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diff --git a/old/50167-0.txt b/old/50167-0.txt deleted file mode 100644 index 86fb916..0000000 --- a/old/50167-0.txt +++ /dev/null @@ -1,11213 +0,0 @@ -The Project Gutenberg EBook of Charles Sumner; His Complete Works; Volume -16 (of 20), by Charles Sumner - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - - - -Title: Charles Sumner; His Complete Works; Volume 16 (of 20) - -Author: Charles Sumner - -Editor: George Frisbie Hoar - -Release Date: October 9, 2015 [EBook #50167] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK CHARLES SUMNER *** - - - - -Produced by Mark C. Orton and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - - - - - - - - - - - [Illustration: Engd. by A. H. Ritchie: EDWIN M. STANTON] - - _Statesman Edition_ _VOL. XVI_ - - Charles Sumner - - HIS COMPLETE WORKS - - With Introduction - BY - HON. GEORGE FRISBIE HOAR - - [Illustration] - - BOSTON - LEE AND SHEPARD - MCM - - COPYRIGHT, 1877, - BY - FRANCIS V. BALCH, EXECUTOR. - - COPYRIGHT, 1900, - BY - LEE AND SHEPARD. - - Statesman Edition. - LIMITED TO ONE THOUSAND COPIES. - OF WHICH THIS IS - No. 320. - - Norwood Press: - NORWOOD, MASS., U.S.A. - - - - -CONTENTS OF VOLUME XVI. - - - PAGE - - EQUAL RIGHTS, WHETHER POLITICAL OR CIVIL, BY ACT OF CONGRESS. - Letter to the Border State Convention at Baltimore, September - 8, 1867 1 - - ARE WE A NATION? Address before the New York Young Men’s - Republican Union, at the Cooper Institute, Tuesday Evening, - November 19, 1867 3 - - CONSTANT DISTRUST OF THE PRESIDENT. Remarks in the Senate, on - the Final Adjournment, November 26, 1867 66 - - THE FOURTEENTH AMENDMENT: WITHDRAWAL OF ASSENT BY A STATE. - Remarks in the Senate, on the Resolutions of the Legislature of - Ohio rescinding its former Resolution in Ratification of the - Fourteenth Amendment, January 31, 1868 69 - - LOYALTY IN THE SENATE: ADMISSION OF A SENATOR. Remarks in the - Senate, on the Resolution to admit Philip F. Thomas as Senator - from Maryland, February 13, 1868 73 - - INTERNATIONAL COPYRIGHT. Letter to a Committee in New York, on - this Subject, February 17, 1868 86 - - THE IMPEACHMENT OF THE PRESIDENT. THE RIGHT OF THE PRESIDENT - OF THE SENATE PRO TEM. TO VOTE. Remarks in the Senate, on the - Question of the Competency of Mr. Wade, Senator from Ohio, then - President of the Senate pro Tem., to vote on the Impeachment of - President Johnson, March 5, 1868 88 - - THE CHIEF JUSTICE, PRESIDING IN THE SENATE, CANNOT RULE OR - VOTE. Opinion in the Case of the Impeachment of Andrew Johnson, - President of the United States, March 31, 1868 98 - - EXPULSION OF THE PRESIDENT. Opinion in the Case of the - Impeachment of Andrew Johnson, President of the United States, - May 26, 1868 134 - - CONSTITUTIONAL RESPONSIBILITY OF SENATORS FOR THEIR VOTES IN - CASES OF IMPEACHMENT. Resolutions in the Senate, June 3, 1868 227 - - VALIDITY AND NECESSITY OF FUNDAMENTAL CONDITIONS ON STATES. - Speech in the Senate, June 10, 1868 230 - - ELIGIBILITY OF A COLORED CITIZEN TO CONGRESS. Letter to an - Inquirer at Norfolk, Va., June 22, 1868 255 - - INDEPENDENCE, AND THOSE WHO SAVED THE ORIGINAL WORK. Letter on - the Soldiers’ Monument at North Weymouth, Mass., July 2, 1868 256 - - COLORED SENATORS,--THEIR IMPORTANCE IN SETTLING THE QUESTION OF - EQUAL RIGHTS. Letter to an Inquirer in South Carolina, July - 3, 1868 257 - - FINANCIAL RECONSTRUCTION THROUGH PUBLIC FAITH AND SPECIE - PAYMENTS. Speech in the Senate, on the Bill to fund the - National Debt, July 11, 1868 259 - - NO REPRISALS ON INNOCENT PERSONS. Speech in the Senate, on the - Bill concerning the Rights of American Citizens, July 18, 1868 297 - - THE CHINESE EMBASSY, AND OUR RELATIONS WITH CHINA. Speech at - the Banquet by the City of Boston to the Chinese Embassy, - August 21, 1868 318 - - THE REBEL PARTY. Speech at the Flag-Raising of the Grant and - Colfax Club, in Ward Six, Boston, on the Evening of September - 14, 1868 326 - - ENFRANCHISEMENT IN MISSOURI: WHY WAIT? Letter to a Citizen of - St. Louis, October 3, 1868 331 - - ISSUES AT THE PRESIDENTIAL ELECTION. Speech at the City Hall, - Cambridge, October 29, 1868 333 - - - - -EQUAL RIGHTS, WHETHER POLITICAL OR CIVIL, BY ACT OF CONGRESS. - -LETTER TO THE BORDER STATE CONVENTION AT BALTIMORE, SEPTEMBER 8, 1867. - - - September 12, 1867, Tennessee, Delaware, Maryland, Missouri, - Kentucky, and the District of Columbia were fully represented - in what was called “the Border State Convention,” which - assembled in the Front Street Theatre, Baltimore. The object, - in the language of the call, was “to advance the cause of - manhood suffrage, and to demand of Congress the passage of the - Sumner-Wilson bill.” The following letter from Mr. Sumner was - read to the Convention. - - BOSTON, September 8, 1867. - - DEAR SIR,--I shall not be able to be with you at your Convention - in Baltimore, according to the invitation with which you have - honored me. I ask you to accept my best wishes. - - Congress will leave undone what it ought to do, if it fails to - provide promptly for the establishment of Equal Rights, whether - political or civil, everywhere throughout the Union. This is a - solemn duty, not to be shirked or postponed. - - The idea is intolerable, that any State, under any pretension - of State Rights, can set up _a political oligarchy_ within its - borders, and then call itself a republican government. I insist - with all my soul that such a government must be rejected, - as inconsistent with the requirements of the Declaration of - Independence. - - Faithfully yours, - - CHARLES SUMNER. - - A letter from Hon. Henry Wilson stated: “At the last session - I offered an amendment, on the 17th of July, allowing all, - without distinction of color, to vote and hold office, making - no distinction in rights or privileges.” - - - - -ARE WE A NATION? - -ADDRESS BEFORE THE NEW YORK YOUNG MEN’S REPUBLICAN UNION, AT THE COOPER -INSTITUTE, TUESDAY EVENING, NOVEMBER 19, 1867. - - - And I will make them one nation in the land upon the mountains - of Israel, … and they shall be no more two nations.… Neither - shall they defile themselves any more with their idols, - nor with their detestable things, nor with any of their - transgressions.--EZEKIEL, xxxvii. 22, 23. - - * * * * * - - In these days their union is so entire and perfect that they - are not only joined together in bonds of friendship and - alliance, but even make use of the same laws, the same weights, - coins, and measures, the same magistrates, counsellors, and - judges: so that the inhabitants of this whole tract of Greece - seem in all respects to form but one single city, except only - that they are not enclosed within the circuit of the same - walls; in every other point, both through the whole republic - and in every separate state, we find the most exact resemblance - and conformity.--POLYBIUS, _General History_, tr. Hampton, - (London, 1756,) Vol. I. pp. 147, 148. - - * * * * * - - We represent the people,--we are a Nation. To vote by States - will keep up colonial distinctions.… The more a man aims at - serving America, the more he serves his colony. I am not - pleading the cause of Pennsylvania; I consider myself a - citizen of America.--BENJAMIN RUSH, _Speech in the Continental - Congress, July, 1776_: Bancroft, History of the United States, - Vol. IX. p. 54. - - * * * * * - - It is my first wish to see the United States assume and merit - the character of _one great Nation_, whose territory is divided - into different States merely for more convenient government - and the more easy and prompt administration of justice,--just - as our several States are divided into counties and townships - for the like purposes. Until this be done, the chain which - holds us together will be too feeble to bear much opposition - or exertion, and we shall be daily mortified by seeing the - links of it giving way and calling for repair, one after - another.--JOHN JAY, _Letter to John Lowell, May 10, 1785_: - Life, by William Jay, Vol. I. p. 190. - - * * * * * - - He took this occasion to repeat, that, notwithstanding his - solicitude to establish a National Government, he never - would agree to abolish the State Governments or render them - absolutely insignificant. They were as necessary as the General - Government, and he would be equally careful to preserve - them.--GEORGE MASON, _Speech in the Constitutional Convention, - June 20, 1787_: Debates, Madison Papers, Vol. II. pp. 914, 915. - - * * * * * - - Whether the Constitution be good or bad, the present clause - clearly discovers that it is a National Government, and - no longer a Confederation: I mean that clause which gives - the first hint of the General Government laying direct - taxes.--GEORGE MASON, _Speech in the Virginia Convention to - ratify the Constitution, June 4, 1788_: Elliot’s Debates, (2d - edit.,) Vol. III. p. 29. - - * * * * * - - The Declaration of Independence having provided for the - _national_ character and the _national_ powers, it remained - in some mode to provide for the character and powers of the - States individually, as a consequence of the dissolution of - the colonial system. Accordingly the people of each State set - themselves to work, under a recommendation from Congress, to - erect a local government for themselves; but in no instance did - the people of any State attempt to incorporate into their local - system any of those attributes of national authority which the - Declaration of Independence had asserted in favor of the United - States.--ALEXANDER JAMES DALLAS, _Argument in the Case of - Michael Bright and others, in the Circuit Court of the United - States, April 28, 1809_: Life and Writings, p. 104. - - * * * * * - - Hence, while the sovereignty resides inherently and inalienably - in the people, it is a perversion of language to denominate - the State, as a body politic or government, sovereign and - independent.--_Ibid._, p. 100. - - * * * * * - - America has chosen to be, in many respects and to many - purposes, a Nation; and for all these purposes her government - is complete, to all these objects it is competent. The people - have declared, that, in the exercise of all powers given for - these objects, it is supreme. It can, then, in effecting these - objects, legitimately control all individuals or governments - within the American territory. The Constitution and laws of a - State, so far as they are repugnant to the Constitution and - laws of the United States, are absolutely void. These States - are constituent parts of the United States; they are members - of one great empire.--CHIEF JUSTICE MARSHALL, _Cohens_ v. - _Virginia_, Wheaton, Rep., Vol. VI. p. 414. - - * * * * * - - This Address was prepared as a lecture, and was delivered on - a lecture-tour reaching as far as Milwaukee, Dubuque, and St. - Louis. On its delivery in New York, Dr. Francis Lieber was in - the chair. It became the subject of various local notice and - discussion. - - The idea of Nationality had prevailed with Mr. Sumner from the - beginning of his public life. In his appeal to Mr. Webster - before the Whig State Convention, as early as September 23, - 1846, while calling on the eminent Senator and orator to become - _Defender of Humanity_, he recognized his received title, - _Defender of the Constitution_, as justly earned by the vigor, - argumentation, and eloquence with which he had “upheld the - Union and that interpretation of the Constitution which makes - us a Nation.”[1] And from that time he had always insisted that - we were a Nation,--believing, that, while many things were - justly left to local government, for which the States are the - natural organs, yet the great principles of Unity and Human - Rights should be placed under central guardianship, so as to - be everywhere the same; and this he considered the essence of - the Nation.--The word “Federal” Mr. Sumner habitually rejected - for “National.” Courts and officers under the United States - Government he called “National.” - - -ADDRESS. - -MR. PRESIDENT,--At the close of a bloody Rebellion, instigated by -hostility to the sacred principles of the Declaration of Independence, -and inaugurated in the name of State Rights, it becomes us now to do -our best that these sacred principles shall not again be called in -question, and that State Rights shall not again disturb the national -repose. One terrible war is more than enough; and since, after -struggle, peril, and sacrifice, where every household has been a -sufferer, we are at last victorious, it is not too much to insist on -all possible safeguards for the future. The whole case must be settled -now. The constant duel between the Nation and the States must cease. -The National Unity must be assured,--in the only way which is practical -and honest,--through the principles declared by our fathers and inwoven -into the national life. - -In one word, the Declaration of Independence must be recognized as -a fundamental law, and State Rights, in all their denationalizing -pretensions, must be trampled out forever, to the end that we may be, -in reality as in name, a Nation. - - * * * * * - -Are we a Nation? Such is the question I now propose, believing that -the whole case is involved in the answer. Are we a Nation? Then must -we have that essential, indestructible unity belonging to a Nation, -with all those central, pervasive, impartial powers which minister to -the national life; then must we have that central, necessary authority -inherent in just government, to protect the citizen in all the rights -of citizenship; and then must we have that other central, inalienable -prerogative of providing for all the promises solemnly made when we -first claimed our place as a Nation. - - * * * * * - -Words are sometimes things; and I cannot doubt that our country would -gain in strength and our people in comprehensive patriotism, if we -discarded language which in itself implies certain weakness and -possible disunion. Pardon me, if I confess that I have never reconciled -myself to the use of the word “Federal” instead of “National.” To my -mind, our government is not Federal, but National; our Constitution is -not Federal, but National; our courts under the Constitution are not -Federal, but National; our army is not Federal, but National. There -is one instance where this misnomer does not occur. The debt of our -country is always _National_,--perhaps because this term promises in -advance additional security to the anxious creditor. “Liberty” and -“Equality” are more than dollars and cents; they should be National -also, and enjoy the same security. - -During the imbecility of the Confederation, which was nothing but -a league or _fœdus_, the government was naturally called Federal. -This was its proper designation. Any other would have been out of -place, although even then Washington liked to speak of the Nation. In -summoning the Convention which framed the National Constitution, the -States all spoke of the existing government as “Federal.” But after -the adoption of the National Constitution, completing our organization -as one people, the designation was inappropriate. It should have been -changed. If not then, it must be now. New capacities require a new -name. The word Saviour did not originally exist in the Latin; but St. -Augustine, who wrote in this language, boldly used it, saying there was -no occasion for it until after the Saviour was born.[2] If among us in -the earlier day there was no occasion for the word Nation, there is -now. A Nation is born. - - * * * * * - -The word Nation is suggestive beyond any definition of the dictionary. -It awakens an echo second only to that of Country. It is a word of -unity and power. It brings to mind intelligent masses enjoying the -advantage of organization, for whom there is a Law of Nations,--as -there is a Law of Nature,--each nation being a unit. Sometimes uttered -vaguely, it is simply an intensive, as in the familiar exaggeration, -“only a _nation_ louder”; but even here the word furnishes a measure of -vastness. In ordinary usage, it implies an aggregation of human beings -who have reached such advanced stage of political development that -they are no longer a tribe of Nomads, like our Indians,--no longer a -mere colony, city, principality, or state,--but they are one people, -throbbing with a common life, occupying a common territory, rejoicing -in a common history, sharing in common trials, and securing to each the -protection of the common power. We have heard, also, that a Nation is -a people with the consciousness of Human Rights. Well spoke Louis the -Fifteenth of France, when this word first resounded in his ears: “What -means it? I am king; is there any king but me?” The monarch did not -know that the Nation was more than king, all of which his successor -learned among the earliest lessons of the Revolution, as this word -became the inspiration and voice of France. - -The ancients had but one word for State and City; nor did they use the -word Nation as it is latterly used. Derived from the Latin _nascor_ and -_natus_, signifying “to be born” and “being born,” it was originally -applied to a race or people of common descent and language, but seems -to have had no reference to a common government. In the latter sense -it is modern. Originally ethnological, it is now political. The French -Communists have popularized the kindred word “Solidarity,” denoting a -community of interests, which is an element of nationality. There is -the solidarity of nations together, and also the solidarity of a people -constituting one nation, being those who, according to a familiar -phrase, are “all in one bottom.” - -England early became a Nation; and this word seems to have assumed -there a corresponding meaning. Sir Walter Raleigh, courtier of Queen -Elizabeth, and victim of James the First, who was a master of our -language, in speaking of the people of England, calls them “our -Nation.”[3] John Milton was filled with the same sentiment, when, -addressing England and Scotland, he says: “Go on, both hand in hand, -_O Nations_, never to be disunited! be the praise and the heroic song -of all posterity!”[4] In the time of Charles the Second, Sir William -Temple furnished a precise definition, which foreshadows the definition -of our day. According to this accomplished writer and diplomatist, a -Nation was “a great number of families, derived from the same blood, -born in the same country, and _living under the same government and -civil constitutions_.”[5] Here is the political element. Johnson, in -his Dictionary, follows Temple substantially, calling it “a people -distinguished from another people, generally by their language, -original, _or government_.” Our own Webster, the lexicographer, calls -it “the body of inhabitants of a country _united under the same -government_”; Worcester, “a people born in the same country and _living -under the same government_”; the French Dictionary of the Academy, “the -totality of persons born or naturalized in a country and _living under -the same government_.”[6] Of these definitions, those of Webster and -the French Academy are the best; and of the two, that of Webster the -most compact. - -These definitions all end in the idea of unity under one government. -They contemplate political unity, rather than unity of blood or -language. Undoubted nations exist without the latter. Various accents -of speech and various types of manhood, with the great distinction of -color, which we encounter daily, show that there is no such unity here. -But this is not required. If the inhabitants are of one blood and one -language, the unity is more complete; but the essential condition is -one sovereignty, involving, of course, one citizenship. In this sense -Gibbon employs the word, when, describing the people of Italy,--all of -whom were recognized as Roman citizens,--he says: “From the foot of -the Alps to the extremity of Calabria, all the natives of Italy were -born citizens of Rome. Their partial distinctions were obliterated, and -they insensibly _coalesced into one great Nation_, united by language, -manners, and _civil institutions_, and equal to the weight of a -powerful empire.”[7] Here dominion proceeding originally from conquest -is consecrated by concession of citizenship, and the great historian -hails the coalesced people as Nation. - -One of our ablest writers of History and Constitutional Law, Professor -Lieber, of Columbia College, New York, has discussed this question with -learning and power.[8] According to this eminent authority, Nation is -something more than a word. It denotes that polity which is the normal -type of government at the present advanced stage of civilization, -and to which all people tend just in proportion to enlightenment and -enfranchisement. The learned Professor does not hesitate to say that -such a polity is naturally dedicated to the maintenance of all the -rights of the citizen as its practical end and object. It is easy to -see that the Nation, thus defined, must possess elements of perpetuity. -It is not a quicksand, or mere agglomeration of particles, liable to -disappear, but a solid, infrangible crystallization, against which -winds and rains beat in vain. - - * * * * * - -Opposed to this prevailing tendency is the earlier propensity to local -sovereignty, which is so gratifying to petty pride and ambition. This -propensity, assuming various forms in different ages and countries, -according to the degree of development, has always been a species -of egotism. When the barbarous islanders of the Pacific imagined -themselves the whole world, they furnished an illustration of this -egotism in its primitive form. Its latest manifestation has been -in State pretensions. But here a distinction must be observed. For -purposes of local self-government, and to secure its educational -and political blessings, the States are of unquestioned value. This -is their true function, to be praised and vindicated always. But -_local sovereignty_, whether in the name of State or prince, is out -of place and incongruous under a government truly national. It is -entirely inconsistent with the idea of Nation. Perhaps its essential -absurdity in such a government was never better illustrated than by -the homely apologue of the ancient Roman,[9] which so wrought upon -the secessionists of his day that they at once returned to their -allegiance. According to this successful orator, the different members -of the human body once murmured against the “belly,” which was pictured -very much as our National Government has been, and they severally -refused all further coöperation. The hands would not carry food to -the mouth; nor would the mouth receive it, if carried; nor would the -teeth perform their office. The rebellion began; but each member soon -found that its own welfare was bound up inseparably with the rest, and -especially that in weakening the “belly” it weakened every part. Such -is the discord of State pretensions. How unlike that unity of which -the human form, with heaven-directed countenance, is the perfect type, -where every part has its function, and all are in obedience to the -divine mandate which created man in the image of God! And such is the -Nation. - - * * * * * - -Would you know the incalculable mischief of State pretensions? The -American continent furnishes three different examples, each worthy -of extended contemplation. There are, first, our Indians, aborigines -of the soil, split into tribes, possessing a barbarous independence, -but through this perverse influence kept in constant strife, with -small chance of improvement. Each chief is a representative of State -pretensions. Turning the back upon union, they turn the back upon -civilization itself. There is, next, our neighbor republic, Mexico, -where Nature is bountiful in vain, and climate lends an unavailing -charm, while twenty-three States, unwilling to recognize the national -power, set up their disorganizing pretensions, and chaos becomes -chronic. The story is full of darkness and tragedy. The other instance -is our own, where sacrifices of all kinds, public and private, rise -up in blood before us. Civil war, wasted treasure, debt, wounds, and -death are the witnesses. With wailing voice all these cry out against -the deadly enemy lurking in State pretensions. But this wail is heard -from the beginning of history, saddening its pages from generation to -generation. - -In ancient times the City-State was the highest type, as in Greece, -where every city was a State, proud of its miniature sovereignty. The -natural consequences ensued. Alliances, leagues, and confederations -were ineffectual against State pretensions. The parts failed to -recognize the whole and its natural supremacy. Amidst all the triumphs -of genius and the splendors of art, there was no national life, and -Greece died. From her venerable sepulchre, with ever-burning funeral -lamps, where was buried so much of mortal beauty, there is a constant -voice of warning, which sounds across continent and ocean, echoing -“Beware!” - -Rome also was a City-State. If it assumed at any time the national -form, it was only because the conquering republic took to itself all -other communities and melted them in its fiery crucible. But this -dominion was of force, ending in universal empire, where the consent -of the governed was of little account. How incalculably different from -a well-ordered Nation, where all is natural, and the people are knit -together in self-imposed bonds! - -Then came the colossal power of Charlemagne, under whom peoples and -provinces were accumulated into one incongruous mass. Here again was -universal empire, but there was no Nation. - -Legend and song have depicted the paladins that surrounded Charlemagne, -fighting his battles and constituting his court. They were the -beginning of that Feudal System which was the next form that Europe -assumed. The whole country was parcelled among chieftains under the -various names of Duke, Count, and Baron, each of whom held a district, -great or small, where, asserting a local sovereignty, he revelled in -State pretensions; and yet they all professed a common allegiance. -Guizot was the first to remark that Feudalism, taken as a whole, was -a confederation, which he boldly likens to what he calls the federal -system of the United States. It is true that Feudalism was essentially -federal, where each principality exercised a disturbing influence, -and unity was impossible; but I utterly deny that our country can -fall into any such category, unless it succumbs at last to the dogma -of State pretensions, which was the essential element of the feudal -confederation. - -Feudalism was not a government; it was only a system. During its -prevalence, the Nation was unknown. Wherever its influence subsided, -the Nation began to appear; and now, wherever its influence still -lingers on earth, there the yearnings for national life, instinctive in -the popular heart, are for the time suppressed. - -Curiously enough, Sweden and Hungary were not brought within the sphere -of Feudalism, and these two outlying lands, left free to natural -impulses, revealed themselves at an early day as Nations. When the -European continent was weakened by anarchy, they were already strong in -national life, with an influence beyond their population or means. - -Feudalism has left its traces in England; but it was never sufficiently -strong in that sea-girt land to resist the natural tendencies to unity, -partly from its insular position, and partly from the character of -its people. At an early day the seven-headed Heptarchy was changed -into one kingdom; but a transformation not less important occurred -when the feudal lords were absorbed into the government, of which they -became a component part, and the people were represented in a central -Parliament, which legislated for the whole country, with Magna Charta -as the supreme law. Then was England a Nation; and just in proportion -as the national life increased has her sway been felt in the world. - -France was less prompt to undergo this change, for Feudalism found -here its favorite home. That compact country, so formed for unity, was -the victim of State pretensions. It was divided and subdivided. North -and South, speaking the same language, were separated by a difference -of dialect. Then came the great provinces, Normandy, Brittany, -Burgundy, Provence, Languedoc, and Gascony, with constant menace of -resistance and nullification, while smaller fiefs shared the prevailing -turbulence. A French barony was an “autonomic government,” with a -moated town, in contrast with an English barony, which was merged in -the Kingdom. Slowly these denationalizing pretensions were subdued; but -at last the flag of the French monarchy,--the most beautiful invention -of heraldry,--with lilies of gold on a field of azure, and angelic -supporters, waved over a united people. From that time France has been -a Nation, filled with a common life, burning with a common patriotism, -and quickened by a common glory. To an Arab chieftain, who, in barbaric -simplicity, asked the number of tribes there, a Frenchman promptly -replied, “We are all one tribe.” - -Spain also triumphed over State pretensions. The Moors were driven from -Granada. Castile and Aragon were united under Ferdinand and Isabella. -Feudalism was overcome. Strong in the national unity, her kings became -lords of the earth. The name of Spain was exalted, and her language was -carried to the uttermost parts of the sea. For her Columbus sailed; -for her Cortes and Pizarro conquered. But these adventurous spirits -could have done little, had they not been filled with the exuberance of -her national life. - -Italy has been less happy. The pretensions of Feudalism here commingled -with the pretensions of City-States. Petty princes and petty republics, -restless with local sovereignty, constituted together a perpetual -discord. That beauty which one of her poets calls a “fatal gift” -tempted the foreigner. Disunited Italy became an easy prey. Genius -strove in the bitterness of despair, while this exquisite land, where -History adds to the charms of Nature and gilds anew the golden fields, -sank at last to become, in the audacious phrase of Napoleon, simply a -geographical name. A checker-board of separate States, it was little -else. It had a place on the map, as in the memory, but no place in the -present. It performed no national part. It did nothing for imitation -or remembrance. Thus it continued, a fearful example to mankind. -Meanwhile the sentiment of Nationality began to stir. At last it broke -forth like the pent-up lava from its own Vesuvius, and Garibaldi was -its conductor. Separate States, renouncing local pretensions, became -greater still as parts of the great whole, and Italy stood forth a -Nation, to testify against the intolerable jargon of State pretensions. -All hail to this heroic revival, where dissevered parts have been -brought together, as were those of the ancient Deity, and shaped anew -into a form of beauty and power! - -But Germany is the most instructive example. Here, from generation to -generation, have State pretensions triumphed, perversely postponing -that National Unity which is the longing of the German heart. -Stretching from the Baltic to the Adriatic and the Alps, penetrated by -great rivers, possessing an harmonious expanse of territory, speaking -one language, filled with the same intellectual life, and enjoying -a common name, which has been historic from the days of Tacitus, -Germany, like France, seems formed for unity. Martin Luther addressed -one of his grand letters _An die Deutsche Nation_ (To the German -Nation); and these words are always touching to Germans as the image -of what they desire so much. Thus far the great longing has failed. -Even the Empire, where all were gathered under one imperial head, -was only a variegated patchwork of States. Feudalism, in its most -extravagant pretensions, still prevails. Confederation takes the place -of Nationality, and this vast country, with all its elements of unity, -is only a discordant conglomerate. North and South are inharmonious, -Prussia and Austria representing two opposite sections. Other divisions -have been more perplexing. Not to speak of Circles, or groups, each -with a diet of its own, which once existed, I mention simply the later -division into thirty-nine States, differing in government and in -extent, being monarchies, principalities, dukedoms, and free cities, -all proportionately represented in a general council or diet, and -proportionately bound to the common defence, but every one filled -with State egotism. So complete was this disjunction, and such its -intolerable pretensions, that internal commerce, the life-blood of the -Nation, was strangled. Down to a recent day, each diminutive state had -its own custom-house, where the traveller was compelled to exhibit his -passport and submit to local levies. This universal obstruction slowly -yielded to a Zollverein, or Customs-Union, under which these barriers -were obliterated and customs were collected on the external frontiers. -Here was the first triumph of Unity. Meanwhile the perpetual strife -between Prussia and Austria broke out in terrible battle. Prussia has -succeeded in absorbing several of the smaller states. But the darling -passion of the German heart is still unsatisfied. Not in fact, but in -aspiration only, is Germany one nation. Patriot Poetry takes up the -voice, and, scorning the claims of individual states, principalities, -and cities, scorning also the larger claims of Prussia and Austria -alike, exclaims, in the spirit of a true Nationality:-- - - “That is the German’s fatherland - Where Germans all as brothers glow; - That is the land; - All Germany’s thy fatherland.” - -God grant that the day may soon dawn when all Germany shall be one! - - * * * * * - -Confessing the necessity of a true national life, we have considered -what is a Nation, and how the word itself implies indestructible unity -under one government with common rights of citizenship; and then we -have seen how this idea has grown with the growth of civilization, -slowly conquering the adverse pretensions of States, until at last even -Italy became one nation, while Germany was left still struggling for -the same victory. And now I come again to the question with which I -began. - -Are we a Nation? Surely we are not a City-State, like Athens and early -Rome in antiquity, or like Florence and Frankfort in modern times; -nor, whatever the extent of our territory, are we an Empire cemented -by conquest, like that of later Rome, or like that of Charlemagne; nor -are we a Feudal Confederation, with territory parcelled among local -pretenders; nor are we a Confederation in any just sense. From the -first settlement of the country down to the present time, whether in -the long annals of the Colonies or since the Colonies were changed into -States, there has been but one authentic voice: now breaking forth in -organized effort for Union; now swelling in that majestic utterance of -a united people, the Declaration of Independence; now sounding in the -scarcely less majestic utterance of the same united people, the opening -words of the National Constitution; and then again leaping from the -hearts of patriots. All these, at different times and in various tones, -testify that we are one people, under one sovereignty, vitalized and -elevated by a dedication to Human Rights. - -There is a distinction for a long time recognized by German writers, -and denoted by the opposite terms _Staatenbund_ and _Bundesstaat_,--the -former being “a league of states,” and the latter “a state formed by a -league.” In the former the separate states are visibly distinct; in the -latter they are lost in unity. And such is the plain condition of our -republic. - -Of the present thirty-seven States only thirteen were originally -Colonies; three are offsets from some of these; all the rest have been -founded on territory which was the common property of the people of -the United States, and at their own request they have been received -into the fellowship of government and citizenship. If on any ground -one of the original Thirteen might renounce its obligations to the -Union, it would not follow that one of the new States, occupying the -common territory, could do likewise. It is little short of madness to -attribute such a denationalizing prerogative to any State, whether -new or old. For better or worse, we are all bound together in one -indissoluble bond. The National Union is a knot which in an evil hour -the sword may cut, but which no mortal power can unloose without the -common consent. - - * * * * * - -From the earliest landing, this knot has been tying tighter and -tighter. Two ways it promptly showed itself: first, in the common claim -of the rights of British subjects; and, secondly, in the common rights -of citizenship coextensive with the Colonies, and the consequent rights -of every Colony in every other Colony. - -The Colonies were settled separately, under different names, and -each had its own local government. But no local government in any -Colony was allowed to restrict the rights, liberties, and immunities -of British subjects. This was often declared. Above all charters or -local laws were the imprescriptible safeguards of Magna Charta, which -were common to all the inhabitants. On one occasion, the Legislature -of Massachusetts reminded the king’s governor of these safeguards in -memorable words: “We hope we may without offence put your Excellency -in mind of that most grievous sentence of excommunication solemnly -denounced by the Church in the name of the sacred Trinity, in the -presence of King Henry the Third and the estates of the realm, _against -all those who should make statutes, or observe them, being made, -contrary to the liberties of Magna Charta_.”[10] Massachusetts spoke -for all the Colonies. Enjoyment of common rights was a common bond, -constituting an element of nationality. As these rights grew more -important, the common bond grew stronger. - -The rights of citizenship in the Colonies were derived from common -relations to the mother country. No Colonist could be an alien in any -other Colony. As British subject he had the freedom of every Colony, -with the right of making his home there, and of inheriting lands. Among -all the Colonies there was a common and interchangeable citizenship, -or _inter-citizenship_. The very rule of the Constitution then began, -that “the citizens of each State shall be entitled to all privileges -and immunities of citizens in the several States.” Here was another -element of nationality. If not at that time fellow-citizens, all were -at least fellow-subjects. Fellowship had begun. Thus in the earliest -days, even before Independence, were the Colonists one people, with one -sovereignty, afterwards renounced. - - * * * * * - -Efforts for a common government on this side of the ocean soon showed -themselves. The Pilgrims landed at Plymouth in 1620. As early as 1643, -only twenty-three years later, there was a confederation under the -name of “The United Colonies of New England,” formed primarily for the -common defence; and here is the first stage of nationality on this -continent. In the preamble to the Articles the parties declare: “We, -therefore, do conceive it our bounden duty without delay to enter into -a present consociation amongst ourselves for mutual help and strength -in all our future concernments, that, as in nation and religion, so -in other respects, _we be and continue One_.”[11] Better words could -not mark the beginning of a nation. A distinguished character of the -time, recording the difficulties encountered by the Articles, says: -“But, being all desirous of union and studious of peace, they readily -yielded each to other in such things as tended to common utility, etc., -so as in some two or three meetings _they lovingly accorded_.”[12] -Encouraged by “loving accord,” another proposition was brought forward -in Massachusetts, “for all the English within the United Colonies -_to enter into a civil agreement for the maintenance of religion and -our civil liberties_.”[13] More than a century elapsed before this -aspiration was fulfilled. - -Meanwhile the Colonies grew in population and power. No longer merely -scattered settlements, they began to act a part in history. Anxious -especially against French domination, already existing in Canada and -extending along the Lakes to the Mississippi, they came together -in Congress at Albany, in 1754, to take measures for the common -defence. Delegates were present from seven Colonies, being all north -of the Potomac. Here the genius of Benjamin Franklin prevailed. A -plan from this master mind provided for what was called a “General -Government,” administered by a “President-General and Grand Council,” -where each Colony should have representatives in proportion to its -contributions,--Massachusetts and Virginia having seven each, while New -York had only four; and the first meeting of the “General Government” -was to be at Philadelphia.[14] Local jealousy and pretension were then -too strong for such a Union: and it found no greater favor in England; -for there Union was “dreaded as the keystone of Independence.”[15] -In defending this plan, Franklin, who had not yet entered into the -idea of Independence, did not hesitate to say that he looked upon the -Colonies “as so many counties gained to Great Britain,”[16]--employing -an illustration which most forcibly suggested actual Unity. Though -this experiment failed, it revealed the longing for one Cisatlantic -government, and showed how under other auspices it might be -accomplished. - -Little more than ten years elapsed before the same yearning for common -life appeared again in the Colonial Congress at New York, convened in -1765, on the recommendation of Massachusetts, to arrest the tyranny of -the Stamp Act and assaults upon the common liberties. Nine Colonies, -after deliberation, united in a Declaration of Rights common to all. -Here was the inspiration of James Otis, the youthful orator of Freedom, -whose tongue of flame had already flashed the cry, “Taxation without -representation is tyranny,” and that other cry, worthy of perpetual -memory, “Equality and the power of the whole, without distinction of -color.” These were voices that heralded our Nation. - - * * * * * - -The mother country persisted; and in the same proportion the Colonies -were aroused to the necessity of union. Meanwhile that inflexible -Republican, Samuel Adams, of Massachusetts, brooding on the perils -to Liberty, conceived the idea of what he called “a Congress of -American States,” out of whose deliberations should come what he boldly -proclaimed “an American Commonwealth,”[17]--not several commonwealths, -not Thirteen, but One. Here, in a single brilliant flash, was revealed -the image of National Unity, while the word “Commonwealth” denoted -the common weal which all should share. The declared object of this -burning patriot was “to answer the great purpose of preserving our -liberties,”[18]--meaning, of course, the liberties of all. Better words -could not be chosen to describe a republican government. This was in -1773. Every Colony, catching the echo, stirred with national life. -Delegates were appointed, and in 1774 a Congress called “Continental,” -with a representation from twelve Colonies, was organized at -Philadelphia, and undertook to speak in the name of “the good people” -of the Colonies. Here was a national act. In the Declaration of -Rights which it put forth,--fit precursor of the Declaration of -Independence,--it grandly claims, that, by the immutable laws of -Nature, the principles of the English Constitution, and the several -Charters, all the inhabitants are “entitled to life, liberty, and -property,” and then announces “that the foundation of English liberty -and of all free government is _a right in the people to participate in -their legislative council_.”[19] Here was a claim of popular rights as -a first principle of government. Proceeding from a Congress of all, -such a claim marks yet another stage of national life. - -The next year witnessed a second Continental Congress, also at -Philadelphia, which entered upon a mightier career. Proceeding at once -to exercise national powers, this great Congress undertook to put -the Colonies in a state of defence, authorized the raising of troops, -framed rules for the government of the army, commenced the equipment -of armed vessels, and commissioned George Washington as “general and -commander-in-chief of the army of the United Colonies, and of all the -forces now raised or to be raised by them, and of all others who shall -voluntarily offer their service and join the said army, for the defence -of American liberty.” Here were national acts, which history cannot -forget, and their object was nothing less than American liberty. It was -American liberty which Washington was commissioned to defend. Under -these inspirations was our Nation born. The time had now come. - - * * * * * - -Independence was declared. Here was an act which, from beginning to -end, in every particular and all its inspirations, was National, -stamping upon the whole people Unity in the support of Human Rights. -It was done “in the name and by authority of the good people of these -Colonies,” called at the beginning “one people,” and it was entitled -“Declaration by the Representatives of the United States of America -in Congress assembled,” without a word of separate sovereignty. As -a National act it has two distinct features: first, a severance of -the relations between the “United Colonies” and the mother country; -and, secondly, a declaration of self-evident truths on which the -severance was justified and the new Nation founded. It is the “United -Colonies” that are declared free and independent States; and this -act is justified by the sublime declaration that all men are created -equal, with certain inalienable rights, and that to secure these rights -governments are instituted among men, deriving their just powers from -the consent of the governed. Here was that “American Commonwealth,” -the image of National Unity, dedicated to Human Rights, which had -enchanted the vision of the early patriot seeking new safeguards for -Liberty. Here was a new Nation, with new promises and covenants, never -before made. The constituent authority was “the People.” The rights it -promised and covenanted were the Equal Rights of All; not the rights of -Englishmen, but the rights of Man. On this account our Declaration has -its great meaning in history; on this account our nation became at once -a source of light to the world. Well might the sun have stood still on -that day to witness a kindred luminary ascending into the sky! - -In this sudden transformation where was the sovereignty? It was -declared that the _United_ Colonies are and _of right_ ought to be -free and independent States. It was never declared that the _separate_ -Colonies were so _of right_. Plainly they never were so _in fact_. -Therefore there was no separate sovereignty either of right or in fact. -The sovereignty anterior to Independence was in the mother country; -afterwards it was in the people of the United States, who took the -place of the mother country. As the original sovereignty was undivided, -so also was that sovereignty of the people which became its substitute. -If authority were needed for this irresistible conclusion, I might -find it in the work of the great commentator, Mr. Justice Story, and -in that powerful discourse of John Quincy Adams entitled “The Jubilee -of the Constitution,” in both of which the sovereignty is accorded to -the People, and not to the States. Nor should I forget that rarest -political genius, Alexander Hamilton, who, regarding these things as a -contemporary, declared most triumphantly that “the Union had complete -sovereignty”; that “the Declaration of Independence was the fundamental -constitution of every State”; and, finally, that “the union and -independence of these States are blended and incorporated in one and -the same act.”[20] Such was the great beginning of national life. - - * * * * * - -A beautiful meditative poet, whose words are often most instructive, -confesses that we may reach heights we cannot hold:-- - - “And the most difficult of tasks to keep - Heights which the soul is competent to gain.”[21] - -Our nation found it so. Only a few days after the great Declaration -in the name of “the People,” Articles of Confederation were brought -forward in the name of “the States.” Evidently these were drawn before -the Declaration, and they were in the handwriting of John Dickinson, -then a delegate from Pennsylvania, whom the eldest Adams calls “the -bell-wether of the aristocratical flock,”[22] and who had been the -orator against the Declaration. Not unnaturally, an opponent of the -Declaration favored a system which forgot the constituent sovereignty -of the people, and made haste to establish the pretensions of States. -These Articles were not readily adopted. There was hesitation in -Congress, and then hesitation among the States. At last, on the 1st -of March, 1781, Maryland gave a tardy adhesion, and this shadow of -a government began. It was a pitiful sight. The Declaration was -sacrificed. Instead of “one people,” we were nothing but “a league” of -States; and our nation, instead of drawing its quickening life from -“the good people,” drew it from a combination of “artificial bodies”; -instead of recognizing the constituent sovereignty of the people, by -whose voice Independence was declared, it recognized only the pretended -sovereignty of States; and, to complete the humiliating transformation, -the national name was called “the style,” being a term which denotes -sometimes title and sometimes copartnership, instead of unchangeable -unity. Such an apostasy could not succeed. - -Even before the adoption of this denationalizing framework, its failure -had begun. The Confederation became at once a byword and a sorrow. -It was not fit for war or peace. It accomplished nothing national. -It arrested all the national activities. Each State played the part -of the feudal chieftain, selfishly absorbing power and denying it to -the Nation. Money could not be collected even for national purposes. -Commerce could not be regulated. Justice could not be administered. -Rights could not be assured. Congress was without coercive power, -and could act only through the local sovereignty. National unity was -impossible, and in its stead was a many-headed pretension. The country -was lapsing into chaos. - -From Boston, which was the early home of the Revolution, had already -proceeded a cry for Nationality. A convention of delegates from -Massachusetts, Connecticut, and New Hampshire, with Thomas Cushing as -President, assembled at Boston in August, 1780, where, among other -things, it was recommended “that the Union of these States be fixed -in a more solid and permanent manner, that the powers of Congress be -more clearly ascertained and defined, and that the important _national_ -concerns of the United States be _under the superintendency and -direction of one supreme head_,” and the word _Nation_ is adopted as -the natural expression for our unity.[23] But the time had not yet come -for this fulfilment. - - * * * * * - -In the prevailing darkness, two voices made themselves heard, both -speaking for National Unity on the foundation of Human Rights. The -singular accord between the two, not only in sentiment, but also in -language, and in date of utterance, attests concert. One voice was -that of Congress, in an Address and Recommendations to the States -on the close of the war, bearing date 18th April, 1783, where, -urging “effectual provision” for the war debts, as demanded alike by -national honor, and the honor of the cause in which they had been -contracted, it was said, in words worthy of companionship with the -immortal Declaration: “Let it be remembered that it has ever been the -pride and boast of America that _the rights for which she contended -were the rights of Human Nature_.”[24] The other voice was that of -Washington, in a general order, also bearing date 18th April, 1783, -announcing the close of the war, where, after declaring his “rapture” -in the prospect before the country, he says: “Happy, thrice happy, -shall they be pronounced hereafter who have contributed anything, who -have performed the meanest office, in erecting this stupendous fabric -of Freedom and Empire on the broad basis of Independency, _who have -assisted in protecting the rights of Human Nature_.”[25] This appeal -was followed by a circular letter to the Governors, where, after -announcing that it is for the United States to determine “whether they -will be respectable and prosperous or contemptible and miserable _as a -Nation_,” Washington proceeds to name first among the things essential -to national well-being, if not even to national existence, what he -calls “an indissoluble union of the States under one federal head”; and -he adds, that there must be a forgetfulness of “local prejudices and -policies,” and that “Liberty” must be at the foundation of the whole -structure.[26] Soon afterwards appearing before Congress to surrender -the trust committed to him as commander-in-chief, he hailed the United -States as a “Nation,” and “our dearest country,”[27]--thus embracing -the whole in his heart, as for seven years he had defended the whole by -his prudence and valor. - -An incident of a different character attested the consciousness of -National Unity. The vast outlying territory, unsettled at the beginning -of the war, and wrested from the British crown by the common blood and -treasure, was claimed as a common property, subject to the disposition -of Congress for the general good. One by one, the States yielded their -individual claims. The cession of Virginia comprehended all that grand -region northwest of the Ohio, fertile and rich beyond imagination, -where are now prosperous States rejoicing in the Union. All these -cessions were on the condition that the lands should “be disposed of -for the common benefit of the United States, and be settled and formed -into distinct _republican States_.”[28] Here was a National act, with -the promise of republican government, which was the forerunner of the -guaranty of a republican government in the National Constitution. - -The best men, in their longing for national unity, all concurred in -the necessity of immediate action to save the country. Foremost in -time, as in genius, was Alexander Hamilton, who was prompt to insist -that Congress should have “complete sovereignty, except as to that -part of internal police which relates to the rights of property and -life among individuals and to raising money by internal taxes”; and -still further, in words which harmonized with the Declaration of -Independence, that “the fabric of the American empire ought to rest on -the solid basis of the consent of the people.”[29] In kindred spirit, -Schuyler announced “the necessity of _a supreme and coercive power_ -in the government of these States.”[30] Hamilton and Schuyler were -both of New York, which, with such representatives, took the lead in -solemn resolutions, which, after declaring that “the situation of -these States is in a peculiar manner critical,” and that “the present -system exposes the common cause to a precarious issue,” concluded with -a call for “a general convention of the States, specially authorized -to revise and amend the Confederation.”[31] The movement ended in the -National Convention. Other States followed, and Congress recommended -it as “the most probable means of establishing in these States a firm -National Government.”[32] Meantime, Noah Webster, whom you know so well -as author of the popular Dictionary, in an essay on the situation, -published at the time, proposed a new system of government, which -should act directly on the individual citizens, and by which Congress -should be invested with full powers of legislation within its sphere, -and for carrying its laws into effect.[33] But this proposition -involved nothing less than a National Government with supreme powers, -to which the States should be subordinate. - - * * * * * - -Here I mention three illustrious characters, who at this time lent the -weight of their great names to the national cause,--Jay, Madison, and -Washington,--each in his way without a peer. I content myself with -a few words from each. John Jay, writing to John Adams, at the time -our minister in London, under date of 4th May, 1786, says: “One of -the first wishes of my heart” is “to see the people of America become -_One Nation in every respect_; for, as to the separate Legislatures, -I would have them considered, with relation to the Confederacy, _in -the same light in which counties stand_ to the State of which they are -parts, viz., merely as districts to facilitate the purposes of domestic -order and good government.”[34] Even in this strong view Jay was not -alone. Franklin had already led in likening the colonies to “so many -counties.”[35] Madison’s desires were differently expressed. After -declaring against “an individual independence of the States,” on the -one side, and “a consolidation of the States into one simple republic,” -on the other side, he sought what he called a “middle ground,” which, -if varying from that of Jay, was essentially national. He would have -“_a due supremacy of the National authority_, and leave in force the -local authorities so far as they can be subordinately useful.”[36] -Here is the definition of a Nation. Washington, in a letter to Jay, -dated 1st August, 1786, stated the whole case with his accustomed -authority. Insisting upon the importance of “a coercive power,” he -pleads for national life: “I do not conceive we can exist long as _a -Nation_ without having lodged somewhere a power which will pervade the -whole Union in _as energetic a manner as the authority of the State -governments extends over the several States_.” He then adds: “To be -fearful of investing Congress, constituted as that body is, with _ample -authorities for National purposes_, appears to me the very climax of -popular absurdity and madness.”[37] Such were the longings of patriots, -all filled with a passion for country. But Washington went still -further, when, on another occasion, he denounced State sovereignty as -“bantling,” and even “monster.”[38] - - * * * * * - -The Constituent Convention, often called Federal, better called -National, assembled at Philadelphia in May, 1787. It was a memorable -body, whose deliberations have made an epoch in the history of -government. Jefferson and John Adams were at the time abroad in the -foreign service of the country, Samuel Adams was in service at home -in Massachusetts, and Jay in New York; but Washington, Franklin, -Hamilton, Madison, Gouverneur Morris, George Mason, Wilson, Ellsworth, -and Sherman appeared among its members. Washington, by their unanimous -voice, became President; and, according to the rules of the Convention, -on adjournment, every member stood in his place until the President had -passed him. Here is a glimpse of that august body which Art may yet -picture. Who would not be glad to look upon Franklin, Hamilton, and -Madison standing in their places while Washington passed? - - * * * * * - -On the first day after the adoption of the rules, Edmund Randolph, of -Virginia, opened the great business. He began by announcing that the -“Confederation” produced no security against foreign invasion; that the -“Federal Government” could not suppress quarrels or rebellion; that -the “Federal Government” could not defend itself against encroachments -from the States; and then, insisting that the remedy must be found in -“the republican principle,” concluded with a series of propositions for -a National Government, with a “National” Legislature in two branches, -a “National” Executive, and a “National” Judiciary, the whole crowned -by the guaranty of a republican government in each State. This series -of propositions was followed the next day by a simple statement in the -form of a resolution, where, after setting forth the insufficiency -of “a union of the States merely Federal,” or of “treaties among -the States as individual sovereignties,” it was declared “that _a -National Government ought to be established_, consisting of a supreme -legislative, executive, and judiciary.” Better words could not have -been chosen to express the prevailing aspiration for national life. -After ample debate, the resolution in this form was adopted. At a -later stage, in seeming deference to mistaken sensibilities, the -word “National” gave place to the term “the government of the United -States”; but this term equally denoted National Unity, although it did -not use the words. The whole clause afterwards found a noble substitute -in the Preamble to the Constitution, which is the annunciation of a -National Government proceeding directly from the People, like the -Declaration of Independence itself. - -From the beginning to the end of its debates, the Convention breathed -the same patriotic fervor. Amidst all difference in details, and above -the persistent and sinister contest for the equal representation of -the States, great and small, the sentiment of Unity found constant -utterance. I have already mentioned Madison and Hamilton, who wished -a National Government; but others were not less decided. Gouverneur -Morris began early by explaining the difference between “Federal” -and “National.” The former implied “a mere compact, resting on the -good faith of the parties”; the latter had “a complete and compulsive -operation.”[39] Constantly this impassioned statesman protested against -State pretensions, insisting that the States were originally “nothing -more than colonial corporations,”[40] and exclaiming, “We cannot -annihilate, but we may perhaps take out the teeth of the serpents.”[41] -Wilson was a different character,--gentle by nature, but informed -by studies in jurisprudence and by the education brought from his -Scottish home. He was for a National Government, and did not think it -inconsistent with the “lesser jurisdictions” of States, which he would -preserve;[42] he would not “extinguish these planets,” but keep them -“within their proper orbits for subordinate purposes.”[43] He was too -much of a jurist to admit, “that, when the Colonies became independent -of Great Britain, they became independent also of each other,” and -he insisted that they became independent, “not individually, but -unitedly.”[44] Elbridge Gerry, of Massachusetts, was as strong on this -point as Gouverneur Morris, insisting that “we never were independent -States, were not such now, and never could be, even on the principles -of the Confederation.”[45] Rufus King, also of Massachusetts, touched -a higher key, when he wished that “every man in America” should be -“secured in all his rights,” and that these should not be “sacrificed -to the phantom of State sovereignty.”[46] Good words, worthy of him -who in the Continental Congress moved the prohibition of Slavery in -the national territories.[47] And Charles Pinckney, of South Carolina, -said, in other words of precious significance, that “every freeman has -a right to _the same protection and security_,” and then again, that -“equality is the leading feature of the United States.”[48] Under such -influences the Constitution was adopted by the Convention. - -It is needless to dwell on its features, all so well known; but there -are certain points not to be disregarded now. There is especially -the beginning. Next after the opening words of the Declaration of -Independence, the opening words of the Constitution are the grandest -in history. They sound like a majestic overture, fit prelude to the -transcendent harmonies of National life on a theatre of unexampled -proportions. Though familiar, they cannot be too often repeated; for -they are in themselves an assurance of popular rights and an epitome -of National duties: “_We, the people of the United States_, in order -to form a more perfect Union, establish justice, insure domestic -tranquillity, provide for the common defence, promote the general -welfare, and secure the blessings of liberty to ourselves and our -posterity, do ordain and establish this Constitution for the United -States of America.” Thus by the people of the United States was the -Constitution ordained and established; not by the States, nor even by -the people of the several States, but by _the people of the United -States_ in aggregate individuality. Nor is it a league, alliance, -agreement, compact, or confederation; but it is a Constitution, which -in itself denotes an indivisible unity under one supreme law, permanent -in character; and this Constitution, thus ordained and established, -has for its declared purposes nothing less than liberty, justice, -domestic tranquillity, the common defence, the general welfare, and a -more perfect union, all essentially National, and to be maintained by -the National arm. The work thus begun was completed by three further -provisions: first, the lofty requirement that “the United States -shall guaranty to every State in this Union a republican form of -government,”--thus subjecting the States to the presiding judgment of -the Nation, which is left to determine the definition of a republican -government; secondly, the practical investiture of Congress with -authority “to make all laws which shall be necessary and proper for -carrying into execution all the powers vested by this Constitution in -the Government of the United States, or in any department or officer -thereof,”--thus assuring the maintenance of the National Government, -and the execution of its powers through a faithful Congress chosen -by the people; and, thirdly, the imperial declaration, that “this -Constitution, and the laws of the United States which shall be made -in pursuance thereof, and all treaties made or which shall be made -under the authority of the United States, shall be _the supreme law -of the land_, and the judges in every State shall be bound thereby, -_anything in the Constitution or laws of any State to the contrary -notwithstanding_,”--thus forever fixing the supremacy of the National -Government on a pinnacle above all local laws and constitutions. And -thus did our country again assume the character and obligations of a -Nation. Its first awakening was in the Declaration of Independence; its -second was in the National Constitution. - - * * * * * - -On its adoption, the Constitution was transmitted to Congress with a -letter from Washington, where, among other things, it is said that “in -all our deliberations we kept steadily in our view that which appears -to us the greatest interest of every true American, _the consolidation -of our Union_, in which is involved our prosperity, felicity, safety, -perhaps our National existence.”[49] Enough that this letter is signed -“George Washington”; but it was not merely the expression of his -individual sentiments. It was unanimously adopted by the Convention, -on the report of the committee that made the final draught of the -Constitution itself, so that it must be considered as belonging to -this great transaction. By its light the Constitution must be read. -If anybody is disposed to set up the denationalizing pretensions of -States under the National Constitution, let him bear in mind this -explicit declaration, that, throughout all the deliberations of the -Convention, the one object kept steadily in view was _the consolidation -of our Union_. Such is the unanimous testimony of the Convention, -authenticated by George Washington. - -The Constitution was discussed next in the States. It was vindicated -as creating a National Government, and it was opposed also on this -very ground. Thus from opposite quarters comes the concurring -testimony. In Connecticut, Mr. Johnson, who had been chairman of -the committee that reported the final draught, said, in reply to -inquiries of his constituents, that the Convention had “gone upon -entirely new ground: they have formed _one new Nation_ out of the -individual States.”[50] George Mason, of Virginia, proclaimed at home -that “the Confederation of the States was entirely changed into _one -consolidated government_,”--that it was “a _National_ government, -and no longer a Confederation.”[51] Patrick Henry, in his vigorous -opposition, testified to the completeness with which the work had been -accomplished. Inquiring by what authority the Convention assumed to -make such a government, he exclaimed: “That this is a consolidated -government is demonstrably clear.… Give me leave to demand, What right -had they to say, _We, the people_?… Who authorized them to speak -the language of _We, the people_, instead of _We, the States_?… If -the States be not the agents of this compact, it must be one great -consolidated National government of the people of all the States.”[52] -Then again the same fervid orator declared, with infinite point, “The -question turns, Sir, on that poor little thing, the expression, _We, -the people_, instead of _the States_.”[53] Patrick Henry was right. -The question did turn on that grand expression, _We, the people_, in -the very frontispiece of the Constitution, filling the whole with -life-giving power; and so long as it stands there, the denationalizing -pretensions of States must shrink into littleness. Originally “one -people” during colonial days, we have been unalterably fixed in this -condition by two National acts: first, the Declaration of Independence, -and then again, the National Constitution. Thus is doubly assured the -original unity in which we were born. - - * * * * * - -Other tokens of Nationality, like the air we breathe, are so common -that they hardly attract attention; but each has a character of its -own. They belong to the “unities” of our nation. - -1. There is the National Flag. He must be cold indeed, who can look -upon its folds rippling in the breeze without pride of country. If in -a foreign land the flag is companionship, and country itself, with all -its endearments, who, as he sees it, can think of a State merely? Whose -eyes, once fastened upon its radiant trophies, can fail to recognize -the image of the whole Nation? It has been called “a floating piece of -poetry”; and yet I know not if it have an intrinsic beauty beyond other -ensigns. Its highest beauty is in what it symbolizes. It is because -it represents all, that all gaze at it with delight and reverence. It -is a piece of bunting lifted in the air; but it speaks sublimely, and -every part has a voice. Its stripes of alternate red and white proclaim -the original _union_ of thirteen States to maintain the Declaration -of Independence. Its stars of white on a field of blue proclaim that -_union_ of States constituting our national constellation, which -receives a new star with every new State. The two together signify -Union, past and present. The very colors have a language, officially -recognized by our fathers. White is for purity; red, for valor; blue, -for justice. And all together, bunting, stripes, stars, and colors, -blazing in the sky, make the flag of our country, to be cherished by -all our hearts, to be upheld by all our hands. - -Not at once did this ensign come into being. Its first beginning was -in the camp before Boston, and it was announced by Washington in these -words: “The day which gave being to the new army, we hoisted the _Union -flag_, in compliment to the United Colonies.”[54] The National forces -and the National flag began together. Shortly afterwards, amidst the -acclamations of the people, a fleet of five sail left Philadelphia, -according to the language of the time, “under the display of a _Union -flag_ with thirteen stripes.”[55] This was probably the same flag, not -yet matured into its present form. In its corner, where are now the -stars, were the crosses of St. George and St. Andrew, red and white, -originally representing England and Scotland, and when conjoined, after -the union of those two countries, known as “the Union.” To these were -added thirteen stripes, alternate red and white, and the whole was -hailed at the time as the Great Union Flag. The States, represented by -the stripes, were in subordination to the National Unity, represented -by the two crosses. But this form did not continue long. By a -resolution adopted 14th June, 1777, and made public 3d September, 1777, -Congress determined “that the flag of the thirteen United States be -thirteen stripes, alternate red and white; that _the union_ be thirteen -stars, white in a blue field, representing a new constellation.”[56] -Here the crosses of St. George and St. Andrew gave place to white -stars in a blue field; the familiar symbol of British union gave place -to another symbol of union peculiar to ourselves; and this completed -the national flag, which a little later floated at the surrender of -Burgoyne. Long afterward, in 1818, it was provided by Congress that a -star be added on the admission of a new State, “to take effect on the -fourth day of July next succeeding such admission.”[57] Thus, in every -respect, and at each stage of its history, the National Flag testifies -to the National Unity. The whole outstretched, indivisible country is -seated in its folds. - -There is a curious episode of the national flag, which is not without -value. As far back as 1754, Franklin, while attempting a union of the -Colonies, pictured the principal ones in a wood-cut under the device of -a snake divided into eight parts marked with their initials, and under -the disjointed whole the admonitory motto, “_Join or die_,”--thus -indicating the paramount necessity of Union. In the heats of the -Revolutionary discussion, a similar representation of all the Thirteen -Colonies was adopted as the head-piece of newspapers, and was painted -on banners; but when the Union was accomplished, the divisions and -initials were dropped, and the snake was exhibited whole, coiled -in conscious power, with thirteen rattles, and under it another -admonitory motto, “_Don’t tread on me_,”--being a warning to the mother -country.[58] This flag was yellow, and it became the early standard of -the Revolutionary navy, being for the first time hoisted by Paul Jones -with his own hands. It had a further lesson. A half-formed additional -rattle was said by Franklin “to represent the province of Canada,” -and the wise man added, that “the rattles are united together so as -never to be separated but by breaking them to pieces.” Thus the snake -at one time pictured the necessity of Union, and at another time its -indissoluble bond.