Chapter VIII: Front Matter (8)

This case, from beginning to end, is a curious episode of Antislavery history. The people of Washington were surprised, on the morning of April 16, 1848, at hearing that the "Pearl," a schooner from the North, had sailed down the Potomac with seventy-six slaves, who had hurried aboard in the vain hope of obtaining their freedom. The schooner was pursued and brought back to Washington with her human cargo, and the liberators, Drayton, master, and Sayres, mate. As the latter were taken from the river-side to the jail, they were followed by a proslavery mob, estimated at from four to six thousand people, many armed with deadly weapons, amid wrathful cries of, "Hang him!" "Lynch him!" with all profanities and abominations of speech, and exposed to violence of all kinds,--the thrust of a dirk-knife coming within an inch of Drayton. The same mob besieged the jail, and, hearing that Hon. Joshua E. Giddings, the brave Representative of Ohio, was there in consultation with the prisoners, demanded his immediate expulsion, and the jailer, to save bloodshed, insisted upon his departure. Nor was the prevailing rage confined to the jail. It extended to the office of the "National Era," the Antislavery paper, which was saved from destruction only through the courage and calmness of its admirable editor. The spirit of the mob entered both Houses of Congress, and the slave-masters raged, as was their wont.

Meanwhile Drayton and Sayres were indicted before the Criminal Court of the District of Columbia for "transporting" slaves. There were no less than one hundred and fifteen indictments against each of the prisoners, and the bail demanded of each was seventy-six thousand dollars. Hon. Horace Mann, a Representative of Massachusetts, appeared for the defence. His speech on this occasion will be read with constant interest.[93] The spirit of the mob without entered the court-room, betraying itself even in the conduct of the judge, while standing near the devoted counsel for the defence were men who cocked pistols and drew dirks in the mob that followed the prisoners to the jail. Of course the verdict was "Guilty," and the sentence was according to the extreme requirement of a barbarous law.

[93] Slavery: Letters and Speeches by Horace Mann, pp. 84-118.

Drayton and Sayres lingered in prison more than four years, and during this long incarceration they were the objects of much sympathy at the North. A petition to Congress in their behalf, signed by leading Abolitionists, including the eloquent Wendell Phillips, was forwarded to Mr. Sumner for presentation to the Senate. On careful consideration, he was satisfied that such a petition, if presented, would excite the dominant power to insist more strongly than ever on the letter of the law, and he took the responsibility of withholding it. Meanwhile he visited the sufferers in prison, and appealed to President Fillmore for their pardon. In this application he was aided by that humane lady, Miss Dix. The President interposed doubts of his right to pardon in such a case, but expressed a desire for light on this point. At his invitation, Mr. Sumner laid before him the following paper, which was referred to the Attorney-General, Mr. Crittenden, who gave an opinion affirming the power of the President,--adding, however, "Whether the power shall be exercised in this instance is another and very different question."[94] This opinion bears date August 4, 1852, which, it will be observed, was some time after the Presidential Conventions of the two great political parties. Shortly afterwards the pardon was granted.

There was reason to believe that an attempt would be made to arrest the pardoned persons on warrants from the Governor of Virginia. Anticipating this peril, Mr. Sumner, as soon as the pardon was signed, hurried to the jail in a carriage, and, taking them with him, put them in charge of a friend, who conveyed them that night to Baltimore, a distance of forty miles, where they arrived in season for the early morning trains North, and in a few hours were out of danger.

By the laws of Maryland, 1737, chapter 2, section 4, it is provided that any person "who shall steal any negro or other slave, or who shall counsel, hire, aid, abet, or command any person or persons" to do so, "shall suffer death as a felon." The punishment has since been changed to imprisonment, for a term not less than seven nor more than twenty years.

[94] Opinions of Attorneys-General, Vol. V. pp. 580-591.

Fourteen years later, by the act of 1751, chapter 14, section 10, it was provided, that, "if any free person shall entice and persuade any slave within this province to run away, and who shall actually run away, from the master, owner, or overseer, and be convicted thereof, by confession, or verdict of a jury upon an indictment or information, shall forfeit and pay the full value of such slave to the master or owner of such slave, to be levied by execution on the goods, chattels, lands, or tenements of the offender, and, in case of inability to pay the same, shall suffer one year's imprisonment without bail or mainprise."

