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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) - - - - - - -</pre> - - -<div class="figcenter" style="width: 596px;"> -<img src="images/frontispiece.jpg" width="596" height="600" alt="Edwin M. Stanton" /> -<p class="caption"><small>Eng<sup>d</sup>. by A. H. Ritchie</small></p> -<p class="caption">EDWIN M. STANTON</p> -</div> - -<hr class="r15" /> - -<h1 style="visibility: hidden;">Charles Sumner; his complete works, volume 16 (of 20)</h1> - -<p><span class="pagenum"><a name="Page_i" id="Page_i">[Pg i]</a></span></p> - -<div class="figcenter" style="width: 400px;"> -<img src="images/cover.jpg" width="400" height="650" alt="Cover page" /> -</div> - -<p><span class="pagenum"><a name="Page_ii" id="Page_ii">[Pg ii]</a></span></p> - -<p class="center"><span class="smcap">Copyright</span>, 1877,<br /> -<small>BY</small><br /> -FRANCIS V. BALCH, <span class="smcap">Executor</span>.</p> - -<p class="center"><span class="smcap">Copyright</span>, 1900,<br /> -<small>BY</small><br /> -LEE AND SHEPARD.</p> - -<p class="center">Statesman Edition.</p> - -<p class="center"><span class="smcap">Limited to One Thousand Copies.</span></p> - -<p class="center"><span class="smcap">Of which this is</span></p> - -<div class="figcenter" style="width: 100px;"> -<img src="images/issuenumber.jpg" width="100" height="21" alt="No. 320" /> -</div> - -<p class="center">Norwood Press:<br /> -<span class="smcap">Norwood, Mass., U.S.A.</span></p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_iii" id="Page_iii">[Pg iii]</a></span></p> - -<h2>CONTENTS OF VOLUME XVI.</h2> - -<table summary="Contents" class="contents"> - <tr> - <td></td><td class="tdr">PAGE</td> - </tr> - <tr> - <td class="hanging"><a href="#EQUAL_RIGHTS_WHETHER_POLITICAL_OR_CIVIL"><span class="smcap">Equal Rights, whether Political or Civil, by Act of -Congress.</span> Letter to the Border State Convention at -Baltimore, September 8, 1867</a></td><td class="tdr">1</td> - </tr> - <tr> - <td class="hanging"><a href="#ARE_WE_A_NATION"><span class="smcap">Are We a Nation?</span> Address before the New York Young -Men’s Republican Union, at the Cooper Institute, Tuesday -Evening, November 19, 1867</a></td><td class="tdr">3</td> - </tr> - <tr> - <td class="hanging"><a href="#CONSTANT_DISTRUST_OF_THE_PRESIDENT"><span class="smcap">Constant Distrust of the President.</span> Remarks in the -Senate, on the Final Adjournment, November 26, 1867</a></td><td class="tdr">66</td> - </tr> - <tr> - <td class="hanging"><a href="#THE_FOURTEENTH_AMENDMENT_WITHDRAWAL_OF"><span class="smcap">The Fourteenth Amendment: Withdrawal of Assent -by a State.</span> 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</a></td><td class="tdr">69</td> - </tr> - <tr> - <td class="hanging"><a href="#LOYALTY_IN_THE_SENATE_ADMISSION_OF_A"><span class="smcap">Loyalty in the Senate: Admission of a Senator.</span> Remarks -in the Senate, on the Resolution to admit Philip -F. Thomas as Senator from Maryland, February 13, 1868</a></td><td class="tdr">73</td> - </tr> - <tr> - <td class="hanging"><a href="#INTERNATIONAL_COPYRIGHT"><span class="smcap">International Copyright.</span> Letter to a Committee in New -York, on this Subject, February 17, 1868</a></td><td class="tdr">86</td> - </tr> - <tr> - <td class="hanging"><a href="#THE_IMPEACHMENT_OF_THE_PRESIDENT"><span class="smcap">The Impeachment of the President. The Right of the -President of the Senate pro Tem. to vote.</span> 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</a></td><td class="tdr">88</td> - </tr> - <tr> - <td class="hanging"><a href="#THE_CHIEF_JUSTICE_PRESIDING_IN_THE_SENATE"><span class="smcap">The Chief Justice, presiding in the Senate, cannot -rule or vote.</span> Opinion in the Case of the Impeachment -of Andrew Johnson, President of the United States, -March 31, 1868</a></td><td class="tdr">98</td> - </tr> - <tr> - <td class="hanging"><a href="#EXPULSION_OF_THE_PRESIDENT"><span class="smcap">Expulsion of the President.</span> Opinion in the Case of the -Impeachment of Andrew Johnson, President of the -United States, May 26, 1868</a></td><td class="tdr">134</td> - </tr> - <tr> - <td class="hanging"><a href="#CONSTITUTIONAL_RESPONSIBILITY_OF_SENATORS_FOR"><span class="smcap">Constitutional Responsibility of Senators for their -Votes in Cases of Impeachment.</span> Resolutions in the -Senate, June 3, 1868</a></td><td class="tdr">227</td> - </tr> - <tr> - <td class="hanging"><a href="#VALIDITY_AND_NECESSITY_OF_FUNDAMENTAL"><span class="smcap">Validity and Necessity of Fundamental Conditions on -States.</span> Speech in the Senate, June 10, 1868</a></td><td class="tdr">230</td> - </tr> - <tr> - <td class="hanging"><a href="#ELIGIBILITY_OF_A_COLORED_CITIZEN_TO_CONGRESS"><span class="smcap">Eligibility of a Colored Citizen to Congress.</span> Letter to -an Inquirer at Norfolk, Va., June 22, 1868</a></td><td class="tdr">255</td> - </tr> - <tr> - <td class="hanging"><a href="#INDEPENDENCE_AND_THOSE_WHO_SAVED_THE"><span class="smcap">Independence, and those who saved the Original Work.</span> -Letter on the Soldiers’ Monument at North Weymouth, -Mass., July 2, 1868</a></td><td class="tdr">256</td> - </tr> - <tr> - <td class="hanging"><a href="#COLORED_SENATORS_THEIR_IMPORTANCE_IN_SETTLING"><span class="smcap">Colored Senators,—their Importance in settling the -Question of Equal Rights.</span> Letter to an Inquirer in -South Carolina, July 3, 1868</a></td><td class="tdr">257</td> - </tr> - <tr> - <td class="hanging"><a href="#FINANCIAL_RECONSTRUCTION_THROUGH_PUBLIC"><span class="smcap">Financial Reconstruction through Public Faith and -Specie Payments.</span> Speech in the Senate, on the Bill to -fund the National Debt, July 11, 1868</a></td><td class="tdr">259</td> - </tr> - <tr> - <td class="hanging"><a href="#NO_REPRISALS_ON_INNOCENT_PERSONS"><span class="smcap">No Reprisals on Innocent Persons.</span> Speech in the Senate, -on the Bill concerning the Rights of American Citizens, -July 18, 1868</a></td><td class="tdr">297</td> - </tr> - <tr> - <td class="hanging"><a href="#THE_CHINESE_EMBASSY_AND_OUR_RELATIONS"><span class="smcap">The Chinese Embassy, and our Relations with China.</span> -Speech at the Banquet by the City of Boston to the -Chinese Embassy, August 21, 1868</a></td><td class="tdr">318</td> - </tr> - <tr> - <td class="hanging"><a href="#THE_REBEL_PARTY"><span class="smcap">The Rebel Party.</span> Speech at the Flag-Raising of the Grant -and Colfax Club, in Ward Six, Boston, on the Evening -of September 14, 1868</a></td><td class="tdr">326</td> - </tr> - <tr> - <td class="hanging"><a href="#ENFRANCHISEMENT_IN_MISSOURI_WHY_WAIT"><span class="smcap">Enfranchisement in Missouri: Why wait?</span> Letter to a -Citizen of St. Louis, October 3, 1868</a></td><td class="tdr">331</td> - </tr> - <tr> - <td class="hanging"><a href="#ISSUES_AT_THE_PRESIDENTIAL_ELECTION"><span class="smcap">Issues at the Presidential Election.</span> Speech at the City -Hall, Cambridge, October 29, 1868</a></td><td class="tdr">333</td> - </tr> -</table> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_1" id="Page_1">[Pg 1]</a></span></p> - -<h2><a name="EQUAL_RIGHTS_WHETHER_POLITICAL_OR_CIVIL" id="EQUAL_RIGHTS_WHETHER_POLITICAL_OR_CIVIL"></a>EQUAL RIGHTS, WHETHER POLITICAL OR CIVIL, -BY ACT OF CONGRESS.</h2> - -<p class="plabeln"><span class="smcap">Letter to the Border State Convention at Baltimore, September -8, 1867.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>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.</p> - -</div> - -<div class="blockquote"> - -<p class="right medium"><span class="smcap">Boston</span>, September 8, 1867.</p> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<p>The idea is intolerable, that any State, under any -pretension of State Rights, can set up <i>a political oligarchy</i> -within its borders, and then call itself a republican -government. I insist with all my soul that such<span class="pagenum"><a name="Page_2" id="Page_2">[Pg 2]</a></span> -a government must be rejected, as inconsistent with -the requirements of the Declaration of Independence.</p> - -<p class="sig">Faithfully yours,</p> - -<p class="sig2"><span class="smcap">Charles Sumner</span>.</p> - -</div> - -<div class="medium"> - -<p>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.”</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span></p> - -<h2><a name="ARE_WE_A_NATION" id="ARE_WE_A_NATION"></a>ARE WE A NATION?</h2> - -<p class="plabeln"><span class="smcap">Address before the New York Young Men’s Republican Union, -at the Cooper Institute, Tuesday Evening, November 19, 1867.</span></p> - -<div class="blockquote medium"> - -<hr class="r15" /> - -<p>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.—<span class="smcap">Ezekiel</span>, xxxvii. 22, 23.</p> - -<hr class="r15" /> - -<p>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.—<span class="smcap">Polybius</span>, -<i>General History</i>, tr. Hampton, (London, 1756,) Vol. I. pp. -147, 148.</p> - -<p><span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span></p> - -<hr class="r15" /> - -<p>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.—<span class="smcap">Benjamin Rush</span>, -<i>Speech in the Continental Congress, July, 1776</i>: Bancroft, History of the -United States, Vol. IX. p. 54.</p> - -<hr class="r15" /> - -<p>It is my first wish to see the United States assume and merit the character -of <i>one great Nation</i>, 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.—<span class="smcap">John Jay</span>, <i>Letter to John -Lowell, May 10, 1785</i>: Life, by William Jay, Vol. I. p. 190.</p> - -<hr class="r15" /> - -<p>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.—<span class="smcap">George Mason</span>, <i>Speech in the Constitutional Convention, -June 20, 1787</i>: Debates, Madison Papers, Vol. II. pp. 914, 915.</p> - -<p><span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span></p> - -<hr class="r15" /> - -<p>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.—<span class="smcap">George Mason</span>, <i>Speech in the Virginia Convention -to ratify the Constitution, June 4, 1788</i>: Elliot’s Debates, (2d edit.,) -Vol. III. p. 29.</p> - -<hr class="r15" /> - -<p>The Declaration of Independence having provided for the <i>national</i> character -and the <i>national</i> 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.—<span class="smcap">Alexander -James Dallas</span>, <i>Argument in the Case of Michael Bright and others, in -the Circuit Court of the United States, April 28, 1809</i>: Life and Writings, -p. 104.</p> - -<hr class="r15" /> - -<p>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.—<i>Ibid.</i>, p. 100.</p> - -<hr class="r15" /> - -<p>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.—<span class="smcap">Chief -Justice Marshall</span>, <i>Cohens</i> v. <i>Virginia</i>, Wheaton, Rep., Vol. VI. p. 414.</p> - -<hr class="r15" /> - -</div> - -<p><span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span></p> - -<div class="medium"> - -<p>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.</p> - -<p>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 <i>Defender of Humanity</i>, -he recognized his received title, <i>Defender of the Constitution</i>, -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.”<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a> 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.”</p> - -</div> - -<p><span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span></p> - -<h3>ADDRESS.</h3> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<hr class="tb" /> - -<p>Are we a Nation? Such is the question I now propose, -believing that the whole case is involved in the<span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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 <i>National</i>,—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.</p> - -<p>During the imbecility of the Confederation, which -was nothing but a league or <i>fœdus</i>, 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<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> -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.<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">[2]</a> If among us in the earlier day -there was no occasion for the word Nation, there is -now. A Nation is born.</p> - -<hr class="tb" /> - -<p>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 -<i>nation</i> 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,<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> -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.</p> - -<p>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 <i>nascor</i> and <i>natus</i>, 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.”</p> - -<p>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.”<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[3]</a> John Milton was filled with the same -sentiment, when, addressing England and Scotland, he -says: “Go on, both hand in hand, <i>O Nations</i>, never to -be disunited! be the praise and the heroic song of all<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> -posterity!”<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[4]</a> 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 <i>living under the -same government and civil constitutions</i>.”<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">[5]</a> 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, -<i>or government</i>.” Our own Webster, the lexicographer, -calls it “the body of inhabitants of a country <i>united -under the same government</i>”; Worcester, “a people born -in the same country and <i>living under the same government</i>”; -the French Dictionary of the Academy, “the -totality of persons born or naturalized in a country and -<i>living under the same government</i>.”<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">[6]</a> Of these definitions, -those of Webster and the French Academy are -the best; and of the two, that of Webster the most -compact.</p> - -<p>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<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> -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 <i>coalesced into one great Nation</i>, united -by language, manners, and <i>civil institutions</i>, and equal -to the weight of a powerful empire.”<a name="FNanchor_7_7" id="FNanchor_7_7"></a><a href="#Footnote_7_7" class="fnanchor">[7]</a> Here dominion -proceeding originally from conquest is consecrated by -concession of citizenship, and the great historian hails -the coalesced people as Nation.</p> - -<p>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.<a name="FNanchor_8_8" id="FNanchor_8_8"></a><a href="#Footnote_8_8" class="fnanchor">[8]</a> 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<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> -of particles, liable to disappear, but a solid, infrangible -crystallization, against which winds and rains beat in -vain.</p> - -<hr class="tb" /> - -<p>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 <i>local sovereignty</i>, -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,<a name="FNanchor_9_9" id="FNanchor_9_9"></a><a href="#Footnote_9_9" class="fnanchor">[9]</a> 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<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span></p> - -<p>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!”</p> - -<p>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!</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span> -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.</p> - -<p>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.”</p> - -<p>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<span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span> -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.</p> - -<p>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!</p> - -<p>But Germany is the most instructive example. Here, -from generation to generation, have State pretensions -triumphed, perversely postponing that National Unity<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span> -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 <i>An die Deutsche -Nation</i> (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<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> -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:—</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse indent2">“That is the German’s fatherland</div> -<div class="verse indent2">Where Germans all as brothers glow;</div> -<div class="verse indent5">That is the land;</div> -<div class="verse">All Germany’s thy fatherland.”</div> -</div> -</div> - -<p class="noindent">God grant that the day may soon dawn when all Germany -shall be one!</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> -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.</p> - -<p>There is a distinction for a long time recognized -by German writers, and denoted by the opposite terms -<i>Staatenbund</i> and <i>Bundesstaat</i>,—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.</p> - -<p>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<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>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, <i>against all those who should make -statutes, or observe them, being made, contrary to the liberties -of Magna Charta</i>.”<a name="FNanchor_10_10" id="FNanchor_10_10"></a><a href="#Footnote_10_10" class="fnanchor">[10]</a> Massachusetts spoke for all<span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span> -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.</p> - -<p>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 <i>inter-citizenship</i>. -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.</p> - -<hr class="tb" /> - -<p>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, <i>we<span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span> -be and continue One</i>.”<a name="FNanchor_11_11" id="FNanchor_11_11"></a><a href="#Footnote_11_11" class="fnanchor">[11]</a> 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 <i>they lovingly accorded</i>.”<a name="FNanchor_12_12" id="FNanchor_12_12"></a><a href="#Footnote_12_12" class="fnanchor">[12]</a> -Encouraged by “loving accord,” another proposition was -brought forward in Massachusetts, “for all the English -within the United Colonies <i>to enter into a civil agreement -for the maintenance of religion and our civil liberties</i>.”<a name="FNanchor_13_13" id="FNanchor_13_13"></a><a href="#Footnote_13_13" class="fnanchor">[13]</a> -More than a century elapsed before this aspiration -was fulfilled.</p> - -<p>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.<a name="FNanchor_14_14" id="FNanchor_14_14"></a><a href="#Footnote_14_14" class="fnanchor">[14]</a><span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span> -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.”<a name="FNanchor_15_15" id="FNanchor_15_15"></a><a href="#Footnote_15_15" class="fnanchor">[15]</a> 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,”<a name="FNanchor_16_16" id="FNanchor_16_16"></a><a href="#Footnote_16_16" class="fnanchor">[16]</a>—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.</p> - -<p>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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span> -of American States,” out of whose deliberations should -come what he boldly proclaimed “an American Commonwealth,”<a name="FNanchor_17_17" id="FNanchor_17_17"></a><a href="#Footnote_17_17" class="fnanchor">[17]</a>—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,”<a name="FNanchor_18_18" id="FNanchor_18_18"></a><a href="#Footnote_18_18" class="fnanchor">[18]</a>—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 <i>a right in the people to participate -in their legislative council</i>.”<a name="FNanchor_19_19" id="FNanchor_19_19"></a><a href="#Footnote_19_19" class="fnanchor">[19]</a> 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.</p> - -<p>The next year witnessed a second Continental Congress, -also at Philadelphia, which entered upon a mightier -career. Proceeding at once to exercise national powers,<span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span> -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!</p> - -<p>In this sudden transformation where was the sovereignty? -It was declared that the <i>United</i> Colonies -are and <i>of right</i> ought to be free and independent -States. It was never declared that the <i>separate</i> Colonies -were so <i>of right</i>. Plainly they never were so <i>in -fact</i>. 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<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span> -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.”<a name="FNanchor_20_20" id="FNanchor_20_20"></a><a href="#Footnote_20_20" class="fnanchor">[20]</a> Such was the -great beginning of national life.</p> - -<hr class="tb" /> - -<p>A beautiful meditative poet, whose words are often -most instructive, confesses that we may reach heights -we cannot hold:—</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">“And the most difficult of tasks to keep</div> -<div class="verse">Heights which the soul is competent to gain.”<a name="FNanchor_21_21" id="FNanchor_21_21"></a><a href="#Footnote_21_21" class="fnanchor">[21]</a></div> -</div> -</div> - -<p>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,”<a name="FNanchor_22_22" id="FNanchor_22_22"></a><a href="#Footnote_22_22" class="fnanchor">[22]</a> 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<span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> -permanent manner, that the powers of Congress be more -clearly ascertained and defined, and that the important -<i>national</i> concerns of the United States be <i>under the -superintendency and direction of one supreme head</i>,” and -the word <i>Nation</i> is adopted as the natural expression -for our unity.<a name="FNanchor_23_23" id="FNanchor_23_23"></a><a href="#Footnote_23_23" class="fnanchor">[23]</a> But the time had not yet come for -this fulfilment.</p> - -<hr class="tb" /> - -<p>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 <i>the rights for which she contended were -the rights of Human Nature</i>.”<a name="FNanchor_24_24" id="FNanchor_24_24"></a><a href="#Footnote_24_24" class="fnanchor">[24]</a> 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<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span> -anything, who have performed the meanest office, in -erecting this stupendous fabric of Freedom and Empire -on the broad basis of Independency, <i>who have assisted -in protecting the rights of Human Nature</i>.”<a name="FNanchor_25_25" id="FNanchor_25_25"></a><a href="#Footnote_25_25" class="fnanchor">[25]</a> 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 <i>as a Nation</i>,” -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.<a name="FNanchor_26_26" id="FNanchor_26_26"></a><a href="#Footnote_26_26" class="fnanchor">[26]</a> 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,”<a name="FNanchor_27_27" id="FNanchor_27_27"></a><a href="#Footnote_27_27" class="fnanchor">[27]</a>—thus embracing -the whole in his heart, as for seven years he had -defended the whole by his prudence and valor.</p> - -<p>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<span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span> -the lands should “be disposed of for the common benefit -of the United States, and be settled and formed into -distinct <i>republican States</i>.”<a name="FNanchor_28_28" id="FNanchor_28_28"></a><a href="#Footnote_28_28" class="fnanchor">[28]</a> 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.</p> - -<p>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.”<a name="FNanchor_29_29" id="FNanchor_29_29"></a><a href="#Footnote_29_29" class="fnanchor">[29]</a> -In kindred spirit, Schuyler announced “the necessity -of <i>a supreme and coercive power</i> in the government of -these States.”<a name="FNanchor_30_30" id="FNanchor_30_30"></a><a href="#Footnote_30_30" class="fnanchor">[30]</a> 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.”<a name="FNanchor_31_31" id="FNanchor_31_31"></a><a href="#Footnote_31_31" class="fnanchor">[31]</a> The -movement ended in the National Convention. Other -States followed, and Congress recommended it as “the<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> -most probable means of establishing in these States a -firm National Government.”<a name="FNanchor_32_32" id="FNanchor_32_32"></a><a href="#Footnote_32_32" class="fnanchor">[32]</a> 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.<a name="FNanchor_33_33" id="FNanchor_33_33"></a><a href="#Footnote_33_33" class="fnanchor">[33]</a> But this proposition involved nothing less -than a National Government with supreme powers, to -which the States should be subordinate.</p> - -<hr class="tb" /> - -<p>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 <i>One Nation in -every respect</i>; for, as to the separate Legislatures, I would -have them considered, with relation to the Confederacy, -<i>in the same light in which counties stand</i> to the State of -which they are parts, viz., merely as districts to facilitate -the purposes of domestic order and good government.”<a name="FNanchor_34_34" id="FNanchor_34_34"></a><a href="#Footnote_34_34" class="fnanchor">[34]</a> -Even in this strong view Jay was not alone. -Franklin had already led in likening the colonies to “so -many counties.”<a name="FNanchor_35_35" id="FNanchor_35_35"></a><a href="#Footnote_35_35" class="fnanchor">[35]</a> Madison’s desires were differently<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> -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 “<i>a due supremacy -of the National authority</i>, and leave in force the local -authorities so far as they can be subordinately useful.”<a name="FNanchor_36_36" id="FNanchor_36_36"></a><a href="#Footnote_36_36" class="fnanchor">[36]</a> -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 <i>a Nation</i> -without having lodged somewhere a power which will -pervade the whole Union in <i>as energetic a manner as -the authority of the State governments extends over the -several States</i>.” He then adds: “To be fearful of investing -Congress, constituted as that body is, with <i>ample -authorities for National purposes</i>, appears to me the -very climax of popular absurdity and madness.”<a name="FNanchor_37_37" id="FNanchor_37_37"></a><a href="#Footnote_37_37" class="fnanchor">[37]</a> 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.”<a name="FNanchor_38_38" id="FNanchor_38_38"></a><a href="#Footnote_38_38" class="fnanchor">[38]</a></p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span> -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?</p> - -<hr class="tb" /> - -<p>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 -<i>a National Government ought to be established</i>, consisting<span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span> -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.</p> - -<p>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.”<a name="FNanchor_39_39" id="FNanchor_39_39"></a><a href="#Footnote_39_39" class="fnanchor">[39]</a> -Constantly this impassioned statesman protested against -State pretensions, insisting that the States were originally -“nothing more than colonial corporations,”<a name="FNanchor_40_40" id="FNanchor_40_40"></a><a href="#Footnote_40_40" class="fnanchor">[40]</a> and -exclaiming, “We cannot annihilate, but we may perhaps -take out the teeth of the serpents.”<a name="FNanchor_41_41" id="FNanchor_41_41"></a><a href="#Footnote_41_41" class="fnanchor">[41]</a> Wilson -was a different character,—gentle by nature, but informed<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> -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;<a name="FNanchor_42_42" id="FNanchor_42_42"></a><a href="#Footnote_42_42" class="fnanchor">[42]</a> he would not “extinguish these planets,” but -keep them “within their proper orbits for subordinate -purposes.”<a name="FNanchor_43_43" id="FNanchor_43_43"></a><a href="#Footnote_43_43" class="fnanchor">[43]</a> 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.”<a name="FNanchor_44_44" id="FNanchor_44_44"></a><a href="#Footnote_44_44" class="fnanchor">[44]</a> 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.”<a name="FNanchor_45_45" id="FNanchor_45_45"></a><a href="#Footnote_45_45" class="fnanchor">[45]</a> 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.”<a name="FNanchor_46_46" id="FNanchor_46_46"></a><a href="#Footnote_46_46" class="fnanchor">[46]</a> -Good words, worthy of him who in the Continental -Congress moved the prohibition of Slavery in the national -territories.<a name="FNanchor_47_47" id="FNanchor_47_47"></a><a href="#Footnote_47_47" class="fnanchor">[47]</a> And Charles Pinckney, of South -Carolina, said, in other words of precious significance, -that “every freeman has a right to <i>the same protection -and security</i>,” and then again, that “equality is the -leading feature of the United States.”<a name="FNanchor_48_48" id="FNanchor_48_48"></a><a href="#Footnote_48_48" class="fnanchor">[48]</a> Under such -influences the Constitution was adopted by the Convention.</p> - -<p><span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span></p> - -<p>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: “<i>We, the people of -the United States</i>, 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 <i>the people of the United -States</i> 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<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> -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 <i>the supreme law of the land</i>, -and the judges in every State shall be bound thereby, -<i>anything in the Constitution or laws of any State to the -contrary notwithstanding</i>,”—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.</p> - -<hr class="tb" /> - -<p>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, <i>the consolidation -of our Union</i>, in which is involved our prosperity, -felicity, safety, perhaps our National existence.”