gold has been
coined there to the amount of $17,510,960, while the smaller amount of
$3,340,931 was the sum-total of gold coinage during the same time at
Philadelphia.
It is now proposed to create another mint in Oregon, and the
reasons for it are similar to those which prevailed in the case
of California. The region is fruitful in gold, if not to the same
extent as California, yet so much so as to require similar facilities
for coinage. It seems that the amount received at three private
assay-offices in the city of Portland, from January 15th to October
20th of the last year, reached $2,486,496. Compare this sum with the
paltry yield at Charlotte or Dahlonega, where mints were established
and maintained down to the Rebellion. The mines of Peru have been
proverbial for richness; but the sum-total of their product in 1858 was
only $6,000,000. That of Chile was $5,000,000; and that of Bolivia was
only $2,000,000,--being less than the product of Oregon for nine months.
Here, again, the considerations of science, so strong in favor of a
single mint, seem to lose their applicability, or rather they fail in
presence of other considerations not to be neglected. Sir, we cannot
forget in legislation that it is no narrow territory that comes within
our jurisdiction, but that it is a vast region, washed by two great
oceans and separated by intervening mountains. A rule which may be
proper in a country like France becomes inapplicable to a country so
vast in space. If all our States were huddled together on a single
seaboard, perhaps a single mint might suffice. In such a case economy
and perfection of coinage might be exclusively consulted. But the
interests of business on the Pacific coast must not be sacrificed even
to these considerations. Spain still has mints at Madrid and Seville,
although at the latter place the coinage is chiefly confined to copper;
but in former days, while Mexico was a Spanish province, there was a
Spanish mint there,--for the same reason, I suppose, that a mint is now
proposed in Oregon.
The consideration from distance alone cannot be disregarded. Oregon
is more than five thousand miles from Philadelphia, and seven hundred
miles from San Francisco. It is impossible to legislate for such
immense spaces as you would legislate for a European kingdom, where
every part is within easy distance of the metropolis.
In England a single mint transacts the business of that commercial
country. But I need not remind you that all its immense commerce is
conducted within a small territory. In Holland, also, there is only a
single mint,--although during the days of the Republic there was a mint
in each province. Afterwards these were abandoned, and one mint for the
whole kingdom was established at Utrecht. But here again I remind you
of the narrow space of territory served by this mint.
The whole question is obscured by considering gold, when coined, as
exclusively currency, whereas it is also merchandise. In this latter
character it comes under the laws governing commerce in other articles.
If we go back to Aristotle, we find a definition difficult to improve
in our day. “It is agreed,” says this master of thought, “to give and
receive in exchange _a substance which, useful in itself_, is easily
managed in the usage of life: as, for example, iron, silver, or such
other substance as shall have a determined dimension and weight, and
which, in order to avoid the embarrassment of continual weighing,
_shall be marked by a particular stamp as the sign of its value_.”[337]
In quoting these words, Michel Chevalier, the political economist
and new-made Senator of France, who has given much attention to this
subject, rightly says that the whole question is admirably put and at
the same time determined.[338] But the same idea has been presented
by Adam Smith in his remarkable work on the Wealth of Nations. “The
qualities,” he says, “of utility, beauty, and scarcity are the original
foundation of the high price of those metals, or of the great quantity
of other goods for which they can everywhere be exchanged. _This value
was antecedent to and independent of their being employed as coin, and
was the quality which fitted them for that employment._”[339] Therefore
it must not be forgotten that coin is something more than money; it is
merchandise also. In this character it plays a conspicuous part in the
commerce of the world. It differs in bulk from the lumber of Maine, but
it is just as much an article of merchandise.
Regarding gold as merchandise, we see how clearly in certain places
and under certain circumstances it escapes from the scientific laws
applicable especially to coinage. Gold is unique among articles of
commerce. Every other article allows discussion as to its quality.