Still later, by the act of 1796, chapter 67, section 19, "the transporting of any slave or any person held to service" from the State was made a distinct offence, for which the offender was liable in an action of damages, and also by indictment.

By the Act of Congress organizing the District of Columbia (February 27, 1801) it was declared, that "the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of the said District which was ceded by that State to the United States, and by them accepted as aforesaid." Under this provision, these ancient laws of Maryland are to this day of full force in the District of Columbia.

* * * * *

The facts to be considered are few. Messrs. Drayton and Sayres, on indictment and trial, under the act of 1737, for stealing slaves, were acquitted, the jury rendering a verdict of "Not guilty." Resort was then had to the statute of 1796, chapter 67, section 19, as follows.

"And be it enacted, That any person or persons, who shall
hereafter be convicted of giving a pass to any slave, or person
held to service, or shall be found to assist, by advice, donation,
or loan, or otherwise, the transporting of any slave, or any person
held to service, from this State, or by any other unlawful means
depriving a master or owner of the service of his slave, or person
held to service, for every such offence the party aggrieved shall
recover damages in an action on the case against such offender or
offenders; and such offender or offenders also shall be liable,
upon indictment, and conviction upon verdict, confession, or
otherwise, in this State, in any county court where such offence
shall happen, [to] be fined a sum not exceeding two hundred
dollars, at the discretion of the court, one half to the use of the
master or owner of such slave, the other half to the county school,
in case there be any; if no such school, to the use of the county."

* * * * *

Under this statute, proceedings were instituted by the Attorney of the District of Columbia against these parties, in seventy-four different indictments, each indictment being founded on the alleged "transporting" of a single slave. On conviction, Drayton was sentenced on each indictment to a fine of $140 and costs, in each case $19.49, amounting in the sum-total to $11,802.26. On conviction, Sayres was sentenced on each indictment to a fine of $100 and costs, in each case $17.38, amounting in the sum-total to $8,686.12. One half of the fine was, according to law, to the use of the masters or owners of the slaves transported; the other half, to the county school,--or, in case there were no such school, to the use of the county. Afterwards, on motion of the Attorney for the District, they were "prayed in commitment," and committed until the fine and costs should be paid. In pursuance of this sentence, and on this motion, they have been detained in prison, in the City of Washington, since April, 1848, and are still in prison, unable from poverty to pay these large fines. The question now occurs as to the power of the President to pardon them, _so at least as to relieve them from imprisonment_.

* * * * *

The peculiar embarrassment in this case arises from the nature of the sentence. If it were simply a sentence of imprisonment, the power of the President would be unquestionable. So, also, if it were a sentence of imprisonment, with fine superadded, payable to the United States, his power would be unquestionable; and the same power would extend to the case of a fine payable to the United States, with imprisonment as the alternative on non-payment of the fine.

But in the present case imprisonment is the alternative for non-payment of fines which are not payable to the United States, but to other parties, namely, the slave-owners and the county. It is important, however, to bear in mind that these fines are a mere donation to these parties, and not a compensation for services rendered. These parties are not informers, nor were the proceedings in the nature of a _qui tam_ action.

It should be distinctly understood, at the outset, that the proceedings against Drayton and Sayres were not at the suit of any informer or private individual, but at the prosecution of the United States by indictment. They are therefore removed from the authority of the English cases, which protect the share of an informer after judgment from remission by pardon from the crown.

* * * * *

The power of the President in the present case may be regarded, _first_, in the light of the Common Law,--_secondly_, under the statutes of Maryland,--and, _thirdly_, under the Constitution of the United States.

* * * * *

_First._ As to the _Common Law_, it may be doubtful, whether, according to early authorities, the pardoning power can be used so as to bar or divest any legal interest, benefit, or advantage vested in a private individual. It is broadly stated by English writers that it cannot be so used. (2 Hawkins, P.C., 392, Book II., chap. 37, sec. 34; 17 Viner's Abridgment, 39, Prerogative of the King, U. art. 7.) But this principle does not seem to be sustained by practical cases in the United States, except in the instances of informers and _qui tam_ actions, while, on one occasion, in a leading case of Kentucky, it was rejected. (_Routt_ v. _Feemster_, 7 J.J. Marshall, 132.)

But it is clearly established, that, where the fine is allotted to a public body, or a public officer, for a public purpose, it may be remitted by pardon. This may be illustrated by several cases.