[59] But these symbols were all in harmony with the -national flag, which, from its first appearance, in all its forms, -pictured the common cause. - -2. There is next the National Motto, as it appears on the national -seal and on the national money. A common seal and common money are -signs of National Unity. In each the supreme sovereignty of the Nation -is manifest. The first is like the national flag, and stands for -the Nation, especially in treaties with foreign powers. The second -is a national convenience, if not necessity, taking its distinctive -character from the Nation, so that everywhere it is a representative -of the Nation. Each has the same familiar motto, _E pluribus -unum_,--“From many one.” Its history attests its significance. - -On the 4th of July, 1776, the very day of Independence, Benjamin -Franklin, John Adams, and Thomas Jefferson were appointed a committee -to prepare a device for a great seal. They were of the identical -committee that had reported the Declaration of Independence itself. -Their report on the seal was made 20th August, 1776; and here we first -meet the national motto, in such entire harmony with the Declaration, -making us “one people.” Questions of detail intervened, and no -conclusion was reached until 20th June, 1782, when the present seal was -adopted, being the American bald eagle, with the olive-branch in one -talon and a bundle of thirteen arrows in the other, and in his beak a -scroll, bearing the inscription, _E pluribus unum_. Familiar as these -Latin words have become,--so that they haunt the memory of manhood, -youth, and childhood alike,--it is not always considered how completely -and simply they tell the story of our national life. Out of Many -Colonies was formed One Nation. Former differences were merged in this -unity. No longer Many, they were One. The Nation by its chosen motto -repeats perpetually, “We are One”; and the Constitution echoes back, -“We, the people of the United States.” - -3. There is next the National Name, which of itself implies National -Unity. The States are not merely allied, associated, coalesced, -confederated, but they are _United_, and the Constitution, formed to -secure a more perfect union, is “for the _United_ States of America,” -which term was used as the common name of the Nation. - -A regret has been sometimes expressed by patriots and by poets, that -some single term was not originally adopted, which of itself should -exclude every denationalizing pretension, and be a talisman for the -heart to cherish and for the tongue to utter,--as when Nelson gave his -great watchword at Trafalgar, “_England_ expects every man to do his -duty.” Occasionally it is proposed to call the country _Columbia_, and -thus restore to the great discoverer at least part of the honor taken -from him when the continent was misnamed _America_. _Alleghania_ has -also been proposed; but this word is too obviously a mere invention, -besides its unwelcome suggestion of Alligator. Another proposition -has been _Vinland_, being the name originally given by the Northmen, -four centuries before Christopher Columbus. Professor Lieber, on one -occasion, called the nation _Freeland_, a name to which it will soon -be entitled. Even as a bond of union, such a name would not be without -value. As long ago as Herodotus, it was said of a certain people,[60] -that they would have been the most powerful in the world, if they had -been united; but this was impossible, from the want among themselves of -a common name. - -Forgetting that the actual name implies Unity, and, when we consider -its place in the preamble of the National Constitution, that it -implies Nationality also, the partisans of State pretensions argue -from it against even the idea of country; and here I have a curious -and authentic illustration. In reply to an inquirer,[61] who wished -a single name, Mr. Calhoun exclaimed: “Not at all; we have no name -because we ought to have none; we are only States united, and have -no country.” Alas, if it be so!--if this well-loved land, for which -so many have lived, for which so many have died, is not our country! -But this strange utterance shows how completely the poison of these -pretensions had destroyed the common sense, as well as the patriotism, -of this much-mistaken man. - -Names may be given by sovereign power to new discoveries or -settlements; but, as a general rule, they grow out of the soil, -they are autochthonous. Even Augustus, when ruling the Roman world, -confessed that he could not make a new word,[62] and Plato tells -us that “a creator of names is the rarest of human creatures.”[63] -Reflecting on these things, we may appreciate something of the -difficulty in the way of a new name at the formation of the National -Constitution. As this was little more than a transcript of prevailing -ideas and institutions, it was natural to take the name used in the -Declaration of Independence. - -And yet it must not be forgotten that there was a name of -different character which was much employed. Congress was called -“Continental,” the army “Continental,” the money “Continental,”--a -term certainly of unity, as well as vastness. But there was still -another national designation, accepted at home and abroad. Our -country was called “America,” and we were called “Americans.” Here -was a natural, unsought, and instinctive name,--a growth, and not -a creation,--implying national unity and predominance, if not -exclusive power, on the continent. It was used not occasionally or -casually, but constantly,--not merely in newspapers, but in official -documents. Not an address of Congress, not a military order, not a -speech, which does not contain this term, at once so expansive and so -unifying. At the opening of the first Continental Congress, Patrick -Henry, in a different mood from that of a later day, announced the -national unity under this very name. Declaring the boundaries of the -several Colonies effaced, and the distinctions between Virginians, -Pennsylvanians, New-Yorkers, and New-Englanders as no more, he -exclaimed, in words of comprehensive patriotism, “I am not a Virginian, -but an _American_.”[64] Congress took up the strain, and commissioned -Washington as commander-in-chief of the armies “for the defence -of _American_ liberty”;[65] and Washington himself, in his first -general order at Cambridge, assuming his great command, announced -that the armies were “for the support and defence of the liberties of -_America_;[66] and in a letter to Congress, just before the Battle -of Trenton, he declared that he had labored “to discourage all kinds -of local attachments and distinctions of country, _denominating the -whole by the greater name of American_.”[67] Then at the close of the -war, in its immortal Address, fit supplement to the Declaration of -Independence, Congress said: “Let it be remembered that it has ever -been the pride and boast of _America_ that the rights for which she -contended were the rights of Human Nature.”[68] Washington again, -in his letter to Congress communicating the National Constitution, -says, in other words, which, like those of Congress, cannot be too -often quoted, that “the _consolidation of our Union_” is “the greatest -interest of _every true American_.”[69] Afterwards, in his Farewell -Address, which from beginning to end is one persuasive appeal for -nationality, after enjoining upon his fellow-citizens that “_unity of -government_ which constitutes them _one people_,” he gives to them a -national name, and this was his legacy: “_The name of American, which -belongs to you in your national capacity_, must always exalt the just -pride of patriotism more than any appellation derived from local -discriminations.”[70] Thus did Washington put aside those baneful -pretensions under which the country has suffered, even to the extent of -adopting a National Name, which, like the Union itself, should have a -solid coercive power. - -It is not impossible that in the lapse of time history will vindicate -the name adopted by Washington, which may grow with the Republic, until -it becomes the natural designation of one country. Our fathers used -this term more wisely than they knew; but they acted under Providential -guidance. Is it not said of the stars, that God “calleth them all by -names, by the greatness of His might”?[71] Is it not declared also that -He will make him who overcometh a pillar in the temple, and give to him -a “new name”?[72] So, as our stars multiply, and the nation overcometh -its adversaries, persuading all to its declared principles, everywhere -on the continent, it will become a pillar in the temple, and the name -of the continent itself will be needed to declare alike its unity and -its power. - -4. To these “unities,” derived from history and the heart of the -people, may be added another, where Nature is the great teacher. I -refer to the geographical position and configuration of our country, -if not of the whole continent, marking it for one nation. Unity is -written upon it by the Almighty hand. In this respect it differs much -from Europe, where, for generations, seas, rivers, and mountains kept -people apart, who had else, “like kindred drops, been mingled into -one.” There is no reason why they should not commingle here. Nature in -every form is propitious. Facility of intercourse, not less than common -advantage, leads to unity: both these are ours. Here are navigable -rivers, numerous and famous, being so many highways of travel, and a -chain of lakes, each an inland sea. Then there is an unexampled extent -of country adapted to railways; and do not forget that with the railway -is the telegraph, using the lightning as its messenger, so that the -interrogatory to Job is answered, “Canst thou send lightnings that they -may go?”[73] The country is one open expanse, from the frozen Arctic -to the warm waters of the Gulf, and from the Atlantic to the Rocky -Mountains,--and there already science supplies the means of overcoming -this barrier, which in other days would have marked international -boundaries. The Pacific Railway will neutralize these mountains, and -complete the geographical unity of the continent. The slender wire of -the telegraph, when once extended, is an indissoluble tie; the railway -is an iron band. But these depend upon opportunities which Nature -supplies, so that Nature herself is one of the guardians of our nation. - -He has studied history poorly, and human nature no better, who -imagines that this broad compacted country can be parcelled into -different nationalities. Where will you run the thread of partition? By -what river? Along what mountain? On what line of latitude or longitude? -Impossible. No line of longitude or latitude, no mountain, no river, -can become the demarcation. Every State has rights in every other -State. The whole country has a title, which it will never renounce, in -every part, whether the voluminous Mississippi as it pours to the sea, -or that same sea as it chafes upon our coast. As well might we of the -East attempt to shut you of the West from the ocean as you attempt to -shut us from the Mississippi. The ocean will always be yours as it is -ours, and the Mississippi will always be ours as it is yours. - -Our country was planned by Providence for a united and homogeneous -people. Apparent differences harmonize. Even climate, passing through -all gradations from North to South, is so tempered as to present an -easy uniformity from the Atlantic to the Rocky Mountains. Unmeasured -supplies of all kinds, mineral and agricultural, are at hand,--the -richest ores and the most golden crops, with the largest coal-fields of -the world below and the largest corn-fields of the world above. Strabo -said of ancient Gaul, that, by its structure, with its vast plains and -considerable rivers, it was destined to become the theatre of a great -civilization.[74] But the structure of our country is more auspicious. -Our plains are vaster and our rivers more considerable, furnishing a -theatre grander than any imagined by the Greek geographer. It is this -theatre, thus appointed by Nature, which is now open for the good of -mankind. - -Here I stop, to review the field over which we have passed, and to -gather its harvest into one sheaf. Beginning with the infancy of the -Colonies, we have seen how, with different names and governments, they -were all under _one sovereignty_, with common and interchangeable -rights of citizenship, so that no British subject in one Colony could -be made an alien in any other Colony; how, even at the beginning, -longings for a common life began, showing themselves in “loving -accord”; how Franklin regarded the Colonies “as so many counties”; -how the longings increased, until, under the pressure of the mother -country, they broke forth in aspiration for “an American Commonwealth”; -how they were at last organized in a Congress, called, from its -comprehensive character, “Continental”; how, in the exercise of powers -derived from “the good people,” and in their name, the Continental -Congress put forth the Declaration of Independence, by which the -sovereignty of the mother country was forever renounced, and we were -made “one people,” solemnly dedicated to Human Rights, and thus became -a Nation; how the undivided sovereignty of all was substituted for -the undivided sovereignty of the mother country, embracing all the -States as the other sovereignty had embraced all the Colonies; how, -according to Franklin, the States were locked together, “so as never to -be separated, but by breaking them to pieces”; how in an evil hour the -Confederation was formed in deference to denationalizing pretensions -of the States; how the longings for national life continued, and -found utterance in Congress, in Washington, and in patriot compeers; -how Jay wished the States should be like “counties”; how “Washington -denounced State sovereignty as “bantling” and “monster”; how at last -a National Convention assembled, with Washington as President, where -it was voted that “a National Government ought to be established”; -how in this spirit, after ample debate, the National Constitution was -formed, with its preamble beginning “We, the people,” with its guaranty -of a republican government to all the States, with its investiture of -Congress with all needful powers for the maintenance of the Government, -and with its assertion of supremacy over State constitutions and laws; -how this Constitution was commended by Washington in the name of the -Convention as “the consolidation of our Union”; how it was vindicated -and opposed as creating a National Government; how on its adoption we -again became a Nation; then how our nationality has been symbolized -in the National Flag, the National Motto, and the National Name; and, -lastly, how Nature, in the geographical position and configuration of -the country, has supplied the means of National Unity, and written her -everlasting guaranty. And thus do I bind the whole together into one -conclusion, saying to all, We are a Nation. - -Nor is this all. Side by side with the growth of National Unity was -a constant dedication to Human Rights, which showed itself not only -in the Declaration of Independence, with its promises and covenants, -but in the constant claim of the rights of Magna Charta, the earlier -cries of Otis, the assertion by the first Continental Congress of the -right of the people “to participate in their legislative council,” the -commission of Washington as commander-in-chief “for the defence of -American liberty,” and the first general order of Washington, on taking -command of his forces, where he rallies them to this cause; also in -the later proclamation of Congress, at the close of the Revolution, -that the rights contended for had been “the rights of Human Nature,” -and the farewell general order of Washington, on the same occasion, -where the contest is characterized in the same way: so that Human -Rights were the beginning and end of the war, while the nation, as it -grew into being, was quickened by these everlasting principles, and its -faith was plighted to their support. - - * * * * * - -As a Nation, with a place in the family of nations, we have the powers -of a nation, with corresponding responsibilities. Whether we regard -these powers as naturally inhering in the nation, or as conferred upon -it by those two title-deeds, the Declaration of Independence and the -National Constitution, the conclusion is the same. From Nature, and -also from its title-deeds, our nation must have all needful powers: -first, for the national defence, foremost among which is the power to -uphold and defend the national unity; secondly, for the safeguard of -the citizen in all his rights of citizenship, foremost among which is -equality, the first of rights, so that, as all owe equal allegiance, -all shall enjoy equal protection; and, thirdly, for the support -and maintenance of all the promises made by the nation, especially -at its birth, being baptismal vows which cannot be disowned. These -three powers are essentially national. They belong to our nation by -the very law of its being and the terms of its creation. They cannot -be neglected or abandoned. Every person, no matter what his birth, -condition, or color, who can raise the cry, “I am an American citizen,” -has a right to require at the hands of the nation, that it shall do -its utmost, by all its central powers, to uphold the national unity, -to protect the citizen in the rights of citizenship, and to perform -the original promises of the nation. Failure here is apostasy and -bankruptcy combined. - -It is vain to say that these requirements are not expressly set -down in the National Constitution. By a law existing before this -title-deed, they belong to the essential conditions of national life. -If not positively nominated in the Constitution, they are there in -substance; and this is enough. Every word, from “We, the people,” to -the signature, “George Washington,” is instinct with national life, and -there is not a single expression taking from the National Government -any inherent power. From this “nothing” in the Constitution there can -come nothing adverse. But there has always been a positive injunction -on the nation to guaranty “a republican form of government” to all the -States; and who can doubt, that, in the execution of this guaranty, -the nation may exercise all these powers, and provide especially for -the protection of the citizen in all the rights of citizenship? There -are also recent Amendments, abolishing slavery, and expressly securing -“the privileges and immunities of citizens” against the pretensions of -States. Then there is the Declaration of Independence itself, which is -the earlier title-deed. By that sacred instrument we were declared “one -people,” with liberty and equality for all, and then, fixing forever -the rights of citizenship, it was announced that all just government -was derived only from “the consent of the governed.” Come weal or woe, -that great Declaration must stand forever. Other things may fail, but -this cannot fail. It is immortal as the nation itself. It is part of -the nation, and the part most worthy of immortality. By it the National -Constitution must be interpreted; or rather, the two together are the -Constitution,--as Magna Charta and the Bill of Rights together are -the British Constitution. By the Declaration our nation was born and -its vital principles were announced; by the Constitution the nation -was born again and supplied with the machinery of government. The two -together are our National Scriptures, each being a Testament. - - * * * * * - -Against this conclusion there has been from the beginning one perpetual -pretension in the name of States. The same spirit which has been so -hostile to national unity in other countries, which made each feudal -chief a petty sovereign, which for a long time convulsed France, which -for centuries divided Italy, and which, unhappily, still divides -Germany, has appeared among us. Assuming that communities never -“sovereign” while colonies, and independent only by the national -power, had in some way, by some sudden hocus-pocus, leaped into local -sovereignty, and forgetting also that two sovereignties cannot coexist -in the same place, as, according to the early dramatist, - - “Two kings in England cannot reign at once,”[75] - -the States insisted upon sovereign powers justly belonging to the -Nation. Long ago the duel began. The partisans of State pretensions, -plausibly professing to _decentralize_ the Government, have -done everything possible to _denationalize_ it. In the name of -self-government, they have organized local lordships hostile to Human -Rights; in the name of the States, they have sacrificed the Nation. - -This pretension, constantly showing itself, has broken out on three -principal occasions. The first was in the effort of Nullification, -which occurred in 1832, where, under the lead of Mr. Calhoun, South -Carolina attempted to nullify the Revenue Acts of Congress, or, in -other words, to declare them void within her limits. After encountering -the matchless argument of Daniel Webster, enforced by his best -eloquence, Nullification was blasted by the thunderbolt of Andrew -Jackson, who, in his Proclamation, as President, thus exposed it, even -in the form of Secession, which it assumed at a later day: “Each State, -having expressly parted with so many powers as to constitute jointly -with the other States _a single nation_, cannot from that period -possess any right to secede, because such secession does not break a -league, but destroys the unity of a nation.”[76] The pretension next -showed itself in the Rebellion; and now that the Rebellion is crushed, -it reappears in still another form, by insisting that each State at -its own will may disregard the universal rights of the citizen, and -apply a discrimination according to its own local prejudices,--thus -within its borders nullifying the primal truths of the Declaration of -Independence. Here again do State pretensions, in their anarchical -egotism, interfere with the National Unity. - -The pretensions of States have found their ablest and frankest upholder -in John C. Calhoun. I take a single instance, on account of its -explicitness. In reply to a Northern Senator, the defender of Slavery -said:-- - - “Now let me tell the Senator that the doctrines which we - advocate are the result of the fullest and most careful - examination of our system of government, and that our - conviction that we constitute _an Union, and not a Nation_, is - as strong and as sincere as that of the Senator or any other in - the opposite opinion.” - - “We are as devoted to the Union as any portion of the American - people (I use the phrase as meaning the people of the Union); - but we see in a national consolidated government evils - innumerable to us. Admit us to be a Nation and not an Union, - and where would we stand? _We are in the minority._”[77] - -Evidently, in that minority he saw the doom of Slavery. - - * * * * * - -Local self-government, whether in the town, county, or State, is of -incalculable advantage, supplying the opportunities of political -education, and also a local administration adapted precisely to local -wants. On this account the system has been admired by travellers -from abroad, who have found in our “town meetings” the nurseries of -the Republic, and have delighted in local exemption from central -supervisorship. De Tocqueville, who journeyed here, has recorded his -authoritative praise,--and Laboulaye, who has visited us only in his -remarkable studies, unites with De Tocqueville. Against that exacting -centralization, absorbing everything, of which Paris is the example, I -oppose the American system of self-government, which leaves the people -to themselves, subject only to the paramount conditions of national -life. But these conditions cannot be sacrificed. No local claim of -self-government can for a moment interfere with the supremacy of the -Nation, in the maintenance of Human Rights. - -According to the wisdom of Plutarch, we must shun those pestilent -persons who would “carry trifles to the highest magistrate,” and, in -the same spirit, reject that pestilent supervisorship which asserts -a regulating power over local affairs, and thus becomes a giant -intermeddler. Let these be decided at home, in the States, counties, -and towns to which they belong. Such is the genius of our institutions. -This is the precious principle of self-government, which is at once -educator and agency. In the former character, it is an omnipresent -schoolmaster; in the latter, it is a suit of chain-armor, which, from -flexibility, is adapted to the body of the nation, so that the limbs -are free. Each locality has its own way in matters peculiar to itself. -But the rights of all must be placed under the protection of all; nor -can there be any difference in different parts of the country. Here the -rule must be uniform, and it must be sustained by the central power -radiating to every part of the various empire. This is according to the -divine Cosmos, which in all its spaces is pervaded by one universal -law. It is the rule of Almighty Beneficence, which, while leaving -human beings to the activities of daily life and the consciousness -of free-will, subjects all to the same commanding principles. Such -centralization is the highest civilization, for it approaches the -nearest to the heavenly example. Call it imperialism, if you please: it -is simply the imperialism of the Declaration of Independence, with all -its promises fulfilled. It is rendering unto Cæsar the things that are -Cæsar’s. Already by central power Slavery has been abolished. Already -by central power all have been assured in the equality of _civil_ -rights. - - “Two truths are told, - As happy prologues to the swelling act - Of the imperial theme.” - -It remains now that by central power all should be assured in the -equality of _political_ rights. This does not involve necessarily -what is sometimes called the “regulation” of the suffrage by the -National Government, although this would be best. It simply requires -the abolition of any discrimination among citizens, inconsistent with -Equal Rights. If not by Act of Congress, let it be by a new Amendment -of the Constitution; but it must be at once. Until this is done, we -leave undone what ought to be done, and, in pitiable failure to perform -a national duty, justify the saying that “there is no health in us.” -The preposterous pretension, that color, whether of the hair or of the -skin, or that any other unchangeable circumstance of natural condition -may be made the “qualification” of a voter, cannot be tolerated. It is -shocking to the moral sense, and degrading to the understanding. - -As in the Nation there can be but one sovereignty, so there can be -but one citizenship. The unity of sovereignty finds its counterpart -and complement in the unity of citizenship, and the two together are -the tokens of a united people. Thus are the essential conditions -of national life all resolved into three,--_one sovereignty, one -citizenship, one people_. - - * * * * * - -I conclude as I began. The late Rebellion against the nation was in the -name of State Rights; therefore State Rights in their denationalizing -pretensions must be overthrown. It proceeded from hostility to the -sacred principles of the Declaration of Independence; therefore must -these sacred principles be vindicated in spirit and in letter, so that -hereafter they shall be a supreme law, coëqual with the Constitution, -in whose illumination the Constitution must be read, and they shall -supply the final definition of a Republic for guidance at home and for -example to mankind. - -In this great change we follow Nature and obey her mandate. By -irresistible law, water everywhere seeks its level, and finds it; and -so, by law as irresistible, man seeks the level of every other man -in rights, and will find it. Human passions and human institutions -are unavailing to arrest it, as Nature is stronger than man, and the -Creator is mightier than the creature. The recognition of this law -is essential to the national cause; for so you will work with Nature -rather than against it, and at the same time in harmony with the -Declaration of Independence. Here I borrow a word from Locke, who, in -his Essay “Of the Conduct of the Understanding,” says, that, in dealing -with propositions, we must always examine upon what they “bottom.”[78] -Now, in dealing with the Rebellion, we find, that, though in the name -of State Rights, it “bottomed” on opposition to National Law and open -denial of the self-evident truths declared by our fathers, especially -of that central truth which Abraham Lincoln, at Gettysburg, in the -most touching speech of all history, thus announces: “Four-score and -seven years ago, our fathers brought forth upon this continent a new -Nation, conceived in Liberty, and dedicated to the proposition that -_all men are created Equal_.”[79] Slavery was “bottomed” on the direct -opposite; and so was the Rebellion, from beginning to end. Therefore -we must encounter this denial. We do not extinguish Slavery, we do -not trample out the Rebellion, until the vital truth declared by our -fathers is established, and Nature in her law is obeyed. To complete -the good work, this is necessary. Liberty is won: Equality must be won -also. In England there is Liberty without Equality; in France, Equality -without Liberty. The two together must be ours. This final victory -will be the greatest of the war; it will be the consummation of all -other victories. Here must we plant the national standard. To this -championship I summon you. Go forth, victors in so many fields, and -gather now the highest palm of all. The victory of ideas is grander far -than any victory of blood. What battle ever did so much for humanity -as the Sermon on Mars Hill? What battle ever did so much as the -Declaration of Independence? But Sermon and Declaration are one, and it -is your glorious part to assure the National Unity on this adamantine -base. - -All hail to the Republic, redeemed and regenerated, One and -Indivisible! Nullification and Secession are already, like the extinct -monsters of a former geological period, to be seen only in the museum -of History. With their extinction must disappear the captious, -litigious, and disturbing spirit engendered by State pretensions. The -whole face of the country will be transformed. There will be concord -for discord, smiles for frowns. There will be a new consciousness -of national life, with a corresponding glow. The soul will dilate -with the assured unity of the Republic, and all will feel the glory -of its citizenship. Since that of Rome, nothing so commanding. -Local jealousies and geographical distinctions will be lost in the -attractions of a common country. Then, indeed, there will be no North, -no South, no East, no West; but there will be One Nation. No single -point of the compass, but the whole horizon, will receive our regard. -Not the Southern Cross flaming with beauty, not even the North Star, -long time guide of the mariner and refuge to the flying bondman, but -the whole star-spread firmament, will be our worship and delight. - -As the Nation stands confessed in undivided sovereignty, the States -will not cease their appropriate functions. Interlocked, interlaced, -and harmonized, they will be congenial parts of the mighty whole, with -Liberty and Equality the recognized birthright of all, and no local -pretension to interfere against the universal law. There will be a -sphere alike for the States and Nation. Local self-government, which -is the pride of our institutions, will be reconciled with the national -supremacy in maintenance of human rights, and the two together will -constitute the elemental principles of the Republic. The States will -exercise a minute jurisdiction required for the convenience of all; the -Nation will exercise that other paramount jurisdiction required for -the protection of all. The reconciliation--God bless the word!--thus -begun will embrace the people, who, forgetting past differences, will -feel more than ever that they are One, and it will invigorate the still -growing Republic, whose original root was little more than an acorn, so -that it will find new strength to resist the shock of tempest or time, -while it overarches the continent with its generous shade. Such, at -least, is the aspiration in which all may unite. - - “Firm like the oak may our blest nation rise, - No less distinguished for its strength than size; - The unequal branches emulous unite - To shield and grace the trunk’s majestic height; - Through long succeeding years and centuries live, - No vigor losing from the aid they give!”[80] - - - - -CONSTANT DISTRUST OF THE PRESIDENT. - -REMARKS IN THE SENATE, ON THE FINAL ADJOURNMENT, NOVEMBER 26, 1867. - - - Thursday, November 21st, Congress reassembled, pursuant to the - resolution adopted July 20th. According to existing law, the - regular session would commence on the first Monday of December. - - November 26th, Mr. Grimes, of Iowa, moved the adjournment - of the two Houses on Monday, December 2d, at half past - eleven o’clock, A. M. Mr. Sumner suggested “twelve o’clock,” - remarking,-- - -I question whether we should leave even the break of half an hour -between the two sessions. The point is just this: Will you leave to -the President one half-hour within which he may take advantage of the -absence of Congress, and issue commissions which would perhaps run--I -do not decide the point now, but which, I say, might run to the last -day of the next session?--that may be midsummer or autumn. I take it -that an appointment during that interim of half an hour might possibly -be valid to the last day of the next session of Congress. - - MR. EDMUNDS [of Vermont]. But the law takes no notice of parts - of a day. - - MR. SUMNER. That is a technicality. Why open the question? - - Mr. Grimes, following the suggestion, altered his motion to - “twelve o’clock.” A debate ensued, in which Mr. Sherman, of - Ohio, Mr. Fessenden, of Maine, and Mr. Trumbull, of Illinois, - took part. Mr. Sumner followed. - -I hope that what we do will be for the welfare of the country, and with -no reference to mere rumors or reports. There I agree with my friend; -but then I do not agree with him, when he says, Give the President -another chance. We have been giving him chances, and we cannot act now -without taking into consideration his character and position, which -have become matters of history. I would speak with proper delicacy, -with proper reserve, but I must speak under the responsibility of -a Senator. A large portion of our country believe the President a -wicked man, of evil thoughts and unpatriotic purposes, in spirit and -conduct the successor of Jefferson Davis, through whom the Rebellion is -revived. Such are the sentiments of a large portion of our people. - - MR. DIXON [of Connecticut]. I desire to ask the Senator if that - is the opinion of a majority of the American people, in his - judgment. - -MR. SUMNER. It is unquestionably the opinion of a large portion of -the people of the United States; whether a majority or not the future -may disclose. I will not anticipate any such judgment. I speak now -with reference to what is before us. The question is, whether we shall -give him another opportunity. I say, No. And here I act on no floating -rumor, to which the Senator from Illinois refers; I act with reference -to the character of the chief magistrate, displayed in his public -conduct. It seems to me that it will be something like rashness, if the -Senate concede to him another occasion to practise on the country in -carrying out his policy, as we know he has practised in times past. -We must stop the way. We should not give him a day; we should not give -him five minutes,--I am ready to say that,--not five minutes, for the -chance of illegitimate power. I will not allow him to exercise it, and -then take my chance hereafter of applying the corrective. - -And that brings me to the exact point as to whether the present session -should expire precisely when the coming session begins. I see no reason -why it should not. I see no reason why we should interpose the buffer -even of five minutes. Let one session come close upon the other, and -then we shall exclude every possibility of evil consequences. In -France, during the old monarchy, when the king died, the moment the -breath was out of his body the reign of his successor began, so that -the cry, “The king is dead,” was followed instantly by another cry, -“Long live the king!” Now I know not why, when this session expires, -we may not at the same time announce its expiration and announce a new -session. - - The resolution was agreed to, and Congress adjourned - accordingly. - - - - -THE FOURTEENTH AMENDMENT: WITHDRAWAL OF ASSENT BY A STATE. - -REMARKS IN THE SENATE, ON THE RESOLUTIONS OF THE LEGISLATURE OF OHIO -RESCINDING ITS FORMER RESOLUTION IN RATIFICATION OF THE FOURTEENTH -AMENDMENT, JANUARY 31, 1868. - - -The resolutions from the Legislature of Ohio are so important in -character, and so wholly without precedent, I believe, in our history, -that I think they justify remark even by a Senator who has not the -honor of any special association with that State. - -It seems to me very clear that the authors of these resolutions have -accomplished nothing except to exhibit their own blind prejudices. By -the Constitution of the United States, a State may give its assent to -a Constitutional Amendment. There is no provision for any withdrawal -of such assent, when once given. The assent of the State, once given, -is final. A State, I do not hesitate to say, can no more withdraw -such assent than it can withdraw from the Union; and on the latter -proposition I believe there is now a universal accord. - -But, happily, Sir, this extraordinary effort of an accidental -Legislature is absolutely impotent. The Amendment in question is -already a part of the Constitution of the United States, and in full -vigor, even without the assent of Ohio. By a report from the Secretary -of State it appears that there is official evidence of the assent of -the Legislatures of Connecticut, New Hampshire, Tennessee, New Jersey, -Oregon, Vermont, New York, Illinois, West Virginia, Kansas, Nevada, -Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania, -Michigan, Massachusetts, and Nebraska,--being twenty in all, without -Ohio. To these now we may add Iowa, which has given its assent very -recently, and also Maine, which has notoriously given its assent, -although I understand it has not been officially communicated to -the Department of State,--making, therefore, twenty-two States, -even without Ohio. Twenty-two States are more than three fourths of -the Loyal States, or, in other words, of those States that at this -moment have Legislatures. The full requirement of the Constitution is -therefore met. - -This Amendment was originally proposed by a vote of two thirds of -Congress, composed of the representatives of the Loyal States. It -has now been ratified by the Legislatures of three fourths of the -Loyal States, being the same States which originally proposed it -through their representatives in Congress. The States that are -competent to propose a Constitutional Amendment are competent to adopt -it. Both things have been done. The required majority in Congress -have proposed it; the required majority of States have adopted it. -Therefore, I say, this resolution of the Legislature of Ohio is _brutum -fulmen_,--impotent as words without force. It can have no practical -effect, except to disclose the character of its authors. As such it may -be dismissed to the limbo of things lost on earth. - - Mr. Johnson, of Maryland, followed with some remarks, to which - Mr. Sumner replied:-- - -MR. PRESIDENT,--I wish to remind the Senator from Maryland of the exact -words of the Constitution, which were not, it seems to me, in his -mind when he spoke. An Amendment, when proposed, “shall be valid to -all intents and purposes as part of this Constitution, when ratified -by the Legislatures of three fourths of the several States.” It does -not say, “when ratified by three fourths of the several States,” but -“by the ‘Legislatures’ of three fourths of the several States.” Now, -if there are States without Legislatures, they can have no voice in -the ratification. Apply this practically. Three fourths of the actual -Legislatures of this Union have ratified the proposed Amendment, and -I insist, on the text of the Constitution, and also on the reason -of the case, that such ratification is complete. But I am unwilling -that this argument should stand merely on my words. I introduce here -the authority of the best living text-writer on the jurisprudence -of our country, who has treated this very point in a manner which -leaves no opportunity for reply. I refer to the book of Mr. Bishop -on the Criminal Law, who, in one of his notes,[81] considers whether -the Amendment of the Constitution abolishing Slavery had been at the -time he wrote adopted in a constitutional manner. Of course the very -question which we are now discussing with reference to the Fourteenth -Amendment arises also on the Amendment prohibiting Slavery. They are -both in the same predicament. If the Fourteenth Amendment is not now -a part of the Constitution of the United States, then the Amendment -prohibiting Slavery is not a part of the Constitution of the United -States. They both stand on the same bottom; they were both proposed by -Congress in the same way,--that is, by a vote of two thirds of the -representatives of the Loyal States; and they have both been ratified -by the votes of three fourths of the States having Legislatures. I send -to the Chair the work of Mr. Bishop, and I ask the Secretary to be good -enough to read what I have marked. - - The Secretary read the note above cited. - - - - -LOYALTY IN THE SENATE: ADMISSION OF A SENATOR. - -REMARKS IN THE SENATE, ON THE RESOLUTION TO ADMIT PHILIP F. THOMAS AS -SENATOR FROM MARYLAND, FEBRUARY 13, 1868. - - - February 13th, the question of the admission of Hon. Philip F. - Thomas, Senator-elect from Maryland, charged with disloyalty, - coming up for consideration, on a resolution of Hon. Reverdy - Johnson, of that State, that said Thomas “be admitted to his - seat on his taking the oaths prescribed by the Constitution - and laws of the United States,” Mr. Sumner moved the following - substitute:-- - - “That Philip F. Thomas, Senator-elect from Maryland, cannot - be admitted to take the oaths of office required by the - Constitution and laws, inasmuch as he allowed his minor son - to leave the paternal house to serve as a Rebel soldier, - and gave him at the time one hundred dollars in money, all - of which was ‘aid,’ ‘countenance,’ or ‘encouragement’ to - the Rebellion, which he was forbidden to give; and further, - inasmuch as in forbearing to disclose and make known the - treason of his son to the President, or other proper - authorities, according to the requirement of the statute - in such cases, he was guilty of misprision of treason as - defined by existing law.” - - Mr. Sumner said:-- - -A great debate on the question how loyalty shall be secured in the -Rebel States is for the time silenced in order to consider how loyalty -shall be secured in this Chamber. Everywhere in the Rebel States -disloyal persons are struggling for power; and now at the door of the -Senate we witness a similar struggle. If disloyalty cannot be shut out -of this Chamber, how can we hope to overcome it elsewhere? - -More than once at other times I have discussed the question of -loyalty in the Senate. But this was anterior to the adoption of the -Fourteenth Constitutional Amendment. The case is plainer now than -then, inasmuch as there is now an explicit text requiring loyalty as a -“qualification.” Formerly we were left to something in the nature of -inference; now the requirement is plain as language can make it. - -By the new Amendment it is provided that “no person shall be a Senator -or Representative in Congress, … who, having previously taken an oath, -as a member of Congress, or as an officer of the United States, … to -support the Constitution of the United States, shall have engaged in -insurrection or rebellion against the same, or given aid or comfort to -the enemies thereof.” - -These words are precisely applicable to the present case. They lay down -a rule from which there is no appeal; and this rule is not merely in -the statutes, but in the Constitution. It is the plain declaration that -loyalty is a requirement in a Senator and Representative. If we do not -apply it to ourselves now, it is difficult to see with what consistency -we can apply it to others. Your course here will affect the meaning of -this Constitutional Amendment, if not its validity for the future. - -I do not stop to argue the question if that Amendment is now a part -of the Constitution; for I would not unnecessarily occupy your time, -nor direct attention from the case which you are to decide. For the -present I content myself with two remarks: first, the Amendment has -already been adopted by three fourths of the States that took part in -proposing it, and this is enough, for the spirit of the Constitution -is thus satisfied; and, secondly, it has already been adopted by “the -_Legislatures_ of three fourths of the several States” which have -Legislatures, thus complying with the letter of the Constitution. -Therefore, by the spirit of the Constitution, and also by its letter, -this Amendment is now a part of the Constitution, binding on all of -us. As such I invoke its application to this case. In face of this -positive, peremptory requirement, it is impossible to see how loyalty -can be other than a “qualification.” In denying it, you practically set -aside this Amendment. - -But, even without this Amendment, I cannot doubt that the original -text is sufficiently clear and explicit. It is nowhere said in the -Constitution that certain specified requirements, and none others, -shall be “qualifications” of Senators. This word “qualifications,” -which plays such a part in this case, occurs in another connection, -where it is provided that “each House shall be the judge of the -elections, returns, and _qualifications_ of its own members.” What -these “qualifications” may be is to be found elsewhere. Searching the -Constitution from beginning to end, we find three “qualifications,” -which come under the head of _form_, being (1.) age, (2.) citizenship, -and (3.) inhabitancy in the State. But behind and above these is -another “qualification,” which is of _substance_, in contradiction -to _form_ only. So supreme is this, that it is placed under the -safeguard of an oath. This is loyalty. It is easy to see how infinitely -more important is this than either of the others,--than age, than -citizenship, or than inhabitancy in the State. A Senator failing in -either of these would be incompetent by the letter of the Constitution; -but the Republic might not suffer from his presence. On the other -hand, a Senator failing in loyalty is a public enemy, whose presence in -this council-chamber would be a certain peril to the Republic. - -It is vain to say that loyalty is not declared to be a “qualification.” -I deny it. Loyalty is made a “qualification” in the Amendment to the -Constitution; and then again in the original text, when, in the most -solemn way possible, it is distinguished and guarded by an oath. -Men are familiarly said to “qualify,” when they take the oath of -office; and thus the language of common life furnishes an authentic -interpretation of the Constitution. - -But no man can be allowed to take the oath as Senator, when, on -the evidence before the Senate, he is not competent. If it appear -that he is not of sufficient age, or of the required citizenship or -inhabitancy, he cannot be allowed to go to that desk. Especially if it -appear that he fails in the all-important “qualification” of loyalty, -he cannot be allowed to go to that desk. A false oath, taken with our -knowledge, would compromise the Senate. We who consent will become -parties to the falsehood; we shall be parties in the offence. It is -futile to say that the oath is one of purgation only, and that it is -for him who takes it to determine on his conscience if he can take it. -The Senate cannot forget the evidence; nor can its responsibility in -the case be swallowed up in any process of individual purgation. On the -evidence we must judge, and act accordingly. The “open sesame” of this -Chamber must be something more than the oath of a suspected applicant. - -According to Lord Coke, “an infidel cannot be sworn” as a witness. This -was an early rule, which has since been softened in our courts. But, -under the Constitution of the United States and existing statutes, a -_political infidel_ cannot be sworn as a Senator. Whatever may be his -inclination or motive, he must not be allowed to approach your desk. -The country has a right to expect that all who enter here shall have -a sure and well-founded loyalty, above all question or suspicion. And -such, I insist, is the rule of the Constitution and of Congress. - -As if to place the question beyond all doubt, Congress by positive -enactment requires that every Senator, before admission to his seat, -shall swear that he has “voluntarily given no aid, countenance, -counsel, or encouragement to persons engaged in armed hostility” to the -United States.[82] Here is little more than an interpretation of the -Constitution. The conclusion is plain. No person who has voluntarily -given even “countenance” or “encouragement” to another engaged in the -Rebellion can be allowed to take that oath. - -After this statement of the rule, the question arises, if Philip F. -Thomas can be permitted to take the oath at your desk, or, in other -words, to “qualify” as a Senator of the United States. Is he competent? -This is a question of evidence. - -The ample discussion of the facts in this case, and their singular -plainness, supersede the necessity of all details. The atmosphere about -Mr. Thomas and his acts are harmonious. From the beginning we find him -enveloped in coldness and indifference while his country was in peril. -Observing him more closely, we are shocked by two acts of positive -disloyalty, one of which is the natural prelude of the other. The -first muttering of the Rebellion found him a member of the Cabinet of -Mr. Buchanan; but when this uncertain President proposed the succor of -our troops at Charleston, already menaced with war, Mr. Thomas withdrew -from the patriotic service. He resigned his seat, following the lead of -Cobb, Thompson, and Floyd. A man is known by the company he keeps. His -company at this time were traitors, and the act they united in doing -was essentially disloyal. As the Rebellion assumed the front of war, -they all abandoned their posts: some to join the Rebellion and mingle -with its armies; Mr. Thomas, more prudently, to watch the course of -events in Maryland, ready to lift his arm also, if his State pronounced -the word. This concerted desertion was in itself a conspiracy against -the Government; and in the case of Mr. Thomas, who was Secretary of -the Treasury, it was a blow at the national credit, which it was his -special duty to guard. It was an act of disloyalty to be blasted by -indignant history, even if your judgment fails now. And this was the -first stage in this record. - -Meanwhile the war rages. Armies are marshalled; battles ensue; -Washington itself is beleaguered; the Republic trembles with peril. -But Mr. Thomas continues in the seclusion of his home, enveloped -in the same disloyal atmosphere, and refusing always the oath of -allegiance. At last, in 1863, an only son arrives at the age of -eighteen. Though still a minor, he is already of the military age. -Naturally filled with the sentiments of his father’s fireside, he -seeks to maintain them by military service. He is like his father, but -with the ardor of youth instead of the caution of years. He avows -his purpose to enlist in the Rebel army, thus to levy war against his -country, and adhere to its enemies. All this was treason,--plain, -palpable, unquestionable, downright treason. Instead of detaining his -son,--instead of keeping him back,--instead of interposing a paternal -veto,--instead of laying hands gently upon him,--instead of denouncing -him to the magistrate,--all of which the father might have done,--he -deliberately lets him go, and then, to cap the climax of criminal -complicity, furnishes the means for his journey and his equipment. He -gives one hundred dollars. The father is not rich, and yet he gives -this considerable sum. Few soldiers started with such ample allowance. -Thus it stands: the father, who has already deserted his post in the -Cabinet, and has refused to take the oath of allegiance to his country, -contributes a soldier to the Rebellion, and that soldier is his only -son; to complete and assure the great contribution, he contributes a -sum of money also. If all this accumulated disloyalty, beginning in a -total renunciation of every patriotic duty, and finally consummated -by an act of flagrant, unblushing enormity, is not “aid and comfort” -or “countenance” or “encouragement” to the Rebellion, it is difficult -to say what can be. There must be new dictionaries for these familiar -words, and they must receive a definition down to this day unknown. -They must be treated as thread or gossamer, when they should be links -of iron. - -On an occasion like the present, where the moral guilt is so patent, -I hesitate to employ technical language. The simplest phrase is the -best. But the law supplies language of its own. Regarding the act of -Mr. Thomas in the mildest light, it was “misprision of treason,” -according to every definition of that crime which can be found in the -books. Lord Hale, whose authority, in stating the rules of Criminal -Law, is of the highest character, says, under this head: “Every man is -bound to use all possible lawful means to prevent a felony, as well -as to take the felon; and if he doth not, he is liable to a fine and -imprisonment.”[83] Lord Coke, another eminent authority, says: “If -any be present when a man is slain, and omit to apprehend the slayer, -it is a misprision.”[84] The same rule is, of course, applicable to -treason. Mr. Bishop, who in his remarkable work on the Criminal Law -has compressed the result of all the authorities, says: “Misprision of -felony is a criminal neglect, either to prevent a felony from being -committed by another, or to bring to justice a person known to be -guilty of felony. Misprision of treason is the same of treason.”[85] -Then again he says, citing Hawkins, Blackstone, East, and Russell, all -familiar names in our courts, each an oracle:-- - - “The doctrine of misprision, as now understood, may be stated - as follows: To make a man liable for a crime committed through - the physical volition of another, his own will must in some - degree concur in or contribute to the crime. _But when it is - treason or felony, and he stands by while it is done, without - using the means in his power to prevent it, though his will - concurs not in it,--or when he knows of its having been in - his absence committed, but neither makes disclosure of it to - the authorities nor does anything to bring the offender to - punishment_,--the law holds him guilty of a breach of the duty - due from every man to the community wherein he dwells and the - government which protects him.”[86] - -I adduce these authorities in order to show, that, by the Common Law, -as illustrated by some of its best names, Mr. Thomas is beyond all -question an offender. Clearly he did not use “the means in his power” -to prevent the treason of his son, nor did he “make disclosure of it to -the authorities,” according to the received rule of law. - -But the statutes of the United States leave us no room for doubt -or indulgence. According to the precise text, the present case is -anticipated and provided for. The Statute of Crimes, adopted in -1790, at the beginning of the National Government, after declaring -the punishment of treason, proceeds to declare the punishment of -“misprision of treason,” as follows:-- - - “That, if _any person or persons, having knowledge of the - commission of any of the treasons aforesaid, shall conceal and - not as soon as may be disclose and make known the same_ to - the President of the United States or some one of the Judges - thereof, or to the President or Governor of a particular State - or some one of the Judges or Justices thereof, _such person or - persons, on conviction, shall be adjudged guilty of misprision - of treason_, and shall be imprisoned not exceeding seven years, - and fined not exceeding one thousand dollars.”[87] - -Apply these plain words to the present case. Nobody can doubt that -Mr. Thomas had “knowledge” of the treason of his son, and, having -this knowledge, failed to “disclose and make known the same” to the -President of the United States or the other proper authorities. Abraham -Lincoln was at the time President. There is no pretence that the -father communicated the crime of the son to this patriot magistrate, -or to any other loyal officer by whom he could have been arrested. -Therefore, beyond all question, on the facts of the case, the father -is guilty under the statute, and liable to seven years of imprisonment -and a fine of one thousand dollars. And now, instead of seven years of -imprisonment and a fine of one thousand dollars, it is proposed to give -him six years of trust and honor as a Senator of the United States, -with an annual allowance of five thousand dollars. - -According to the old law, the indictment against Mr. Thomas would -allege, that, “not having the fear of God before his eyes, but being -moved and seduced by the instigation of the Devil,” he perpetrated his -crime. And now, with this crime unatoned for, he comes here to ask your -support and countenance. We are to forget all that he did, “moved and -seduced” by evil instigation, and welcome him to this Chamber, instead -of handing him over to judgment. - -It is treating this case with a levity which it is hard to pardon, -when Senators argue that the father was not under obligations to -exercise all the paternal power in restraint of his son, or at least -in denouncing him to the proper authorities. What is patriotism, what -is the sacred comprehensive charity of country, if a father can be -blameless after such a license to his son? The country was another -mother to this son, and he went away to strike this mother on the -bosom. There is a case in antiquity which illustrates the solemn duty -of the father at least to detain the son. I quote from Sallust. This -remarkable writer, in his history of the Catilinarian conspiracy, -tells us that there were many not enlisted in the conspiracy who went -out to join Catiline; that among these was Aulus Fulvius, the son of -a Senator; and the historian adds, without comment, that the father, -when his son was brought back, ordered him to be slain: “_Fuere tamen -extra conjurationem complures, qui ad Catilinam profecti sunt: in his -A. Fulvius, Senatoris filius; quem retractum ex itinere parens necari -jussit_.”[88] Humanity rejects the barbarous exercise of the paternal -power according to the Roman Law; but patriotism may find even in this -example a lesson of paternal duty. The American father should not have -slain his son, but he should have kept him from joining the enemies of -his country. This requirement of duty was none the less strong because -not enforced by death. I utter not only the rule of patriotism, but the -rule of law, when I say that it was positive and peremptory. I will not -admit that an American citizen can be blameless who dismisses a son -from the paternal roof with money in his purse, to make war upon his -country. All that the son did afterward, all that the son sought to -do, became the act of the father who sent him forth on his parricidal -errand. The father’s treason was continued and protracted in the -treason of the son. - -In making this contribution to the Rebellion, the act of the father -was enhanced by his eminent position. He had held a seat in the -Cabinet, binding him more than any common citizen to the most watchful -allegiance, and giving to what he did peculiar importance. A soldier -contributed to the Rebellion by such a person was a startling event. -It was aid and comfort, countenance and encouragement, of far-reaching -significance. It was a hostile act, directly injurious to his country, -and of evil example, the influence of which no man can measure. How -many others were weakened in loyalty by this parricidal act who can -tell? When the citizen who has enjoyed public trust and been a “pillar -of State” gives way, others about him must fall likewise. So great a -parricide must cause other parricides. - -And now this father, who gave a son to the Rebellion, comes into this -sanctuary of the Constitution, where loyalty is the first condition of -admission, and asks for a seat. _Immo in Senatum venit._ Is there not -hardihood in the application? Of course, he cannot be admitted without -your act having an influence proportioned to the importance of the -position. It will be felt everywhere throughout the country. Admit him, -and you will unloose the bonds of loyalty and give a new license to the -Rebellion in its protracted struggle. On the contrary, if you send him -away, you will furnish a warning to the disloyal, and teach a lesson of -patriotism which will thrill the hearts of good citizens now anxiously -watching for peace and reconciliation through the triumph of loyalty. - -I speak this positively, because on this case I see no doubt. The facts -are indisputable, and over all towers one supreme act of parricide, -for which there can be no excuse or apology. A soldier was contributed -to the enemies of his country. There is no question of motive. The -parricidal act was complete, and it explains itself. There is no -doubt that it was done. In the presence of such an act, so absolutely -criminal, there can be no room for inquiry as to the motive. All this I -put aside and look only at the transcendent fact, in which all pretence -of innocence is so entirely lost and absorbed that it cannot be seen. -As well seek to find a motive, if a son struck at the bosom of his -mother. The law supplies the motive, when it says, in its ancient -phrase, “moved and seduced by the instigation of the Devil.” - -Some there are who doubt the motive of the father, and claim for him -now the benefit of that doubt. Even if the motive of this criminal act -were in question, as I insist that it cannot be, then do I say, that, -in a case like this, when disloyalty is to be shut out of this Chamber, -I give the benefit of doubt to my country. - -There is another voice which sometimes reaches me. We are told, that, -if the applicant be disloyal, then we may expel him. For myself, I -prefer to take no such risk. Viewing the case as I do, I have no right -to take any such risk. Disloyalty must be met at the door, and not -allowed to enter in. The old verses, more than once repeated in our -public discussions, are applicable now,--never more so:-- - - “I hear a lion in the lobby roar: - Say, Mr. Speaker, shall we shut the door, - And keep him there? or shall we let him in, - To try if we can turn him out again?”[89] - - February 19th, after a debate of several days, Mr. Thomas was - declared “not entitled to take the oath of office, or to hold a - seat, as a Senator of the United States,”--Yeas 27, Nays 20. - - - - -INTERNATIONAL COPYRIGHT. - -LETTER TO A COMMITTEE IN NEW YORK, ON THIS SUBJECT, FEBRUARY 17, 1868. - - - From time to time International Copyright has occupied - attention, and Mr. Sumner has often in correspondence expressed - himself with regard to it. The following letter, in answer - to an inquiry, was published by a New York committee of the - following gentlemen: George P. Putnam, S. Irenæus Prime, Henry - Ivison, James Parton, Egbert Hasard. - - SENATE CHAMBER, February 17, 1868. - - MY DEAR SIR,--Pardon my delay. There are two ways of dealing - with the question of International Copyright,--one by the treaty - power, and the other by reciprocal legislation. - - I have always thought that the former was the easier, but at the - present moment the House of Representatives is not disposed to - concede much to the treaty power. - - Mr. Everett, while Secretary of State, negotiated a treaty - on this subject with Great Britain, which was submitted to - the Senate, reported by the Committee on Foreign Relations, - considered in the Senate, and finally left on the table, without - any definitive vote. - - I shall send you a copy of this treaty, which, I believe, has - never seen the light. - - I have always been in favor of an International Copyright, as - justice to authors and a new stage in the unity of nations. - Perhaps the condition of public affairs at this time, the - preoccupation of the public mind, the imminence of the - Presidential election, and also the alienation from England, may - present temporary obstacles. But I am sanguine that at last the - victory will be won. If authors should have a copyright anywhere, - they should have it everywhere within the limits of civilization. - - Accept my best wishes, and believe me, dear Sir, - - Faithfully yours, - - CHARLES SUMNER. - - JAMES PARTON, ESQ., Secretary of the Committee. - - - - -THE IMPEACHMENT OF THE PRESIDENT. - -THE RIGHT OF THE PRESIDENT OF THE SENATE PRO TEM. TO VOTE. - -REMARKS IN THE SENATE, ON THE QUESTION OF THE COMPETENCY OF MR. WADE, -SENATOR FROM OHIO, THEN PRESIDENT OF THE SENATE PRO TEM., TO VOTE ON -THE IMPEACHMENT OF PRESIDENT JOHNSON, MARCH 5, 1868. - - -MR. PRESIDENT,--I shall not attempt to follow learned Senators in the -question whether this is a Senate or a Court. That question, to my -mind, is simply one of language, and not of substance. Our powers at -this moment are under the Constitution of the United States; nor can we -add to them a tittle by calling ourselves a Court or calling ourselves -a Senate. There they are in the Constitution. Search its text and you -will find them. The Constitution has not given us a name, but it has -given us powers; and those we are now to exercise. The Senate has the -sole power to try impeachments. No matter for the name, Sir. I hope -that I do not use an illustration too familiar, when I remind you that -a rose under any other name has all those qualities which make it the -first of flowers. - -I should not at this time have entered into this discussion, if I had -not listened to objections on the other side which seem to me founded, -I will not say in error, for that would be bold when we are discussing -a question of so much novelty, but I will say founded in a reading of -history which I have not been able to verify. Senator after Senator -on the other side, all distinguished by ability and learning, have -informed us that the Constitution intended to prevent a person who -might become President from presiding at the trial of the President. I -would ask learned Senators who have announced this proposition, where -they find it in the Constitution. The Constitution says:-- - - “When the President of the United States is tried, the Chief - Justice shall preside.” - -This is all; and yet on this simple text the superstructure of Senators -has been reared. - -The Constitution does not proceed to say why the Chief Justice shall -preside; not at all; nothing of the kind. Senators supply the reason, -and then undertake to apply it to the actual President of the Senate. -Where, Sir, do they find the reason? They cannot find the reason which -they now assign in any of the contemporary authorities illustrating -the Constitution; they cannot find it in the debates of the National -Convention reported by Madison, or in any of the debates in the States -at that time; nor can they find it in the “Federalist.” When does that -reason first come on the scene? Others may be more fortunate than I; -but I have not been able to find it earlier than 1825, nearly forty -years after the formation of the Constitution, in the Commentaries of -William Rawle. We all know the character of this work,--one of great -respectability, and which most of us in our early days have read and -studied. How does he speak of it? As follows:-- - - “The Vice-President, being the President of the Senate, - presides on the trial, except when the President of the - United States is tried. As the Vice-President succeeds to the - functions and emoluments of the President of the United States, - whenever a vacancy happens in the latter office, it would be - inconsistent with the implied purity of a judge that a person - under a probable bias of such a nature should participate in - the trial, and it would follow that he should wholly retire - from the court.”[90] - -Those are the words of a commentator on the Constitution. They next -appear eight years later, in the Commentaries of Mr. Justice Story. -After citing the provision, “When the President of the United States -is tried, the Chief Justice shall preside,” the learned commentator -proceeds:-- - - “The reason of this clause has been already adverted to. It - was to preclude the Vice-President, who might be supposed - to have a natural desire to succeed to the office, from - being instrumental in procuring the conviction of the Chief - Magistrate.”[91] - -And he cites in his note “Rawle on the Constitution, ch. 22, p. -216,”[92] being the very passage that I have just read. Here is the -first appearance of this reason, which is now made to play so important -a part, being treated even as a text of the Constitution itself. At -least I have not been able to meet it at an earlier day. - -If you repair to the contemporary authorities, including the original -debates, you will find no such reason assigned,--nothing like it,--not -even any suggestion of it. On the contrary, you will find Mr. Madison, -in the Virginia Convention, making a statement which explains in the -most satisfactory manner the requirement of the Constitution.[93] No -better authority could be cited. Any reason supplied by him anterior to -the adoption of the Constitution must be of more weight than any _ex -post facto_ imagination or invention of learned commentators. - -If we trust to the lights of history, the reason for the introduction -of this clause in the Constitution was because the framers of the -Constitution contemplated the possibility of the suspension of -the President from the exercise of his powers, in which event the -Vice-President could not be in your chair, Sir. If the President were -suspended, the Vice-President would be in his place. The reports -will verify what I say. If you refer to the debates of the National -Convention, under the date of Friday, September 14, 1787, you will find -the following entry, which I read now by way of introduction to what -follows at a later date, on the authority of Mr. Madison himself. - - “Mr. Rutledge and Mr. Gouverneur Morris moved ‘that persons - impeached be suspended from their offices until they be tried - and acquitted.’ - - “MR. MADISON. The President is made too dependent already - on the Legislature by the power of one branch to try him in - consequence of an impeachment by the other. This intermediate - suspension will put him in the power of one branch only. They - can at any moment, in order to make way for the functions of - another who will be more favorable to their views, vote a - temporary removal of the existing magistrate. - - “Mr. King concurred in the opposition to the amendment.”[94] - -The proposition was rejected by the decisive vote of eight States -in the negative to three in the affirmative. We all see, in reading -it now, that it was rejected on good grounds. It would obviously be -improper to confer upon the other branch of Congress the power, by its -own vote, to bring about a suspension of the Chief Magistrate. But -it did not follow, because the Convention rejected the proposition -that a suspension could take place on a simple vote of the House -of Representatives, that therefore the President could not be -suspended. When the Senate was declared to have the sole power to -try impeachments, it was by necessary implication invested with the -power, incident to every court, and known historically to belong to -the English court of impeachment, from which ours was borrowed, of -suspending the party accused. All this was apparent at the time, if -possible, more clearly than now. It was so clear, that it furnishes an -all-sufficient reason for the provision that the Chief Justice should -preside on the trial of the President, without resorting to the later -reason which has been put forward in this debate. - -But we are not driven to speculate on this question. While the -Constitution was under discussion in the Virginia Convention, George -Mason objected to some of the powers conferred upon the President, -especially the pardoning power. This was on June 18, 1788, and will be -found under that date in the reports of the Virginia Convention. This -earnest opponent of the Constitution said that the President might -“pardon crimes which were advised by himself,” and thus further his own -ambitious schemes. This brought forward Mr. Madison, who had sat, as -we all know, throughout the debates of the National Convention, and -had recorded its proceedings, and who, of all persons, was the most -competent to testify at that time as to the intention of the framers. -What said this eminent authority? I give you his words:-- - - “There is one security in this case to which gentlemen may not - have adverted. If the President be connected in any suspicious - manner with any person, and there be grounds to believe he will - shelter him, the House of Representatives can impeach him; - they”-- - -evidently referring to the Senate, or the Senate in connection with the -House-- - - “can remove him, if found guilty; _they can suspend - him, when suspected_, and the power will devolve on the - Vice-President.”[95] - -Mark well these words,--“they can suspend him, when suspected.” If only -suspected, the President can be suspended. What next? “And his power -will devolve on the Vice-President.” In which event, of course, the -Vice-President would be occupied elsewhere than in this Chamber. - -Those were the words of James Madison, spoken in debate in the Virginia -Convention. Taken in connection with the earlier passage in the -National Convention, they seem to leave little doubt with regard to the -intention of the framers of the Constitution. They were unwilling to -give to the other House alone the power of suspension; but they saw, -that, when they authorized the Senate to try impeachments, they gave to -it the power of suspension, if it should choose to exercise it; and the -suspension of the President necessarily involved the withdrawal of the -Vice-President from this Chamber, and the duty of supplying his place. - -I submit, then, on the contemporary testimony, that the special reason -why the Chief Justice is called to preside, when the President is on -trial, is less what learned Senators have assigned than because the -Vice-President under certain circumstances would not be able to be -present. It was to provide for such a contingency, being nothing less -than his necessary absence in the discharge of the high duties of Chief -Magistrate, that a substitute was necessary, and he was found in the -Chief Justice. All this was reasonable. It would have been unreasonable -not to make such a provision. - -But this is not all. There is an incident, immediately after the -adoption of the Constitution, which is in harmony with this authentic -history. The House of Representatives at an early day acted on the -interpretation of the Constitution given by Mr. Madison. The first -impeachment, as we all know, was of William Blount, a Senator, and in -impeaching him the House of Representatives demanded that he should “be -sequestered from his seat in the Senate.” This was in 1797. The Senate -did not comply with this demand; but the demand nevertheless exists in -the history of your Government, and it illustrates the interpretation -which was given at that time to the powers of the Senate. The language -employed, that the person impeached should be “sequestered,” is the -traditional language of the British Constitution, constantly used, and -familiar to our fathers. In employing it, the House of Representatives -gave their early testimony that the Senate could suspend from his -functions any person impeached before them; and thus the House of -Representatives unite with Madison in supplying a sufficient reason -for the provision that on the trial of the President the Chief Justice -shall preside. - -In abandoning the reason which I have thus traced to contemporary -authority, you launch upon an uncertain sea. You may think the reason -assigned by the commentators to be satisfactory. It may please your -taste; but it cannot be accepted as an authentic statement. If the -original propositions were before me, I should listen to any such -suggestion with the greatest respect. I do not mean to say now, that, -as a general rule, it has not much in its favor; but I insist, that, -so far as we are informed, the reason of the commentators was an -afterthought, and that there was another reason which sufficiently -explains the rule now under consideration. - -I respectfully submit, Sir, that you cannot proceed in the -interpretation of this text upon the theory adopted by the learned -Senators over the way. You must take the text as it is. You cannot go -behind it; you cannot extend it. Here it is: “When the President of -the United States is tried, the Chief Justice shall preside.” That -is the whole, Sir. “The Chief Justice shall preside.” No reason is -assigned. Can you assign a reason? Can you supply a reason? Especially -can you supply one which is not sustained by the authentic contemporary -history of the Constitution, and particularly when you have authentic -contemporary history which supplies another reason? Unless I am much -mistaken, this disposes of the objection, proceeding from so many -Senators, that the Senator from Ohio cannot take the oath because he -may possibly succeed to the President now impeached at your bar. -He may vote or not, as he pleases; and there is no authority in the -Constitution, or any of its contemporary expounders, to criticize him. - - * * * * * - -This is all, Sir, I have to say at this time on this head. There were -other remarks made by Senators over the way to which I might reply. -There was one that fell from my learned friend, the Senator from -Maryland, [Mr. JOHNSON,] in which he alluded to myself. He represented -me as having cited many authorities from the House of Lords, tending -to show, in the case of Mr. Stockton, that this person at the time was -not entitled to vote on the question of his seat. The Senator does -not remember that debate, I think, as well as I do. The point which I -tried to present to the Senate, and which, I believe, was affirmed by -a vote of the body, was simply this: that a man cannot sit as a judge -in his own case. That was all,--at least so far as I recollect; and I -submitted that Mr. Stockton at that time was a judge undertaking to -sit in his own case.