Cloth or wool may be more or less fine; flour more or less bolted,
or it may be made from hard or soft wheat. But gold is chemically a
simple body, and, when once refined, perfectly homogeneous, whether
from California or Siberia, from the sands of Transylvania or the
poorer sands of the Upper Rhine. Let it be once brought to any
arbitrary standard, as, say, nine tenths, and there is no difference
in its character. But this degree of fineness must be established
_in authentic manner_,--otherwise transactions in this article may
be arrested at every moment. The delicate agencies necessary for
determining its value are not easily accessible. The Government,
therefore, as representative of the community, after refining and
weighing gold, puts upon it a stamp which guaranties its weight and
fineness. Thus, the eagle, with the stamp of ten dollars, is a piece
which, according to the Act of Congress of 18th January, 1837,[340]
weighs two hundred and fifty-eight grains, with nine tenths of gold
and one tenth of alloy. The English sovereign is a stamped piece of
gold twenty-two carats fine, and of such weight in proportion to the
troy ounce that £3 17_s._ 10½_d._ make an ounce. The French franc is a
stamped piece of silver weighing exactly five grammes, and nine tenths
fine.
But in our country, and now especially in California and on the
Pacific coast, gold has become a principal article of production and
exportation, like wheat or cotton. Such is its character that it
instinctively seeks _inspection_, in order to secure a guaranty and
recommendation. Now every State has its inspectors, for instance, of
flour, pot and pearl ashes, fish, beef, and pork. In Massachusetts
there are inspectors of sole-leather, although a hide of leather is
open on all sides. But, if gold be regarded as merchandise, there is
more reason for its inspection. As it is more portable than these other
articles, so it is also more valuable, more easily lost, more easily
stolen, and more provocative to plunder. Therefore it is entitled to
peculiar safeguards.
Here, then, is the case in a nutshell. California is already a large
exporter of gold as merchandise. Oregon is now commencing a similar
career. But the gold there ought to have every advantage as merchandise
which it can derive from the inspection of the Government. Call it
protection, if you will; but I beg to submit that an interest so
important, so peculiar, and so delicate, deserves this protection.
If it be said that all this may be accomplished by an assay office,
I reply, that this does only partially what is accomplished by the
mint. The gold is delivered back in ingots stamped, so that for
certain purposes it is merchandise; but the work is only half done.
If the quantity were trivial, as at Charlotte and Dahlonega, then an
assay office would suffice; but where the supply is so great as in
California or Oregon, it would seem as if no pains ought to be spared
by the Government to facilitate the commerce in this article, or to
meet the desires of its producers. Now it is obvious that nothing in
this respect can equal the stamp upon the national coin. A courtier
said to Philip the Second of Spain, “Your golden ducats carry your name
and your features over all the countries of Europe, exciting envy and
dread.” The time for envy and dread has passed; but our eagles are not
idle. There is their inscription, _E pluribus unum_, an unquestionable
stamp of nationality and value, which they carry wherever they go.
Therefore, Sir, while admitting, that, for the sake of the coin, there
should be the highest accuracy possible in the operations of the mint,
I cannot hesitate to insist, that, regarding gold as merchandise, the
mint must be established in such localities as may be required by the
interests of commerce.
I do not think there would be any hesitation in this conclusion, if the
whole subject of coinage had not been shrouded with a certain mystery,
almost like the “black art.” This appears constantly.
“They cannot touch me for _coining_;
I am the king,”
says Shakespeare; and Pope says,--
“She now contracts her vast design,
And all her triumphs shrink into a coin.”
Like other incidents of sovereignty, coinage is reserved rightfully to
the Government, and on this account is little appreciated in its true
character. People sometimes err in not seeing that the delicate laws
applicable to this subject must not be strained to interfere with the
proper regulation of the value of gold when it has become a principal
article of commerce.