1. As where, in Pennsylvania, the fine was for the benefit of the county. In this case the Court said: "Until the money is collected and paid into the treasury, the constitutional right of the Governor to pardon the offender, and remit the fine or forfeiture, remains in full force. They can have no more vested interest in the money than the Commonwealth, under the same circumstances, would have had; and it cannot be doubted, that, until the money reaches the treasury, the Governor has the power to remit.... In the case of costs, private persons are interested in them; but as to fines and forfeitures, they are imposed upon principles of public policy. The latter, therefore, are under the exclusive control of the Governor." (_Commonwealth_ v. _Denniston_, 9 Watts, 142.) The same point is also illustrated by a case in Illinois. (_Holliday_ v. _The People_, 5 Gilman, 214-217.)

2. As where, in Georgia, the fine was to be paid to an inferior court for county purposes. (_In Re_ Flournoy, Attorney-General, 1 Kelly, 606-610.)

3. As where, in South Carolina, the fine was to be paid to the Commissioners of Public Buildings, for public purposes, (_The State_ v. _Simpson_, 1 Bailey, 378,) or the Commissioners of the Roads. (_The State_ v. _Williams_, 1 Nott & McCord, 26. See also _Rowe_ v. _The State_, 2 Bay, 565.)

According to these authorities, the portion of the fine allotted to the county, or to the school, may be remitted. Of this there can be no doubt.

* * * * *

_Secondly._ _The Statutes of Maryland_, anterior to the organization of the District of Columbia, may also be regarded as an independent source of light on this question, since these statutes are made the law of the District. And here the conclusion seems to be easy.

By the Constitution of Maryland, adopted November 8th, 1776, it is declared: "The Governor may grant reprieves or pardons for any crime, except in such cases where the law shall otherwise direct." Notwithstanding these strong words of grant, which seem to be as broad as the Common Law, it was further, as if to remove all doubt, declared by the Legislature, in 1782 (Chap. 42, sec. 3): "That the Governor, with the advice of the Council, be authorized _to remit the whole or any part of any fine_, penalty, or forfeiture, heretofore imposed, or hereafter to be imposed, in any court of law." Here is no exception or limitation of any kind. By express words, the Governor is authorized to remit the whole or any part of any fine. Of course, under this clause he cannot remit a private debt; but he may remit _any fine_. The question is not, whether the fine be payable to the United States or other parties, but whether it is _a fine_. If it be a fine, it is in the power of the Governor.

This view is strengthened by the circumstance, that in Maryland, according to several statutes, fines are allotted to parties other than the Government. The very statute of 1796, under which these proceedings were had, was passed subsequently to this provision respecting the remission of fines. It must be interpreted in harmony with the earlier statute; and since all these statutes are now the law of the District of Columbia, the power of the President, under these laws, to remit these fines, seems established without special reference to the Common Law or to the Constitution of the United States.

If this were not the case, two different hardships would ensue: first, the statute of 1782 would be despoiled of its natural efficacy; and, secondly, the minor offence of "transporting" a single slave would be punishable, on non-payment of the fine, with imprisonment for life, while the higher offence of "stealing" a slave is punishable with imprisonment for a specific term, and the other offence of "enticing" a slave is punishable with a fine larger than that for transporting a slave, and, on non-payment thereof, imprisonment for one year only.

* * * * *

_Thirdly._ Look at the case under the _Constitution of the United States_.

By the Constitution, the President has power "to grant reprieves and pardons for offences against the United States, except in cases of impeachment." According to a familiar rule of interpretation, the single specified exception leaves the power of the President applicable to all other cases: _Expressio unius exclusio est alterius_. Mr. Berrien, in one of his opinions as Attorney-General, recognizes "the pardoning power as coextensive with the power to punish"; and he quotes with approbation the words of another writer, that "the power is general and unqualified," and that "the remission of fines, penalties, and forfeitures, under the revenue laws, is included in it." (Opinions of the Attorneys-General, Vol. I. p. 756.)