[96] Pray, Sir, what is the pertinency of this -citation? Is it applicable at all to the Senator from Ohio? Is his case -under consideration? Is he impeached at the bar of the Senate? Is he in -any way called in question? Is he to answer for himself? Not at all. -How, then, does the principle of law, that no man shall sit as a judge -in his own case, apply to him? How does the action of the Senate in the -case of Mr. Stockton apply to him? Not at all. The two cases are as -wide as the poles asunder. One has nothing to do with the other. - -Something has been said of the “interest” of the Senator from Ohio -on the present occasion. “Interest”! This is the word used. We are -reminded that in a certain event the Senator may become President, -and that on this account he is under peculiar temptations, which may -swerve him from justice. The Senator from Maryland went so far as to -remind us of the large salary to which he might succeed,--not less -than twenty-five thousand dollars a year,--and thus added a pecuniary -temptation to the other disturbing forces. Is not all this very -technical? Does it not forget the character of this great proceeding? -Sir, we are a Senate, and not a Court of _Nisi Prius_. This is not -a case of assault and battery, but a trial involving the destinies -of this Republic. I doubt if the question of “interest” is properly -raised. I speak with all respect for others, but I submit that it is -inapplicable. It does not belong here. Every Senator has his vote, to -be given on his conscience. If there be any “interest” to sway him, -it must be that of justice, and the safety of the country. Against -these all else is nothing. The Senator from Ohio, whose vote is now -in question, can see nothing but those transcendent interests by the -side of which office, power, and money are of small account. Put in -one scale these interests, so dear to the heart of the patriot, and in -the other all the personal temptations which have been imagined, and I -cannot doubt, that, if the Senator from Ohio holds these scales, the -latter will kick the beam. - - - - -THE CHIEF JUSTICE, PRESIDING IN THE SENATE, CANNOT RULE OR VOTE. - -OPINION IN THE CASE OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF -THE UNITED STATES, MARCH 31, 1868. - - - In the course of this trial there was an important claim of - power by the Chief Justice, as presiding officer of the Senate, - on which at the time Mr. Sumner expressed his opinion to the - Senate, when it withdrew for consultation. As this claim was - calculated in certain contingencies to affect the course of - proceedings, possibly the final judgment, and as it might - hereafter be drawn into a precedent, Mr. Sumner was unwilling - to lose this opportunity of recording his reasons against it. - -In determining the relations of the Chief Justice to the trial of the -President, we must look, first, to the National Constitution; for it -is solely by virtue of the National Constitution that this eminent -magistrate is transported from his own natural field to another, where -he is for the time an exotic. The Chief Justice in his own court is at -home; but it is equally clear, that, when he comes into the Senate, he -is a stranger. Though justly received with welcome and honor, he cannot -expect membership, or anything beyond the powers derived directly from -the National Constitution, by virtue of which he temporarily occupies -the Chair. - -Repairing to our authoritative text, we find the only applicable -words:-- - - “The Senate shall have the sole power to try all impeachments.… - When the President of the United States is tried, the Chief - Justice shall _preside_: and no person shall be convicted - without the concurrence of two thirds of the members present.” - -This is all. The Chief Justice shall _preside_, but subject to two -limitations specifically declared. First, the trial is to be by the -Senate _solely_, and nobody else,--thus carefully excluding the -presiding officer from all participation, except so far as is implied -in the power to preside; and, secondly, judgment of conviction can be -only by a vote of “two thirds of _the members present_,”--thus again -excluding the presiding officer, unless it is assumed that he is a -member of the Senate. - -On the face of this text it is difficult to find ambiguity. Nobody -questions that the Chief Justice must preside. Can anybody question -that the trial must be by the Senate solely, and nobody else? To change -this requirement is to fly in the face of the National Constitution. -Can anybody question that the judgment of conviction must be by votes -of “members present,” and nobody else? Now, since the Chief Justice -is not a “member” of the Senate, it is plain that he is positively -excluded from vote on the final question. It only remains that he -should “preside.” And here the question recurs as to the meaning of -this familiar term. - -The person who presides is simply, according to the language of our -Rules, “presiding officer,” and this designation is the equivalent or -synonym of speaker, and also of prolocutor, each of which signifies -somebody who speaks for the house. It is not implied that he votes -with the house, much less that he decides for the house, but only -that he is the voice of the house,--its speaker. What the house has -to say it says through him; but, except as organ of the house, he is -silent, unless also a member, when to his powers as presiding officer -he superadds the powers of a member also. From this brief statement it -appears at once how limited his functions must be. - -Here I might stop; but, since this question has assumed unexpected -importance, I am induced to go further. It is easy to show that the -language of the National Constitution, if seen in the light of English -parliamentary history, must have an interpretation identical with its -natural import. - -Nothing is clearer than this. If language employed in the National -Constitution had already, at the time of its formation, received a -definite meaning, it must be interpreted accordingly. Thus, when the -Constitution secures “trial by jury,” it secures that institution as -defined by antecedent English law. So, also, when it declares that the -judicial power shall extend to “all cases in law and equity” arising -under the National Constitution, it recognizes the distinction between -law and equity peculiar to English law. Courts of Common Law and Courts -of Equity are all implied in this language; and since there is no -further definition of their powers, we must ascertain them in England. -Cushing, in determining the rules of proceeding in our American -Legislatures, says:-- - - “Such was the practice of the two Houses of the British - Parliament when our ancestors emigrated; … and such has - continued to be, and now is, the practice in that body.”[97] - -This resource has been most persuasively presented by Mr. Wirt, in -his remarkable argument on the impeachment of Judge Peck, where he -vindicates and expounds the true rule of interpretation. - -According to this eminent authority, what he calls “the English -archetypes” were the models for the framers of the National -Constitution. The courts were fashioned after these “archetypes.” They -were instituted according to “the English _originals_, to which they -were manifestly referred by the Constitution itself.”[98] Here again I -quote the words of Mr. Wirt. - -All this is precisely applicable to that part of the National -Constitution under consideration. In essential features it was borrowed -from England. There is its original, its model, its archetype. -Therefore to England we go. - -Not only to England must we go, but also to Parliamentary Law, as -recognized in England at the adoption of the National Constitution. -The powers of a presiding officer, where not specifically declared, -must be found in Parliamentary Law. The very term _preside_ is -parliamentary. It belongs to the technicalities of this branch of law, -as much as _indict_ belongs to the technicalities of the Common Law. In -determining the signification of this term, it will be of little avail -to show some local usage, or, perhaps, some decision of a court. The -usage or decision of a Parliament must be shown. Against this all vague -speculation or divination of reason is futile. I will not encumber this -discussion by superfluous authorities. Insisting that this question -must be determined by Parliamentary Law, I content myself with adducing -the often cited words of Lord Coke:-- - - “And as every court of justice hath laws and customs for its - direction, some by the Common Law, some by the Civil and Canon - Law, some by peculiar laws and customs, etc., so the High - Court of Parliament _suis propriis legibus et consuetudinibus - subsistit_. It is _lex et consuetudo Parliamenti_, that all - weighty matters in any Parliament, moved concerning the peers - of the realm, or commons in Parliament assembled, _ought to - be determined and adjudged and discussed by the course of the - Parliament_, and not by the Civil Law, nor yet by the common - laws of this realm used in more inferior courts.”[99] - -Here is the true rule. To “the course of the Parliament” we must -resort. In “the course of the Parliament” we must find all the powers -of a presiding officer, and all that is implied in the authority to -preside. “The Chief Justice shall preside.” Such is the Constitution. -Nothing is specified with regard to his powers; nothing is said. What -was intended is left to inference from the language employed, which -must be interpreted according to “the course of the Parliament,” -precisely as what was intended by trial by jury is ascertained from the -Common Law. In the latter case we go to the Common Law; in the former -case we go to “the course of the Parliament.” You may as well turn away -from the Common Law in the one as from “the course of the Parliament” -in the other. In determining “the course of the Parliament” we resort -to the summary of text-writers, and, better still, to the authentic -instances of history. - -Something has been said in this discussion with regard to the example -of Lord Erskine, who presided at the impeachment of Lord Melville. This -was in 1806, during the short-lived ministry of Fox, when Erskine was -Chancellor. It is by misapprehension that this instance is supposed -to sustain the present assumption. When seen in its true light, it is -found in harmony with the general rule. Erskine had at the time two -characters. He was Lord Chancellor, and in this capacity presiding -officer of the House of Lords, without the right to rule or vote, or -even to speak. Besides being Chancellor, he was also a member of the -House of Lords, with all the rights of other members. As we advance -in this inquiry, it will be seen that again and again it has been -practically decided, that, whatever the powers of a presiding officer -who is actually a member, a presiding officer who is not a member -cannot rule or vote, or even speak. In this statement I anticipate -the argument. I do it at this stage only to put aside the suggestion -founded on the instance of Lord Chancellor Erskine. - - * * * * * - -I begin with the most familiar authority,--I mean the eminent writer -and judge, Sir William Blackstone. In his Commentaries, where is found, -in elegant form, the complete body of English law, you have this whole -matter stated in a few suggestive words:-- - - “The Speaker of the House of Lords, _if a Lord of Parliament_, - may give his opinion or argue any question in the House.”[100] - -If not a Lord of Parliament, he could not give his opinion or argue any -question. This is in accordance with all the authorities and unbroken -usage; but it has peculiar value at this moment, because it is the text -of Blackstone. This work was the guide-book of our fathers. It first -appeared in 1765-69, the very period when the controversy with the -mother country was fervid; and it is an unquestionable fact of history -that it was read in the Colonies with peculiar interest. Burke, in one -of his masterly orations, portraying the character of our fathers, -says: “I hear that they have sold nearly as many of Blackstone’s -Commentaries in America as in England.”[101] Nothing is clearer than -that they knew it well. - -The framers of the National Constitution had it before them constantly. -It was their most familiar work. It was to them as Bowditch’s Navigator -is to the mariner in our day. They looked to it for guidance on the -sea they were traversing. When they undertook to provide that the -Chief Justice, who was not a member of the Senate, should preside at -the impeachment of the President, they knew well that he could have no -power to “give his opinion or argue any question in the House,” for -Blackstone had instructed them explicitly on this head. They knew that -he was simply a presiding officer, according to the immemorial usage of -the upper House in England, with such powers as belong to a presiding -officer who is not a member of the House, and none other. - -The powers of the presiding officer of the House of Lords are -illustrated by authority and precedents, all in harmony with the -statement of Blackstone. Ordinarily the Keeper of the Great Seal is the -presiding officer; but, unless a member of the body, he can do little -more than put the question. Any other person, as a Chief Justice, may -be delegated by royal commission. According to the rules of the House, -even if a peer, he cannot speak without quitting the woolsack, which is -the Chair, and moving “to his own place as a peer.”[102] The right of -speech belongs to him as a member, but he cannot exercise it without -leaving his place as presiding officer. So is he circumscribed. - -A late writer on Parliamentary Law, whose work is a satisfactory guide, -thus sententiously sums up the law and usage:-- - - “The position of the Speaker of the House of Lords is somewhat - anomalous; for, though he is the president of a deliberative - assembly, he is invested with no more authority than any other - member; and if not himself a member, his office is limited to - the putting of questions and other formal proceedings.”[103] - -This statement is in obvious harmony with that of Blackstone; so that -there is no difference between the writer who is our guide to-day and -the learned commentator who was the guide of our fathers. - -Mr. May goes still further, and lets us know that it is only as a -member of the House that the presiding officer can address it, even on -points of order:-- - - “Upon points of order, the Speaker, if a peer, may address - the House; but, as his opinion is liable to be questioned, - like that of any other peer, he does not often exercise his - right.”[104] - -Thus, even if a peer, even if a member of the upper House, the -presiding officer cannot rule a point of order, nor address the -House upon it, except as any other member; and what he says is open -to question, like the utterance of any other member. Such is the -conclusion of the most approved English authority. - -American writers on Parliamentary Law concur with English. Cushing, -who has done so much to illustrate the whole subject, says of the -presiding officer of the Lords, that he “is invested with no more -authority for the preservation of order than any other member; and if -not himself a member, his office is limited to the putting of questions -and other formal proceedings; … if he is a peer, he may address the -House and participate in the debates as a member.” He then says again: -“If a peer, he votes with the other members; if not, he does not vote -at all.” And he adds: “There is no casting vote in the Lords.”[105] -This statement was made long after the adoption of the National -Constitution, and anterior to the present controversy. - -There are occasions when the Lords have a presiding officer called -a Lord High Steward. This is on the trial of a peer, whether upon -impeachment or indictment. Here the same rule is stated by Edmund -Burke, in his masterly Report to the House of Commons on the -impeachment of Warren Hastings:-- - - “Every peer present at the trial (and every temporal peer - hath a right to be present in every part of the proceeding) - voteth upon every question of law and fact, and the question - is carried by the major vote,--the High Steward himself voting - merely as a peer and member of that court, in common with the - rest of the peers, and in no other right.”[106] - -In another place, the Report, quoting the Commons’ Journal, says:-- - - “That the Lord High Steward was but as a Speaker, or - _Chairman_, for the more orderly proceeding at the trials.”[107] - -And then again:-- - - “The appointment of him doth not alter the nature of the - court, which still remaineth the Court of the Peers in - Parliament.”[108] - -The name of Burke gives to this illustration additional authority and -interest. It is not difficult to see how he would have decided the -present question. - -In our day there have been instances of the Lord Chancellor as -presiding officer without being a peer. Brougham took his seat on the -22d November, 1830, before his patent as a peer had been made out, and -during this interval his energies were suppressed in the simple duty -of presiding officer and nothing else. The same was the case with that -eminent lawyer, Sir Edward Sugden, who sat as presiding officer on -the 4th March, 1852, although still a commoner; and it was also the -case with Sir Frederick Thesiger, who sat as presiding officer on the -1st March, 1858, although still a commoner. These instances attest -the prevalence of the early rule down to our day. Even Brougham, who -never shrank from speech or from the exercise of power, was constrained -to bow before its exigency. He sat as Lord Chancellor, and in that -character put the question, but this was all, until he became a member -of the House. Lord Campbell expressly records, that, while his name -appears in the entry of those present on the 22d November, 1830, as -_Henricus Brougham, Cancellarius_, “he had no right to debate and vote -till the following day,” when the entry of his name and office appears -as _Dominus Brougham et Vaux, Cancellarius_.[109] - -Passing from these examples of recent history, I return to the rule as -known to our fathers at the adoption of the National Constitution. On -this head the evidence is complete. It is found in the State Trials -of England, in parliamentary history, and in the books of law; but it -is nowhere better exhibited than in the Lives of the Chancellors, by -Lord Campbell, himself a member of the House of Lords and a Chancellor, -familiar with it historically and practically. He has stated the -original rule, and in his work, which is as interesting as voluminous, -has furnished constantly recurring illustrations of it. In the -Introduction to his Lives, where he describes the office of Chancellor, -he enunciates the rule:-- - - “Whether peer or commoner, the Chancellor is not, like the - Speaker of the Commons, moderator of the proceedings of the - House in which he seems to preside; he is not addressed in - debate; he does not name the peer who is to be heard; he is - not appealed to as an authority on points of order; and he - may cheer the sentiments expressed by his colleagues in the - ministry.”[110] - -Existing rules of the Senate add to these powers; but such is the rule -with regard to the presiding officer of the House of Lords, even when -a peer. He is not appealed to on points of order. If a commoner, his -power is still less. - - “If he be a commoner, notwithstanding a resolution of the House - that he is to be proceeded against for any misconduct as if he - were a peer, he has neither vote nor deliberative voice, and he - can only put the question, and communicate the resolutions of - the House according to the directions he receives.”[111] - -In the early period of English history the Chancellors were often -ecclesiastics, though generally commoners. Fortescue, Wolsey, and More -were never peers. This also was the case with Sir Nicholas Bacon, -father of Lord Bacon, who held the seals under Queen Elizabeth for -twenty years, and was colleague in the cabinet of Burleigh. Lord -Campbell remarks on his position as presiding officer of the House of -Lords:-- - - “Not being a peer, he could not take a share in the Lords’ - debates; but, presiding as Speaker on the woolsack, he - exercised a considerable influence on their deliberations.”[112] - -Then again we are told:-- - - “Being a commoner, he could neither act as Lord Steward nor sit - upon the trial of the Duke of Norfolk, who was the first who - suffered for favoring Mary’s cause.”[113] - -Thus early do we meet illustration of this rule, which constantly -reappears in the annals of Parliament. - -The successor of Sir Nicholas Bacon was Lord Chancellor Bromley; and -here we find a record interesting at this moment. After presiding at -the trial of Mary, Queen of Scots, the Lord Chancellor became ill -and took to his bed. Under the circumstances, Sir Edmund Anderson, -Chief Justice of the Common Pleas, was authorized by the Queen to act -as a substitute for the Chancellor; and thus the Chief Justice became -presiding officer of the House of Lords to the close of the session, -without being a peer. - -Then came Sir Christopher Hatton, the favorite of Queen Elizabeth, and -so famous as the dancing Chancellor, who presided in the House of Lords -by virtue of his office, but never as peer. The same was the case with -his successor, Sir John Puckering. He was followed by the exemplary -Ellesmere, who was for many years Chancellor without being a peer, but -finished his career by adding to his title as presiding officer the -functions of a member. The greatest of all now followed. After much -effort and solicitation, Bacon becomes Chancellor with a peerage; but -it is recorded in the Lords’ Journals, that, when he spoke, he removed -from the woolsack “to his seat as a peer,” thus attesting that he had -no voice as presiding officer. At last, when the corruptions of this -remarkable character began to overshadow the land, the Chief Justice -of the King’s Bench, Sir James Ley, was designated by the King to act -as Speaker of the House of Lords. Soon afterward Bacon fell. Meanwhile -it is said that the Chief Justice “had very creditably performed -the duties of Speaker of the House of Lords.”[114] In other words, -according to the language of our Constitution, he had presided well. - -Then came Williams, Coventry, and Finch, as Lord Keepers. As the last -absconded to avoid impeachment by the House of Commons, Littleton, -Chief Justice of the Common Pleas, “was placed on the woolsack as -Speaker.”[115] At a later time he received the Great Seal as Lord -Keeper. This promotion was followed by a peerage, at the prompting of -no less a person than the Earl of Strafford, “who thought he might be -more useful, if permitted to take part in the proceedings of the House -as a peer, than if he could only put the question as Speaker.”[116] -Clarendon says, that, as a peer, he could have done Strafford “notable -service.”[117] But the timid peer did not render the expected service. - -Then came the period of Civil War, when one Great Seal was with the -King and another was with Parliament. Meanwhile the Earl of Manchester -was appointed Speaker of the upper House, and as such took his place on -the woolsack. As a peer he had all the privileges of a member of the -House over which he presided. Charles the Second, during his exile, -appointed Hyde, afterward Earl of Clarendon, as Chancellor; but the -monarch was for the time without a Court and without a Parliament. On -the Restoration, in 1660, the Chancellor at once entered upon all his -duties, judicial and parliamentary; and it is recorded, that, “though -still a commoner, holding the Great Seal, he took his place on the -woolsack as Speaker by prescription.”[118] A year later the commoner -was raised to the peerage, thus becoming more than presiding officer. -During illness from the gout the place of the Chancellor as presiding -officer was sometimes supplied by Sir Orlando Bridgeman, Chief Justice -of the Common Pleas, who on these occasions was presiding officer, -and nothing more. Lord Campbell says he “frequently sat Speaker in the -House of Lords,”[119]--meaning that he presided. - -On the disgrace of Lord Clarendon, the disposal of the Great Seal was -the occasion of perplexity. The historian informs us, that, “after many -doubts and conflicting plans among the King’s male and female advisers, -it was put into the hands of a grave Common-Law judge,”[120] being -none other than the Chief Justice of the Common Pleas, who had already -presided in the absence of Lord Clarendon; but he was never raised to -the peerage. Then comes another explanation of the precise relation -of such an official to the House. Lord Campbell expressly remarks, -that, “never being created a peer, his only duty in the House of Lords -was to put the question, and to address the two Houses in explanation -of the royal will on the assembling of Parliament.”[121] Here is the -constantly recurring definition of the term _preside_. - -For some time afterward there seems to have been little embarrassment. -Nottingham, who did so much for Equity, Shaftesbury, who did so little, -Guilford, so famous through contemporary biography, and Jeffreys, so -justly infamous,--successively heads of the law,--were all peers. -But at the Revolution of 1688 there was an interregnum, which again -brought into relief the relations between the upper House and its -presiding officer. James, on his flight, dropped the Great Seal into -the Thames. There was, therefore, no presiding officer for the Lords. -To supply this want, the Lords, at the meeting of the Convention -Parliament, chose one of their own number, the Marquis of Halifax, -as Speaker, and, in the exercise of the power inherent in them, -they continued to reëlect him day by day. During this period he was -strictly President _pro tempore_. At last, Sir Robert Atkyns, Chief -Baron of the Exchequer, a commoner, took his seat upon the woolsack as -Speaker, appointed by the Crown. Here, again, we learn that “serious -inconvenience was experienced from the occupier of the woolsack not -being a member of the House.”[122] At last, in 1693, the Great Seal was -handed to Sir John Somers, Lord Keeper; and here is another authentic -illustration of the rule. Although official head of the English law, -and already exalted for his ability and varied knowledge, this great -man, one of the saviours of constitutional liberty in England, was -for some time merely presiding officer. The historian records, that, -“while he remained a commoner, he presided on the woolsack only as -Speaker”;[123] that he “had only, as Speaker, to put the question, … -taking no part in debate.”[124] This is more worthy of notice because -Somers was recognized as a consummate orator. At last, according to -the historian, “there was a strong desire that he should take part in -the debates, and, to enable him, the King pressed his acceptance of a -peerage, which, after some further delay, he did, and he was afterward -known as Lord Somers.[125] - -In the vicissitudes of public life this great character was dismissed -from office, and a successor was found in an inferior person, Sir -Nathan Wright, who was created Lord Keeper without a peerage. For the -five years of his official life it is recorded that he occupied the -woolsack, “merely putting the question, and having no influence over -the proceedings.”[126] Thus he presided. - -Then came the polished Cowper, at first without a peerage, but after -a short time created a member of the House. Here again the historian -records, that, while he remained a commoner, “he took his place on -the woolsack as Speaker of the House of Lords, and without a right to -debate or vote.”[127] It appears, that, “not being permitted to share -in the debates in the House of Lords, he amused himself by taking notes -of the speeches on the opposite sides.”[128] Afterward, even when a -peer, and, as Chancellor, presiding at the impeachment of Sacheverell, -Lord Cowper did not interfere further than by saying, “Gentlemen of the -House of Commons,” or “Gentlemen, you that are counsel for the prisoner -may proceed.”[129] - -Harcourt followed Cowper as Keeper of the Great Seal, but he was not -immediately raised to the peerage. It is recorded that during one -year he had “only to sit as Speaker,”[130]--that is, only to preside. -Afterwards, as peer, he became a member. On the accession of George -the First, Harcourt, in turn, gave place to Cowper, who was again made -Chancellor. To him succeeded the Earl of Macclesfield, with all the -rights of membership. - -Lord Macclesfield, being impeached of high crimes and misdemeanors as -Chancellor, Sir Peter King, at the time Chief Justice of the Common -Pleas, was made presiding officer of the upper House, with only the -limited powers belonging to a presiding officer who is not a member of -the body. Here the record is complete. Turn to the trial and you will -see it all. It was he who gave directions to the managers, and also -to the counsel,--who put the question, and afterward pronounced the -sentence; but he acted always as presiding officer and nothing else. -I do not perceive that he made any rulings during the progress of the -trial. He was Chief Justice of the Common Pleas, acting as President -_pro tempore_. The report, describing the opening of the proceedings, -says that the articles of impeachment, with the answer and replication, -were read “by direction of the Lord Chief Justice King, Speaker of the -House of Lords.”[131] Another definition of the term _preside_. - -All this is compendiously described by Lord Campbell:-- - - “Sir Peter, not being a peer, of course had no deliberative - voice, but, during the trial, as the organ of the House of - Peers, he regulated the procedure without any special vote, - intimating to the managers and to the counsel for the defendant - when they were to speak and to adduce their evidence. After the - verdict of _Guilty_, he ordered the Black Rod to produce his - prisoner at the bar; and the Speaker of the House of Commons - having demanded judgment, he, in good taste, abstaining from - making any comment, dryly, but solemnly and impressively, - pronounced the sentence which the House had agreed upon.”[132] - -This proceeding was in 1725. At this time, Benjamin Franklin, the -printer-boy, was actually in London. It is difficult to imagine that -this precocious character, whose observation in public affairs was -as remarkable as in philosophy, should have passed eighteen months in -London at this very period without noting this remarkable trial and the -manner in which it was conducted. Thus, early in life, he saw that a -Chief Justice might preside at an impeachment without being a member -of the House of Lords or exercising any of the powers which belong to -membership. - -Besides his eminence as Chief Justice, King was the nephew of the -great thinker who has exercised such influence on English and American -opinion, John Locke. Shortly after presiding at the impeachment as -Chief Justice, he became Chancellor with a peerage. - -He was followed in his high post by Talbot and Hardwicke, each with a -peerage. Jumping the long period of their successful administrations, -when the presiding officer was also a member of the upper House, I -come to another instance where the position of the presiding officer -was peculiarly apparent,--and this, too, when Benjamin Franklin was -in London, as agent for Pennsylvania. I refer to Sir Robert Henley, -who became Lord Keeper in 1757, without a peerage. The King, George -the Second, did not like him, and therefore, while consenting to place -him at the head of the law, declined to make him a member of the House -over which he was to preside. At last, in 1760, the necessities of -the public service constrained his elevation to the peerage, and soon -afterward George the Third, who succeeded to the throne without the -animosities of his grandfather, created him Chancellor and Earl of -Northington. - -For nearly three years, Henley, while still a commoner, was presiding -officer. During this considerable period he was without voice or vote. -The historian remarks, that, “if there had been any debates, he was -precluded from taking part in them.”[133] In another place he pictures -the defenceless condition of the unhappy magistrate with regard to his -own decisions in the court below, when heard on appeal:-- - - “Lord Keeper Henley, till raised to the peerage, used to - complain bitterly of being obliged to put the question for the - reversal of his own decrees, without being permitted to say a - word in support of them.”[134] - -Lord Eldon, in his Anecdote Book, furnishes another statement of this -case:-- - - “When Sir Robert Henley was Keeper of the Great Seal, and - presided in the House of Lords as Lord Keeper, he could not - enter into debate as a Chancellor being a peer does; and - therefore, when there was an appeal from his judgments in the - Court of Chancery, and the law Lords then in the House moved - to reverse his judgments, … the Lord Keeper could not state - the grounds of his opinions given in judgment, and support his - decisions.”[135] - -And thus for nearly three years this commoner presided. - -A few weeks after Henley first took his place as presiding officer, -Franklin arrived in London for the second time, and continued there, a -busy observer, until after the Judge was created a peer. Even if he had -been ignorant of parliamentary usage, or had forgotten what passed at -the trial of Lord Macclesfield, he could not have failed to note that -the House of Lords had for its presiding officer an eminent judge, -who, not being a member, could take no part in its proceedings beyond -putting the question. - -Afterward, in 1770, there was a different arrangement. Owing to -difficulty in finding a proper person as Chancellor, the Great Seal -was put in commission, and Lord Mansfield, Chief Justice of England, -was persuaded to act as presiding officer. Curiously enough, Franklin -was again in England, on his third visit, and remained through the -service of Lord Mansfield in this capacity. Thus this illustrious -American, afterward a member of the Convention that framed the National -Constitution, had at two different times seen the House of Lords with a -presiding officer who, not being a member of the body, could only put -the question, and then again with another presiding officer who, being -a member of the body, could vote and speak, as well as put the question. - -But Franklin was not the only member of the National Convention to -whom these precedents were known. One or more had been educated at the -Temple; others were accomplished lawyers, familiar with the courts -of the mother country. I have already mentioned that Blackstone’s -Commentaries, where the general rule is clearly stated, was as well -known in the Colonies as in the mother country. Besides, our fathers -were not ignorant of the history of England, which, down to the -Declaration of Independence, had been their history. The English law -was also theirs. Not a case in its books which did not belong to them -as well as to the frequenters of Westminster Hall. The State Trials, -involving principles of Constitutional Law, and embodying these very -precedents, were all known. At least four editions had appeared -several years before the adoption of the National Constitution. I -cannot err in supposing that all these were authoritative guides at -the time, and that the National Constitution was fashioned in all the -various lights, historical and judicial, which they furnished. - -The conclusion is irresistible, that the National Constitution, when -providing a presiding officer for the trial of the President of the -United States, used the term _preside_ in the sense already acquired in -Parliamentary Law, and did not intend any different signification; that -our fathers knew perfectly well the parliamentary distinction between a -presiding officer a member of the House and a presiding officer not a -member; that, in constituting the Chief Justice presiding officer for -a special temporary purpose, they had in view similar instances in the -mother country, when the Lord Keeper, Chief Justice, or other judicial -personage, had been appointed to preside over the House of Lords, of -which he was not a member, as our Chief Justice is appointed to preside -over the Senate, of which he is not a member; that they found in this -constantly recurring example an apt precedent for their guidance; -that they followed this precedent to all intents and purposes, using -received parliamentary language, “the Chief Justice shall preside,” and -nothing more; that, according to this precedent, they never intended -to invest the Chief Justice, President _pro tempore_ of the Senate, -with any other powers than those of a presiding officer not a member of -the body; and that these powers, exemplified in an unbroken series of -instances extending over centuries, under different kings and through -various administrations, were simply to put the question and to direct -generally the conduct of business, without undertaking in any way, by -voice or vote, to determine any question, preliminary, interlocutory, -or final. - -In stating this conclusion I present simply the result of the -authorities. It is not I who speak; it is the authorities. My own -judgment may be imperfect; but here is a mass of testimony, concurring -and cumulative, without a single exception, which cannot err. - -Plainly and unmistakably, the provision in our Constitution authorizing -the Chief Justice to _preside_ in the Senate, of which he is not a -member, was modelled on the English original. This, according to the -language of Mr. Wirt, was the “archetype” our fathers followed. As such -it was embodied in the National Constitution, as if the text expressly -declared that the Chief Justice, when presiding in the Senate, had -all the powers accorded by parliamentary usage to such a functionary -when presiding in the upper House of Parliament without being a member -thereof. In saying that he shall “preside” the Constitution confers no -powers of membership, and by the well-defined term employed limits him -to those precise functions sanctioned at the time by immemorial usage. - - * * * * * - -Thus far I have considered this provision in the light of authorities -already known and recognized at the adoption of the National -Constitution. This is enough; for it is by these authorities that its -meaning must be determined. You cannot reject these without setting at -defiance a fixed rule of interpretation, and resorting instead to vague -inference or mere imagination, quickened, perhaps, by your desires. -Mere imagination and vague inference, quickened, perhaps, by your -desires, are out of place when Parliamentary Law is beyond all question. - -Pardon me, if I protract this argument by an additional illustration, -derived from our own Congressional history. This is found under the -parallel provision of the National Constitution relating to the -Vice-President, which, after much debate in another generation, -received authoritative interpretation: “The Vice-President of the -United States shall be _President of the Senate_, but shall have -no vote, unless they be equally divided.” In other words, the -Vice-President, like the Chief Justice, shall _preside_ in the Senate, -but, unlike the Chief Justice, with a casting vote. His general powers -are all implied in the provision that he shall preside. - -No question has occurred with regard to the vote of the Vice-President, -for this is expressly regulated by the National Constitution. But the -other powers of the Vice-President, when presiding in the Senate, -are left to Parliamentary Law and express rules. Some of the latter -were settled at an early day. From the rules of the Senate at the -beginning it appears, that, independent of his casting vote, nothing -was originally recognized as belonging to a _presiding_ Vice-President -beyond his power to occupy the chair. All else was determined by the -rules. For instance, Senators, when speaking, are to address the -Chair. This rule, which seems to us so superfluous, was adopted 16th -April, 1789, early in the session of the first Congress, in order to -change the existing Parliamentary Law, under which a member of the -upper House of Parliament habitually addresses his associates, and -never the Chair. Down to this day, in England, a peer rising to speak -says, “My Lords,” and never “My Lord Chancellor,” although the latter -_presides_. Another rule, adopted at the same date, has a similar -origin. By Parliamentary Law, in the upper House of Parliament, when -two members rise at the same time, the House, by their cry, indicate -who shall speak. This was set aside by a positive rule of the Senate -that in such a case “the President shall name the person to speak.” The -Parliamentary Law, that the presiding officer, whether a member or not -a member, shall put the question, was reinforced by an express rule -that “all questions shall be put by the President of the Senate.” - -Although the rules originally provided, that, when a member is called -to order, “the President shall determine whether he is in order or -not,” they failed to declare by whom the call to order should be made. -There was nothing conferring this power upon the presiding officer, -while by Parliamentary Law in the upper House of Parliament no -presiding officer, _as such_, could call to order, whatever he might -do as member. The powers of the presiding officer in the Senate were -left in this uncertainty, but the small number of Senators and the -prevailing courtesy prevented trouble. At last, in the lapse of time, -the number increased, and debates assumed a more animated character. -Meanwhile, in 1825, Mr. Calhoun became Vice-President. This ingenious -person, severely logical, and enjoying at the time the confidence of -the country to a rare degree, insisted, that, as presiding officer, he -had no power but to carry into effect the rules adopted by the body, -and that therefore, in the absence of any rule on the subject, he was -not empowered to call a Senator to order for words spoken in debate. -His conclusion was given as follows:-- - - “The Chair had no power beyond the rules of the Senate. It - would stand in the light of a usurper, were it to attempt to - exercise such a power. It was too high a power for the Chair.… - The Chair would never assume any power not vested in it, but - would ever show firmness in exercising those powers that were - vested in the Chair.”[136] - -The question with regard to the powers of the Chair was transferred -from the Senate Chamber to the public press, where it was discussed -with memorable ability. An article in the “National Journal,”[137] -under the signature of “Patrick Henry,” attributed to John Quincy -Adams, at the time President, assumed that the powers of the -Vice-President, in calling to order, were not derived from the -Senate, but that they came strictly from the National Constitution -itself, which authorizes him to preside, and that in their exercise -the Vice-President was wholly independent of the Senate. To this -assumption Mr. Calhoun replied in the “National Intelligencer,” in -two articles,[138] under the signature of “Onslow,” where he shows an -ability not unworthy of the eminent parliamentarian whose name he for -the time adopted. The point in issue was not unlike that now before us. -It was insisted, on the one side, that certain powers were inherent -in the Vice-President as presiding officer, precisely as it is now -insisted that certain powers are inherent in the Chief-Justice when he -becomes presiding officer. Mr. Calhoun replied in words applicable to -the present occasion:-- - - “I affirm, that, as a presiding officer, the Vice-President - has no inherent power whatever, unless that of doing what the - Senate may prescribe by its rules be such a power. There are, - indeed, inherent powers; but they are in the _body_, and not - in the _officer_. He is a mere agent to execute the will of - the former. He can exercise no power which he does not hold by - delegation, either express or implied.”[139] - -Then again, in reply to an illustration that had been employed, he -says:-- - - “There is not the least analogy between the rights and duties - of a judge and those of a presiding officer in a deliberative - assembly. The analogy is altogether the other way. It is - between the Court and the House.”[140] - -It would be difficult to answer this reasoning. Unless all the -precedents, in unbroken series, are set aside, a presiding officer -not a member of the Senate has no inherent power except to occupy the -Chair and to put the question. All else must be derived from grant in -the Constitution or in the rules of the body. In the absence of any -such grant, we must be contented to observe the mandates of the _Lex -Parliamentaria_. The objections of Mr. Calhoun brought to light the -feeble powers of our presiding officer, and a remedy was forthwith -applied by amendment of the rules, making it his duty to call to order. -To his general power as presiding officer was superadded, by express -rule, a further power not existing by Parliamentary Law; and such is -the rule of the Senate at this day. - -I turn away from this Vice-Presidential episode, contenting myself -with reminding you how clearly it shows, that, independently of the -rules of the Senate, the presiding officer _as such_ had small powers; -that he could do very little more than put the question and direct -the Secretary; and, in short, that our fathers, in the interpretation -of his powers, had tacitly recognized the time-honored and prevailing -usage of Parliament, which in itself is a commanding law. But a -Chief Justice, when presiding in the Senate, is not less under this -commanding law than the Vice-President. - - * * * * * - -Thus far I have confined myself to the Parliamentary Law governing the -upper House of Parliament and of Congress. Further illustration is -found in the position of the Speaker, whether in the House of Commons -or the House of Representatives. One cardinal distinction is to be -noted at the outset, by which, in both countries, he is distinguished -from the presiding officer of the upper House: the Speaker is always -a member of the House. As a member he has a constituency which is -represented through him; and here is another difference. The presiding -officer of the upper House has no constituency; therefore his only -duty is _to preside_, unless some other function be superadded by the -National Constitution or the rules of the body. - -All the authorities make the Speaker merely the organ of the House, -except so far as his representative capacity is recognized. In the -Commons he can vote only when the House is equally divided; in our -House of Representatives his name is sometimes called, although there -is no tie; but in each case he votes in his representative capacity, -and not as Speaker. In the time of Queen Elizabeth it was insisted, -that, because he was “one out of our own number, and _not a stranger_, -therefore he hath a voice.” But Sir Walter Raleigh replied, that the -Speaker “was foreclosed of his voice _by taking that place_.”[141] The -latter opinion, which has been since overruled, attests the disposition -at that early day to limit his powers. - -Cushing, in his elaborate work, brings together numerous illustrations, -and gives the essence:-- - - “The presiding officer, though entitled on all occasions to - be treated with the greatest attention and respect by the - individual members, because the power and dignity and honor - of the assembly are officially embodied in his person, is yet - but the servant of the House to declare its will and to obey - implicitly all its commands.”[142] - - “The duties of a presiding officer are of such a nature, - and require him to possess so entirely and exclusively the - confidence of the assembly, that, with certain exceptions, - which will presently be mentioned, he is not allowed to - exercise any other functions than those which properly belong - to his office; _that is to say, he is excluded from submitting - propositions to the assembly, from participating in its - deliberations, and from voting_.”[143] - -At an early day an English Speaker vividly characterized his relations -to the House, when he describes himself as “one of themselves to be -the mouth, indeed the servant, of all the rest.”[144] This character -appears in the memorable incident, when King Charles in his madness -entered the Commons, and, going directly to the Speaker, asked for the -five members he wished to arrest. Speaker Lenthall answered in ready -words, revealing the function of the presiding officer: “May it please -your Majesty, I have neither eyes to see nor tongue to speak, _in this -place_, but as the House is pleased to direct me, whose servant I am -_here_.”[145] This reply was as good in law as in patriotism. Different -words were employed by Sir William Scott, afterward Lord Stowell, when, -in 1802, on moving the election of Mr. Speaker Abbot, he declared that -a Speaker must add “to a jealous affection for the privileges of the -House an awful sense of its duties.”[146] But the early Speaker and the -great Judge did not differ. Both attest that the Speaker, when in the -Chair, is only the organ of the House, and nothing more. - -Passing from the Speaker to the Clerk, we find still another -illustration, showing that the word _preside_, under which the -Chief Justice derives all his powers, has received an authoritative -interpretation in the rules of the House of Representatives, and the -commentaries thereon. I cite from Barclay’s Digest. - - “Under the authority contained in the Manual, and the usage - of the House, the Clerk _presided_ over its deliberations - while there was no Speaker, but simply put questions, and, - where specially authorized, preserved order, not, however, - undertaking to decide questions of order.”[147] - -In another place, after stating that in several Congresses there -was a failure to elect a Speaker for several days, that in the -twenty-sixth Congress there was a failure for eleven days, that in the -thirty-first Congress there was a failure for nearly a month, that in -the thirty-fourth and thirty-sixth Congresses respectively there was a -failure for not less than two months, the author says:-- - - “During the three last-named periods, while the House was - without a Speaker, the Clerk _presided_ over its deliberations; - not, however, exercising the functions of Speaker to the extent - of deciding questions of order, but, as in the case of other - questions, putting them to the House for its decision.”[148] - -This limited power of the Clerk is described in a marginal note of the -author,--“Clerk _presides_.” The author then proceeds:-- - - “To relieve future Houses of some of the difficulties which - grew out of the very limited power of the Clerk as _a presiding - officer_, the House of the thirty-sixth Congress adopted the - present 146th and 147th rules, which provide, that, ‘pending - the election of a Speaker, the Clerk shall preserve order and - decorum, and shall decide all questions of order that may - arise, subject to appeal to the House.’”[149] - -From this impartial statement we have a practical definition of the -word _preside_. It is difficult to see how it can have a different -signification in the National Constitution. The word is the same in the -two cases, and it must have substantially the same meaning, whether -it concern a Clerk or a Chief Justice. Nobody ever supposed that a -_presiding_ Clerk could rule or vote. Can a _presiding_ Chief Justice? - -The claim of a presiding Chief Justice becomes still more questionable -when it is considered how positively the Constitution declares that -“the Senate shall have the _sole_ power to try all impeachments,” and, -still further, that conviction can be only by “the concurrence of two -thirds of _the members present_.” These two provisions accord powers to -_the Senate solely_. If a presiding Chief Justice can rule or vote, the -Senate has not “the sole power to try”; for ruling and voting, even on -interlocutory questions, may determine the trial. A vote to postpone, -to withdraw, even to adjourn, might, under peculiar circumstances, -exercise a decisive influence. A vote for a protracted adjournment -might defeat the trial. Notoriously such votes are among the devices -of parliamentary opposition. In doing anything like this, a presiding -Chief Justice makes himself _a trier_, and, if he votes on the final -judgment, he makes himself _a member of the Senate_. But he cannot be -either. - -It is only a casting vote that thus far the presiding Chief Justice -has assumed to give. But he has the same power to vote always as to -vote when the Senate is equally divided. No such power in either -case is found in the National Constitution or in Parliamentary Law. -By the National Constitution he presides, and nothing more, while by -Parliamentary Law there is no casting vote where the presiding officer -is not a member of the body. Nor does there seem to be any difference -between a casting vote on an interlocutory question and a casting -vote on the final question. The former is determined by a majority, -and the latter by two thirds; but it has been decided in our country, -that, “if the assembly, on a division, stands exactly one third to -two thirds, there is then occasion for the giving of a casting vote, -because the presiding officer can then, by giving his vote, decide -the question either way.”[150] This statement reveals still further -how inconsistent is the claim of the presiding Chief Justice with the -positive requirement of the National Constitution. - -I would not keep out of sight any consideration which seems in any -quarter to throw light on this claim; and therefore I take time to -mention an analogy which has been invoked. The exceptional provision -in the Constitution, under which the Vice-President has a casting -vote on ordinary occasions, is taken from its place in another clause -and applied to the Chief Justice. It is gravely argued that the Chief -Justice is a substitute for the Vice-President, and, as the latter, -by express grant, has a casting vote on ordinary occasions, therefore -the Chief Justice has such when presiding on an impeachment. To this -argument there are two obvious objections: first, there is no language -giving a casting vote to the Chief Justice, and, in the absence of -express grant, it is impossible to imply it in opposition to the -prevailing rule of Parliamentary Law; and, secondly, it is by no means -clear that the Vice-President has a casting vote, when called to -preside on an impeachment. On ordinary occasions, in the business of -the Senate, the grant is explicit; but it does not follow that this -grant can be extended to embrace an impeachment, in face of positive -provisions by which the power to _try_ and _vote_ is confined to -_Senators_. According to the undoubted rule of interpretation, _Ut -res magis valeat quam pereat_, the casting vote of the Vice-President -must be subject to this curtailment. Therefore, if the Chief Justice -is regarded as a substitute for the Vice-President, it will be only to -find himself again within the same limitations. - - * * * * * - -I cannot bring this survey to an end without an expression of deep -regret that I find myself constrained to differ from the Chief Justice. -In faithful fellowship for long years, we have striven together for -the establishment of Liberty and Equality as the fundamental law of -this Republic. I know his fidelity, and revere his services; but not on -this account can I hesitate the less, when I find him claiming in this -Chamber an important power which, in my judgment, is three times denied -in the National Constitution: first, when it is declared that the -Senate alone shall _try_ impeachments; secondly, when it is declared -that only _members_ shall convict; and, thirdly, when it is declared -that the Chief Justice shall _preside_, and nothing more,--thus -conferring upon him those powers only which by Parliamentary Law belong -to a presiding officer not a member of the body. In the face of such a -claim, so entirely without example, and of such possible consequences, -I cannot be silent. Reluctantly and painfully I offer this respectful -protest. - -There is a familiar saying of jurisprudence, that it is the part of -a good judge to amplify his jurisdiction: _Boni judicis est ampliare -jurisdictionem_. This maxim, borrowed from the horn-books, was -originally established for the sake of justice and humanity, that they -might not fail; but it has never been extended to other exercises -of authority. On the contrary, all accepted maxims are against such -assumption in other cases. Never has it been said that it is the part -of a good presiding officer to amplify his power; and there is at least -one obvious reason: a presiding officer is only an _agent_, acting -always in presence of his _principal_. Whatever the promptings of the -present moment, such an amplification can find no sanction in the -National Constitution, or in that Parliamentary Law from which there is -no appeal. - -Thus, which way soever we turn,--whether to the National Constitution, -or to Parliamentary Law, as illustrated in England or the United -States,--we are brought to conclude that the Chief Justice in the -Senate Chamber is not in any respect Chief Justice, but only presiding -officer; that he has no judicial powers, or, in other words, powers -_to try_, but only the powers of a presiding officer not a member -of the body. According to the injunction of the Constitution, he -can _preside_, but this is all, unless other powers are superadded -by concession of the Senate, subject always to the constitutional -limitation that the Senate alone can _try_, and, therefore, alone can -rule or vote on questions which enter into the trial. The function of -a presiding officer may be narrow, but it must not be disparaged. For -a succession of generations, great men in the law, Chancellors and -Chief Justices, have not disdained to discharge it. Out of the long and -famous list I mention one name of surpassing authority: Somers, the -illustrious defender of constitutional liberty, unequalled in debate as -in judgment, exercised this function without claiming other power. He -was satisfied to preside. Such an example is not unworthy of us. If the -present question could be determined by sentiments of personal regard, -I should gladly say that our Chief Justice is needed to the Senate -more than the Senate is needed to him. But the National Constitution, -which has regulated the duties of all, leaves us no alternative. We -are the Senate; he is the presiding officer,--although, whether in the -Court Room or the Senate Chamber, he is always the most exalted servant -of the law. This character he cannot lose by change of seat. As such -he lends to this historic occasion the dignity of his presence and -the authority of his example. Sitting in that Chair, he can do much -to smooth the course of business, and to fill the Chamber with the -spirit of justice. Under the rules of the Senate, he can become its -organ,--but nothing more. - - - - -EXPULSION OF THE PRESIDENT. - -OPINION IN THE CASE OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF -THE UNITED STATES, MAY 26, 1868. - - -I voted against the rule of the Senate allowing opinions to be filed in -this proceeding, and regretted its adoption. With some hesitation I now -take advantage of the opportunity, if not the invitation, it affords. -Voting “Guilty” on all the articles, I feel that there is little need -of explanation or apology. Such a vote is its own best defender. But I -follow the example of others. - - -BATTLE WITH SLAVERY. - -This is one of the last great battles with Slavery. Driven from these -legislative chambers, driven from the field of war, this monstrous -power has found refuge in the Executive Mansion, where, in utter -disregard of Constitution and law, it seeks to exercise its ancient -domineering sway. All this is very plain. Nobody can question it. -Andrew Johnson is the impersonation of the tyrannical Slave Power. -In him it lives again. He is lineal successor of John C. Calhoun and -Jefferson Davis, and he gathers about him the same supporters. Original -partisans of Slavery, North and South, habitual compromisers of great -principles, maligners of the Declaration of Independence, politicians -without heart, lawyers for whom a technicality is everything, and a -promiscuous company who at every stage of the battle have set their -faces against Equal Rights,--these are his allies. It is the old troop -of Slavery, with a few recruits, ready as of old for violence, cunning -in device, and heartless in quibble. With the President at their head, -they are now intrenched in the Executive Mansion. - -Not to dislodge them is to leave the country a prey to a most hateful -tyranny. Especially is it to surrender the Unionists of the Rebel -States to violence and bloodshed. Not a month, not a week, not a day -should be lost. The safety of the Republic requires action at once. -Innocent men must be rescued from sacrifice. - -I would not in this judgment depart from the moderation proper to the -occasion; but God forbid, that, when called to deal with so great an -offender, I should affect a coldness I cannot feel! Slavery has been -our worst enemy, assailing all, murdering our children, filling our -homes with mourning, darkening the land with tragedy; and now it rears -its crest anew, with Andrew Johnson as its representative. Through him -it assumes once more to rule and impose its cruel law. The enormity of -his conduct is aggravated by his barefaced treachery. He once declared -himself the Moses of the colored race. Behold him now the Pharaoh! With -such treachery in such a cause there can be no parley. Every sentiment, -every conviction, every vow against Slavery must be directed against -him. Pharaoh is at the bar of the Senate for judgment. - -The formal accusation is founded on recent transgressions, enumerated -in articles of impeachment; but it is wrong to suppose that this is -the whole case. It is very wrong to try this impeachment merely on -these articles. It is unpardonable to higgle over words and phrases, -when, for more than two years, the tyrannical pretensions in evidence -before the Senate have been manifest, as I shall show, in terrible, -heart-rending consequences. - - -IMPEACHMENT A POLITICAL PROCEEDING. - -Before entering upon the formal accusation instituted by the House -of Representatives of the United States in their own name and in the -name of all the people thereof, it is important to understand the -nature of the proceeding. And here on the threshold we encounter the -effort of the apologists seeking in every way to confound this great -constitutional trial with an ordinary case at _Nisi Prius_, and to -win for the criminal President an Old Bailey acquittal, where on some -quibble the prisoner is allowed to go without day. From beginning -to end this has been painfully apparent, thus degrading the trial -and baffling justice. Point by point has been pressed, sometimes by -counsel and sometimes even by Senators, leaving the substantial merits -untouched, as if, on a solemn occasion involving the safety of the -Republic, there could be any other question. - -The first effort was to call the Senate, sitting for the trial of -impeachment, a Court, and not a Senate. Ordinarily, names are of -little consequence; but it cannot be doubted that this appellation -has been made the starting-point for technicalities proverbial in -courts. Constantly we have been reminded of what is called our judicial -character, and of the supplementary oath we have taken, as if a Senator -were not always under oath, and as if other things within the sphere -of his duties were not equally judicial in character. Out of this -plausible assumption has come that fine-spun thread which lawyers know -so well how to weave. - -The whole mystification disappears, when we look at the National -Constitution, which in no way speaks of impeachment as judicial, -and in no way speaks of the Senate as a court. On the contrary, it -uses positive language inconsistent with this assumption and all its -pretended consequences. On this head there can be no doubt. - -By the National Constitution it is expressly provided that “_the -judicial power_ of the United States shall be vested in one Supreme -Court and in such inferior courts as the Congress may from time to -time ordain and establish,”--thus positively excluding the Senate from -any exercise of “the judicial power.” And yet this same Constitution -provides that “the Senate shall have the sole power to try all -impeachments.” In the face of these plain texts it is impossible not to -conclude, that, in trying impeachments, Senators exercise a function -which is not regarded by the National Constitution as “judicial,” or, -in other words, as subject to the ordinary conditions of judicial -power. Call it senatorial or political, it is a power by itself, and -subject to its own conditions. - -Nor can any adverse conclusion be drawn from the unauthorized -designation of “court” which has been foisted into our proceedings. -This term is very expansive, and sometimes very insignificant. In -Europe it means the household of a prince. In Massachusetts it is still -applied to the Legislature of the State, which is known as the General -Court. If applied to the Senate, it must be interpreted by the National -Constitution, and cannot be made in any respect a source of power or a -constraint. - -It is difficult to understand how this term, which plays such a part -in present pretensions, obtained its vogue. It does not appear in -English impeachments, although there is reason for it there which -is not found here. From ancient times, Parliament, including both -Houses, has been called a court, and the House of Lords is known as -a court of appeal. The judgment on English impeachments embraces not -merely removal from office, as under the National Constitution, but -also punishment; and yet it does not appear that the Lords sitting -on impeachments are called a court. They are not so called in any of -the cases, from the first, in 1330, entitled simply, “Impeachment of -Roger Mortimer, Earl of March, for Treason,” down to the last, in 1806, -entitled, “Trial of the Right Honorable Henry Lord Viscount Melville, -before the Lords’ House of Parliament in Westminster Hall, for High -Crimes and Misdemeanors whereof he was accused in certain Articles of -Impeachment.” In the historic case of Lord Bacon, we find, at the first -stage, this title, “Proceedings in Parliament against Francis Bacon -Lord Verulam,” and, after the impeachment was presented, the simple -title, “Proceedings in the House of Lords.” Had this simplicity been -followed among us, there would have been one source of misunderstanding -the less. - -There is another provision of the National Constitution which testifies -still further, and, if possible, more completely. It is the limitation -of the judgment in cases of impeachment, making it political and -nothing else. It is not punishment, but protection to the Republic. It -is confined to removal from office and disqualification; but, as if -aware that this was no punishment, the National Constitution further -provides that this judgment shall be no impediment to indictment, -trial, judgment, and punishment “according to law.” Thus again is the -distinction declared between an impeachment and a proceeding “according -to law.” The former, which is political, belongs to the Senate, which -is a political body; the latter, which is judicial, belongs to the -courts, which are judicial bodies. The Senate removes from office; the -courts punish. I am not alone in drawing this distinction. It is well -known to all who have studied the subject. Early in our history it was -put forth by the distinguished Mr. Bayard, of Delaware, the father of -Senators, in the case of Blount;[151] and it is adopted by no less an -authority than our highest commentator, Judge Story, who was as much -disposed as anybody to amplify the judicial power. In speaking of this -text, he says that impeachment “is not so much designed to punish an -offender as _to secure the State against gross official misdemeanors_; -it touches neither his person nor his property, _but simply divests -him of his political capacity_.”[152] All this seems forgotten by -certain apologists on the present trial, who, assuming that impeachment -was a proceeding “according to law,” have treated the Senate to the -technicalities of the law, to say nothing of the law’s delay. - -Discerning the true character of impeachment under the National -Constitution, we are constrained to confess that it is a political -proceeding before a political body with political purposes; that it -is founded on political offences, proper for the consideration of a -political body, and subject to a political judgment only. Even in -cases of treason and bribery, the judgment is political, and nothing -more. If I were to sum up in one word the object of impeachment under -the National Constitution, meaning what it has especially in view, -with its practical limitation, I should say _expulsion from office_. -The present question is, Shall Andrew Johnson, on the case before the -Senate, be expelled from office? - -Expulsion from office is not unknown to our proceedings. By the -National Constitution a Senator may be expelled with “the concurrence -of two thirds,” precisely as a President may be expelled with “the -concurrence of two thirds.” In each case the same exceptional vote of -two thirds is required. Do not the two illustrate each other? From the -nature of things, they are essentially similar in character,--except -that on expulsion of the President the motion is made by the House -of Representatives at the bar of the Senate, while on expulsion of -a Senator the motion is made by a Senator. How can we require a -technicality of proceeding in the one which is rejected in the other? -If the Senate is a court, bound to judicial forms on the expulsion of -the President, must it not be the same on the expulsion of a Senator? -But nobody attributes to it any such strictness in the latter case. -Numerous precedents attest how, in dealing with its own members, the -Senate seeks substantial justice without reference to form. In the -case of Blount, which is the first in our history, the expulsion -was on the report of a committee, declaring him “guilty of a high -misdemeanor, entirely inconsistent with his public trust and duty as -a Senator.”[153] At least one Senator has been expelled on simple -motion.