Objection is also made on the ground that a mint is necessarily
an expensive structure. But this is a mistake, arising partly from
the general mystification on the subject, and partly because the
Philadelphia mint, which we have all seen, is an expensive structure. A
mint, in plain terms, is nothing but a foundry provided with good locks
and keys. If finished elaborately and expensively, it may attract the
eye, but does not become more useful. The whole system of coinage has
been twice changed during the present generation: first, by the change
in assays of Gay-Lussac in 1830; and, secondly, by the introduction of
the Munich press worked by steam, instead of the old hand-press with
two ponderous balls as flies. And the Munich press itself has been much
improved in France by Thonnelier. Now a mint should not be so costly
as not to receive easily all improvements. The science of metallurgy
is still in progress of development, and it cannot be doubted that the
coming generation will witness improvements as important as any during
our day. The eminent French authority to whom I have already referred,
Dumas, was in the habit of ridiculing the expensive mints constructed
in France. He desired that the present mint at Paris should be
surrendered to some public office, and the business removed to an open
space in the suburbs. In his Report he has furnished estimates showing
the small expense of a mint, according to his ideas, adequate to all
the coinage of France.
If you would see how the cost of a mint in our country may swell,
at least in calculations on paper, if not in reality, I refer you
to the memorial of the Board of Trade of Philadelphia in relation
to the establishment of a branch mint at New York in 1852. But the
mint pictured here is anything but the simple foundry which I have
described, or the workshop which the Senator from Oregon asks you to
authorize.
Mr. President, I hope that I have not occupied too much time with this
statement. I am led to make it in order to show, that, in differing
from the Committee on Finance, I have not proceeded without proper
consideration. There are topics connected with the subject to which I
do not allude, because I desire to confine my remarks to the points
in issue. There are also details as to the cost of coinage in a
well-regulated mint, involving the question of seigniorage, and the
essential difference between the systems of England and France, which I
should be glad to present; but I have said enough. There is, however,
one practical remark, founded on the example of Spain, which I venture
to add. It was the habit of this power to require that the initial
letter of the place of coinage should appear on every piece, so that
the coin from Madrid bore an M, from Seville an S, and that from Mexico
M. This precaution rendered each mint responsible for its own work.
In France, also, every mint had its special mark. The coins struck at
Paris bear the letter A. Perhaps a similar requirement in our country
might stimulate greater care in the several mints, by creating an
honorable rivalry.
There is one other remark which I would make before I close. Much
stress has been placed upon the opinion of the Director of the mint
at Philadelphia. Indeed, the whole case against the proposed mint has
been allowed to rest on his letter, which begins so whimsically. I hope
that I have not spoken of him too freely; but, since his authority
is invoked, I am led to ask if there is anything in his studies or
scientific attainments calculated to render him a court without appeal
on this question. It is obvious that his position for the time being
subjects him to influences hostile to new mints. He naturally seeks
to amplify his jurisdiction, and to keep the tide of gold secure so
that it shall not ebb from his marble building. Perhaps I do not use
too strong language, if I say that he is under inducements to play the
pedant for his own mint, and to quote it against every other mint. At
all events, I think the Senate will be satisfied that on the present
occasion he ought to be overruled.
The amendment creating the Branch Mint was adopted,--Yeas 23,
Nays 16,--and the bill passed.
REFORM IN THE CIVIL SERVICE.
BILL IN THE SENATE, APRIL 30, 1864.
April 30, 1864, Mr. Sumner asked, and by unanimous consent
obtained, leave to bring in the following bill, which was read
twice, and ordered to lie on the table and be printed.
This was a first effort for Civil Service Reform.
A Bill to provide for the greater Efficiency of the Civil Service of
the United States.
_Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled_, That the President
be, and he hereby is, authorized to appoint, by and with the advice
and consent of the Senate, a Board of Examiners, consisting of three
Commissioners, at salaries of __ dollars a year. And the Commissioners
may appoint a clerk to the Board, with an annual compensation of two
thousand dollars. And these sums, and the necessary expenses of the
Board, including rent and the travelling expenses of the Commissioners
and clerk, shall be paid from any money in the Treasury not otherwise
appropriated.
SECTION 2. _And be it further enacted_, That no person shall be
appointed, after the date of this Act, to any civil office under the
United States, whether by way of original appointment or promotion,
unless recommended by a certificate of the Board: _Provided_, That this
shall not apply to offices the appointing power to which is by the
Constitution vested in the President by and with the advice and consent
of the Senate: but applicants for such offices shall be examined by the
Board, if they present themselves, and shall receive certificates in
the same manner as other applicants.