On this power Mr. Justice Story thus remarks: "The power of remission of fines, penalties, and forfeitures is also included in it, and may, in the last resort, be exercised by the Executive, although it is in many cases by our laws confided to the Treasury Department. No law can abridge the constitutional powers of the Executive Department, or interrupt its right to interpose by pardon in such cases.--Instances of the exercise of this power by the President, in remitting fines and penalties, in cases not within the scope of the laws giving authority to the Treasury Department, have repeatedly occurred, and their obligatory force has never been questioned." (Story, Com. on Constitution, Vol. II. § 1504.)

It has been decided by the Supreme Court, after elaborate argument, that "the Secretary of the Treasury has authority, under the Remission Act of the 3d of March, 1797, chap. 361, to remit a forfeiture or penalty accruing under the revenue laws, at any time, before or after a final sentence of condemnation or judgment for the penalty, until the money is actually paid over to the Collector for distribution"; and that "such remission extends to the shares of the forfeiture or penalty to which the officers of the customs are entitled, as well as to the interest of the United States." In giving his opinion on this occasion, Mr. Justice Johnson, of South Carolina, made use of language much in point. "Mercy and justice," he said, "could only have been administered by halves, if collectors could have hurried causes to judgment, and then clung to the one half of the forfeiture, in contempt of the cries of distress or the mandates of the Secretary." (_United States_ v. _Morris_, 10 Wheaton, 303.)

A case has occurred in Kentucky, to which reference has been already made, in which it is confidently and broadly assumed that the pardoning power under the Constitution extends even to the penalties due to informers. The following passage occurs in the opinion of the Court. "The act of 1823 says that any prosecuting attorney, who shall prosecute any person to conviction under it, shall be entitled to twenty-five per cent of the amount of such fine as shall be collected.... The act gives the prosecuting attorney one fourth of the money, when collected, but vests him with no interest in the fine or sentence, separate and distinct from that of the Commonwealth, that would screen his share from the effect of any legal operation which should, before collection, abrogate the whole or a part of it. It would require language of the strongest and most explicit character to authorize a presumption that the Legislature intended to confer any such right. We could never presume an intention to control the Governor's constitutional power to remit fines and forfeitures. _If he can in this way be restrained in the exercise of his power to remit for the fourth of a fine, so can he be for_ _the half or the whole. This part of his prerogative cannot be curtailed. With the exception of the case of treason, his power to remit fines and forfeitures, grant reprieves and pardons, is unlimited, illimitable, and uncontrollable. It has no bounds but his own discretion._ It is no doubt politic and proper for the Legislature to incite prosecuting attorneys and informers, by giving them a portion of fines, when collected; but in so doing the citizen cannot be debarred of his right of appeal to executive clemency." (_Routt_ v. _Feemster_, 7 J.J. Marshall, 132.)

According to these authorities, it seems reasonable to infer, that, under the Constitution of the United States, the pardoning power, which is clearly applicable to the offence of "transporting" slaves of the District, might remit the penalties in question. These penalties, though allotted to the owners and the county, when finally collected, are neither more nor less than the punishment, under sentence of a criminal court, for an offence of which the parties stand convicted upon indictment. They can be collected and acquitted only by the United States. No process for this purpose is at the command of the slave-owner. He had no control whatever over the prosecution at any stage, nor did it proceed at his suggestion or information. The very statute under which these public proceedings were instituted in the name of the United States secured to the slave-owner his private action on the case for damages,--thus separating the public from the private interests. These it seems the duty of the President to keep separate, except on the final collection and distribution of the penalties. Public policy and the ends of justice require that the punishment for a criminal offence should, in every case, be exclusively subject to the supreme pardoning power, without dependence upon the will of any private person. An obvious case will illustrate this. Suppose, in the case of Drayton and Sayres, it should be ascertained beyond doubt that the conviction was procured by perjury. If, by virtue of the judgment, the slave-owners have an interest in the imprisonment of these men which cannot be touched, then the prisoners, unable to meet these heavy liabilities, must continue in perpetual imprisonment, or owe their release to the accident of private good-will. The President, notwithstanding his beneficent power to pardon, under the Constitution, will be powerless to remedy this evil. But such a state of things would be monstrous; and any interpretation of the Constitution is monstrous which thus ties his hands. Mercy and justice would be rendered not merely _by halves_, but, owing to the inability of prisoners, from poverty, to pay the other half of the fine, they would be entirely arrested.