[154] Others have been expelled without any formal allegation or -formal proof. - -According to another provision of the National Constitution, overriding -both cases, “each House may determine the rules of its proceedings.” -The Senate, on the expulsion of its own members, has already done this, -and set an example of simplicity. But it has the same power over its -rules of proceeding on the expulsion of the President; and there can -be no reason for simplicity in the one case not equally applicable in -the other. Technicality is as little consonant with the one as with the -other. Each has for its object the public safety. For this the Senator -is expelled; for this, also, the President is expelled. _Salus populi -suprema lex._ The proceedings in each case must be in subordination to -this rule. - -There is one formal difference, under the National Constitution, -between the power to expel a Senator and the power to expel the -President. The power to expel a Senator is unlimited in terms. The -Senate may, “with the concurrence of two thirds, expel a member,” -nothing being said of the offence; whereas the President can be -expelled only for “treason, bribery, or _other high crimes and -misdemeanors_.” A careful inquiry will show that under the latter words -there is such a latitude as to leave little difference between the two -cases. This brings us to the question of impeachable offences. - - -POLITICAL OFFENCES ARE IMPEACHABLE OFFENCES. - -So much depends on the right understanding of this proceeding, that, -even at the risk of protracting the discussion, I cannot hesitate -to consider this branch of the subject, although what I have already -said may render it superfluous. What are impeachable offences has -been much considered in this trial, and sometimes with very little -appreciation of the question. Next to the mystification from calling -the Senate a court has been that other mystification from not calling -the transgressions of Andrew Johnson “impeachable offences.” - -It is sometimes boldly argued that there can be no impeachment under -the National Constitution, unless for an offence defined and made -indictable by Act of Congress, and therefore Andrew Johnson must go -free, unless it can be shown that he is such an offender. But this -argument mistakes the Constitution, and also mistakes the whole theory -of impeachment. - -It mistakes the Constitution in attributing to it any such absurd -limitation. The argument is this: Because in the National Constitution -there are no Common-Law crimes, therefore there are no such crimes on -which an impeachment can be maintained. But there are two answers: -first, that the District of Columbia, where the President resides and -exercises his functions, was once part of Maryland, where the Common -Law prevailed; that, when it came under the national jurisdiction, -it brought with it the whole body of the law of Maryland, including -the Common Law; and that at this day the Common Law of crimes is -still recognized here. But the second answer is stronger still. -By the National Constitution, _expulsion from office_ is “on -impeachment for and conviction of treason, bribery, _or other high -crimes and misdemeanors_”; and this, according to another clause -of the Constitution, is “the supreme law of the land.” Now, when -a constitutional provision can be executed without superadded -legislation, it is absurd to suppose that such legislation is -necessary. Here the provision executes itself without reënactment; and -as for definition of “treason” and “bribery” we resort to the Common -Law, so for definition of “high crimes and misdemeanors” we resort to -the Parliamentary Law and the instances of impeachment by which it -is illustrated. Thus clearly the whole testimony of English history -enters into this case with its authoritative law. From the earliest -text-writer on this subject[155] we learn the undefined and expansive -character of these offences; and these instances are in point now. -Thus, where a Lord Chancellor has been thought to put the great seal -to an ignominious treaty, a Lord Admiral to neglect the safeguard -of the seas, an Ambassador to betray his trust, a Privy Councillor -to propound dishonorable measures, a confidential adviser to obtain -exorbitant grants or incompatible employments, or _where any magistrate -has attempted to subvert the fundamental law or introduce arbitrary -power_,--all these are high crimes and misdemeanors, according to these -precedents, by which the National Constitution must be interpreted. How -completely they cover the charges against Andrew Johnson, whether in -the formal accusation or in the long antecedent transgressions to which -I shall call attention as an essential part of the case, nobody can -question. - -Broad as this definition may seem, it is in harmony with the declared -opinions of the best minds that have been turned in this direction. Of -these none so great as Edmund Burke, who, as manager on the impeachment -of Warren Hastings, excited the admiration of all by varied stores of -knowledge and philosophy, illumined by the rarest eloquence, marking -an epoch of British history. Thus spoke the greatest genius that has -ever explained the character of impeachment:-- - - “It is by this tribunal that statesmen who abuse their power - are tried before statesmen and by statesmen, upon solid - principles of State morality. _It is here that those who by an - abuse of power have polluted the spirit of all laws can never - hope for the least protection from any of its forms._ It is - here that those who have refused to conform themselves to the - protection of law can never hope to escape through any of its - defects.”[156] - -The value of this testimony is not diminished because the orator -spoke as manager. By professional license an advocate may state -opinions not his own, but a manager cannot. Appearing for the House of -Representatives and all the people, he speaks with the responsibility -of a judge, so that his words may be cited hereafter. Here I but -follow the claim of Mr. Fox.[157] Therefore the words of Burke are as -authoritative as beautiful. - -In different, but most sententious terms, Mr. Hallam, who is so great -a light in constitutional history, thus exhibits the latitude of -impeachment and its comprehensive grasp:-- - - “A minister is answerable for _the justice, the honesty, the - utility of all measures_ emanating from the Crown, _as well as - for their legality_; and thus the executive administration is, - or ought to be, subordinate, in all great matters of policy, to - the superintendence and virtual control of the two Houses of - Parliament.”[158] - -Thus, according to this excellent witness, even failure in justice, -honesty, and utility, as well as in legality, may be the ground of -impeachment; and the Administration should in all great matters of -policy be subject to the two Houses of Parliament,--the House of -Commons to impeach, and the House of Lords to try. Here again the case -of Andrew Johnson is provided for. - -Our best American lights are similar, beginning with the “Federalist” -itself, which teaches that impeachment is for “those offences which -proceed from _the misconduct of public men_, or, in other words, from -the abuse or violation of some public trust: they are of a nature which -may with peculiar propriety be denominated _political_, as they relate -chiefly to injuries done immediately to the society itself.”[159] If -ever injuries were done immediately to society itself, if ever there -was an abuse or violation of public trust, if ever there was misconduct -of a public man, all these are now before us in the case of Andrew -Johnson. The “Federalist” has been echoed ever since by all who have -spoken with knowledge and without prejudice. First came the respected -commentator, William Rawle, who specifies among causes of impeachment -“the fondness for the inordinate extension of power,” “the influence -of party and of prejudice,” “the seductions of foreign states,” “the -baser appetite for illegitimate emolument,” and “the involutions -and varieties of vice, too many and too artful to be anticipated by -positive law,” all resulting in what the commentator says are “not -unaptly termed _political offences_.”[160] And thus Rawle unites with -the “Federalist” in stamping upon impeachable offences the epithet -“political.” If in the present case there has been on the part of -Andrew Johnson no base appetite for illegitimate emolument and no -yielding to foreign seductions, there has been most notoriously the -influence of party and prejudice, also to an unprecedented degree an -individual extension of power, and an involution and variety of vice -impossible to be anticipated by positive law,--all of which, in gross -or in detail, is impeachable. Here it is in gross. Then comes Story, -who, writing with the combined testimony of English and American -history before him, and moved only by a desire of truth, records -his opinion with all the original emphasis of the “Federalist.” His -words are like a judgment. The process of impeachment, according to -him, is intended to reach “personal misconduct, or gross neglect, or -usurpation, or habitual disregard of the public interests, in the -discharge of the duties of _political office_”; and the commentator -adds, that it “is to be exercised over offences which are committed -by public men in violation of their public trust and duties,” that -“the offences to which it is ordinarily applied are of a _political_ -character,” and that, strictly speaking, “the power partakes of a -_political_ character.”[161] Every word here is like an ægis for the -present case. The later commentator, Curtis, is, if possible, more -explicit even than Story. According to him, an impeachment “is not -necessarily a trial for crime”; its purposes “lie wholly beyond the -penalties of the statute or the customary law”; and this commentator -does not hesitate to say that it is a proceeding “to ascertain _whether -cause exists for removing a public officer from office_”; and he -adds, that such cause of removal “may exist where no offence against -positive law has been committed,--as where the individual has, from -immorality, or imbecility, _or maladministration, become unfit to -exercise the office_.”[162] Here again the power of the Senate over -Andrew Johnson is vindicated so as to make all doubt or question absurd. - -I close this question of impeachable offences by asking you to consider -that all the cases which have occurred in our history are in conformity -with the rule which so many commentators have announced. The several -trials of Pickering, Chase, Peck, and Humphreys exhibit its latitude -in different forms. Official misconduct, including in the cases of -Chase and Humphreys offensive utterances, constituted the high crimes -and misdemeanors for which they were respectively arraigned. These are -precedents. Add still further, that Madison, in debate on the power -of removal, at the very beginning of our Government, said: “I contend -that _the wanton removal of meritorious officers_ would subject the -President to impeachment and removal from his own high trust.”[163] But -Andrew Johnson, standing before a crowd, said of meritorious officers -that he would “kick them out,”[164] and forthwith proceeded to execute -his foul-mouthed menace. How small was all that Madison imagined, how -small was all that was spread out in the successive impeachments of our -history, if gathered into one case, compared with the terrible mass now -before us! - -From all these concurring authorities, English and American, it is -plain that impeachment is a power broad as the National Constitution -itself, and applicable to the President, Vice-President, and all civil -officers through whom the Republic suffers or is in any way imperilled. -Show me an act of evil example or influence committed by a President, -and I show you an impeachable offence, great in proportion to the -scale on which it is done, and the consequences menaced. The Republic -must receive no detriment; and impeachment is a power by which this -sovereign rule is maintained. - - -UNTECHNICAL FORM OF PROCEDURE. - -The form of procedure has been noticed in considering the political -character of impeachment; but it deserves further treatment by itself. -Here we meet the same latitude. It is natural that the trial of -political offences, before a political body, with a political judgment -only, should have less of form than a trial at Common Law; and yet this -obvious distinction is constantly disregarded. The authorities, whether -English or American, do not leave the question open to doubt. - -An impeachment is not a technical proceeding, as at _Nisi Prius_ or in -a county court, where the rigid rules of the Common Law prevail. On -the contrary, it is a proceeding according to Parliamentary Law, with -rules of its own, unknown in ordinary courts. The formal statement and -reduplication of words, constituting the stock-in-trade of so many -lawyers, are exchanged for a broader manner, more consistent with the -transactions of actual life. The precision of history and of common -sense is enough, without the technical precision of an indictment. - -From time immemorial there has been a just distinction between -proceedings in Parliament and proceedings in the ordinary courts of -justice, which I insist shall not be abandoned. The distant reign of -Richard the Second, beyond the misfortunes touching us so much in -Shakespeare, supplies a presiding rule which has been a pole-star of -Constitutional Law; nor is this in any vague, uncertain language, but -in the most clear and explicit terms, illumined since by great lights -of law. - -On what was called an appeal in Parliament, or impeachment, it has -solemnly declared that the Lords were not of right obliged to proceed -according to the course or rules of the Roman law or according to the -law or usage of any of the inferior courts of Westminster Hall, but by -the law and usage of Parliament, which was itself a court. - - “In this Parliament [in the 11th year of King Richard the - Second, A. D. 1387-88] all the Lords then present, spiritual as - well as temporal, claimed as their franchise that the weighty - matters moved in this Parliament, and which shall be moved in - other Parliaments in future times, touching the peers of the - land, shall be managed, adjudged, and discussed by the course - of Parliament, and in no sort by the Law Civil, or by the - common law of the land, used in the other lower courts of the - kingdom.”[165] - -The Commons approved the proceedings, and it has been remarked, in an -important official report, that “neither then nor ever since have they -made any objection or protestation that the rule laid down by the Lords -… ought not to be applied to the impeachments of commoners as well as -peers.”[166] Accordingly Lord Coke declares, that “all weighty matters -in any Parliament moved concerning the peers of the realm, or commoners -in Parliament assembled, ought to be determined, and adjudged, and -discussed by the course of the Parliament, and not by the Civil -Law, nor yet by the common laws of this realm used in more inferior -courts.” Then, founding on the precedent of 11th Richard the Second, he -announces, that “judges ought not to give any opinion of _a matter of -Parliament_, because it is not to be decided by the common laws, but -_secundum legem et consuetudinem Parliamenti_”; and he adds, “So the -judges in divers Parliaments have confessed.”[167] - -But impeachment is “a matter of Parliament,” whether in England or in -the United States. It was so at the beginning, and has been ever since. - -Even anterior to Richard the Second the same conclusion was recognized, -with illustrative particularity, as appears by the trial of those who -murdered King Edward the Second, thus commented by an eminent writer on -Criminal Law, who was also an experienced judge, Foster:-- - - “It is well known, that, in parliamentary proceedings of - this kind, it is and ever was sufficient that matters appear - with proper light and certainty to a common understanding, - without that _minute exactness_ which is required in criminal - proceedings in Westminster Hall.”[168] - -Thus early was the “minute exactness” of a criminal court discarded, -while the proceedings were adapted to “a common understanding.” This -becomes important, not only as a true rule of procedure, but as an -answer to some of the apologists, especially the Senator from West -Virginia [Mr. VAN WINKLE], who makes technicality a rule and essential -condition. - -Accordingly by law and custom of Parliament we are to move; and here we -meet rules of pleading and principles of evidence entirely different -from those of the Common Law, but established and fortified by a long -line of precedents. This stands forth in the famous “Report from the -Committee of the House of Commons appointed to inspect the Lords’ -Journals in relation to their Proceedings on the Trial of Warren -Hastings,” which, beyond its official character, is enhanced as the -production of Edmund Burke. - - “Your Committee do not find that any rules of pleading, as - observed in the inferior courts, have ever obtained in the - proceedings of the High Court of Parliament, in a cause or - matter in which the whole procedure has been within their - original jurisdiction. Nor does your Committee find that any - demurrer or exception, as of false or erroneous pleading, hath - been ever admitted to any impeachment in Parliament, as not - coming within the form of the pleading.”[169] - -This principle appears in the great trial of Strafford, 16th Charles -the First, 1640-41, stated by no less a person than Pym, on delivering -a message of the Commons reducing the charges to more particularity: -“Not that they are bound by this way of _special_ charge; and -therefore, as they have taken care in their House, upon protestation, -that this shall be no prejudice to bind them from proceeding _upon -generals_ in other cases, and that they are not to be ruled by -proceedings in other courts, which protestation they have made for -preservation of power of Parliaments, so they desire that the like care -may be had in your Lordships’ House.”[170] In this broad language is a -just rule applicable to the present case. - -The question came to formal judgment on the memorable trial of the Tory -preacher, Sacheverell, March 10, 1709-10, impeached for high crimes -and misdemeanors, on account of two sermons in which he put forth the -doctrines of Non-Resistance and denounced the Revolution of 1688, by -which English liberty was saved. After argument on both sides, and -questions propounded by the Lords, the judges delivered their opinion -_seriatim_, that, by the law of England and the constant practice of -Westminster Hall, “the particular words supposed to be criminal ought -to be specified in indictments or informations.” And yet, in face of -this familiar and indisputable rule of the Common Law, thus pointedly -declared, the Lords solemnly resolved:-- - - “That, by the law and usage of Parliament, in prosecutions by - impeachments for high crimes and misdemeanors, by writing or - speaking, the particular words supposed to be criminal are not - necessary to be expressly specified in such impeachments.”[171] - -The respondent, being found guilty, moved in arrest of judgment:-- - - “That no entire clause, sentence, or expression, contained in - either of his sermons or dedications, is particularly set - forth in his impeachment, which he has already heard the - judges declare to be necessary in all cases of indictments or - informations.”[172] - -The Lord Chancellor, denying the motion, communicated to the respondent -the resolution already adopted after full debate and consideration, and -added:-- - - “So that, in their Lordships’ opinion, the law and usage - of the High Court of Parliament being a part of the law of - the land, and that usage not requiring the words should be - _expressly specified_ in impeachments, the answer of the - judges, which related only to the course used in indictments - and informations, does not in the least affect your case.”[173] - -And so the judgment was allowed to stand. - -The substantial justice of this proceeding is seen, when it is -considered that the whole of the libel had been read at length, so -that the respondent had the benefit of anything which could be alleged -in extenuation or exculpation, as if the libellous sermons had been -entered _verbatim_. The Report already cited presents the practical -conclusion:-- - - “It was adjudged sufficient to state the crime generally in the - impeachment. The libels were given in evidence; and it was not - then thought of, that nothing should be given in evidence which - was not specially charged in the impeachment.”[174] - -The principle thus solemnly adjudged was ever afterwards asserted by -the managers for the House of Commons in all its latitude, and with -an energy, zeal, and earnestness proportioned to the magnitude of the -interests involved,--as appeared conspicuously on the impeachment -for high treason of the Lords who had taken part in the Rebellion -of 1715 to bring back the Stuarts. Lord Wintoun, after conviction, -moved in arrest of judgment, and excepted against the impeachment for -error, on account of the treason not being described with sufficient -certainty,--the day on which the treason was committed not having -been alleged. The learned counsel, arguing that Parliamentary Law -was part of Common Law, submitted “whether there is not the same -certainty required in one method of proceeding at the Common Law as -in another.”[175] To this ingenious presentment, by which proceedings -in Parliament were brought within the grasp of the Common Law, the -able and distinguished managers replied with resolution, asserting the -supremacy of Parliamentary Law. Walpole, afterwards the famous Prime -Minister, began:-- - - “Those learned gentlemen seem to forget _in what court they - are_. They have taken up so much of your Lordships’ time - in quoting of authorities and using arguments to show your - Lordships what would quash an indictment in the courts below, - that they seem to forget they are now in a court of Parliament - and on an impeachment of the Commons of Great Britain.… I hope - it will never be allowed here as a reason, that what quashes - an indictment in the courts below will make insufficient an - impeachment brought by the Commons of Great Britain.”[176] - -The Attorney-General supported Walpole:-- - - “I would take notice that we are upon an impeachment, and - not upon an indictment. The courts below have set forms to - themselves, which have prevailed for a long course of time, - and thereby are become the forms by which those courts are to - govern themselves; but it never was thought that the forms - of those courts had any influence on the proceedings of - Parliament.”[177] - -Cowper, a brother of the Lord Chancellor of that name, said:-- - - “If the Commons, in preparing articles of impeachment, should - govern themselves by precedents of indictments, in my humble - opinion they would depart from the ancient, nay, the constant, - usage and practice of Parliament.”[178] - -Sir William Thomson followed:-- - - “The precedents in impeachments are not so _nice and precise in - form_ as in the inferior courts.”[179] - -The judges, in answer to questions propounded, declared the necessity -in indictments of mentioning “a certain day.” But the Lords, in -conformity with ancient usage, set aside this technical objection, and -announced:-- - - “That the impeachment is sufficiently certain in point of time, - according to the forms of impeachments in Parliament.”[180] - -Thus do authoritative precedents exhibit a usage of Parliament, or -Parliamentary Law, unlike that of the Common Law, which on trials of -impeachment seeks substantial justice, but is not “nice and precise in -form.” If the proceedings are not absolutely according to the rule of -reason, plainly the technicalities of the Common Law are out of place. -It is enough, if they are clear to “a common understanding,” without -the “minute exactness” of a criminal court. But this is according to -reason. A mere technicality, much more a quibble, often efficacious -on a demurrer, is a wretched anachronism, when we are considering a -question of political duty. Especially must this be so under the genius -of republican institutions. The latitude established in England cannot -be curtailed in the United States, and it becomes more essential in -proportion to the elevation of the proceedings. Ascending into the -region of history, the laws of history cannot be neglected. - -Even if the narrow rules and exclusions of the Common Law could be -tolerated on the impeachment of an inferior functionary, they must be -disclaimed on the trial of a chief magistrate, involving the public -safety. The technicalities of law were invented for protection against -power, not for the immunity of a usurper or tyrant. When set up for the -safeguard of the weak, they are respectable, but on impeachments they -are intolerable. Here again I cite Edmund Burke:-- - - “God forbid that those who cannot defend themselves upon their - merits and their actions may defend themselves behind those - fences and intrenchments that are made to secure the liberty - of the people, that power and the abusers of power should - cover themselves by those things which were made to secure - liberty!”[181] - -Never was there a case where this principle was more applicable than -now. - -The origin of impeachment in the National Constitution and contemporary -authority vindicate this very latitude. In this light the proceeding -was explained by the “Federalist,” in words which should be a guide -now:-- - - “_This can never be tied down by such strict rules_, either - in the delineation of the offence by the prosecutors or in - the construction of it by the judges, as in common cases - serve to limit the discretion of courts in favor of personal - security.”[182] - -This article was by Alexander Hamilton, writing in concert with -James Madison and John Jay. Thus, by the highest authority, at the -adoption of the National Constitution, it is declared that impeachment -“can never be tied down by strict rules,” and that this latitude is -applicable to “the delineation of the offence,” meaning thereby the -procedure or pleading, and also to “the construction of the offence,” -in both of which cases the “discretion” of the Senate is enlarged -beyond that of ordinary courts, and so the ancient Parliamentary Law is -vindicated, and the Senate is recognized within its sphere. - - -RULES OF EVIDENCE. - -From form of procedure I pass to rules of evidence; and here again the -Senate must avoid technicalities, and not allow any artificial rule to -shut out the truth. It would allow no such thing on the expulsion of a -Senator. How allow it on the expulsion of a President? On this account -I voted to admit all evidence offered during the trial,--believing, -in the first place, that it ought to be heard and considered, and, in -the second place, that, even if shut out from this Chamber, it could -not be shut out from the public, or be shut out from history, both -of which must be the ultimate judges. On the impeachment of Prince -Polignac and his colleagues of the French Cabinet, in 1830, for signing -the ordinances which cost Charles the Tenth his throne, some forty -witnesses were sworn, without objection, in a brief space of time, and -no testimony was excluded. An examination of the two volumes entitled -“Procès des Derniers Ministres de Charles X.” confirms what I say. This -example, which commends itself to the enlightened reason, seems in -harmony with declared principles of Parliamentary Law. - -As in pleadings, so in evidence, the Law of Parliament, and not the -Common Law, is the guide of the Senate. In other courts the rules vary, -as on trial by jury in the King’s Bench depositions are not received, -while in Chancery just the reverse is the case. The Court of Parliament -has its own rules. Here again I quote the famous Report:-- - - “No doctrine or rule of law, much less the practice of any - court, ought to have weight or authority in Parliament further - than as such doctrine, rule, or practice is agreeable to the - proceedings in Parliament, or hath received the sanction of - approved precedent there, _or is founded on the immutable - principles of substantial justice_, without which, your - Committee readily agrees, no practice in any court, high or - low, is proper or fit to be maintained.”[183] - -The true rule was enunciated:-- - - “The Court of Parliament ought to be open with great facility - to the production of all evidence, except that which the - precedents of Parliament teach them authoritatively to - reject, or which hath no sort of natural aptitude directly - or circumstantially to prove the case.… The Lords ought _to - enlarge, and not to contract, the rules of evidence_, according - to the nature and difficulties of the case.”[184] - -Its point appears in a single sentence:-- - - “To refuse evidence is to refuse to hear the cause.”[185] - -In striking harmony with this most reasonable conclusion is the -well-known postulate of Jeremy Bentham, who gave so much thought to the -Law of Evidence: “Evidence is the basis of justice: to exclude evidence -is to exclude justice.”[186] - -The precedents of impeachment, including the trials of Strafford, -Sacheverell, Macclesfield, and the Rebel Lords in 1715, and again in -1745, all illustrate the liberality of the proceedings, while the -judgment of Lord Hardwicke, in concurrence with the rest of the judges, -and with the support of the bar, announced, that “the judges and sages -of the law have laid it down that there is but _one_ general rule of -evidence,--the best that the nature of the case will admit.”[187] And -this is the master rule governing all subordinate rules. In harmony -with it is another announced by Lord Mansfield: “All evidence is -according to the subject-matter to which it is applied.”[188] These two -rules are expansive, and not narrow,--liberal, and not exclusive. They -teach us to regard “the nature of the case” and “the subject-matter.” -But the case is an impeachment, and the subject-matter is misbehavior -in high office. Before us is no common delinquent, whose offence is -against a neighbor, but the Chief Magistrate, who has done wrong to his -country. One has injured an individual, the other has injured all. Here -again I quote the Report:-- - - “The abuses stated in our impeachment are not those of mere - individual, natural faculties, but the abuses of civil and - political authority. The offence is that of one who has carried - with him, in the perpetration of his crimes, whether of - violence or of fraud, the whole force of the State.”[189] - -In such a case there must be a latitude of evidence commensurate with -the arraignment. And thus we are brought to the principle with which I -began. - -There are other rules, which it is not too late to profit by. One -relates to the burden of proof, and is calculated to have a practical -bearing. Another relates to matters of which the Senate will take -cognizance without any special proof, thus importing into the case -unquestionable evidence explaining and aggravating the transgressions -charged. - -1. Look carefully at the object of the trial. Primarily it is for the -expulsion of the President from office. Its motive is not punishment, -not vengeance, but the public safety. Nothing less could justify the -ponderous proceeding. It will be for the criminal courts to award the -punishment due to his offences. The Senate considers only how the -safety of the people, which is the supreme law, can be best preserved; -and to this end the ordinary rule of evidence is reversed. If on any -point you entertain doubts, the benefit of those doubts must be given -to your country; and this is the supreme law. When tried on indictment -in the criminal courts, Andrew Johnson may justly claim the benefit -of your doubts; but at the bar of the Senate, on the question of -expulsion from office, his vindication must be in every respect and on -each charge beyond a doubt. He must show that his longer continuance in -office is not inconsistent with the public safety,-- - - “Or at least so prove it, - That the probation bear no hinge nor loop - To hang a doubt on.” - -Anything short of this is to trifle with the Republic and its -transcendent fortunes. - -It is by insisting upon doubts that the apologists of the President, -at the bar and in the Senate, seek to save him. For myself, I see none -such; but assuming that they exist, then should they be marshalled for -our country. This is not a criminal trial, where the rule prevails. -Better the escape of many guilty than that one innocent should suffer. -This rule, so proper in its place, is not applicable to a proceeding -for expulsion from office; and who will undertake to say that any claim -of office can be set against the public safety? - -In this just rule of evidence I find little more than time-honored -maxims of jurisprudence, requiring interpretation always in favor -of Liberty. Early in the Common Law we were told that he is to be -adjudged impious and cruel who does not favor Liberty: _Impius et -crudelis judicandus est qui Libertati non favet_.[190] Blackstone, -whose personal sympathies were with power, is constrained to confess -that “the law is always ready to catch at anything in favor of -Liberty.”[191] But Liberty and all else are contained in the public -safety; they depend on the rescue of the country from a Presidential -usurper. Therefore should we now, in the name of the law, “catch at -anything” to save the Republic. - -2. There is another rule of evidence, which, though of common -acceptance in the courts, has peculiar value in this case, where it -must exercise a decisive influence. It is this: Courts will take -judicial cognizance of certain matters without any special proof on -the trial. Some of these are of general knowledge, and others are -within the special knowledge of the court. Among these, according to -express decision, are the frame of government, and the public officers -administering it; the accession of the Chief Executive; the sitting -of Congress, and its usual course of proceeding; the customary course -of travel; the ebbs and flows of the tide; _also whatever ought to be -generally known within the limits of the jurisdiction, including the -history of the country_. Besides these matters of general knowledge, -a court will take notice of its own records, the conduct of its own -officers, and whatever passes in its own presence or under its own -eyes. For all this I cite no authority; it is superfluous. I add -a single illustration from the great English commentator: “If the -contempt be committed in the face of the court, the offender may be -instantly apprehended and imprisoned, at the discretion of the judges, -without any further proof or examination.”[192] - -If this be the rule of courts, _a fortiori_ it must be the rule of the -Senate on impeachments; for we have seen, that, when sitting for this -purpose, the Senate enjoys a latitude of its own. Its object is the -Public Safety; and therefore no aid for the arrival at truth can be -rejected, no gate can be closed. But here is a gate opened by the sages -of the law, and standing open always, to the end that justice may not -fail. - -Applying this rule, it will be seen at once how it brings before the -Senate, without any further evidence, a long catalogue of crime, -affecting the character of the President beyond all possibility of -defence, and serving to explain the later acts on which the impeachment -is founded. It was in this Chamber, in the face of the Senate and -the ministers of foreign powers, and surrounded by the gaze of -thronged galleries, that Andrew Johnson exhibited himself in beastly -intoxication while he took his oath of office as Vice-President; and -all that he has done since is of record here. Much of it appears on our -Journals. The rest is in authentic documents published by the order of -the Senate. Never was record more complete. - -Here in the Senate we know officially how he made himself the attorney -of Slavery, the usurper of legislative power, the violator of law, the -patron of rebels, the helping hand of rebellion, the kicker from office -of good citizens, the open bung-hole of the Treasury, the architect -of the “Whiskey Ring,” the stumbling-block to all good laws by wanton -vetoes and then by criminal hindrances: all these things are known -here beyond question. To the apologists of the President, who set up -the quibbling objection that they are not alleged in the Articles of -Impeachment, I reply, that, even if excluded on this account from -judgment, they may be treated as evidence. They are the reservoir from -which to draw, in determining the true character of the later acts -for which the President is arraigned, and especially the _intent_ by -which he was animated. If these latter were alone, without connection -with transgressions of the past, they would have remained unnoticed, -impeachment would not have been ordered. It is because they are a -prolongation of that wickedness under which the country has so long -suffered, and spring from the same bloody fountain, that they are now -presented for judgment. They are not alone; nor can they be faithfully -considered without drawing upon the past. The story of the god Thor in -Scandinavian mythology is revived, whose drinking-horn could not be -drained by the strongest quaffer, for it communicated with the vast and -inexhaustible ocean. Andrew Johnson is our god Thor, and these latter -acts for which he stands impeached are the drinking-horn whose depths -are unfathomable. - - -OUTLINE OF TRANSGRESSIONS. - -From this review, showing how this proceeding is political in -character, before a political body, and with a political judgment, -being expulsion from office and nothing more,--then how the -transgressions of the President, in protracted line, are embraced under -“impeachable offences,”--then how the form of procedure is liberated -from ordinary technicalities of law,--and, lastly, how unquestionable -rules of evidence open the gates to overwhelming testimony,--I pass to -the consideration of the testimony, and how the present impeachment -became a necessity. I have already called it one of the last great -battles with Slavery. See now how the battle began. - -Slavery in all its pretensions is a defiance of law; for it can have -no law in its support. Whoso becomes its representative must act -accordingly; and this is the transcendent crime of Andrew Johnson. -For the sake of Slavery, and to uphold its original supporters in -their endeavors to continue this wrong under another name, he has set -at defiance the National Constitution and the laws of the land; and -he has accompanied this unquestionable usurpation by brutalities and -indecencies in office without precedent, unless we go back to the Roman -emperor fiddling or the French monarch dancing among his minions. This -usurpation, with its brutalities and indecencies, became manifest as -long ago as the winter of 1866, when, being President, and bound by -oath of office to preserve, protect, and defend the Constitution, -and to take care that the laws are faithfully executed, he assumed -legislative powers in the reconstruction of the Rebel States, and, -in carrying forward this usurpation, nullified an Act of Congress, -intended as the corner-stone of Reconstruction, by virtue of which -Rebels are excluded from office under the National Government, and -thereafter, in vindication of this misconduct, uttered a scandalous -speech, in which he openly charged members of Congress with being -assassins, and mentioned some by name. Plainly he should have been -impeached and expelled at that early day. The case against him was -complete. That great patriot of English history, Lord Somers, has -likened impeachment to Goliath’s sword hanging in the Temple, to -be taken down only when occasion required;[193] but if ever there -was occasion for its promptest vengeance, it was then. Had there -been no failure at that time, we should be now by two years nearer -to restoration of all kinds, whether political or financial. So -strong is my conviction of the fatal remissness of the impeaching -body, that I think the Senate would do a duty in strict harmony -with its constitutional place in the Government, and the analogies -of judicial tribunals so often adduced, if it reprimanded the House -of Representatives for this delay. Of course the Senate could not -originate impeachment. It could not take down the sword of Goliath. It -must wait on the House, as the court waits on the grand jury. But this -waiting has cost the country more than can be told. - -Meanwhile the President proceeded in transgression. There is nothing -of usurpation he has not attempted. Beginning with assumption of all -power in the Rebel States, he has shrunk from nothing in maintenance of -this unparalleled assumption. This is a plain statement of fact. Timid -at first, he grew bolder and bolder. He saw too well that his attempt -to substitute himself for Congress in the work of Reconstruction was -sheer usurpation, and therefore, by his Secretary of State, did not -hesitate to announce that “it must be distinctly understood that the -restoration will be _subject to the decision of Congress_.”[194] On -two separate occasions, in July and September, 1865, he confessed the -power of Congress over the subject; but when Congress came together in -December, the confessor of Congressional power found that he alone had -this great prerogative. According to his new-fangled theory, Congress -had nothing to do but admit the States with governments instituted -through his will alone. It is difficult to measure the vastness of -this usurpation, involving as it did a general nullification. Strafford -was not bolder, when, speaking for Charles the First, he boasted that -“the King’s little finger was heavier than the loins of the Law”;[195] -but these words helped the proud minister to the scaffold. No monarch, -no despot, no sultan, could claim more than an American President; for -he claimed all. By his edict alone governments were organized, taxes -levied, and even the franchises of the citizen determined. - -Had this assumption of power been incidental, for the exigency of -the moment, as under pressure of war, and especially to serve human -rights, to which before his elevation the President had professed -such vociferous devotion, it might have been pardoned. It would have -passed into the chapter of unauthorized acts which a patriot people -had condoned. But it was the opposite in every particular. Beginning -and continuing in usurpation, it was hateful beyond pardon, because it -sacrificed Unionists, white and black, and was in the interest of the -Rebellion, and of Rebels who had been in arms against their country. - -More than one person was appointed provisional governor who could not -take the oath of office required by Act of Congress. Other persons -in the same predicament were appointed in the revenue service. The -effect of these appointments was disastrous. They were in the nature -of notice to Rebels everywhere, that participation in the Rebellion -was no bar to office. If one of their number could be appointed -governor, if another could be appointed to a confidential position in -the Treasury Department, there was nobody on the long list of blood -who might not look for preferment. And thus all offices, from governor -to constable, were handed over to disloyal scramble. Rebels crawled -forth from their retreats. Men who had hardly ventured to expect life -were candidates for office, and the Rebellion became strong again. -The change was felt in all gradations of government, in States, -counties, towns, and villages. Rebels found themselves in places of -trust, while true-hearted Unionists, who had watched the coming of -our flag and should have enjoyed its protecting power, were driven -into hiding-places. All this was under the auspices of Andrew Johnson. -It was he who animated the wicked crew. He was at the head of the -work. Loyalty was persecuted. White and black, whose only offence was -that they had been true to country, were insulted, abused, murdered. -There was no safety for the loyal man except within the flash of our -bayonets. The story is as authentic as hideous. More than two thousand -murders have been reported in Texas alone since the surrender of Kirby -Smith. In other States there was like carnival. Property, person, life, -were all in jeopardy. Acts were done to “make a holiday in Hell.” At -New Orleans was a fearful massacre, worse, considering the age and -place, than that of St. Bartholomew, which darkens a century of France, -or that of Glencoe, which has printed an ineffaceable stain upon one -of the greatest reigns of English history. All this is directly traced -to Andrew Johnson. The words of bitterness uttered at another time are -justified, while Fire, Famine, and Slaughter shriek forth,-- - - “He let me loose, and cried, Halloo! - To him alone the praise is due.”[196] - - -ACCUMULATION OF IMPEACHABLE OFFENCES. - -This is nothing but the outline, derived from historic sources _which -the Senate on this occasion is bound to recognize_. Other acts fall -within the picture. The officers he appointed in defiance of law were -paid also in the same defiance. Millions of property were turned -over without consideration to railroad companies, whose special -recommendation was participation in the Rebellion. The Freedmen’s -Bureau, that sacred charity of the Republic, was despoiled of its -possessions for the sake of Rebels, to whom their forfeited estates -were given back after they had been vested by law in the United States. -The proceeds of captured and abandoned property, lodged under law -in the National Treasury, were ravished from their place of deposit -and sacrificed. Rebels were allowed to fill the antechambers of the -Executive Mansion and to enter into the counsels. The pardoning -power was prostituted, and pardons were issued in lots to suit -Rebels, thus grossly abusing that trust whose discreet exercise is so -essential to the administration of justice. The powers of the Senate -over appointments were trifled with and disregarded by reappointing -persons already rejected, and by refusing to communicate the names -of others appointed during the recess. The veto power, conferred by -the National Constitution as a remedy for ill-considered legislation, -was turned by him into a weapon of offence against Congress, and into -an instrument to beat down the just opposition which his usurpation -had aroused. The power of removal, so sparingly exercised by patriot -Presidents, was seized as an engine of tyranny, and openly employed -to maintain his wicked purposes, by the sacrifice of good citizens -who would not be his tools. Incompetent and dishonest creatures, -recommended only by their echoes to his voice, were appointed to -office, especially in the collection of the internal revenue, through -whom a new organization, known as the “Whiskey Ring,” has been able -to prevail over the Government, and to rob the Treasury of millions, -at the cost of tax-paying citizens, whose burdens are thus increased. -Laws enacted by Congress for the benefit of the colored race, including -that great statute for the establishment of the Freedmen’s Bureau, -and that other great statute for the establishment of Civil Rights, -were first attacked by Presidential veto, and, when finally passed by -requisite majority over the veto, were treated by him as little better -than dead letter, while he boldly attempted to arrest a Constitutional -Amendment by which the rights of citizens and the national debt -were placed under the guaranty of irrepealable law. During these -successive assumptions, usurpations, and tyrannies, utterly without -precedent in our history, this deeply guilty man ventured upon public -speeches, each an offence to good morals, where, lost to all shame, -he appealed in coarse words to the coarse passions of the coarsest -people, scattering firebrands of sedition, inflaming anew the rebel -spirit, insulting good citizens, and, with regard to office-holders, -announcing, in his own characteristic phrase, that he would “kick them -out,”--the whole succession of speeches being, from their brutalities -and indecencies, in the nature of a “criminal exposure of his person,” -indictable at Common Law, for which no judgment can be too severe. -Even this revolting transgression has additional aggravation, when it -is considered, that, through these utterances, the cause of justice -was imperilled, and the accursed demon of civil feud lashed again into -vengeful fury. - -All these things, from beginning to end, are plain facts, recorded -in our annals, and known to all. And it is further recorded in our -annals and known to all, that, through these enormities,--any one -of which is ample for condemnation, while all together present an -aggregation of crime,--untold calamities have been brought upon our -country, disturbing business and finance, diminishing the national -revenues, postponing specie payments, dishonoring the Declaration of -Independence in its grandest truths, arresting the restoration of the -Rebel States, reviving the dying Rebellion, and, instead of that peace -and reconciliation so much longed for, sowing strife and wrong, whose -natural fruit is violence and blood. - - -OPEN DEFIANCE OF CONGRESS. - -For all these, or any one of them, Andrew Johnson should have been -impeached and expelled from office. The case required a statement only, -not an argument. Unhappily this was not done. As a petty substitute -for the judgment which should have been pronounced, and as a bridle on -Presidential tyranny in “kicking out of office,” Congress enacted a -law known as the Tenure-of-Office Act, passed March 2, 1867, over his -veto, by two thirds of both Houses.[197] And to prepare the way for -impeachment, by removing scruples of technicality, its violation was -expressly declared a high misdemeanor. - -The President began at once to chafe under its restraint. Recognizing -the Act, and following its terms, he first suspended Mr. Stanton from -office, and then, in anticipation of his restoration by the Senate, -made the attempt to win General Grant into surrender of the department, -so as to oust Mr. Stanton and render restoration by the Senate -ineffectual. Meanwhile Sheridan in Louisiana, Pope in Alabama, and -Sickles in South Carolina, who, as military commanders, were carrying -into the pacification of these States the energies so brilliantly -displayed in the war, were pursued by the same vindictive spirit. They -were removed by the President, and Rebellion throughout that whole -region clapped its hands. This was done in the exercise of his power -as Commander-in-Chief. At last, in unappeased rage, he openly violated -the Tenure-of-Office Act, so as to bring himself under its judgment, by -defiant attempt to remove Mr. Stanton from the War Department without -the consent of the Senate, and the appointment of Lorenzo Thomas, -Adjutant-General of the United States, as Secretary of War _ad interim_. - - -IMPEACHMENT AT LAST. - -The Grand Inquest of the nation, after sleeping on so many enormities, -was awakened by this open defiance. The gauntlet was flung into its -very chamber, and there it lay on the floor. The President, who had -already claimed everything for the Executive with impunity, now rushed -into conflict with Congress on the very ground selected in advance by -the latter. The field was narrow, but sufficient. There was but one -thing for the House of Representatives to do. Andrew Johnson must be -impeached, or the Tenure-of-Office Act would become a dead letter, -while his tyranny would receive a letter of license, and impeachment as -a remedy for wrong-doing would be blotted from the Constitution. - -Accordingly it was resolved that the offender, whose crimes had so long -escaped judgment, should be impeached. Once entered upon this work, -the House of Representatives, after setting forth the removal of Mr. -Stanton and the appointment of General Thomas in violation of law and -Constitution, proceeded further to charge him in different forms with -conspiracy wrongfully to obtain possession of the War Department; also -with attempt to corrupt General Emory, and induce him to violate an -Act of Congress; also with scandalous speeches, such as no President -could be justified in making; concluding with a general Article setting -forth attempts on his part to prevent the execution of certain Acts of -Congress. - -Such is a simple narrative, which brings us to the Articles of -Impeachment. Nothing I have said thus far is superfluous; for it shows -the origin of this proceeding, and illustrates its moving cause. The -Articles themselves are narrow, if not technical; but they are filled -and broadened by the transgressions of the past, all of which enter -into the present offences. The whole is an unbroken series, with -a common life. As well separate the Siamese twins as separate the -offences charged from that succession of antecedent crimes with which -they are linked, any one of which is enough for judgment. The present -springs from the past, and can be truly seen only in its light, which, -in this case, is nothing less than “darkness visible.” - - -ARTICLES OF IMPEACHMENT. - -In entering upon the discussion of the Articles of Impeachment, I -confess my regret that so great a cause, on which so much depends, -should be presented on such narrow ground, although I cannot doubt that -the whole past must be taken into consideration in determining the -character of the acts alleged. If there has been a violation of law -and Constitution, the apologists of the President then insist that all -was done with good intentions. Here it is enough, if we point to the -past, which thus becomes part of the case. But of this hereafter. It -is unnecessary for me to take time in setting forth the Articles. The -abstract is enough. They will naturally come under review before the -close of the inquiry. - -Of the transactions embraced by the Articles, the removal of Mr. -Stanton has unquestionably attracted most attention, although I -cannot doubt that the scandalous harangues are as justly worthy -of condemnation. But the former has been made the pivot of the -impeachment,--so much so that the whole case seems to revolve on this -transaction. Therefore I shall not err, if, following the Articles, I -put this foremost. - -This transaction may be brought to the touchstone of the National -Constitution, and also of the Tenure-of-Office Act. But since the -allegation of violation of this Act has been so conspicuous, and this -Act may be regarded as a Congressional interpretation of the power of -removals under the National Constitution, I begin with the questions -arising under it. - - -TENURE-OF-OFFICE ACT. - -The general object of the Tenure-of-Office Act was to protect civil -officers from removal without the advice and consent of the Senate; and -it was made in express terms applicable to “every person holding any -civil office to which he has been appointed by and with the advice and -consent of the Senate.” To this provision, so broad in character, was -appended a proviso:-- - - “_Provided_, That the Secretaries of State, of the Treasury, of - War, of the Navy, and of the Interior, the Postmaster-General, - and the Attorney-General, shall hold their offices respectively - for and during the term of the President by whom they may have - been appointed and for one month thereafter, subject to removal - by and with the advice and consent of the Senate.”[198] - -As this general protection from removal without the advice and consent -of the Senate might be productive of embarrassment during the recess of -the Senate, it was further provided, in a second section, that, during -such recess, any person, except judges of the United States courts, may -be suspended from office by the President on reasons assigned, which it -is made his duty to report to the Senate within twenty days after its -next meeting, and if the Senate concurs, then the President may remove -the officer and appoint a successor; but if the Senate does not concur, -then the suspended officer shall forthwith resume his functions. - -On this statute two questions arise: first, as to its -constitutionality, and, secondly, as to its application to Mr. Stanton, -so as to protect him from removal without the advice and consent of the -Senate. - -It is impossible not to confess in advance that both have been already -practically settled. The statute was passed over the veto of the -President by two thirds of both Houses, who thus solemnly united in -declaring its constitutionality. Then came the suspension of Mr. -Stanton, and his restoration to office by a triumphant vote of the -Senate, being no less than thirty-five to six,--thus establishing not -only the constitutionality of the statute, but also its protecting -application to Mr. Stanton. And then came the resolution of the Senate, -adopted, after protracted debate, on the 21st February, by a vote -of twenty-eight to six, declaring, that, under the Constitution and -laws of the United States, the President has no power to remove the -Secretary of War and to designate any other officer to perform the -duties of that office _ad interim_; thus for the third time affirming -the constitutionality of the statute, and for the second time its -protecting application to Mr. Stanton. There is no instance in our -history where there has been such a succession of votes, with such -large majorities, declaring the conclusions of the Senate, and fixing -them beyond recall. “Thrice is he armed that hath his quarrel just”; -but the Tenure-of-Office Act is armed _thrice_, by the votes of the -Senate. The apologists of the President seem to say of these solemn -votes, “Thrice the brinded cat hath mewed”; but such a threefold record -cannot be treated with levity. - -The question of the constitutionality of this statute complicates -itself with the power of removal under the National Constitution; but I -shall not consider the latter question at this stage. It will naturally -present itself when we consider the power of removal under the -National Constitution, which has been claimed by the President. For the -present I assume the constitutionality of the statute. - - -ITS APPLICATION TO MR. STANTON. - -I come at once to the question of the application of the statute to Mr. -Stanton, so as to protect him against removal without the consent of -the Senate. And here I doubt if any question would have arisen but for -the hasty words of the Senator from Ohio [Mr. SHERMAN], so often quoted -in this proceeding. - -Unquestionably the Senator from Ohio, when the report of the Conference -Committee of the two Houses was under discussion, stated that the -statute did not protect Mr. Stanton in his office; but this was the -individual opinion of this eminent Senator, and nothing more. On -hearing it, I cried from my seat, “The Senator must speak for himself”; -for I held the opposite opinion. It was clear to my mind that the -statute was intended to protect Mr. Stanton, and that it did protect -him. The Senator from Oregon [Mr. WILLIAMS], who was Chairman of the -Conference Committee and conducted its deliberations, informs us that -there was no suggestion in committee that the statute did not protect -all of the President’s Cabinet, including, of course, Mr. Stanton. -The debates in the House of Representatives are the same way. Without -holding the scales to weigh any such conflicting opinions, I rest on -the received rule of law, that they cannot be taken into account in -determining the meaning of the statute. And here I quote the judgment -of the Supreme Court of the United States, pronounced by Chief Justice -Taney:-- - - “In expounding this law, _the judgment of the Court cannot in - any degree be influenced by the construction placed upon it by - individual members of Congress in the debate which took place - on its passage_, nor by the motives or reasons assigned by them - for supporting or opposing amendments that were offered. The - law as it passed is the will of the majority of both Houses, - and the only mode in which that will is spoken is in the Act - itself; and we must gather their intention from the language - there used, comparing it, when any ambiguity exists, with the - laws upon the same subject, _and looking, if necessary, to the - public history of the times in which it was passed_.”[199] - -It is obvious to all acquainted with a legislative body that the rule -thus authoritatively declared is the only one that could be safely -applied. The Senate, in construing the present statute, must follow -this rule. Therefore I repair to the statute, stopping for a moment to -glance at the public history of the times, in order to understand its -object. - -We have seen how the President, in carrying forward his usurpation -in the interest of the Rebellion, trifled with the Senate in regard -to appointments, and abused the traditional power of removal, openly -threatening good citizens in office that he would “kick them out,” and -filling all vacancies, from high to low, with creatures whose first -promise was to sustain his barbarous policy. I do not stop to portray -this outrage, constituting an impeachable offence, according to the -declared opinion of Mr. Madison,[200] one of the strongest advocates of -the Presidential power of removal. Congress, instead of adopting the -remedy suggested by this father of the Constitution, and expelling the -President by process of impeachment, attempted to wrest from him the -power he was abusing. For this purpose the Tenure-of-Office Act was -passed. It was deemed advisable to include the Cabinet officers within -its protection; but, considering the intimate relations between them -and the President, a proviso was appended, securing to the latter the -right of choosing them in the first instance. Its object was, where -the President finds himself, on accession to office, confronted by a -hostile Senate, to assure this right of choice, without obliging him to -keep the Cabinet of his predecessor; and accordingly it says to him, -“Choose your own Cabinet, but expect to abide by your choice, unless -you can obtain the consent of the Senate to a change.” - -Any other conclusion is flat absurdity. It begins by misconstruing the -operative words of the proviso, that the Cabinet officers “shall hold -their offices respectively for and during the term of the President by -whom they may have been appointed.” On the face there is no ambiguity -here. Only by going outside can any be found, and this disappears on a -brief inquiry. At the date of the statute Andrew Johnson had been in -office nearly two years. Some of his Cabinet were originally appointed -by President Lincoln; others had been formally appointed by himself. -But all were there equally by his approval and consent. One may do an -act himself, or make it his own by ratifying it, when done by another. -In law it is equally his act. Andrew Johnson did not originally -appoint Mr. Stanton, Mr. Seward, or Mr. Welles, but he adopted their -appointments; so that at the passage of the statute they stood on the -same footing as if originally appointed by him. Practically, and in the -sense of the statute, they were appointed by him. They were a Cabinet -of his own choice, just as much as the Cabinet of his successor, duly -appointed, will be of his own choice. If the statute compels the -latter, as it clearly does, to abide by his choice, it is unreasonable -to suppose that it is not equally obligatory on Andrew Johnson. -Otherwise there is special immunity for the President whose misconduct -rendered it necessary, and Congress is exhibited as legislating for -some future unknown President, and not for Andrew Johnson, already too -well known. - -Even the Presidential apologists do not question that the members -of the Cabinet commissioned by Andrew Johnson are protected by the -statute. How grossly unreasonable to suppose that Congress intended to -make such a distinction among his Cabinet as to protect those whose -support of his usurpation had gained the seats they enjoyed, while -it exposed to his caprice a great citizen whose faithful services -during the war had won the gratitude of his country, whose continuance -in office was regarded as an assurance of public safety, and whose -attempted removal has been felt as a national calamity! Clearly, then, -it was the intention of the statute to protect the whole Cabinet, -whether originally appointed by Andrew Johnson, or originally appointed -by his predecessor and continued by him. - -I have no hesitation in saying that no other conclusion is possible -without violence to the statute. I cannot forget, that, while we are -permitted “to open the law upon doubts,” we are solemnly warned “not -to open doubts upon the law.”[201] It is Lord Bacon who gives us this -rule, whose obvious meaning is, that, where doubts do not exist, they -should not be invented. It is only by this forbidden course that any -question can be raised. If we look at the statute in its simplicity, -its twofold object is apparent,--first, to prohibit removals, and, -secondly, to limit certain terms of service. The prohibition to remove -plainly applies to all; the limitation of service applies only to -members of the Cabinet. I agree with the excellent Senator from Iowa -[Mr. HARLAN], that this analysis removes all ambiguity. The pretension -that any one of the Cabinet was left to the unchecked power of the -President is irreconcilable with the concluding words of the proviso, -which declare that they shall be “subject to removal by and with the -advice and consent of the Senate,”--thus expressly excluding the -prerogative of the President. - -Let us push this inquiry still further, by looking more particularly at -the statute reduced to a skeleton, so that we may see its bones. - -1. _Every person holding any civil office_, by and with the advice -and consent of the Senate, is entitled to hold such office until a -successor is appointed. - -2. If members of the Cabinet, _then during the term of the President by -whom they have been appointed_, and one month thereafter, unless sooner -removed by consent of the Senate. - -Mr. Stanton obviously falls within the general class, “every person -holding any civil office”; and he is entitled to the full benefit of -the provision for their benefit. - -As obviously he falls within the sub-class, members of the Cabinet. - -Here his rights are equally clear. It is in the discussions under this -head that the ingenuity of lawyers has found amplest play, mainly -turning upon what is meant by “term” in the statute. I glance for a -moment at some of these theories. - -1. One pretension is, that, the “term” having expired with the life -of President Lincoln, Mr. Stanton is retroactively legislated out -of office on the 15th May, 1865. As this is a penal statute, this -construction makes it _ex post facto_, and therefore unconstitutional. -It also makes Congress enact the absurdity that Mr. Stanton had for two -years been holding office illegally; whereas he had been holding under -the clearest legal title, which could no more be altered by legislation -than black could be made white. A construction rendering the statute at -once unconstitutional and absurd must be rejected. - -2. The quibble that would exclude Mr. Stanton from the protection -of the statute, because he was appointed during the first “term” of -President Lincoln, and the statute does not speak of “terms,” is hardly -worthy of notice. It leads to the same absurd results as follow from -the first supposition, enhanced by increasing the retroactive effect. - -3. Assuming that the statute does not terminate Mr. Stanton’s right a -month after President Lincoln’s death, it is insisted that it must take -effect at the earliest possible moment, and therefore on its passage. -From this it follows that Mr. Stanton has been illegally in office -since the 2d of March, 1867, and that both he and the President have -been guilty of a violation of law, the former in exercising the duties -of an office to which he had no right, and the latter for appointing -him, or continuing him in office, without consent of the Senate, in -violation of the Constitution and the statute in question. This is -another absurdity to be rejected. - -Assuming, as is easy, that it is President Lincoln’s “term,” we have -the better theory, that it did not expire with his life, but continues -until the 4th of March, 1869, in which event Mr. Stanton is clearly -entitled to hold until a month thereafter. This construction is -entirely reasonable, and in harmony with the Constitution, and the -legislation under it. I confess that it is one to which I have often -inclined. - -This brings me back to the construction with which I began, and I -find Andrew Johnson the President who appointed Mr. Stanton. To make -this simple, it is only necessary to read “chosen” for “appointed” -in the statute,--or, if you please, consider the continuance of -Mr. Stanton in office, with the concurrence of the President, as a -practical appointment, or equivalent thereto. Clearly Mr. Stanton -was in office, when the statute passed, from the “choice” of the -President. Otherwise he would have been removed. His continuance was -like another commission. This carries out the intention of the framers -of the statute, violates no sound canon of construction, and is -entirely reasonable in every respect. Or, if preferred, we may consider -the “term” that of President Lincoln, and then Mr. Stanton would be -protected in office until one month after the 4th of March next. But -whether the “term” be of Andrew Johnson or President Lincoln, he is -equally protected. - -Great efforts have been made to show that Mr. Stanton does not come -within the special protection of the proviso, without considering the -irresistible consequence that he is then within the general protection -of the statute, being “a person holding a civil office.” Turn him -out of the proviso and he falls into the statute, unless you are as -imaginative as one of the apologists, who placed him in a sort of -intermediate limbo, like a lost spirit floating in space, as in one -of Flaxman’s Illustrations of Dante. But the imagination of this -conception cannot make us insensible to its surpassing absurdity. It is -utterly unreasonable, and every construction must be rejected which is -inconsistent with common sense. - - -SUSPENSION OF MR. STANTON RECOGNIZED HIM AS PROTECTED BY THE STATUTE. - -Here I might close this part of the case; but there is another -illustration. In suspending Mr. Stanton from office, as long ago as -August, the President himself recognized that he was protected by -the statute. The facts are familiar. The President, in formal words, -undertook to say that the suspension was by virtue of the Constitution; -but this was a dishonest pretext, in harmony with so much in his -career. Whatever he may say, his acts speak louder than his words. -In notice of the suspension to the Secretary of the Treasury, and -then again in a message to the Senate assigning his reasons for the -suspension, both being according to requirements of the statute, -he testified, that, in his judgment at that time, Mr. Stanton came -within its protection. If not, why thus elaborately comply with its -requirements? Why the notice to the Secretary of the Treasury? Why the -message to the Senate? All this was novel and without example. Why -write to General Grant of “being sustained” by the Senate? Approval or -disapproval of the Senate could make no difference in the exercise of -the power he now sets up. Approval could not confirm the suspension; -disapproval could not restore the suspended Secretary of War. In fine, -why suspend at all? Why exercise the power of suspension, when the -President sets up the power of removal? If Mr. Stanton was unfit for -office and a thorn in his side, why not remove him at once? Why resort -to this long and untried experiment merely to remove at last? There is -but one answer. Beyond all question the President thought Mr. Stanton -protected by the statute, and sought to remove him according to its -provisions, beginning, therefore, with his suspension. Failing in this, -he undertook to remove him in contravention of the statute, relying in -justification on his pretension to judge of its constitutionality, or -the pusillanimity of Congress, or something else “to turn up,” which -should render justification unnecessary. - -Clearly the suspension was made under the Tenure-of-Office Act, and -can be justified in no other way. From this conclusion the following -dilemma results: If Mr. Stanton was within the statute, by what right -was he removed? If he was not, by what right was he suspended? The -President may choose his horn. Either will be sufficient to convict. - -I should not proceed further under this head but for the new device -which makes its appearance under the auspices of the Senator from Maine -[Mr. FESSENDEN], who tells us, that, “whether Mr. Stanton came under -the first section of the statute or not, the President had a clear -right to suspend him under the second.” Thus a statute intended as a -bridle on the President gives the power to suspend Mr. Stanton, but -fails to give him any protection. This statement would seem enough. -The invention of the Senator is not less fallacious than the pretext of -the President. It is a device well calculated to help the President and -to hurt Mr. Stanton, with those who regard devices more than the reason -of the statute and its spirit. - -Study the statute in its reason and its spirit, and you cannot fail to -see that the second section was intended merely as a pendant to the -first, and was meant to apply to the cases included in the first, and -none other. It was a sort of safety-valve, or contrivance to guard -against possible evils from bad men who could not be removed during the -recess of the Senate. There was no reason to suspend a person who could -be removed. It is absurd to suppose that a President would resort to a -dilatory and roundabout suspension, when the short cut of removal was -open to him. Construing the statute by this plain reason, its second -section must have precisely the same sphere of operation as the first. -By the letter, Mr. Stanton falls within both; by the intention, it is -the same. It is only by applying to the first section his own idea of -the intention, and by availing himself of the letter of the second, -that the Senator is able to limit the one and to enlarge the other, so -as to exclude Mr. Stanton from the protection of the statute, and to -include him in the part allowing suspensions. Applying either letter or -spirit consistently, the case is plain. - -I turn for the present from the Tenure-of-Office Act, insisting that -Mr. Stanton is within its protection, and, being so, that his removal -was, under the circumstances, a high misdemeanor, aggravated by its -defiant purpose and the long series of transgressions which preceded -it, all showing a criminal intent. The apologies of the President will -be considered hereafter. - - -SUBSTITUTION OF ADJUTANT-GENERAL THOMAS AD INTERIM. - -The case of Mr. Stanton has two branches: first, his removal, and, -secondly, the substitution of Adjutant-General Thomas as Secretary of -War _ad interim_. As the former was contrary to positive statute, so -also was the latter without support in any Act of Congress. For the -present I content myself with the latter proposition, without opening -the question of Presidential powers under the National Constitution. - -The offender rests his case on the Act of Congress of February 13, -1795, which empowers the President, “in case of _vacancy_ in the office -of Secretary of State, Secretary of the Treasury, or of the Secretary -of the Department of War, … whereby they cannot perform the duties of -their said respective offices, … to authorize any person or persons, at -his discretion, to perform the duties of the said respective offices, -until a successor be appointed, or such vacancy be filled”; and the -supply of the vacancy is limited to six months.