<a name="FNanchor_49_49" id="FNanchor_49_49"></a><a href="#Footnote_49_49" class="fnanchor">[49]</a><span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span> -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 <i>the consolidation of our Union</i>. -Such is the unanimous testimony of the Convention, -authenticated by George Washington.</p> - -<p>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 <i>one new Nation</i> out of the individual -States.”<a name="FNanchor_50_50" id="FNanchor_50_50"></a><a href="#Footnote_50_50" class="fnanchor">[50]</a> George Mason, of Virginia, proclaimed at -home that “the Confederation of the States was entirely -changed into <i>one consolidated government</i>,”—that -it was “a <i>National</i> government, and no longer a Confederation.”<a name="FNanchor_51_51" id="FNanchor_51_51"></a><a href="#Footnote_51_51" class="fnanchor">[51]</a> -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,<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> -he exclaimed: “That this is a consolidated government -is demonstrably clear.… Give me leave to demand, -What right had they to say, <i>We, the people</i>?… Who -authorized them to speak the language of <i>We, the people</i>, -instead of <i>We, the States</i>?… 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.”<a name="FNanchor_52_52" id="FNanchor_52_52"></a><a href="#Footnote_52_52" class="fnanchor">[52]</a> Then again the same fervid orator declared, -with infinite point, “The question turns, Sir, on that -poor little thing, the expression, <i>We, the people</i>, instead -of <i>the States</i>.”<a name="FNanchor_53_53" id="FNanchor_53_53"></a><a href="#Footnote_53_53" class="fnanchor">[53]</a> Patrick Henry was right. The question -did turn on that grand expression, <i>We, the people</i>, -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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span> -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 <i>union</i> of thirteen States to maintain -the Declaration of Independence. Its stars of white -on a field of blue proclaim that <i>union</i> 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.</p> - -<p>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 -<i>Union flag</i>, in compliment to the United Colonies.”<a name="FNanchor_54_54" id="FNanchor_54_54"></a><a href="#Footnote_54_54" class="fnanchor">[54]</a> -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 <i>Union flag</i> with thirteen stripes.”<a name="FNanchor_55_55" id="FNanchor_55_55"></a><a href="#Footnote_55_55" class="fnanchor">[55]</a> This was probably -the same flag, not yet matured into its present -form. In its corner, where are now the stars, were the<span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span> -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 -<i>the union</i> be thirteen stars, white in a blue field, representing -a new constellation.”<a name="FNanchor_56_56" id="FNanchor_56_56"></a><a href="#Footnote_56_56" class="fnanchor">[56]</a> 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.”<a name="FNanchor_57_57" id="FNanchor_57_57"></a><a href="#Footnote_57_57" class="fnanchor">[57]</a> -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.</p> - -<p>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<span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span> -motto, “<i>Join or die</i>,”—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, “<i>Don’t tread on me</i>,”—being a warning -to the mother country.<a name="FNanchor_58_58" id="FNanchor_58_58"></a><a href="#Footnote_58_58" class="fnanchor">[58]</a> 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.<a name="FNanchor_59_59" id="FNanchor_59_59"></a><a href="#Footnote_59_59" class="fnanchor">[59]</a> But these symbols -were all in harmony with the national flag, which, from -its first appearance, in all its forms, pictured the common -cause.</p> - -<p>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,<span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span> -so that everywhere it is a representative of the Nation. -Each has the same familiar motto, <i>E pluribus unum</i>,—“From -many one.” Its history attests its significance.</p> - -<p>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, <i>E pluribus unum</i>. -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.”</p> - -<p>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 -<i>United</i>, and the Constitution, formed to secure a more -perfect union, is “for the <i>United</i> States of America,” -which term was used as the common name of the -Nation.</p> - -<p><span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span></p> - -<p>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, “<i>England</i> expects -every man to do his duty.” Occasionally it is -proposed to call the country <i>Columbia</i>, and thus restore -to the great discoverer at least part of the honor taken -from him when the continent was misnamed <i>America</i>. -<i>Alleghania</i> has also been proposed; but this word is -too obviously a mere invention, besides its unwelcome -suggestion of Alligator. Another proposition has been -<i>Vinland</i>, being the name originally given by the Northmen, -four centuries before Christopher Columbus. Professor -Lieber, on one occasion, called the nation <i>Freeland</i>, -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,<a name="FNanchor_60_60" id="FNanchor_60_60"></a><a href="#Footnote_60_60" class="fnanchor">[60]</a> 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.</p> - -<p>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,<a name="FNanchor_61_61" id="FNanchor_61_61"></a><a href="#Footnote_61_61" class="fnanchor">[61]</a> who -wished a single name, Mr. Calhoun exclaimed: “Not at -all; we have no name because we ought to have none;<span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span> -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.</p> - -<p>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,<a name="FNanchor_62_62" id="FNanchor_62_62"></a><a href="#Footnote_62_62" class="fnanchor">[62]</a> and Plato tells us that -“a creator of names is the rarest of human creatures.”<a name="FNanchor_63_63" id="FNanchor_63_63"></a><a href="#Footnote_63_63" class="fnanchor">[63]</a> -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.</p> - -<p>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<span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span> -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 <i>American</i>.”<a name="FNanchor_64_64" id="FNanchor_64_64"></a><a href="#Footnote_64_64" class="fnanchor">[64]</a> -Congress took up the strain, and commissioned -Washington as commander-in-chief of the armies “for -the defence of <i>American</i> liberty”;<a name="FNanchor_65_65" id="FNanchor_65_65"></a><a href="#Footnote_65_65" class="fnanchor">[65]</a> 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 <i>America</i>;<a name="FNanchor_66_66" id="FNanchor_66_66"></a><a href="#Footnote_66_66" class="fnanchor">[66]</a> -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, <i>denominating the whole by the greater name of -American</i>.”<a name="FNanchor_67_67" id="FNanchor_67_67"></a><a href="#Footnote_67_67" class="fnanchor">[67]</a> 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 <i>America</i> -that the rights for which she contended were the rights -of Human Nature.”<a name="FNanchor_68_68" id="FNanchor_68_68"></a><a href="#Footnote_68_68" class="fnanchor">[68]</a> Washington again, in his letter to -Congress communicating the National Constitution, says,<span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> -in other words, which, like those of Congress, cannot be -too often quoted, that “the <i>consolidation of our Union</i>” -is “the greatest interest of <i>every true American</i>.”<a name="FNanchor_69_69" id="FNanchor_69_69"></a><a href="#Footnote_69_69" class="fnanchor">[69]</a> Afterwards, -in his Farewell Address, which from beginning -to end is one persuasive appeal for nationality, after -enjoining upon his fellow-citizens that “<i>unity of government</i> -which constitutes them <i>one people</i>,” he gives to -them a national name, and this was his legacy: “<i>The -name of American, which belongs to you in your national -capacity</i>, must always exalt the just pride of patriotism -more than any appellation derived from local discriminations.”<a name="FNanchor_70_70" id="FNanchor_70_70"></a><a href="#Footnote_70_70" class="fnanchor">[70]</a> -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.</p> - -<p>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”?<a name="FNanchor_71_71" id="FNanchor_71_71"></a><a href="#Footnote_71_71" class="fnanchor">[71]</a> Is it not declared also that -He will make him who overcometh a pillar in the temple, -and give to him a “new name”?<a name="FNanchor_72_72" id="FNanchor_72_72"></a><a href="#Footnote_72_72" class="fnanchor">[72]</a> 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.</p> - -<p><span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span></p> - -<p>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?”<a name="FNanchor_73_73" id="FNanchor_73_73"></a><a href="#Footnote_73_73" class="fnanchor">[73]</a> 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.</p> - -<p>He has studied history poorly, and human nature no<span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span> -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.</p> - -<p>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.<a name="FNanchor_74_74" id="FNanchor_74_74"></a><a href="#Footnote_74_74" class="fnanchor">[74]</a> 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.</p> - -<p><span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span></p> - -<p>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 <i>one sovereignty</i>, 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<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> -“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.</p> - -<p>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<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span> -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.</p> - -<p>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.<span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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,</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">“Two kings in England cannot reign at once,”<a name="FNanchor_75_75" id="FNanchor_75_75"></a><a href="#Footnote_75_75" class="fnanchor">[75]</a></div> -</div> -</div> - -<p class="noindent">the States insisted upon sovereign powers justly belonging -to the Nation. Long ago the duel began. The partisans -of State pretensions, plausibly professing to <i>decentralize</i> -the Government, have done everything possible -to <i>denationalize</i> it. In the name of self-government, -they have organized local lordships hostile to Human<span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span> -Rights; in the name of the States, they have sacrificed -the Nation.</p> - -<p>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 <i>a -single nation</i>, cannot from that period possess any right -to secede, because such secession does not break a -league, but destroys the unity of a nation.”<a name="FNanchor_76_76" id="FNanchor_76_76"></a><a href="#Footnote_76_76" class="fnanchor">[76]</a> 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.</p> - -<p>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:—</p> - -<p><span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span></p> - -<div class="blockquote"> - -<p>“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 <i>an Union, and not a Nation</i>, is as -strong and as sincere as that of the Senator or any other in -the opposite opinion.”</p> - -<p>“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? <i>We are in -the minority.</i>”<a name="FNanchor_77_77" id="FNanchor_77_77"></a><a href="#Footnote_77_77" class="fnanchor">[77]</a></p> - -</div> - -<p>Evidently, in that minority he saw the doom of -Slavery.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> -power Slavery has been abolished. Already by -central power all have been assured in the equality of -<i>civil</i> rights.</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse indent8">“Two truths are told,</div> -<div class="verse">As happy prologues to the swelling act</div> -<div class="verse">Of the imperial theme.”</div> -</div> -</div> - -<p class="noindent">It remains now that by central power all should be -assured in the equality of <i>political</i> 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.</p> - -<p>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,—<i>one sovereignty, -one citizenship, one people</i>.</p> - -<hr class="tb" /> - -<p>I conclude as I began. The late Rebellion against -the nation was in the name of State Rights; therefore<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> -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.</p> - -<p>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.”<a name="FNanchor_78_78" id="FNanchor_78_78"></a><a href="#Footnote_78_78" class="fnanchor">[78]</a> 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 <i>all men are created<span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span> -Equal</i>.”<a name="FNanchor_79_79" id="FNanchor_79_79"></a><a href="#Footnote_79_79" class="fnanchor">[79]</a> 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.</p> - -<p>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<span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span> -tempest or time, while it overarches the continent with -its generous shade. Such, at least, is the aspiration in -which all may unite.</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">“Firm like the oak may our blest nation rise,</div> -<div class="verse">No less distinguished for its strength than size;</div> -<div class="verse">The unequal branches emulous unite</div> -<div class="verse">To shield and grace the trunk’s majestic height;</div> -<div class="verse">Through long succeeding years and centuries live,</div> -<div class="verse">No vigor losing from the aid they give!”<a name="FNanchor_80_80" id="FNanchor_80_80"></a><a href="#Footnote_80_80" class="fnanchor">[80]</a></div> -</div> -</div> -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span></p> - -<h2><a name="CONSTANT_DISTRUST_OF_THE_PRESIDENT" id="CONSTANT_DISTRUST_OF_THE_PRESIDENT"></a>CONSTANT DISTRUST OF THE PRESIDENT.</h2> - -<p class="plabeln"><span class="smcap">Remarks in the Senate, on the Final Adjournment, November -26, 1867.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>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.</p> - -<p>November 26th, Mr. Grimes, of Iowa, moved the adjournment of -the two Houses on Monday, December 2d, at half past eleven o’clock, -<span class="smcapuc">A. M.</span> Mr. Sumner suggested “twelve o’clock,” remarking,—</p> - -</div> - -<p class="dropcap">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.</p> - -<div class="medium"> - -<p><span class="smcap">Mr. Edmunds</span> [of Vermont]. But the law takes no notice -of parts of a day.</p> - -<p><span class="smcap">Mr. Sumner.</span> That is a technicality. Why open the -question?</p> - -<p>Mr. Grimes, following the suggestion, altered his motion to “twelve -o’clock.” A debate ensued, in which Mr. Sherman, of Ohio, Mr.<span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span> -Fessenden, of Maine, and Mr. Trumbull, of Illinois, took part. Mr. -Sumner followed.</p> - -</div> - -<p>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.</p> - -<div class="medium"> - -<p><span class="smcap">Mr. Dixon</span> [of Connecticut]. I desire to ask the Senator -if that is the opinion of a majority of the American -people, in his judgment.</p> - -</div> - -<p><span class="smcap">Mr. Sumner.</span> 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<span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span> -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.</p> - -<p>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.</p> - -<div class="medium"> - -<p>The resolution was agreed to, and Congress adjourned accordingly.</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span></p> - -<h2><a name="THE_FOURTEENTH_AMENDMENT_WITHDRAWAL_OF" id="THE_FOURTEENTH_AMENDMENT_WITHDRAWAL_OF"></a>THE FOURTEENTH AMENDMENT: WITHDRAWAL OF -ASSENT BY A STATE.</h2> - -<p class="plabeln"><span class="smcap">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.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> -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.</p> - -<p>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 <i>brutum fulmen</i>,—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.</p> - -<div class="medium"> - -<p>Mr. Johnson, of Maryland, followed with some remarks, to which -Mr. Sumner replied:—</p> - -</div> - -<p><span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span></p> - -<p><span class="smcap">Mr. President</span>,—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,<a name="FNanchor_81_81" id="FNanchor_81_81"></a><a href="#Footnote_81_81" class="fnanchor">[81]</a> 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<span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span> -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.</p> - -<div class="medium"> - -<p>The Secretary read the note above cited.</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span></p> - -<h2><a name="LOYALTY_IN_THE_SENATE_ADMISSION_OF_A" id="LOYALTY_IN_THE_SENATE_ADMISSION_OF_A"></a>LOYALTY IN THE SENATE: ADMISSION OF A -SENATOR.</h2> - -<p class="plabeln"><span class="smcap">Remarks in the Senate, on the Resolution to admit Philip F. -Thomas as Senator from Maryland, February 13, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”</p> - -</div> - -<p>Mr. Sumner said:—</p> - -</div> - -<p class="dropcap">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?</p> - -<p><span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span></p> - -<p>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.</p> - -<p>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.”</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span> -enough, for the spirit of the Constitution is thus satisfied; -and, secondly, it has already been adopted by -“the <i>Legislatures</i> 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.</p> - -<p>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 <i>qualifications</i> -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 <i>form</i>, being (1.) -age, (2.) citizenship, and (3.) inhabitancy in the State. -But behind and above these is another “qualification,” -which is of <i>substance</i>, in contradiction to <i>form</i> 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<span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>According to Lord Coke, “an infidel cannot be sworn” -as a witness. This was an early rule, which has since<span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span> -been softened in our courts. But, under the Constitution -of the United States and existing statutes, a <i>political -infidel</i> 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.</p> - -<p>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.<a name="FNanchor_82_82" id="FNanchor_82_82"></a><a href="#Footnote_82_82" class="fnanchor">[82]</a> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span> -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.</p> - -<p>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,”<span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span> -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.”<a name="FNanchor_83_83" id="FNanchor_83_83"></a><a href="#Footnote_83_83" class="fnanchor">[83]</a> 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.”<a name="FNanchor_84_84" id="FNanchor_84_84"></a><a href="#Footnote_84_84" class="fnanchor">[84]</a> 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.”<a name="FNanchor_85_85" id="FNanchor_85_85"></a><a href="#Footnote_85_85" class="fnanchor">[85]</a> Then again he says, citing Hawkins, -Blackstone, East, and Russell, all familiar names in our -courts, each an oracle:—</p> - -<div class="blockquote"> - -<p>“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. -<i>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</i>,—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.”<a name="FNanchor_86_86" id="FNanchor_86_86"></a><a href="#Footnote_86_86" class="fnanchor">[86]</a></p> - -</div> - -<p><span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span></p> - -<p>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.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“That, if <i>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</i> 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, <i>such person or -persons, on conviction, shall be adjudged guilty of misprision -of treason</i>, and shall be imprisoned not exceeding seven years, -and fined not exceeding one thousand dollars.”<a name="FNanchor_87_87" id="FNanchor_87_87"></a><a href="#Footnote_87_87" class="fnanchor">[87]</a></p> - -</div> - -<p>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<span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span> -Senator; and the historian adds, without comment, that -the father, when his son was brought back, ordered him -to be slain: “<i>Fuere tamen extra conjurationem complures, -qui ad Catilinam profecti sunt: in his A. Fulvius, -Senatoris filius; quem retractum ex itinere parens necari -jussit</i>.”<a name="FNanchor_88_88" id="FNanchor_88_88"></a><a href="#Footnote_88_88" class="fnanchor">[88]</a> 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.</p> - -<p>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<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> -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.</p> - -<p>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. <i>Immo in Senatum venit.</i> 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.</p> - -<p>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.<span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span> -The law supplies the motive, when it says, in its ancient -phrase, “moved and seduced by the instigation of the -Devil.”</p> - -<p>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.</p> - -<p>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:—</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">“I hear a lion in the lobby roar:</div> -<div class="verse">Say, Mr. Speaker, shall we shut the door,</div> -<div class="verse">And keep him there? or shall we let him in,</div> -<div class="verse">To try if we can turn him out again?”<a name="FNanchor_89_89" id="FNanchor_89_89"></a><a href="#Footnote_89_89" class="fnanchor">[89]</a></div> -</div> -</div> - -<div class="medium"> - -<p>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.</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span></p> - -<h2><a name="INTERNATIONAL_COPYRIGHT" id="INTERNATIONAL_COPYRIGHT"></a>INTERNATIONAL COPYRIGHT.</h2> - -<p class="plabeln"><span class="smcap">Letter to a Committee in New York, on this Subject, February -17, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>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.</p> - -</div> - -<div class="blockquote"> - -<p class="right medium"><span class="smcap">Senate Chamber</span>, February 17, 1868.</p> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>I shall send you a copy of this treaty, which, I believe, -has never seen the light.</p> - -<p>I have always been in favor of an International Copyright,<span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span> -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.</p> - -<p>Accept my best wishes, and believe me, dear Sir,</p> - -<p class="sig">Faithfully yours,</p> - -<p class="sig2"><span class="smcap">Charles Sumner</span>.</p> - -<p class="noindent medium"><span class="smcap">James Parton, Esq.</span>, Secretary of the Committee.</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span></p> - -<h2><a name="THE_IMPEACHMENT_OF_THE_PRESIDENT" id="THE_IMPEACHMENT_OF_THE_PRESIDENT"></a>THE IMPEACHMENT OF THE PRESIDENT.<br /> -<small>THE RIGHT OF THE PRESIDENT OF THE SENATE PRO -TEM. TO VOTE.</small></h2> - -<p class="plabeln"><span class="smcap">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.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<p class="dropcap">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.</p> - -<p>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<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span> -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:—</p> - -<div class="blockquote"> - -<p>“When the President of the United States is tried, the -Chief Justice shall preside.”</p> - -</div> - -<p>This is all; and yet on this simple text the superstructure -of Senators has been reared.</p> - -<p>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:—</p> -<p><span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span></p> -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_90_90" id="FNanchor_90_90"></a><a href="#Footnote_90_90" class="fnanchor">[90]</a></p> - -</div> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_91_91" id="FNanchor_91_91"></a><a href="#Footnote_91_91" class="fnanchor">[91]</a></p> - -</div> - -<p>And he cites in his note “Rawle on the Constitution, -ch. 22, p. 216,”<a name="FNanchor_92_92" id="FNanchor_92_92"></a><a href="#Footnote_92_92" class="fnanchor">[92]</a> 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.</p> - -<p>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<span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span> -of the Constitution.<a name="FNanchor_93_93" id="FNanchor_93_93"></a><a href="#Footnote_93_93" class="fnanchor">[93]</a> 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 <i>ex -post facto</i> imagination or invention of learned commentators.</p> - -<p>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.</p> - -<div class="blockquote"> - -<p>“Mr. Rutledge and Mr. Gouverneur Morris moved ‘that -persons impeached be suspended from their offices until they -be tried and acquitted.’</p> - -<p>“<span class="smcap">Mr. Madison.</span> 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.</p> - -<p>“Mr. King concurred in the opposition to the amendment.”<a name="FNanchor_94_94" id="FNanchor_94_94"></a><a href="#Footnote_94_94" class="fnanchor">[94]</a></p> - -</div> - -<p>Th<span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span>e 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.</p> - -<p>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 mo<span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span>st -competent to testify at that time as to the intention of -the framers. What said this eminent authority? I -give you his words:—</p> - -<div class="blockquote"> - -<p>“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”—</p> - -</div> - -<p class="noindent">evidently referring to the Senate, or the Senate in connection -with the House—</p> - -<div class="blockquote"> - -<p class="noindent">“can remove him, if found guilty; <i>they can suspend him, -when suspected</i>, and the power will devolve on the Vice-President.”<a name="FNanchor_95_95" id="FNanchor_95_95"></a><a href="#Footnote_95_95" class="fnanchor">[95]</a></p> - -</div> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span></p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span> -reason for the provision that on the trial of the President -the Chief Justice shall preside.</p> - -<p>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.</p> - -<p>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 authorit<span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span>y in -the Constitution, or any of its contemporary expounders, -to criticize him.</p> - -<hr class="tb" /> - -<p>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. <span class="smcap">Johnson</span>,] 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.<a name="FNanchor_96_96" id="FNanchor_96_96"></a><a href="#Footnote_96_96" class="fnanchor">[96]</a> 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.</p> - -<p>Something has been<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span> 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 <i>Nisi Prius</i>. 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.</p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span></p> - -<h2><a name="THE_CHIEF_JUSTICE_PRESIDING_IN_THE_SENATE" id="THE_CHIEF_JUSTICE_PRESIDING_IN_THE_SENATE"></a>THE CHIEF JUSTICE, PRESIDING IN THE SENATE, -CANNOT RULE OR VOTE.</h2> - -<p class="plabeln"><span class="smcap">Opinion in the Case of the Impeachment of Andrew Johnson, -President of the United States, March 31, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>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.</p> - -</div> - -<p class="dropcap">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.</p> - -<p>Repairing to our authoritative text, we find the only -applicable words:—</p> -<p><span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span></p> -<div class="blockquote"> - -<p>“The Senate shall have the sole power to try all impeachments.… -When the President of the United States -is tried, the Chief Justice shall <i>preside</i>: and no person shall -be convicted without the concurrence of two thirds of the -members present.”</p> - -</div> - -<p>This is all. The Chief Justice shall <i>preside</i>, but subject -to two limitations specifically declared. First, the -trial is to be by the Senate <i>solely</i>, 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 <i>the members present</i>,”—thus -again excluding the presiding officer, unless -it is assumed that he is a member of the Senate.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span> -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.</p> - -<p>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.