The power of pardon, which is attached by the Constitution to offences generally, should not be curtailed. It is a generous prerogative, and should be exercised generously. _Boni judicis est ampliare jurisdictionem._ This is an old maxim of the law. But if it be the duty of a good judge to extend his jurisdiction, how much more is it the duty of a good President to extend the field of his clemency! At least, no small doubt should deter him from the exercise of his prerogative.

* * * * *

The conclusion from this review is as follows.

1. By the English Common Law the costs and one half of the fines may be remitted. It is not certain that by this law, as adopted in the United States, the other half of the fines may not also be remitted.

2. Under the statutes of Maryland, now the law of the District, the Governor, and, of course, the President, may remit "the whole or any part of any fine," without exception.

3. Under the Constitution of the United States, and according to its true spirit, the pardoning power of the President is coextensive with the power to punish, except in the solitary case of impeachment.

* * * * *

Several courses are open to the President in the present case.

I. By a _general pardon_ he may discharge Drayton and Sayres _from prison, and remit all the fines and costs for which they are detained_. Such a pardon would unquestionably operate effectually upon the imprisonment and upon the costs, and also upon the half of the fines due to the county. It would be for the courts, on a proper application, and in the exercise of their just powers, to restrict it, if the pardon did not operate upon the other moiety.

Among the opinions of the Attorney-General is a case which illustrates this point. In 1824 Joshua Wingate prayed for a credit, in the settlement of his accounts, for his proportion of a fine incurred by one Phineas Varney. It appeared that suit was instituted by the petitioner as Collector of the District of Bath, Maine, on which judgment was obtained in May, 1809; the defendant was arrested and committed to jail, under execution on that judgment, and the fine was afterwards remitted by the President. The petitioner contended that the President had no constitutional or legal power to remit his proportion of the fine, the right to which had vested by the institution of the suit. On this Mr. Wirt remarks, that "it is unnecessary to express an opinion upon the correctness of this position, because, if it be correct, the act of remission by the President being wholly inoperative as to that portion of the fine claimed by the collector, his legal right to recover it remained in full force, notwithstanding the remission; and it is his own fault, if he has not enforced his right at law." (Opinions of the Attorneys-General, Vol. I. p. 479.)

A general pardon cannot conclude the question so as to divest any existing rights. It can do no wrong. Why should the President hesitate to exercise it?

II. By a _limited pardon_ the President may discharge Drayton and Sayres simply and exclusively _from their imprisonment, without touching their pecuniary liability_, but leaving them still exposed to proceedings for all fines and costs, to be satisfied out of any property they may hereafter acquire.

If the imprisonment were a specific part of the sentence,--as, if they had been sentenced to one year's imprisonment and a fine of one hundred dollars,--beyond all question they might be discharged, by pardon, from this imprisonment. But where the imprisonment, as in the present case, is not a specific part of the sentence, but simply an alternative in the nature of a remedy, to secure the payment of the fine, the power of the President cannot be less than in the former case.

So far as all private parties are concerned, the imprisonment is a mere matter of _remedy_, which can be discharged without divesting the beneficiaries of any rights; and since imprisonment for debt has been abolished, it is reasonable, under the circumstances, that this peculiar remedy should be discharged.

III. By another form of _limited pardon_, the President may discharge Drayton and Sayres _from their imprisonment, also from all fines and costs in which the United States have an interest_, without touching the rights of other parties.

This would set them at liberty, but would leave them exposed to private proceedings at the instigation of the owners of the "transported" slaves, if any should be so disposed.

IV. By still another form of pardon, reference may be made to the Maryland statute of 1782, under which the Governor is authorized "to remit the whole or any part of any fine," without any exception therefrom; and this power, now vested in the President, may be made the express ground for the remission of all fines and costs due from Drayton and Sayres. By this form of pardon the case may be limited, as a precedent hereafter, to a very narrow circle of cases. It would not in any way affect cases arising under the general laws of the Union.

In either of these alternatives the great object of this application would be gained,--the discharge of these men from prison.

CHARLES SUMNER.

May 14, 1852.

* * * * *

PRESENTATION OF A MEMORIAL AGAINST THE
FUGITIVE SLAVE BILL.

REMARKS IN THE SENATE, MAY 26, 1852.