[202] Under this early -statute the President defends himself by insisting that there was a -“vacancy,” when, in fact, there was none. All this is in that unfailing -spirit of prerogative which is his guide. Here is assumption of power. -In fact, Mr. Stanton was at his office, quietly discharging its duties, -when the President assumed that there was a “vacancy,” and forthwith -sent the valiant Adjutant-General to enter upon possession. Assumption -and commission were on a par. There is nothing in any law of the land -to sanction either. Each testifies against the offender. - -The hardihood of this proceeding becomes more apparent, when it is -understood that this very statute of 1795, on which the offender -relies, was repealed by the statute of February 20, 1863,[203] passed -in our own day, and freshly remembered. The latter statute, by -necessary implication, obliterated the former. Such is the obvious -intention, and I do not hesitate to say that any other construction -leads into those absurdities which constitute the staple of the -Presidential apologists. The object of Congress was to provide a -substitute for previous statutes, restricting the number of vacancies -which might be filled and the persons who might fill them. And this was -done. - -As by the National Constitution all appointments must be with the -advice and consent of the Senate, therefore any legislation in -derogation thereof must be construed strictly; but the President -insists that it shall be extended, even in face of the constitutional -requirement. To such pretensions is he driven! The exception recognized -by the National Constitution is only where a vacancy occurs during the -recess of the Senate, when the President is authorized to appoint until -he can obtain the consent of the Senate, and no longer. Obviously, -cases may arise where sudden accident vacates the office, or where the -incumbent is temporarily disabled. Here was the occasion for an _ad -interim_ appointment, and the repealing statute, embodying the whole -law of the subject, was intended for such cases,--securing to the -President time to select a successor, and also power to provide for -a temporary disability. Such is the underlying principle, which it is -for us to apply. The expiration of a commission, which ordinary care -can foresee, is not one of the sudden emergencies for which provision -must be made; and assuming that vacancies by removal were contemplated, -which must be denied, it is plain that the delay required for the -examination of the case would give time to select a successor, while -removal without cause would never be made until a successor was ready. - -Look now at the actual facts, and you will see how little they come -within the reason of an _ad interim_ appointment. Evidently the -President had resolved to remove Mr. Stanton last summer. Months -elapsed, leaving his purpose without consummation till February. All -the intervening time was his to select a successor, being a period -longer than the longest fixed for the duration of an _ad interim_ -appointment by the very statutes under which he professed to act. In -conversation with General Sherman, a month before the removal, he -showed that he was then looking for a successor _ad interim_. Why not -a permanent successor? It took him only a day to find Mr. Ewing. If, -as there is reason to suppose, Mr. Ewing was already selected when -Adjutant-General Thomas was pushed forward, why appoint the latter -at all? Why not, in the usual way, transmit Mr. Ewing’s name as the -successor? For the excellent reason, that the offender knew the Senate -would not confirm him, and that therefore Mr. Stanton would remain in -office; whereas through an _ad interim_ appointment he might obtain -possession of the War Department, which was his end and aim. The _ad -interim_ appointment of General Thomas was, therefore, an attempt to -obtain possession of an office without the consent of the Senate, -precisely because the offender knew that he could not obtain that -consent. And all this was under pretext of an Act of Congress alike in -letter and spirit inapplicable to the case. - -Thus does it appear, that, while Mr. Stanton was removed in violation -of the Tenure-of-Office Act, Adjutant-General Thomas was appointed -Secretary of War _ad interim_ in equal derogation of the Acts of -Congress regulating the subject. - - -REMOVAL AND SUBSTITUTION AD INTERIM A VIOLATION OF THE CONSTITUTION. - -It remains to consider if the removal and substitution were not each -in violation of the National Constitution. The case is new, for never -until now could it arise. Assuming that the Tenure-of-Office Act does -not protect Mr. Stanton, who is thus left afloat in the limbo between -the body of the Act and the proviso, then the President is remitted to -his prerogative under the National Constitution, and he must be judged -accordingly, independently of statute. Finding the power of removal -there, he may be justified; but not finding it there, he must bear the -consequences. And here the Tenure-of-Office Act furnishes a living and -practical construction of the National Constitution from which there is -no appeal. - -From the Constitution it appears that the power of appointment is -vested in the President and Senate conjointly, and that nothing is said -of the power of removal, except in case of impeachment, when it is -made by the Senate. Therefore the power of removal is not express, but -implied only, and must exist, if at all, as a necessary consequence -of the power to appoint. But in whom? According to a familiar rule, -the power which makes can unmake. Unless this rule be rejected, the -power of removal must exist in the President and Senate conjointly; -nor is there anything unreasonable in this conclusion. Removal can -always be effected during the session of the Senate by the nomination -and confirmation of a successor, while provision can be made for the -recess by an Act of Congress. This conclusion would be irresistible, -were the Senate always in session; but since it is not, and since cases -may arise during the recess requiring the immediate exercise of this -power, it has been argued that at least during the recess it must be in -the President alone. From this position there has been a jump to the -next, and it has been insisted, that, since, for the sake of public -convenience, the power of removal exists in the President, he is at -liberty to exercise it either during the recess or the session itself. -Here is an obvious extension of the conclusion, which the premises do -not warrant. The reason failing, the conclusion must fail. _Cessante -ratione legis, cessat ipsa lex._ Especially must this be the case -under the National Constitution. A power founded on implied necessity -must fail when the necessity does not exist. The implication cannot be -carried beyond the reason. Therefore the power of removal during the -recess, doubtful at best, unless sanctioned by Act of Congress, cannot -be extended to justify the exercise of that power while the Senate is -in session, ready to act conjointly with the President. - -Against this natural conclusion, we have the assumption that a contrary -construction of the National Constitution was established after debate -in 1789. I avoid all details with regard to this debate, cited and -considered so often. I content myself by asking if at best it was -anything but a Congressional construction of the National Constitution, -and, as such, subject to be set aside by another voice from the same -quarter. It was, moreover, a Congressional construction adopted -during the administration of Washington, whose personal character -must have influenced opinion largely; and it prevailed in the House -of Representatives only after earnest debate by a majority of twelve, -and in the Senate only by the casting vote of the Vice-President, John -Adams, who, from position as well as principle, was not inclined to -shear the President of any prerogative. Once adopted, and no strong -necessity for a change occurring, it was allowed to go unaltered, but -not unquestioned. Jurists like Kent and Story, statesmen like Webster, -Clay, Calhoun, and Benton, recorded themselves adversely, and it was -twice reversed by vote of the Senate. This was in 1835 and again in -1836, when a bill passed the Senate, introduced by Mr. Calhoun and -sustained by the ablest statesmen of the time, practically denying the -power of the President.[204] The Tenure-of-Office Act was heralded in -1863 by a statute making the Comptroller of the Currency removable “by -and with the advice and consent of the Senate,”[205]--thus, in this -individual case, asserting for the Senate a check on the President; -and then in 1866, by a more important measure, being the provision -in the Army Appropriation Act,[206] that “no officer in the military -or naval service shall in time of peace be dismissed from service, -except upon and in pursuance of the sentence of a court-martial,”--thus -putting another check on the President. Finally, this Congressional -construction, born of a casting vote, and questioned ever since, has -been overruled by another Congressional construction, twice adopted -in both Houses, first by large majorities on the original passage of -the Tenure-of-Office Act, and then by a vote of two thirds on the -final passage of the same Act over the veto of the President,--and -then again adopted by more than two thirds of the Senate, when the -latter condemned the removal of Mr. Stanton: and all this in the light -of experience, after ample debate, and with all the consequences -before them. Such a Congressional construction must have a controlling -influence, and the fact that it reversed the practice of eighty years -and overcame the disposition to stand on the ancient ways would seem to -increase rather than diminish its weight. - -Now mark the consequences. Originally, in 1789, there was a -Congressional construction which in effect made the National -Constitution read,-- - - “The President _shall have_ the power of removal.” - -For the next eighty years all removals were made under this -construction. The Tenure-of-Office Act was a new Congressional -construction, overruling the first, and entitled to equal, if not -superior weight. By virtue of this Congressional construction the -National Constitution now reads,-- - - “The President _shall not have_ the power of removal.” - -It follows, then, that in removing Mr. Stanton the President violated -the National Constitution as now construed. - -The dilemma is this: If the President can remove Mr. Stanton during -the session of the Senate, without any power by statute, it is only by -virtue of a prerogative vested in him by the National Constitution, -which must necessarily override the Tenure-of-Office Act, as an -unconstitutional effort to abridge it. If, on the other hand, this Act -is constitutional, the prerogative of removal is not in the President, -and he violated the National Constitution when he assumed to exercise -it. - -The Tenure-of-Office Act cannot be treated otherwise than as -constitutional,--certainly not in the Senate, where some among the -apologists of the President voted for it. Therefore the prerogative -of removal is not in the President. The long practice which grew up -under a mere reading of the National Constitution has been declared -erroneous. To this extent the National Constitution has been amended, -and it is as absurd to plead the practice under the first reading, in -order to justify an offence under the second, as to plead the existence -of Slavery before the Constitutional Amendment, in order to justify -this monstrosity now. - -Thus must we conclude that the offender has violated not only the -Tenure-of-Office Act, but also the National Constitution; that, even -assuming Mr. Stanton unprotected by the statute, the case is not ended; -that this statute, if construed so as to exclude him, cannot be -rejected as a Congressional construction of the National Constitution; -and that, under this Congressional construction, which in value is -second only to a Constitutional Amendment, the prerogative of removal -without the consent of the Senate does not belong to the President. -Of course the power of suspension under the National Constitution, -which is only an incident of the larger pretension, must fall also. -Therefore, in the defiant removal of Mr. Stanton, and also in the -pretended suspension under the National Constitution with which the -transaction began, the President violated the Constitution, and was -guilty of an impeachable offence. - -And so, too, we must conclude, that, in the substitution of Lorenzo -Thomas as Secretary of War _ad interim_, the offender violated not only -the Acts of Congress for the supply of vacancies, but also the National -Constitution. Knowing that he could not obtain possession of the office -with the consent of the Senate, he sought to accomplish this purpose -without that consent. Thus, under color of a statute, he practically -set the National Constitution at defiance. Mark here the inconsistency. -He violates the Tenure-of-Office Act, alleging that it is against the -National Constitution, whose champion he professes to be, and then -takes advantage of the Acts of Congress for the supply of vacancies to -set aside this Constitution in one of its most important requirements; -for all which he is justly charged with an impeachable offence. - -All this seems clear. Any other conclusion gives to the President -the power under the National Constitution to vacate all national -offices, and leaves the Republic the wretched victim of tyranny, with -a ruler who is not even a constitutional monarch, but a king above -all laws. It was solemnly alleged in the Charge against Charles the -First of England, that, “being admitted King of England, and therein -trusted with a limited power _to govern by and according to the laws -of the land, and_ NOT OTHERWISE,” he nevertheless undertook “_to rule -according to his will_, and to overthrow the rights and liberties of -the people.”[207] These very words now declare the crime of Andrew -Johnson. - - -THE APOLOGIES. - -Here I might close; but the offender has found apologists, who plead -his cause at the bar and in the Senate. The apologies are a strange -compound, enlarging rather than diminishing the offences proved. There -is, first, the Apology of Good Intentions; next, the Apology of making -a case for the Supreme Court, being the Moot-Court Apology; and then, -the Apology that the President may sit in judgment on the laws, and -determine whether they shall be executed, which I call the Apology of -Prerogative. Following these is a swarm of technicalities, devices, and -quibbles, utterly unworthy of the Senate, and to be reprobated by all -who love justice. - - -THE APOLOGY OF GOOD INTENTIONS. - -I begin with the Apology of Good Intentions. In the light of all that -has occurred, with the volume of history open before us, with the -records of the Senate in our hands, and with the evidence at the bar -not utterly forgotten, it is inconceivable that such an apology can be -put forward. While making it, the apologists should be veiled, so that -the derisive smile on their faces may not be observed by the Senate, to -whose simplicity it is addressed. It is hard to treat this apology; but -it belongs to the case, and therefore I deal with it. - -A mere technical violation of law, with no evil consequences, and -without any claim of title, is followed by nominal damages only. If -a person, without permission, steps on a field of grass belonging -to another, he is a trespasser, and the law furnishes a familiar -proceeding against him; but if he has done this accidentally, and -without any real damage, it would be hard to pursue him, unless -assertion of the title were thought important. But if the trespasser -is an old offender, who from the beginning has broken fences, ruined -trees, and trampled down the garden, and now defiantly comes upon the -field of grass, insisting upon absolute ownership, then it is vain to -set up the apology that very little damage is done. The antecedent -transgressions, ending in claim of title, enter into the present -trespass, and make it a question whether the rightful owner or the -trespasser shall hold possession. Here the rightful owner is the people -of the United States, and the trespasser is Andrew Johnson. Therefore -in the name of the people is he impeached. - -This simple illustration opens the whole case. Mere technical violation -of statute or of Constitution, without antecedents and without -consequents, would not justify impeachment. All of us can recall such, -even in the administration of Abraham Lincoln; and I cannot doubt, -that, since this proceeding began, the Chief Justice violated the -National Constitution when he undertook to give a casting vote, not -being a member of the Senate. These were accidents, besides being -innocuous. From violation of statute or of Constitution the law -ordinarily infers evil intent, and, where such a case is submitted to -judgment, it throws upon the violator the burden of exculpation. He -must show that his conduct was innocent,--in other words, that it was -without evil intent, or claim of title. In the present cause we have -the denial of evil intent, with a claim of title. - -The question of intent raised by the offender cannot be considered -narrowly. This is a trial of impeachment, and not a criminal case -in a county court. It is a proceeding for expulsion from office on -account of political offences, and not a suit at law. When the offender -sets up good intentions, he challenges inquisition, according to the -latitude of such proceeding. The whole past is unrolled by himself, and -he cannot prevent the Senate from seeing it. By a commanding rule of -evidence it is all before us without further proof. You cannot shut it -out; you cannot refuse to look at it. And yet we have been seriously -told that we must shut out from sight everything but the technical -trespass. It only remains, that, imitating the ostrich, we should -thrust our heads into the sand, and, not seeing danger, foolishly -imagine it does not exist. This may do at _Nisi Prius_; it will not do -in the Senate. - -To such extent has this ostrich pretension been carried, that we were -solemnly admonished at the bar, and the paradox has found voice in the -Senate, that we must judge the acts of Andrew Johnson “as if committed -by George Washington.” Here is the paradox in length and breadth. I -deny it. I scout it. On the contrary, I say that we must judge all -these acts as if committed by Andrew Johnson, and nobody else. In other -words, we must see things as they are. As well insist that an act of -guilt should be judged as the mistake of innocence. As well argue that -the stab of the assassin should be treated as the cut of the surgeon. - -To the Apology of Good Intentions I oppose all that long unbroken -series of transgressions, each with a voice to drown every pretext -of innocence. I would not repeat what I have already said, but, in -presence of this apology, it is my duty to remind the Senate how the -career of this offender is compounded of falsehood and usurpation; how, -beginning with promises to make treason odious, he soon installed it -in authority; how, from declared sympathy with Unionists, white and -black, he changed to be their persecutor; how in him are continued the -worst elements of Slavery, an insensibility to right and a passion -for power; how, in this spirit, he usurped great prerogatives not -belonging to him; how, in the maintenance of this usurpation, he stuck -at nothing; how he violated law; how he abused the pardoning power; -how he prostituted the appointing power; how he wielded the power of -removal to maintain his tyranny; how he sacrificed the Freedmen’s -Bureau, and lifted up the Whiskey Ring; how he patronized massacre and -bloodshed, and gave a license to the Ku-Klux-Klan; how, in madness, -he entered into conflict with Congress, contesting its rightful power -over the reconstruction of the Rebel States, and, when Congress -would not succumb to his usurpation, how he thwarted and vilified -it, expectorating foul-mouthed utterances which are a disgrace to -human nature; how he so far triumphed in his wickedness that in nine -States no Union man is safe and no murderer of a Union man can be -punished; and, lastly,--for time fails, though not the long list of -transgressions,--how he conspired against the patriot Secretary of -War, because he found in that adamantine character an obstacle to -his revolutionary career. And now, in the face of this terrible and -indisputable record, entering into and filling this impeachment, I hear -a voice saying that we must judge the acts in question “as if committed -by George Washington.” The statement of this pretension is enough. I -hand it over to the contempt it deserves. - - -THE MOOT-COURT APOLOGY. - -Kindred to the Apology of Good Intentions, or, perhaps, a rib out of -its side, is the Moot-Court Apology, which pretends that the President, -in removing Mr. Stanton, only wished to make a case for the Supreme -Court, and thus submit to this tribunal the constitutionality of the -Tenure-of-Office Act. - -By this pretension the Supreme Court is converted into a moot-court to -sit in judgment on Acts of Congress, and the President becomes what, in -the time of Charles the Second, Lord Keeper Guilford said a good lawyer -must be, “a put-case.”[208] Even assuming, against evidence, that -such was his purpose, it is hard to treat it without reprobation. The -Supreme Court is not arbiter of Acts of Congress. If this pretension -ever found favor, it was from the partisans of Slavery and State -Rights, who, assured of the sympathy of the Court, sought in this -way to complete an unjust triumph. The power claimed is tribunitial -in character, being nothing less than a veto. Its nearest parallel -in history is in the ancient Justicia of Aragon, who could set aside -even royal ordinances as unconstitutional. The National Constitution -leaves no doubt as to the proper functions of the Supreme Court. It -may hear and determine “all cases in law and equity arising under -the Constitution, the laws of the United States, and treaties made -under their authority”; but this is all. Its business is to decide -“cases,”--not to sit in judgment on Acts of Congress and issue its -tribunitial veto. If a “case” arises where a statute is said to clash -with the National Constitution, it must be decided as any other case of -conflict of laws. But nothing within the just powers of the Court can -touch an Act of Congress, except incidentally, and then its judgment is -binding only on the parties. The incidental reason assigned--as, for -instance, that a statute is unconstitutional--does not bind anybody, -not even the parties or the Court itself. Of course such incidental -reason cannot bind Congress. - -On the evidence it is clear enough that the President had no honest -purpose to make a case for the Supreme Court. He may have talked -about it, but he was never in earnest. When asked by General Sherman -“why lawyers could not make a case,” he said, in reply, “that it was -found impossible, or a case could not be made up.” And so at each -stage we find him practically discarding the idea. He issues the order -of removal. Mr. Stanton disobeys. Here was exactly his opportunity. -Instead of making the case by commencing the proper process, he tells -Adjutant-General Thomas to “go on and take possession of the office”; -and then, putting an end to this whole pretension of a case for the -Court, he proceeds to treat the latter in every respect, whether of -law or fact, as Secretary, welcomes him to his Cabinet, invites him -to present the business of his Department, and, so far from taking -advantage of the opportunity he had professed to desire, denies its -existence. How could he inquire by what authority Mr. Stanton assumed -to hold the office of Secretary of War, when he denied, in fact, that -he was holding it? - -Look a little further, and the reason of this indifference becomes -apparent. The old writ of _Quo Warranto_ was the only process -by which a case could be made, and this only at the suit of the -Attorney-General. Had the President made an order of removal, the -Secretary would have been compelled to hold only by virtue of the law -and the Constitution. In answer to the writ he would have pleaded -this protection, and the Court must have decided the validity of the -plea. Meanwhile he would have remained in office. Had he left, the -process would have failed, and there was none other by which he could -raise the question. The decision of the Supreme Court in _Wallace_ v. -_Anderson_[209] would prevent resort to a _Quo Warranto_ on his part, -while the earlier case of _Marbury_ v. _Madison_[210] would shut him -out from a _Mandamus_. The apologists have not suggested any other -remedy. It is clear, therefore, that Mr. Stanton’s possession of the -office was a _sine qua non_ to a case in the Supreme Court, and that -this could be only by _Quo Warranto_. The local attorney employed by -the President testifies that in such a case judgment could not be -reached within a year. This was enough to render it impracticable; -for, if commenced, it would leave the hated Secretary at his post -for the remainder of the Presidential term. During the pendency of -the proceeding Mr. Stanton would continue legitimate possessor of -the office. Therefore the commencement of a case would defeat the -Presidential passion for instant removal. True to his passion, he -removed the Secretary, well knowing that in this way he prevented a -case for the Court. - -Against this conclusion, where all the testimony is harmonized, -we have certain fruitless conversations with his Cabinet, and an -attempt to raise the question on _Habeas Corpus_ after the arrest of -Adjutant-General Thomas. Conversations, whose exclusion has given a -handle to the apologists, which they do not fail to use, only show that -the President made this question a subject of talk, and that, in the -end, it became apparent that he could not make a case so as to remove -Mr. Stanton during his term, and as this was his darling object, the -whole idea was abandoned. The arrest of Adjutant-General Thomas seemed -for a moment to furnish another chance; but it is enough to say of the -futile attempt at that time, that it was not only after the removal of -Mr. Stanton, but after impeachment had been voted by the House. - -Had the President been in earnest, it was very easy for him to make a -case by proceeding against a simple postmaster; but this did not suit -him. He was in earnest only to remove Mr. Stanton. - -Nothing is clearer than that this Moot-Court Apology is a wretched -pretension and afterthought. It is the subterfuge of a criminal to -cover up his crime,--as if a surgeon had committed murder, and then set -up the apology that it was an experiment in science. - - -THE APOLOGY OF PREROGATIVE. - -Then comes the Apology of Prerogative, being nothing less than the -intolerable pretension that the President can sit in judgment on Acts -of Congress, and, in his discretion, refuse to execute them. This -apology is in the nature of a claim of right. Let it be established, -and, instead of a government of laws, which is the glory of a republic, -we have only the government of a single man. Here is the one-man power -with a vengeance. - -Of course, if the President can sit in judgment on the Tenure-of-Office -Act, and set it aside as unconstitutional, there is no Act of Congress -he may not treat in the same way. He may set aside the whole succession -of statutes for the government of the army; and his interview with -General Emory attests his willingness to venture in that direction. -In the spirit of oppression which seems to govern him, he may set -aside the great statute for the establishment of civil rights without -distinction of color. But why confine myself to instances? The whole -statute-book will be subject to his prerogative. Vain the requirement -of the National Constitution, that the President “shall take care -that the laws be faithfully executed.” Vain that other requirement, -that a bill approved by two thirds of both Houses over his veto -“shall become a law.” His veto is perpetual; nor is it limited to any -special enactment. It is as broad as the whole recorded legislation -of the Republic. There is nothing it cannot hurry into that maelstrom -ingulfing all. - -The President considers the statute unconstitutional, say the -apologists. A mistake in judgment on such a question is not an -impeachable offence, add the apologists. To which I reply, that it -is not for mistake in judgment, but for usurpation in undertaking to -exercise his judgment at all on such a question, that he is impeached; -in other words, he is impeached for undertaking to set aside a statute. -Whether the statute is constitutional or not is immaterial. The -President, after the statute has become a law, is not the person to -decide. - -Ingenuity seeks to perplex the question by putting impossible -cases. For instance, suppose Congress should have lost its wits so -far as to enact, in direct terms, that the President should not be -commander-in-chief of the army and navy, or that he should not have -the power to grant pardons; and suppose, still further, that Congress, -in defiance of positive inhibition, should undertake to create -“titles of nobility”; must not the President treat such enactments as -unconstitutional? Of course he must; but such instances do not help -the prerogative now claimed. Every such enactment would be on its face -unconstitutional. It would be an act of unreasoning madness, which -President as well as Court must disregard as if plain nonsense. Its -unconstitutionality would be like an axiom, not to be questioned. -No argument or authority is needed. It proves itself. Nor would the -duty of disobedience be less obligatory, even if the enactment were -sanctioned by the Supreme Court: and it is not more violent for me to -suppose it sanctioned by the Supreme Court than for the apologists -to suppose it sanctioned by Congress. The enactment would be a -self-evident monstrosity, and therefore to be disobeyed, as if one of -the Ten Commandments were reversed so as to read, “Thou shalt kill.” -Such extreme cases serve no purpose. The National Constitution is the -supreme law of the land, and the people will not allow its axiomatic -requirements to be set aside. An illustration outside the limits of -reason is of no value. - -In the cases supposed, the unconstitutionally of the enactment is -axiomatic, excluding opinion or argument. It is matter of fact, and -not matter of opinion. When the case is one on which there are two -sides or two different views, it is then within the domain of argument. -It is in no sense axiomatic. It is no longer matter of fact, but -matter of opinion. When submitted to the Supreme Court, it is for -their “opinion.” Without occupying time with refinements, I content -myself with asserting that the judgment of the Court must be matter of -opinion. One of the apologists has asserted that such a judgment is -matter of fact, and, generally, that the constitutionality of a statute -is matter of fact. I assert the contrary. When a bench of judges stands -five to four, shall we say that the majority declare a “fact,” and the -minority declare an “opinion”? - -Assuming, then, what I think will not be denied, that the -constitutionality of a statute is matter of opinion, the question -occurs, What opinion shall be regarded for the time as decisive? -Clearly the opinion of Congress must control all executive officers, -from the lowest to the President. According to a venerable maxim of -jurisprudence, all public acts are presumed to be correct,--_Omnia rite -acta præsumuntur_. A statute must be presumed constitutional, unless -on its face the contrary; and no decision of any court is required in -its favor. It is the law of the land, and must be obeyed as such. -The maxim which presumes constitutionality is just as binding as the -analogous maxim of the Criminal Law which presumes innocence. The -President, reversing all this, presumes the statute unconstitutional, -and acts accordingly. In the name of Prerogative he sets it aside. - -The apologists have been driven to invoke the authority of -President Jackson, who asserted for himself the power to judge the -constitutionality of an Act of Congress which in the course of -legislation required his approval, although the question involved had -been already adjudged by the Supreme Court. And he was clearly right. -The Court itself would not be bound by its adjudication. How could it -constrain another branch of the Government? But Andrew Jackson never -put forth the pretension that it was within his prerogative to nullify -a statute which had been passed over his veto in the way prescribed by -the National Constitution. He was courageous, but there was no such -unconstitutional audacity in his life. - -The apologists also summon to their aid those great instances where -conscientious citizens have refused obedience to unjust laws. Such was -the case of Hampden, who set an example for all time in refusing to -pay ship-money. Such also was the case of many in our own country, who -spurned the Fugitive Slave Bill. These exalted characters, on their -conscience, refused to obey the law, and suffered accordingly. The -early Christians were required by imperial mandate to strew grain on -the altar of Jove. Though good citizens, they preferred to be martyrs. -Such a refusal can be no apology for a President, who, in the name of -prerogative, breaks the great oath to see that the laws are faithfully -executed. Rather do these instances, in their moral grandeur, rebuke -the offender. - -Here I turn from this Apology of Prerogative, regretting that I cannot -say more to unfold its destructive character. If anything could -aggravate the transgressions of Andrew Johnson, stretching in long line -from the beginning of his administration, it would be the claim of -right he sets up, under which the slenderest violation of law becomes -a high crime and misdemeanor, to be pursued and judged by an indignant -people. The supremacy of the laws must be preserved, or the liberties -of all will suffer. - - -TECHNICALITIES AND QUIBBLES. - -I now come upon that swarm of technicalities, devices, quirks, and -quibbles, which from the beginning have infested this proceeding. It is -hard to speak of such things without showing a contempt not entirely -parliamentary. To say that they are petty and miserable is not enough. -To say that they are utterly unworthy of this historic occasion is to -treat them politely. They are nothing but parasitic insects, “vermin -gendered in a lion’s mane,”--so nimble and numerous, that, to deal with -them as they skip about, one must have the patience of the Italian -peasant, who catches and kills, one by one, the diminutive animals -that infest his person. The public has not forgotten the exhibition of -“industrious fleas.” The Senate has witnessed the kindred exhibition of -“industrious quibbles.” - -I can give specimens only, and out of many I take one which can never -be forgotten. It is found in the Opinion of the Senator from West -Virginia [Mr. VAN WINKLE], which, from beginning to end, treats this -impeachment as if it were a prosecution for sheep-stealing in the -police-court of Wheeling, and brings to the defence the unhesitating -resources of a well-trained criminal lawyer. This famous Opinion, -which is without parallel in the annals of jurisprudence, must always -be admired as the marvel of technicality in a proceeding where -technicality should not intrude. It stands by itself, solitary in -originality. Others have been technical also, but the Senator from West -Virginia is nothing else. Travelling from point to point, or rather -seeing point after point skip before him, at last he lights upon one -of the largest dimensions, which he boldly seizes and presents to the -Senate. - -According to him, there is no allegation in the Articles that the -order for the removal of Mr. Stanton was actually delivered to him, -and, this being so, the Senator declares, that, “if there is evidence -of a delivery to be found in the proceedings, it cannot be applicable -to this Article, in which there is no charge or averment.” And this -is gravely uttered on this transcendent occasion, when an indignant -people has risen to demand judgment of a criminal ruler. The Article -alleges that the order was “unlawfully issued,” and nobody doubts that -its delivery was proved; but this is not enough, according to the -Senator. I challenge history for another instance of equal absurdity -in legal pretension. The case approaching it the closest is the famous -extravagance of the Crown lawyer in the British Parliament, who, in -reply to the argument of our fathers that they could not be taxed -without representation, bravely insisted that they were represented, -and sustained himself by declaring, that, under the Colonial charters, -the lands were held in common socage as “of the manor of Greenwich in -Kent,” and, as Greenwich was represented in Parliament, therefore the -Colonies were represented there.[211] The pretension was perfect in -form, but essentially absurd. The Senator from West Virginia outdoes -even this climax of technicality. Other generations, as they read this -great trial, with its accumulation of transgressions ending in the -removal of Mr. Stanton, will note with wonder that a principal reason -assigned for the verdict of Not Guilty was the failure of the Articles -to allege that the order for removal was actually received, although -there was a distinct allegation that it was “unlawfully issued,” -with evidence that it was received, and no human being, not even the -technical Senator, imagined that it was not. But how inconsistent -with the Law of Impeachment already set forth,[212] which seeks -substantial justice, and will not be arrested by any nice requirements! -Lord Mansfield did not hesitate to condemn certain objections as -“disgraceful subtilties.” What would he have said to the Senator from -West Virginia? - -There is another invention, which has in its support some of the -ablest of the apologists, like the Senator from Iowa [Mr. GRIMES], the -Senator from Maine [Mr. FESSENDEN], and the Senator from Illinois [Mr. -TRUMBULL]. It is said, that, as Mr. Stanton did not go out, therefore -there was no removal, and therefore Andrew Johnson is not guilty. If -the authority of names could change the unreal into the real, then -this pretension might have weight. It is impossible that anything so -essentially frivolous should be recognized in this proceeding. Such -are the shifts of a cause to be defended only by shifts! Clearly the -offence of the President was in the order “unlawfully issued,” and this -was complete at the moment of its delivery. So far as depended upon -him, Mr. Stanton was removed. This is the way in which the country -saw the transaction, and the way also in which it will be recorded by -history. - -But these same apologists, with curious inconsistency, when they come -to consider the appointment of Adjutant-General Thomas, insist that -there was vacancy in law, called by the Senator from Maine _legal_ -vacancy. But such vacancy could be only because there had been removal -in law. There is no escape from this consequence. If there was removal -in law, and there was no right to make it, the President was guilty of -misdemeanor in law, and must take the consequences. - -It would be unprofitable to follow these inventions further. From these -know all. In the face of Presidential pretensions inconsistent with -constitutional liberty, the apologists have contributed their efforts -to save the criminal by subtilties which can secure his acquittal in -form only, as by a flaw in an indictment; and they have done this, -knowing that he will be left in power to assert his prerogative, and -that his acquittal will be a new letter of license. Nothing the skill -of the lawyer could supply has been wanting. This learned profession -lends to the criminal all the arts in which it excels, giving all to -him and forgetting the Republic. Every doubt, every scruple, every -technicality, every subtilty, every quibble, is arrayed on his side, -when, by every rule of reason and patriotism, all should be arrayed -on the side of our country. The Public Safety, which is the supreme -law, is now imperilled. Are we not told by Blackstone that “the law is -always ready to catch at anything in favor of Liberty”?[213] But these -apologists catch at anything to save a usurper. In the early days of -the Common Law there were technicalities in abundance, but they were -for the maintenance of justice. On such was founded that extensive _ac -etiam_ jurisdiction of the King’s Bench, which gives occasion for the -elegant Commentator to remark, that, however startling these may be at -first to the student, “he will find them, upon further consideration, -to be highly beneficial and useful.”[214] These generous fictions for -the sake of justice must not be confounded with the devices by which -justice is defeated. - -The trick of the apologists has been, by stringent application of -technical rules, to shut out all except offences charged, and then, -when stress was laid upon these offences, to cry out that at most they -were only technical, and too trifling for impeachment. To satisfy -lawyers, the House weakly declined to act on the bloody transgressions -of two years, but sought to provide against the future. Like the -Roman ambassadors, they traced a line about the offender, which he -was not to pass except at peril. This was the line of law. At last -he passed the line, openly, knowingly, defiantly; and now that he is -arraigned, we are told that this plain offence is nothing, only a -little technicality. One of the counsel at the bar, [Mr. GROESBECK,] in -a speech which showed how much feeling and talent could be given to a -wrong side, exclaimed:-- - - “It almost shocks me to think that the President of the United - States is to be dragged out of his office on these miserable - little questions whether he could make an _ad interim_ - appointment for a single day.” - -Only by excluding the whole context and all its antecedents could the -question be reduced to this trivial form; and yet, even thus reduced, -it involved nothing less than the supremacy of the laws. - -I know not how such a question can be called “trifling.” Often a -great cause is presented on a narrow issue: as when English liberty -was argued on the claim of ship-money, which was a tax of a few -shillings only. Behind this question, called trifling by the kingly -apologists of that day, loftily stood the great cause of the People -against Prerogative, being the same now pending before the Senate. -That other cause, on which at a later day hung the destinies of this -continent, was presented on a narrower issue still. There was a tax -of threepence a pound on tea, which our fathers refused to pay. But -behind this question, so trifling to the apologists of prerogative, -as behind that of ship-money, stood loftily the same great cause. The -first cost Charles the First his head. The second cost George the Third -his colonies. If such a question can be disparaged as of small moment, -then have the martyred dead in all times suffered in vain, then was the -costly blood lavished for the suppression of our Rebellion an empty -sacrifice. - -Constantly we are admonished that we must confine ourselves to the -Articles. Senators express a pious horror at looking outside the -Articles, and insist upon directing attention to these only. Here -the Senator from Maine is very strong. It is “the specific offences -charged,” and these only, that he sees. He will not look at anything -else, although spread upon the record of the Senate, and filling the -land with accumulated horrors. Of course such a system of exclusion -sacrifices justice, belittles this trial, and forgets that essential -latitude of inquiry which belongs to a political proceeding, having -for its purpose expulsion from office only, and not punishment. It is -easy, by looking at an object through the wrong end of an opera-glass, -to find it dwarfed, contracted, and solitary. This is not the way to -look at Nature; nor is it the way to look at Andrew Johnson. The great -offender should be seen in the light of day, precisely as he is, nor -more nor less, with nothing dwarfed, with no limits to the vision, and -with all the immense background of thronging transgressions filling -the horizon as far as eye can reach. The sight may ache; but how else -can justice be done? A Senator who begins by turning these Articles -into an inverted opera-glass takes the first step towards judgment of -acquittal. Alas that the words of Burke are not true, when, asserting -the comprehensive character of impeachment, he denied, that, under it, -“they who have no hope at all in the justice of their cause can have -any hope that by some subtilties of form, some mode of pleading, by -something, in short, different from the merits of the cause, they may -prevail.”[215] The orator was right in thus indignantly dismissing all -questions of pleading and all subtilties of form. This proceeding is -of substance, and not of form. It is on the merits only that it can be -judged. Anything short of this is the sacrifice of justice. - -Such is the case of this enormous criminal. Events belonging to -history, enrolled in the records of the Senate, and familiar to the -country, are deliberately shut out from view, while we are treated to -legal niceties without end. The lawyers have made a painful record. -Nothing ever occurred so much calculated to bring the profession into -disrepute; for never before has been such a theatre where lawyers -were actors. Their peculiarities have been exhibited. Here was a -great question of justice, appealing to the highest sentiments, and -involving the best interests of the country; but lawyers, instinctive -for the dialectics of the profession, forgot everlasting truth, never -to be forgotten with impunity. They started at once in full cry, and -the quibble became to them what Dr. Johnson says it was to the great -dramatist: “He follows it at all adventures; it is sure to lead him out -of his way, and sure to ingulf him in the mire. It has some malignant -power over his mind, and its fascinations are irresistible.… A quibble -is the golden apple for which he will always turn aside from his -career, or stoop from his elevation. A quibble, poor and barren as it -is, gave him such delight that he was content to purchase it by the -sacrifice of reason, propriety, and truth.”[216] In this Shakespearean -spirit our lawyers have acted. They have pursued quibbles with the -ardor of the great dramatist, and even now are chasing them through the -Senate Chamber. - -Unhappily this is according to history, and our lawyers are not among -the splendid exceptions. But there is reward for those who stand -firm. Who does not reverence the exalted magistrate of France, the -Chancellor L’Hospital, who set the great example of rectitude and -perfect justice? Who does not honor those lawyers of English history -through whose toils Liberty was upheld? There was Selden, so wise and -learned; Pym, so grand in statesmanship; Somers, who did so much to -establish the best securities of the Constitution. Nor can I forget, -at a later day, that greatest advocate, Erskine, who lent to the -oppressed his wonderful eloquence; nor Mackintosh and Brougham, who -carried into courts that enlarged intelligence and sympathetic nature -which the profession of the law could not constrain. These are among -the names that have already had their reward, above the artful crowd -which in all times has come to the defence of prerogative. It is no -new thing that we witness now. The lawyer in other days has been, as -we know him, prone to the support of power, and ready with technical -reasons. Whichever side he takes, he finds reasons plenty as pins. -When free to choose, and not hired, his argument is the reflection of -himself. All that he says is his own image. He takes sides on a law -point according to his sentiments. Cultured in law, and with aptitude -sharpened by its contests, too easily he finds a legal reason for an -illegal judgment. Next to an outright mercenary, give me a lawyer to -betray a great cause. Forms of law lend themselves to the betrayal. -It is impossible to forget that the worst pretensions of prerogative, -no matter how colossal, have been shouldered by lawyers. It was they -who carried ship-money against the patriot exertions of Hampden; and -in our country it was they who held up Slavery in all its terrible -pretensions from beginning to end. What is sometimes called “the legal -mind” of Massachusetts, my own honored State, bent before the technical -reasoning which justified the unutterable atrocities of the Fugitive -Slave Bill, while the Supreme Court of the State adopted the crime from -the bench. Alas that it should be so! When will lawyers and judges see -that nothing short of justice can stand? - - -GUILTY ON ALL THE ARTICLES. - -After this survey it is easy for me to declare how I shall vote. My -duty is to vote, Guilty on all the Articles. If consistent with the -rules of the Senate, I should vote, “Guilty of all, and infinitely -more.” - -Not doubting that Mr. Stanton was protected by the Tenure-of-Office -Act, and that he was believed to be so by the President, it is clear -to me that the charges in the first and second Articles are sustained. -These two go together. I have said already, in the course of this -Opinion, that the appointment of Adjutant-General Thomas as Secretary -of War _ad interim_ was without authority of law, and under the -circumstances a violation of the National Constitution. Accordingly the -third Article is sustained. - -Then come what are called the Conspiracy Articles. Here also I am -clear. Plainly there was an agreement between the President and -Adjutant-General Thomas to obtain possession of the War Department, -and prevent Mr. Stanton from continuing in office, and this embraced -control of the mails and property belonging to the Department, all -of which was contrary to the Tenure-of-Office Act. Intimidation and -threats were certainly used by one of the conspirators, and in the case -of conspiracy the acts of one are the acts of all. The evidence that -force was intended is considerable, and all this must be interpreted by -the general character of the offender, his menacing speeches, and the -long series of transgressions preceding the conspiracy. I cannot doubt -that the conspiracy was to obtain possession of the War Department, -peaceably, if possible, forcibly, if necessary. As such it was -violation of law, demanding the judgment of the Senate. This disposes -of the fourth, fifth, sixth, and seventh Articles. - -The eighth Article charges that Adjutant-General Thomas was appointed -to obtain the control of moneys appropriated for the military service -and the Department of War. All this would be incident to the control of -the War Department. Controlling the latter, he would be able to wield -the former. The evidence applicable to the one is also applicable to -the other. - -The ninth Article opens a different question. This charges a wicked -purpose to corrupt General Emory and draw him from his military -duty. Not much passed between the President and the General; but it -was enough to show the President playing the part of Iago. There -was hypocritical profession of regard for the Constitution, while -betraying it. Here again his past character explains his purpose beyond -reasonable doubt. - -Then come the scandalous speeches, proved as set forth in the Articles, -so that even the Senator from West Virginia [Mr. VAN WINKLE] must admit -that evidence and pleading concur. Here is no question of form. To -my mind this is one of the strongest Articles. On this alone, without -anything else, I should deem it my duty to vote for expulsion from -office. A young lieutenant, at the bottom of the ladder, if guilty of -such things, would be cashiered promptly. A President, at the top of -the ladder, with less excuse from the inexperience of early life, and -with greater responsibility from the elevation he had reached, should -be cashiered promptly also; and this is the object of impeachment. -No person capable of such speeches should be allowed to govern this -country. It is absurd to tolerate the idea. Besides being degraded, the -country cannot be safe in such hands. The speeches are a revelation of -himself, not materially different from well-known incidents; but they -serve to exhibit him in his true character. They show him unfit for -official trust. They were the utterances of a drunken man; and yet it -does not appear that he was drunk. Now it is according to precedents of -our history that a person disqualified by drunkenness shall be removed -from office. This was the case of Pickering in 1804. But a sober man, -whose conduct suggests drunkenness, is as bad at least as if he were -drunk. Is he not worse? If without the explanation of drunkenness he -makes such harangues, I cannot doubt that his unfitness for office -becomes more evident, inasmuch as his deplorable condition is natural, -and not abnormal. The drunken man has lucid intervals; but where is the -assurance of a lucid interval for this perpetual offender? Derangement -is with him the normal condition. - -It is astonishing to find that these infamous utterances, where -ribaldry vies with blasphemy, have received a coat of varnish from -the Senator from Maine [Mr. FESSENDEN], who pleads that they were not -“official,” nor did they “violate the Constitution, or any provision -of the Statute or Common Law, either in letter or spirit.” In presence -of such apologies for revolting indecencies it is hard to preserve -proper calmness. Were they not uttered? This is enough. The drunkenness -of Andrew Johnson, when he took his oath as Vice-President, was not -“official”; but who will say that it was not an impeachable offence? -And who will say that these expectorations differ in vileness from that -drunkenness? If they did not violate the National Constitution, or any -provision of law, common or statute, as is apologetically alleged, I -cannot doubt that they violated the spirit of all laws. And then we are -further reminded by the apologist of that “freedom of speech” which is -a constitutional right; and thus, in the name of a great right, we are -to license utterances that shock the moral sense, and are a scandal to -human nature. Spirit of John Milton! who pleaded so grandly for this -great liberty, but would not allow it to be confounded with license, -speak now to save this Republic from the shame of surrender to an -insufferable pretension! - -The eleventh Article is the most comprehensive. In some respects it is -an _omnium gatherum_. In one mass is the substance of other Articles, -and something else beside. Here is an allegation of a speech by the -President in which he denied that Congress was a Congress, and then, -in pursuance of this denial, attempted to prevent the execution of -the Tenure-of-Office Act, also of an important clause in the Army -Appropriation Act, and also of the Reconstruction Act. Evidence -followed, sustaining completely the compound allegation. The speech -was made as set forth. The attempt to prevent the execution of the -Tenure-of-Office Act who can question? The attempt to corrupt General -Emory is in evidence. The whole history of the country shows how -earnest the President has been to arrest the Reconstruction Act, and -generally the Congressional scheme of Reconstruction. The removal of -Mr. Stanton was to be relieved of an impediment. I accept this Article -in gross and in detail. It has been proved in all its parts. - - -CONCLUSION. - -In the judgment which I now deliver I cannot hesitate. To my vision -the path is clear as day. Never in history was there a great case -more free from all just doubt. If Andrew Johnson is not guilty, then -never was a political offender guilty; and if his acquittal is taken -as a precedent, never can a political offender be found guilty. The -proofs are mountainous. Therefore you are now determining whether -impeachment shall continue a beneficent remedy in the National -Constitution, or be blotted out forever, and the country handed over -to the terrible process of revolution as its sole protection. If the -milder process cannot be made effective now, when will it ever be? -Under what influences? On what proofs? You wait for something. What? -Is it usurpation? You have it before you, open, plain, insolent. Is it -abuse of delegated power? That, too, you have in this offender, hardly -less broad than the powers he has exercised. Is it violation of law? -For more than two years he has set your laws at defiance; and when -Congress, by special enactment, strove to constrain him, he broke -forth in rebellion against the constitutional authority. Perhaps you -ask still for something more. Is it a long catalogue of crime, where -violence and corruption alternate, while loyal men are sacrificed and -the Rebellion is lifted to its feet? That also is here. - -The apologists are prone to remind the Senate that they are acting -under the obligation of an oath. So are the rest of us, even if we do -not ostentatiously declare it. By this oath, which is the same for all, -we are sworn to do “impartial justice.” It is justice, and this justice -must be impartial. There must be no false weights, and no exclusion -of proper weights. Therefore I cannot allow the jargon of lawyers -on mere questions of form to sway the judgment against justice. Nor -can I consent to shut out from view the long list of transgressions -explaining and coloring the final act of defiance. To do so is not -to render impartial justice, but to depart from this prescribed -rule. The oath we have taken is poorly kept, if we forget the Public -Safety in devices for the criminal. Above all else, now and forever, -is that justice which “holds the scales of right with even hand.” In -this sacred name, and in the name also of country, that great charity -embracing so many other charities, I make this final protest against -all questions of form at the expense of the Republic. - -Something also is said of the people, now watching our proceedings -with patriotic solicitude, and it has been proclaimed that they are -wrong to intrude their judgment. I do not think so. This is a political -proceeding, which the people are as competent to decide as the Senate. -They are the multitudinous jury, coming from no small vicinage, but -from the whole country: for on this impeachment, involving the Public -Safety, the vicinage is the whole country. It is they who have sent us -here, as their representatives, and in their name, to consult for the -common weal. In nothing can we escape their judgment, least of all on -a question like that before us. It is a mistake to suppose that the -Senate only has heard the evidence. The people have heard it also, -day by day, as it was delivered, and have carefully considered the -case on its merits, properly dismissing all apologetic subtilties. It -is for them to review what has been done. They are above the Senate, -and will “rejudge its justice.” Thus it has been in other cases. The -popular superstition which long surrounded the Supreme Court could -not save that eminent tribunal from condemnation, amounting sometimes -to execration, when, by an odious judgment, it undertook to uphold -Slavery; and down to this day Congress has justly refused to place the -bust of the Chief Justice pronouncing this judgment in the hall of the -tribunal where he presided so long. His predecessors are all there -in marble; no marble of Taney is there. The present trial, like that -in the Supreme Court, is a battle with Slavery. Acquittal is another -Dred Scott decision, and another chapter in the Barbarism of Slavery. -How can Senators, discharging a political function only, expect that -the voice of the people will be more tender for them than for a Chief -Justice pronouncing judgment from the bench of the Supreme Court, in -the exercise of judicial power? His fate we know. Nor learning, nor -private virtues, nor venerable years could save him from justice. -In the great pillory of history he stands, and there he must stand -forever. - -The people cannot witness with indifference the abandonment of the -great Secretary, who organized their armies against the Rebellion, and -then organized victory. Following him gratefully through the trials -of the war, they found new occasion for gratitude when he stood out -alone against that wickedness which was lifted to power on the pistol -of an assassin. During these latter days, while tyrannical prerogative -invaded all, he has kept the bridge. When, at a similar crisis of -English history, Hampden stood out against the power of the Crown, it -is recorded by the contemporary historian, Clarendon, that “he grew -the argument of all tongues; every man inquiring who and what he was, -that durst at his own charge support the liberty and property of the -kingdom, and rescue his country, as he thought, from being made a prey -to the Court.”[217] Such things are also said with equal force of our -Secretary. Nor is it forgotten that the Senate, by two solemn votes -of more than two thirds, has twice instructed him to stay at the War -Department, the President to the contrary notwithstanding. The people -will not easily understand on what principle of Constitution, law, or -morals, the Senate can twice instruct the Secretary to stay, and then, -by another vote, deliberately surrender him a prey to Presidential -tyranny. Talk of a somersault; talk of self-stultification: are not -both here? God save me from participation in this disastrous wrong, and -may He temper it kindly to our afflicted country! - -For myself, I cannot despair of the Republic. It is a life-boat, which -wind and wave cannot sink; but it may suffer much and be beaten by -storm. All this I clearly see before us, if you fail to displace an -unfit commander, whose power is a peril and a shame. - -Alas for all the evil that must break upon the country, especially in -the suffering South, as it goes forth that this bad man is confirmed in -the prerogatives he has usurped! - -Alas for that peace and reconciliation, the longing of good men, now -postponed! - -Alas for that security, so important to all, as the only foundation on -which to build, politically or financially! This, too, is postponed. -How can people found a government, or plant or buy, unless first secure? - -Alas for the Republic, degraded as never before, while the Whiskey Ring -holds its orgy of corruption, and the Ku-Klux-Klan holds its orgy of -blood! - -Alas for the hearts of the people, bruised to unutterable sadness, as -they witness a cruel tyranny installed once more! - -Alas for that race so long oppressed, but at last redeemed from -bondage, now plunged back into another hell of torment! - -Alas for the fresh graves already beginning to yawn, while violence, -armed with your verdict, goes forth, like another Fury, and murder is -quickened anew! - -Alas for the Unionists, white and black alike, who have trusted to our -flag! You offer them a sacrifice to persecutors whose representative -is before you for judgment. They are the last in my thoughts, as I -pronounce that vote which is too feeble to save them from intolerable -wrong and outrage. They are fellow-citizens of a common country, -brethren of a common humanity, two commanding titles, both strong -against the deed. I send them at this terrible moment the sympathy and -fellowship of a heart that suffers with them. So just a cause cannot -be lost. Meanwhile, may they find in themselves, and in the goodness of -an overruling Providence, that refuge and protection which the Senate -refuses to give! - - - - -CONSTITUTIONAL RESPONSIBILITY OF SENATORS FOR THEIR VOTES IN CASES OF -IMPEACHMENT. - -RESOLUTIONS IN THE SENATE, JUNE 3, 1868. - - - June 3d, Mr. Sumner submitted the following Resolutions, which - were read and ordered to be printed. - -Whereas a pretension has been put forth to the effect that the vote of -a Senator on an impeachment is so far different in character from his -vote on any other question that the people have no right to criticize -or consider it; and whereas such pretension, if not discountenanced, -is calculated to impair that freedom of judgment which belongs to -the people on all that is done by their representatives: Therefore, -in order to remove all doubts on this question, and to declare the -constitutional right of the people in cases of impeachment,-- - -1. _Resolved_, That, even assuming that the Senate is a Court in the -exercise of judicial power, Senators cannot claim that their votes are -exempt from the judgment of the people; that the Supreme Court, when it -has undertaken to act on questions essentially political in character, -has not escaped this judgment; that the decisions of this high tribunal -in support of Slavery have been openly condemned; that the memorable -utterance known as the Dred Scott decision was indignantly denounced -and repudiated, while the Chief Justice who pronounced it became a mark -for censure and rebuke; and that plainly the votes of Senators on an -impeachment cannot enjoy an immunity from popular judgment which has -been denied to the Supreme Court, with Taney as Chief Justice. - -2. _Resolved_, That the Senate is not at any time a Court invested -with judicial power, but that it is always a Senate with specific -functions declared by the Constitution; that, according to express -words, “the judicial power of the United States shall be vested in -one Supreme Court, and in such inferior courts as the Congress may -from time to time ordain and establish,” while it is further provided -that “the Senate shall have the sole power to try all impeachments,” -thus positively making a distinction between the judicial power and -the power to try impeachments; that the Senate, on an impeachment, -does not exercise any portion of the judicial power, but another and -different power, exclusively delegated to the Senate, having for its -sole object removal from office and disqualification therefor; that, -by the terms of the Constitution, there may be, after conviction on -impeachment, a further trial and punishment “according to law,” thus -making a discrimination between a proceeding by impeachment and a -proceeding “according to law”; that the proceeding by impeachment is -not “according to law,” and is not attended by legal punishment, but -is of an opposite character, and from beginning to end political, -being instituted by a political body on account of political offences, -being conducted before another political body having political power -only, and ending in a judgment which is political only; and therefore -the vote of a Senator on impeachment, though different in form, is -not different in responsibility, from his vote on any other political -question; nor can any Senator, on such an occasion, claim immunity from -that just accountability which the representative at all times owes to -his constituents. - -3. _Resolved_, That Senators in all that they do are under the constant -obligation of an oath, binding them to the strictest rectitude; -that on an impeachment they take a further oath, according to the -requirement of the Constitution, which says, Senators, when sitting -to try impeachment, “shall be on oath or affirmation”; that this -simple requirement was never intended to change the character of the -Senate as a political body, and cannot have any such operation; and -therefore Senators, whether before or after the supplementary oath, -are equally responsible to the people for their votes,--it being the -constitutional right of the people at all times to sit in judgment on -their representatives. - - - - -VALIDITY AND NECESSITY OF FUNDAMENTAL CONDITIONS ON STATES. - -SPEECH IN THE SENATE, JUNE 10, 1868. - - - The Senate having under consideration the bill to admit the - States of North Carolina, South Carolina, Louisiana, Georgia, - and Alabama to representation in Congress, Mr. Sumner said:-- - -MR. PRESIDENT,--What I have to say to-day will be confined to a -single topic. I shall speak of _the validity and necessity of -fundamental conditions on the admission of States into the body of -the Nation_,--passing in review objections founded on the asserted -equality of States, and also on a misinterpretation of the power to -determine the “qualifications” of electors, and that other power to -make “regulations” for the election of certain officers. Here I shall -encounter the familiar pretensions of another time, no longer put forth -by defiant Slave-Masters, but retailed by conscientious Senators, who -think they are supporting the Constitution, when they are only echoing -the voice of Slavery. - -Fundamental conditions on the admission of States are older than our -Constitution; for they appear in the Ordinance for the vast Territory -of the Northwest, adopted anterior to the Constitution itself. In that -Ordinance there are various conditions, of perpetual obligation, as -articles of compact. Among these is the famous prohibition of Slavery. -In the early days of our Nation nobody thought of questioning the -validity of these conditions. Scattered efforts were made to carry -Slavery into some portions of this region, and unquestionably there -were sporadic cases, as in Massachusetts itself; but the Ordinance -stood firm and unimpeached. - -One assurance of its authority will be found in the historic fact, -that in 1820, on the admission of Missouri as a State of the Union, -there was a further provision that in all territory of the United -States north of 36° 30´ north latitude, “Slavery and involuntary -servitude, otherwise than in the punishment of crimes, whereof the -parties shall have been duly convicted, shall be and is hereby FOREVER -_prohibited_.”[218] This was the famous Missouri Compromise. Missouri -was admitted as a State without any restriction of Slavery, but all -the outlying territory west and north was subjected to this condition -_forever_. It will be observed that the condition was in no respect -temporary, but that it was “forever,”--thus outlasting any territorial -government, and constituting a fundamental law, irrepealable through -all time. Surely this condition, perpetual in form, would not have -been introduced, had it been supposed to be inoperative,--had it -been regarded as a sham, and not a reality. This statute, therefore, -testifies to the judgment of Congress at that time. - -It was only at a later day, and at the demand of Slavery, that the -validity of the great Ordinance of Freedom was called in question. Mr. -Webster, in his memorable debate with Mr. Hayne in 1830, vindicated -this measure in language worthy of the cause and of himself, giving to -it a palm among the laws by which civilization has been advanced, and -asserting its enduring character:-- - - “We are accustomed, Sir, to praise the lawgivers of antiquity; - we help to perpetuate the fame of Solon and Lycurgus; but - I doubt whether one single law of any lawgiver, ancient or - modern, has produced effects of more distinct, marked, and - lasting character than the Ordinance of 1787.… It fixed forever - the character of the population in the vast regions northwest - of the Ohio, by excluding from them involuntary servitude. It - impressed on the soil itself, while it was yet a wilderness, - an incapacity to sustain any other than freemen. _It laid the - interdict against personal servitude in original compact, not - only deeper than all local law, but deeper also than all local - constitutions._”[219] - -Words of greater beauty and power cannot be found anywhere in the -writings or speeches of our American orator. It would be difficult -to declare the perpetual character of this original interdict more -completely. The language is as picturesque as truthful. Deeper than all -local law, deeper than all local constitutions, is this fundamental -law; and such is its essential quality, that the soil which it protects -cannot sustain any other than freemen. Of such a law the orator -naturally proceeded to say:-- - - “We see its consequences at this moment; and we shall never - cease to see them, perhaps, while the Ohio shall flow. _It was - a great and salutary measure of prevention._”[220] - -In these last words the value of such a law is declared. It is for -_prevention_, which is an essential object of all law. In this case -it is the more important, as the evil to be prevented is the most -comprehensive of all. - -Therefore, on the authority of Mr. Webster, in harmony with reason -also, do I say, that this original condition was not only perpetual in -character, but beneficent also. It was beneficence in perpetuity. - -Mr. Chase, in his admirable argument before the Supreme Court of the -United States, in the _Vanzandt_ case, is hardly behind Mr. Webster in -homage to this Ordinance, or in a sense of its binding character. In -his opinion it is a compact of perpetual obligation:-- - - “I know not that history records a sublimer act than this. The - United American States, having just brought their perilous - struggle for freedom and independence to a successful issue, - proceeded to declare the terms and conditions on which their - vacant territory might be settled and organized into States; - and these terms were, not tribute, not render of service, not - subordination of any kind, but _the perpetual maintenance of - the genuine principles of American Liberty, declared to be - incompatible with Slavery_; and that these principles might be - inviolably maintained, they were made _the articles of a solemn - covenant_ between the original States, then the proprietors - of the territory and responsible for its future destiny, and - the people and the States who were to occupy it. Every settler - within the territory, by the very act of settlement, became a - party to this _compact, bound by its perpetual obligations_, - and entitled to the full benefit of its excellent provisions - for himself and his posterity. No subsequent act of the - original States could affect it, without his consent. _No act - of his, nor of the people of the territory, nor of the States - established within it, could affect it, without the consent of - the original States._”[221] - -According to these words, which I am sure would not be disowned by -the present Chief Justice of the United States, the Ordinance is a -sublime act, having for its object nothing less than _the perpetual -maintenance of the genuine principles of American Liberty_. In form it -is a compact, unalterable except by the consent of the parties, and -therefore _forever_. - -If anything in our history is settled by original authority, supported -by tradition and time, it is the binding character of the Ordinance -for the Government of the Northwest Territory. Nobody presumed to call -it in question, until at last Slavery flung down its challenge to -everything that was settled for Freedom. The great Ordinance, with its -prohibition of Slavery, was not left unassailed. - -All this makes a strange, eventful passage of history. The enlightened -civilization of the age was beginning to be felt against Slavery, -when its representatives turned madly round to confront the angel of -light. The madness showed itself by degrees. Point by point it made -itself manifest in Congress. The Slave-Masters forgot morals, history, -and the Constitution. Their manifold pretensions resolved themselves -into three, in which the others were absorbed: first, that Slavery, -instead of an evil to be removed, was a blessing to be preserved; -secondly, that the right of petition could not be exercised against -Slavery; thirdly, that, in all that concerns Slavery, State Rights were -everything, while National Rights were nothing. These three pretensions -entered into Congress, like so many devils, and possessed it. The first -broke forth in eulogies of Slavery, and even in blandishments for the -Slave-Trade. The second broke forth in the “Atherton Gag,” under which -the honest, earnest petitions from the national heart against Slavery, -even in the District of Columbia, were tabled without reference, and -the great Right of Petition, promised by the Constitution, became a -dead letter. The third, beginning with the denial of the power of -the Nation to affix upon new States the perpetual condition of Human -Rights, broke forth in the denial of the power of the Nation over -Slavery in the Territories or anywhere else, even within the national -jurisdiction. These three pretensions all had a common origin, and one -was as offensive and unreasonable as another. The praise of Slavery and -the repudiation of the Right of Petition by the enraged Slave-Masters -were not worse than the pretension of State Rights against the power -of the Nation to prohibit Slavery in the national jurisdiction, or to -affix righteous conditions upon new States. - -The first two pretensions have disappeared. These two devils have been -cast out. Nobody dares to praise Slavery; nobody dares to deny the -Right of Petition. The third pretension has disappeared only so far -as it denied the power of the Nation over Slavery in the Territories; -and we are still doomed to hear, in the name of State Rights, the old -cry against conditions upon new States. This devil is not yet entirely -cast out. Pardon me, if I insist upon putting the national rights over -the Territories and the national rights over new States before their -admission in the same category. These rights not only go together, but -they are one and the same. They are not merely companion and cognate, -but they are identical. The one is necessarily involved in the other. -Prohibition in the Territories is prolonged in conditions upon new -States. The Ordinance of 1787, which is the great example, asserts the -_perpetuity_ of all its prohibitions; and this is the rule alike of -law and statesmanship. Vain were its prohibitions, if they fell dead -in presence of State Rights. The pretension is too irrational. The -Missouri Act takes up the rule asserted in the Ordinance, and declares -that in certain Territories Slavery shall be prohibited _forever_. A -territorial existence terminating in State Rights is a short-lived -_forever_. Only by recognizing the power of the Nation over the States -formed out of the Territory can this _forever_ have a meaning above the -prattle of childhood or the vaunt of Bombastes. - -The whole pretension against the proposed condition is in the name of -State Rights; but it cannot be doubted that it may be traced directly -to Slavery. Shall the pretension be allowed to prevail, now that -Slavery has disappeared? The principal has fallen; why preserve the -incident? The wrong guarded by this pretension has yielded; why should -not the pretension yield also? Asserting, as I now do, the validity and -necessity of the proposed condition, I would not seem indifferent to -the rights of the States in those proper spheres appointed for them. -Unquestionably States have rights under the Constitution, which we -are bound to respect,--nay, more, which are a source of strength and -advantage. It is through the States that the people everywhere govern -themselves, and our Nation is saved from a central domination. Here -is the appointed function of the States. They supply the machinery of -local self-government for the convenience of life, while they ward off -the attempts of an absorbing imperialism. _But there can be no State -Rights against Human Rights._ Because a State, constituting part of a -Nation dedicated to Human Rights, may govern itself and supply the -machinery of local self-government, _it does not follow that such a -State may deny Human Rights within its borders_. State Rights, when -properly understood, are entirely consistent with the maintenance of -Human Rights by the Nation. The State is not humbled, when it receives -the mandate of the Nation to do no wrong; nor can the Nation err, when -it asserts everywhere within its borders the imperialism of Human -Rights. Against this righteous supremacy all pretensions of States must -disappear, as darkness before the King of Day. - -The song of State Rights has for its constant refrain the asserted -_Equality of the States_. Is it not strange that words so constantly -employed as a cover for pretensions against Human Rights cannot be -found in the Constitution? It is true, that, by the Laws of Nations, -all sovereign States, great or small, are equal; but this principle -has been extended without authority to States created by the Nation -and made a part of itself. There is but one active provision in the -Constitution which treats the States as equal, and this provision shows -how this very Equality may be waived. Every State, large or small, -has two Senators, and the Constitution places this Equality of States -under its safeguard by providing that “no State, _without its consent_, -shall be deprived of its _equal suffrage_ in the Senate.” But this very -text contains what lawyers might call a “negative pregnant,” being a -negation of the right to change this rule, with an affirmation that -it may be changed. The State, _with its consent_, may be deprived of -its equal suffrage in the Senate. And this is the whole testimony of -the Constitution to that Equality of States which is now asserted in -derogation of all compacts or conditions. It is startling to find how -constantly the obvious conclusions from the text of the Constitution -have been overlooked. Even in the contemplation of the Constitution -itself, a State may waive its equal suffrage in the Senate, so as to be -represented by a single Senator only. Of course, all this must depend -on its own consent, in concurrence with the Nation. Nothing is said of -the manner in which this consent may be given by the State or accepted -by the Nation. But if this important limitation can in any way be made -the subject of agreement or compact, pray, Sir, where will you stop? -What other power or prerogative of the State may not be limited also, -especially where there is nothing in the Constitution against any such -limitation? All this I adduce simply by way of illustration. There is -no question now of any limitation, in the just sense of this term. A -condition in favor of Human Rights cannot be a limitation on a State or -on a citizen. - -If we look further, and see how the Senatorial equality of States -obtained recognition in the Constitution, we shall find new occasion -to admire that facility which has accorded to this concession so -powerful an influence; and here the record is explicit. The National -Convention had hardly assembled, when the small States came forward -with their pretensions. Not content with suffrage in the Senate, they -insisted upon equal suffrage in the House of Representatives. They had -in their favor the rule of the Continental Congress, and also of the -Confederation, under which each State enjoyed one vote. Assuming to be -independent sovereignties, they had likewise in their favor the rule of -International Law. Against these pretensions the large States pleaded -the simple rule of justice; and here the best minds concurred. On this -head the debates of the Convention are interesting. At an early day we -find Mr. Madison moving “that the equality of suffrage established by -the Articles of Confederation ought not to prevail in the _National_ -Legislature.”