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_97_97" id="FNanchor_97_97"></a><a href="#Footnote_97_97" class="fnanchor">[97]</a></p> - -</div> - -<p>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<span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span> -the true rule of interpretation.</p> - -<p>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 <i>originals</i>, to which they -were manifestly referred by the Constitution itself.”<a name="FNanchor_98_98" id="FNanchor_98_98"></a><a href="#Footnote_98_98" class="fnanchor">[98]</a> -Here again I quote the words of Mr. Wirt.</p> - -<p>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.</p> - -<p>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 <i>preside</i> -is parliamentary. It belongs to the technicalities -of this branch of law, as much as <i>indict</i> 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:—</p> -<p><span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span></p> -<div class="blockquote"> - -<p>“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 <i>suis propriis legibus et consuetudinibus -subsistit</i>. It is <i>lex et consuetudo Parliamenti</i>, that -all weighty matters in any Parliament, moved concerning the -peers of the realm, or commons in Parliament assembled, -<i>ought to be determined and adjudged and discussed by the -course of the Parliament</i>, and not by the Civil Law, nor yet -by the common laws of this realm used in more inferior -courts.”<a name="FNanchor_99_99" id="FNanchor_99_99"></a><a href="#Footnote_99_99" class="fnanchor">[99]</a></p> - -</div> - -<p>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.</p> - -<p>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 <span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span>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.</p> - -<hr class="tb" /> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“The Speaker of the House of Lords, <i>if a Lord of Parliament</i>, -may give his opinion or argue any question in the -House.”<a name="FNanchor_100_100" id="FNanchor_100_100"></a><a href="#Footnote_100_100" class="fnanchor">[100]</a></p> - -</div> - -<p>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 f<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span>ervid; -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.”<a name="FNanchor_101_101" id="FNanchor_101_101"></a><a href="#Footnote_101_101" class="fnanchor">[101]</a> Nothing is clearer than that they knew -it well.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> -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.”<a name="FNanchor_102_102" id="FNanchor_102_102"></a><a href="#Footnote_102_102" class="fnanchor">[102]</a> 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.</p> - -<p>A late writer on Parliamentary Law, whose work is -a satisfactory guide, thus sententiously sums up the -law and usage:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_103_103" id="FNanchor_103_103"></a><a href="#Footnote_103_103" class="fnanchor">[103]</a></p> - -</div> - -<p>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.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_104_104" id="FNanchor_104_104"></a><a href="#Footnote_104_104" class="fnanchor">[104]</a></p> - -</div> - -<p>Th<span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span>us, 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.</p> - -<p>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.”<a name="FNanchor_105_105" id="FNanchor_105_105"></a><a href="#Footnote_105_105" class="fnanchor">[105]</a> This statement was made long -after the adoption of the National Constitution, and -anterior to the present controversy.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_106_106" id="FNanchor_106_106"></a><a href="#Footnote_106_106" class="fnanchor">[106]</a></p> - -<p><span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span></p> - -</div> - -<p>In another place, the Report, quoting the Commons’ -Journal, says:—</p> - -<div class="blockquote"> - -<p>“That the Lord High Steward was but as a Speaker, or -<i>Chairman</i>, for the more orderly proceeding at the trials.”<a name="FNanchor_107_107" id="FNanchor_107_107"></a><a href="#Footnote_107_107" class="fnanchor">[107]</a></p> - -</div> - -<p>And then again:—</p> - -<div class="blockquote"> - -<p>“The appointment of him doth not alter the nature of -the court, which still remaineth the Court of the Peers in -Parliament.”<a name="FNanchor_108_108" id="FNanchor_108_108"></a><a href="#Footnote_108_108" class="fnanchor">[108]</a></p> - -</div> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span> -House. Lord Campbell expressly records, that, while -his name appears in the entry of those present on the -22d November, 1830, as <i>Henricus Brougham, Cancellarius</i>, -“he had no right to debate and vote till the following -day,” when the entry of his name and office -appears as <i>Dominus Brougham et Vaux, Cancellarius</i>.<a name="FNanchor_109_109" id="FNanchor_109_109"></a><a href="#Footnote_109_109" class="fnanchor">[109]</a></p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_110_110" id="FNanchor_110_110"></a><a href="#Footnote_110_110" class="fnanchor">[110]</a></p> - -</div> - -<p>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<span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span> -power is still less.</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_111_111" id="FNanchor_111_111"></a><a href="#Footnote_111_111" class="fnanchor">[111]</a></p> - -</div> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_112_112" id="FNanchor_112_112"></a><a href="#Footnote_112_112" class="fnanchor">[112]</a></p> - -</div> - -<p>Then again we are told:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_113_113" id="FNanchor_113_113"></a><a href="#Footnote_113_113" class="fnanchor">[113]</a></p> - -</div> - -<p>Thus early do we meet illustration of this rule, which -constantly reappears in the annals of Parliament.</p> - -<p>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<span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span> -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.</p> - -<p>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.”<a name="FNanchor_114_114" id="FNanchor_114_114"></a><a href="#Footnote_114_114" class="fnanchor">[114]</a> In other words, according -to the language of our Constitution, he had presided -well.</p> - -<p>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<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> -Speaker.”<a name="FNanchor_115_115" id="FNanchor_115_115"></a><a href="#Footnote_115_115" class="fnanchor">[115]</a> 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.”<a name="FNanchor_116_116" id="FNanchor_116_116"></a><a href="#Footnote_116_116" class="fnanchor">[116]</a> Clarendon says, that, as a peer, he could -have done Strafford “notable service.”<a name="FNanchor_117_117" id="FNanchor_117_117"></a><a href="#Footnote_117_117" class="fnanchor">[117]</a> But the timid -peer did not render the expected service.</p> - -<p>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.”<a name="FNanchor_118_118" id="FNanchor_118_118"></a><a href="#Footnote_118_118" class="fnanchor">[118]</a> -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 sa<span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span>t -Speaker in the House of Lords,”<a name="FNanchor_119_119" id="FNanchor_119_119"></a><a href="#Footnote_119_119" class="fnanchor">[119]</a>—meaning that he -presided.</p> - -<p>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,”<a name="FNanchor_120_120" id="FNanchor_120_120"></a><a href="#Footnote_120_120" class="fnanchor">[120]</a> 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.”<a name="FNanchor_121_121" id="FNanchor_121_121"></a><a href="#Footnote_121_121" class="fnanchor">[121]</a> -Here is the constantly recurring definition -of the term <i>preside</i>.</p> - -<p>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 H<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span>alifax, -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 <i>pro -tempore</i>. 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.”<a name="FNanchor_122_122" id="FNanchor_122_122"></a><a href="#Footnote_122_122" class="fnanchor">[122]</a> 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”;<a name="FNanchor_123_123" id="FNanchor_123_123"></a><a href="#Footnote_123_123" class="fnanchor">[123]</a> that -he “had only, as Speaker, to put the question, … -taking no part in debate.”<a name="FNanchor_124_124" id="FNanchor_124_124"></a><a href="#Footnote_124_124" class="fnanchor">[124]</a> 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.<a name="FNanchor_125_125" id="FNanchor_125_125"></a><a href="#Footnote_125_125" class="fnanchor">[125]</a></p> - -<p>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<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> -no influence over the proceedings.”<a name="FNanchor_126_126" id="FNanchor_126_126"></a><a href="#Footnote_126_126" class="fnanchor">[126]</a> Thus he presided.</p> - -<p>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.”<a name="FNanchor_127_127" id="FNanchor_127_127"></a><a href="#Footnote_127_127" class="fnanchor">[127]</a> 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.”<a name="FNanchor_128_128" id="FNanchor_128_128"></a><a href="#Footnote_128_128" class="fnanchor">[128]</a> 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.”<a name="FNanchor_129_129" id="FNanchor_129_129"></a><a href="#Footnote_129_129" class="fnanchor">[129]</a></p> - -<p>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,”<a name="FNanchor_130_130" id="FNanchor_130_130"></a><a href="#Footnote_130_130" class="fnanchor">[130]</a>—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.</p> - -<p>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.<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> -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 -<i>pro tempore</i>. 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.”<a name="FNanchor_131_131" id="FNanchor_131_131"></a><a href="#Footnote_131_131" class="fnanchor">[131]</a> Another definition of the term -<i>preside</i>.</p> - -<p>All this is compendiously described by Lord Campbell:—</p> - -<div class="blockquote"> - -<p>“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 <i>Guilty</i>, 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.”<a name="FNanchor_132_132" id="FNanchor_132_132"></a><a href="#Footnote_132_132" class="fnanchor">[132]</a></p> - -</div> - -<p>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<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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, <span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span>he was -precluded from taking part in them.”<a name="FNanchor_133_133" id="FNanchor_133_133"></a><a href="#Footnote_133_133" class="fnanchor">[133]</a> 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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_134_134" id="FNanchor_134_134"></a><a href="#Footnote_134_134" class="fnanchor">[134]</a></p> - -</div> - -<p>Lord Eldon, in his Anecdote Book, furnishes another -statement of this case:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_135_135" id="FNanchor_135_135"></a><a href="#Footnote_135_135" class="fnanchor">[135]</a></p> - -</div> - -<p>And thus for nearly three years this commoner presided.</p> - -<p>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<span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span> -putting the question.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span> 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.</p> - -<p>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 -<i>preside</i> 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 <i>pro tempore</i> 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<span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> -determine any question, preliminary, interlocutory, or -final.</p> - -<p>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.</p> - -<p>Plainly and unmistakably, the provision in our Constitution -authorizing the Chief Justice to <i>preside</i> 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.</p> - -<hr class="tb" /> - -<p>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 desir<span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span>es, -are out of place when Parliamentary Law is beyond all -question.</p> - -<p>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 <i>President of the Senate</i>, -but shall have no vote, unless they be equally divided.” -In other words, the Vice-President, like the -Chief Justice, shall <i>preside</i> 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.</p> - -<p>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 <i>presiding</i> 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, “<span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span>My -Lords,” and never “My Lord Chancellor,” although the -latter <i>presides</i>. 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.”</p> - -<p>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, <i>as such</i>, 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 fol<span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span>lows:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_136_136" id="FNanchor_136_136"></a><a href="#Footnote_136_136" class="fnanchor">[136]</a></p> - -</div> - -<p>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,”<a name="FNanchor_137_137" id="FNanchor_137_137"></a><a href="#Footnote_137_137" class="fnanchor">[137]</a> 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,<a name="FNanchor_138_138" id="FNanchor_138_138"></a><a href="#Footnote_138_138" class="fnanchor">[138]</a> 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:—</p> -<p><span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span></p> -<div class="blockquote"> - -<p>“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 <i>body</i>, -and not in the <i>officer</i>. 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.”<a name="FNanchor_139_139" id="FNanchor_139_139"></a><a href="#Footnote_139_139" class="fnanchor">[139]</a></p> - -</div> - -<p>Then again, in reply to an illustration that had been -employed, he says:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_140_140" id="FNanchor_140_140"></a><a href="#Footnote_140_140" class="fnanchor">[140]</a></p> - -</div> - -<p>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 <i>Lex Parliamentaria</i>. 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.</p> - -<p>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 <i>as such</i> had small powers; that he could -do very little more than put the question and direct<span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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 <i>to preside</i>, -unless some other function be superadded by the -National Constitution or the rules of the body.</p> - -<p>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 <i>not a stranger</i>, -therefore he hath a voice.” But Sir Walter Raleigh replied, -that the Speaker “was foreclosed of his voice <i>by -taking that place</i>.”<a name="FNanchor_141_141" id="FNanchor_141_141"></a><a href="#Footnote_141_141" class="fnanchor">[141]</a> The latter opinion, which has <span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span>been -since overruled, attests the disposition at that early day -to limit his powers.</p> - -<p>Cushing, in his elaborate work, brings together numerous -illustrations, and gives the essence:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_142_142" id="FNanchor_142_142"></a><a href="#Footnote_142_142" class="fnanchor">[142]</a></p> - -<p>“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; <i>that is to say, he is excluded from submitting -propositions to the assembly, from participating in its deliberations, -and from voting</i>.”<a name="FNanchor_143_143" id="FNanchor_143_143"></a><a href="#Footnote_143_143" class="fnanchor">[143]</a></p> - -</div> - -<p>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.”<a name="FNanchor_144_144" id="FNanchor_144_144"></a><a href="#Footnote_144_144" class="fnanchor">[144]</a> 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, <i>in this place</i>, but as the House is -pleased to direct me, whose servant I am <i>here</i>.”<span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span><a name="FNanchor_145_145" id="FNanchor_145_145"></a><a href="#Footnote_145_145" class="fnanchor">[145]</a> 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.”<a name="FNanchor_146_146" id="FNanchor_146_146"></a><a href="#Footnote_146_146" class="fnanchor">[146]</a> 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.</p> - -<p>Passing from the Speaker to the Clerk, we find still -another illustration, showing that the word <i>preside</i>, 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.</p> - -<div class="blockquote"> - -<p>“Under the authority contained in the Manual, and the -usage of the House, the Clerk <i>presided</i> 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.”<a name="FNanchor_147_147" id="FNanchor_147_147"></a><a href="#Footnote_147_147" class="fnanchor">[147]</a></p> - -</div> - -<p>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:—</p> -<p><span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span></p> -<div class="blockquote"> - -<p>“During the three last-named periods, while the House -was without a Speaker, the Clerk <i>presided</i> 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.”<a name="FNanchor_148_148" id="FNanchor_148_148"></a><a href="#Footnote_148_148" class="fnanchor">[148]</a></p> - -</div> - -<p>This limited power of the Clerk is described in a -marginal note of the author,—“Clerk <i>presides</i>.” The -author then proceeds:—</p> - -<div class="blockquote"> - -<p>“To relieve future Houses of some of the difficulties which -grew out of the very limited power of the Clerk as <i>a presiding -officer</i>, 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.’”<a name="FNanchor_149_149" id="FNanchor_149_149"></a><a href="#Footnote_149_149" class="fnanchor">[149]</a></p> - -</div> - -<p>From this impartial statement we have a practical -definition of the word <i>preside</i>. 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 <i>presiding</i> Clerk could rule or -vote. Can a <i>presiding</i> Chief Justice?</p> - -<p>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 <i>sole</i> power to try all impeachments,” and, still further, -that conviction can be only by “the concurrence -of two thirds of <i>the members present</i>.” These two provisions -accord powers to <i>the Senate solely</i>. 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 tria<span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span>l. 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 -<i>a trier</i>, and, if he votes on the final judgment, he -makes himself <i>a member of the Senate</i>. But he cannot -be either.</p> - -<p>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.”<a name="FNanchor_150_150" id="FNanchor_150_150"></a><a href="#Footnote_150_150" class="fnanchor">[150]</a> This statement reveals still further how inconsistent -is the claim of the presiding Chief Justice -with the positive requirement of the National Constitution.</p> - -<p>I would not keep out of sight any consideration<span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span> -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 <i>try</i> and <i>vote</i> is confined to <i>Senators</i>. According -to the undoubted rule of interpretation, <i>Ut res -magis valeat quam pereat</i>, 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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span> -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 <i>try</i> impeachments; -secondly, when it is declared that only <i>members</i> shall -convict; and, thirdly, when it is declared that the Chief -Justice shall <i>preside</i>, 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.</p> - -<p>There is a familiar saying of jurisprudence, that it -is the part of a good judge to amplify his jurisdiction: -<i>Boni judicis est ampliare jurisdictionem</i>. 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 <i>agent</i>, acting -always in presence of his <i>principal</i>. 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.</p> - -<p>Thus, w<span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span>hich 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 <i>to try</i>, but only the powers -of a presiding officer not a member of the body. According -to the injunction of the Constitution, he can -<i>preside</i>, 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 -<i>try</i>, 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<span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span> -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.</p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span></p> - -<h2><a name="EXPULSION_OF_THE_PRESIDENT" id="EXPULSION_OF_THE_PRESIDENT"></a>EXPULSION OF THE PRESIDENT.</h2> - -<p class="plabeln"><span class="smcap">Opinion in the Case of the Impeachment of Andrew Johnson, -President of the United States, May 26, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<p class="dropcap">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.</p> - -<h3>BATTLE WITH SLAVERY.</h3> - -<p>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 promiscu<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span>ous -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span> -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.</p> - -<h3>IMPEACHMENT A POLITICAL PROCEEDING.</h3> - -<p>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 <i>Nisi Prius</i>, 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.</p> - -<p>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<span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span> -plausible assumption has come that fine-spun thread -which lawyers know so well how to weave.</p> - -<p>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.</p> - -<p>By the National Constitution it is expressly provided -that “<i>the judicial power</i> 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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span></p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span> -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;<a name="FNanchor_151_151" id="FNanchor_151_151"></a><a href="#Footnote_151_151" class="fnanchor">[151]</a> -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 <i>to secure -the State against gross official misdemeanors</i>; it touches -neither his person nor his property, <i>but simply divests -him of his political capacity</i>.”<a name="FNanchor_152_152" id="FNanchor_152_152"></a><a href="#Footnote_152_152" class="fnanchor">[152]</a> 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.</p> - -<p>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<span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span> -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 <i>expulsion -from office</i>. The present question is, Shall Andrew -Johnson, on the case before the Senate, be expelled -from office?</p> - -<p>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.”<a name="FNanchor_153_153" id="FNanchor_153_153"></a><a href="#Footnote_153_153" class="fnanchor">[153]</a> At -least one Senator has been expelled on simple motion.<a name="FNanchor_154_154" id="FNanchor_154_154"></a><a href="#Footnote_154_154" class="fnanchor">[154]</a> -Others have been expelled without any formal allegati<span class="pagenum"><a name="Page_141" id="Page_141">[Pg 141]</a></span>on -or formal proof.</p> - -<p>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. <i>Salus populi suprema lex.</i> The proceedings -in each case must be in subordination to this rule.</p> - -<p>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 <i>other -high crimes and misdemeanors</i>.” 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.</p> - -<h3>POLITICAL OFFENCES ARE IMPEACHABLE OFFENCES.</h3> - -<p>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<span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span> -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.”</p> - -<p>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.</p> - -<p>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, <i>expulsion from office</i> is “on impeachment -for and conviction of treason, bribery, <i>or other high -crimes and misdemeanors</i>”; 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 th<span class="pagenum"><a name="Page_143" id="Page_143">[Pg 143]</a></span>e -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<a name="FNanchor_155_155" id="FNanchor_155_155"></a><a href="#Footnote_155_155" class="fnanchor">[155]</a> 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 <i>where any magistrate has -attempted to subvert the fundamental law or introduce -arbitrary power</i>,—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.</p> - -<p>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<span class="pagenum"><a name="Page_144" id="Page_144">[Pg 144]</a></span> -has ever explained the character of impeachment:—</p> - -<div class="blockquote"> - -<p>“It is by this tribunal that statesmen who abuse their -power are tried before statesmen and by statesmen, upon -solid principles of State morality. <i>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.</i> 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.”<a name="FNanchor_156_156" id="FNanchor_156_156"></a><a href="#Footnote_156_156" class="fnanchor">[156]</a></p> - -</div> - -<p>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.<a name="FNanchor_157_157" id="FNanchor_157_157"></a><a href="#Footnote_157_157" class="fnanchor">[157]</a> Therefore the words of Burke are as authoritative -as beautiful.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“A minister is answerable for <i>the justice, the honesty, the -utility of all measures</i> emanating from the Crown, <i>as well as -for their legality</i>; 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.”<a name="FNanchor_158_158" id="FNanchor_158_158"></a><a href="#Footnote_158_158" class="fnanchor">[158]</a></p> - -</div> - -<p>Th<span class="pagenum"><a name="Page_145" id="Page_145">[Pg 145]</a></span>us, 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.</p> - -<p>Our best American lights are similar, beginning with -the “Federalist” itself, which teaches that impeachment -is for “those offences which proceed from <i>the misconduct -of public men</i>, 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 <i>political</i>, -as they relate chiefly to injuries done immediately -to the society itself.”<a name="FNanchor_159_159" id="FNanchor_159_159"></a><a href="#Footnote_159_159" class="fnanchor">[159]</a> 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 -<i>political offences</i>.”<a name="FNanchor_160_160" id="FNanchor_160_160"></a><a href="#Footnote_160_160" class="fnanchor">[160]</a> 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<span class="pagenum"><a name="Page_146" id="Page_146">[Pg 146]</a></span> -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 <i>political -office</i>”; 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 <i>political</i> character,” and that, strictly speaking, “the -power partakes of a <i>political</i> character.”<a name="FNanchor_161_161" id="FNanchor_161_161"></a><a href="#Footnote_161_161" class="fnanchor">[161]</a> 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 <i>whether cause exists -for removing a public officer from office</i>”; 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, <i>or<span class="pagenum"><a name="Page_147" id="Page_147">[Pg 147]</a></span> -maladministration, become unfit to exercise the office</i>.”<a name="FNanchor_162_162" id="FNanchor_162_162"></a><a href="#Footnote_162_162" class="fnanchor">[162]</a> -Here again the power of the Senate over Andrew Johnson -is vindicated so as to make all doubt or question -absurd.</p> - -<p>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 <i>the wanton removal of meritorious officers</i> would -subject the President to impeachment and removal from -his own high trust.”<a name="FNanchor_163_163" id="FNanchor_163_163"></a><a href="#Footnote_163_163" class="fnanchor">[163]</a> But Andrew Johnson, standing -before a crowd, said of meritorious officers that he -would “kick them out,”<a name="FNanchor_164_164" id="FNanchor_164_164"></a><a href="#Footnote_164_164" class="fnanchor">[164]</a> 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!</p> - -<p>From all these conc<span class="pagenum"><a name="Page_148" id="Page_148">[Pg 148]</a></span>urring 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.</p> - -<h3>UNTECHNICAL FORM OF PROCEDURE.</h3> - -<p>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.</p> - -<p>An impeachment is not a technical proceeding, as -at <i>Nisi Prius</i> 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.</p> - -<p><span class="pagenum"><a name="Page_149" id="Page_149">[Pg 149]</a></span></p> - -<p>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.</p> - -<p>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.</p> - -<div class="blockquote"> - -<p>“In this Parliament [in the 11th year of King Richard -the Second, <span class="smcapuc">A. D.</span> 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.”<a name="FNanchor_165_165" id="FNanchor_165_165"></a><a href="#Footnote_165_165" class="fnanchor">[165]</a></p> - -</div> - -<p>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<span class="pagenum"><a name="Page_150" id="Page_150">[Pg 150]</a></span> -Lords … ought not to be applied to the impeachments -of commoners as well as peers.”<a name="FNanchor_166_166" id="FNanchor_166_166"></a><a href="#Footnote_166_166" class="fnanchor">[166]</a> 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 <i>a matter of Parliament</i>, because it is -not to be decided by the common laws, but <i>secundum -legem et consuetudinem Parliamenti</i>”; and he adds, “So -the judges in divers Parliaments have confessed.”