In the Senate, Wednesday, 26th May, 1852, on the presentation of a Memorial against the Fugitive Slave Bill, the following passage occurred, which illustrates the sensitiveness of the Senate with regard to Slavery and the impediments to its discussion. Mr. Sumner said:--

Mr. President,--I hold in my hand, and desire to present, a memorial from the representatives of the Society of Friends in New England, formally adopted at a public meeting, and authenticated by their clerk, in which they ask for the repeal of the Fugitive Slave Bill. After setting forth their sentiments on the general subject of Slavery, the memorialists proceed as follows.

"We, therefore, respectfully, but earnestly and sincerely, entreat
you to repeal the law of the last Congress respecting fugitive
slaves: first and principally, because of its injustice towards a
long sorely oppressed and deeply injured people; and, secondly,
in order that we, together with other conscientious sufferers,
may be exempted from the penalties which it imposes on all who,
in faithfulness to their Divine Master, and in discharge of their
obligations to their distressed fellow-men, feel bound to regulate
their conduct, even under the heaviest penalties which man can
inflict for so doing, by the divine injunction, 'All things
whatsoever ye would that men should do to you, do ye even so to
them,' and by the other commandment, 'Thou shalt love the Lord thy
God with all thy heart, and thy neighbor as thyself.'"

Mr. President,--This memorial is commended by the character of the religious association from which it proceeds,--men who mingle rarely in public affairs, but with austere virtue seek to carry the Christian rule into life.

THE PRESIDENT [Mr. KING, of Alabama]. The Chair will have to
interpose. The Senator is not privileged to enter into a discussion
of the subject now. The contents of the memorial, simply, are to
be stated, and then it becomes a question whether it is to be
received, if any objection is made to its reception. Silence gives
consent. After it is received, he can make a motion with regard to
its reference, and then make any remarks he thinks proper.

MR. SUMNER. I have but few words to add, and then I propose to move
the reference of the memorial to the Committee on the Judiciary.

THE PRESIDENT. The memorial has first to be received, before
any motion as to its reference can be entertained. The Senator
presenting a memorial states distinctly its objects and contents;
then it is sent to the Chair, if a reference of it is desired. But
it is not in order to enter into a discussion of the merits of the
memorial until it has been received.[95]

MR. SUMNER. I do not propose to enter into any such discussion. I
have already read one part of the memorial, and it was my design
merely to refer to the character of the memorialists,--a usage
which I have observed on this floor constantly,--and to state the
course I should pursue, concluding with a motion for a reference.

[95] On any subject but Slavery there was no check upon Senators
at any time.

THE PRESIDENT. The Chair will hear the Senator, if such is the
pleasure of the Senate, if he does not go into an elaborate
discussion.

MR. SUMNER. I have no such purpose.

MR. DAWSON [of Georgia]. Let him be heard.

SEVERAL SENATORS. Certainly.

MR. SUMNER. I observed that this memorial was commended by the
character of the religious association from which it proceeds. It
is commended also by its earnest and persuasive tone, and by the
prayer which it presents. Offering it now, Sir, I desire simply
to say, that I shall deem it my duty, on some proper occasion
hereafter, to express myself at length on the matter to which it
relates. Thus far, during this session, I have forborne. With the
exception of an able speech from my colleague [Mr. DAVIS], the
discussion of this all-absorbing question has been mainly left
with Senators from another quarter of the country, by whose mutual
differences it is complicated, and between whom I do not care
to interfere. But there is a time for all things. Justice also
requires that both sides should be heard; and I trust not to expect
too much, when, at some fit moment, I bespeak the clear and candid
attention of the Senate, while I undertake to set forth, frankly
and fully, and with entire respect for this body, convictions
deeply cherished in my own State, though disregarded here, to
which I am bound by every sentiment of the heart, by every fibre
of my being, by all my devotion to country, by my love of God and
man. Upon these I do not enter now. Suffice it, for the present,
to say, that, when I undertake that service, I believe I shall
utter nothing which, in any just sense, can be called _sectional_,
unless the Constitution is sectional, and unless the sentiments
of the Fathers were sectional. It is my happiness to believe, and
my hope to be able to show, that, according to the true spirit of
the Constitution, and according to the sentiments of the Fathers,
FREEDOM, and not _Slavery_, is NATIONAL, while SLAVERY, and not
_Freedom_, is SECTIONAL.

In duty to the petitioners, and with the hope of promoting their
prayer, I move the reference of their petition to the Committee on
the Judiciary.