[222] This proposition, so consistent with reason, was -seconded by Gouverneur Morris, and, according to the report, “being -generally relished,” was about being adopted, when Delaware, by one -of her voices on the floor, protested, saying, that, in case it -were adopted, “it might become the duty of her deputies to retire -from the Convention.”[223] Such was the earliest cry of Secession. -Gouverneur Morris, while observing that the valuable assistance -of those members could not be lost without real concern, gave his -testimony, that “the change proposed was so fundamental an article in -a _National_ Government that it could not be dispensed with.”[224] -Mr. Madison followed, saying, very justly, that, “whatever reason -might have existed for the equality of suffrage when the Union was a -Federal one _among sovereign States_, it must cease when a _National_ -government should be put into the place.”[225] Franklin, in similar -spirit, reminded the Convention that the equal suffrage of the States -“was submitted to originally by Congress under a conviction of its -impropriety, inequality, and injustice.”[226] This is strong language -from the wise old man, but very true. Elbridge Gerry, after depicting -the States as “intoxicated with the idea of their sovereignty,” said -that “the injustice of allowing each State an equal vote was long -insisted on. He voted for it; but it was against his judgment, and -under the pressure of public danger and the obstinacy of the lesser -States.”[227] Against these overwhelming words of Madison, Morris, -Franklin, and Gerry, the delegates from Delaware pleaded nothing -more than that, without an equal suffrage, “Delaware would have -about one ninetieth for its share in the general councils, whilst -Pennsylvania and Virginia would possess one third of the whole”;[228] -and New Jersey, by her delegates, pleaded also “that it would not be -safe for Delaware to allow Virginia sixteen times as many votes” as -herself.[229] On the part of the small States, the effort was for power -disproportioned to size. On the part of the large States there was a -protest against the injustice and inequality of these pretensions, -especially in a government national in its character. The question was -settled by the great compromise of the Constitution, according to which -representation in the House of Representatives was proportioned to -population, while each State was entitled to an equal suffrage in the -Senate. To this extent the small States prevailed, and the Senate ever -since has testified to the equality of States; or rather, according to -the language of the “Federalist” on this very point, it has been “a -palladium to the residuary sovereignty of the States.”[230] Thus, by -the pertinacity of the small States, was this concession extorted from -the Convention, in defiance of every argument of justice and equity, -and contrary to the judgment of the best minds; and now it is exalted -into a universal rule of Constitutional Law, before which justice and -equity must hide their faces. - -This protracted and recurring conflict in the Convention is -compendiously set forth by our great authority, Judge Story, when he -says:-- - - “It constituted one of the great struggles between the large - and the small States, which was constantly renewed in the - Convention, and impeded it in every step of its progress in - the formation of the Constitution. The struggle applied to - the organization of each branch of the Legislature. The small - States insisted upon an equality of vote and representation in - each branch, and the large States upon a vote in proportion to - their relative importance and population.… The small States at - length yielded the point as to an equality of representation - in the House, and acceded to a representation proportionate to - the Federal numbers. But they insisted upon an equality in the - Senate. To this the large States were unwilling to assent, and - for a time the States were on this point equally divided.”[231] - -This summary is in substantial harmony with my own abstract of the -debates. I present it because I would not seem in any way to overstate -the case. And here let me add most explicitly, that I lend no voice to -any complaint against the small States; nor do I suggest any change in -the original balances of our system. I insist only that the victory -achieved in the Constitution by the small States shall not be made the -apology for a pretension inconsistent with Human Rights. And now, for -the sake of a great cause, the truth must be told. - -It must not be disguised that this pretension has another origin, -outside the Constitution. This is in the Ordinance of 1787, where it -is positively provided that any State formed out of the Northwest -Territory “shall be admitted, by its delegates, into the Congress of -the United States _on an equal footing with the original States in all -respects whatever_.” Next after the equal suffrage in the Senate stands -this provision with its talismanic phrase, _equal footing_. New States -are to be admitted on an _equal footing_ with the original States in -all respects whatever. This language is strong; but nobody can doubt -that it must be read in the light of the Ordinance where it appears. -Read in this light, its meaning cannot be questioned. By the Ordinance -there are no less than six different articles of compact, “forever -unalterable, unless by common consent,” constituting so many perpetual -safeguards: the first perpetuating religious liberty; the second -perpetuating _Habeas Corpus_, trial by jury, and judicial proceedings -according to the course of the Common Law; the third perpetuating -schools and the means of education; the fourth perpetuating the title -of the United States in the soil without taxation, the freedom of -the rivers as highways, and the liability of the people for a just -proportion of the national debt; the fifth perpetuating the right of -the States to be admitted into the Union on an _equal footing_ with -the original States; and then, next in order, the sixth perpetuating -freedom,--being that immortal condition which is the golden bough of -this mighty oak,--that “there shall be neither slavery nor involuntary -servitude in the said Territory.” Now it is clear that subjection -to these perpetual conditions was not considered in any respect -inconsistent with that “equal footing” which was stipulated. Therefore, -even assuming that States, when admitted, shall be on an “equal -footing” with others, there can be no hindrance to any conditions by -Congress kindred to those which were the glory of the Ordinance. - -To all who, borrowing a catchword from Slavery, assert the Equality of -States in derogation of fundamental conditions, I oppose the plain text -of the Constitution, which contains no such rule, except in a single -instance, and there the equality may be waived; and I oppose also the -Ordinance of 1787, which, while requiring that new States shall be -admitted on an “equal footing” with other States, teaches by its own -great example that this requirement is not inconsistent with conditions -of all kinds, and especially in favor of Human Rights. The Equality of -States on the lips of Slave-Masters was natural, for it was a plausible -defence against the approaches of Freedom; but this unauthorized -phrase, which has deceived so many, must be rejected now, so far at -least as it is employed against the Equal Rights of All. As one of the -old garments of Slavery, it must be handed to the flames. - -From this review it is easy to see that we approach the present -question without any impediment or constraint in the Constitution. -Not a provision, not a clause, not a sentence, not a phrase in -the Constitution can be made an apology even for the present -objection,--absolutely nothing; and here I challenge reply. Without -any support in the Constitution, its partisans borrow one of the -worst pretensions of Slavery, and utter it now as it was uttered by -Slave-Masters. Once more we hear the voice of Slavery crying out in -familiar tones, that conditions cannot be imposed on new States. -Alas that Slavery, which we thought had been slain, is not entirely -dead! Again it stalks into this Chamber, like the majesty of buried -Denmark,--“in the same figure, like the king that’s dead,”--and -then, like this same ghost, it cries out, “Swear!” and then again, -“Swear!”--and Senators pledged to Freedom take up the old pretension -and swear it anew. For myself, I insist not only that Slavery shall be -buried out of sight, but that all its wretched pretensions hostile to -Human Rights shall be buried with it. - - * * * * * - -The conditions upon new States are of two classes: _first_, those that -_may_ be required; _secondly_, those that _must_ be required. - -The first comprehends those conditions which the Nation may consider -it advisable to require, before admitting a new member into the -partnership of government. The Constitution, in positive words, leaves -to the Nation a discretion with regard to the admission of new States. -The words are: “New States _may_ be admitted by the Congress into the -Union,”--thus plainly recognizing a latitude under which any conditions -not inconsistent with the Constitution may be required, as by a firm on -the admission of a new partner. All this is entirely reasonable; but -I do not stop to dwell on it, for the condition which I have at heart -does not come under this head. - -A fundamental condition in favor of Human Rights is of that essential -character that it _must_ be required. Not to require it is to abandon -a plain duty; so it seems to me. I speak with all deference to others, -but I cannot see it otherwise. - -The Constitution declares that “the United States shall guaranty to -every State in this Union _a republican form of government_.” These are -grand words, perhaps the grandest in the Constitution, hardly excepting -the Preamble, which is so full of majestic meaning and such a fountain -of national life. Kindred to the Preamble is this supreme obligation -imposed on the United States to guaranty a republican government. There -it is. You cannot avoid this duty. Called to its performance, you -must supply a practical definition of a republican government. This -again you cannot avoid. By your oaths, by all the responsibilities -of your position, you must say what in your judgment is a republican -government, and you must so decide as not to discredit our fathers and -not to give an unworthy example to mankind. Happily the definition -is already of record in our history. Our fathers gave it to us, as -amid the thunders of Sinai, when they put forth their Declaration of -Independence. There it stands in the very front of our Great Charter, -embodied in two simple, self-evident truths,--first, that all men are -equal in rights, and, secondly, that all just government is founded -only on the consent of the governed,--the two together making an -axiomatic definition which proves itself. Its truth is like the sun; -blind is he who cannot see it. And this is the definition bequeathed as -a freehold by our fathers. Though often assailed, even by Senators, it -is none the less true. So have I read of savages who shot their arrows -at the sun. Clearly, then, that is a republican government where all -have equal rights and participate in the government. I know not if -anything need be added; I am sure that nothing can be subtracted. - -The Constitution itself sets the example of imposing conditions upon -the States. Positively it says, no State shall enter into any treaty, -alliance, or confederation; no State shall grant letters of marque -and reprisal; no State shall coin money; no State shall emit bills -of credit. Again it says, no State shall, without the consent of -Congress, lay any duty of tonnage, or keep troops or ships of war in -time of peace. All these are conditions in the text of the Constitution -so plain and intelligible as to require no further elucidation. To -repeat them on the admission of a State would be superfluous. It is -different, however, with that highest condition of all, that the State -shall be republican. This requires repetition and elucidation, so as to -remove all doubt of its application, and to vitalize it by declaring -what is meant by a republican government. - - * * * * * - -Here I might close this argument; but there are two hostile pretensions -which must be exposed: the first founded on a false interpretation of -“qualifications,” being nothing less than the impossible assumption, -that, because the States may determine the “qualifications” of -electors, therefore they can make color a criterion of the electoral -franchise; and the second founded on a false interpretation of the -asserted power of the States “to regulate suffrage,” being nothing -less than the impossible assumption that under the power to regulate -suffrage the rights of a whole race may be annihilated. These two -pretensions are of course derived from Slavery. They are hatched from -the eggs that the cuckoo bird has left behind. Strange that Senators -will hatch them! - -1. By the Constitution it is provided that “the electors in each State -shall have the _qualifications_ requisite for electors of the most -numerous branch of the State Legislature.” On this clause Senators -build the impossible pretension that a State cannot be interrupted -in its disfranchisement of a race. Here is the argument: Because a -State may determine the _qualifications_ of electors, _therefore_ it -may deprive a whole race of equal rights and of participation in the -Government. Logically speaking, here are most narrow premises for the -widest possible conclusion. On the mere statement, the absurdity is -so unspeakable as to recall the kindred pretension of Slavery, that, -because commerce is lawful, therefore commerce in human flesh is lawful -also. If the consequences were not so offensive, this “argal” might be -handed over to consort with that of the Shakespearean grave-digger. -But the argument is not merely preposterous, it is insulting to the -human understanding, and a blow at human nature itself. If I use -strong language, it is because such a proclamation of tyranny requires -it. Admitting that the States may determine the “qualifications” of -electors, what then? Obviously it must be according to the legitimate -meaning of this word. And here, besides reason and humanity, two -inexhaustible fountains, we have two other sources of authority: -first, the Constitution, in which the word appears, and, secondly, the -dictionaries of the English language, out of both of which we must -condemn the intolerable pretension. - -The Constitution, where we find this word, follows the Declaration -of Independence, and refuses to recognize any distinction of color. -Search, and you will confess that there is no word of “color” -in its text; nor is there anything there on which to found any -disfranchisement of a race. The “qualifications” of different officers, -as President, Vice-President, Senators, and Representatives, are -named; but “color” is not among these. The Constitution, like the Ten -Commandments and the Beatitudes, embraces all alike within its mandates -and all alike within its promises. There are none who must not obey -it; there can be none who may not claim its advantages. By what title -do you exclude a race? The Constitution gives no such title; you can -only find it in yourselves. The fountain is pure; it is only out of -yourselves that the waters of bitterness proceed. - -The dictionaries of our language are in harmony with the Constitution. -Look at “Qualification” in Webster or Worcester, the two best -authorities of our time, and you will find that the word means -“fitness,” “capability,” “accomplishment,” “the condition of being -qualified”; but it does not mean “color.” It embraces age, residence, -character, education, and the payment of taxes,--in short, all those -conditions which, when honestly administered, are in the nature of -_regulation_, not of _disfranchisement_. The English dictionaries -most used by the framers of the Constitution were Bailey and Johnson. -According to Bailey, who was the earliest, this important word is thus -defined:-- - - “(1.) _That which fits any person or thing for any particular - purpose._” - - “(2.) _A particular faculty or endowment, an accomplishment._” - -According to Johnson, who is the highest authority, it is thus -defined:-- - - “(1.) _That which makes any person or thing fit for anything._” - - EXAMPLE.--“It is in the power of the prince to make piety and - virtue become the fashion, if he would make them necessary - _qualifications_ for preferment.--SWIFT.” - - “(2.) _Accomplishment._” - - EXAMPLE.--“Good _qualifications_ of mind enable a magistrate - to perform his duty, and tend to create a public esteem of - him.--ATTERBURY.” - -By these definitions this word means “fitness,” or “accomplishment,” -and, according to the well-chosen examples from Swift and Atterbury, -it means qualities like “piety” and “virtue,” or like faculties “of -mind,” all of which are more or less within the reach of every human -being. But it is impossible to extend this list so as to make “color” -a quality,--absolutely impossible. Color is a physical condition -affixed by the God of Nature to a large portion of the human race, -and insurmountable in its character. Age, education, residence, -property,--all these are subject to change; but the Ethiopian -cannot change his skin. On this last distinctive circumstance I -take my stand. _An insurmountable condition is not a qualification, -but a disfranchisement._ Admit that a State may determine the -“qualifications” of electors, it cannot, under this authority, -arbitrarily exclude a whole race. - -Try this question by examples. Suppose South Carolina, where the blacks -are numerous, should undertake to exclude the whites from the polls on -account of “color”; would you hesitate to arrest this injustice? You -would insist that a government sanctioning such a denial of rights, -under whatever pretension, could not be republican. Suppose another -State should gravely declare that _all with black eyes_ should be -excluded from the polls, and still another should gravely declare that -_all with black hair_ should be excluded from the polls, I am sure -that you would find it difficult to restrain the mingled derision -and indignation which such a pretension must excite. But this fable -pictures your conduct. All this is now gravely done by States; and -Senators gravely insist that such exclusion is proper in determining -the “qualifications” of electors. - -2. Like unto the pretension founded on a misinterpretation of -“qualifications” is that other founded on a misinterpretation of -the asserted power of a State to make “regulations.” Listen to this -pretension. Assuming that a State may _regulate_ the elections without -the intervention of Congress, it is insisted that it may disfranchise a -race. Because a State may regulate the elective franchise, _therefore_ -it may destroy this franchise. Surely it is one thing to regulate, -and quite another thing to destroy. The power to regulate cannot -involve any such conclusion of tyranny. To every such wretched result, -howsoever urged, there is one sufficient reply,--_Non sequitur_. - -According to the Constitution, “the _times, places, and manner_ of -holding elections for Senators and Representatives shall be prescribed -in each State by the Legislature thereof; but the Congress may at any -time by law make or alter such _regulations_, except as to the places -of choosing Senators.” Here is the text of this portentous power -to blast a race. In these simple words no such power can be found, -unless the seeker makes the Constitution a reflection of himself. The -times, places, and manner of holding elections are referred to the -States,--nothing more; and even these may be altered by Congress. Being -matters of form and convenience only, in the nature of _police_, they -are justly included under the head of “regulations,” like the sword and -uniform of the army. Do we not familiarly speak of a _regulation_ sword -and a _regulation_ sash? Who will dare to say that under this formal -power of _regulation_ a whole race may be despoiled of equal rights -and of all participation in the Government? This very pretension was -anticipated by Mr. Madison, and condemned in advance. Here are his -decisive words in the Virginia Convention:-- - - “Some States might regulate the elections on the principles of - equality, and others might regulate them otherwise.… Should the - people of any State by any means be deprived of the right of - suffrage, _it was judged proper that it should be remedied by - the General Government_.”[232] - -Thus was it expressly understood, at the adoption of the Constitution, -that Congress should have the power to prevent any State, under the -pretence of regulating the suffrage, from depriving the people of this -right, or from interfering with the principle of _Equality_. - -Kindred to this statement of Mr. Madison is that other contemporary -testimony which will be found in the “Federalist,” where the -irrepealable rights of citizens are recognized without distinction of -color. This explicit language cannot be too often quoted. Here it is:-- - - “It is only under the pretext that the laws have transformed - the negroes into subjects of property that a place is denied to - them in the computation of numbers; and it is admitted, that, - if the laws were to restore the rights which have been taken - away, _the negroes could no longer be refused an equal share of - representation with the other inhabitants_.”[233] - -This testimony is as decisive as it is authentic. Consider that it was -given in explanation and vindication of the Constitution. Consider that -the Constitution was commended for adoption by the assertion, that, on -the termination of Slavery, “the negroes could no longer be refused an -_equal share_ of representation with the other inhabitants.” In the -face of this assurance, how can it be now insisted, that, under the -simple power to regulate the suffrage, a State may deny to a whole race -that “equal share of representation” which was promised? Thus from -every quarter we are brought to the same inevitable conclusion. - -Therefore I dismiss the pretension founded on the power to make -_regulations_, as I dismiss that other founded on the power to -determine _qualifications_. Each proceeds on a radical misconception. -Admit that a State may determine _qualifications_; admit that a State -may make _regulations_; it cannot follow, by any rule of logic or law, -that, under these powers, either or both, it may disfranchise a race. -The pretension is too lofty. No such enormous prerogative can be wrung -out of any such moderate power. As well say, that, because a constable -or policeman may keep order in a city, therefore he may inflict the -penalty of death,--or, because a father may impose proper restraint -upon a child, therefore he may sell him into slavery. We have read -of an effort to extract sunbeams out of cucumbers; but the present -effort to extract a cruel prerogative out of the simple words of the -Constitution is scarcely less absurd. - - * * * * * - -I conclude as I began, in favor of requiring conditions from States on -their admission into the Nation; and I insist that it is our especial -duty, in every possible way, by compact and by enactment, to assure -among these conditions the Equal Rights of All, and the participation -of every citizen in the government over him, without which the State -cannot be republican. For the present I confine myself to the question -of conditions on the admission of States, without considering the -broader obligation of Congress to make Equal Rights coextensive with -the Nation, and thus to harmonize our institutions with the principles -of the Declaration of Independence. That other question I leave to -another occasion. - -Meanwhile I protest against the false glosses originally fastened -upon the Constitution by Slavery, and, now continued, often in -unconsciousness of their origin, perverting it to the vilest uses of -tyranny. I protest against that exaggeration of pretension which out -of a power to make “regulations” and to determine “qualifications” can -derive an unrepublican prerogative. I protest against that pretension -which would make the asserted Equality of States the cover for a denial -of the Equality of Men. The one is an artificial rule, relating to -artificial bodies; the other is a natural rule, relating to natural -bodies. The one is little more than a legal fiction; the other is -a truth of Nature. Here is a distinction which Alexander Hamilton -recognized, when, in the debates of the Convention, he nobly said:-- - - “As States are a collection of individual men, which ought we - to respect most,--the rights of the people composing them, - or of the artificial beings resulting from the composition? - Nothing could be more preposterous or absurd than to sacrifice - the former to the latter.”[234] - -High above States, as high above men, are those commanding principles -which cannot be denied with impunity. They will be found in the -Declaration of Independence, expressed so clearly that all can read -them. Though few, they are mighty. There is no humility in bending to -their behests. As man rises in the scale of being while walking in -obedience to the Divine will, so is a State elevated by obedience to -these everlasting truths. Nor can we look for harmony in our country -until these principles bear unquestioned sway, without any interdict -from the States. That unity for which the Nation longs, with peace and -reconciliation in its train, can be assured only through the Equal -Rights of All, proclaimed by the Nation everywhere within its limits, -and maintained by the national arm. Then will the Constitution be -filled and inspired by the Declaration of Independence, so that the -two shall be one, with a common life, a common authority, and a common -glory. - - - - -ELIGIBILITY OF A COLORED CITIZEN TO CONGRESS. - -LETTER TO AN INQUIRER AT NORFOLK, VA., JUNE 22, 1868. - - - This letter appeared in a Richmond paper. - - SENATE CHAMBER, June 22, 1868. - - DEAR SIR,--I have your letter of the 18th, in reference to the - eligibility of a colored man to Congress. - - I know of no ground on which he could be excluded from his seat, - if duly elected; and I should welcome the election of a competent - representative of the colored race to either House of Congress as - a final triumph of the cause of Equal Rights. Until this step is - taken, our success is incomplete. - - Yours truly, - - CHARLES SUMNER. - - - - -INDEPENDENCE, AND THOSE WHO SAVED THE ORIGINAL WORK. - -LETTER ON THE SOLDIERS’ MONUMENT AT NORTH WEYMOUTH, MASS., JULY 2, 1868. - - - SENATE CHAMBER, July 2, 1868. - - MY DEAR SIR,--I wish that I could take part in the interesting - ceremonies to which you invite me; but my duties will keep me - here. - - On the anniversary of the birth of our Nation you will - commemorate the death of patriots who gave their lives that the - Nation might live. Grateful to our fathers, who at the beginning - did so much, we owe an equal debt to those who saved the original - work. - - The monument which you rear will be national in its character. - Dedicated on the anniversary of Independence, it will have for - its special object to guard forever the memory of those through - whom the first fruits of Independence have been secured. - - Our fathers established the National Independence; our recent - heroes have made it perpetual through those vital principles - which can never die. Honor to the fathers! Honor also to the - sons, worthy of the fathers! - - Accept my best wishes; believe me, my dear Sir, very faithfully - yours, - - CHARLES SUMNER. - - GEN. B. F. PRATT. - - - - -COLORED SENATORS,--THEIR IMPORTANCE IN SETTLING THE QUESTION OF EQUAL -RIGHTS. - -LETTER TO AN INQUIRER IN SOUTH CAROLINA, JULY 3, 1868. - - - The following letter, from a South Carolina paper, is one of - many in the same sense which found its way to the public. - - SENATE CHAMBER, July 3, 1868. - - DEAR SIR,--I have never given any opinion in regard to the - Senatorial question in your State, except to express regret that - the golden opportunity should be lost of making a colored citizen - Senator from South Carolina. - - Such a Senator, if competent, would be a powerful support to the - cause of Equal Rights. His presence alone would be a constant - testimony and argument. Nothing could do so much to settle the - question of Equal Rights forever in the United States. The howl - against the negro, which is sometimes heard in the Senate, would - cease. A colored Senator would be as good as a Constitutional - Amendment, making all backward steps impossible. - - I write now frankly, in reply to your inquiry, and without any - purpose of interfering in your election. You will pardon my - anxiety for the cause I have so much at heart. - - Accept my best wishes, and believe me, dear Sir, faithfully yours, - - CHARLES SUMNER. - - To THADDEUS K. SASPORTAS, Esq., Columbia, S. C. - - - - -FINANCIAL RECONSTRUCTION THROUGH PUBLIC FAITH AND SPECIE PAYMENTS. - -SPEECH IN THE SENATE, ON THE BILL TO FUND THE NATIONAL DEBT, JULY 11, -1868. - - - We denounce all forms of Repudiation as a national crime - [_prolonged cheers_]; and the national honor requires the - payment of the public indebtedness, _in the utmost good faith_, - to all creditors, at home and abroad, _not only according to - the letter, but to the spirit of the laws under which it was - contracted_. [_Applause._]--CHICAGO PLATFORM, May, 1868. - - * * * * * - - Fundamentum est autem justitiæ fides, id est, dictorum - conventorumque constantia et veritas.--CICERO, _De Officiis_, - Lib. I. Cap. 7. - - -SPEECH. - - The Senate having under consideration the Bill for funding the - National Debt and for the Conversion of the Notes of the United - States, Mr. Sumner said:-- - -MR. PRESIDENT,--After a tempest sweeping sea and land, strewing the -coast with wrecks, and tumbling houses to the ground, Nature must -become propitious before the energy of man can repair the various -losses. Time must intervene. At last ships are launched again, and -houses are built, in larger numbers and fairer forms than before. A -tempest has swept over us, scourging in every direction; and now that -its violence has ceased, we are occupied in the work of restoration. -Nature is already propitious, and time, too, is silently preparing the -way, while the national energies are applied to the work. - -To know what to do, we must comprehend the actual condition of things, -and how it was brought about. All this is easy to see, if we will only -look. - - * * * * * - -It is a mistake of too constant occurrence to treat the financial -question by itself, without considering its dependence upon the -abnormal condition through which the country has passed. The financial -question, in all its branches, depends upon the political, and cannot -be separated. I might use stronger language. It is a part of the -political question; and now that Reconstruction seems about to be -accomplished, it is that enduring part which still remains. - - * * * * * - -Our present responsibilities, whether political or financial, have a -common origin in that vast Rebellion, when the people of eleven States, -maddened by Slavery, rose against the Nation. As the Rebellion was -without example in its declared object, so it was without example in -the extent and intensity of its operations. It sought nothing less than -the dismemberment of our Nation and the establishment of a new power -with Slavery as its quickening principle. The desperate means enlisted -by such a cause could be encountered only by the most strenuous -exertions in the name of Country and of Human Rights. Here was Slavery, -barbarous, brutal, vindictive, warring for recognition. The tempest -or tornado can typify only feebly the ravage that ensued. There were -days of darkness and despair, when the national existence was in peril. -Rebel armies menaced the Capitol, and Slavery seemed about to vindicate -its wicked supremacy. - -Looking at the scene in its political aspects, we behold one class -of disorders, and looking at it in its financial aspects, we behold -still another,--both together constituting a fearful sum-total, -where financial disorder mingles with political. Turn, first, to the -political, and you will see States, one after another, renouncing their -relations with the Nation, and constituting a new government, under -the name of Confederacy, with a new Constitution, making Slavery its -corner-stone,--all of which they sought to maintain by arms, while, -in aggravation of these perils, Foreign Powers gave ominous signs of -speedy recognition and support. Look next to the financial side, and -you will see business in some places entirely prostrate, in others -suddenly assuming new forms; immense interests destroyed; property -annihilated; the whole people turned from the thoughts of peace to -the thoughts of war; vast armies set on foot, in which the youthful -and strong were changed from producers to destroyers, while life -itself was consumed; an unprecedented taxation, commensurate with the -unprecedented exigency; and all this followed by the common incidents -of war in other countries and times,--first, the creation of a national -debt, and, secondly, the substitution of inconvertible paper as a -currency. In this catalogue of calamities, political and financial, who -shall say which was the worst? Certainly it is difficult to distinguish -between them. One grew out of the other, so that they belong together -and constitute one group, all derived ultimately from the Rebellion, -and directly depending upon it. So long as Slavery continued in arms, -each and all waxed in vastness; and now, so long as any of these -remain, they testify to this same unnatural crime. The tax-gatherer, -taking so much from honest industry, was born of the Rebellion. -Inconvertible paper, deranging the business of the country at home and -abroad, had the same monstrous birth. Our enormous taxation is only a -prolongation of the Rebellion. Every greenback is red with the blood of -fellow-citizens. - -To repair these calamities, political and financial, the first stage -was the overthrow of the Rebellion in the field, thus enabling the -Nation to reduce its armaments, to arrest its accumulating debt, and -to cease anxiety on account of foreign intervention so constantly -menaced. Thus relieved, we were brought to a resting-place, and the -Nation found itself in condition to begin the work of restoration. - - * * * * * - -Foremost came the suppression of Slavery, in which the Rebellion -had its origin. Common prudence, to say nothing of common humanity, -required this consummation, without which there would have been a -short-lived truce only. So great a change necessarily involved other -changes, while there was the ever-present duty to obtain from the -defeated Rebels, if not indemnity for the past, at least security for -the future. It was impossible to stop with the suppression of Slavery. -That whole barbarous code of wrong and outrage, whose first article was -the denial of all rights to an oppressed race, was grossly inconsistent -with the new order of things. It was necessary that it should yield to -the Equal Rights of All, promised by the Declaration of Independence. -The citizen, lifted from Slavery, must be secured in all his rights, -civil and political. Loyal governments, republican in form, must be -substituted for Rebel governments. All this being done, the States, -thus transformed, will assume once more their ancient relations to the -Nation. This is the work of Political Reconstruction, constituting the -new stage after the overthrow of the Rebellion. - - * * * * * - -Meanwhile there has been an effort and a longing for Financial -Reconstruction also,--sometimes without sufficiently reflecting that -there can be small chance for any success in this direction until after -Political Reconstruction. Here also we must follow Nature, and restore -by removing the disturbing cause. This is the natural process. Vain -all attempt to reconstruct the national finances while the Rebellion -was still in arms. This must be obvious to all. Vain also while -Slavery still domineered. Vain also while Equal Rights are without a -sure defence against the oppressor. Vain also while the Nation still -palpitates with its efforts to obtain security for the future. Vain -also until the States are all once more harmonious in their native -spheres, like the planets, receiving and dispensing light. - -Nothing is more sensitive than Credit, which is the essential element -of financial restoration. A breath will make it flutter. How can you -expect to restore the national credit, now unnaturally sensitive, while -the Nation is still uneasy from those Rebel pretensions which have cost -so much? Security is the first condition of Financial Reconstruction; -and I am at a loss to find any road to it, except through Political -Reconstruction. All this seems so plain that I ought to apologize for -dwelling on it. And yet there are many, who, while professing a desire -for an improvement in our financial condition, perversely turn their -backs upon the only means by which this can be accomplished. Never was -there equal folly. Language cannot picture it. Every denial of Equal -Rights, every impediment to a just reconstruction in conformity with -the Declaration of Independence, every pretension of a “white man’s -government” in horrid mockery of self-evident truths declared by our -fathers, and of that brotherhood of mankind declared by the Sermon on -Mars Hill, is a bar to that Financial Reconstruction without which the -Rebellion still lingers among us. So long as a dollar of irredeemable -paper is forced upon the country, the Rebellion still lives, in its -spurious progeny. - -Party organization and Presidential antagonism have thus far stood -in the way, while at each stage individual perverseness has played -its part. The President has set himself obstinately against Political -Reconstruction; so also has the Democratic Party; others have followed, -according to the prejudices of their nature; and so the national -finances have suffered. Not the least of the offences of Andrew Johnson -is the adverse influence he has exerted on this question. All that he -has done from the beginning has tended to protract the Rebellion and -to extend the disorder of our finances. And yet there are many not -indifferent to the latter who have looked with indifference upon his -criminal conduct. So far as their personal interests depended on an -improved condition of the finances, they have already suffered; but -it is hard that the country should suffer also. Andrew Johnson has -postponed specie payments, and his supporters of all degrees must share -the responsibility. - -Such is my confidence in the resources of our country, in the industry -of its people, and in the grandeur of its destinies, that I cannot -doubt the transcendent future. Alas that it should be interrupted by -unwise counsels, even for a day! Financial Reconstruction is postponed -only. It must come at last. Here I have no panacea that is not as -simple as Nature. I know of no device or trick or medicine by which -this cure can be accomplished. It will come with the general health of -the body politic. It will come with the renovated life of the Nation, -when it is once more complete in form, when every part is in sympathy -with the whole, and the Rebellion, with all its offspring, is trampled -out forever. In such a condition of affairs, inconvertible paper would -be an impossibility, as much as a bill of sale for a human being. - - * * * * * - -Meanwhile there are certain practical points which must not be -forgotten. Foremost among these I put the absolute dependence of the -national finances upon the faithful performance of all our obligations -to the national freedmen. Pardoned Rebels will never look with -complacency upon the national debt, or the interest which testifies -semiannually to its magnitude. Their political colleagues at the North -will be apt to sympathize with them. Should the scales at any time hang -doubtful, it is to others that we must turn to adjust the balance. -Therefore, for the sake of the national finances, I insist that the -national freedmen shall be secured and maintained in Equal Rights, so -that local prejudices and party cries shall be unavailing against them. -You who have at heart the national credit, on which so much depends, -must never fail to cherish the national freedmen, treating their -enemies as if they were your enemies. Every blow at them will rebound -upon yourselves. - - * * * * * - -In dealing with the financial question, there are two other points of -ever-present importance: first, the necessity of diminishing, so far as -practicable, the heavy burden of taxation so oppressive to the people; -and, secondly, the necessity of substituting specie for inconvertible -paper. Here are two objects, which, when accomplished, will add -infinitely to the wealth and happiness of the country, besides being -the assurance that the Nation has at last reached that condition of -repose so much longed for. - -Before considering these two points in detail, I venture to remark that -there is one condition, preliminary in character and equally essential -to both, through which taxation will be lightened and specie payments -will be hastened. I refer to the Public Faith, which must be sacredly -preserved above all question or suspicion. The word of our Nation -must be as good as its bond; and nobody must attempt to take a tittle -from either. Nothing short of universal wreck can justify any such -bankruptcy. Let the Public Faith be preserved, and all that you now -seek will be easy. - -A virtuous king of early Rome dedicated a temple on the Capitol Hill -itself to a divinity under the name of _Publica Fides_, who was -represented with a wreath of laurel about her head, carrying ears -of corn and a basket of fruit,--typical of honor and abundance sure -to follow in her footprints. In the same spirit another temple was -dedicated to the god Terminus, who presided over boundaries. The -stones set up to mark the limits of estates were sacred, and on these -very stones there were religious offerings to the god. The heathen -maledictions upon the violator were echoed also by the Hebrews, when -they said: “Cursed be he that removeth his neighbor’s landmark: and -all the people shall say, Amen.”[235] In those early Roman and Hebrew -days there was no national debt divided into bonds; there was nothing -but land. But a national bond is as well defined as a piece of land. -Here, then, is a place for the god Terminus. Every obligation is like a -landmark, not to be removed without curses. Here, also, is a place for -that other divinity, _Publica Fides_, with laurelled head, and hands -filled with corn and fruit. - -Public Faith may be seen in the evil which springs from its loss and in -the good which overflows from its preservation. It is like honor: and -yet, once lost, more than dishonor is the consequence; once assured, -more than honor is the reward. It is a possession surpassing all others -in value. The gold and silver in your Treasury may be counted; it -stands recorded, dollar for dollar, in the national ledger; but the -sums which the unsuspected credit of a magnanimous nation can command -are beyond the record of any ledger. Public Faith is more than mines -of silver or gold. Only from Arabian story can a fit illustration be -found, as when, after all human effort had failed, the Genius of the -Lamp reared the costly palace and stored it with beauty. Public Faith -is in itself a treasury, a tariff, and an internal revenue, all in -one. These you may lose; but if the other is preserved, it will be -only for a day. The Treasury will be replenished, the tariff will be -renewed, the internal revenue will be restored. With Public Faith as an -unfailing law, the Nation, like Pactolus, will sweep over golden sands; -or, like Midas, it will change into gold whatever it touches. Keep, -then, the Public Faith as the “open sesame” to all that you can desire; -keep it as you would keep the philosopher’s stone of fable, having -which, you have all. - -And yet, in the face of this plain commandment, on which hangs so much -of all that is most prized in national existence, we are called to -break faith. It is proposed to tax the national bonds, in violation -of the original bargain on which the money was lent. Sometimes the -tax is to be by the Nation, and sometimes by the States. The power to -do this wrong you may possess, but the right never. Do what you will, -there is one thing you cannot do: you cannot make wrong right. It is -in vain that you undertake to set aside the perpetual obligation which -you have assumed. Against every such pretension, whether by speech -or vote, there is this living duty, which will survive Congress and -politician alike. Puny as the hand of a child is the effort to undo -this original bargain. The Nation has promised six per cent. interest, -payable semiannually in coin, nor more nor less, without any abatement; -and then, having bound itself, it proceeds to guard against the States -by declaring specifically that the bonds shall be “exempt from taxation -by or under State authority.” Such is the bargain. There it is; and it -must continue unchanged, except by the consent of the parties, until -the laws of the universe tumble into chaos. - -The rogue in Shakespeare exclaims, “What a fool Honesty is! and Trust, -his sworn brother, a very simple gentleman!” In equal levity it is -said, “Tax the bonds,” although, by the original bargain on which -the money was obtained, amid the trials of war for the safety of the -Nation, it was expressly stipulated that these bonds should not be -taxed. Nevertheless, tax the bonds! Of course, by taxing the bonds the -bargain is brutally broken,--and this, too, after the Nation has used -the money. Such a transaction in common life, except where bankruptcy -had supervened, would be intolerable. A proud Nation, justly sensitive -to national honor, as the great Republic through whose example liberal -institutions are commended to mankind, cannot do this thing. - -The proposition to tax the bonds, in open violation of the original -bargain, is similar in spirit to that other enterprise, which, under -various discordant ensigns, proposes to pay the national bonds with -inconvertible paper. Here at once, and on the threshold, Public -Faith interposes a summary protest. On such a question debate even -is dangerous; the man who doubts is lost. The money was borrowed and -lent on the undoubting faith that it was to be paid in coin. Nothing -to the contrary was suggested, imagined, or dreamed, at the time. -Behind all forms of language, and even all omissions, this obligation -stands forth, in the nature of the case, explained and confirmed by the -history of our national loans, and by the official acts of successive -Secretaries of the Treasury interpreting the obligations of the Nation. - - * * * * * - -So much stress is laid upon the language of the five-twenties that I -cannot let it pass. The terms employed were precisely those in previous -bonds of the United States where the principal was paid in coin, some -of which are still outstanding. Had there been any doubt about the -meaning, it was fixed by the general understanding, and by special -declarations of responsible persons speaking for the Nation. On 26th -May, 1863, Mr. Harrington, the Assistant Secretary of the Treasury, -in an official letter, says: “These bonds will, therefore, be paid in -gold.” On 15th February, 1864, Mr. Field, also Assistant Secretary of -the Treasury, writes: “I am directed by the Secretary to say that it is -the purpose of the Government to pay said bonds, like other bonds of -the United States, in coin, at maturity.” On 18th May, 1864, Mr. Chase, -at the time Secretary of the Treasury, wrote: “These bonds, _according -to the usage of the Government_, are payable in coin.” Mr. Fessenden, -while Secretary of the Treasury, in his annual report to Congress, -expressed the same conclusion; and his successor, Mr. McCulloch, -in a letter of 15th November, 1866, says: “I regard, as did also my -predecessors, all bonds of the United States as payable in coin.” -There are also numerous advertisements from the Treasury, and from its -business agents, all in the same sense. - -Here is a succession of authorities, embracing high functionaries of -the United States, all concurring in affixing upon these bonds the -obligation to pay in coin. As testimony to the meaning of the bonds, -it is important; but considering that all these persons represented -the National Treasury, and that they were the agents of the Nation -for the sale of these very bonds, their representations are more -than testimony. Until their authority is disowned by Congress, and -their representations discarded, it is difficult to see why their -language must not be treated as part of the contract, at least in -all sales subsequent to its publication. It must not be forgotten -that these original sales were mainly to bankers and brokers, and -in large amounts, for the purpose of resale to small purchasers -seeking investments. It was in reply to parties interested in these -resales that the letters of Assistant Secretary Field and Mr. Chase -were written, pledging the Nation to payment in coin. At the date of -these important letters Congress was in session, and, although the -opportunity was constant, there was no protest against the meaning -thus authoritatively affixed to these obligations. The bonds were -in the market, advertised and sold daily, with a value established -by the representations of these national agents; and Congress did -not interfere to set aside these representations. By subsequent -Acts similar loans were authorized, and nobody protested. There was -the supplementary clause of 3d March, 1864, for the issue of eleven -millions of these bonds, to cover an excess subscribed above the -amount authorized by the original Act. This was debated in the Senate -on the 1st of March; but you will search the “Globe” in vain for any -protest. Then came other Acts, at different dates, by which the loan -was further enlarged to its present extent, and all the time these -representations were uncontradicted. Against them there was no Act of -Congress, no protest, nothing. If this is not “acquiescence,” then I am -at a loss to know how acquiescence can be shown. Therefore do I insist -that these representations are a part of the contract by which the -Nation is bound. - -It is said that in the five-twenty bonds there are words promising -interest in coin, but nothing with regard to the principal. Forgetting -the contemporary understanding and the official interpretation, and -assuming that at maturity the bond is no better than a greenback, it -becomes important to know the character of this obligation. On its -face a greenback is a promise to pay a certain number of dollars. -It is paper, and it promises to pay “dollars.” Here is an example, -which I take from my pocket: “The United States promise to pay to the -bearer _five dollars_”--not five dollars in paper, or in some other -substituted promise, but “five dollars,” which can mean nothing else -than the coin known over the world with the stamp of Spain, Mexico, -and the United States, being a fixed value, which passes current -in every zone and at the antipodes. The “dollar” is an established -measure of value, like the five-franc piece of France, or the pound -sterling of England. As well say, that, on a promise to pay so many -francs in France, or so many pounds sterling in England, you could -honestly acquit yourself by handing over a scrap of printed paper, -inconvertible in value. This could not be done. The promise in our -greenbacks carries with it an ultimate obligation to pay the silver -dollar whose chink is so familiar in the commerce of the world. The -convertibility of the greenback is for the present suspended; but when -paid, it must be in coin. To pay with another promise is to renew, and -not to discharge the debt. But the obligation in our bonds is to pay -“dollars” also, _whenever the bonds are paid_; it may be after five -years, or, in the discretion of the Nation, not till twenty years, -but, _when paid_, it must be in “dollars.” Such is the stipulation; -nor could the addition of “coin” or “gold” essentially change this -obligation. _It is contrary to reason that a bond should be paid in -an inferior obligation._ It is dishonest to force inconvertible paper -without interest in payment of an interest-bearing obligation. The -statement of the case is enough. Such an attempt disturbs the reason -and shocks the moral sense. - -Between the bond and the greenback there is an obvious distinction, -doubly attested by the Act of Congress creating them both,--for they -were created together. This distinction appears, first, in the title of -the Act, and, secondly, in its provisions. According to its title, it -is “An Act to authorize the issue of United States notes, _and for the -redemption or funding thereof, and for funding the floating debt of the -United States_.”[236] In brief, greenbacks were made a legal tender, -and authority was given to fund them in these bonds. This appears -in the very title of the Act. Now the object of funding is to bring -what is uncertain and floating into a permanent form; and accordingly -greenbacks were funded and placed on interest. The bonds were a -substitute for the greenbacks; but the new theory makes the greenbacks -a substitute for the bonds. To carry forward still further the policy -of the Act, it was provided that the greenbacks might be exchanged at -once for bonds; and then, by the Act of 11th July, 1862,[237] it was -further provided that these very greenbacks “may be paid in coin,” at -the direction of the Secretary, instead of being received in exchange -for certificates of deposit, which were convertible into bonds,--thus -treating the bonds as the equivalent of coin. The subsequent repeal -of these provisions does not alter their testimony to the character -of these bonds. Thus, at every turn, we are brought to the same -conclusion. The dishonor of these obligations, whatever form it may -assume, and whatever pretext it may adopt, is nothing but Repudiation. - - * * * * * - -The word _Repudiation_, now so generally used to denote the refusal to -pay national obligations, has been known in this sense only recently. -In the early dictionaries of our language it had no such signification. -According to Dr. Johnson, it meant simply “divorce,” “rejection,” as -when a man put away his wife. It began to be known in its present -sense when Mississippi, the State of Jefferson Davis, dishonored her -bonds. From that time the word has been too familiar in our public -discussions. It was not unnatural that a State mad with Slavery should -dishonor its bonds. Rejecting all obligations of humanity and justice, -it easily rejected the obligations of Public Faith. Slavery was in -itself a perpetual _repudiation_, and slave-masters were unblushing -_repudiators_. Such an example is not fit for our Nation at this great -period of its history. - -It is one of the calamities of war, that, while it compels the -employment of large means, it blunts the moral sense, and breeds too -frequently an insensibility to the obligations incurred. A national -debt shares for the time the exceptional character of war itself. -Contracted hastily, it is little regarded except as a burden. At -last, when business is restored and all things assume their natural -proportions, it is recognized in its true character. The country -accommodates itself to the pressure. This time is now at hand among -us, if not arrested by disturbing influences. Unhappily, the demands -of Public Faith are met by higgling and chaffering, and we are gravely -reminded that the “bloated bond-holders” now expect more than they -gave,--forgetting that they gave in the darkness of the war, at the -appeal of the Nation, and to keep those armies in the field through -which its existence was preserved,--forgetting also that among these -bond-holders, now so foully stigmatized, were the poor, as well as the -rich, all giving according to their means. It was not in the ordinary -spirit of money-lending that those contributions were made. Love of -country entered into them, and made them more than money. If the -interest was considerable, it was only in proportion to the risk. Every -loan at that time was a contract of bottomry on the Nation,--like money -lent to a ship in a strange port, and conditioned on its arrival safe -at home,--so that it failed entirely, if Slavery, by the aid of Foreign -Powers, established its supremacy. God be praised, the enemy has been -overcome! It remains now that we should overcome that other enemy, -which, hardly less malignant than war itself, would despoil the Nation -of its good name and take from it all the might of honesty. And here -to every citizen, and especially to every legislator, I would address -those incomparable words of Milton in his sonnet to Fairfax:-- - - “Oh, yet a nobler task awaits thy hand, - (For what can war but endless war still breed?) - Till truth and right from violence be freed, - _And Public Faith cleared from the shameful brand_ - _Of public fraud_.” - -The proposition to pay bonds in greenbacks becomes futile and fatuous, -when it is considered that such an operation would be nothing more -than the substitution of greenbacks for bonds, and not a payment of -anything. The form of the debt would be changed, but the debt would -remain. Of the twenty-five hundred millions which we now owe, whether -in greenbacks or bonds, every dollar must be paid, sooner or later, -or be ignobly repudiated. By paying the interest of the bonds in -coin, instead of greenbacks, the annual increase of the debt to this -extent is prevented. But the principal remains to be paid. If this -be attempted in greenbacks, it will be by an issue far beyond all -the demands of the currency. There will be a deluge of greenbacks. -The country must suffer inconceivably under such a dispensation. The -interest on the bonds may be stopped by the substitution, but the -currency will be depreciated infinitely beyond any such dishonest -saving. The country will be bankrupt. Inconvertible paper will -overspread the land, to the exclusion of coin or any chance of coin -for some time to come. Farewell then to specie payments! Greenbacks -will be everywhere. The multitudinous rats that swam the Rhine and -devoured Bishop Hatto in his tower were not more destructive. The cloud -of locusts described by Milton as “warping on the eastern wind” and -“darkening all the land of Nile,” were not more pestilential. - -I am now brought to the practical question, to which I have already -alluded: How the public burdens shall be lightened. Of course, in -this work, the Public Faith, if kept sacred, will be a constant and -omnipresent agency, powerful in itself, and powerful also in its -reinforcement of all other agencies. - - * * * * * - -It will not seem trivial, if I insist on systematic economy in the -administration of the Government. All needless expenditure must be -lopped off. Our swollen appropriations must be compressed. Extravagance -and recklessness, so natural during a period of war, must give way to -moderation and thrift. All this without any denial of what is just or -beneficent. The rule should be economy without niggardliness. Always -there must be a good reason for whatever we spend. Every dollar, as it -leaves the National Treasury, must be able to exhibit its passport. -Doubtless the army and navy can be further reduced without detriment to -the public service. Beyond this great saving there should be a constant -watchfulness against those schemes of public plunder, great and small, -from which the Nation has latterly suffered so much. All these things -are so plain as to be little more than truisms. - - * * * * * - -Another help will be found in the simplification of our system of -taxation, so that it shall be less complex and shall apply to fewer -objects. In Europe taxation has become a science, according to which -the largest possible amounts are obtained at the smallest possible -inconvenience. Instead of sweeping through all the highways and byways -of life, leaving no single thing unvisited, the English system has a -narrow range and visits a few select articles only. I see no reason -why we should not profit by this example, much to the convenience of -the Government and of the citizen. The tax-gatherer will never be a -very welcome guest, but he may be less of an intruder than now. A -proper tax on two articles, whiskey and tobacco, with proper securities -for its collection, would go far to support the Government. - - * * * * * - -Still another agency will be found in some proper scheme for a -diminution of the interest on our national debt, so far as this can be -done without a violation of Public Faith; and this brings me to the -very bill now before the Senate. - -All are anxious to relieve the country from recurring liabilities, -which come round like the seasons. How can this be done best? First, by -the strict performance of all existing engagements, so that the Public -Faith shall be our inseparable ally; and, secondly, by funding the -existing debt in such ways as to provide a reduced rate of interest. A -longer term would justify a smaller interest. There may be differences -as to the form of the substitute, but it would seem as if something of -this kind must be done. - -Immediately after the close of the war, as the smoke of battle was -disappearing, but before the national ledger was sufficiently examined -to justify a comparison between liabilities and resources, there was a -generous inclination to proceed at once to the payment of the national -debt. Volunteers came forward with their contributions for this -purpose, in the hope that the generation which suppressed the Rebellion -might have the added glory of removing this great burden. This ardor -was momentary. It was soon seen that the task was too extensive, -and that it justly belonged to another generation, with aggrandized -population and resources, in presence of which the existing debt, large -to us, would be small. Here the census has its instructive lesson. -According to the rate of increase in past years, our population will -advance in the following proportion:-- - - In 1870, 42,323,341 - In 1880, 56,967,216 - In 1890, 76,677,872 - In 1900, 103,208,415 - In 1910, 138,918,526 - -The resources of the country, already so vast, will swell in still -larger proportions. Population increasing beyond example, improved -systems of communication expanding in every direction, and the -mechanical arts with their infinite activities old and new,--all these -must carry the Nation forward beyond any present calculation, so -that the imagination tires in the effort to grasp the mighty result. -Therefore to the future we may tranquilly leave the final settlement of -the national debt, meanwhile discharging our own incidental duty, so -that the Public Faith shall be preserved. - -Here is a notable difference between the United States and other -countries, where population and resources have arrived at such a point -that future advance is very gradual. With us each decade is a leap -forward; with them it marks a gradation sometimes scarcely appreciable. -This difference must not be forgotten in the estimate of our capacity -to deal with a debt larger than that of any European power except -England. But we must confess our humiliation, as we find that our -debt, with its large interest in coin, secured by mortgage on the -immeasurable future of the Nation, is less regarded abroad than the -English debt, with its smaller interest and its more limited security. -Our sixes will command only seventy-four per cent. in the market of -London, while the three per cent. consols of England are freely bought -at ninety-four per cent. One of our bonds brings twenty per cent. less -than an English bond, although the interest on it is one hundred per -cent. more. I know no substantial reason for this enormous difference, -except in the superior credit established by England. With the national -credit above suspicion, our debt must stand as well, and, as our -multiplying resources become known, even better still. Thus constantly -are we brought to the same lesson of Public Faith. - -In spite of the general discredit of our national stocks abroad, -Massachusetts fives payable in 1894 sell at the nominal price of 84, -with the pound sterling at $4.44, equal to 91½ in our gold, with the -pound sterling at $4.83. There can be no other reason for this higher -price than the superior credit enjoyed by Massachusetts; and thus again -is Public Faith exalted. Why should not the Nation, with its infinite -resources, surpass Massachusetts? - - * * * * * - -The bill before us proposes a new issue of bonds, redeemable in coin -after twenty, thirty, and forty years, with interest at five per cent., -four and one half per cent., and four per cent., in coin, exempt from -State or municipal taxation, and also from national taxation, except -the general tax on income,--these bonds to be used exclusively for -the conversion of an equal amount of the interest-bearing debt of the -United States, except the existing five per cent. bonds and the three -per cent. certificates. These proposed bonds have the advantage of -being explicit in their terms. The obligations of the Government are -fixed clearly and unchangeably beyond the assaults of politicians. - -A glance at the national debt will show the operation of this measure. -The sum-total on the 1st of February, 1868, according to the statement -from the Treasury, was $2,514,315,373, being, in round numbers, -twenty-five hundred millions. Out of this may be deducted legal-tender -and fractional notes, as currency, amounting to $388,405,565, and -several other smaller items. The following amounts represent the -portions of debt provided for by this bill:-- - - Six per cent., due 1881, $ 283,676,600 - Six per cent., five-twenties, 1,398,488,850 - Seven and three tenths Treasury notes, - convertible into five-twenty bonds at - maturity, 214,953,850 - -------------- - $1,897,119,300 - -This considerable sum may be funded under the proposed bill. - -If this large portion of the national debt, with its six per cent. -interest in coin, can be funded at a less interest, there will be a -corresponding relief to the country. But there is one way only in which -this can be successfully accomplished. It is by making the Public -Faith so manifest that the holders will be induced to come into the -change for the sake of the longer term. All that is done by them must -be voluntary. Every holder must be free to choose. He may prefer his -short bond at six per cent., or a long bond at five per cent., or a -longer at four and one half per cent., or a still longer at four per -cent. This is his affair. There must be no compulsion. Any menace -of compulsion will defeat the transaction. It will be nothing less -than Repudiation, with a certain loss of credit, which no saving of -interest can repay. You must continue to borrow on a large scale; but -who will lend to the repudiator, unless at a destructive discount? Any -reduction of interest without the consent of the holders will reduce -your capacity to borrow. A forced reduction of interest will be like -a forced loan. While seeming to save interest, you will lose capital. -Do not be deceived. Any compulsory conversion is only another form of -Repudiation. It is tantamount to this declared crime. It is the same -misdeed, taking still another shape,--as Proteus was the same heathen -god in all his various transformations. It is Repudiation under an -_alias_. - -Happily the bill before us is free from any such damning imputation. -The new bonds are authorized; but the holders of existing obligations -are left free to exercise their judgment in making the change. I am -assured by those who, from practical acquaintance with business, ought -to know, that these bonds will be rapidly taken for the five-twenties. - -The same bill, in its second section, sets apart $135,000,000 annually -to the payment of the interest and the reduction of the principal of -the national debt; and this is to be in lieu of a sinking fund. This is -an additional security. It is another assurance of our determination to -deal honestly. - -The third section of the same bill is newer in its provisions, and, -perhaps, more open to doubt. But, though uncertain with regard to it -in the beginning, I have found that it commended itself on careful -examination. On its face it provides for a system of conversion and -reconversion. The holder of lawful money to the amount of $1,000, or -any multiple of $1,000, may convert the same into the funded debt for -an equal amount; and any holder of the funded debt may receive for the -same at the Treasury lawful money, unless the notes then outstanding -shall be equal to $400,000,000. If bonds in the funded debt shall be -worth more than greenbacks, the latter would be converted into bonds -according to the ordinary laws of trade. The latest relation of these -two is as follows: $100 greenbacks equal seventy-one dollars gold; -$100 five per cent. equal seventy-six dollars gold. If the greenbacks -are convertible into the five per cent., they will, of course, be -converted while the above relation continues. This must be so long -as the national credit is maintained abroad and the demand for our -securities continues there. By this process our greenbacks will be -gradually absorbed, and those that are not absorbed will be lifted in -value. It would seem as if bonds and greenbacks must both gain from -this business, and with them the country must gain also. Here would be -a new step to specie payments. - -The bill closes with a provision authorizing contracts in coin, instead -of greenbacks, according to the agreement of parties. This authority is -in harmony with the other provisions of the bill, and is still another -step toward specie payments. - - * * * * * - -I am now brought to the last branch of this discussion, in which all -the others are absorbed: I mean the necessity of specie payments, or, -in other words, the necessity of coin in the place of inconvertible -paper. Other things are means to this end: this is the end itself. -Until this is accomplished, Financial Reconstruction exists in -aspiration only, and not in reality. - -The suspension of specie payments was originally a war measure, like -the suspension of the _Habeas Corpus_. It was so declared by myself at -the time it was authorized. Pardon me, if I quote my own words in the -debate on the bill:-- - - “It is a discretion kindred to that under which the _Habeas - Corpus_ is suspended, so that citizens are arrested without - the forms of law,--kindred to that under which an extensive - territory is declared to be in a condition of insurrection, so - that all business with its inhabitants is suspended,--kindred - to that, which unquestionably exists, to obtain soldiers, - if necessary, by draft or conscription instead of the free - offering of volunteers,--kindred to that under which private - property is taken for public uses,--and kindred, also, to that - undoubted discretion which sanctions the completest exercise of - the transcendent right of self-defence.”