<a name="FNanchor_167_167" id="FNanchor_167_167"></a><a href="#Footnote_167_167" class="fnanchor">[167]</a></p> - -<p>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.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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 <i>minute exactness</i> which is required in -criminal proceedings in Westminster Hall.”<a name="FNanchor_168_168" id="FNanchor_168_168"></a><a href="#Footnote_168_168" class="fnanchor">[168]</a></p> - -</div> - -<p>Th<span class="pagenum"><a name="Page_151" id="Page_151">[Pg 151]</a></span>us 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. <span class="smcap">Van Winkle</span>], who makes -technicality a rule and essential condition.</p> - -<p>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.</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_169_169" id="FNanchor_169_169"></a><a href="#Footnote_169_169" class="fnanchor">[169]</a></p> - -</div> - -<p>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 <i>special</i> charge; and -therefore, as they have taken care in their House, upon -protestation, that this shall be no prejudice to bind -them from proceeding <i>upon generals</i> in other cases, and -that they are not to be ruled by proceedings in other<span class="pagenum"><a name="Page_152" id="Page_152">[Pg 152]</a></span> -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.”<a name="FNanchor_170_170" id="FNanchor_170_170"></a><a href="#Footnote_170_170" class="fnanchor">[170]</a> In -this broad language is a just rule applicable to the present -case.</p> - -<p>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 <i>seriatim</i>, -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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_171_171" id="FNanchor_171_171"></a><a href="#Footnote_171_171" class="fnanchor">[171]</a></p> - -</div> - -<p>The respondent, being found guilty, moved in arrest -of judgment:—</p> - -<div class="blockquote"> - -<p>“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<span class="pagenum"><a name="Page_153" id="Page_153">[Pg 153]</a></span> -or informations.”<a name="FNanchor_172_172" id="FNanchor_172_172"></a><a href="#Footnote_172_172" class="fnanchor">[172]</a></p> - -</div> - -<p>The Lord Chancellor, denying the motion, communicated -to the respondent the resolution already adopted -after full debate and consideration, and added:—</p> - -<div class="blockquote"> - -<p>“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 <i>expressly specified</i> 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.”<a name="FNanchor_173_173" id="FNanchor_173_173"></a><a href="#Footnote_173_173" class="fnanchor">[173]</a></p> - -</div> - -<p>And so the judgment was allowed to stand.</p> - -<p>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 <i>verbatim</i>. The Report already cited presents -the practical conclusion:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_174_174" id="FNanchor_174_174"></a><a href="#Footnote_174_174" class="fnanchor">[174]</a></p> - -</div> - -<p>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<span class="pagenum"><a name="Page_154" id="Page_154">[Pg 154]</a></span> -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.”<a name="FNanchor_175_175" id="FNanchor_175_175"></a><a href="#Footnote_175_175" class="fnanchor">[175]</a> 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:—</p> - -<div class="blockquote"> - -<p>“Those learned gentlemen seem to forget <i>in what court -they are</i>. 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.”<a name="FNanchor_176_176" id="FNanchor_176_176"></a><a href="#Footnote_176_176" class="fnanchor">[176]</a></p> - -</div> - -<p>The Attorney-General supported Walpole:—</p> - -<div class="blockquote"> - -<p>“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<span class="pagenum"><a name="Page_155" id="Page_155">[Pg 155]</a></span> -that the forms of those courts had any influence on the proceedings -of Parliament.”<a name="FNanchor_177_177" id="FNanchor_177_177"></a><a href="#Footnote_177_177" class="fnanchor">[177]</a></p> - -</div> - -<p>Cowper, a brother of the Lord Chancellor of that -name, said:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_178_178" id="FNanchor_178_178"></a><a href="#Footnote_178_178" class="fnanchor">[178]</a></p> - -</div> - -<p>Sir William Thomson followed:—</p> - -<div class="blockquote"> - -<p>“The precedents in impeachments are not so <i>nice and precise -in form</i> as in the inferior courts.”<a name="FNanchor_179_179" id="FNanchor_179_179"></a><a href="#Footnote_179_179" class="fnanchor">[179]</a></p> - -</div> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“That the impeachment is sufficiently certain in point -of time, according to the forms of impeachments in Parliament.”<a name="FNanchor_180_180" id="FNanchor_180_180"></a><a href="#Footnote_180_180" class="fnanchor">[180]</a></p> - -</div> - -<p>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 t<span class="pagenum"><a name="Page_156" id="Page_156">[Pg 156]</a></span>his -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.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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!”<a name="FNanchor_181_181" id="FNanchor_181_181"></a><a href="#Footnote_181_181" class="fnanchor">[181]</a></p> - -</div> - -<p>Never was there a case where this principle was -more applicable than now.</p> - -<p>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 <span class="pagenum"><a name="Page_157" id="Page_157">[Pg 157]</a></span>a guide -now:—</p> - -<div class="blockquote"> - -<p>“<i>This can never be tied down by such strict rules</i>, 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.”<a name="FNanchor_182_182" id="FNanchor_182_182"></a><a href="#Footnote_182_182" class="fnanchor">[182]</a></p> - -</div> - -<p>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.</p> - -<h3>RULES OF EVIDENCE.</h3> - -<p>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<span class="pagenum"><a name="Page_158" id="Page_158">[Pg 158]</a></span> -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.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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, <i>or is founded on -the immutable principles of substantial justice</i>, without which, -your Committee readily agrees, no practice in any court, high -or low, is proper or fit to be maintained.”<a name="FNanchor_183_183" id="FNanchor_183_183"></a><a href="#Footnote_183_183" class="fnanchor">[183]</a></p> - -</div> - -<p>The true rule was enunciated:—</p> - -<div class="blockquote"> - -<p>“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 -<i>to enlarge, and not to contract, the rules of evidence</i>, according<span class="pagenum"><a name="Page_159" id="Page_159">[Pg 159]</a></span> -to the nature and difficulties of the case.”<a name="FNanchor_184_184" id="FNanchor_184_184"></a><a href="#Footnote_184_184" class="fnanchor">[184]</a></p> - -</div> - -<p>Its point appears in a single sentence:—</p> - -<div class="blockquote"> - -<p>“To refuse evidence is to refuse to hear the cause.”<a name="FNanchor_185_185" id="FNanchor_185_185"></a><a href="#Footnote_185_185" class="fnanchor">[185]</a></p> - -</div> - -<p>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.”<a name="FNanchor_186_186" id="FNanchor_186_186"></a><a href="#Footnote_186_186" class="fnanchor">[186]</a></p> - -<p>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 <i>one</i> general rule of evidence,—the -best that the nature of the case will admit.”<a name="FNanchor_187_187" id="FNanchor_187_187"></a><a href="#Footnote_187_187" class="fnanchor">[187]</a> -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.”<a name="FNanchor_188_188" id="FNanchor_188_188"></a><a href="#Footnote_188_188" class="fnanchor">[188]</a> 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<span class="pagenum"><a name="Page_160" id="Page_160">[Pg 160]</a></span> -an individual, the other has injured all. Here again -I quote the Report:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_189_189" id="FNanchor_189_189"></a><a href="#Footnote_189_189" class="fnanchor">[189]</a></p> - -</div> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_161" id="Page_161">[Pg 161]</a></span> -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,—</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse indent8">“Or at least so prove it,</div> -<div class="verse">That the probation bear no hinge nor loop</div> -<div class="verse">To hang a doubt on.”</div> -</div> -</div> - -<p class="noindent">Anything short of this is to trifle with the Republic and -its transcendent fortunes.</p> - -<p>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?</p> - -<p>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: <i>Impius -et crudelis judicandus est qui Libertati non favet</i>.<a name="FNanchor_190_190" id="FNanchor_190_190"></a><a href="#Footnote_190_190" class="fnanchor">[190]</a> 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.”<a name="FNanchor_191_191" id="FNanchor_191_191"></a><a href="#Footnote_191_191" class="fnanchor">[191]</a> 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<span class="pagenum"><a name="Page_162" id="Page_162">[Pg 162]</a></span> -name of the law, “catch at anything” to save the Republic.</p> - -<p>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; -<i>also whatever ought to be generally known within the -limits of the jurisdiction, including the history of the -country</i>. 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.”<a name="FNanchor_192_192" id="FNanchor_192_192"></a><a href="#Footnote_192_192" class="fnanchor">[192]</a></p> - -<p>If this be the rule of courts, <i>a fortiori</i> 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<span class="pagenum"><a name="Page_163" id="Page_163">[Pg 163]</a></span> -a gate opened by the sages of the law, and standing -open always, to the end that justice may not fail.</p> - -<p>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.</p> - -<p>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 <i>intent</i> by which he was -animated. If these latter were alone, without connecti<span class="pagenum"><a name="Page_164" id="Page_164">[Pg 164]</a></span>on -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.</p> - -<h3>OUTLINE OF TRANSGRESSIONS.</h3> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_165" id="Page_165">[Pg 165]</a></span> 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;<a name="FNanchor_193_193" id="FNanchor_193_193"></a><a href="#Footnote_193_193" class="fnanchor">[193]</a> -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. <span class="pagenum"><a name="Page_166" id="Page_166">[Pg 166]</a></span>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.</p> - -<p>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 <i>subject to the decision of Congress</i>.”<a name="FNanchor_194_194" id="FNanchor_194_194"></a><a href="#Footnote_194_194" class="fnanchor">[194]</a> 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 nullifica<span class="pagenum"><a name="Page_167" id="Page_167">[Pg 167]</a></span>tion. -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”;<a name="FNanchor_195_195" id="FNanchor_195_195"></a><a href="#Footnote_195_195" class="fnanchor">[195]</a> 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.</p> - -<p>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.</p> - -<p>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, wer<span class="pagenum"><a name="Page_168" id="Page_168">[Pg 168]</a></span>e 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,—</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">“He let me loose, and cried, Halloo!</div> -<div class="verse">To him alone the praise is due.”<a name="FNanchor_196_196" id="FNanchor_196_196"></a><a href="#Footnote_196_196" class="fnanchor">[196]</a></div> -</div> -</div> - -<p><span class="pagenum"><a name="Page_169" id="Page_169">[Pg 169]</a></span></p> - -<h3>ACCUMULATION OF IMPEACHABLE OFFENCES.</h3> - -<p>This is nothing but the outline, derived from historic -sources <i>which the Senate on this occasion is bound -to recognize</i>. 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,<span class="pagenum"><a name="Page_170" id="Page_170">[Pg 170]</a></span> -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<span class="pagenum"><a name="Page_171" id="Page_171">[Pg 171]</a></span> -fury.</p> - -<p>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.</p> - -<h3>OPEN DEFIANCE OF CONGRESS.</h3> - -<p>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.<a name="FNanchor_197_197" id="FNanchor_197_197"></a><a href="#Footnote_197_197" class="fnanchor">[197]</a> And to prepare -the way for impeachment, by removing scruples of -technicality, its violation was expressly declared a high -misdemeanor.</p> - -<p>The Presiden<span class="pagenum"><a name="Page_172" id="Page_172">[Pg 172]</a></span>t 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 <i>ad interim</i>.</p> - -<h3>IMPEACHMENT AT LAST.</h3> - -<p>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<span class="pagenum"><a name="Page_173" id="Page_173">[Pg 173]</a></span> -receive a letter of license, and impeachment as a remedy -for wrong-doing would be blotted from the Constitution.</p> - -<p>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.</p> - -<p>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.”</p> - -<p><span class="pagenum"><a name="Page_174" id="Page_174">[Pg 174]</a></span></p> - -<h3>ARTICLES OF IMPEACHMENT.</h3> - -<p>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.</p> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_175" id="Page_175">[Pg 175]</a></span></p> - -<h3>TENURE-OF-OFFICE ACT.</h3> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“<i>Provided</i>, 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.”<a name="FNanchor_198_198" id="FNanchor_198_198"></a><a href="#Footnote_198_198" class="fnanchor">[198]</a></p> - -</div> - -<p>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.</p> - -<p>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.</p> - -<p>It is impossible not to confess in ad<span class="pagenum"><a name="Page_176" id="Page_176">[Pg 176]</a></span>vance 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 <i>ad interim</i>; 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 <i>thrice</i>, 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.</p> - -<p>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 constit<span class="pagenum"><a name="Page_177" id="Page_177">[Pg 177]</a></span>utionality -of the statute.</p> - -<h3>ITS APPLICATION TO MR. STANTON.</h3> - -<p>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. <span class="smcap">Sherman</span>], -so often quoted in this proceeding.</p> - -<p>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. <span class="smcap">Williams</span>], 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:—</p> -<p><span class="pagenum"><a name="Page_178" id="Page_178">[Pg 178]</a></span></p> -<div class="blockquote"> - -<p>“In expounding this law, <i>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</i>, 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, <i>and looking, if -necessary, to the public history of the times in which it was -passed</i>.”<a name="FNanchor_199_199" id="FNanchor_199_199"></a><a href="#Footnote_199_199" class="fnanchor">[199]</a></p> - -</div> - -<p>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.</p> - -<p>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,<a name="FNanchor_200_200" id="FNanchor_200_200"></a><a href="#Footnote_200_200" class="fnanchor">[200]</a> 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-o<span class="pagenum"><a name="Page_179" id="Page_179">[Pg 179]</a></span>f-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.”</p> - -<p>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<span class="pagenum"><a name="Page_180" id="Page_180">[Pg 180]</a></span>, -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.</p> - -<p>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.</p> - -<p>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.”<a name="FNanchor_201_201" id="FNanchor_201_201"></a><a href="#Footnote_201_201" class="fnanchor">[201]</a> 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<span class="pagenum"><a name="Page_181" id="Page_181">[Pg 181]</a></span> -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. <span class="smcap">Harlan</span>], 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.</p> - -<p>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.</p> - -<p>1. <i>Every person holding any civil office</i>, by and with -the advice and consent of the Senate, is entitled to hold -such office until a successor is appointed.</p> - -<p>2. If members of the Cabinet, <i>then during the term of -the President by whom they have been appointed</i>, and one -month thereafter, unless sooner removed by consent of -the Senate.</p> - -<p>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.</p> - -<p>As obviously he falls within the sub-class, members -of the Cabinet.</p> - -<p>Here his rights<span class="pagenum"><a name="Page_182" id="Page_182">[Pg 182]</a></span> 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.</p> - -<p>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 <i>ex post facto</i>, 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_183" id="Page_183">[Pg 183]</a></span> -question. This is another absurdity to be rejected.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_184" id="Page_184">[Pg 184]</a></span> -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.</p> - -<h3>SUSPENSION OF MR. STANTON RECOGNIZED HIM AS PROTECTED -BY THE STATUTE.</h3> - -<p>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<span class="pagenum"><a name="Page_185" id="Page_185">[Pg 185]</a></span> -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.</p> - -<p>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.</p> - -<p>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. <span class="smcap">Fessenden</span>], -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 th<span class="pagenum"><a name="Page_186" id="Page_186">[Pg 186]</a></span>e -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_187" id="Page_187">[Pg 187]</a></span></p> - -<h3>SUBSTITUTION OF ADJUTANT-GENERAL THOMAS -AD INTERIM.</h3> - -<p>The case of Mr. Stanton has two branches: first, his -removal, and, secondly, the substitution of Adjutant-General -Thomas as Secretary of War <i>ad interim</i>. 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.</p> - -<p>The offender rests his case on the Act of Congress -of February 13, 1795, which empowers the President, -“in case of <i>vacancy</i> 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.<a name="FNanchor_202_202" id="FNanchor_202_202"></a><a href="#Footnote_202_202" class="fnanchor">[202]</a> 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<span class="pagenum"><a name="Page_188" id="Page_188">[Pg 188]</a></span> testifies -against the offender.</p> - -<p>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,<a name="FNanchor_203_203" id="FNanchor_203_203"></a><a href="#Footnote_203_203" class="fnanchor">[203]</a> 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.</p> - -<p>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 -<i>ad interim</i> 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,<span class="pagenum"><a name="Page_189" id="Page_189">[Pg 189]</a></span> -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.</p> - -<p>Look now at the actual facts, and you will see how -little they come within the reason of an <i>ad interim</i> -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 <i>ad interim</i> 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 <i>ad interim</i>. 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 <i>ad interim</i> appointment he might -obtain possession of the War Department, which was -his end and aim. The <i>ad interim</i> appointment of -General Thomas was, therefore, an attempt to obtai<span class="pagenum"><a name="Page_190" id="Page_190">[Pg 190]</a></span>n -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.</p> - -<p>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 -<i>ad interim</i> in equal derogation of the Acts of Congress -regulating the subject.</p> - -<h3>REMOVAL AND SUBSTITUTION AD INTERIM A VIOLATION -OF THE CONSTITUTION.</h3> - -<p>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.</p> - -<p>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 <span class="pagenum"><a name="Page_191" id="Page_191">[Pg 191]</a></span>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. <i>Cessante ratione legis, cessat ipsa -lex.</i> 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.</p> - -<p>Against th<span class="pagenum"><a name="Page_192" id="Page_192">[Pg 192]</a></span>is 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.<a name="FNanchor_204_204" id="FNanchor_204_204"></a><a href="#Footnote_204_204" class="fnanchor">[204]</a> 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,”<a name="FNanchor_205_205" id="FNanchor_205_205"></a><a href="#Footnote_205_205" class="fnanchor">[205]</a>—thus, in -this individual case, asserting for the Senate a check on -the President; and then in 1866, by a more important<span class="pagenum"><a name="Page_193" id="Page_193">[Pg 193]</a></span> -measure, being the provision in the Army Appropriation -Act,<a name="FNanchor_206_206" id="FNanchor_206_206"></a><a href="#Footnote_206_206" class="fnanchor">[206]</a> 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.</p> - -<p>Now mark the consequences. Originally, in 1789, -there was a Congressional construction which in effect -made the National Constitution read,—</p> - -<div class="blockquote"> - -<p class="noindent">“The President <i>shall have</i> the power of removal.”</p> - -</div> - -<p class="noindent">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,—</p> - -<p><span class="pagenum"><a name="Page_194" id="Page_194">[Pg 194]</a></span></p> - -<div class="blockquote"> - -<p class="noindent">“The President <i>shall not have</i> the power of removal.”</p> - -</div> - -<p class="noindent">It follows, then, that in removing Mr. Stanton the President -violated the National Constitution as now construed.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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 Congr<span class="pagenum"><a name="Page_195" id="Page_195">[Pg 195]</a></span>essional -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.</p> - -<p>And so, too, we must conclude, that, in the substitution -of Lorenzo Thomas as Secretary of War <i>ad interim</i>, -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.</p> - -<p>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<span class="pagenum"><a name="Page_196" id="Page_196">[Pg 196]</a></span> -against Charles the First of England, that, “being admitted -King of England, and therein trusted with a -limited power <i>to govern by and according to the laws -of the land, and</i> <span class="smcapuc">NOT OTHERWISE</span>,” he nevertheless undertook -“<i>to rule according to his will</i>, and to overthrow -the rights and liberties of the people.”<a name="FNanchor_207_207" id="FNanchor_207_207"></a><a href="#Footnote_207_207" class="fnanchor">[207]</a> These very -words now declare the crime of Andrew Johnson.</p> - -<h3>THE APOLOGIES.</h3> - -<p>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.</p> - -<h4>THE APOLOGY OF GOOD INTENTIONS.</h4> - -<p>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 apologist<span class="pagenum"><a name="Page_197" id="Page_197">[Pg 197]</a></span>s -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.</p> - -<p>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.</p> - -<p>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.<span class="pagenum"><a name="Page_198" id="Page_198">[Pg 198]</a></span> -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.</p> - -<p>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 <i>Nisi Prius</i>; it will -not do in the Senate.</p> - -<p>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,<span class="pagenum"><a name="Page_199" id="Page_199">[Pg 199]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_200" id="Page_200">[Pg 200]</a></span> 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.</p> - -<h4>THE MOOT-COURT APOLOGY.</h4> - -<p>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.</p> - -<p>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.”<a name="FNanchor_208_208" id="FNanchor_208_208"></a><a href="#Footnote_208_208" class="fnanchor">[208]</a> 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<span class="pagenum"><a name="Page_201" id="Page_201">[Pg 201]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_202" id="Page_202">[Pg 202]</a></span> -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?</p> - -<p>Look a little further, and the reason of this indifference -becomes apparent. The old writ of <i>Quo Warranto</i> -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 <i>Wallace</i> v. <i>Anderson</i><a name="FNanchor_209_209" id="FNanchor_209_209"></a><a href="#Footnote_209_209" class="fnanchor">[209]</a> -would prevent resort to a <i>Quo Warranto</i> on his part, -while the earlier case of <i>Marbury</i> v. <i>Madison</i><a name="FNanchor_210_210" id="FNanchor_210_210"></a><a href="#Footnote_210_210" class="fnanchor">[210]</a> would -shut him out from a <i>Mandamus</i>. The apologists have -not suggested any other remedy. It is clear, therefore, -that Mr. Stanton’s possession of the office was a -<i>sine qua non</i> to a case in the Supreme Court, and -that this could be only by <i>Quo Warranto</i>. 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<span class="pagenum"><a name="Page_203" id="Page_203">[Pg 203]</a></span> -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.</p> - -<p>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 <i>Habeas Corpus</i> 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.</p> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_204" id="Page_204">[Pg 204]</a></span></p> - -<h4>THE APOLOGY OF PREROGATIVE.</h4> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_205" id="Page_205">[Pg 205]</a></span> -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.</p> - -<p>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 lan<span class="pagenum"><a name="Page_206" id="Page_206">[Pg 206]</a></span>d, -and the people will not allow its axiomatic requirements -to be set aside. An illustration outside the -limits of reason is of no value.</p> - -<p>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”?</p> - -<p>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,—<i>Omnia rite acta præsumuntur</i>. 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<span class="pagenum"><a name="Page_207" id="Page_207">[Pg 207]</a></span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_208" id="Page_208">[Pg 208]</a></span></p> - -<p>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.</p> - -<h3>TECHNICALITIES AND QUIBBLES.</h3> - -<p>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.”</p> - -<p>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. <span class="smcap">Van -Winkle</span>], which, from beginning to end, treats this impeachment -as if it were a prosecution for sheep-stealing<span class="pagenum"><a name="Page_209" id="Page_209">[Pg 209]</a></span> -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.</p> - -<p>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,<span class="pagenum"><a name="Page_210" id="Page_210">[Pg 210]</a></span> -as Greenwich was represented in Parliament, therefore -the Colonies were represented there.<a name="FNanchor_211_211" id="FNanchor_211_211"></a><a href="#Footnote_211_211" class="fnanchor">[211]</a> 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,<a name="FNanchor_212_212" id="FNanchor_212_212"></a><a href="#Footnote_212_212" class="fnanchor">[212]</a> 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?</p> - -<p>There is another invention, which has in its support -some of the ablest of the apologists, like the -Senator from Iowa [Mr. <span class="smcap">Grimes</span>], the Senator from -Maine [Mr. <span class="smcap">Fessenden</span>], and the Senator from Illinois -[Mr. <span class="smcap">Trumbull</span>]. 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 b<span class="pagenum"><a name="Page_211" id="Page_211">[Pg 211]</a></span>e -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.</p> - -<p>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 <i>legal</i> -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.</p> - -<p>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<span class="pagenum"><a name="Page_212" id="Page_212">[Pg 212]</a></span> -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”?<a name="FNanchor_213_213" id="FNanchor_213_213"></a><a href="#Footnote_213_213" class="fnanchor">[213]</a> 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 <i>ac etiam</i> 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.”<a name="FNanchor_214_214" id="FNanchor_214_214"></a><a href="#Footnote_214_214" class="fnanchor">[214]</a> -These generous fictions for the sake of justice must -not be confounded with the devices by which justice -is defeated.</p> - -<p>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. <span class="smcap">Groesbeck</span>,] in a speech -which showed how much feeling and talent could be -given to a wrong side, exclaimed:—</p> - -<p><span class="pagenum"><a name="Page_213" id="Page_213">[Pg 213]</a></span></p> - -<div class="blockquote"> - -<p>“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 <i>ad interim</i> -appointment for a single day.”</p> - -</div> - -<p class="noindent">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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_214" id="Page_214">[Pg 214]</a></span> -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.”<a name="FNanchor_215_215" id="FNanchor_215_215"></a><a href="#Footnote_215_215" class="fnanchor">[215]</a> -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.