A brief debate ensued, in which Messrs. Mangum, of North Carolina, Badger, of North Carolina, Hale, of New Hampshire, Clemens, of Alabama, Dawson, of Georgia, Adams, of Mississippi, Butler, of South Carolina, and Chase, of Ohio, took part; and, on motion of Mr. Badger, the memorial was laid on the table.

* * * * *

THE NATIONAL FLAG THE EMBLEM OF UNION FOR FREEDOM.

LETTER TO THE BOSTON COMMITTEE FOR THE CELEBRATION OF THE 4TH OF
JULY, 1852.

WASHINGTON, July 2, 1852.

Dear Sir,--It will not be in my power to unite with my
fellow-citizens of Boston in celebrating the approaching
anniversary of our national independence. I venture, however, in
response to the invitation with which I have been honored, to
recall an incident not unworthy of remembrance, especially in our
local history.

The thirteen stripes which now distinguish our national flag were
first unfurled by Washington, when in command of the American
forces which surrounded Boston, after the Battle of Bunker Hill,
and before the Declaration of Independence. Thus early was this
emblem of Union consecrated to Freedom. Our great chief at once
gave to the new ensign a name which may speak to us still. In
a letter, written at the time, he calls it the Union Flag, and
declares why it was first displayed. His language is, that
he had "_hoisted the UNION FLAG in compliment to the UNITED
Colonies_."[96] Afterwards, on the 14th of June, 1777, by a
resolution of the Continental Congress, the stars and stripes were
formally adopted as the flag of the _United States_.

[96] Letter to Joseph Reed, Jan. 4, 1776: Writings, ed. Sparks,
Vol. III. p. 225.

This piece of history suggests a sentiment which I beg leave to
offer.

_Our National Flag._ First hoisted before Boston, as the emblem of
Union for the sake of Freedom. Wherever it floats, may it never
fail to inspire the sentiments in which it had its origin!

I have the honor to be, dear Sir,

Your faithful servant,

CHARLES SUMNER.

Hon. BENJAMIN SEAVER, Chairman of the Committee, &c., &c.

* * * * *

UNION AGAINST THE SECTIONALISM OF SLAVERY.

LETTER TO A FREE-SOIL CONVENTION AT WORCESTER,
JULY 6, 1852.

This Convention was organized with the following officers: Hon. Stephen C. Phillips, of Salem, President,--William Davis, of Plymouth, Gershom B. Weston, of Duxbury, Edward L. Keyes, of Dedham, William B. Spooner, of Boston, John G. Palfrey, of Cambridge, John B. Alley, of Lynn, Samuel E. Sewall, of Stoneham, John W. Graves, of Lowell, John Milton Earle, of Worcester, William Jackson, of Newton, Rodolphus B. Hubbard, of Sunderland, Caleb Swan, of Easton, Joel Hayden, of Williamsburg, William M. Walker, of Pittsfield, Vice-Presidents,--Robert Carter, of Cambridge, George F. Hoar, of Worcester, S.B. Howe, of Lowell, Andrew J. Aiken, of North Adams, S.L. Gere, of Northampton, Secretaries.

The resolutions were reported by Hon. Henry Wilson.

WASHINGTON CITY, July 3, 1852.

Dear Sir,--The true and well-tried friends of Freedom in
Massachusetts are about to assemble at Worcester. It will not
be in my power to be with them, to catch the contagion of their
enthusiasm, to be strengthened by their determination, and to learn
anew from eloquent lips the grandeur of our cause and the exigency
of our duties. But I confidently look to them for trumpet words
which shall again rally the country against the _sectionalism_ of
Slavery.

At Worcester, in 1848, commenced the first strong movement, which,
gaining new force at Buffalo, and sweeping the Free States,
enrolled three hundred thousand electors in constitutional
opposition to a hateful wrong. The occasion now requires a similar
effort. Both the old parties, with apostasy greater than that
which aroused our condemnation at that time, have trampled on the
Declaration of Independence, and the most cherished sentiments of
the Fathers of the Republic. Even liberty of speech is threatened.
It is difficult to see how any person, loyal to Freedom, and
desirous of guarding it by all constitutional means, can support
the national candidates of either of these parties, without
surrendering the cause he professes to have at heart. Let no man
expect from me any such surrender.