[238] - -As a war measure, it should cease with the war, or so soon thereafter -as practicable. It should not be continued a day beyond positive -exigency. While the war lasted, it was a necessity, as the war itself. -Its continuance now prolongs into peace this belligerent agency, and -projects its disturbing influence into the most distant places. Like -war, whose greatest engine it was, it is the cause of incalculable -evil. Like war, it troubles the entire Nation, deranges business, and -demoralizes the people. As I hate war, so do I hate all its incidents, -and long to see them disappear. Already in these remarks I have -pictured the financial anarchy of our country, the natural reflection -of the political; but the strongest illustration is in a disordered -currency, which is present to everybody with a dollar in his pocket. - -The derangement of business may be seen at home and abroad. It is not -merely derangement; it is dislocation. Everything is out of joint. -Business has its disease also, showing itself in opposite conditions: -shrunk at times, as with paralysis; swollen at times to unhealthy -proportions, as with _elephantiasis_. The first condition of business -is stability, which is only another form of security; but this is -impossible, when nobody can tell from day to day the value of the -currency. It may change in a night. The reasonable contract of to-day -may become onerous beyond calculation to-morrow. There is no fixed -standard. The seller is afraid to sell, the buyer afraid to buy. -Nobody can sell or buy a farm, nobody can build or mortgage a house, -except at an unnatural hazard. Salaries and all fixed incomes suffer. -The pay of every soldier in the army, every sailor in the navy, every -office-holder from the President to the humblest postmaster, is brought -under this tyrannical influence. Harder still, innocent pensioners, -wards of the Nation, must bear the same doom. Maimed soldiers, bereaved -widows, helpless orphans, whose cup is already full, are compelled to -see their scanty dole shrink before their sight till it seems ready to -vanish in smoke. - -A greenback is a piece of paper with a promise on its face and green -on its back, declared to be money by Act of Congress, but which the -Government refuses to pay. It is “failed paper” of the Government. The -mischief of such a currency is everywhere, enveloping the whole country -and penetrating all its parts. It covers all and enters all. It is a -discredit to the national name, from which the Nation suffers in whole -and in detail. It weakens the Nation and hampers the citizen. There is -no national enterprise which it does not impede. The Pacific Railroad -feels it. There is not a manufacture or business which does not feel it -also. There is not a town, or village, or distant place, which it does -not visit. - -A practical instance will show one way in which individuals suffer -on an extensive scale, being generally those who are least able. I -follow an ingenious merchant, Mr. Atkinson, of Boston, whose figures -sustain his conclusion, when I insist that our present currency, from -its unstable character, operates as an _extra_ tax of more than one -hundred millions annually on the labor and business of the country; -and this vast sum is taken from the pockets of the people, not for the -support of the Government, but to swell the unreported fund out of -which the excesses of the present day are maintained. There are few -business men who would not put the annual loss in their affairs, from -the fluctuation in the currency, somewhere from one to five per cent. -One per cent. is the lowest. Mr. Hazard, of Rhode Island, puts it at -two per cent. Now the aggregate sales in the fiscal year ending June, -1867, were over eleven thousand millions ($11,000,000,000) in currency, -excluding sales of stocks or bonds. One per cent. on this prodigious -amount represents a tax of one hundred and ten millions, paid annually -by consumers, according to their consumption, and not in any degree -according to their ability. This is one instance only of the damages -annually paid on account of our currency. If we estimate the annual -tax at more than one per cent., the sum-total will be proportionally -larger. Even at the smallest rate, it is many millions more than -all the annual expenses of our Government immediately preceding the -Rebellion. - -Fluctuations in the measure of value are as inconvenient and fatal -as fluctuations in the measures of length and bulk. A dollar which -has to-day one value and to-morrow another is no better than a yard -which has to-day one length and another to-morrow, or a bushel which -has to-day one capacity and another to-morrow. It is as uncertain -as “Equity” measured by the varying foot of successive chancellors, -sometimes long and sometimes short, according to the pleasant -illustration of Selden in his “Table-Talk.” Such fluctuations are more -than a match for any prudence. Business is turned into a guess, or a -game of hazard, where the prevailing anarchy is overruled by accident:-- - - “Chaos umpire sits, - And by decision more embroils the fray - By which he reigns; next him high arbiter - Chance governs all.” - -In such a condition of things the gamblers have the advantage. The -stock exchange becomes little better than a faro bank. By such scenes -the country is demoralized. The temptation of excessive gains leads -from the beaten path of business. Speculation without money takes the -place of honest industry, extending from the stock exchange everywhere. -The failed paper of the Government teaches the lesson of bankruptcy. -The Government refuses to take up its notes, and others do likewise. -These things cannot be without a shock to public morals. Honesty ceases -to be even a policy. Broken contracts prepare the way for crime, which -comes to complete the picture. - -Our foreign commerce is not less disturbed; for here we are brought -within the sphere of other laws than our own. Gold is the standard -of business throughout the civilized world. Until it becomes again -the standard among us, we are not, according to the familiar phrase -of President Lincoln, in “practical relation” with the civilized -world. We are States out of the great Union. Our currency has the -stamp of legality at home, but it is worthless abroad. In all foreign -transactions we are driven to purchase gold at a premium, or to adopt -a system of barter which belongs to the earlier stages of commerce. -Corn, wheat, and cotton are exchanged for the products we desire, and -this traffic is the coarse substitute for that refined and plastic -system of exchanges which adapts itself so easily to all the demands of -business. Commerce with foreign powers is prosecuted at an incalculable -disadvantage. Our shipping, which in times past has been the pride of -the Nation, whitening every sea with its sails, is reduced in number -and value. Driven from the ocean by pirate flags during the Rebellion, -it cannot struggle back to its ancient supremacy until the accustomed -laws of trade once more resume their rule. - - * * * * * - -There are few who will deny the transcendent evil which I have set -forth. There are few who will advocate inconvertible paper as currency. -How shall the remedy be applied? On this question, so interesting to -the business and good name of the country, there are theories without -number,--some so ingenious as to be artificial rather than natural. -What is natural is simple; and I am persuaded that our remedy must be -of this character. - -The legal-tender note, which we wish to expel from our currency, has -two different characters: first, as mere currency, for use in the -transactions of business; and, secondly, as real value, from the -assurance that ultimately it will be paid in coin, according to its -promise. These two different characters may be sententiously expressed -as _availability_ and _convertibility_. The notes are now available -without being convertible. Our desire is to make them convertible,--in -other words, the equivalent of coin in value, dollar for dollar. On the -1st of June last past these notes were $388,675,802 in amount. - -Discarding theories, however ingenious, and following Nature, I call -attention to a few practical points, before reverting to those cardinal -principles applicable to this subject, from which there can be no -appeal. - -_First._ The present proposition for funding is an excellent measure -for this purpose, being at once simple and practical: not that it -contains any direct promise for the redemption of our currency, but -because it places the national debt on a permanent footing at a smaller -interest than is now paid. By this change three things essential to -financial reconstruction are promoted: economy, stability, and national -credit. With these once established, specie payments cannot be long -postponed. - -_Secondly._ Another measure of immediate value is _the legalization of -contracts in coin_, so that henceforth all agreements made in coin may -be legally enforced in coin or its equivalent. This would establish -specie payments wherever parties desired, and to this extent begin the -much-desired change. Contracts in coin would increase and multiply, -until the exception became the rule. There would for a time be _two -currencies_; but the better must gradually prevail. The essential -equity of the new system would be apparent, while there would be a -charm in once more looking upon familiar faces long hidden from -sight, as the hoarded coin came forth. Nor can any possible injury -ensue. The legalization is applicable only to future contracts, as the -parties mutually agree. Every citizen in this respect would be a law -to himself. If he chose in his own business to resume specie payments, -he could do so. There would be a voluntary resumption by the people, -one by one. But this influence could not be confined to the immediate -parties. Beyond the contagion of its example, there would be a positive -necessity on the part of the banks that they should adapt themselves to -the exigency by the substitution of proper commercial equivalents; and -thus again we take another step in specie payments. - -_Thirdly._ Another measure of practical value is _the contraction of -the existing currency_, so as to bring it on a par with coin, dollar -for dollar. Before alluding to any of the expedients to accomplish -this precious object, it is important to arrive at some idea of the -amount of currency of all kinds required for the business of the -country. To do this, we may look at the currency before the Rebellion, -when business was in its normal condition. I shall not occupy space -with tables, although they are now before me, but content myself with -results. From the official report of the Treasury it appears that on -the 1st of January, 1860, the whole active circulation of the country, -including bank circulation, bank deposits available as currency, specie -in bank, specie in Treasury, estimated specie in circulation, and -deducting reserves, amounted to $542,097,264. It may be assumed that -this sum-total was the amount of currency required at the time. From -the same official tables it appears that on the 1st of October, 1867, -the whole active circulation of the country, beginning with greenbacks -and fractional currency, and including all the items in the other -account, amounted to $1,245,138,193. Thus from 1860, when the currency -was normal, to 1867, some time after the suspension of specie payments, -there was an increase of one hundred and thirty per cent. Omitting bank -deposits for both years, the increase was one hundred and forty-six per -cent. Making due allowance for the increase of population, business, -and Government transactions, there remains a considerable portion of -this advance which must be attributed to the abnormal condition of -the currency. I follow various estimates in putting this at sixty or -seventy per cent., representing the difference of prices at the two -different periods, and the corresponding excess of currency above the -requirements of the country. Therefore, for the reduction of prices, -there must be a reduction of the currency; and this must be to the -amount of $300,000,000. So it seems, unless these figures err. - -Against the movement for contraction, which is commended by its -simplicity and its tendency to a normal condition of things, we have -two adverse policies,--one, the stand-still policy, and the other, -worse yet, the policy of inflation. By the first the currency is -left _in statu quo_,--stationary,--subject to the influence of other -conditions, which may operate to reduce it. Better stand still than -move in a wrong direction. By the latter the currency is enlarged at -the expense of the people,--being at once a tax and a derangement of -values. You pamper the morbid appetite for paper money, and play the -discarded part of John Law. You blow up a bladder, without thinking -that it is nothing but a bladder, ready to burst. As the volume of -currency is increased, the purchasing power of each dollar is reduced -in proportion. As you add to the currency, you take from the dollar. -You do little more than mark your goods at higher prices, and imagine -that they have increased in value. Already the price is too high. Do -not make it higher. Already the currency is corrupted. Do not corrupt -it more. The cream has been reduced to skimmed milk. Do not let it be -reduced to chalk and water. Let there be national cream for all the -people. - -Obviously any contraction of the currency must be conducted with -caution, so as to interfere as little as possible with existing -interests. It should be understood in advance, so that business may -adapt itself to the change. Once understood, it must be pursued wisely -to the end. I call attention to a few of the expedients by which this -contraction may be made. - -1. Any holder may have liberty to fund his greenbacks in bonds, as he -may desire; so that, as coin increases, they will be merged in the -funded debt, and the currency be reduced in corresponding proportion. - -2. Greenbacks, when received at the Treasury, may be cancelled, or they -may be redeemed directly, so far as the coin on hand will permit. - -3. Greenbacks may be converted into compound-interest notes, to be -funded in monthly instalments, running over a term of years, thus -reaching specie payments within a brief period. - -4. Another expedient, more active still, is the application of the coin -on hand to the payment of greenbacks at a given rate,--say $6,000,000 -a month,--selecting for payment those holders who present the largest -amount of five-twenties for conversion into the long bonds at a low -rate of interest, or shall pay the highest premium on such bonds. - -I mention these as expedients, having the authority of financial -names, calculated to operate in the same direction, without violent -change or spasmodic action. Under their mild and beneficent influence -the currency would be gradually reduced, so that the final step, when -taken, would be hardly felt. With so great an object in view, I do not -doubt its accomplishment at an early day, if the Nation only wills it. -“Where there is a will, there is a way”; and never was this proverb -truer than on this occasion. To my mind it is clear, that, when the -Nation wills a currency in coin, then must this victory over the -Rebellion be won,--provided always that there is no failure in those -other things on which I have also dwelt as the _conditions precedent_ -of this final victory. - - * * * * * - -How vain it is to expect Financial Reconstruction until Political -Reconstruction has been completed I have already shown. How vain to -expect specie payments until the Nation has once more gained its -natural vigor, and it has become _one_ in reality as in name! Let this -be, and the Nation will be like a strong man, in the full enjoyment of -all his forces, coping with the trials of life. - -There must also be peace within our borders, so that there shall be no -discord between President and Congress. Therefore, so long as Andrew -Johnson is President, the return to specie payments is impossible. So -long as a great party, called Democratic, better now called Rebel, wars -on that Political Reconstruction which Congress has organized, there -can be no specie payments. So long as any President, or any political -party, denies the Equal Rights of the freedman, it is vain to expect -specie payments. Whoso would have equity must do equity; and now, if -you would have specie payments, you must do this great equity. The rest -will follow. When General Grant said, “Let us have peace,” he said -also, “Let us have specie payments.” Among all the blessed gifts of -peace there is none more certain. - -Nor must it be forgotten that there can be no departure in any way -from the requirements of Public Faith. This is a perpetual obligation, -complete in all respects, and just as applicable to the freedman as -to the bond-holder. Repudiation in all its forms, direct or indirect, -whether of the freedman or the bond-holder, must be repudiated. The -freedman and bond-holder are under the same safeguard, and there is the -same certain disaster from any repudiation of either. Unless the Public -Faith is preserved inviolate, you cannot fund your debt at a smaller -interest, you cannot convert your greenbacks, you cannot comply with -the essential terms of Reconstruction. Amid all surrounding abundance -you are poor and powerless, for you are dishonored. Do not say, as -an apology, that all should have the same currency. True as this may -be, it is a cheat, when used to cover dishonor. The currency of all -should be coin, and you should lift all the national creditors to this -solid platform rather than drag a single citizen down. A just Equality -is sought by levelling up instead of levelling down. In this way the -national credit will be maintained, so that it will be a source of -wealth, prosperity, and renown. - -Pardon me, if now, by way of recapitulation, I call your attention -to three things in which all others centre. The first is the _Public -Faith_. The second is the _Public Faith_. The third is the _Public -Faith_. Let these be sacredly preserved, and there is nothing of power -or fame which can be wanting. All things will pay tribute to you, -even from the uttermost parts of the sea. All the sheaves will stand -about, as in the dream of Joseph, and make obeisance to your sheaf. -Good people, especially all concerned in business, whether commerce, -banking, or labor, our own compatriots or the people of other lands, -will honor and uphold the nation which, against all temptation, keeps -its word. - - - - -NO REPRISALS ON INNOCENT PERSONS. - -SPEECH IN THE SENATE, ON THE BILL CONCERNING THE RIGHTS OF AMERICAN -CITIZENS, JULY 18, 1868. - - - The Senate had under consideration the Bill concerning the - Rights of American Citizens in Foreign States, which had - already passed the House of Representatives. As it came from - the House it contained the following section:-- - - “SEC. 3. _And be it further enacted_, That, whenever - it shall be duly made known to the President that any - citizen of the United States has been arrested and is - detained by any foreign Government, in contravention of - the intent and purposes of this Act, upon the allegation - that naturalization in the United States does not operate - to dissolve his allegiance to his native sovereign, or - if any citizen shall have been arrested and detained, - whose release upon demand shall have been unreasonably - delayed or refused, _the President shall be, and hereby - is, empowered to suspend, in part or wholly, commercial - relations with the said Government, or, in case no other - remedy is available, to order the arrest and to detain in - custody any subject or citizen of such foreign Government - who may be found within the jurisdiction of the United - States, and who has not declared his intention to become a - citizen of the United States, except ambassadors and other - public ministers and their domestics and domestic servants; - and the President shall without delay give information to - Congress of any proceedings under this Act_.” - - Mr. Sumner reported an amendment, to strike out the words in - Italic authorizing the suspension of commercial relations and - reprisals on persons, and substitute therefor these words:-- - - “It shall be the duty of the President forthwith to report - to Congress all the circumstances of any such arrest and - detention, and any proceedings for the release of the - citizen so arrested and detained, that Congress may take - prompt action to secure to every citizen of the United - States his just rights.” - - On this amendment Mr. Sumner spoke as follows. - -MR. PRESIDENT,--Before entering upon this discussion, I wish to read a -brief telegram, which came by the cable last evening, as follows:-- - - “LONDON, _July 17_.--In the House, last evening, Stanley, the - Secretary of Foreign Affairs, made an important statement in - answer to a question asking for information. In reply, he said - he had already sent to the United States Government a note on - the matter of Naturalization, the substance of which was, that - the British ministry was ready to accept the American views of - the question. He therefore thought a misunderstanding between - the two nations impossible.” - -Add to this important information the well-known fact, that the United -States have already ratified treaties with North Germany and Bavaria, -and that we are engaged in negotiating treaties with other powers, for -the settlement of this vexed question, and we may surely approach this -discussion without any anxiety, except for the honor of our country. - -Permit me to say, at the outset, that the declared object of the -present bill is all lost in certain special features, which are nothing -less than monstrous, and utterly unworthy of a generous Republic hoping -to give an example to mankind. Surely, Sir, it is noble to reach out -and protect the rights of the citizen at home and abroad; but no zeal -in this behalf should betray us into conduct which cannot be regarded -without a blush. - -This bill proposes to confer upon the President prodigious powers, -such as have never been lavished before in our history. They are -without precedent. On this account alone they should be considered -carefully; and they should not be granted, unless on good reason. If -it be shown that they are not only without precedent, but that they -are inconsistent with the requirements of modern civilization, that -they are of evil example, and that they tend directly to war,--then, on -this account, we should hesitate still more before we venture to grant -them. Not lightly can a nation set itself against the requirements of -civilization; not lightly can a nation do an act of evil example; not -lightly can a nation take any step toward war. The whole business is -solemn. Nothing graver could challenge the attention of the Senate. - -Two powers are conferred upon the President: first, to suspend -commercial relations with a foreign government, and, secondly, to -arrest and detain in custody any subject of a foreign government -found within the jurisdiction of the United States. The suspension of -commercial relations, and the arrest of innocent foreigners, simply -at the will of the President,--these are the two powers. It would be -difficult to imagine greater. - -We have had in our own history the instance of an embargo, when all our -merchant ships were kept at home and forbidden to embark in foreign -commerce. That measure was intended to save our commerce from insult -and our sailors from impressment. This was done by Act of Congress. -I am not aware of any instance, in our own history or in the history -of any other country, where there has been a suspension of commercial -relations with any foreign power, unless as an act of war. The moment -war is declared, there is, from the fact of war, a suspension of -commercial relations with the hostile power. Commerce with that power -is impossible, and there can be no contract even between the citizens -or subjects of the two powers. But this is war. It is now proposed -to do this same thing and to call it peace. The proposition is new, -absolutely new. Not an instance of history, not a phrase in the Law -of Nations, sanctions it. I need not say how little congenial it is -with the age in which we live. The present object of good men is to -make war difficult, if not impossible. Here is a way to make war -easy. To the President is given this alarming power. In Europe war -proceeds from the sovereign: in England, from the Queen in Council; -in France, from Louis Napoleon. This is according to the genius of -monarchies. By the Constitution of our Republic it is Congress alone -that can declare war. And yet by this bill One Man, in his discretion, -may do little short of declaring war. He may hurl one of the bolts of -war, and sever the commercial relations of two great powers. Consider -well what must ensue. Suppose the bolt is hurled at England. All that -various commerce on which so much depends, all that interchange of -goods which contributes so infinitely to the wants of each, all that -shipping and all those steamers traversing the ocean between the two, -all the multitudinous threads of business by which the two peoples are -woven together, warp and woof, as in a mighty loom,--all these must be -severed. - -The next power conferred on the President is like unto the first in -its abnormal character. It is nothing less than authority, in his -discretion, to make reprisals, by seizing innocent foreigners happening -to be in the United States. The more this is considered, the more it -must be regarded with distrust. - -Reprisals belong to the incidents of war in the earlier ages, before -civilization had tempered the rudeness of mankind. All reprisals are of -doubtful character. Reprisals on persons are barbarous. I do not say, -that, according to the received rights of war, some terrible occasion -may not arise even for this barbarous agency; but I insist that it is -frowned upon by all the best authorities even in our own country, that -it is contrary to enlightened reason, and that it is utterly without -any recent example. Admitting that such reprisals are not entirely -discarded by writers on the Law of Nations, they are nevertheless -condemned. By the rights of war, as once declared, the lives of -prisoners taken on the field of battle were forfeit. Early history -attests the frequency of this bloody sacrifice. Who now would order the -execution of prisoners of war? The day has passed when any such outrage -can be tolerated. But it is hardly less barbarous to seize innocent -persons whom business or pleasure has brought within your peaceful -jurisdiction, under the guaranty of the Public Faith. - -I am unwilling to occupy time on a matter which is so clear in the -light of modern civilization, and of that enlightened reason which is -the handmaid to civilization. And yet the present effort will justify -me in exposing the true character of reprisals, as seen in the light of -history. - -Reprisals were recognized by the Greeks, but disowned by the Romans. -According to Bynkershoek, who is so much quoted on the Law of Nations, -“there is no instance of such wickedness in the history of that -magnanimous people; neither do their laws exhibit the least trace of -it.”[239] This is strong language, and is in itself a condemnation of -this whole agency. It is of the more weight, as the author is our -austerest authority on questions of the Law of Nations, giving to the -rights of war the strongest statement. According to him, reprisals -are nothing less than “wickedness” (_improbitas_), and unworthy of a -magnanimous people. During the Middle Ages, and afterwards, reprisals -were in vogue; but they never found favor. They have been constantly -reprobated. Even when formally sanctioned, they have been practically -excluded by safeguards and conditions. In a treaty between Cromwell and -the States-General there was a stipulation against reprisals, “unless -the prince whose subject shall conceive himself to have been injured -shall first lay his complaint before the sovereign whose subject is -supposed to have committed the tortious act, and _unless that sovereign -shall not cause justice to be rendered to him within three months after -his application_.”[240] This stipulation was renewed under Charles the -Second.[241] The same principle was declared by the Grand Pensionary, -De Witt, who, in the name of the United Provinces, protested, “that -reprisals cannot be granted, _except in case of an open denial of -justice_,” and “that, even in case of a denial of justice, a sovereign -cannot empower his subjects to make reprisals, _until he has repeatedly -demanded justice for them_.”[242] A similar rule was also declared in -the famous letter to the King of Prussia, in the case of the Silesian -loan, written by Murray, afterward Lord Mansfield, and much praised by -Montesquieu and by Vattel.[243] Here it is said: “The Law of Nations, -founded upon justice, equity, convenience, and the reason of the thing, -and confirmed by long usage, does not allow of reprisals, except in -case of violent injuries, directed or supported by the State, and -justice absolutely denied, _in re minime dubia_, by all the tribunals, -and afterwards by the prince.”[244] This is clear and strong. I might -quote authorities without end to the same point. I content myself -with adding the words of General Halleck, who, after saying, in his -admirable manual, that “reprisals bring us to the awful confines of -actual war,” proceeds to lay down the rule, that reprisals, even on -property, can be only “where justice has been plainly denied or most -unreasonably delayed.”[245] This rule commends itself as proper and -just. It is your duty to apply it on the present occasion. But, in -the face of the authorities in our own country, judges, jurists, -publicists, and commentators, in long array, according to whom our own -claim of allegiance is coincident with that of England,--and then, -again, in face of the well-known and much-heralded disposition of -foreign powers, including England, to settle this whole question by -treaty, is it not absurd to say that here is a case for reprisals of -any kind? - -In the early days reprisals were directed against persons as well as -property. Even against property it was done with hesitation, only in -cases free from all doubt, and after ample appeal to the sovereign for -justice. Against persons it was done very rarely. Grotius, our greatest -master, who brought the rules of International Law to the touchstone of -reason, asserts that all reprisals are vindicated by custom rather than -by Nature. His language is, that this rule “is not indeed authorized -by Nature, but generally received by custom.”[246] Since then the -tendency has been to a constant mitigation of this pretension, even as -regards property. Without burdening this discussion with cases, which -are numerous, I give a summary of Wheaton in these words: “It appears -to be the modern rule of international usage, that property of the -enemy found within the territory of the belligerent state, or debts due -to his subjects by the Government or individuals, at the commencement -of hostilities, are not liable to be seized and confiscated as prize of -war.”[247] This rule, which is applicable to the condition of things -on the breaking out of war, attests the care with which the modern Law -of Nations watches the rights of individuals, and how it avoids making -them suffer. Thus even debts are not liable to seizure. How much more -should an innocent person be exempt from any such outrage! - -It is when we consider the modern rule with regard to persons, instead -of property, that we are impressed still more by its benignity. Here I -quote, first a British authority, and then an American. Mr. Phillimore, -the author of the very elaborate and candid treatise on the Law of -Nations, so full of various learning, after admitting that reprisals, -“strictly speaking, affect the persons as well as the goods,” proceeds -to say, that, “in modern times, however, they have been chiefly -confined to goods”; and then adds, in words worthy of consideration -now, that “it is to be hoped that the reprisal of persons has fallen, -with other unnecessary and unchristian severities, into desuetude; _and -certainly, to seize travellers, by way of reprisal, is a breach of the -tacit faith pledged to them by the State, when they were allowed to -enter her borders_.”[248] The same enlightened conclusion is expressed -by Dana, in his excellent notes to Wheaton, as follows: “The right of -making reprisals is not limited to property, but extends to persons; -_still, the practice of modern times discountenances the arrest and -detention of innocent persons strictly in the way of reprisal_.”[249] -Thus do British and American publicists concur in homage to a common -civilization. - -If we look at the reason of the modern rule which spares persons, we -shall find it in two different considerations, each of controlling -authority: first, that an innocent person cannot be seized in a foreign -country without a violation of the Public Faith; and, secondly, that no -private individual can be justly held responsible for the act of his -Government. On the first head Vattel speaks as follows: “The sovereign -who declares war can no more detain the subjects of the enemy who are -found in his states at the time of the declaration than he can their -effects. _They have come into his dominions on the Public Faith._ In -permitting them to enter his territories and continue there he tacitly -promised them full liberty and full security for their return.”[250] -In the same sense Halleck says, “Travellers and passing guests are in -general excepted from such liability.”[251] Here again Grotius speaks -with the authority of a Christian lawgiver, saying that by the Law of -Nations there can be no reprisals “on travellers or sojourners.”[252] -The other reason was assigned by Mr. Webster, in his correspondence -with the British Government in relation to the “Caroline.” The British -Government having acknowledged the act of McLeod in burning this vessel -as their act, Mr. Webster at once declared, that, after this avowal, -the individuals engaged in it could not be held personally responsible, -and he added words worthy of memory at this juncture: “The President -presumes that it can hardly be necessary to say that the American -people, not distrustful of their ability to redress public wrongs by -public means, _cannot desire the punishment of individuals, when the -act complained of is declared to have been an act of the Government -itself_.”[253] Weighty words, by which our country is forever bound. -The same principle is adopted by Halleck, in his text-book, when he -says, “No individual is justly chargeable with the guilt of a personal -crime for the act of the community of which he is a member.”[254] All -these authorities furnish us the same lesson, and warn against the -present proposition. Shall we at the same time violate the Public -Faith and wreak a dishonorable vengeance on an innocent traveller or -sojourner, making him the scapegoat of his country? Shall we do this -outrage to the stranger within our gates? - -Another argument may be found in the extent to which reprisal on -persons has been discarded by modern precedents. It is denounced, -not only by authority, but also by practice. I have already said -that the proposition to suspend commercial relations is without -an example in history. The other proposition is without example -since the hateful act of the first Napoleon, condemned afterward by -himself, when, at the breaking of the short-lived Peace of Amiens, he -seized innocent Englishmen who happened to be in France, and detained -them as prisoners, precisely as is now proposed under the present -bill. Among the numerous victims of this tyrannical decree was Lord -Elgin, the father of the late Sir Frederick Bruce, on his return -from Constantinople, where he had been ambassador. There was also an -ingenious scholar, of feeble health, but exquisite attainments, Joseph -Forsyth, author of one of the best books ever written on Italy.[255] -He, too, was seized. In the preface to his admirable work his family -have recorded the outrage. Read it, if you would know the judgment that -awaits such a transaction. There is also another record in the pages of -the English historian who has pictured the events of that time. - - “This declaration of war was immediately followed by an act as - unnecessary as it was barbarous, and which contributed more, - perhaps, than any other circumstance to produce that strong - feeling of animosity against Napoleon which pervaded all - classes of the English during the remainder of the contest. Two - French vessels had been captured, under the English letters - of marque, in the Bay of Audierne, and the First Consul made - it a pretence for ordering the arrest of all the English then - travelling in France between the ages of eighteen and sixty - years. Under this savage decree, unprecedented in the annals - of modern warfare, above ten thousand innocent individuals, - who had repaired to France in pursuit of business, science, or - amusement, on the faith of the Law of Nations, which never - extended hostilities to persons in such circumstances, were at - once thrown into prison, from whence great numbers of them were - never liberated till the invasion of the Allies in 1814.”[256] - -Napoleon himself, at a later day, when reason resumed its sway, -condemned the act. In his conversations at St. Helena with Las Cases, -he said: “The greater part of these English were wealthy or noble -persons, who were travelling for their amusement. The more novel the -act was, _the more flagrant its injustice_, the more it answered my -purpose.”[257] Here, then, was an admission that the act was at once -novel and unjust. The generals that surrounded him at the time most -reluctantly enforced it. From the Memoirs of the Duchess D’Abrantès, -we learn how poignantly her gallant husband, Junot, took it to heart -and protested. He was unwilling to have anything to do with such an -infamy. Recovering at last from the stupor caused by the order, the -brave soldier said: “My General, you know not only my attachment to -your person, but my absolute devotion to everything which concerns -you. It is that devotion which induces me to hesitate at obeying your -orders, before imploring you to take a few hours to reflect on the -measure which you have now commanded.… Demand my blood; demand my life; -I will surrender them without hesitation; but to ask a thing which -must cover us with---- … I am sure, that, when you come to yourself, -and are no longer fascinated by those around you, who compel you to -violent measures, you will be of my opinion.”[258] Every word of this -earnest expostulation may now be justly addressed to the Senate. You, -too, Senators, should you unhappily yield to those who now insist upon -violent measures, will regret the surrender. You will grieve that your -country has been permitted through you to fall from the great example -which it owes to mankind. Save your country; save yourselves. - -Suppose the law is passed, and the authority conferred upon the -President. Whom shall he seize? What innocent foreigner? What trustful -traveller? What honored guest? It may be Mr. Dickens, or Mr. Trollope, -or Rev. Newman Hall; or it may be some merchant here on business, -guiltless of any wrong and under the constant safeguard of the Public -Faith. Permit me to say, Sir, that, the moment you do this, you will -cover the country with shame, of which the present bill will be the -painful prelude. You will be guilty of a barbarism kindred to that of -the Abyssinian king Theodorus. You will degrade the national name, -and make it a byword of reproach. Sir, now is the time to arrest this -dishonor. See to it by your votes that it is impossible forever. - -Sir, it is hard to treat this pretension with composure. Argument, -denunciation, and ridicule are insufficient. It must be trampled under -foot, so as to become a hissing and a scorn. With all the granting -of legislation, it is solemnly proposed that good men shall suffer -for acts in which they had no part. Innocence is no excuse against -the present pretension. The whole attempt is out of time; it is an -anachronism, no better than the revival of the _Prügel-knabe_, who -was kept at the German courts of former days to receive the stripes -which the prince had merited for his misdeeds. Surely, if anybody is -to suffer, let it be the offending Government, or those who represent -it and share its responsibilities, instead of private persons, who -in no way represent their Government, and may condemn it. Seize the -ambassador or minister. You will then audaciously violate the Law of -Nations. The absurdity of your act will be lost in its madness. In the -seizure which is now proposed there will be absurdity to make the world -shake with laughter, if for a moment it can cease to see the flagrant -cruelty and meanness of your conduct. - - A debate ensued, which ran into the next day, in the course of - which Mr. Conness, of California, insisted that the striking - out of the reprisals clause would impair the efficiency of - the bill, and make it nothing but “air.” At the close of the - debate, immediately before the vote on the amendment, Mr. - Sumner summed up his objection as follows:-- - -My objection to the text of the bill which it is proposed to strike out -is, that it is a proposal of unutterable barbarism, which, if adopted, -would disgrace this country. - - The question, being taken by yeas and nays, resulted,--Yeas 30, - Nays 7; as follows:-- - - YEAS,--Messrs. Anthony, Buckalew, Cattell, Chandler, Cole, - Conkling, Corbett, Cragin, Davis, Fessenden, Harlan, Harris, - Henderson, Howe, Kellogg, McDonald, Morgan, Morrill of Vermont, - Osborn, Patterson of New Hampshire, Patterson of Tennessee, - Pomeroy, Rice, Sumner, Trumbull, Van Winkle, Vickers, Willey, - Williams, and Wilson,--30. - - NAYS,--Messrs. Conness, Nye, Sprague, Stewart, Thayer, Tipton, - and Whyte,--7. - - For the section thus amended, Mr. Williams, of Oregon, moved a - substitute; whereupon the debate was resumed, and Mr. Sumner - spoke again. - -The amendment of the Senator, and the remarks that he has made, -it seems to me, go on a mistaken hypothesis. They accept the idea -that there has been some failure on the part of our Government with -reference to citizens abroad. - - MR. WILSON [of Massachusetts]. Is not that true? - -MR. SUMNER. I think it is not true; and if time would allow now, I -could go into the evidence and show that it is not true. I have the -documents here. But we are entering upon this question to-night with -an understanding, almost a compact, that there shall be no debate. I -do not wish to break that compact. But here are documents lying on my -table containing all the facts of record with regard to every American -citizen who has been taken into custody abroad. Examine that record, -and you will see how strenuous and steadfast our Government has been. - -Permit me to say that the argument of the Senator from Oregon [MR. -WILLIAMS] proceeds on a misunderstanding of the facts. There is no -occasion now for any such legislative prompting to the Government of -the United States. - - MR. WILLIAMS. I should like to ask the Senator a question. - -MR. SUMNER. Certainly. - - MR. WILLIAMS. Why is it, if everything has been so smooth and - so placid upon this subject, that both of the political parties - of this country have seen proper to put in their platforms - resolutions in reference to the rights of American citizens - abroad? - -MR. SUMNER. I have not said that things were placid or smooth; but I -have said that our Government has been strenuous and steadfast in the -maintenance of the rights of American citizens, whether native-born -or naturalized; and the record will show the truth of what I say. -Where has there been a failure? Has it been in Germany? Read the -correspondence, running now over several years, between the United -States and the different powers of Germany, and see the fidelity with -which the rights of our naturalized citizens have been maintained there. - -I wish to be as brief as possible. If the Senator will take the trouble -to read the documents on the table, he will see that among all the -numerous applications made by the United States to the Government of -Prussia, the leading power of Germany, there is hardly an instance -where this power did not meet us kindly and generously. I speak -according to the record. I have been over every one of these cases; and -I must say, as I read them I felt a new gratification in the power of -my country, which made itself felt for the protection of its citizens -in those distant places, and also a new sense of the comity of nations. -A letter went forth from one of our ministers, and though at that time -this difficult question of expatriation was still unsettled, yet, out -of regard to our country, or out of regard, it might be, sometimes, to -the personal character of our minister, the claim was abandoned. You -can hardly find an instance---- - - MR. CONNESS rose. - -MR. SUMNER. Will the Senator let me finish my sentence? - - MR. CONNESS. Certainly. - -MR. SUMNER. You can hardly find an instance in that voluminous -correspondence where the claim has been persisted in on the part of -the Prussian Government. The abstract question was left unsettled; but -the individual was left free, without claim of allegiance or military -service. All this was anterior to the treaty, by which this whole -question is happily settled forever. - -But it is not my purpose to discuss the conduct of foreign Governments. -My simple aim is to show the conduct of our own. That was the point -with which I began. I said that it needed no quickening such as the -Senator from Oregon proposes to apply. There is no evidence that our -Government has not been persistent and earnest for the protection of -its citizens abroad, whether native-born or naturalized, and I alluded -to Prussia only by way of illustration. Pass that by. We have then the -greater and more complex case of England. But I would rather not enter -upon this. Here are the documents on my table, the passages all marked, -which would illustrate the conduct of the British Government and the -British tribunals toward every one of these persons whose names have -been brought in question. I do not wish to go into this question. I -should be misunderstood; and it is not necessary. I am speaking now of -the conduct of our own Government, rather than of the conduct of any -other Government. Mark, Sir, my reply to the Senator from Oregon was, -that our Government did not need any additional power or any additional -impulse to activity in this behalf. Already it has the power to do -everything permitted by the Law of Nations, and it ought not to do -anything else. - - Mr. Conness followed in support of the bill, and to a - correction from Mr. Sumner retorted:-- - - “The honorable Senator would be very quick to demand - the interference of all the powers of this Government - in behalf of an arrested American citizen, if he were - black. But, Sir, those arrested happen to be of another - color,--not a color which appeals to his sympathies, but - a color that allows him to belittle their arrest and - incarceration,--that enables him to say here in the Senate - that our Government have done everything that they could - do, all that was necessary. It is true in his judgment, - I have no doubt; for, if you only write letters, if you - only publish and utter productions of the brain, if you - only present views, the honorable Senator is satisfied. - Those are his means, except when the progress through the - thoroughfares of the city or the country of an American - citizen of African descent is involved. Then views are at - once thrown to the dogs, and he demands the interference of - the Government, the police authority; if it be a railroad - company, repeal their acts of incorporation! No matter how - much capital stands in the way,--it may be $10,000,000 that - is affected,--repeal their acts at once! How dare they - impiously set up their tyranny over one human being who is - stamped with American citizenship?… The law as proposed to - be passed under the direction of the honorable Chairman of - the Committee on Foreign Relations amounts to nothing.… - I hope, without detaining the Senate any longer, that we - shall not add to our too great delay upon these questions - the offence and insult that the passage of this Act would - be as proposed by the Committee.[259] - - To this attack Mr. Sumner replied as follows:-- - -I hesitate very much to say another word; and yet I think the Senate -will pardon me, if I make a brief reply to the charge, so absolutely -unjust, of the Senator from California. He throws upon me the reproach -of indifference to foreigners. Sir, I deny the imputation, and -challenge comparison on this head with any Senator on this floor. Here -I know that I am without blame. Sir, you do not forget that more than -ten years ago there was a storm that passed over this country which -had a name more familiar than polite: I mean Know-nothing-ism. It was -everywhere, and enveloped my own State. At that time I had the honor -of holding the position which I now hold. Did I yield to this storm, -when it was carrying all before it? Sir, at that time I went down to -Faneuil Hall, and in the presence of one of the largest audiences -ever there assembled, and knowing well the prevailing sentiment, I -made a speech vindicating the rights of emigrants to our country and -promising them welcome. I have that speech here now, and I will read a -few sentences from it. This was on the 2d of November, 1855,--nearly -thirteen years ago. Pardon me for reading this record of other days; -but I am justified by the attacks to which I have been exposed. If -any foreign-born citizen is disposed to hearken to the Senator from -California impeaching me, I ask him to bear in mind how I stood for his -rights at another time, when there were fewer ready to stand for them -than now. I read from this forgotten speech, as reported at that time. - - Mr. Sumner read the first two paragraphs on the thirteenth page - of the pamphlet edition.[260] - -Such was my argument for the rights of the foreign-born among us. To -all of them I offered such welcome as I could:-- - - “There are our broad lands, stretching towards the setting - sun; let them come and take them. Ourselves children of the - Pilgrims of a former generation, let us not turn from the - Pilgrims of the present. Let the home founded by our emigrant - fathers continue open in its many mansions to the emigrants of - to-day.”[261] - -Sir, those were the words which I uttered in Faneuil Hall at a time -when the opposition to foreigners was scouring over the whole country. -Others yielded to that tempest, but I did not yield. All my votes -in this Chamber, from the first day that I entered it down to this -moment, have been in the same direction, and for that welcome which -I thus early announced. Never have I missed an occasion to vote for -their protection; never shall I miss any such occasion. I was the -first in the Senate to announce the essential incompatibility between -the claim of perpetual allegiance and the license of unlimited -emigration which we had witnessed, saying that every Irishman or German -leaving with the consent of his Government was a living witness to -the hollowness of the original pretension. And now I am most anxious -to see expatriation a law as well as a fact. If I do not adopt the -expedients proposed, it is because I regard them as less calculated to -produce the much-desired result than other means equally at hand, to -the end that the rights of our naturalized citizens may find adequate -safeguard everywhere. The present bill can do little good, and may -do harm. It will not protect a single citizen; but it may be a drag -on those pending negotiations by which the rights of all will be -secured. Too studious of the Law of Nations, perhaps, to be willing to -treat it with distrust or neglect, I look to that prevailing agency -rather than to the more limited instrumentality of Municipal Law. It -is the province of Municipal Law to determine rights at home,--how a -foreign-born person may be naturalized in our country,--how he may be -admitted to all the transcendent privileges of American citizenship; -but it belongs to another system of law to determine what shall be his -privileges, should he return to the country which gave him birth. We -may, by our declarations, by our diplomacy, by our power, do much; but -it is by our treaties that we shall fix all these rights in adamant. -The Senator seems to have no higher idea than to write them in the -fleeting passions of party. My vote will never be wanting to elevate -them above all such fitful condition, and to place them under the -perpetual sanction of International Law,--the only law which can bind -two different powers. Sir, the Senator from California shall not go -before me; he shall not be more swift than I; he shall not take one -single step in advance of me. Be the person Irish or German or African -or Chinese, he shall have from me the same equal protection. Can the -Senator say as much? - - - - -THE CHINESE EMBASSY, AND OUR RELATIONS WITH CHINA. - -SPEECH AT THE BANQUET BY THE CITY OF BOSTON TO THE CHINESE EMBASSY, -AUGUST 21, 1868. - - - The year 1868 was memorable for the Chinese Embassy, with - Hon. Anson Burlingame at its head, which, arriving first at - Washington by the way of San Francisco, negotiated a treaty - with the United States, and then visited Europe. The abundant - hospitality with which it was received throughout the United - States was marked at Boston by a distinguished reception and - entertainment on the part of the municipal authorities. August - 20th, the Embassy was received by Hon. Nathaniel B. Shurtleff, - Mayor, and escorted in public procession through the principal - streets, and with the customary diplomatic salutes, to the - Parker House, where they were lodged as the guests of the city. - The next day at noon they were publicly received at Faneuil - Hall, which was decorated for the occasion. In the evening - they were entertained at a banquet at the St. James Hotel, - where were present about two hundred and twenty-five gentlemen, - including the City Government. - - The company is thus described in the official report:-- - - “Hon. Nathaniel B. Shurtleff, Mayor, presided. On his right - were seated Hon. Anson Burlingame, Chief of the Embassy; - His Excellency Alexander H. Bullock, Governor of the - Commonwealth; Teh Lao-yeh, English Interpreter attached to - the Embassy; Hon. Charles Sumner, Chairman of the Committee - on Foreign Relations of the United States Senate; Hon. - Caleb Cushing; Major-General Irwin McDowell, U. S. A.; - Commodore John Rodgers, U. S. N.; Charles G. Nazro, Esq., - President of the Board of Trade. On the left of the Mayor - were seated Chih Ta-jin, Associate Minister; Mr. McLeavy - Brown, Secretary to the Embassy; Sun Ta-jin, Associate - Minister; M. Émile Dechamps, Secretary to the Embassy; Fung - Lao-yeh, English Interpreter; Ralph Waldo Emerson, LL.D.; - Rev. George Putnam, D. D.; Mr. Edwin P. Whipple. - - “Among the other distinguished guests present were: Dr. - Oliver Wendell Holmes; Hon. Nathaniel P. Banks, Hon. - George S. Boutwell, and Hon. Ginery Twichell, Members - of Congress; Rev. Thomas Hill, D. D., President of - Harvard College; Hon. George S. Hillard, United States - District Attorney; Hon. George O. Brastow, President of - the Senate; Hon. Harvey Jewell, Speaker of the House - of Representatives; Brevet Major-General H. W. Benham, - and Brevet Major-General J. G. Foster, U. S. Engineer - Corps; Major-General James H. Carleton, U. S. A.; Brevet - Brigadier-General Henry H. Prince, Paymaster U. S. A.; - Major-General James A. Cunningham, Adjutant-General; - Hon. Henry J. Gardner, Ex-Governor of the Commonwealth; - Hon. Josiah Quincy; Hon. Frederic W. Lincoln, Jr.; Dr. - Peter Parker, formerly Commissioner to China; Hon. Isaac - Livermore; Sr. Frederico Granados, Spanish Consul; Mr. G. - M. Finotti, Italian Consul; Mr. Joseph Iasigi, Turkish - Consul; Hon. Marshall P. Wilder, President of the Board - of Agriculture; Rev. N. G. Clark, D. D., Secretary of - the Board of Foreign Missions; and many of the leading - merchants and professional men of Boston.” - - At the banquet speeches were made by the Mayor, Mr. Burlingame, - Governor Bullock, Mr. Sumner, Mr. Cushing, Mr. Emerson, General - Banks, Mr. Nazro, and Mr. Whipple. - - The Mayor announced as the fifth regular toast, “The - Supplementary Treaty with China,” and called upon Mr. Sumner to - respond. Mr. Burlingame had already said in his speech, while - declining any elaborate exposition of the Treaty: “No, Sir,--I - leave the exposition of that treaty to the distinguished - Senator on my right, who was its champion in the Senate, and - who procured for it a unanimous vote.” - - Mr. Sumner said:-- - -MR. MAYOR,--I cannot speak on this interesting occasion without first -declaring the happiness I enjoy at meeting my friend of many years in -the exalted position he now holds. Besides this personal relation, he -was also an honored associate in representing the good people of this -community, and in advancing a great cause, which he championed with -memorable eloquence and fidelity. Such are no common ties. - -The splendid welcome now offered by the municipal authorities of Boston -is only a natural expression of prevailing sentiments. Here his labors -and triumphs began. In your early applause and approving voices he -first tasted of that honor which is now his in such ample measure. He -is one of us, who, going forth into a strange country, has come back -with its highest trusts and dignities. Once the representative of a -single Congressional district, he now represents the most populous -nation of the globe. Once the representative of little more than a -third part of Boston, he is now the representative of more than a third -part of the human race. The population of the globe is estimated at -twelve hundred millions; that of China at more than four hundred and -sometimes even at five hundred millions. - -If in this position there be much to excite wonder, there is still -more for gratitude in the unparalleled opportunity it affords. What -we all ask is opportunity. Here is opportunity on a surpassing -scale,--employed, I am sure, to advance the best interests of the -human family; and if these are advanced, no nation can suffer. Each -is contained in all. With justice and generosity as the reciprocal -rule,--and nothing else can be the aim of this great Embassy,--there -can be no limits to the immeasurable consequences. Nor can I hesitate -to say that concessions and privileges are of less consequence than -that spirit of friendship and good neighborhood, embracing alike the -distant and the near, which, once established, renders all else easy. - -The necessary result of the present experiment in diplomacy will be to -make the countries it visits better known to the Chinese, and also to -make the Chinese better known to them. Each will know the other better, -and better comprehend that condition of mutual dependence which is -the law of humanity. In relations among nations, as in common life, -this is of infinite value. Thus far, I fear the Chinese are poorly -informed with regard to us. I am sure we are poorly informed with -regard to them. We know them through the porcelain on our tables, with -its lawless perspective, and the tea-chest, with its unintelligible -hieroglyphics. There are two pictures of them in the literature of -our language, which cannot fail to leave an impression. The first is -in “Paradise Lost,” where Milton, always learned, even in his poetry, -represents Satan descending in his flight - - “on the barren plains - Of Sericana, where _Chineses_ drive - With sails and wind their cany wagons light.”[262] - -The other is in that admirable “Discourse on the Study of the Law of -Nature and Nations,” where Sir James Mackintosh, in words of singular -felicity, points to “the tame, but ancient and immovable civilization -of China.”[263] It is for us at last to enlarge these pictures, and to -fill the canvas with life. - -I do not know if it has occurred to our honored guest that he is not -the first stranger who, after sojourning in this distant, unknown -land, has come back loaded with its honors, and with messages to the -Christian powers. He is not without a predecessor in his mission. -There is another career as marvellous as his own. I refer to the -Venetian Marco Polo, whose reports, once discredited as the fables -of a traveller, are now recognized among the sources of history, and -especially of geographical knowledge. Nobody can read them without -feeling their verity. It was in the latter part of the far-away -thirteenth century that this enterprising Venetian, with his father -and uncle, all merchants, journeyed from Venice, by the way of -Constantinople, Trebizond on the Black Sea, and Central Asia, until -they reached first the land of Prester John, and then that golden -country known as Cathay, where the lofty ruler, Kublaï Khan, treated -them with gracious consideration, and employed young Polo as his -ambassador. This was none other than China, and the lofty ruler, -called the Grand Khan, was none other than the first of its Mongolian -dynasty, having his imperial residence in the immense city of Kambalu, -or Peking. After many years of illustrious service, the Venetian, -with his companions, was dismissed with splendor and riches, charged -with letters for European sovereigns, as our Bostonian is charged -with similar letters now. There were letters for the Pope, the King -of France, the King of Spain, and other Christian princes. It does -not appear that England was expressly designated. Her name, so great -now, was not at that time on the visiting list of the distant Emperor. -Such are the contrasts in national life. Marco Polo reached Venice, -on his return, in 1295, at the very time when Dante, in Florence, -was meditating his divine poem, and Roger Bacon, in England, was -astonishing the age with his knowledge. These were his two greatest -contemporaries, constituting with himself the triumvirate of the -century. - -The return of the Venetian to his native city was attended by incidents -which have not occurred among us. Bronzed by long residence under the -sun of the East, wearing the dress of a Tartar, and speaking his native -language with difficulty, it was some time before his friends could be -persuaded of his identity. Happily there is no question on the identity -of our returned fellow-citizen; and surely it cannot be said that -he speaks his native language with difficulty. A dinner was spread -at Venice as here at Boston, and now, after the lapse of nearly six -hundred years, the Venetian dinner still lives in glowing description. -Marco Polo, with his companions, appeared first in long robes of -crimson satin reaching to the floor, which, when the guests had washed -their hands, were changed for other robes of crimson damask, and then -again, after the first course, for other robes of crimson velvet, -and at the conclusion of the banquet, for the ordinary dress worn by -the rest of the company. Meanwhile the other costly garments were -distributed among the attendants at the table. In all your magnificence -to-night, Mr. Mayor, I have seen no such largess. Then were brought -forward the coarse threadbare garments in which they had travelled, -when, on ripping the lining and patches with a knife, costly jewels, -in sparkling showers, leaped forth before the eyes of the company, who -for a time were motionless with wonder. Then at last, says the Italian -chronicler, every doubt was banished, and all were satisfied that these -were the valiant and honorable gentlemen of the house of Polo. I do not -relate this history to suggest any such operation on the dress of our -returned fellow-citizen. No such evidence is needed to assure us of his -identity. - -The success of Marco Polo is amply attested. From his habit of speaking -of “millions” of people and “millions” of money, he was known as -_Messer Millioni_, or the millionaire, being the earliest instance in -history of a designation so common in our prosperous age. But better -than “millions” was the knowledge he imparted, and the impulse he -gave to that science which teaches the configuration of the globe and -the place of nations on its face. His travels, dictated by him, were -reproduced in various languages, and, after the invention of printing, -the book was multiplied in more than fifty editions. Unquestionably -it prepared the way for the two greatest geographical discoveries of -modern times,--the Cape of Good Hope, by Vasco da Gama, and the New -World, by Christopher Columbus. One of his admirers, a French _savant_, -does not hesitate to say, that, “when, in the long series of ages, -we seek the three men who, by the magnitude and influence of their -discoveries, have most contributed to the progress of geography or -the knowledge of the globe, the modest name of the Venetian traveller -finds a place in the same line with those of Alexander the Great and -Christopher Columbus.”[264] It is well known that the imagination of -the Genoese navigator was fired by the revelations of the Venetian, and -that, in his mind, the countries embraced by his transcendent discovery -were none other than the famed Cathay, with its various dependencies. -In his report to the Spanish sovereigns, Cuba was nothing else than -Zipangu, or Japan, as described by the Venetian, and he thought himself -near a Grand Khan,--meaning, as he says, a king of kings. Columbus -was mistaken. He had not reached Cathay or the Grand Khan; but he had -discovered a new world, destined in the history of civilization to be -more than Cathay, and, in the lapse of time, to welcome the Ambassador -of the Grand Khan. - -The Venetian, returning home, journeyed out of the East, westward; our -Marco Polo, returning home, journeyed out of the West, eastward. And -yet they both came from the same region: their common starting-point -was Peking. This change is typical of the surpassing revolution under -whose influence the Orient will become the Occident. Journeying -westward, the first welcome is from the nations of Europe; journeying -eastward, the first welcome is from our Republic. It remains that this -welcome should be extended, until, opening a pathway for the mightiest -commerce of the world, it embraces within the sphere of American -activity that ancient ancestral empire, where population, industry, and -education, on an unprecedented scale, create resources and necessities -on an unprecedented scale also. See to it, merchants of the United -States, and you, merchants of Boston, that this opportunity is not lost. - -And this brings me, Mr. Mayor, to the Treaty, which you invited me -to discuss. But I will not now enter upon this topic. If you did not -call me to order for speaking too long, I fear I should be called -to order in another place for undertaking to speak of a treaty not -yet proclaimed by the President. One remark I will make, and take -the consequences. The Treaty does not propose much; but it is an -excellent beginning, and, I trust, through the good offices of our -fellow-citizen, the honored plenipotentiary, will unlock those great -Chinese gates which have been bolted and barred for long centuries. -The Embassy is more than the Treaty, because it prepares the way for -further intercourse, and helps that new order of things which is among -the promises of the Future. - - Mr. Burlingame’s sudden death, at St. Petersburg, February 23, - 1870, arrested the remarkable career he had begun, leaving - uncertain what he might have accomplished for China with - European powers, and also uncertain the possible influence he - might have exercised with the great nation he represented, in - opening its avenues of approach, and bringing it within the - sphere of Western civilization. - - - - -THE REBEL PARTY. - -SPEECH AT THE FLAG-RAISING OF THE GRANT AND COLFAX CLUB, IN WARD SIX, -BOSTON, ON THE EVENING OF SEPTEMBER 14, 1868. - - -I find a special motive for being here to-night in the circumstance -that this is the ward where I was born and have always voted, and where -I expect to vote at the coming election. Here I voted twice for Abraham -Lincoln, and here I expect to vote for Grant and Colfax. According -to familiar phrase, this is my ward. This, also, is my Congressional -District. Though representing the Commonwealth in the Senate, I am -not without a representative in the other House. Your Congressional -representative is my representative. Therefore I confess a peculiar -interest in this ward and this district. - -In hanging out the national flag at the beginning of the campaign, -you follow the usage of other times; but to my mind it is peculiarly -appropriate at the present election. The national flag is the emblem -of loyalty, and the very question on which you are to vote in the -present election is whether loyalty or rebellion shall prevail. It is -whether the national flag shall wave gloriously over a united people -in the peaceful enjoyment of Equal Rights for All, or whether it shall -be dishonored by traitors. This is the question. Under all forms of -statement or all resolutions, it comes back to this. As during the war -all of you voted for the national flag, while some carried it forward -in the face of peril, so now all of you must vote for it, and be ready -to carry it forward again, if need be, in the face of peril. - -As loyalty is the distinctive characteristic of our party, so is -disloyalty the distinctive characteristic of the opposition. I would -not use too strong language, or go beyond the strictest warrant of -facts; but I am obliged to say that we cannot recognize the opposition -at this time as anything else but the Rebel Party in disguise, or the -Rebel Party under the _alias_ of Democracy. The Rebels have taken the -name of Democrats, and with this historic name hope to deceive people -into their support. But, whatever name they adopt, they are the same -Rebels who, after defeat on many bloody fields, at last surrendered to -General Grant, and, by the blessing of God and the exertions of the -good people, will surrender to him again. - -I am unwilling to call such a party democratic. It is not so in any -sense. It is not so according to the natural meaning of the term, for -a Democrat is a friend of popular rights; nor is it so according to -the examples of our history, for all these disown the policy of the -opposition. Thomas Jefferson was an original Democrat; but he drew with -his own hand the Declaration of Independence, which announces that -all men are equal in rights, and that just government stands only on -the consent of the governed. Andrew Jackson was another Democrat; but -he put down South Carolina treason with a strong hand, and gave the -famous toast, “The Union, it must be preserved.” These were Democrats, -representative Democrats, boldly announcing the Equal Rights of All -and the Unity of the Nation. Thus looking at the word, in its natural -bearing or in the great examples of our history, we find it entirely -inapplicable to a party which denies equal rights and palters with -Rebellion itself. Such a party is the Rebel Party, and nothing else; -and this is the name by which it should be known. - -Look at the history of their leaders,--Rebels all, Rebels all. I -mention those only who take an active part. A party, like a man, is -known by the company it keeps. What a company! Here is Forrest, with -the blood of Fort Pillow still dripping from his hands; Semmes, fresh -from the Alabama, glorying in his piracies on our commerce; Wade -Hampton, the South Carolina slave-master and cavalry officer of the -Rebellion; Beauregard, the Rebel general, who telegraphed for the -execution of Abolition prisoners; Stephens, Toombs, and Cobb, a Georgia -triumvirate of Rebels; and at the head of this troop is none other than -Horatio Seymour of New York, who, without actually enlisting in the -Rebellion, dallied with it, and addressed its fiendish representatives -in New York as “friends.” A party with such leaders and such a chief is -the Rebel Party. - -Such a party, so filled and permeated with treason, cannot utter any -shibboleth of loyalty. Every loyal word must stick in its throat, as -“Amen” stuck in the throat of Macbeth, after the murder of his royal -guest. Therefore, I say again, let it be called the Rebel Party. This -is a truthful designation, stamping upon the party its real character. -By this name I now summon it to judgment. If I could make my voice -heard over the Republic, it should carry everywhere this just summons. -It should go forth from this schoolhouse, traversing the land, echoing -from valley to valley, from village to village, from town to town, and -warning all who love their country against a party which is nothing but -a continuation of the Rebellion. How can such a party pretend to hang -out the national flag? I do not wonder that its Presidential candidate -has cried out in his distress, “Press the financial question!” Yes, -press anything to make the country forget the disloyalty of the -party,--anything to divert attention from the national flag, which they -would dishonor. But on the financial question, as everywhere else, they -are disloyal. Repudiation is disloyalty, early taught by Jefferson -Davis in his own State, and now adopted by the Rebel Party, North and -South. - -Here I come back to the point with which I began. Hang out the national -flag! It is the flag of our country, our whole country, beaming -with all its inseparable stars, and proclaiming in all its folds -the strength, the glory, and the beauty of Union. Let that flag be -the light to your footsteps. _By this conquer!