<span class="pagenum"><a name="Page_215" id="Page_215">[Pg 215]</a></span> Anything -short of this is the sacrifice of justice.</p> - -<p>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.”<a name="FNanchor_216_216" id="FNanchor_216_216"></a><a href="#Footnote_216_216" class="fnanchor">[216]</a> 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.</p> - -<p>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<span class="pagenum"><a name="Page_216" id="Page_216">[Pg 216]</a></span> -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<span class="pagenum"><a name="Page_217" id="Page_217">[Pg 217]</a></span> -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?</p> - -<h3>GUILTY ON ALL THE ARTICLES.</h3> - -<p>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.”</p> - -<p>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 <i>ad interim</i> was without -authority of law, and under the circumstances a -violation of the National Constitution. Accordingly -the third Article is sustained.</p> - -<p>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 conspirato<span class="pagenum"><a name="Page_218" id="Page_218">[Pg 218]</a></span>rs, 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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>Then come the scandalous speeches, proved as set -forth in the Articles, so that even the Senator from -West Virginia [Mr. <span class="smcap">Van Winkle</span>] must admit that -evidence and pleading concur. Here is no question -of form. To my mind this is one of the strongest Articl<span class="pagenum"><a name="Page_219" id="Page_219">[Pg 219]</a></span>es. -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.</p> - -<p>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<span class="pagenum"><a name="Page_220" id="Page_220">[Pg 220]</a></span> -[Mr. <span class="smcap">Fessenden</span>], 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!</p> - -<p>The eleventh Article is the most comprehensive. In -some respects it is an <i>omnium gatherum</i>. 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<span class="pagenum"><a name="Page_221" id="Page_221">[Pg 221]</a></span> -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.</p> - -<h3>CONCLUSION.</h3> - -<p>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<span class="pagenum"><a name="Page_222" id="Page_222">[Pg 222]</a></span> -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.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_223" id="Page_223">[Pg 223]</a></span> -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.</p> - -<p>The people cannot witness wi<span class="pagenum"><a name="Page_224" id="Page_224">[Pg 224]</a></span>th 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.”<a name="FNanchor_217_217" id="FNanchor_217_217"></a><a href="#Footnote_217_217" class="fnanchor">[217]</a> 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!</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_225" id="Page_225">[Pg 225]</a></span></p> - -<p>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!</p> - -<p>Alas for that peace and reconciliation, the longing of -good men, now postponed!</p> - -<p>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?</p> - -<p>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!</p> - -<p>Alas for the hearts of the people, bruised to unutterable -sadness, as they witness a cruel tyranny installed -once more!</p> - -<p>Alas for that race so long oppressed, but at last redeemed -from bondage, now plunged back into another -hell of torment!</p> - -<p>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!</p> - -<p>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,<span class="pagenum"><a name="Page_226" id="Page_226">[Pg 226]</a></span> -and in the goodness of an overruling Providence, -that refuge and protection which the Senate refuses to -give!</p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_227" id="Page_227">[Pg 227]</a></span></p> - -<h2><a name="CONSTITUTIONAL_RESPONSIBILITY_OF_SENATORS_FOR" id="CONSTITUTIONAL_RESPONSIBILITY_OF_SENATORS_FOR"></a>CONSTITUTIONAL RESPONSIBILITY OF SENATORS FOR -THEIR VOTES IN CASES OF IMPEACHMENT.</h2> - -<p class="plabeln"><span class="smcap">Resolutions in the Senate, June 3, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>June 3d, Mr. Sumner submitted the following Resolutions, which -were read and ordered to be printed.</p> - -</div> - -<p class="dropcap">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,—</p> - -<p>1. <i>Resolved</i>, 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<span class="pagenum"><a name="Page_228" id="Page_228">[Pg 228]</a></span> -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.</p> - -<p>2. <i>Resolved</i>, 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;<span class="pagenum"><a name="Page_229" id="Page_229">[Pg 229]</a></span> -nor can any Senator, on such an occasion, claim immunity -from that just accountability which the representative -at all times owes to his constituents.</p> - -<p>3. <i>Resolved</i>, 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.</p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_230" id="Page_230">[Pg 230]</a></span></p> - -<h2><a name="VALIDITY_AND_NECESSITY_OF_FUNDAMENTAL" id="VALIDITY_AND_NECESSITY_OF_FUNDAMENTAL"></a>VALIDITY AND NECESSITY OF FUNDAMENTAL -CONDITIONS ON STATES.</h2> - -<p class="plabeln"><span class="smcap">Speech in the Senate, June 10, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>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:—</p> - -</div> - -<p class="dropcap">MR. PRESIDENT,—What I have to say to-day -will be confined to a single topic. I shall speak -of <i>the validity and necessity of fundamental conditions -on the admission of States into the body of the Nation</i>,—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.</p> - -<p>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<span class="pagenum"><a name="Page_231" id="Page_231">[Pg 231]</a></span> -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.</p> - -<p>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 <span class="smcapuc">FOREVER</span> <i>prohibited</i>.”<a name="FNanchor_218_218" id="FNanchor_218_218"></a><a href="#Footnote_218_218" class="fnanchor">[218]</a> -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 <i>forever</i>. 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.</p> - -<p>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 e<span class="pagenum"><a name="Page_232" id="Page_232">[Pg 232]</a></span>nduring -character:—</p> - -<div class="blockquote"> - -<p>“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. -<i>It laid the interdict against personal servitude in original -compact, not only deeper than all local law, but deeper also -than all local constitutions.</i>”<a name="FNanchor_219_219" id="FNanchor_219_219"></a><a href="#Footnote_219_219" class="fnanchor">[219]</a></p> - -</div> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“We see its consequences at this moment; and we shall -never cease to see them, perhaps, while the Ohio shall flow. -<i>It was a great and salutary measure of prevention.</i>”<a name="FNanchor_220_220" id="FNanchor_220_220"></a><a href="#Footnote_220_220" class="fnanchor">[220]</a></p> - -</div> - -<p>In these last words the value of such a law is declared. -It is for <i>prevention</i>, 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.</p> - -<p>Therefore, on the authority of Mr. Webster, in ha<span class="pagenum"><a name="Page_233" id="Page_233">[Pg 233]</a></span>rmony -with reason also, do I say, that this original -condition was not only perpetual in character, but beneficent -also. It was beneficence in perpetuity.</p> - -<p>Mr. Chase, in his admirable argument before the Supreme -Court of the United States, in the <i>Vanzandt</i> 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:—</p> - -<div class="blockquote"> - -<p>“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 <i>the perpetual -maintenance of the genuine principles of American Liberty, -declared to be incompatible with Slavery</i>; and that these -principles might be inviolably maintained, they were made -<i>the articles of a solemn covenant</i> 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 <i>compact, bound -by its perpetual obligations</i>, 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. <i>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.</i>”<a name="FNanchor_221_221" id="FNanchor_221_221"></a><a href="#Footnote_221_221" class="fnanchor">[221]</a></p> - -</div> - -<p>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 <i>the perpetual m<span class="pagenum"><a name="Page_234" id="Page_234">[Pg 234]</a></span>aintenance -of the genuine principles of American Liberty</i>. In -form it is a compact, unalterable except by the consent -of the parties, and therefore <i>forever</i>.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_235" id="Page_235">[Pg 235]</a></span> -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.</p> - -<p>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 <i>perpetuity</i> 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<span class="pagenum"><a name="Page_236" id="Page_236">[Pg 236]</a></span> -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 <i>forever</i>. A territorial existence terminating -in State Rights is a short-lived <i>forever</i>. Only -by recognizing the power of the Nation over the States -formed out of the Territory can this <i>forever</i> have a -meaning above the prattle of childhood or the vaunt -of Bombastes.</p> - -<p>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. <i>But there can be no State -Rights against Human Rights.</i> Because a State, constituting -part of a Nation dedicated to Human Rights, -may govern itself and supply the machinery of local -self-government, <i>it does not follow that<span class="pagenum"><a name="Page_237" id="Page_237">[Pg 237]</a></span> such a State may -deny Human Rights within its borders</i>. 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.</p> - -<p>The song of State Rights has for its constant refrain -the asserted <i>Equality of the States</i>. 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, <i>without its consent</i>, shall be deprived of -its <i>equal suffrage</i> 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, -<i>with its consent</i>, 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.<span class="pagenum"><a name="Page_238" id="Page_238">[Pg 238]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_239" id="Page_239">[Pg 239]</a></span> -“that the equality of suffrage established by the -Articles of Confederation ought not to prevail in the -<i>National</i> Legislature.”<a name="FNanchor_222_222" id="FNanchor_222_222"></a><a href="#Footnote_222_222" class="fnanchor">[222]</a> 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.”<a name="FNanchor_223_223" id="FNanchor_223_223"></a><a href="#Footnote_223_223" class="fnanchor">[223]</a> 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 -<i>National</i> Government that it could not be dispensed -with.”<a name="FNanchor_224_224" id="FNanchor_224_224"></a><a href="#Footnote_224_224" class="fnanchor">[224]</a> Mr. Madison followed, saying, very justly, that, -“whatever reason might have existed for the equality of -suffrage when the Union was a Federal one <i>among sovereign -States</i>, it must cease when a <i>National</i> government -should be put into the place.”<a name="FNanchor_225_225" id="FNanchor_225_225"></a><a href="#Footnote_225_225" class="fnanchor">[225]</a> 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.”<a name="FNanchor_226_226" id="FNanchor_226_226"></a><a href="#Footnote_226_226" class="fnanchor">[226]</a> 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.”<a name="FNanchor_227_227" id="FNanchor_227_227"></a><a href="#Footnote_227_227" class="fnanchor">[227]</a> -Against these overwhelming words of Madison, Morris,<span class="pagenum"><a name="Page_240" id="Page_240">[Pg 240]</a></span> -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”;<a name="FNanchor_228_228" id="FNanchor_228_228"></a><a href="#Footnote_228_228" class="fnanchor">[228]</a> 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.<a name="FNanchor_229_229" id="FNanchor_229_229"></a><a href="#Footnote_229_229" class="fnanchor">[229]</a> 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.”<a name="FNanchor_230_230" id="FNanchor_230_230"></a><a href="#Footnote_230_230" class="fnanchor">[230]</a> 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.</p> - -<p>This protracted and recurring conflict in the Convention -is compendiously set forth by our great authority, -Judge Story, when he says:—</p> - -<p><span class="pagenum"><a name="Page_241" id="Page_241">[Pg 241]</a></span></p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_231_231" id="FNanchor_231_231"></a><a href="#Footnote_231_231" class="fnanchor">[231]</a></p> - -</div> - -<p>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.</p> - -<p>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 <i>on an equal footing with the original States -in all respects whatever</i>.” Next after the equal suf<span class="pagenum"><a name="Page_242" id="Page_242">[Pg 242]</a></span>frage -in the Senate stands this provision with its talismanic -phrase, <i>equal footing</i>. New States are to be admitted -on an <i>equal footing</i> 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 <i>Habeas Corpus</i>, -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 <i>equal footing</i> -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.</p> - -<p>To all who, borrowing a<span class="pagenum"><a name="Page_243" id="Page_243">[Pg 243]</a></span> 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.</p> - -<p>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<span class="pagenum"><a name="Page_244" id="Page_244">[Pg 244]</a></span> -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.</p> - -<hr class="tb" /> - -<p>The conditions upon new States are of two classes: -<i>first</i>, those that <i>may</i> be required; <i>secondly</i>, those that -<i>must</i> be required.</p> - -<p>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 <i>may</i> -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.</p> - -<p>A fundamental condition in favor of Human Rights -is of that essential character that it <i>must</i> 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.</p> - -<p>The Constitution declares that “the United States -shall guaranty to every State in this Union <i>a republican -form of government</i>.” 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<span class="pagenum"><a name="Page_245" id="Page_245">[Pg 245]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_246" id="Page_246">[Pg 246]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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!</p> - -<p>1. By the Constitution it is provided that “the electors -in each State shall have the <i>qualifications</i> 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 -<i>qualifications</i> of electors, <i>therefore</i> it may deprive a whole -race of equal rights and of participation i<span class="pagenum"><a name="Page_247" id="Page_247">[Pg 247]</a></span>n 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.</p> - -<p>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 rac<span class="pagenum"><a name="Page_248" id="Page_248">[Pg 248]</a></span>e? -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.</p> - -<p>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 <i>regulation</i>, not of <i>disfranchisement</i>. -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:—</p> - -<div class="blockquote"> - -<p>“(1.) <i>That which fits any person or thing for any particular -purpose.</i>”</p> - -<p>“(2.) <i>A particular faculty or endowment, an accomplishment.</i>”</p> - -</div> - -<p class="noindent">According to Johnson, who is the highest authority, it -is thus defined:—</p> - -<div class="blockquote"> - -<p>“(1.) <i>That which makes any person or thing fit for anything.</i>”</p> - -<p><span class="smcap">Example.</span>—“It is in the power of the prince to make -piety and virtue become the fashion, if he would make them -necessary <i>qualifications</i> for preferment.—<span class="smcap">Swift.</span>”</p> - -<p>“(2.) <i>Accomplishment.</i>”</p> - -<p><span class="smcap">Example.</span>—“Good <i>qualifications</i> of mind enable a magistrate -to perform his duty, and tend to create a public esteem -of him.—<span class="smcap">Atterbury.</span>”</p> - -</div> - -<p>By<span class="pagenum"><a name="Page_249" id="Page_249">[Pg 249]</a></span> 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. <i>An insurmountable -condition is not a qualification, but a disfranchisement.</i> -Admit that a State may determine the -“qualifications” of electors, it cannot, under this authority, -arbitrarily exclude a whole race.</p> - -<p>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 <i>all with black eyes</i> should be excluded -from the polls, and still another should gravely declare -that <i>all with black hair</i> 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.</p> - -<p>2. Like unto the pretension founded on a misi<span class="pagenum"><a name="Page_250" id="Page_250">[Pg 250]</a></span>nterpretation -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 <i>regulate</i> the elections without -the intervention of Congress, it is insisted that it -may disfranchise a race. Because a State may regulate -the elective franchise, <i>therefore</i> 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,—<i>Non sequitur</i>.</p> - -<p>According to the Constitution, “the <i>times, places, and -manner</i> 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 <i>regulations</i>, 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 <i>police</i>, they are justly -included under the head of “regulations,” like the sword -and uniform of the army. Do we not familiarly speak -of a <i>regulation</i> sword and a <i>regulation</i> sash? Who will -dare to say that under this formal power of <i>regulation</i> -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:—</p> - -<p><span class="pagenum"><a name="Page_251" id="Page_251">[Pg 251]</a></span></p> - -<div class="blockquote"> - -<p>“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, <i>it was judged proper that it should be -remedied by the General Government</i>.”<a name="FNanchor_232_232" id="FNanchor_232_232"></a><a href="#Footnote_232_232" class="fnanchor">[232]</a></p> - -</div> - -<p>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 <i>Equality</i>.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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, <i>the negroes could no longer be refused -an equal share of representation with the other inhabitants</i>.”<a name="FNanchor_233_233" id="FNanchor_233_233"></a><a href="#Footnote_233_233" class="fnanchor">[233]</a></p> - -</div> - -<p>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 <i>equal share</i> 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<span class="pagenum"><a name="Page_252" id="Page_252">[Pg 252]</a></span> -“equal share of representation” which was promised? -Thus from every quarter we are brought to the same -inevitable conclusion.</p> - -<p>Therefore I dismiss the pretension founded on the -power to make <i>regulations</i>, as I dismiss that other -founded on the power to determine <i>qualifications</i>. Each -proceeds on a radical misconception. Admit that a -State may determine <i>qualifications</i>; admit that a State -may make <i>regulations</i>; 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.</p> - -<hr class="tb" /> - -<p>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 Decl<span class="pagenum"><a name="Page_253" id="Page_253">[Pg 253]</a></span>aration -of Independence. That other question I leave -to another occasion.</p> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_234_234" id="FNanchor_234_234"></a><a href="#Footnote_234_234" class="fnanchor">[234]</a></p> - -</div> - -<p>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 obedien<span class="pagenum"><a name="Page_254" id="Page_254">[Pg 254]</a></span>ce -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.</p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_255" id="Page_255">[Pg 255]</a></span></p> - -<h2><a name="ELIGIBILITY_OF_A_COLORED_CITIZEN_TO_CONGRESS" id="ELIGIBILITY_OF_A_COLORED_CITIZEN_TO_CONGRESS"></a>ELIGIBILITY OF A COLORED CITIZEN TO CONGRESS.</h2> - -<p class="plabeln"><span class="smcap">Letter to an Inquirer at Norfolk, Va., June 22, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>This letter appeared in a Richmond paper.</p> - -</div> - -<div class="blockquote"> - -<p class="right medium"><span class="smcap">Senate Chamber</span>, June 22, 1868.</p> - -<p class="dropcap">DEAR SIR,—I have your letter of the 18th, in -reference to the eligibility of a colored man to -Congress.</p> - -<p>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.</p> - -<p class="sig">Yours truly,</p> - -<p class="sig2"><span class="smcap">Charles Sumner</span>.</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_256" id="Page_256">[Pg 256]</a></span></p> - -<h2><a name="INDEPENDENCE_AND_THOSE_WHO_SAVED_THE" id="INDEPENDENCE_AND_THOSE_WHO_SAVED_THE"></a>INDEPENDENCE, AND THOSE WHO SAVED THE -ORIGINAL WORK.</h2> - -<p class="plabeln"><span class="smcap">Letter on the Soldiers’ Monument at North Weymouth, Mass., -July 2, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="blockquote"> - -<p class="right medium"><span class="smcap">Senate Chamber</span>, July 2, 1868.</p> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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!</p> - -<p>Accept my best wishes; believe me, my dear Sir, -very faithfully yours,</p> - -<p class="sig"><span class="smcap">Charles Sumner</span>.</p> - -<p class="noindent medium"><span class="smcap">Gen. B. F. Pratt.</span></p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_257" id="Page_257">[Pg 257]</a></span></p> - -<h2><a name="COLORED_SENATORS_THEIR_IMPORTANCE_IN_SETTLING" id="COLORED_SENATORS_THEIR_IMPORTANCE_IN_SETTLING"></a>COLORED SENATORS,—THEIR IMPORTANCE IN SETTLING -THE QUESTION OF EQUAL RIGHTS.</h2> - -<p class="plabeln"><span class="smcap">Letter to an Inquirer in South Carolina, July 3, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>The following letter, from a South Carolina paper, is one of many in -the same sense which found its way to the public.</p> - -</div> - -<div class="blockquote"> - -<p class="right medium"><span class="smcap">Senate Chamber</span>, July 3, 1868.</p> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>Accept my best<span class="pagenum"><a name="Page_258" id="Page_258">[Pg 258]</a></span> wishes, and believe me, dear Sir, -faithfully yours,</p> - -<p class="sig"><span class="smcap">Charles Sumner</span>.</p> - -<p class="noindent medium">To <span class="smcap">Thaddeus K. Sasportas</span>, Esq., Columbia, S. C.</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_259" id="Page_259">[Pg 259]</a></span></p> - -<h2><a name="FINANCIAL_RECONSTRUCTION_THROUGH_PUBLIC" id="FINANCIAL_RECONSTRUCTION_THROUGH_PUBLIC"></a>FINANCIAL RECONSTRUCTION THROUGH PUBLIC -FAITH AND SPECIE PAYMENTS.</h2> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<p class="plabeln"><span class="smcap">Speech in the Senate, on the Bill to Fund the National Debt, -July 11, 1868.</span></p> - -<div class="blockquote medium"> - -<hr class="r15" /> - -<p>We denounce all forms of Repudiation as a national crime [<i>prolonged -cheers</i>]; and the national honor requires the payment of the public indebtedness, -<i>in the utmost good faith</i>, to all creditors, at home and abroad, <i>not -only according to the letter, but to the spirit of the laws under which it was -contracted</i>. [<i>Applause.</i>]—<span class="smcap">Chicago Platform</span>, May, 1868.</p> - -<hr class="r15" /> - -<p>Fundamentum est autem justitiæ fides, id est, dictorum conventorumque -constantia et veritas.—<span class="smcap">Cicero</span>, <i>De Officiis</i>, Lib. I. Cap. 7.</p> - -<hr class="r15" /> - -</div> - -<p><span class="pagenum"><a name="Page_260" id="Page_260">[Pg 260]</a><br /><a name="Page_261" id="Page_261">[Pg 261]</a></span></p> - -<h3>SPEECH.</h3> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - - -<div class="medium"> - -<p>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:—</p> - -</div> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_262" id="Page_262">[Pg 262]</a></span> -seems about to be accomplished, it is that enduring part -which still remains.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_263" id="Page_263">[Pg 263]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_264" id="Page_264">[Pg 264]</a></span> -the Nation found itself in condition to begin the work -of restoration.</p> - -<hr class="tb" /> - -<p>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.</p> - -<hr class="tb" /> - -<p>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 reconst<span class="pagenum"><a name="Page_265" id="Page_265">[Pg 265]</a></span>ruct -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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_266" id="Page_266">[Pg 266]</a></span></p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_267" id="Page_267">[Pg 267]</a></span> -sale for a human being.</p> - -<hr class="tb" /> - -<p>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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>Before consideri<span class="pagenum"><a name="Page_268" id="Page_268">[Pg 268]</a></span>ng 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.</p> - -<p>A virtuous king of early Rome dedicated a temple -on the Capitol Hill itself to a divinity under the name -of <i>Publica Fides</i>, 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.”<a name="FNanchor_235_235" id="FNanchor_235_235"></a><a href="#Footnote_235_235" class="fnanchor">[235]</a> 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, <i>Publica Fides</i>, with laurelled -head, and hands filled with corn and fruit.</p> - -<p>Public Faith may be seen in the evil which <span class="pagenum"><a name="Page_269" id="Page_269">[Pg 269]</a></span>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.</p> - -<p>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 perp<span class="pagenum"><a name="Page_270" id="Page_270">[Pg 270]</a></span>etual -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_271" id="Page_271">[Pg 271]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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, <i>according to the usage -of the Government</i>, 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<span class="pagenum"><a name="Page_272" id="Page_272">[Pg 272]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_273" id="Page_273">[Pg 273]</a></span> -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.</p> - -<p>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 <i>five dollars</i>”—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<span class="pagenum"><a name="Page_274" id="Page_274">[Pg 274]</a></span> -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, <i>whenever -the bonds are paid</i>; it may be after five years, or, in the -discretion of the Nation, not till twenty years, but, <i>when -paid</i>, it must be in “dollars.” Such is the stipulation; -nor could the addition of “coin” or “gold” essentially -change this obligation. <i>It is contrary to reason that a -bond should be paid in an inferior obligation.</i> 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.</p> - -<p>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, <i>and for the redemption or funding thereof, and -for funding the floating debt of the United States</i>.”<a name="FNanchor_236_236" id="FNanchor_236_236"></a><a href="#Footnote_236_236" class="fnanchor">[236]</a> 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<span class="pagenum"><a name="Page_275" id="Page_275">[Pg 275]</a></span> -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,<a name="FNanchor_237_237" id="FNanchor_237_237"></a><a href="#Footnote_237_237" class="fnanchor">[237]</a> 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.</p> - -<hr class="tb" /> - -<p>The word <i>Repudiation</i>, 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 -<i>repudiation</i>, and slave-masters were unblushing -<i>repudiators</i>. Such an example is not fit for our Nation -at this great period of its history.</p> - -<p>It is one of the calamities of war, <span class="pagenum"><a name="Page_276" id="Page_276">[Pg 276]</a></span>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:—</p> - -<p><span class="pagenum"><a name="Page_277" id="Page_277">[Pg 277]</a></span></p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">“Oh, yet a nobler task awaits thy hand,</div> -<div class="verse indent2">(For what can war but endless war still breed?)</div> -<div class="verse indent2">Till truth and right from violence be freed,</div> -<div class="verse"><i>And Public Faith cleared from the shameful brand</i></div> -<div class="verse indent2"><i>Of public fraud</i>.”</div> -</div> -</div> - -<p>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.</p> - -<p>I am now brought to the practical <span class="pagenum"><a name="Page_278" id="Page_278">[Pg 278]</a></span>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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<hr class="tb" /> - -<p>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 co<span class="pagenum"><a name="Page_279" id="Page_279">[Pg 279]</a></span>nvenience -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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>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.</p> - -<p>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 gen<span class="pagenum"><a name="Page_280" id="Page_280">[Pg 280]</a></span>eration, -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:—</p> - -<table summary="Population" class="small"> - <tr> - <td>In 1870,</td><td class="tdr">42,323,341</td> - </tr> - <tr> - <td>In 1880,</td><td class="tdr">56,967,216</td> - </tr> - <tr> - <td>In 1890,</td><td class="tdr">76,677,872</td> - </tr> - <tr> - <td>In 1900,</td><td class="tdr">103,208,415</td> - </tr> - <tr> - <td>In 1910,</td><td class="tdr">138,918,526</td> - </tr> -</table> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_281" id="Page_281">[Pg 281]</a></span> -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.</p> - -<p>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?</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_282" id="Page_282">[Pg 282]</a></span> -of being explicit in their terms. The obligations of the -Government are fixed clearly and unchangeably beyond -the assaults of politicians.</p> - -<p>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 -$388,405,565, and several other smaller items. The following -amounts represent the portions of debt provided -for by this bill:—</p> - -<table summary="Debt" class="small"> - <tr> - <td class="hanging">Six per cent., due 1881,</td><td class="tdr">$ 283,676,600</td> - </tr> - <tr> - <td class="hanging">Six per cent., five-twenties,</td><td class="tdr">1,398,488,850</td> - </tr> - <tr> - <td class="hanging">Seven and three tenths Treasury notes, convertible into five-twenty bonds at maturity,</td><td class="tdr">214,953,850</td> - </tr> - <tr> - <td></td><td class="tdr total">$1,897,119,300</td> - </tr> -</table> - -<p>This considerable sum may be funded under the proposed -bill.</p> - -<p>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. Ther<span class="pagenum"><a name="Page_283" id="Page_283">[Pg 283]</a></span>e -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 <i>alias</i>.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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 a<span class="pagenum"><a name="Page_284" id="Page_284">[Pg 284]</a></span>nd -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.</p> - -<p>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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_285" id="Page_285">[Pg 285]</a></span> -exists in aspiration only, and not in reality.</p> - -<p>The suspension of specie payments was originally a -war measure, like the suspension of the <i>Habeas Corpus</i>. -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:—</p> - -<div class="blockquote"> - -<p>“It is a discretion kindred to that under which the <i>Habeas -Corpus</i> 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.”<a name="FNanchor_238_238" id="FNanchor_238_238"></a><a href="#Footnote_238_238" class="fnanchor">[238]</a></p> - -</div> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_286" id="Page_286">[Pg 286]</a></span></p> - -<p>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 <i>elephantiasis</i>. 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.</p> - -<p>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. Th<span class="pagenum"><a name="Page_287" id="Page_287">[Pg 287]</a></span>e -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.</p> - -<p>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 <i>extra</i> 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.</p> - -<p>Fluctuations in the measure of value<span class="pagenum"><a name="Page_288" id="Page_288">[Pg 288]</a></span> 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:—</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse indent8">“Chaos umpire sits,</div> -<div class="verse">And by decision more embroils the fray</div> -<div class="verse">By which he reigns; next him high arbiter</div> -<div class="verse">Chance governs all.”</div> -</div> -</div> - -<p>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.</p> - -<p>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 phra<span class="pagenum"><a name="Page_289" id="Page_289">[Pg 289]</a></span>se -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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>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.<span class="pagenum"><a name="Page_290" id="Page_290">[Pg 290]</a></span> -These two different characters may be sententiously expressed -as <i>availability</i> and <i>convertibility</i>. 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.</p> - -<p>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.</p> - -<p><i>First.</i> 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.</p> - -<p><i>Secondly.</i> Another measure of immediate value is <i>the -legalization of contracts in coin</i>, 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 <i>two currencies</i>; 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 applicabl<span class="pagenum"><a name="Page_291" id="Page_291">[Pg 291]</a></span>e -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.</p> - -<p><i>Thirdly.</i> Another measure of practical value is <i>the -contraction of the existing currency</i>, 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. Th<span class="pagenum"><a name="Page_292" id="Page_292">[Pg 292]</a></span>us 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.</p> - -<p>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 <i>in statu -quo</i>,—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<span class="pagenum"><a name="Page_293" id="Page_293">[Pg 293]</a></span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>I mention these as exp<span class="pagenum"><a name="Page_294" id="Page_294">[Pg 294]</a></span>edients, 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 <i>conditions precedent</i> of this final victory.</p> - -<hr class="tb" /> - -<p>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 <i>one</i> 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.</p> - -<p>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 re<span class="pagenum"><a name="Page_295" id="Page_295">[Pg 295]</a></span>st 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.</p> - -<p>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.</p> - -<p>Pardon me, if now, by way of recapitulation, I call -your attention to three things in which all others centre. -The first is the <i>Public Faith</i>. The second is the -<i>Public Faith</i>. The third is the <i>Public Faith</i>. 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.<span class="pagenum"><a name="Page_296" id="Page_296">[Pg 296]</a></span> -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.</p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_297" id="Page_297">[Pg 297]</a></span></p> - -<h2><a name="NO_REPRISALS_ON_INNOCENT_PERSONS" id="NO_REPRISALS_ON_INNOCENT_PERSONS"></a>NO REPRISALS ON INNOCENT PERSONS.</h2> - -<p class="plabeln"><span class="smcap">Speech in the Senate, on the Bill concerning the Rights of -American Citizens, July 18, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“<span class="smcap">Sec. 3.</span> <i>And be it further enacted</i>, 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, <i>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</i>.”</p> - -</div> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”</p> - -</div> - -<p>On this amendment Mr. Sumner spoke as follows.</p> - -</div> - -<p><span class="pagenum"><a name="Page_298" id="Page_298">[Pg 298]</a></span></p> - -<p class="dropcap">MR. PRESIDENT,—Before entering upon this discussion, -I wish to read a brief telegram, which -came by the cable last evening, as follows:—</p> - -<div class="blockquote"> - -<p>“<span class="smcap">London</span>, <i>July 17</i>.—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.”</p> - -</div> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_299" id="Page_299">[Pg 299]</a></span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_300" id="Page_300">[Pg 300]</a></span> -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.</p> - -<p>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.</p> - -<p>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. Repri<span class="pagenum"><a name="Page_301" id="Page_301">[Pg 301]</a></span>sals -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.</p> - -<p>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.</p> - -<p>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.”<a name="FNanchor_239_239" id="FNanchor_239_239"></a><a href="#Footnote_239_239" class="fnanchor">[239]</a> 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<span class="pagenum"><a name="Page_302" id="Page_302">[Pg 302]</a></span> -war the strongest statement. According to him, reprisals -are nothing less than “wickedness” (<i>improbitas</i>), 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 <i>unless that sovereign shall not cause justice -to be rendered to him within three months after his application</i>.”<a name="FNanchor_240_240" id="FNanchor_240_240"></a><a href="#Footnote_240_240" class="fnanchor">[240]</a> -This stipulation was renewed under Charles -the Second.<a name="FNanchor_241_241" id="FNanchor_241_241"></a><a href="#Footnote_241_241" class="fnanchor">[241]</a> 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, <i>except in case of an open denial of justice</i>,” and -“that, even in case of a denial of justice, a sovereign -cannot empower his subjects to make reprisals, <i>until he -has repeatedly demanded justice for them</i>.”<a name="FNanchor_242_242" id="FNanchor_242_242"></a><a href="#Footnote_242_242" class="fnanchor">[242]</a> 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.<a name="FNanchor_243_243" id="FNanchor_243_243"></a><a href="#Footnote_243_243" class="fnanchor">[243]</a> 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<span class="pagenum"><a name="Page_303" id="Page_303">[Pg 303]</a></span> -justice absolutely denied, <i>in re minime dubia</i>, by all the -tribunals, and afterwards by the prince.”<a name="FNanchor_244_244" id="FNanchor_244_244"></a><a href="#Footnote_244_244" class="fnanchor">[244]</a> 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.”<a name="FNanchor_245_245" id="FNanchor_245_245"></a><a href="#Footnote_245_245" class="fnanchor">[245]</a> 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?</p> - -<p>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.”<a name="FNanchor_246_246" id="FNanchor_246_246"></a><a href="#Footnote_246_246" class="fnanchor">[246]</a> Since then the tendency has been <span class="pagenum"><a name="Page_304" id="Page_304">[Pg 304]</a></span>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.”<a name="FNanchor_247_247" id="FNanchor_247_247"></a><a href="#Footnote_247_247" class="fnanchor">[247]</a> 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!</p> - -<p>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; <i>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</i>.”<a name="FNanchor_248_248" id="FNanchor_248_248"></a><a href="#Footnote_248_248" class="fnanchor">[248]</a> -The same enlightened conclusion is expressed<span class="pagenum"><a name="Page_305" id="Page_305">[Pg 305]</a></span> -by Dana, in his excellent notes to Wheaton, as follows: -“The right of making reprisals is not limited to property, -but extends to persons; <i>still, the practice of modern -times discountenances the arrest and detention of innocent -persons strictly in the way of reprisal</i>.”<a name="FNanchor_249_249" id="FNanchor_249_249"></a><a href="#Footnote_249_249" class="fnanchor">[249]</a> Thus do British -and American publicists concur in homage to a common -civilization.</p> - -<p>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. <i>They have come into his dominions -on the Public Faith.</i> In permitting them to enter his -territories and continue there he tacitly promised them -full liberty and full security for their return.”<a name="FNanchor_250_250" id="FNanchor_250_250"></a><a href="#Footnote_250_250" class="fnanchor">[250]</a> In -the same sense Halleck says, “Travellers and passing -guests are in general excepted from such liability.”<a name="FNanchor_251_251" id="FNanchor_251_251"></a><a href="#Footnote_251_251" class="fnanchor">[251]</a> -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.”<a name="FNanchor_252_252" id="FNanchor_252_252"></a><a href="#Footnote_252_252" class="fnanchor">[252]</a> -The other reason was assigned by Mr. Webster, in his -correspondence with the British Government in relation<span class="pagenum"><a name="Page_306" id="Page_306">[Pg 306]</a></span> -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, <i>cannot desire -the punishment of individuals, when the act complained -of is declared to have been an act of the Government -itself</i>.”<a name="FNanchor_253_253" id="FNanchor_253_253"></a><a href="#Footnote_253_253" class="fnanchor">[253]</a> 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.”<a name="FNanchor_254_254" id="FNanchor_254_254"></a><a href="#Footnote_254_254" class="fnanchor">[254]</a> -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?</p> - -<p>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,<span class="pagenum"><a name="Page_307" id="Page_307">[Pg 307]</a></span> -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.<a name="FNanchor_255_255" id="FNanchor_255_255"></a><a href="#Footnote_255_255" class="fnanchor">[255]</a> 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.</p> - -<div class="blockquote"> - -<p>“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<span class="pagenum"><a name="Page_308" id="Page_308">[Pg 308]</a></span> -great numbers of them were never liberated till the invasion -of the Allies in 1814.”<a name="FNanchor_256_256" id="FNanchor_256_256"></a><a href="#Footnote_256_256" class="fnanchor">[256]</a></p> - -</div> - -<p>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, <i>the more flagrant its injustice</i>, the more -it answered my purpose.”<a name="FNanchor_257_257" id="FNanchor_257_257"></a><a href="#Footnote_257_257" class="fnanchor">[257]</a> 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.”<a name="FNanchor_258_258" id="FNanchor_258_258"></a><a href="#Footnote_258_258" class="fnanchor">[258]</a> Every word of this earnest expostulation -may now be justly addressed to the Senate.<span class="pagenum"><a name="Page_309" id="Page_309">[Pg 309]</a></span> -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.</p> - -<p>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.</p> - -<p>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 <i>Prügel-knabe</i>, who was kept at the German courts -of former days to receive the stripes which the prince<span class="pagenum"><a name="Page_310" id="Page_310">[Pg 310]</a></span> -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.</p> - -<div class="medium"> - -<p>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:—</p> - -</div> - -<p>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.</p> - -<div class="medium"> - -<p>The question, being taken by yeas and nays, resulted,—Yeas 30, -Nays 7; as follows:—</p> - -<p><span class="smcap">Yeas</span>,—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.</p> - -<p><span class="smcap">Nays</span>,—Messrs. Conness, Nye, Sprague, Stewart, Thayer, Tipton, -and Whyte,—7.</p> - -<p>For the sectio<span class="pagenum"><a name="Page_311" id="Page_311">[Pg 311]</a></span>n thus amended, Mr. Williams, of Oregon, moved a substitute; -whereupon the debate was resumed, and Mr. Sumner spoke again.</p> - -</div> - -<p>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.</p> - -<div class="medium"> - -<p><span class="smcap">Mr. Wilson</span> [of Massachusetts]. Is not that true?</p> - -</div> - -<p><span class="smcap">Mr. Sumner.</span> 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.</p> - -<p>Permit me to say that the argument of the Senator -from Oregon [<span class="smcap">Mr. Williams</span>] proceeds on a misunderstanding -of the facts. There is no occasion now for -any such legislative prompting to the Government of -the United States.</p> - -<div class="medium"> - -<p><span class="smcap">Mr. Williams.</span> I should like to ask the Senator a question.</p> - -</div> - -<p><span class="smcap">Mr. Sumner.</span> Certainly.</p> - -<div class="medium"> - -<p><span class="smcap">Mr. Williams.</span> 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?</p> - -</div> - -<p><span class="pagenum"><a name="Page_312" id="Page_312">[Pg 312]</a></span><span class="smcap">Mr. Sumner.</span> 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.</p> - -<p>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——</p> - -<div class="medium"> - -<p><span class="smcap">Mr. Conness</span> rose.</p> - -</div> - -<p><span class="smcap">Mr. Sumner.</span> Will the Senator let me finish my -sentence?</p> - -<div class="medium"> - -<p><span class="smcap">Mr. Conness.</span> Certainly.</p> - -</div> - -<p><span class="pagenum"><a name="Page_313" id="Page_313">[Pg 313]</a></span><span class="smcap">Mr. Sumner.</span> 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.</p> - -<p>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.</p> -<p><span class="pagenum"><a name="Page_314" id="Page_314">[Pg 314]</a></span></p> -<div class="medium"> - -<p>Mr. Conness followed in support of the bill, and to a correction from -Mr. Sumner retorted:—</p> - -<div class="blockquote"> - -<p>“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.<a name="FNanchor_259_259" id="FNanchor_259_259"></a><a href="#Footnote_259_259" class="fnanchor">[259]</a></p> - -</div> - -<p>To this attack Mr. Sumner replied as follows:—</p> - -</div> - -<p>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 indifferen<span class="pagenum"><a name="Page_315" id="Page_315">[Pg 315]</a></span>ce -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.</p> - -<div class="medium"> - -<p>Mr. Sumner read the first two paragraphs on the thirteenth page of -the pamphlet edition.<a name="FNanchor_260_260" id="FNanchor_260_260"></a><a href="#Footnote_260_260" class="fnanchor">[260]</a></p> - -</div> - -<p>Such was my argument for the rights of the foreign-born -among us. To all of them I offered such welcome -as I could:—</p> -<p><span class="pagenum"><a name="Page_316" id="Page_316">[Pg 316]</a></span></p> -<div class="blockquote"> - -<p>“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.”<a name="FNanchor_261_261" id="FNanchor_261_261"></a><a href="#Footnote_261_261" class="fnanchor">[261]</a></p> - -</div> - -<p>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<span class="pagenum"><a name="Page_317" id="Page_317">[Pg 317]</a></span> -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?</p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_318" id="Page_318">[Pg 318]</a></span></p> - -<h2><a name="THE_CHINESE_EMBASSY_AND_OUR_RELATIONS" id="THE_CHINESE_EMBASSY_AND_OUR_RELATIONS"></a>THE CHINESE EMBASSY, AND OUR RELATIONS -WITH CHINA.</h2> - -<p class="plabeln"><span class="smcap">Speech at the Banquet by the City of Boston to the Chinese -Embassy, August 21, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>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.</p> - -<p>The company is thus described in the official report:—</p> - -<div class="blockquote"> - -<p>“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.</p> - -<p>“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<span class="pagenum"><a name="Page_319" id="Page_319">[Pg 319]</a></span> 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.”</p> - -</div> - -<p>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.</p> - -<p>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.”</p> - -<p>Mr. Sumner said:—</p> - -</div> - -<p class="dropcap">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.</p> - -<p>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 trus<span class="pagenum"><a name="Page_320" id="Page_320">[Pg 320]</a></span>ts -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.</p> - -<p>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.</p> - -<p>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 perspecti<span class="pagenum"><a name="Page_321" id="Page_321">[Pg 321]</a></span>ve, -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</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse indent8">“on the barren plains</div> -<div class="verse">Of Sericana, where <i>Chineses</i> drive</div> -<div class="verse">With sails and wind their cany wagons light.”<a name="FNanchor_262_262" id="FNanchor_262_262"></a><a href="#Footnote_262_262" class="fnanchor">[262]</a></div> -</div> -</div> - -<p class="noindent">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.”<a name="FNanchor_263_263" id="FNanchor_263_263"></a><a href="#Footnote_263_263" class="fnanchor">[263]</a> -It is for us at last to enlarge these pictures, and to fill -the canvas with life.</p> - -<p>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<span class="pagenum"><a name="Page_322" id="Page_322">[Pg 322]</a></span> -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.</p> - -<p>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 d<span class="pagenum"><a name="Page_323" id="Page_323">[Pg 323]</a></span>inner -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.</p> - -<p>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 <i>Messer Millioni</i>, 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<span class="pagenum"><a name="Page_324" id="Page_324">[Pg 324]</a></span> -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 <i>savant</i>, 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.”<a name="FNanchor_264_264" id="FNanchor_264_264"></a><a href="#Footnote_264_264" class="fnanchor">[264]</a> -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.</p> - -<p>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<span class="pagenum"><a name="Page_325" id="Page_325">[Pg 325]</a></span> -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.</p> - -<p>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.</p> - -<div class="medium"> - -<p>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.</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_326" id="Page_326">[Pg 326]</a></span></p> - -<h2><a name="THE_REBEL_PARTY" id="THE_REBEL_PARTY"></a>THE REBEL PARTY.</h2> - -<p class="plabeln"><span class="smcap">Speech at the Flag-Raising of the Grant and Colfax Club, in -Ward Six, Boston, on the Evening of September 14, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<p class="dropcap">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.</p> - -<p>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<span class="pagenum"><a name="Page_327" id="Page_327">[Pg 327]</a></span> -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.</p> - -<p>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 <i>alias</i> 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.</p> - -<p>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 gr<span class="pagenum"><a name="Page_328" id="Page_328">[Pg 328]</a></span>eat 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_329" id="Page_329">[Pg 329]</a></span> -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.</p> - -<p>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. <i>By this conquer!</i> 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.</p> - -<p>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 <span class="pagenum"><a name="Page_330" id="Page_330">[Pg 330]</a></span>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.</p> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_331" id="Page_331">[Pg 331]</a></span></p> - -<h2><a name="ENFRANCHISEMENT_IN_MISSOURI_WHY_WAIT" id="ENFRANCHISEMENT_IN_MISSOURI_WHY_WAIT"></a>ENFRANCHISEMENT IN MISSOURI: WHY WAIT?</h2> - -<p class="plabeln"><span class="smcap">Letter to a Citizen of St. Louis, October 3, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<div class="medium"> - -<p>The following letter appeared in the <i>St. Louis Democrat</i>.</p> - -</div> - -<div class="blockquote"> - -<p class="right medium"><span class="smcap">Boston</span>, October 3, 1868.</p> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_332" id="Page_332">[Pg 332]</a></span> 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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>Accept my best wishes, and believe me, dear Sir, faithfully -yours,</p> - -<p class="sig"><span class="smcap">Charles Sumner</span>.</p> - -</div> - -<hr class="chap" /> - -<p><span class="pagenum"><a name="Page_333" id="Page_333">[Pg 333]</a></span></p> - -<h2><a name="ISSUES_AT_THE_PRESIDENTIAL_ELECTION" id="ISSUES_AT_THE_PRESIDENTIAL_ELECTION"></a>ISSUES AT THE PRESIDENTIAL ELECTION.</h2> - -<p class="plabeln"><span class="smcap">Speech at the City Hall, Cambridge, October 29, 1868.</span></p> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<p><span class="pagenum"><a name="Page_334" id="Page_334">[Pg 334]</a></span></p> - -<div class="medium"> - -<p>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:—</p> - -<div class="blockquote"> - -<p>“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.”</p> - -</div> - -<p>The report of the <i>Boston Daily Advertiser</i> 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.”</p> - -<hr class="tb" /> - -<p>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:—</p> - -<table summary="Votes" class="small"> - <tr> - <td colspan="2" class="tdc"><i>In the Senate.</i></td> - </tr> - <tr> - <td>Charles Sumner,</td><td class="tdr">37</td> - </tr> - <tr> - <td>Josiah G. Abbott,</td><td class="tdr">2</td> - </tr> - <tr> - <td colspan="2" class="tdc"><i>In the House.</i></td> - </tr> - <tr> - <td>Charles Sumner,</td><td class="tdr">216</td> - </tr> - <tr> - <td>Josiah G. Abbott,</td><td class="tdr">15</td> - </tr> - <tr> - <td>Nathaniel P. Banks,</td><td class="tdr">1</td> - </tr> -</table> - -<hr class="r15" /> - -</div> - -<p><span class="pagenum"><a name="Page_335" id="Page_335">[Pg 335]</a></span></p> - -<h3>SPEECH.</h3> - -<div class="figcenter"> -<img src="images/line.png" width="80" height="16" alt="" /> -</div> - -<p class="dropcap">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.</p> - -<p>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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_336" id="Page_336">[Pg 336]</a></span> -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.</p> - -<p>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 <i>Equality -before the Law</i>, 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<span class="pagenum"><a name="Page_337" id="Page_337">[Pg 337]</a></span> -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,”<a name="FNanchor_265_265" id="FNanchor_265_265"></a><a href="#Footnote_265_265" class="fnanchor">[265]</a> 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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_338" id="Page_338">[Pg 338]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_339" id="Page_339">[Pg 339]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>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.<span class="pagenum"><a name="Page_340" id="Page_340">[Pg 340]</a></span> -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.</p> - -<p>It may be put more precisely still: <i>Shall the men who -saved the Republic continue to rule it, or shall it be handed -over to Rebels and their allies?</i> 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:—</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">“What’s liberty of conscience,</div> -<div class="verse">I’ th’ natural and genuine sense?</div> -<div class="verse">’Tis to restore, with more security,</div> -<div class="verse">Rebellion to its ancient purity.”<a name="FNanchor_266_266" id="FNanchor_266_266"></a><a href="#Footnote_266_266" class="fnanchor">[266]</a></div> -</div> -</div> - -<p>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.</p> - -<p>I would not make thi<span class="pagenum"><a name="Page_341" id="Page_341">[Pg 341]</a></span>s 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.</p> - -<hr class="tb" /> - -<p>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.”<a name="FNanchor_267_267" id="FNanchor_267_267"></a><a href="#Footnote_267_267" class="fnanchor">[267]</a> 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<span class="pagenum"><a name="Page_342" id="Page_342">[Pg 342]</a></span> -of <i>Secession</i> maintained by arms, it is now <i>Nullification</i> -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.”<a name="FNanchor_268_268" id="FNanchor_268_268"></a><a href="#Footnote_268_268" class="fnanchor">[268]</a> 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.</p> - -<hr class="tb" /> - -<p>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, chara<span class="pagenum"><a name="Page_343" id="Page_343">[Pg 343]</a></span>cter -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.”<a name="FNanchor_269_269" id="FNanchor_269_269"></a><a href="#Footnote_269_269" class="fnanchor">[269]</a> 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 comprehensi<span class="pagenum"><a name="Page_344" id="Page_344">[Pg 344]</a></span>ve. -Great as was the Republic in arms, it is greater -still in the majesty of its charity.</p> - -<p>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.”</p> - -<hr class="tb" /> - -<p>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.</p> - -<hr class="tb" /> - -<p>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 Congre<span class="pagenum"><a name="Page_345" id="Page_345">[Pg 345]</a></span>ss -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.</p> - -<p>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, <i>Senatus -Populusque Romanus</i>, in whose name went forth those -great decrees which ruled the world.</p> - -<p><span class="pagenum"><a name="Page_346" id="Page_346">[Pg 346]</a></span></p> - -<p>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, -<i>that Congress, in the exercise of political powers, cannot -be questioned</i>. So says the Supreme Court. Thus it has -been decided, in general terms, “that the action of <i>the -political branches</i> of the Government in a matter that -belongs to them is conclusive.”<a name="FNanchor_270_270" id="FNanchor_270_270"></a><a href="#Footnote_270_270" class="fnanchor">[270]</a> And in the famous -case of <i>Luther</i> v. <i>Borden</i>, 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, -<i>has treated the subject as political in its nature, and -placed the power in the hands of that department</i>”; 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.”