_ And surely you will -conquer. The people are not ready to join with Rebels or submit to -Rebel yoke. They will stand by the flag at the ballot-box, as they -stood by it on the bloody field. History has recorded the triumphant -election of Abraham Lincoln, as the representative of Loyalty against -Rebellion. Thank God, it will soon make the same joyful record with -regard to Grant and Colfax, the present representatives of Loyalty -against Rebellion. - -Every man must do his duty, each in his way, according to his -ability,--some by voice, and others by efforts of a different kind, -but all must work and vote. The cause is that of our country and its -transcendent future, pictured in the flag. And permit me to remind you -that our Congressional District has obligations it cannot forget. It -must be true to itself and to its own example. At the last Presidential -election there was a report, which travelled all the way to Washington, -that ours was a doubtful district. On the evening of the election, -as soon as the result was known, I had the happiness of telegraphing -to the President that in this district the majority was some five -thousand for himself and Mr. Hooper. It so happened that it was the -first despatch received from any quarter announcing the triumph of that -great day. On reading it, the President remarked, with his humorous -point: “Five thousand majority! If this is a specimen of the doubtful -districts, what may we expect of the whole country?” This victory must -be repeated. There must be another five thousand majority; and let -General Grant, like Abraham Lincoln, measure from our majority the -majorities throughout the country, giving assurance that the Rebel -Party is defeated and utterly routed in its last desperate struggle. -This is Beacon Hill, the highest point of Boston, where in early days -were lighted the beacon fires which flashed over the country. The fires -which we light on Beacon Hill will be of congratulation and joy. - - - - -ENFRANCHISEMENT IN MISSOURI: WHY WAIT? - -LETTER TO A CITIZEN OF ST. LOUIS, OCTOBER 3, 1868. - - - The following letter appeared in the _St. Louis Democrat_. - - BOSTON, October 3, 1868. - - DEAR SIR,--I am pained to learn that there can be any question - among good Republicans with regard to the enfranchisement of - the colored race, especially as declared in the Constitutional - Amendment now pending in Missouri. When shall this great question - be settled, if not now? Why wait? Why prolong the agony? There is - only one way in which it can be settled. Why not at once? All who - vote against it only vote to continue the agitation, which will - never end except with the establishment of the Equal Rights of - All. - - Only in this way can the Declaration of Independence be - vindicated in its self-evident truths. As long as men are - excluded from the suffrage on account of color, it is gross - impudence for any nation to say that they are equal in rights. Of - course, men are not equal in strength, size, or other endowments, - physical or mental; but they are equal in rights, which is what - our fathers declared. They are equal before God, equal before the - divine law; they should be made equal before human law. Equality - before the Law is the true rule. - - How can any possible evil result from a rule which is so natural - and just? There can be no conflict of races where there is no - denial of rights. It is only when rights are denied that conflict - begins. See to it that all are treated with justice, and there - will be that peace which is the aspiration of good men. For the - sake of peace I pray that this great opportunity be not lost. - - I hear a strange cry about the supremacy of one race over - another. Of course I am against this with my whole heart and - soul. I was against it when it showed itself in the terrible - pretensions of the slave-master; and now I am against it, as it - shows itself in the most shameful oligarchy of which history - has made mention,--an oligarchy of the skin. Reason, humanity, - religion, and common sense, all reject the wretched thing. Even - if the whites are afraid that the blacks will become an oligarchy - and rule their former masters, this is no reason for a continued - denial of rights. But this inquietude on account of what is - nicknamed “negro supremacy” is as amusing as it is incredible. - It is one of the curiosities of history. Occupied as I am at - this moment, I should be tempted to put aside all other things - and journey to the Mississippi in order to look at a company of - whites who will openly avow their fear of “negro supremacy.” I - should like to see their pallid faces, and hear the confession - from their own trembling lips. Such a company of whites would be - a sight to behold. Falstaff’s sorry troops were nothing to them. - - Such foolish fears and foolish arguments cannot prevail against - the great cause of Equal Rights. Spite of all obstacles and all - prejudices, this truth must triumph. Was it not declared by our - fathers? What they declared is a promise perpetually binding on - us, their children. - - Accept my best wishes, and believe me, dear Sir, faithfully yours, - - CHARLES SUMNER. - - - - -ISSUES AT THE PRESIDENTIAL ELECTION. - -SPEECH AT THE CITY HALL, CAMBRIDGE, OCTOBER 29, 1868. - - - At the Republican State Convention, held at Worcester, - September 9, 1868, of which Hon. George S. Boutwell was - President, the following was the last resolution of the - platform, which was unanimously adopted:-- - - “That the public life of the Honorable Charles Sumner, - during three terms of service in the Senate of the United - States, has fully justified the confidence which has been - successively reposed in him; that his eloquent, fearless, - and persistent devotion to the sacred cause of Human - Rights, as well in its early struggles as in its later - triumphs,--his beneficent efforts, after the abolition of - Slavery, in extirpating all the incidents thereof,--his - constant solicitude for the material interests of the - country,--his diligence and success, as Chairman of the - Senate Committee on Foreign Affairs, in vindicating the - policy of maintaining the just rights of the Government - against foreign powers, and at the same time preserving - peace with the nations,--all present a public record - of rare usefulness and honor; and that his fidelity, - experience, and honorable identification with our national - history call for his reëlection to the high office in which - he has rendered such illustrious service to his country and - to mankind.” - - The report of the _Boston Daily Advertiser_ stated that - “the reading of the resolutions was accompanied by repeated - applause,--the last one, relating to Mr. Sumner, calling forth - a perfect tempest of approval.” - - * * * * * - - January 19, 1869, Mr. Sumner was reëlected Senator for the - term of six years, beginning with March 4th following, by the - concurrent vote of the two Houses of the Legislature. The vote - was as follows:-- - - _In the Senate._ - - Charles Sumner, 37 - Josiah G. Abbott, 2 - - _In the House._ - - Charles Sumner, 216 - Josiah G. Abbott, 15 - Nathaniel P. Banks, 1 - - -SPEECH. - -FELLOW-CITIZENS,--If I have taken little part in the present canvass, -you will do me the justice to believe that it is from no failure of -interest in the cause for which I have so often pleaded; nor is it from -any lukewarmness to the candidates. The cause is nothing less than our -country redeemed from peril and dedicated to Human Rights, so as to -become an example to mankind. The candidates are illustrious citizens, -always loyal to this great cause, both of surpassing merit, and one -of unequalled renown in the suppression of the Rebellion. In this -simple statement I open the whole case. The cause would commend any -candidates, and I might almost add that the candidates would commend -any cause. - -It is only in deference to my good physician that I have thus far -forborne those customary efforts to which I was so strongly prompted; -and now I speak in fear of offending against his rules. But I am -unwilling that this contest shall close without my testimony, such as -it is, and without mingling my voice with that general acclaim which is -filling the land. - - * * * * * - -Indulge me still further while for a moment I allude to myself. The -Republican State Convention has by formal resolution presented me -for reëlection to the Senate, so that this question enters into -the larger canvass. Meeting my fellow-citizens now, it would not -be out of order, I believe, nor should I depart from any of the -proprieties of my position, if I proceeded to give you an account of -my stewardship during the term of service about to expire. But when -I consider that this extends over six busy years, beginning while -the Rebellion still raged and continuing through all the anxious -period of Reconstruction,--that it embraces nothing less than the -Abolition of Slavery, and all the steps by which this transcendent -measure was promoted and consummated, also the various efforts for the -establishment of Equal Rights, especially in the court-room and at the -ballot-box, thus helping the fulfilment of the promises originally -made in the Declaration of Independence,--that it embraces, besides, -all the infinite questions of taxation, finance, railroads, business -and foreign relations, including many important treaties, among which -was that for the acquisition of the Russian possessions in North -America,--and considering, further, how these transactions belong to -the history of our country, where they are already read, I content -myself with remarking that in all of them I have borne a part, I trust -not unworthy of the honored Commonwealth whose representative I am; and -here I invite your scrutiny and candid judgment. - -Possibly some of the frequent criticism to which I have been exposed is -already dulled by time or answered by events. A venerable statesman, -eminent in the profession, once rebuked me for the term _Equality -before the Law_, which I had taken from the French, as expressing more -precisely than the Declaration of Independence that equality in rights -which is all that constitutions or laws can secure. My learned critic -had never met this term in the Common Law, or in the English language, -and therefore he did not like the innovation. In the same spirit other -efforts have been encountered, often with virulence, especially those -two fundamentals of Reconstruction,--first, the power of Congress over -the Rebel States, whether as territories, or provinces, or as States -having no republican government, or, according to the language of -President Lincoln, “out of their proper practical relation with the -Union,”[265] and, secondly, the necessity of lifting the freedman into -Equal Rights, civil and political, so as to make him a part of the body -politic. Who can forget the clamor at these two propositions? All this -has happily ceased, except as an echo from Rebels and their allies, -whose leading part is a protest against the power of Congress and the -equal rights of the freedman. - - * * * * * - -Though formal criticism has tardily died out, there is sometimes a -warning against men of “one idea,” with a finger-point at myself. Here -I meet my accuser face to face. What duty have I failed to perform? Let -it be specified. What interest have I neglected? Has it been finance? -The “Globe” will show my earnest and elaborate effort at the beginning -of the war, warning against an inconvertible currency, and a similar -effort made recently to secure the return to specie payments. Has it -been taxation, or commerce, or railroads, or business in any of its -forms, or foreign relations, with which, as Chairman of the Senate -Committee on this subject, I have been particularly connected? On all -of these I refer to the record. What, then, have I neglected? It is -true, that, while bearing these things in mind and neglecting none, -I felt it a supreme duty to warn my country against the perils from -Slavery, and to insist upon irreversible guaranties for the security of -all, especially those freedmen whom we could not consent to sacrifice -without the most shameful ingratitude. As the urgency was great, I -also was urgent. In season and out of season, at all times, in all -places, here at home and in the Senate, I insisted upon the abolition -of Slavery, and the completion of this great work by the removal of its -whole brood of inequalities, so that it should not reappear in another -form. But my earnestness and constancy only imperfectly represented -the cause. There could be no excess,--nothing too strong. The Republic -was menaced; where was the limit to patriotic duty? Human Rights were -in jeopardy; who that had a heart to feel could be indifferent? Nobody -could do too much. This was not possible. No wisdom too great, no voice -too eloquent, no courage too persevering. Of course, I claim no merit -for effort in this behalf; but I appeal to you, my fellow-citizens, -that the time for reproach on this account is past. We must be -“practical,” says the critic. Very well. Here we agree. But, pray, who -has been “practical”? Is it those laggards, who, after clinging to -Slavery, then denied the power of Congress, and next scouted the equal -rights of the freedman? Permit me to say that the “practical” statesman -foresees the future and provides for it. - -Whoever does anything with his whole heart makes it for the time his -“one idea.” Every discoverer, every inventor, every poet, every artist, -every orator, every general, every statesman, is absorbed in his work; -and he succeeds just in proportion as for the time it becomes his -“one idea.” The occasion must not be unworthy or petty; but the more -complete the self-dedication, the more effective is the result. I know -no better instance of “one idea” pursued to a triumphant end than when -our candidate, after planning his campaign, announced that he meant “to -fight it out on this line, if it took all summer.” Here was no occasion -for reproach, except from Rebels, who would have been glad to see him -fail in that singleness of idea which gave him the victory. There are -other places where the same singleness is needed and the idea is not -less lofty. The Senate Chamber has its battles also; and the conflict -embraces the whole country. Personally, I have nothing to regret, -except my own inadequacy. I would have done more, if I could. Call it -“one idea.” That idea is nothing less than country, with all that is -contained in that inspiring word, and with the infinite vista of the -same blessings for all mankind. - - * * * * * - -From these allusions, suggested by my own personal relations, I come -directly to the issues of this canvass. Others have presented them so -fully that there is less need of any minute exposition on my part, even -if the heralds of triumph did not announce the certain result. But you -will bear with me while I state briefly what is to be decided. This may -be seen in general or in detail. - -Speaking generally, you are to decide on the means for the final -suppression of the Rebellion, and the establishment of security for -the future. Shall the Rebellion which you have subdued on the bloody -field be permitted to assert its power again, or shall it be trampled -out, so that its infamous pretensions shall disappear forever? These -general questions involve the whole issue. If you sympathize with the -Rebellion, or decline to take security against its recurrence, then -vote for Seymour and Blair. I need not add, that, if you are in earnest -against the Rebellion, and seek just safeguards for the Republic, then -vote for Grant and Colfax. The case is too plain for argument. - -It may be put more precisely still: _Shall the men who saved the -Republic continue to rule it, or shall it be handed over to Rebels and -their allies?_ Such is the simple issue, stripped of all hypocritical -guise; for here, as in other days, the real question is concealed by -the enemy. The plausible terms of Law and Constitution, with even the -pretence of generosity, now employed to rehabilitate the Rebellion, are -unmasked by the witty touch of “Hudibras,” whose words are as pointed -now as under Charles the Second:-- - - “What’s liberty of conscience, - I’ th’ natural and genuine sense? - ’Tis to restore, with more security, - Rebellion to its ancient purity.”[266] - -On the one side are loyal multitudes, and the generous freedmen -who bared themselves to danger as our allies, with Grant still at -their head; and on the other are Rebels, under the name of the -Democratic Party, all dripping with blood from innumerable fields of -slaughter where loyal men gasped away life,--from Fort Pillow, from -Andersonville, from pirate decks,--hurrying, with Seymour at their -head, to govern the Republic in the name of the Lost Cause. Not so -fast, ye men of blood! Stand back! They who encountered you before will -encounter you again. - -I would not make this statement too strong. I wish to keep within -bounds. But the facts are too patent to admit of doubt. Yes, it is the -old Democracy, which, after giving to the Rebellion its denationalizing -pretension of State Rights, and all its wicked leaders, from Davis to -Forrest and Semmes,--after thwarting every measure for its suppression -as “unconstitutional,” from the Proclamation of Emancipation to -the firing of a gun or the condemnation of Vallandigham,--after -interfering with enlistments also as “unconstitutional,”--after -provoking sympathetic riots,--after holding up “blue lights” for -the guidance of the enemy,--after hanging upon the country like a -paralysis,--and after, finally, under the lead of Seymour, declaring -the war a “failure,”--this same Democracy, still under the lead of -Seymour, champions the Lost Cause. Under the pretence of restoring -Rebels to rights, it seeks to restore them to power; and this is the -very question on which you are to vote. The Tories at the end of -the Revolution were more moderate. They did not insist upon instant -restoration to rights forfeited by treason; nor did they bring forward -a candidate against Washington. This is reserved for the Tories of our -day. - - * * * * * - -All this is general. Descending to details, we find that the issue now -presented reappears in other questions. Of these none is more important -than that of the Reconstruction Acts, which have been openly assailed -as “unconstitutional, revolutionary, and void.”[267] In nothing more -than in this declaration, associated with the letter of its candidate, -do we behold the audacity of the Rebel Party. Even while professing -allegiance and asking your vote, they proclaim war in a new form. -Instead of _Secession_ maintained by arms, it is now _Nullification_ -maintained by arms. In no other way can we interpret the party -platform, and the programme of Mr. Blair, when, with customary -frankness, he calls upon the President “to declare these Acts null -and void, compel the army to undo its usurpations at the South, and -disperse the carpet-bag State governments.”[268] Here is Nullification -with a vengeance,--that very Nullification which, in a much milder -type, made Andrew Jackson threaten to hang its authors high as Haman. -Secession is declared to be settled by the war; but Nullification is -openly recognized. What is the difference between the two? The answer -is plain. Secession is war out of the Union; Nullification is war in -the Union. And this is the open menace of the Rebel Party. - - * * * * * - -The Reconstruction Acts err from what they fail to do rather than from -what they do. They do too little rather than too much. They should have -secured a piece of land to the landless freedman, whose unrewarded toil -has mingled for generations in the soil; and they should have secured -a system of common schools open to all. In these demands, as in every -other measure of Reconstruction, I would do nothing in severity or -triumph, nothing to punish or humble. Nor is it only in justice to the -freedman, who has a bill against his former master for unpaid wages, -and also against the country for an infinite debt, but it is for the -good of all constituting the community, including the former master. -Nothing can be truer than that under such influences society will be -improved, character will be elevated, and the general resources will be -enlarged. Only in this way will the Barbarism of Slavery be banished, -and a true civilization organized in its place. Our simple object is -expressed in the words of Holy Writ: “Let us build these cities, and -make about them walls and towers, gates and bars, while the land is -yet before us.”[269] By contributing to this work, by laboring for its -accomplishment, by sending it our God-speed, we perform a service at -once of the highest charity and the highest patriotism, which hereafter -the children of the South, emancipated from error, will rejoice to -recognize. With Human Rights under a permanent safeguard, there can -be no limit to prosperity. As under this sunshine the land yields -its increase and the gardens bloom with beauty, while commerce and -manufactures enjoy a new life, they will confess that we did well for -them, and will hail with pride the increased glory of the Republic. If, -as in ancient Rome, we demanded the heads of senators and orators,--if, -as in England, we took the life and estate of all traitors,--if, as in -Germany, we fatigued the sword with slaughter, and cried “havoc,”--if, -as in France, we set up guillotines, and worked them until the blood -stood in puddles beneath,--if, as in all these historic countries, we -acted in pitiless vengeance,--if in anything we have done or attempted -there was one deed of vengeance,--then we, too, might deserve a -chastening censure. But all that we have done, next after the safety -of the Republic, is for the good of those who were our enemies, and -who despitefully used us. Never before was clemency so sublime; never -before was a rebel people surrounded by beneficence so comprehensive. -Great as was the Republic in arms, it is greater still in the majesty -of its charity. - -So far as the Reconstruction Acts have been assailed, I am ready to -defend them against all comers. And I repel at the outset every charge -or suggestion of harshness. They are not harsh, unless it is harsh to -give every man his due. If they are harsh, then is beneficence harsh, -then is charity harsh. It is only by outraging every principle of -justice, stifling every sympathy with Human Rights, and discarding -common sense, and, still further, by forgetting all the sacred -obligations of country, that we can submit to see political power in -the hands of Rebels. No judgment is too terrible for us, if we consent -to the sacrifice. For the sake of the freedman, for the sake of his -former master, for the sake of all, and for the sake of the Republic, -this must not be. Therefore were the Reconstruction Acts adopted by -immense majorities in both Houses of Congress as the guaranty of peace. -The aspiration of our candidate was in every line and word, “Let us -have peace.” - - * * * * * - -Two questions are presented by the enemies of these Acts: first, on the -Power of Congress; and, secondly, on the Equal Rights of the Freedman. - - * * * * * - -Too often have I asserted the plenary power of Congress with arguments -that have never been answered, to feel it necessary now to occupy -time on this head. The case may be proved in so many ways that it is -difficult to know which to select. Whether the power is derived from -the necessity of the case, because the Rebel States were without -governments, which is the reason assigned by Chief Justice Marshall -for the jurisdiction of Congress over the Territories,--or from the -universal rights of war, following the subjection of belligerents -on land,--or from the obligation of the United States to guaranty -a republican government to each State,--or from the Constitutional -Amendment abolishing Slavery, with its supplementary clause conferring -upon Congress power to enforce this abolition,--whether the power is -derived from one or all of these bountiful sources, it is clear that it -exists. As well say that the power over the Territories, the war power, -the guaranty power, and the power to enforce the abolition of Slavery, -do not exist; as well say that the Constitution itself does not exist. - -If any confirmation of this irresistible conclusion were needed, it -might be found in the practical admissions of Andrew Johnson, who, -while perversely usurping the power of Reconstruction, did it in the -name of the Nation. In the prosecution of this usurpation, he summoned -conventions of delegates made eligible by his proclamation, and chosen -by electors invested by him with the right of suffrage; and through -these conventions, to which he gave the law by telegraphic wire, -he assumed to institute local governments. Thus has Andrew Johnson -testified to the power of the Nation over Reconstruction, while, with -an absurdity of pretension which history will condemn even more than -any contemporary judgment, he assumed that he was the Nation. His -usurpation has been overthrown, but his testimony to the power of the -Nation remains. When the Nation speaks, it is by Congress,--as the -Roman Republic spoke by its Senate and people, _Senatus Populusque -Romanus_, in whose name went forth those great decrees which ruled the -world. - -In considering the constitutionality of the Reconstruction Acts, -there is a distinction, recognized by repeated judgments of the -Supreme Court, which has not been sufficiently regarded, even by our -friends. The Rebel Party, especially in their platform at New York, -forget it entirely. They tell us that the Reconstruction Acts are -“unconstitutional, revolutionary, and void,” and Wade Hampton boasts -that he prompted this declaration. I have already exhibited the -power of Congress in four different sources; but beyond these is the -principle, _that Congress, in the exercise of political powers, cannot -be questioned_. So says the Supreme Court. Thus it has been decided, -in general terms, “that the action of _the political branches_ of the -Government in a matter that belongs to them is conclusive.”[270] And -in the famous case of _Luther_ v. _Borden_, it is announced, that, -where the National Government interferes with the domestic concerns -of a State, “the Constitution of the United States, as far as it has -provided for an emergency of this kind, _has treated the subject as -political in its nature, and placed the power in the hands of that -department_”; and it is further added, that “its decision is binding -on every other department of Government, and could not be questioned -in a judicial tribunal.”[271] In the face of these peremptory words, -it is difficult to see what headway can be made in contesting the -validity of the Reconstruction Acts, except by arms. If ever a question -was political, it is this. It is political in every aspect, whether -regarded as springing from the necessity of the case, from the rights -of war, from the obligation to guaranty a republican government, or -from the power to enforce the abolition of Slavery. Never before was -any question presented so completely political. Reconstruction is as -political as the war, or as any of the means for its conduct. It is -political from beginning to end. It is nothing, if not political. -Therefore, by unassailable precedents under the Constitution, are these -Acts fixed and secured so that no court can touch them,--nothing but -the war which Mr. Blair has menaced. - - * * * * * - -The Equal Rights conferred upon the freedman are all placed under -this safeguard. Congress has done this great act of justice, and, -thank God, it cannot be undone. It has already taken its place in the -immortal covenants of history, and become a part of the harmonies of -the universe. As well attempt to undo the Declaration of Independence, -or suspend the law of gravitation. This cannot be. The bloody horrors -of San Domingo, where France undertook to cancel Emancipation, testify -with a voice of wail that a race once lifted from Slavery cannot be -again degraded. Human Rights, when at last obtained, cannot be wrested -back without a conflict in which God will rage against the oppressor. - -But I do not content myself with showing the essential stability of -this measure of Reconstruction. I defend it in all respects,--not -only as an act of essential justice, without which our Nation would -be a deformity, but as an irresistible necessity, for the sake of -that security without which peace is impossible. It is enough that -justice commanded it; but the public exigency left no opportunity -for any fine-spun system, with educational or pecuniary conditions, -even if this were consistent with the fundamental principle that “all -just government stands only on the consent of the governed.” As the -strong arms of this despised race had been needed for the safety of -the Republic, so were their votes needed now. The cause was the same. -Without them loyal governments would fail. They could not be organized. -To enfranchise those only who could read and write or pay a certain -tax was not enough. They were too few. All the loyal are needed at the -ballot-box to counterbalance the disloyal. - - * * * * * - -It was at this time, and under this pressure, that conditions, -educational or pecuniary, were seen to be inadmissible; and many, -considering the question in the light of principle, were led to ask, -if, under any circumstances, such conditions are just. Surely an -unlettered Unionist is better than a Rebel, however learned or wise, -and on all practical questions will vote more nearly right. If there -is to be exclusion, let it be of the disloyal, and not of the loyal. -Nobody can place the value of education too high; but is it just -to make it the prerequisite to any right of citizenship? There are -many, whose only school has been the rough world, in whom character -is developed to a rare degree. There are freedmen unable to read or -write who are excellent in all respects. If willing to reject such -persons as allies, can you justly exclude them from participation in -the Government? Can you justly exclude any good citizen from such -participation? - -It is recorded of the English statesman, Charles James Fox, that, after -voting at a contested election, and finding his coachman, who had -driven him to the polls, voting the other way, he protested pleasantly -that the coachman should have told him in advance how he was to -vote, that the two might have paired off and stayed at home. Here is -Fox at the polls neutralized by his coachman. A similar incident is -told of Judge Story, here in Cambridge. Both stories have been used -to discredit suffrage by the people. They have not this effect on -my mind. On the contrary, I find in them a beautiful illustration -of that Equality before the Law which is the promise of republican -institutions. At the ballot-box the humblest citizen is the equal of -the great statesman or the great judge. If this seems unreasonable, it -must not be forgotten that the eminent citizen exercises an influence -which is not confined to his vote. It extends with his fame or -position, so that, though he has only a single vote, there are many, -perhaps multitudes, swayed by his example. This is the sufficient -compensation for talent and education exerted for the public weal, -without denying to anybody his vote. The common man may counterbalance -the vote of the great statesman or great judge, but he cannot -counterbalance this influence. The common man has nothing but his vote. -Who would rob him of this? - - * * * * * - -Thus far I have shown the Reconstruction Acts to be constitutional, -natural, and valid, in contradiction to the Rebel platform, asserting -them to be “unconstitutional, revolutionary, and void.” But these Acts -may be seen in other aspects. I have shown what they accomplish. See -now what they prevent; and here is another series of questions, every -one of which is an issue on which you are to vote. - - * * * * * - -Are you ready for the revival of Slavery? I put this question plainly; -for this is involved in the irreversibility of the Reconstruction -Acts. Let these be overthrown or abandoned, and I know no adequate -safeguard against an outrageous oppression of the freedman, which -will be Slavery under another name. The original type, as received -from Africa and perpetuated here, might not appear; but this is not -the only form of the hateful wrong. Not to speak of peonage, as it -existed in Mexico, there is a denial of rights, with exclusion from -all participation in the Government and subjection to oppressive -restraints, which of itself is a most direful slavery, under which the -wretched bondman smarts as beneath the lash. And such a slavery has -been deliberately planned by the Rebels. It would be organized, if -they again had power. Of this there can be no doubt. The evidence is -explicit and authentic. - -I have here a Congressional document, containing the cruel legislation -of the Rebel States immediately after the close of the Rebellion, -under the inspiration of the Johnson governments.[272] Here are its -diabolical statutes, fashioned in the spirit of Slavery, with all that -heartlessness which gave to Slavery its distinctive character. The -emancipated African, shut out from all participation in the Government, -despoiled of the ballot, was enmeshed in a web of laws which left him -no better than a fly in the toils of a spider. If he moved away from -his place of work, he was caught as a “vagrant”; if he sought work -as a mechanic or by the job, he was constrained by the requirement -of a “license”; if he complained of a white man, he was subjected to -the most cunning impediments; if he bought arms for self-defence, he -was a violator of law;--and thus, wherever he went, or whatever he -attempted, he was a perpetual victim. In Mississippi he could not -“rent or lease any lands or tenements except in incorporated towns or -cities,” thus keeping him a serf attached to the soil of his master. -Looking at these provisions critically, it appears, that, while -pretending to regulate vagrants, apprentices, licenses, and civil -rights, the freedman was degraded to the most abject condition; and -then, under a pretence for the public peace, he was shut out from -opportunities of knowledge, and also from keeping arms, while he was -subjected to odious and exceptional punishments, as the pillory, the -stocks, the whipping-post, and sale for fine and costs. Behind all -these was violence, assassination, murder, with the Ku-Klux-Klan -constituting the lawless police of this new system. The whole picture -is too horrible; but it is true as horrible. In the face of this -unanswerable evidence, who will say that it was not proposed to revive -Slavery? To call such a condition Liberty is preposterous. If not a -slave of the old type, the freedman was a slave of a new type, invented -by his unrepentant master as the substitute for what he had surrendered -to the power of the Nation. Beginning with a caste as offensive and -irreligious as that of Hindostan, and adding to it the pretensions of -an oligarchy in government, the representatives of the old system were -preparing to trample upon an oppressed race. The soul sickens at the -thought. - - * * * * * - -With all this indubitable record staring us in the eyes, with the daily -report of inconceivable outrage darkening the air, with wrong in every -form let loose upon the long-suffering freedman, General Lee breaks the -respectable silence of his parole to deny that “the Southern people -are hostile to the negroes, and would oppress them, if in their power -to do it.” The report, he asserts, is “entirely unfounded,”--that -is the phrase,--“entirely unfounded”; and then he dwells on the old -patriarchal relation, with the habit from childhood of “looking upon -them with kindness” (witness the history of Slavery in its authentic -instances!); and then he insists that “the change in the relations of -the two races has wrought no change in feelings towards them,” that -“without their labor the land of the South would be comparatively -unproductive, and therefore _self-interest would prompt the whites -of the South to extend to the negroes care and protection_.” Here -is the threadbare pretension with which we were so familiar through -all the dreary days of the old Barbarism, now brought forward by the -Generalissimo of the Rebellion to vindicate the new,--and all this with -an unabashed effrontery, which shows, that, in surrendering his sword, -he did not surrender that insensibility to justice and humanity which -is the distinctive character of the slave-master. The freedman does not -need the “care and protection” of any such person. He needs the rights -of an American citizen; and you are to declare by your votes if he -shall have them. - - * * * * * - -The opposition to the Reconstruction Acts manifests itself in an -inconceivable brutality, kindred to that of Slavery, and fit prelude -to the revival of this odious wrong. Shall this continue? Outrage in -every form is directed against loyal persons, without distinction of -color. It is enough that a man is a patriot for Rebels to make war upon -him. Insulted, abused, and despoiled of everything, he is murdered on -the highway, on the railway, or, it may be, in his own house. Nowhere -is he safe. The terrible atrocity of these acts is aggravated by the -rallying cries of the murderers. If the victim is black, then it is a -“war of races”; if white, then he is nothing but a “carpet-bagger”; -and so, whether black or white, he is a victim. History has few scenes -of equal guilt. Persecution in all its untold cruelties, ending in -martyrdom, rages over a wide-spread land. - -If there be a “war of races,” as is the apologetic defence of the -murderers, then it is war declared and carried on by whites. The -other race is inoffensive and makes no war, asking only its rights. -The whole pretension of a “war of races” is an invention to cover the -brutality of the oppressors. Not less wicked is the loud-mouthed attack -on immigrants, whom Rebels choose to call “carpet-baggers,”--that is, -American citizens, who, in the exercise of the rights of citizenship, -carry to the South the blood, the capital, and the ideas of the North. -This term of reproach does not belong to the Northerner alone. The -carpet-bag is the symbol of our whole population: there is nobody who -is not a “carpet-bagger,” or at least the descendant of one. Constantly -the country opens its arms to welcome “carpet-baggers” from foreign -lands. And yet the cry ascends that “carpet-baggers” are to be driven -from the South. Here permit me to say, that, if anybody is driven from -anywhere, it will not be the loyal citizen, whether old or new. - -On all this you are to vote. It will be for you to determine if there -shall be peace between the two races, and if American citizens shall -enjoy everywhere within the jurisdiction of the Republic all the rights -of citizenship, free from harm or menace, and with the liberty of -uttering their freest thoughts. - -There is another issue at this election. It is with regard to the -unpatriotic, denationalizing pretensions of State Rights. In their -name was the Rebellion begun, and now in their name is every measure -of Reconstruction opposed. Important as are the functions of a State -in the administration of local government, especially in resisting an -overbearing centralization, they must not be exalted above the Nation -in its own appropriate sphere. Great as is the magic of a State, there -is to my mind a greater magic in the Nation. The true patriot would not -consent to see the sacrifice of the Nation more than the true mother -before King Solomon would consent to see the sacrifice of her child. -It is as a Nation--all together making one--that we have a place at -the council-board of the world, to excite the pride of the patriot and -the respect of foreign powers. It is as a Nation that we can do all -that becomes a civilized government; and “who dares do more is none.” -But all this will be changed, just in proportion as any State claims -for itself a sovereignty which belongs to all, and reduces the Nation -within its borders to be little more than a tenant-at-will,--just -in proportion as the National Unity is assailed or called in -question,--just in proportion as the Nation ceases to be a complete -and harmonious body, in which each State performs its ancillary part, -as hand or foot to the natural body. There is an irresistible protest -against such a sacrifice, which comes from the very heart of our -history. It was in the name of “the good people of these Colonies,” -called “one people,” that our fathers put forth the Declaration of -Independence, with its preamble of Unity, and its dedication of the new -Nation to Human Rights. And now it is for us, their children, to keep -this Unity, and to perform all the national promises thus announced. -The Nation is solemnly pledged to guard its Unity, and to make Human -Rights coextensive with its boundaries. Nor can it allow any pretension -of State Rights to interfere with this commanding duty. - - * * * * * - -There is still another issue, which is subordinate to Reconstruction -and dependent upon it, so, indeed, as to be a part of it. I refer to -the Financial Question, with the menace of Repudiation in different -forms. Let the Reconstruction Acts be maintained in peace, in other -words, let peace be established in the Rebel States, and the menace -of Repudiation will disappear from the scene,--none so poor to do -it reverence. If it find any acceptance now, it is only in that -revolutionary spirit which assails all the guaranties of peace. -Repudiation of the Reconstruction Acts, with all their securities for -Equal Rights, is naturally followed by repudiation of the National -Debt. The Acts and the Debt are parts of one system, being the means -and price of peace. So strongly am I convinced of the potency of this -influence, that I do not doubt the entire practicability of specie -payments on the fourth of July next after the inauguration of General -Grant. - -Nay, more, it is my conviction, not only that we _can_ have specie -payments at that time, but that we _ought_ to have them. If we can, -we ought; for this is nothing but the honest payment of what we owe. -A failure to pay may be excused, but never justified. Our failure -was originally sanctioned only under the urgency of war; but this -sanction cannot extend beyond the urgency. It is sometimes said that -necessity renders an action just, and Latin authority is quoted: _Id -enim justissimum quod necessarium_. But it is none the less untrue. -Necessity may excuse an action not in itself just, but it is without -the force to render it just; for justice is immutable. The taking of -the property of another under the instigation of famine is excused, -and so is the taking of the property of citizens by the Government -during war,--in both cases from necessity. But as the necessity ceases, -the obligations of justice revive. Necessity has no rights, but only -privileges, which disappear with the exigency. Therefore do I say that -the time has passed when the Nation can be excused for refusing to -pay according to its promise. But it is vain to expect this important -change from a political party which emblazons Repudiation on its -banners. - - * * * * * - -It is in two conspicuous forms that Repudiation flaunts: first, in -the barefaced proposition to tax the bonds, contrary to the contract -at the time the money was lent; and the other, not less barefaced, to -pay interest-bearing bonds with greenbacks, or, in other words, mere -promises to pay without interest. - - * * * * * - -The exemption from taxation was a part of the original obligation, -having, of course, a positive value, which entered into the price of -the bond at the time of subscription. This additional price was taken -from the pocket of the subscriber and transferred to the National -Treasury, where it has been used for the public advantage. It is so -much property to the credit of the bond-holder, which it is gravely -proposed to confiscate. Rebel property you will not confiscate; but you -are considering how to confiscate that of the loyal citizen. Taxation -of the bonds is confiscation. - -The whole case can be stated with perfect simplicity. To tax the -bonds is to break the contract _because you have the power_. It is an -imitation of the Roman governor, a lieutenant of Cæsar, who, after -an agreement by the people of Gaul to pay a certain subsidy monthly, -arbitrarily changed the number of months to fourteen. The subtraction -from the interest by taxation is kindred in dishonesty to the increase -of the Gaulish subsidy by adding to the months. Of course, in private -contracts between merchant and merchant no such thing could be done. -But there can be no rule of good faith binding on private individuals -which is not binding on the Nation, while there are exceptional reasons -for extraordinary scrupulousness on the part of the Nation. As the -transaction is vast, and especially as the Nation is conspicuous, what -is done becomes an example to the world which history cannot forget. -A Nation cannot afford to do a mean thing. There is another reason, -founded on the helpless condition of the creditor, who has no power to -enforce his claim, whether of principal or interest. It was Charles -James Fox who once exclaimed against a proposition kindred to that now -made: “Oh, no, no! His claims are doubly binding who trusts to the -rectitude of another.” This is only according to an admitted principle -in the Laws of War, constraining the stronger power to the best of -faith in dealing with a weaker power, because the latter is without the -capacity to redress a wrong. This benign principle, borrowed from the -Laws of War, cannot be out of place in the Laws of Peace; and I invoke -it now as a sufficient protection against taxation of the bonds, even -if common sense in its plainest lessons, and the rule of right in its -most imperious precepts, did not forbid this thing. - -The cheat of paying interest-bearing bonds in promises without interest -is kindred in character to that of taxing the bonds. It is flat -Repudiation. No subtlety of technicality, no ingenuity of citation, no -skill in arranging texts of statutes, can make it anything else. It is -so on the face, and it is so the more the transaction is examined. Here -again I invoke that rule of conduct to a weaker party, and I insist, -that, if, from any failure of explicitness excluding all contrary -conclusion, there can be any reason for Repudiation, every such -suggestion must be dismissed as the frightful well-spring of disastrous -consequences impossible to estimate, while it is inconsistent with that -Public Faith which is the supreme law. - -Elsewhere I have considered this question so fully,[273] that I content -myself now with conclusions only. Do you covet the mines of Mexico and -Peru, the profits of extended commerce, or the harvest of your own -teeming fields? All these and more you will multiply infinitely, if -you will keep the Public Faith inviolate. Do you seek stability in the -currency, with the assurance of solid business, so that extravagance -and gambling speculations shall cease? This, too, you will have through -the Public Faith. Just in proportion as this is discredited, the Nation -is degraded and impoverished. If nobody had breathed Repudiation, -we should all be richer, and the national debt would be at a lower -interest, saving to the Nation millions of dollars annually. Talk of -taxation; here is an annual tax of millions imposed by these praters of -Repudiation. - -Careless of all the teachings of history, you are exhorted to pay the -national debt in greenbacks, knowing that this can be done only by -creating successive batches, counted by hundreds of millions, which -will bring our currency to the condition of Continental money, when a -night’s lodging cost a thousand dollars, or the condition of the French -_assignats_, the paper currency of the Revolution, which was increased -to a fearful amount, precisely as it is now proposed to increase ours, -until the story of Continental money was repeated. Talk of clipping -the coin, or enfeebling it with alloy, as in mediæval times; talk of -the disgraceful frauds of French monarchs, who, one after another in -long succession, debased their money and swore the officers of the Mint -to conceal the debasement; talk of persistent reductions in England, -from Edward the First to Elizabeth, until coin was only the half of -itself; talk of unhappy Africa, where Mungo Park found that a gallon -of rum, which was the unit of value, was half water;--talk of all -these; you have them on a colossal scale in the cheat of paying bonds -with greenbacks. If not taught by our own memorable experience, when -Continental money, which was the currency of the time, was lost, like -the river Rhine at its mouth, in an enormous outstretched quicksand, -then be taught by the experience of another country. Authentic history -discloses the condition to which France was reduced. Carlyle, in his -picturesque work on the Revolution, says: “There is, so to speak, no -trade whatever, for the time being. _Assignats_, long sinking, emitted -in such quantities, sink now with an alacrity beyond parallel.” The -hackney-coachman on the street, when asked his fare, replied, “Six -thousand livres.”[274] And still the _assignats_ sunk, until at last -the nation was a pauper. The Directory, invested for the time with -supreme power, on repairing to the palace of the Luxembourg, found it -without a single article of furniture. Borrowing from the door-keeper -a rickety table, an inkstand, and a sheet of letter-paper, they -draughted their first official message, announcing the new government. -There was not a solitary piece of coin in the Treasury; but there -was a printing-press at command. _Assignats_ were fabricated in the -night, and sent forth in the morning wet from the press.[275] At last -they ended in nothing,--but not until a great and generous people was -enveloped in bankruptcy and every family was a sufferer. Bankruptcy -has its tragedies hardly inferior to those which throb beneath the -“sceptred pall.” - -Similar misconduct among us must result in similar consequences, with -all the tragedies of bankruptcy. Not a bank, not a corporation, not -an institution of charity, which would not suffer,--each sweeping -multitudes into the abyss which it could not avoid. Business would -be disorganized, values would be uncertain; nobody would know that -the paper in his pocket to-day would buy a dinner to-morrow. There is -no limit to the depreciation of inconvertible paper. Down, down it -descends, as the plummet, to the bottom, or up, up, as the bubble in -the air, until, whether down or up, it disappears. It is hard to think -of the poor, or of those who depend on daily wages, under the trials of -this condition. The rich may, for the time, live from their abundance; -but the less favored class can have no such refuge. Therefore, for the -poor, and for all who labor, do I now plead, when I ask that you shall -not hearken to this painful proposition. - -I plead, also, for the business of the country. So long as the currency -continues in its present uncertainty, it cannot answer the demands -of business. It is a diseased limb, no better than what is known in -India as a “Cochin leg,” or an excrescence not unlike the pendulous -goitre which is the pitiful sight of an Alpine village. But it must -be uncertain, unless we have peace. Therefore, for the sake of the -currency, do I unite with our candidate in his longing. Business must -be emancipated. How often are we told by the lawyers, in a saying -handed down from antiquity, that “a wretched servitude exists where the -law is uncertain”! But this is not true of the law only. Nothing short -of that servitude which denies God-given rights can be more wretched -than the servitude of an uncertain currency. And now that, by the -blessing of God, we are banishing that terrible wrong which was so long -the curse and shame of our Nation, let us apply ourselves to this other -servitude, whose yoke we are all condemned to bear in daily life. - -Looking into the travels of Marco Polo in the thirteenth century, you -will find that he encountered in China paper money on a large scale, -being an inconvertible currency standing on the credit of the Grand -Khan, not unlike our greenbacks. Describing the celestial city of -Kin-sai, the famous traveller says, “The inhabitants are idolaters, -and they use paper money”; and then describing another celestial city, -Ta-pin-zu, he says, “The inhabitants worship idols, and use paper -money.”[276] I know not if Marco Polo intended by this association -to suggest any dependence of paper money upon the worship of idols. -It is enough that he puts them together. To my mind they are equally -forbidden by the Ten Commandments. If one Commandment enjoins upon us -not to worship any graven image, does not another say expressly, “Thou -shalt not steal”? - - * * * * * - -There is another consideration, which I have reserved for the last, and -which I would call an issue in the pending election. It is nothing less -than the good name of the Republic, and its character as an example -to the Nations. All this is directly in question. If you are true -to the great principles of Equal Rights, declared by our fathers as -the foundation of just government,--if you stand by the freedman and -maintain him in well-earned citizenship,--if you require full payment -of the national debt in coin, principal and interest, at the pleasure -of the holder, so that the Republic shall have the crown of perfect -honesty, as also of perfect freedom,--I do not doubt that it will -exercise a far-reaching sway. Nothing captivates more than the example -of virtue,--not even the example of vice. _By this sign conquer_: by -fidelity to declared principles, by the performance of all promises, -by a good name. Then will American history supply the long-sought -definition of a Republic, and our Western star will illumine the -Nations. - -Reverse the picture, let the Rebel Party prevail, and what do we -behold? The bonds of the Nation repudiated, and the Equal Rights of the -freedman, which are nothing but bonds of the Nation, repudiated also. -Alas! the example of the Republic is lost, and our Western star is -quenched in darkness. But this cannot be without a shock, as when our -first parents tasted the forbidden fruit:-- - - “Earth felt the wound; and Nature from her seat, - Sighing through all her works, gave signs of woe - That all was lost.” - -The shock will begin at home; but it will spread wherever there are -hearts to thrill with anguish. The struggling people in foreign lands, -now turned to us with hope, will sink in despair as they observe the -disastrous eclipse. - -I would not seem too confident in the destinies of my country; but -I cannot doubt, that, if only true to herself, there is nothing too -vast for her peaceful ambition. Here again I catch the aspiration of -our leader in war, “Let us have peace.” Out of peace will spring all -else. Abroad there will be welcome and acceptance, with the might -of our example constantly increasing. At home there will be safety -and opportunity for all within our borders, with freedom of speech, -freedom of the press, freedom of travel, and the equal rights of -citizenship, like the rights of the national creditor, all under the -perpetual safeguard of that Public Faith which is the golden cord of -the Republic. Let despots break promises, but not our Republic. A -Republic is where every man has his due. Equality of rights is the -standing promise of Nature to man, and the Republic has succeeded to -this promise. - -In harmony with the promise of Nature is the promise of our fathers, -recorded in the Declaration of Independence, to which the Republic has -succeeded also. It is the twofold promise, first, that all are equal in -rights, and, secondly, that just government stands only on the consent -of the governed,--being the two great political commandments on which -hang all laws and constitutions. Keep these truly, and you will keep -all. Write them in your statutes; write them in your hearts. _This -is the great and only final settlement of all existing questions._ -Under its kindly influence the past Rebellion will disappear, alike in -its principles and its passions; future Rebellion will be impossible; -and there will be a peace never to be disturbed. To this sublime -consecration of the Republic let me aspire. With nothing less can I be -content. - - - - -FOOTNOTES - - -[1] _Ante_, Vol. I. pp. 314, 315. - -[2] Sermo CCXCIX. § 6: Opera, ed. Benedict., (Paris, 1836-39,) Tom. V. -col. 1785. - -[3] History of the World, Book V. ch. I: Works, (Oxford, 1829,) Vol. -VI. p. 4. - -[4] Of Reformation touching Church Discipline in England, Book II.: -Works, (London, 1851,) Vol. III. p. 55. - -[5] Essay upon the Original and Nature of Government: Miscellanea, Part -I.: Works, (London, 1720,) Vol. I. p. 100. - -[6] “La totalité des personnes nées ou naturalisées dans un pays, et -vivant sous un même gouvernement.” - -[7] Decline and Fall of the Roman Empire, ed. Milman, (London, 1846,) -Ch. II. Vol. I. p. 37. - -[8] See his Essay, as amplified in the successive editions, variously -entitled, “The National Polity is the Normal Type of Modern Government: -A Fragment”; “Nationalism: A Fragment of Political Science”; and -“Fragments of Political Science on Nationalism and Inter-Nationalism”: -the first two without date,--the last, New York, 1868. - -[9] Menenius Agrippa. Livii Hist. Lib. II. c. 32. - -[10] Journal of the House of Representatives, p. 133, October 24, 1765. -Hutchinson’s History of Massachusetts, Vol. III. p. 472. - -[11] Hazard’s Historical Collections, Vol. II. p. 2. Palfrey’s History -of New England, Vol. I. p. 624. - -[12] Winthrop, History of New England, ed. Savage, Vol. II. p. 100. - -[13] Ibid., p. 160. - -[14] Plan of Union: Franklin’s Works, ed. Sparks, Vol. III. pp. 36, -seqq. - -[15] Bancroft, History of the United States, Vol. IV. p. 126. - -[16] Franklin to Governor Shirley, December 22, 1754: London Chronicle, -Feb. 6-8, 1766, Vol. XIX. p. 133; London Magazine, Feb. 1766, Vol. -XXXV. p. 95. See also Franklin’s Works, ed. Sparks, Vol. III. p. 66. - -[17] Wells’s Life of Samuel Adams, Vol. II. pp. 90, 94. - -[18] Ibid., p. 94. - -[19] Journals of Congress, October 14, 1774, Vol. I. pp. 28, 29. - -[20] The Federalist, ed. J. C. Hamilton, Historical Notice, pp. xii, -xiv, lix. - -[21] Wordsworth, The Excursion, Book IV. 138, 139. - -[22] Letter to Jefferson, November 12, 1813: Works, Vol. X. p. 79. - -[23] Proceedings of a Convention of Delegates from several of the -New England States, held at Boston, August 3-9, 1780: edited from an -original MS. Record in the New York State Library, with an Introduction -and Notes, by Franklin B. Hough, Albany, 1867, pp. 50, 51. - -[24] Address and Recommendations to the States by the United States in -Congress assembled, (Philadelphia, 1783,) p. 9. Journal of Congress, -April 26, 1783, Vol. VIII. pp. 194, seqq. - -[25] Writings of Washington, ed. Sparks, Vol. VIII. pp. 567, 568, -Appendix. - -[26] Ibid., pp. 441, 443. - -[27] Ibid., pp. 504, 505. - -[28] Resolution of Congress, October 10, 1780: Journal, Vol. VI. p. 215. - -[29] The Federalist, ed. J. C. Hamilton, Historical Notice, pp. xxii, -lviii. - -[30] Ibid., p. xxiv. - -[31] Resolutions, July 21, 1782: Hamilton’s Works, ed. J. C. Hamilton, -Vol. II. pp. 201-204. - -[32] Journal, February 21, 1787, Vol. XII. p. 17. - -[33] Sketches of American Policy, (Hartford, 1785,) Part IV. See also -Introduction to Debates in the Federal Convention: Madison Papers, Vol. -II. p. 708. - -[34] Life, by his Son, William Jay, Vol. I. pp. 249, 250. See also -Letter to John Lowell, May 10, 1785: Ibid., p. 190. - -[35] See, _ante_, p. 274. - -[36] Letter to Edmund Randolph, April 8, 1787: Madison Papers, Vol. II. -pp. 631, 632. - -[37] Writings, ed. Sparks, Vol. IX. pp. 187, 188. - -[38] Letter to John Jay, March 10, 1787: Life of Jay, by his Son, Vol. -I. p. 259. - -[39] Debates, May 30, 1787: Madison Papers, Vol. II. p. 748. - -[40] Debates, July 7th: Ibid., p. 1049. - -[41] Debates, July 5th: Ibid., p. 1030. - -[42] Debates, June 19, 1787: Madison Papers, Vol. II. pp. 904, 905. - -[43] Debates, June 7th: Ibid., p. 817. - -[44] Debates, June 19th: Ibid., p. 907. - -[45] Debates, June 29th: Ibid., p. 995. - -[46] Debates, June 30th: Ibid., p. 1010; see also p. 1011. - -[47] March 16, 1785: Journal, Vol. X. p. 79. - -[48] Debates, June 25th: Madison Papers, Vol. II. pp. 946, 950. - -[49] Journal of Congress, September 28, 1787, Vol. XII. p. 165. - -[50] Works of Daniel Webster, Vol. III. p. 474. - -[51] Elliot’s Debates, (2d edit.,) Vol. III. p. 29. - -[52] Elliot’s Debates, Vol. III. p. 22. - -[53] Ibid., p. 44. - -[54] Hamilton’s History of the National Flag of the United States, p. -55. - -[55] Ibid., pp. 65, 66. - -[56] Hamilton’s History of the National Flag, p. 30. - -[57] Ibid., p. 110. - -[58] For the original of these devices see the Pennsylvania Gazette, -May 9, 1754; copies of the others are presented in Hamilton’s History -of the National Flag, Plate II. - -[59] Hamilton’s History of the National Flag, pp. 72-79. - -[60] The Thracians: Herodotus, Lib. V. c. 3. - -[61] Dr. Francis Lieber, who narrated the incident to Mr. Sumner. - -[62] Locke, Essay concerning Human Understanding, Book III. ch. 2, § 8. - -[63] Cratylus, 389 A. - -[64] Diary of John Adams: Works, Vol. II. p. 367. - -[65] Journal, June 17, 1775, Vol. I. p. 122. - -[66] Writings, ed. Sparks, Vol. III. p. 491, Appendix. - -[67] Letter to the President of Congress, December 20, 1776: Ibid., -Vol. IV. p. 236. - -[68] See, _ante_, p. 31. - -[69] Journal of Congress, September 28, 1787, Vol. XII. p. 165. - -[70] Writings, ed. Sparks, Vol. XII. p. 218. - -[71] Isaiah, xl. 26. - -[72] Revelation, iii. 12. - -[73] Job, xxxviii. 35. - -[74] Geographica, Lib. IV. cap. 1, §§ 2, 14. - -[75] Marlow, Edward the Second, Act V. Sc. 1. - -[76] Proclamation, December 10, 1832: Executive Documents, 22d Cong. 2d -Sess., H. of R., No. 45, p. 85. - -[77] Speech in the Senate, in Reply to Mr. Simmons, of Rhode Island, -February 20, 1847: Works, Vol. IV. pp. 358, 357. - -[78] Section 24. - -[79] Address at the Consecration of the National Cemetery at -Gettysburg, November 19, 1863: McPherson’s Political History of the -United States during the Rebellion, p. 606. - -[80] From a toast by Charles P. Sumner at the State Celebration of the -Fiftieth Anniversary of American Independence, in the Doric Hall of the -State House in Boston, July 4, 1826. - -[81] Note to § 776, Vol. I. pp. 433, 434, 3d edit. - -[82] Act to prescribe an Oath of Office, July 2, 1862: Statutes at -Large, Vol. XII. p. 502. - -[83] Pleas of the Crown, Vol. I. p. 484. - -[84] 3 Institutes, p. 139. - -[85] Criminal Law, Vol. I. § 652. - -[86] Ibid., § 655. - -[87] Statutes at Large, Vol. I. p. 112. - -[88] Catilina, Cap. XXXIX. - -[89] Bramston, The Art of Politics, 162-165. See, _ante_, Vol. VI. p. -350; Vol. XI. p. 6 - -[90] View of the Constitution, (Philadelphia, 1825,) Chap. XXI. p. 206. - -[91] Commentaries on the Constitution, § 775, Vol. II. p. 247. - -[92] Second edition (Philadelphia, 1829). - -[93] See, _post_, p. 93. - -[94] Madison Papers, Vol. III. pp. 1572, 1573. - -[95] Elliot’s Debates, (2d edit.,) Vol. III. p. 498. - -[96] See, _ante_, Vol. XIV. pp. 15, seqq. - -[97] Lex Parliamentaria Americana: Elements of the Law and Practice of -Legislative Assemblies in the United States, (2d edit.,) § 302. - -[98] Trial of Judge Peck, Appendix, p. 499. - -[99] 4 Institutes, pp. 14, 15. - -[100] Commentaries, Vol. I. p. 181. - -[101] Speech on Conciliation with America, March 22, 1775: Works, -(Boston, 1866-67,) Vol. II. p. 125. Besides the importations into -the Colonies from England, where, according to Lowndes, no less than -six editions had been published prior to the date of this speech, an -edition was printed in Philadelphia in 1771-72, with a subscription, as -appears by the list accompanying it, of nearly sixteen hundred copies. - -[102] Lords’ Standing Orders: May’s Parliamentary Practice, (5th -edit.,) p. 221. - -[103] May, Parliamentary Practice, Ibid. - -[104] Ibid. - -[105] Lex Parliamentaria Americana, (2d edit.,) § 288. - -[106] Report from the Committee appointed to inspect the Lords’ -Journals, Appendix, No. I. (Extract from Foster’s Crown Law): Burke’s -Works, (Boston, 1866-67,) Vol. XI. p. 126. - -[107] Ibid., p. 129, note. - -[108] Ibid., p. 132. - -[109] Lives of the Chancellors, (4th edit., London, 1856,) Vol. I. p. -15, note. - -[110] Ibid., p. 15. - -[111] Lives of the Chancellors, (4th edit.,) Vol. I. pp. 14, 15. - -[112] Ibid., Vol. II. p. 229. - -[113] Ibid. - -[114] Campbell, Lives of the Chancellors, (4th edit.,) Vol. III. p. 156. - -[115] Campbell, Lives of the Chancellors, (4th edit.,) Vol. III. p. 270. - -[116] Ibid., p. 281. - -[117] History of the Rebellion, (Oxford, 1826,) Book III., Vol. I. p. -381. - -[118] Campbell, Lives of the Chancellors, (4th edit.,) Vol. IV. p. 68. - -[119] Lives of the Chancellors, (4th edit.,) Vol. IV. p. 145. - -[120] Ibid., p. 139. - -[121] Ibid., p. 147. - -[122] Campbell. Lives of the Chancellors, (4th edit.,) Vol. V. p. 46. - -[123] Ibid., p. 102. - -[124] Ibid., p. 106. - -[125] Ibid., pp. 109, 114. - -[126] Campbell, Lives of the Chancellors, (4th edit.,) Vol. V. p. 207. - -[127] Ibid., p. 257. - -[128] Ibid., p. 259. - -[129] Ibid., p. 269. - -[130] Ibid., p. 377. - -[131] Howell’s State Trials, Vol. XVI. col. 768. - -[132] Lives of the Chancellors, (4th edit.,) Vol. VI. p. 94. - -[133] Campbell, Lives of the Chancellors, (4th edit.,) Vol. VI. p. 316. - -[134] Ibid., Vol. I. p. 15, note. - -[135] Twiss, Life of Eldon, Vol. I. p. 319. - -[136] Congressional Debates, 19th Cong. 1st Sess., col. 759, 760, May -18, 1826. - -[137] June 7, 1826. - -[138] June 27, 29, 1826. - -[139] Onslow, No. I.: National Intelligencer, June 27, 1826. - -[140] Ibid. - -[141] D’Ewes’s Journals, p. 683. - -[142] Lex Parliamentaria Americana, (2d edit.,) § 294. - -[143] Ibid., § 300. - -[144] Hansard’s Parliamentary History, April 15, 1640, Vol. II. col. -535. - -[145] Hatsell’s Precedents, (London, 1818,) Vol. II. p. 242. - -[146] Hansard’s Parliamentary History, Vol. XXXVI. col. 915. - -[147] Barclay’s Digest of the Rules of the House of Representatives, -&c., p. 44. - -[148] Barclay’s Digest, p. 114. - -[149] Ibid. - -[150] Cushing, Lex Parliamentaria Americana, (2d edit.,) § 306. - -[151] Proceedings on the Impeachment of William Blount, p. 28. - -[152] Commentaries, (2d edit.,) § 803, Vol. I. p. 560. - -[153] Annals of Congress, 5th Cong., July 8, 1797, col. 44. - -[154] See, _ante_, Vol. VIII. pp. 12, 13: Expulsion of Trusten Polk. - -[155] Wooddeson, Lectures, Vol. II. p. 602. - -[156] Speeches of the Managers and Counsel in the Trial of Warren -Hastings, ed. Bond, Vol. I. p. 4. - -[157] Ibid., pp. 183, seqq. - -[158] Constitutional History of England, (2d edit.,) Chap. XII., Vol. -II. p. 554. - -[159] No. LXV. - -[160] View of the Constitution, (2d edit.,) p. 211. - -[161] Commentaries, (2d edit.,) Vol. I. §§ 746, 764. - -[162] History of the Constitution, pp. 260, 261. - -[163] Speech in the House of Representatives, June 17, 1789, on the -Bill for establishing the Department of Foreign Affairs: Annals of -Congress, 1st Cong. 1st Sess., col. 498. - -[164] Speech at St. Louis, September 8, 1866: McPherson’s Political -History of the United States during Reconstruction, p. 140. - -[165] Rolls of Parliament, Vol. III. p. 244, § 7,--cited in Report from -the Committee of the House of Commons appointed to inspect the Lords’ -Journals, April 30, 1794: Burke’s Works, (Boston, 1866-67,) Vol. XI. p. -11. - -[166] Report from the Committee to inspect the Lords’ Journals: Burke’s -Works, Vol. XI. p. 12. - -[167] 4 Institutes, p. 15. Burke, Vol. XI. p. 13. - -[168] Crown Law, Discourse IV., pp. 389, 390. Burke, Vol. XI. p. 28. - -[169] Burke’s Works, Vol. XI. p. 13. - -[170] Lords’ Journals, Vol. IV. p. 133. Burke’s Works, Vol. XI. p. 14. - -[171] Howell’s State Trials, Vol. XV. col. 467. Lords’ Journals, March -14, 1709-10, Vol. XIX. p. 107. - -[172] Howell’s State Trials, Vol. XV. col. 471. - -[173] Ibid., col. 473. Lords’ Journals, March 23, 1709-10, Vol. XIX. p. -121. - -[174] Burke’s Works, Vol. XI. pp. 19, 20. - -[175] Howell’s State Trials, Vol. XV. col. 877. - -[176] Ibid., col. 883, 884. - -[177] Howell’s State Trials, Vol. XV. col. 885. - -[178] Ibid., col. 886. - -[179] Ibid., col. 887. - -[180] Lords’ Journals, March 19, 1715-16, Vol. XX. p. 316. - -[181] Speeches of the Managers and Counsel in the Trial of Warren -Hastings, ed. Bond, Vol. I. p. 10. - -[182] The Federalist, No. LXV. - -[183] Burke’s Works, Vol. XI. p. 60. - -[184] Burke’s Works, Vol. XI., p. 64. - -[185] Ibid. - -[186] Rationale of Judicial Evidence, Book IX. Part I. Ch. 3: Works, -ed. Bowring, (Edinburgh, 1843,) Vol. VII. p. 338. - -[187] Omychund _v._ Barker, 1 Atkyns, R., 49. - -[188] Mayor of Hull _v._ Horner, Cowper, R., 108. - -[189] Burke’s Works, Vol. XI. p. 63. - -[190] Fortescue, De Laudibus Legum Angliæ, Cap. XLII. - -[191] Commentaries, Vol. II. p. 94. - -[192] Blackstone, Commentaries, Vol. IV. p. 286. - -[193] Speech on the Lords’ Amendments to the Bill for the Regulation of -Trials in Cases of Treason, December 11, 1691: Hansard’s Parliamentary -History, Vol. V. col. 678. - -[194] Secretary Seward to Provisional Governor Marvin of Florida, -September 12, 1865: McPherson’s Political History of the United States -during Reconstruction, p. 25. - -[195] Howell’s State Trials, Vol. III. col. 1421. - -[196] Coleridge. - -[197] Statutes at Large, Vol. XIV. pp. 430-432. - -[198] Section 1. - -[199] Aldridge _v._ Williams, 3 Howard, R., 24. - -[200] See, _ante_, p. 147. - -[201] Bacon, Upon the Statute of Uses, Introductory Discourse: Works, -ed. Spedding, (Boston, 1864,) Vol. XIV. p. 285. - -[202] Statutes at Large, Vol. I. p. 415. - -[203] Statutes at Large, Vol. XII. p. 656. - -[204] Bill to repeal the 1st and 2d Sections of an Act to limit the -Term of Office of certain Officers therein named. See Congressional -Debates, 23d Cong. 2d Sess., 1834-35, col. 361, 418-491, 495-539, -552-571, 576. Ibid., 24th Cong. 1st Sess., 1835-36, col. 52, 367. - -[205] Act of February 25, 1863, Sec. 1: Statutes at Large, Vol. XII. -pp. 665, 666. - -[206] Sec. 5: Statutes at Large, Vol. XIV. p. 92. - -[207] Howell’s State Trials, Vol. IV. col. 1070. - -[208] Life, by Roger North, (London, 1826,) Vol. I. p. 20. - -[209] 5 Wheaton, R., 291, seqq. - -[210] 1 Cranch, R., 137, seqq. - -[211] Speech of Sir James Marriott, Admiralty Judge, in the House of -Commons, March 15, 1782: Hansard’s Parliamentary History, Vol. XXII. -col. 1184. - -[212] _Ante_, pp. 148, seqq. - -[213] Commentaries, Vol. II. p. 94. - -[214] Ibid., Vol. III. p. 43. - -[215] Speeches of the Managers and Counsel in the Trial of Warren -Hastings, ed. Bond, Vol. I. p. 11. - -[216] Preface to Shakespeare: Works, (Oxford, 1825,) Vol. V. p. 118. - -[217] History of the Rebellion, (Oxford, 1826,) Vol. IV. pp. 91, 92. - -[218] Act of March 6, 1820: Statutes at Large, Vol. III. p. 548. - -[219] Works, Vol. III. pp. 263, 264. - -[220] Ibid., p. 264. - -[221] Argument in the Case of Jones _v._ Vanzandt, pp. 62, 63. - -[222] Debates in the Federal Convention, May 30, 1787: Madison Papers, -Vol. II. p. 751. - -[223] Ibid. - -[224] Ibid. - -[225] Ibid., p. 752. - -[226] Debates, June 11th: Ibid., p. 841. - -[227] Debates, June 29th: Madison Papers, Vol. II. p. 995. - -[228] Debates, June 8th: Ibid., p. 826. - -[229] Debates, June 19th: Ibid., p. 902. - -[230] No. XLIII. § 8. - -[231] Commentaries on the Constitution, (2d edit.,) Vol. I. § 694. - -[232] Elliot’s Debates, Vol. III. p. 367. - -[233] The Federalist, No. LIV. - -[234] Debates in the Federal Convention, June 29, 1787: Madison Papers, -Vol. II. p. 993. - -[235] Deuteronomy, xxvii. 17. - -[236] Act of February 25, 1862: Statutes at Large, Vol. XII. pp. -345-348. - -[237] Statutes at Large, Vol. XII. p. 532. - -[238] Speech in the Senate, February 13, 1862: _ante_, Vol. VI. p. 343. - -[239] Quæstiones Juris Publici, tr. Du Ponceau, Lib. I. Cap. 24, p. 182. - -[240] Bynkershoek, Quæst. Jur. Pub., tr. Du Ponceau, Lib. I. Cap. 24, -p. 185. - -[241] Ibid. - -[242] Halleck, International Law, Ch. XII. § 29, p. 310. - -[243] Wheaton, Elements of International Law, ed. Lawrence, (Boston, -1863,) p. 528, note. - -[244] Bynkershoek, Quæst. Jur. Pub., tr. Du Ponceau, Lib. I. Cap. 24, -p. 188, note. - -[245] International Law, Ch. XII. § 11, p. 297. - -[246] De Jure Belli ac Pacis, Lib. III. Cap. II. § V. 2. - -[247] Elements of International Law, ed. Lawrence, (Boston, 1863,) Part -IV. Ch. I. § 9, p. 529. - -[248] Commentaries upon International Law, Part IX. Ch. II. § 19, Vol. -III. pp. 23, 24. - -[249] Wheaton’s Elements of International Law, ed. Dana, p. 370, note. - -[250] Le Droit des Gens, Liv. III. Ch. 4, § 63. - -[251] International Law, Ch. XII. § 16, p. 302. - -[252] De Jure Belli ac Pacis, Lib. III. Cap. II. § VII. 2. - -[253] Mr. Webster to Mr. Fox, April 24, 1841: Works, Vol. VI. p. 253. -See also Phillimore, International Law, Part IX. Ch. III. § 38, Vol. -III. p. 53. - -[254] International Law, Ch. XII. § 10, p. 296. - -[255] Remarks on Antiquities, Arts, and Letters, during an Excursion in -Italy, in the Years 1802 and 1803. - -[256] Alison, History of Europe, (Edinburgh, 1843,) Ch. XXXVII. Vol. V. -pp. 113, 114. - -[257] Mémorial de Sainte-Hélène, Tom. VII. pp. 32, 33. Alison, Vol. V. -p. 114. - -[258] Junot, Mme., Duchesse d’Abrantès, Mémoires sur Napoléon, Tom. VI. -pp. 398-403. Alison, Vol. V. p. 115, note. - -[259] Congressional Globe, 40th Cong. 2d Sess., Part V. p. 4331. - -[260] Works, Vol. IV. pp. 78-80. - -[261] Works, Vol. IV. p. 78. - -[262] Paradise Lost, Book III. 437-439. - -[263] Miscellaneous Works, (London, 1851,) p. 170. - -[264] Walckenaër, in the Biographie Universelle, Tom. XXXV. p. 222, -art. Polo. - -[265] Speech on Victory and Reconstruction, April 11, 1865: McPherson’s -Political History of the United States during the Rebellion, p. 609. - -[266] Hudibras, Part III. Canto I. 1303-6. - -[267] Resolutions of the National Democratic Convention, July, -1868: McPherson’s Political History of the United States during -Reconstruction, p. 368. - -[268] Letter of F. P. Blair to Col. James O. Brodhead, June 30, -1868: McPherson’s Political History of the United States during -Reconstruction, p. 381. - -[269] 2 Chronicles, xiv. 7. - -[270] Williams _v._ Suffolk Insurance Co.: 13 Peters, R., 420. - -[271] 7 Howard, R., 42. - -[272] Laws in relation to Freedmen: Executive Documents, 39th Cong. 2d -Sess., Senate, No. 6, pp. 170, seqq. - -[273] Speech on Financial Reconstruction, _ante_, pp. 445, seqq. - -[274] Carlyle’s French Revolution, (New York, 1867,) Book IX. Ch. 4. - -[275] Thiers, Histoire de la Révolution Française, (Paris, 1837,) Tom. -VIII. p. 15: Directoire, Chap. I. - -[276] Travels of Marco Polo, ed. Marsden, (London, 1818,) pp. 353, 354, -521, 547. - - - - - -End of the Project Gutenberg EBook of Charles Sumner; His Complete Works; -Volume 16 (of 20), by Charles Sumner - -*** END OF THIS PROJECT GUTENBERG EBOOK CHARLES SUMNER *** - -***** This file should be named 50167-0.txt or 50167-0.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/0/1/6/50167/ - -Produced by Mark C. 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