<a name="FNanchor_271_271" id="FNanchor_271_271"></a><a href="#Footnote_271_271" class="fnanchor">[271]</a> 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<span class="pagenum"><a name="Page_347" id="Page_347">[Pg 347]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>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 <span class="pagenum"><a name="Page_348" id="Page_348">[Pg 348]</a></span>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.</p> - -<hr class="tb" /> - -<p>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?</p> - -<p>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 hi<span class="pagenum"><a name="Page_349" id="Page_349">[Pg 349]</a></span>s -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?</p> - -<hr class="tb" /> - -<p>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.</p> - -<hr class="tb" /> - -<p>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<span class="pagenum"><a name="Page_350" id="Page_350">[Pg 350]</a></span> -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.</p> - -<p>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.<a name="FNanchor_272_272" id="FNanchor_272_272"></a><a href="#Footnote_272_272" class="fnanchor">[272]</a> 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 o<span class="pagenum"><a name="Page_351" id="Page_351">[Pg 351]</a></span>r -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.</p> - -<hr class="tb" /> - -<p>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, <span class="pagenum"><a name="Page_352" id="Page_352">[Pg 352]</a></span>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 <i>self-interest -would prompt the whites of the South to extend to the -negroes care and protection</i>.” 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.</p> - -<hr class="tb" /> - -<p>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 aggr<span class="pagenum"><a name="Page_353" id="Page_353">[Pg 353]</a></span>avated -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>There is another issue at this <span class="pagenum"><a name="Page_354" id="Page_354">[Pg 354]</a></span>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<span class="pagenum"><a name="Page_355" id="Page_355">[Pg 355]</a></span> -make Human Rights coextensive with its boundaries. -Nor can it allow any pretension of State Rights to interfere -with this commanding duty.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>Nay, more, it is my conviction, not only that we <i>can</i> -have specie payments at that time, but that we <i>ought</i> 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: <i>Id enim -justissimum quod necessarium</i>. But it is none the less -untrue. Necessity may excuse an action not in itself<span class="pagenum"><a name="Page_356" id="Page_356">[Pg 356]</a></span> -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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<hr class="tb" /> - -<p>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.</p> - -<p>The whole case can be stated <span class="pagenum"><a name="Page_357" id="Page_357">[Pg 357]</a></span>with perfect simplicity. -To tax the bonds is to break the contract <i>because you -have the power</i>. 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.</p> - -<p>The cheat of paying interest-bearing bonds in promi<span class="pagenum"><a name="Page_358" id="Page_358">[Pg 358]</a></span>ses -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.</p> - -<p>Elsewhere I have considered this question so fully,<a name="FNanchor_273_273" id="FNanchor_273_273"></a><a href="#Footnote_273_273" class="fnanchor">[273]</a> -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.</p> - -<p>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<span class="pagenum"><a name="Page_359" id="Page_359">[Pg 359]</a></span> 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 <i>assignats</i>, 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. <i>Assignats</i>, 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.”<a name="FNanchor_274_274" id="FNanchor_274_274"></a><a href="#Footnote_274_274" class="fnanchor">[274]</a> And still the <i>assignats</i> -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<span class="pagenum"><a name="Page_360" id="Page_360">[Pg 360]</a></span> -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. <i>Assignats</i> were fabricated in the -night, and sent forth in the morning wet from the press.<a name="FNanchor_275_275" id="FNanchor_275_275"></a><a href="#Footnote_275_275" class="fnanchor">[275]</a> -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.”</p> - -<p>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.</p> - -<p>I plead, als<span class="pagenum"><a name="Page_361" id="Page_361">[Pg 361]</a></span>o, 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.</p> - -<p>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.”<a name="FNanchor_276_276" id="FNanchor_276_276"></a><a href="#Footnote_276_276" class="fnanchor">[276]</a> 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<span class="pagenum"><a name="Page_362" id="Page_362">[Pg 362]</a></span> -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”?</p> - -<hr class="tb" /> - -<p>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. <i>By this sign conquer</i>: -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.</p> - -<p>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:—</p> - -<p><span class="pagenum"><a name="Page_363" id="Page_363">[Pg 363]</a></span></p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">“Earth felt the wound; and Nature from her seat,</div> -<div class="verse">Sighing through all her works, gave signs of woe</div> -<div class="verse">That all was lost.”</div> -</div> -</div> - -<p class="noindent">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.</p> - -<p>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.</p> - -<p>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. <i>This is the great and only final settlement -of all existing questions.</i> Under its kindly<span class="pagenum"><a name="Page_364" id="Page_364">[Pg 364]</a></span> 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.</p> - -<hr class="chap" /> - -<h2>FOOTNOTES</h2> - -<div class="footnotes"> - -<div class="footnote"> - -<p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> <i>Ante</i>, Vol. I. pp. 314, 315.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[2]</span></a> Sermo CCXCIX. § 6: Opera, ed. Benedict., (Paris, 1836-39,) Tom. V. -col. 1785.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[3]</span></a> History of the World, Book V. ch. I: Works, (Oxford, 1829,) Vol. -VI. p. 4.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> Of Reformation touching Church Discipline in England, Book II.: -Works, (London, 1851,) Vol. III. p. 55.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[5]</span></a> Essay upon the Original and Nature of Government: Miscellanea, -Part I.: Works, (London, 1720,) Vol. I. p. 100.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">[6]</span></a> “La totalité des personnes nées ou naturalisées dans un pays, et vivant -sous un même gouvernement.”</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_7_7" id="Footnote_7_7"></a><a href="#FNanchor_7_7"><span class="label">[7]</span></a> Decline and Fall of the Roman Empire, ed. Milman, (London, 1846,) -Ch. II. Vol. I. p. 37.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_8_8" id="Footnote_8_8"></a><a href="#FNanchor_8_8"><span class="label">[8]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_9_9" id="Footnote_9_9"></a><a href="#FNanchor_9_9"><span class="label">[9]</span></a> Menenius Agrippa. Livii Hist. Lib. II. c. 32.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_10_10" id="Footnote_10_10"></a><a href="#FNanchor_10_10"><span class="label">[10]</span></a> Journal of the House of Representatives, p. 133, October 24, 1765. -Hutchinson’s History of Massachusetts, Vol. III. p. 472.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_11_11" id="Footnote_11_11"></a><a href="#FNanchor_11_11"><span class="label">[11]</span></a> Hazard’s Historical Collections, Vol. II. p. 2. Palfrey’s History of -New England, Vol. I. p. 624.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_12_12" id="Footnote_12_12"></a><a href="#FNanchor_12_12"><span class="label">[12]</span></a> Winthrop, History of New England, ed. Savage, Vol. II. p. 100.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_13_13" id="Footnote_13_13"></a><a href="#FNanchor_13_13"><span class="label">[13]</span></a> Ibid., p. 160.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_14_14" id="Footnote_14_14"></a><a href="#FNanchor_14_14"><span class="label">[14]</span></a> Plan of Union: Franklin’s Works, ed. Sparks, Vol. III. pp. 36, seqq.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_15_15" id="Footnote_15_15"></a><a href="#FNanchor_15_15"><span class="label">[15]</span></a> Bancroft, History of the United States, Vol. IV. p. 126.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_16_16" id="Footnote_16_16"></a><a href="#FNanchor_16_16"><span class="label">[16]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_17_17" id="Footnote_17_17"></a><a href="#FNanchor_17_17"><span class="label">[17]</span></a> Wells’s Life of Samuel Adams, Vol. II. pp. 90, 94.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_18_18" id="Footnote_18_18"></a><a href="#FNanchor_18_18"><span class="label">[18]</span></a> Ibid., p. 94.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_19_19" id="Footnote_19_19"></a><a href="#FNanchor_19_19"><span class="label">[19]</span></a> Journals of Congress, October 14, 1774, Vol. I. pp. 28, 29.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[20]</span></a> The Federalist, ed. J. C. Hamilton, Historical Notice, pp. xii, xiv, lix.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_21_21" id="Footnote_21_21"></a><a href="#FNanchor_21_21"><span class="label">[21]</span></a> Wordsworth, The Excursion, Book IV. 138, 139.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_22_22" id="Footnote_22_22"></a><a href="#FNanchor_22_22"><span class="label">[22]</span></a> Letter to Jefferson, November 12, 1813: Works, Vol. X. p. 79.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_23_23" id="Footnote_23_23"></a><a href="#FNanchor_23_23"><span class="label">[23]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_24_24" id="Footnote_24_24"></a><a href="#FNanchor_24_24"><span class="label">[24]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_25_25" id="Footnote_25_25"></a><a href="#FNanchor_25_25"><span class="label">[25]</span></a> Writings of Washington, ed. Sparks, Vol. VIII. pp. 567, 568, Appendix.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_26_26" id="Footnote_26_26"></a><a href="#FNanchor_26_26"><span class="label">[26]</span></a> Ibid., pp. 441, 443.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_27_27" id="Footnote_27_27"></a><a href="#FNanchor_27_27"><span class="label">[27]</span></a> Ibid., pp. 504, 505.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_28_28" id="Footnote_28_28"></a><a href="#FNanchor_28_28"><span class="label">[28]</span></a> Resolution of Congress, October 10, 1780: Journal, Vol. VI. p. 215.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_29_29" id="Footnote_29_29"></a><a href="#FNanchor_29_29"><span class="label">[29]</span></a> The Federalist, ed. J. C. Hamilton, Historical Notice, pp. xxii, lviii.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_30_30" id="Footnote_30_30"></a><a href="#FNanchor_30_30"><span class="label">[30]</span></a> Ibid., p. xxiv.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_31_31" id="Footnote_31_31"></a><a href="#FNanchor_31_31"><span class="label">[31]</span></a> Resolutions, July 21, 1782: Hamilton’s Works, ed. J. C. Hamilton, -Vol. II. pp. 201-204.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_32_32" id="Footnote_32_32"></a><a href="#FNanchor_32_32"><span class="label">[32]</span></a> Journal, February 21, 1787, Vol. XII. p. 17.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_33_33" id="Footnote_33_33"></a><a href="#FNanchor_33_33"><span class="label">[33]</span></a> Sketches of American Policy, (Hartford, 1785,) Part IV. See also -Introduction to Debates in the Federal Convention: Madison Papers, Vol. -II. p. 708.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_34_34" id="Footnote_34_34"></a><a href="#FNanchor_34_34"><span class="label">[34]</span></a> Life, by his Son, William Jay, Vol. I. pp. 249, 250. See also Letter to -John Lowell, May 10, 1785: Ibid., p. 190.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_35_35" id="Footnote_35_35"></a><a href="#FNanchor_35_35"><span class="label">[35]</span></a> See, <i>ante</i>, p. 274.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_36_36" id="Footnote_36_36"></a><a href="#FNanchor_36_36"><span class="label">[36]</span></a> Letter to Edmund Randolph, April 8, 1787: Madison Papers, Vol. II. -pp. 631, 632.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_37_37" id="Footnote_37_37"></a><a href="#FNanchor_37_37"><span class="label">[37]</span></a> Writings, ed. Sparks, Vol. IX. pp. 187, 188.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_38_38" id="Footnote_38_38"></a><a href="#FNanchor_38_38"><span class="label">[38]</span></a> Letter to John Jay, March 10, 1787: Life of Jay, by his Son, Vol. I. -p. 259.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_39_39" id="Footnote_39_39"></a><a href="#FNanchor_39_39"><span class="label">[39]</span></a> Debates, May 30, 1787: Madison Papers, Vol. II. p. 748.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_40_40" id="Footnote_40_40"></a><a href="#FNanchor_40_40"><span class="label">[40]</span></a> Debates, July 7th: Ibid., p. 1049.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_41_41" id="Footnote_41_41"></a><a href="#FNanchor_41_41"><span class="label">[41]</span></a> Debates, July 5th: Ibid., p. 1030.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_42_42" id="Footnote_42_42"></a><a href="#FNanchor_42_42"><span class="label">[42]</span></a> Debates, June 19, 1787: Madison Papers, Vol. II. pp. 904, 905.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_43_43" id="Footnote_43_43"></a><a href="#FNanchor_43_43"><span class="label">[43]</span></a> Debates, June 7th: Ibid., p. 817.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_44_44" id="Footnote_44_44"></a><a href="#FNanchor_44_44"><span class="label">[44]</span></a> Debates, June 19th: Ibid., p. 907.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_45_45" id="Footnote_45_45"></a><a href="#FNanchor_45_45"><span class="label">[45]</span></a> Debates, June 29th: Ibid., p. 995.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_46_46" id="Footnote_46_46"></a><a href="#FNanchor_46_46"><span class="label">[46]</span></a> Debates, June 30th: Ibid., p. 1010; see also p. 1011.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_47_47" id="Footnote_47_47"></a><a href="#FNanchor_47_47"><span class="label">[47]</span></a> March 16, 1785: Journal, Vol. X. p. 79.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_48_48" id="Footnote_48_48"></a><a href="#FNanchor_48_48"><span class="label">[48]</span></a> Debates, June 25th: Madison Papers, Vol. II. pp. 946, 950.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_49_49" id="Footnote_49_49"></a><a href="#FNanchor_49_49"><span class="label">[49]</span></a> Journal of Congress, September 28, 1787, Vol. XII. p. 165.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_50_50" id="Footnote_50_50"></a><a href="#FNanchor_50_50"><span class="label">[50]</span></a> Works of Daniel Webster, Vol. III. p. 474.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_51_51" id="Footnote_51_51"></a><a href="#FNanchor_51_51"><span class="label">[51]</span></a> Elliot’s Debates, (2d edit.,) Vol. III. p. 29.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_52_52" id="Footnote_52_52"></a><a href="#FNanchor_52_52"><span class="label">[52]</span></a> Elliot’s Debates, Vol. III. p. 22.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_53_53" id="Footnote_53_53"></a><a href="#FNanchor_53_53"><span class="label">[53]</span></a> Ibid., p. 44.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_54_54" id="Footnote_54_54"></a><a href="#FNanchor_54_54"><span class="label">[54]</span></a> Hamilton’s History of the National Flag of the United States, p. 55.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_55_55" id="Footnote_55_55"></a><a href="#FNanchor_55_55"><span class="label">[55]</span></a> Ibid., pp. 65, 66.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_56_56" id="Footnote_56_56"></a><a href="#FNanchor_56_56"><span class="label">[56]</span></a> Hamilton’s History of the National Flag, p. 30.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_57_57" id="Footnote_57_57"></a><a href="#FNanchor_57_57"><span class="label">[57]</span></a> Ibid., p. 110.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_58_58" id="Footnote_58_58"></a><a href="#FNanchor_58_58"><span class="label">[58]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_59_59" id="Footnote_59_59"></a><a href="#FNanchor_59_59"><span class="label">[59]</span></a> Hamilton’s History of the National Flag, pp. 72-79.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_60_60" id="Footnote_60_60"></a><a href="#FNanchor_60_60"><span class="label">[60]</span></a> The Thracians: Herodotus, Lib. V. c. 3.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_61_61" id="Footnote_61_61"></a><a href="#FNanchor_61_61"><span class="label">[61]</span></a> Dr. Francis Lieber, who narrated the incident to Mr. Sumner.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_62_62" id="Footnote_62_62"></a><a href="#FNanchor_62_62"><span class="label">[62]</span></a> Locke, Essay concerning Human Understanding, Book III. ch. 2, § 8.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_63_63" id="Footnote_63_63"></a><a href="#FNanchor_63_63"><span class="label">[63]</span></a> Cratylus, 389 A.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_64_64" id="Footnote_64_64"></a><a href="#FNanchor_64_64"><span class="label">[64]</span></a> Diary of John Adams: Works, Vol. II. p. 367.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_65_65" id="Footnote_65_65"></a><a href="#FNanchor_65_65"><span class="label">[65]</span></a> Journal, June 17, 1775, Vol. I. p. 122.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_66_66" id="Footnote_66_66"></a><a href="#FNanchor_66_66"><span class="label">[66]</span></a> Writings, ed. Sparks, Vol. III. p. 491, Appendix.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_67_67" id="Footnote_67_67"></a><a href="#FNanchor_67_67"><span class="label">[67]</span></a> Letter to the President of Congress, December 20, 1776: Ibid., Vol. -IV. p. 236.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_68_68" id="Footnote_68_68"></a><a href="#FNanchor_68_68"><span class="label">[68]</span></a> See, <i>ante</i>, p. 31.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_69_69" id="Footnote_69_69"></a><a href="#FNanchor_69_69"><span class="label">[69]</span></a> Journal of Congress, September 28, 1787, Vol. XII. p. 165.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_70_70" id="Footnote_70_70"></a><a href="#FNanchor_70_70"><span class="label">[70]</span></a> Writings, ed. Sparks, Vol. XII. p. 218.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_71_71" id="Footnote_71_71"></a><a href="#FNanchor_71_71"><span class="label">[71]</span></a> Isaiah, xl. 26.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_72_72" id="Footnote_72_72"></a><a href="#FNanchor_72_72"><span class="label">[72]</span></a> Revelation, iii. 12.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_73_73" id="Footnote_73_73"></a><a href="#FNanchor_73_73"><span class="label">[73]</span></a> Job, xxxviii. 35.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_74_74" id="Footnote_74_74"></a><a href="#FNanchor_74_74"><span class="label">[74]</span></a> Geographica, Lib. IV. cap. 1, §§ 2, 14.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_75_75" id="Footnote_75_75"></a><a href="#FNanchor_75_75"><span class="label">[75]</span></a> Marlow, Edward the Second, Act V. Sc. 1.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_76_76" id="Footnote_76_76"></a><a href="#FNanchor_76_76"><span class="label">[76]</span></a> Proclamation, December 10, 1832: Executive Documents, 22d Cong. -2d Sess., H. of R., No. 45, p. 85.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_77_77" id="Footnote_77_77"></a><a href="#FNanchor_77_77"><span class="label">[77]</span></a> Speech in the Senate, in Reply to Mr. Simmons, of Rhode Island, February -20, 1847: Works, Vol. IV. pp. 358, 357.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_78_78" id="Footnote_78_78"></a><a href="#FNanchor_78_78"><span class="label">[78]</span></a> Section 24.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_79_79" id="Footnote_79_79"></a><a href="#FNanchor_79_79"><span class="label">[79]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_80_80" id="Footnote_80_80"></a><a href="#FNanchor_80_80"><span class="label">[80]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_81_81" id="Footnote_81_81"></a><a href="#FNanchor_81_81"><span class="label">[81]</span></a> Note to § 776, Vol. I. pp. 433, 434, 3d edit.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_82_82" id="Footnote_82_82"></a><a href="#FNanchor_82_82"><span class="label">[82]</span></a> Act to prescribe an Oath of Office, July 2, 1862: Statutes at Large, -Vol. XII. p. 502.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_83_83" id="Footnote_83_83"></a><a href="#FNanchor_83_83"><span class="label">[83]</span></a> Pleas of the Crown, Vol. I. p. 484.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_84_84" id="Footnote_84_84"></a><a href="#FNanchor_84_84"><span class="label">[84]</span></a> 3 Institutes, p. 139.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_85_85" id="Footnote_85_85"></a><a href="#FNanchor_85_85"><span class="label">[85]</span></a> Criminal Law, Vol. I. § 652.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_86_86" id="Footnote_86_86"></a><a href="#FNanchor_86_86"><span class="label">[86]</span></a> Ibid., § 655.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_87_87" id="Footnote_87_87"></a><a href="#FNanchor_87_87"><span class="label">[87]</span></a> Statutes at Large, Vol. I. p. 112.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_88_88" id="Footnote_88_88"></a><a href="#FNanchor_88_88"><span class="label">[88]</span></a> Catilina, Cap. XXXIX.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_89_89" id="Footnote_89_89"></a><a href="#FNanchor_89_89"><span class="label">[89]</span></a> Bramston, The Art of Politics, 162-165. See, <i>ante</i>, Vol. VI. p. 350; Vol. XI. -p. 6</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_90_90" id="Footnote_90_90"></a><a href="#FNanchor_90_90"><span class="label">[90]</span></a> View of the Constitution, (Philadelphia, 1825,) Chap. XXI. p. 206.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_91_91" id="Footnote_91_91"></a><a href="#FNanchor_91_91"><span class="label">[91]</span></a> Commentaries on the Constitution, § 775, Vol. II. p. 247.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_92_92" id="Footnote_92_92"></a><a href="#FNanchor_92_92"><span class="label">[92]</span></a> Second edition (Philadelphia, 1829).</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_93_93" id="Footnote_93_93"></a><a href="#FNanchor_93_93"><span class="label">[93]</span></a> See, <i>post</i>, p. 93.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_94_94" id="Footnote_94_94"></a><a href="#FNanchor_94_94"><span class="label">[94]</span></a> Madison Papers, Vol. III. pp. 1572, 1573.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_95_95" id="Footnote_95_95"></a><a href="#FNanchor_95_95"><span class="label">[95]</span></a> Elliot’s Debates, (2d edit.,) Vol. III. p. 498.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_96_96" id="Footnote_96_96"></a><a href="#FNanchor_96_96"><span class="label">[96]</span></a> See, <i>ante</i>, Vol. XIV. pp. 15, seqq.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_97_97" id="Footnote_97_97"></a><a href="#FNanchor_97_97"><span class="label">[97]</span></a> Lex Parliamentaria Americana: Elements of the Law and Practice of -Legislative Assemblies in the United States, (2d edit.,) § 302.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_98_98" id="Footnote_98_98"></a><a href="#FNanchor_98_98"><span class="label">[98]</span></a> Trial of Judge Peck, Appendix, p. 499.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_99_99" id="Footnote_99_99"></a><a href="#FNanchor_99_99"><span class="label">[99]</span></a> 4 Institutes, pp. 14, 15.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_100_100" id="Footnote_100_100"></a><a href="#FNanchor_100_100"><span class="label">[100]</span></a> Commentaries, Vol. I. p. 181.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_101_101" id="Footnote_101_101"></a><a href="#FNanchor_101_101"><span class="label">[101]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_102_102" id="Footnote_102_102"></a><a href="#FNanchor_102_102"><span class="label">[102]</span></a> Lords’ Standing Orders: May’s Parliamentary Practice, (5th edit.,) -p. 221.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_103_103" id="Footnote_103_103"></a><a href="#FNanchor_103_103"><span class="label">[103]</span></a> May, Parliamentary Practice, Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_104_104" id="Footnote_104_104"></a><a href="#FNanchor_104_104"><span class="label">[104]</span></a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_105_105" id="Footnote_105_105"></a><a href="#FNanchor_105_105"><span class="label">[105]</span></a> Lex Parliamentaria Americana, (2d edit.,) § 288.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_106_106" id="Footnote_106_106"></a><a href="#FNanchor_106_106"><span class="label">[106]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_107_107" id="Footnote_107_107"></a><a href="#FNanchor_107_107"><span class="label">[107]</span></a> Ibid., p. 129, note.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_108_108" id="Footnote_108_108"></a><a href="#FNanchor_108_108"><span class="label">[108]</span></a> Ibid., p. 132.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_109_109" id="Footnote_109_109"></a><a href="#FNanchor_109_109"><span class="label">[109]</span></a> Lives of the Chancellors, (4th edit., London, 1856,) Vol. I. p. 15, note.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_110_110" id="Footnote_110_110"></a><a href="#FNanchor_110_110"><span class="label">[110]</span></a> Ibid., p. 15.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_111_111" id="Footnote_111_111"></a><a href="#FNanchor_111_111"><span class="label">[111]</span></a> Lives of the Chancellors, (4th edit.,) Vol. I. pp. 14, 15.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_112_112" id="Footnote_112_112"></a><a href="#FNanchor_112_112"><span class="label">[112]</span></a> Ibid., Vol. II. p. 229.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_113_113" id="Footnote_113_113"></a><a href="#FNanchor_113_113"><span class="label">[113]</span></a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_114_114" id="Footnote_114_114"></a><a href="#FNanchor_114_114"><span class="label">[114]</span></a> Campbell, Lives of the Chancellors, (4th edit.,) Vol. III. p. 156.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_115_115" id="Footnote_115_115"></a><a href="#FNanchor_115_115"><span class="label">[115]</span></a> Campbell, Lives of the Chancellors, (4th edit.,) Vol. III. p. 270.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_116_116" id="Footnote_116_116"></a><a href="#FNanchor_116_116"><span class="label">[116]</span></a> Ibid., p. 281.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_117_117" id="Footnote_117_117"></a><a href="#FNanchor_117_117"><span class="label">[117]</span></a> History of the Rebellion, (Oxford, 1826,) Book III., Vol. I. p. 381.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_118_118" id="Footnote_118_118"></a><a href="#FNanchor_118_118"><span class="label">[118]</span></a> Campbell, Lives of the Chancellors, (4th edit.,) Vol. IV. p. 68.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_119_119" id="Footnote_119_119"></a><a href="#FNanchor_119_119"><span class="label">[119]</span></a> Lives of the Chancellors, (4th edit.,) Vol. IV. p. 145.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_120_120" id="Footnote_120_120"></a><a href="#FNanchor_120_120"><span class="label">[120]</span></a> Ibid., p. 139.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_121_121" id="Footnote_121_121"></a><a href="#FNanchor_121_121"><span class="label">[121]</span></a> Ibid., p. 147.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_122_122" id="Footnote_122_122"></a><a href="#FNanchor_122_122"><span class="label">[122]</span></a> Campbell. Lives of the Chancellors, (4th edit.,) Vol. V. p. 46.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_123_123" id="Footnote_123_123"></a><a href="#FNanchor_123_123"><span class="label">[123]</span></a> Ibid., p. 102.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_124_124" id="Footnote_124_124"></a><a href="#FNanchor_124_124"><span class="label">[124]</span></a> Ibid., p. 106.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_125_125" id="Footnote_125_125"></a><a href="#FNanchor_125_125"><span class="label">[125]</span></a> Ibid., pp. 109, 114.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_126_126" id="Footnote_126_126"></a><a href="#FNanchor_126_126"><span class="label">[126]</span></a> Campbell, Lives of the Chancellors, (4th edit.,) Vol. V. p. 207.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_127_127" id="Footnote_127_127"></a><a href="#FNanchor_127_127"><span class="label">[127]</span></a> Ibid., p. 257.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_128_128" id="Footnote_128_128"></a><a href="#FNanchor_128_128"><span class="label">[128]</span></a> Ibid., p. 259.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_129_129" id="Footnote_129_129"></a><a href="#FNanchor_129_129"><span class="label">[129]</span></a> Ibid., p. 269.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_130_130" id="Footnote_130_130"></a><a href="#FNanchor_130_130"><span class="label">[130]</span></a> Ibid., p. 377.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_131_131" id="Footnote_131_131"></a><a href="#FNanchor_131_131"><span class="label">[131]</span></a> Howell’s State Trials, Vol. XVI. col. 768.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_132_132" id="Footnote_132_132"></a><a href="#FNanchor_132_132"><span class="label">[132]</span></a> Lives of the Chancellors, (4th edit.,) Vol. VI. p. 94.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_133_133" id="Footnote_133_133"></a><a href="#FNanchor_133_133"><span class="label">[133]</span></a> Campbell, Lives of the Chancellors, (4th edit.,) Vol. VI. p. 316.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_134_134" id="Footnote_134_134"></a><a href="#FNanchor_134_134"><span class="label">[134]</span></a> Ibid., Vol. I. p. 15, note.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_135_135" id="Footnote_135_135"></a><a href="#FNanchor_135_135"><span class="label">[135]</span></a> Twiss, Life of Eldon, Vol. I. p. 319.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_136_136" id="Footnote_136_136"></a><a href="#FNanchor_136_136"><span class="label">[136]</span></a> Congressional Debates, 19th Cong. 1st Sess., col. 759, 760, May 18, 1826.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_137_137" id="Footnote_137_137"></a><a href="#FNanchor_137_137"><span class="label">[137]</span></a> June 7, 1826.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_138_138" id="Footnote_138_138"></a><a href="#FNanchor_138_138"><span class="label">[138]</span></a> June 27, 29, 1826.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_139_139" id="Footnote_139_139"></a><a href="#FNanchor_139_139"><span class="label">[139]</span></a> Onslow, No. I.: National Intelligencer, June 27, 1826.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_140_140" id="Footnote_140_140"></a><a href="#FNanchor_140_140"><span class="label">[140]</span></a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_141_141" id="Footnote_141_141"></a><a href="#FNanchor_141_141"><span class="label">[141]</span></a> D’Ewes’s Journals, p. 683.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_142_142" id="Footnote_142_142"></a><a href="#FNanchor_142_142"><span class="label">[142]</span></a> Lex Parliamentaria Americana, (2d edit.,) § 294.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_143_143" id="Footnote_143_143"></a><a href="#FNanchor_143_143"><span class="label">[143]</span></a> Ibid., § 300.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_144_144" id="Footnote_144_144"></a><a href="#FNanchor_144_144"><span class="label">[144]</span></a> Hansard’s Parliamentary History, April 15, 1640, Vol. II. col. 535.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_145_145" id="Footnote_145_145"></a><a href="#FNanchor_145_145"><span class="label">[145]</span></a> Hatsell’s Precedents, (London, 1818,) Vol. II. p. 242.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_146_146" id="Footnote_146_146"></a><a href="#FNanchor_146_146"><span class="label">[146]</span></a> Hansard’s Parliamentary History, Vol. XXXVI. col. 915.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_147_147" id="Footnote_147_147"></a><a href="#FNanchor_147_147"><span class="label">[147]</span></a> Barclay’s Digest of the Rules of the House of Representatives, &c., p. 44.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_148_148" id="Footnote_148_148"></a><a href="#FNanchor_148_148"><span class="label">[148]</span></a> Barclay’s Digest, p. 114.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_149_149" id="Footnote_149_149"></a><a href="#FNanchor_149_149"><span class="label">[149]</span></a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_150_150" id="Footnote_150_150"></a><a href="#FNanchor_150_150"><span class="label">[150]</span></a> Cushing, Lex Parliamentaria Americana, (2d edit.,) § 306.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_151_151" id="Footnote_151_151"></a><a href="#FNanchor_151_151"><span class="label">[151]</span></a> Proceedings on the Impeachment of William Blount, p. 28.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_152_152" id="Footnote_152_152"></a><a href="#FNanchor_152_152"><span class="label">[152]</span></a> Commentaries, (2d edit.,) § 803, Vol. I. p. 560.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_153_153" id="Footnote_153_153"></a><a href="#FNanchor_153_153"><span class="label">[153]</span></a> Annals of Congress, 5th Cong., July 8, 1797, col. 44.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_154_154" id="Footnote_154_154"></a><a href="#FNanchor_154_154"><span class="label">[154]</span></a> See, <i>ante</i>, Vol. VIII. pp. 12, 13: Expulsion of Trusten Polk.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_155_155" id="Footnote_155_155"></a><a href="#FNanchor_155_155"><span class="label">[155]</span></a> Wooddeson, Lectures, Vol. II. p. 602.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_156_156" id="Footnote_156_156"></a><a href="#FNanchor_156_156"><span class="label">[156]</span></a> Speeches of the Managers and Counsel in the Trial of Warren Hastings, -ed. Bond, Vol. I. p. 4.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_157_157" id="Footnote_157_157"></a><a href="#FNanchor_157_157"><span class="label">[157]</span></a> Ibid., pp. 183, seqq.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_158_158" id="Footnote_158_158"></a><a href="#FNanchor_158_158"><span class="label">[158]</span></a> Constitutional History of England, (2d edit.,) Chap. XII., Vol. II. p. 554.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_159_159" id="Footnote_159_159"></a><a href="#FNanchor_159_159"><span class="label">[159]</span></a> No. LXV.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_160_160" id="Footnote_160_160"></a><a href="#FNanchor_160_160"><span class="label">[160]</span></a> View of the Constitution, (2d edit.,) p. 211.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_161_161" id="Footnote_161_161"></a><a href="#FNanchor_161_161"><span class="label">[161]</span></a> Commentaries, (2d edit.,) Vol. I. §§ 746, 764.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_162_162" id="Footnote_162_162"></a><a href="#FNanchor_162_162"><span class="label">[162]</span></a> History of the Constitution, pp. 260, 261.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_163_163" id="Footnote_163_163"></a><a href="#FNanchor_163_163"><span class="label">[163]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_164_164" id="Footnote_164_164"></a><a href="#FNanchor_164_164"><span class="label">[164]</span></a> Speech at St. Louis, September 8, 1866: McPherson’s Political History -of the United States during Reconstruction, p. 140.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_165_165" id="Footnote_165_165"></a><a href="#FNanchor_165_165"><span class="label">[165]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_166_166" id="Footnote_166_166"></a><a href="#FNanchor_166_166"><span class="label">[166]</span></a> Report from the Committee to inspect the Lords’ Journals: Burke’s -Works, Vol. XI. p. 12.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_167_167" id="Footnote_167_167"></a><a href="#FNanchor_167_167"><span class="label">[167]</span></a> 4 Institutes, p. 15. Burke, Vol. XI. p. 13.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_168_168" id="Footnote_168_168"></a><a href="#FNanchor_168_168"><span class="label">[168]</span></a> Crown Law, Discourse IV., pp. 389, 390. Burke, Vol. XI. p. 28.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_169_169" id="Footnote_169_169"></a><a href="#FNanchor_169_169"><span class="label">[169]</span></a> Burke’s Works, Vol. XI. p. 13.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_170_170" id="Footnote_170_170"></a><a href="#FNanchor_170_170"><span class="label">[170]</span></a> Lords’ Journals, Vol. IV. p. 133. Burke’s Works, Vol. XI. p. 14.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_171_171" id="Footnote_171_171"></a><a href="#FNanchor_171_171"><span class="label">[171]</span></a> Howell’s State Trials, Vol. XV. col. 467. Lords’ Journals, March 14, -1709-10, Vol. XIX. p. 107.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_172_172" id="Footnote_172_172"></a><a href="#FNanchor_172_172"><span class="label">[172]</span></a> Howell’s State Trials, Vol. XV. col. 471.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_173_173" id="Footnote_173_173"></a><a href="#FNanchor_173_173"><span class="label">[173]</span></a> Ibid., col. 473. Lords’ Journals, March 23, 1709-10, Vol. XIX. p. 121.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_174_174" id="Footnote_174_174"></a><a href="#FNanchor_174_174"><span class="label">[174]</span></a> Burke’s Works, Vol. XI. pp. 19, 20.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_175_175" id="Footnote_175_175"></a><a href="#FNanchor_175_175"><span class="label">[175]</span></a> Howell’s State Trials, Vol. XV. col. 877.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_176_176" id="Footnote_176_176"></a><a href="#FNanchor_176_176"><span class="label">[176]</span></a> Ibid., col. 883, 884.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_177_177" id="Footnote_177_177"></a><a href="#FNanchor_177_177"><span class="label">[177]</span></a> Howell’s State Trials, Vol. XV. col. 885.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_178_178" id="Footnote_178_178"></a><a href="#FNanchor_178_178"><span class="label">[178]</span></a> Ibid., col. 886.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_179_179" id="Footnote_179_179"></a><a href="#FNanchor_179_179"><span class="label">[179]</span></a> Ibid., col. 887.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_180_180" id="Footnote_180_180"></a><a href="#FNanchor_180_180"><span class="label">[180]</span></a> Lords’ Journals, March 19, 1715-16, Vol. XX. p. 316.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_181_181" id="Footnote_181_181"></a><a href="#FNanchor_181_181"><span class="label">[181]</span></a> Speeches of the Managers and Counsel in the Trial of Warren Hastings, -ed. Bond, Vol. I. p. 10.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_182_182" id="Footnote_182_182"></a><a href="#FNanchor_182_182"><span class="label">[182]</span></a> The Federalist, No. LXV.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_183_183" id="Footnote_183_183"></a><a href="#FNanchor_183_183"><span class="label">[183]</span></a> Burke’s Works, Vol. XI. p. 60.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_184_184" id="Footnote_184_184"></a><a href="#FNanchor_184_184"><span class="label">[184]</span></a> Burke’s Works, Vol. XI., p. 64.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_185_185" id="Footnote_185_185"></a><a href="#FNanchor_185_185"><span class="label">[185]</span></a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_186_186" id="Footnote_186_186"></a><a href="#FNanchor_186_186"><span class="label">[186]</span></a> Rationale of Judicial Evidence, Book IX. Part I. Ch. 3: Works, ed. -Bowring, (Edinburgh, 1843,) Vol. VII. p. 338.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_187_187" id="Footnote_187_187"></a><a href="#FNanchor_187_187"><span class="label">[187]</span></a> Omychund <i>v.</i> Barker, 1 Atkyns, R., 49.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_188_188" id="Footnote_188_188"></a><a href="#FNanchor_188_188"><span class="label">[188]</span></a> Mayor of Hull <i>v.</i> Horner, Cowper, R., 108.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_189_189" id="Footnote_189_189"></a><a href="#FNanchor_189_189"><span class="label">[189]</span></a> Burke’s Works, Vol. XI. p. 63.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_190_190" id="Footnote_190_190"></a><a href="#FNanchor_190_190"><span class="label">[190]</span></a> Fortescue, De Laudibus Legum Angliæ, Cap. XLII.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_191_191" id="Footnote_191_191"></a><a href="#FNanchor_191_191"><span class="label">[191]</span></a> Commentaries, Vol. II. p. 94.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_192_192" id="Footnote_192_192"></a><a href="#FNanchor_192_192"><span class="label">[192]</span></a> Blackstone, Commentaries, Vol. IV. p. 286.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_193_193" id="Footnote_193_193"></a><a href="#FNanchor_193_193"><span class="label">[193]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_194_194" id="Footnote_194_194"></a><a href="#FNanchor_194_194"><span class="label">[194]</span></a> Secretary Seward to Provisional Governor Marvin of Florida, September -12, 1865: McPherson’s Political History of the United States during -Reconstruction, p. 25.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_195_195" id="Footnote_195_195"></a><a href="#FNanchor_195_195"><span class="label">[195]</span></a> Howell’s State Trials, Vol. III. col. 1421.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_196_196" id="Footnote_196_196"></a><a href="#FNanchor_196_196"><span class="label">[196]</span></a> Coleridge.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_197_197" id="Footnote_197_197"></a><a href="#FNanchor_197_197"><span class="label">[197]</span></a> Statutes at Large, Vol. XIV. pp. 430-432.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_198_198" id="Footnote_198_198"></a><a href="#FNanchor_198_198"><span class="label">[198]</span></a> Section 1.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_199_199" id="Footnote_199_199"></a><a href="#FNanchor_199_199"><span class="label">[199]</span></a> Aldridge <i>v.</i> Williams, 3 Howard, R., 24.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_200_200" id="Footnote_200_200"></a><a href="#FNanchor_200_200"><span class="label">[200]</span></a> See, <i>ante</i>, p. 147.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_201_201" id="Footnote_201_201"></a><a href="#FNanchor_201_201"><span class="label">[201]</span></a> Bacon, Upon the Statute of Uses, Introductory Discourse: Works, ed. -Spedding, (Boston, 1864,) Vol. XIV. p. 285.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_202_202" id="Footnote_202_202"></a><a href="#FNanchor_202_202"><span class="label">[202]</span></a> Statutes at Large, Vol. I. p. 415.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_203_203" id="Footnote_203_203"></a><a href="#FNanchor_203_203"><span class="label">[203]</span></a> Statutes at Large, Vol. XII. p. 656.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_204_204" id="Footnote_204_204"></a><a href="#FNanchor_204_204"><span class="label">[204]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_205_205" id="Footnote_205_205"></a><a href="#FNanchor_205_205"><span class="label">[205]</span></a> Act of February 25, 1863, Sec. 1: Statutes at Large, Vol. XII. -pp. 665, 666.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_206_206" id="Footnote_206_206"></a><a href="#FNanchor_206_206"><span class="label">[206]</span></a> Sec. 5: Statutes at Large, Vol. XIV. p. 92.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_207_207" id="Footnote_207_207"></a><a href="#FNanchor_207_207"><span class="label">[207]</span></a> Howell’s State Trials, Vol. IV. col. 1070.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_208_208" id="Footnote_208_208"></a><a href="#FNanchor_208_208"><span class="label">[208]</span></a> Life, by Roger North, (London, 1826,) Vol. I. p. 20.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_209_209" id="Footnote_209_209"></a><a href="#FNanchor_209_209"><span class="label">[209]</span></a> 5 Wheaton, R., 291, seqq.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_210_210" id="Footnote_210_210"></a><a href="#FNanchor_210_210"><span class="label">[210]</span></a> 1 Cranch, R., 137, seqq.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_211_211" id="Footnote_211_211"></a><a href="#FNanchor_211_211"><span class="label">[211]</span></a> Speech of Sir James Marriott, Admiralty Judge, in the House of Commons, -March 15, 1782: Hansard’s Parliamentary History, Vol. XXII. col. -1184.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_212_212" id="Footnote_212_212"></a><a href="#FNanchor_212_212"><span class="label">[212]</span></a> <i>Ante</i>, pp. 148, seqq.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_213_213" id="Footnote_213_213"></a><a href="#FNanchor_213_213"><span class="label">[213]</span></a> Commentaries, Vol. II. p. 94.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_214_214" id="Footnote_214_214"></a><a href="#FNanchor_214_214"><span class="label">[214]</span></a> Ibid., Vol. III. p. 43.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_215_215" id="Footnote_215_215"></a><a href="#FNanchor_215_215"><span class="label">[215]</span></a> Speeches of the Managers and Counsel in the Trial of Warren Hastings, -ed. Bond, Vol. I. p. 11.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_216_216" id="Footnote_216_216"></a><a href="#FNanchor_216_216"><span class="label">[216]</span></a> Preface to Shakespeare: Works, (Oxford, 1825,) Vol. V. p. 118.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_217_217" id="Footnote_217_217"></a><a href="#FNanchor_217_217"><span class="label">[217]</span></a> History of the Rebellion, (Oxford, 1826,) Vol. IV. pp. 91, 92.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_218_218" id="Footnote_218_218"></a><a href="#FNanchor_218_218"><span class="label">[218]</span></a> Act of March 6, 1820: Statutes at Large, Vol. III. p. 548.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_219_219" id="Footnote_219_219"></a><a href="#FNanchor_219_219"><span class="label">[219]</span></a> Works, Vol. III. pp. 263, 264.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_220_220" id="Footnote_220_220"></a><a href="#FNanchor_220_220"><span class="label">[220]</span></a> Ibid., p. 264.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_221_221" id="Footnote_221_221"></a><a href="#FNanchor_221_221"><span class="label">[221]</span></a> Argument in the Case of Jones <i>v.</i> Vanzandt, pp. 62, 63.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_222_222" id="Footnote_222_222"></a><a href="#FNanchor_222_222"><span class="label">[222]</span></a> Debates in the Federal Convention, May 30, 1787: Madison Papers, -Vol. II. p. 751.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_223_223" id="Footnote_223_223"></a><a href="#FNanchor_223_223"><span class="label">[223]</span></a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_224_224" id="Footnote_224_224"></a><a href="#FNanchor_224_224"><span class="label">[224]</span></a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_225_225" id="Footnote_225_225"></a><a href="#FNanchor_225_225"><span class="label">[225]</span></a> Ibid., p. 752.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_226_226" id="Footnote_226_226"></a><a href="#FNanchor_226_226"><span class="label">[226]</span></a> Debates, June 11th: Ibid., p. 841.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_227_227" id="Footnote_227_227"></a><a href="#FNanchor_227_227"><span class="label">[227]</span></a> Debates, June 29th: Madison Papers, Vol. II. p. 995.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_228_228" id="Footnote_228_228"></a><a href="#FNanchor_228_228"><span class="label">[228]</span></a> Debates, June 8th: Ibid., p. 826.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_229_229" id="Footnote_229_229"></a><a href="#FNanchor_229_229"><span class="label">[229]</span></a> Debates, June 19th: Ibid., p. 902.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_230_230" id="Footnote_230_230"></a><a href="#FNanchor_230_230"><span class="label">[230]</span></a> No. XLIII. § 8.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_231_231" id="Footnote_231_231"></a><a href="#FNanchor_231_231"><span class="label">[231]</span></a> Commentaries on the Constitution, (2d edit.,) Vol. I. § 694.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_232_232" id="Footnote_232_232"></a><a href="#FNanchor_232_232"><span class="label">[232]</span></a> Elliot’s Debates, Vol. III. p. 367.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_233_233" id="Footnote_233_233"></a><a href="#FNanchor_233_233"><span class="label">[233]</span></a> The Federalist, No. LIV.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_234_234" id="Footnote_234_234"></a><a href="#FNanchor_234_234"><span class="label">[234]</span></a> Debates in the Federal Convention, June 29, 1787: Madison Papers, -Vol. II. p. 993.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_235_235" id="Footnote_235_235"></a><a href="#FNanchor_235_235"><span class="label">[235]</span></a> Deuteronomy, xxvii. 17.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_236_236" id="Footnote_236_236"></a><a href="#FNanchor_236_236"><span class="label">[236]</span></a> Act of February 25, 1862: Statutes at Large, Vol. XII. pp. 345-348.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_237_237" id="Footnote_237_237"></a><a href="#FNanchor_237_237"><span class="label">[237]</span></a> Statutes at Large, Vol. XII. p. 532.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_238_238" id="Footnote_238_238"></a><a href="#FNanchor_238_238"><span class="label">[238]</span></a> Speech in the Senate, February 13, 1862: <i>ante</i>, Vol. VI. p. 343.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_239_239" id="Footnote_239_239"></a><a href="#FNanchor_239_239"><span class="label">[239]</span></a> Quæstiones Juris Publici, tr. Du Ponceau, Lib. I. Cap. 24, p. 182.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_240_240" id="Footnote_240_240"></a><a href="#FNanchor_240_240"><span class="label">[240]</span></a> Bynkershoek, Quæst. Jur. Pub., tr. Du Ponceau, Lib. I. Cap. 24, p. 185.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_241_241" id="Footnote_241_241"></a><a href="#FNanchor_241_241"><span class="label">[241]</span></a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_242_242" id="Footnote_242_242"></a><a href="#FNanchor_242_242"><span class="label">[242]</span></a> Halleck, International Law, Ch. XII. § 29, p. 310.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_243_243" id="Footnote_243_243"></a><a href="#FNanchor_243_243"><span class="label">[243]</span></a> Wheaton, Elements of International Law, ed. Lawrence, (Boston, 1863,) -p. 528, note.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_244_244" id="Footnote_244_244"></a><a href="#FNanchor_244_244"><span class="label">[244]</span></a> Bynkershoek, Quæst. Jur. Pub., tr. Du Ponceau, Lib. I. Cap. 24, p. 188, -note.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_245_245" id="Footnote_245_245"></a><a href="#FNanchor_245_245"><span class="label">[245]</span></a> International Law, Ch. XII. § 11, p. 297.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_246_246" id="Footnote_246_246"></a><a href="#FNanchor_246_246"><span class="label">[246]</span></a> De Jure Belli ac Pacis, Lib. III. Cap. II. § <span class="smcapuc">V.</span> 2.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_247_247" id="Footnote_247_247"></a><a href="#FNanchor_247_247"><span class="label">[247]</span></a> Elements of International Law, ed. Lawrence, (Boston, 1863,) Part IV. -Ch. I. § 9, p. 529.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_248_248" id="Footnote_248_248"></a><a href="#FNanchor_248_248"><span class="label">[248]</span></a> Commentaries upon International Law, Part IX. Ch. II. § 19, Vol. III. -pp. 23, 24.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_249_249" id="Footnote_249_249"></a><a href="#FNanchor_249_249"><span class="label">[249]</span></a> Wheaton’s Elements of International Law, ed. Dana, p. 370, note.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_250_250" id="Footnote_250_250"></a><a href="#FNanchor_250_250"><span class="label">[250]</span></a> Le Droit des Gens, Liv. III. Ch. 4, § 63.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_251_251" id="Footnote_251_251"></a><a href="#FNanchor_251_251"><span class="label">[251]</span></a> International Law, Ch. XII. § 16, p. 302.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_252_252" id="Footnote_252_252"></a><a href="#FNanchor_252_252"><span class="label">[252]</span></a> De Jure Belli ac Pacis, Lib. III. Cap. II. § <span class="smcapuc">VII.</span> 2.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_253_253" id="Footnote_253_253"></a><a href="#FNanchor_253_253"><span class="label">[253]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_254_254" id="Footnote_254_254"></a><a href="#FNanchor_254_254"><span class="label">[254]</span></a> International Law, Ch. XII. § 10, p. 296.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_255_255" id="Footnote_255_255"></a><a href="#FNanchor_255_255"><span class="label">[255]</span></a> Remarks on Antiquities, Arts, and Letters, during an Excursion in -Italy, in the Years 1802 and 1803.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_256_256" id="Footnote_256_256"></a><a href="#FNanchor_256_256"><span class="label">[256]</span></a> Alison, History of Europe, (Edinburgh, 1843,) Ch. XXXVII. Vol. V. -pp. 113, 114.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_257_257" id="Footnote_257_257"></a><a href="#FNanchor_257_257"><span class="label">[257]</span></a> Mémorial de Sainte-Hélène, Tom. VII. pp. 32, 33. Alison, Vol. V. -p. 114.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_258_258" id="Footnote_258_258"></a><a href="#FNanchor_258_258"><span class="label">[258]</span></a> Junot, Mme., Duchesse d’Abrantès, Mémoires sur Napoléon, Tom. VI. -pp. 398-403. Alison, Vol. V. p. 115, note.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_259_259" id="Footnote_259_259"></a><a href="#FNanchor_259_259"><span class="label">[259]</span></a> Congressional Globe, 40th Cong. 2d Sess., Part V. p. 4331.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_260_260" id="Footnote_260_260"></a><a href="#FNanchor_260_260"><span class="label">[260]</span></a> Works, Vol. IV. pp. 78-80.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_261_261" id="Footnote_261_261"></a><a href="#FNanchor_261_261"><span class="label">[261]</span></a> Works, Vol. IV. p. 78.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_262_262" id="Footnote_262_262"></a><a href="#FNanchor_262_262"><span class="label">[262]</span></a> Paradise Lost, Book III. 437-439.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_263_263" id="Footnote_263_263"></a><a href="#FNanchor_263_263"><span class="label">[263]</span></a> Miscellaneous Works, (London, 1851,) p. 170.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_264_264" id="Footnote_264_264"></a><a href="#FNanchor_264_264"><span class="label">[264]</span></a> Walckenaër, in the Biographie Universelle, Tom. XXXV. p. 222, art. -Polo.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_265_265" id="Footnote_265_265"></a><a href="#FNanchor_265_265"><span class="label">[265]</span></a> Speech on Victory and Reconstruction, April 11, 1865: McPherson’s -Political History of the United States during the Rebellion, p. 609.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_266_266" id="Footnote_266_266"></a><a href="#FNanchor_266_266"><span class="label">[266]</span></a> Hudibras, Part III. Canto I. 1303-6.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_267_267" id="Footnote_267_267"></a><a href="#FNanchor_267_267"><span class="label">[267]</span></a> Resolutions of the National Democratic Convention, July, 1868: -McPherson’s Political History of the United States during Reconstruction, -p. 368.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_268_268" id="Footnote_268_268"></a><a href="#FNanchor_268_268"><span class="label">[268]</span></a> 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.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_269_269" id="Footnote_269_269"></a><a href="#FNanchor_269_269"><span class="label">[269]</span></a> 2 Chronicles, xiv. 7.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_270_270" id="Footnote_270_270"></a><a href="#FNanchor_270_270"><span class="label">[270]</span></a> Williams <i>v.</i> Suffolk Insurance Co.: 13 Peters, R., 420.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_271_271" id="Footnote_271_271"></a><a href="#FNanchor_271_271"><span class="label">[271]</span></a> 7 Howard, R., 42.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_272_272" id="Footnote_272_272"></a><a href="#FNanchor_272_272"><span class="label">[272]</span></a> Laws in relation to Freedmen: Executive Documents, 39th Cong. 2d -Sess., Senate, No. 6, pp. 170, seqq.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_273_273" id="Footnote_273_273"></a><a href="#FNanchor_273_273"><span class="label">[273]</span></a> Speech on Financial Reconstruction, <i>ante</i>, pp. 445, seqq.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_274_274" id="Footnote_274_274"></a><a href="#FNanchor_274_274"><span class="label">[274]</span></a> Carlyle’s French Revolution, (New York, 1867,) Book IX. Ch. 4.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_275_275" id="Footnote_275_275"></a><a href="#FNanchor_275_275"><span class="label">[275]</span></a> Thiers, Histoire de la Révolution Française, (Paris, 1837,) Tom. VIII. -p. 15: Directoire, Chap. I.</p> - -</div> - -<div class="footnote"> - -<p><a name="Footnote_276_276" id="Footnote_276_276"></a><a href="#FNanchor_276_276"><span class="label">[276]</span></a> Travels of Marco Polo, ed. Marsden, (London, 1818,) pp. 353, 354, -521, 547.</p> - -</div> - -</div> - - - - - - - - -<pre> - - - - - -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-h.htm or 50167-h.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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