The two Conventions at Baltimore, by their recorded resolutions,
have vied with each other in servility to Slavery. But I rejoice
to believe that in both parties there are large numbers of good
men who will scorn these professions. The respectable persistence
in opposition to the Black Flag, which distinguished at least one
of the Conventions, furnishes an earnest for the future, though
Massachusetts can derive small encouragement from her delegates
there. All her votes in that Convention were cast in favor of those
declarations by which Slavery has received new safeguards and
Freedom new restrictions.

But these efforts are doomed to disappointment. In spite of the
clamors of partisans and the assumptions of the Slave Power, there
is one principle which must soon prevail. It cannot be too often
declared; for it is an all-sufficient basis for our political
position, and an answer also to the cry of "Sectionalism," by
which the prejudices of the country are ignorantly and illogically
directed against us. According to the true spirit of the
Constitution and the sentiments of the Fathers, _Freedom_, and
not Slavery, is _national_, while _Slavery_, and not Freedom, is
_sectional_. Though this proposition commends itself at once,
and is sustained by the history of the Constitution, yet both
the great parties, under the influence of the Slave Power, have
reversed the true application of its terms. A _National_ Whig
is simply a Slavery Whig, and a _National_ Democrat is simply a
Slavery Democrat, in contradistinction to all who regard Slavery
as a _sectional_ institution, within the exclusive control of the
States, and with which the Nation has nothing to do. In upholding
Freedom everywhere under the _National_ Government, we oppose a
pernicious _sectionalism_, which falsely calls itself _national_.
All this will yet be seen and acknowledged.

Amidst the difficulties and defections at the present moment, the
Future is clear. Nothing can permanently obstruct Truth. But our
duties increase with the occasion; nor will the generous soul be
deterred by the greatness of the peril. Any such will be content
to serve Freedom, to support her supporters, and to leave the
result to Providence. Better be where Freedom is, though in a
small minority or alone, than with Slavery, though surrounded by
multitudes, whether Whigs or Democrats, contending merely for
office and place.

Believe me, dear Sir, ever faithfully yours,

CHARLES SUMNER.

Hon. E.L. KEYES.

* * * * *

"STRIKE, BUT HEAR": ATTEMPT TO DISCUSS THE
FUGITIVE SLAVE BILL.

REMARKS IN THE SENATE, ON TAKING UP THE RESOLUTION INSTRUCTING THE
COMMITTEE ON THE JUDICIARY TO REPORT A BILL FOR IMMEDIATE REPEAL OF THE
FUGITIVE SLAVE ACT, JULY 27 AND 28, 1852.

Mr. President,--I have a resolution which I desire to offer; and as it is not in order to debate it to-day, I give notice that I shall expect to call it up to-morrow, at an early moment in the morning hour, when I shall throw myself upon the indulgence of the Senate to be heard upon it.

The resolution was then read, as follows:--

"_Resolved_, That the Committee on the Judiciary be instructed
to consider the expediency of reporting a bill for the immediate
repeal of the Act of Congress, approved September 18, 1850, usually
known as the Fugitive Slave Act."

In pursuance of this notice, on the next day, 28th July, during the
morning hour, an attempt was made by Mr. Sumner to call it up, that
he might present his views on Slavery.

Mr. President,--I now ask permission of the Senate to take up the resolution which I offered yesterday. For that purpose, I move that the prior orders be postponed, and upon this motion I desire to say a word. In asking the Senate to take up this resolution for consideration, I say nothing now of its merits, nor of the arguments by which it may be maintained; nor do I at this stage anticipate any objection to it on these grounds. All this will properly belong to the discussion of the resolution itself,--the main question,--when it is actually before the Senate. The single question now is, not the resolution, but whether I shall be heard upon it.

As a Senator, under the responsibilities of my position, I have deemed it my duty to offer this resolution. I may seem to have postponed this duty to an inconvenient period of the session; but had I attempted it at an earlier day, I might have exposed myself to a charge of a different character. It might then have been said, that, a new-comer and inexperienced in this scene, without deliberation, hastily, rashly, recklessly, I pushed this question before the country. This is not the case now. I have taken time, and, in the exercise of my most careful discretion, at last ask the attention of the Senate. I shrink from any appeal founded on a trivial personal consideration; but should I be blamed for delay latterly, I may add, that, though in my seat daily, my bodily health for some time past, down to this very week, has not been equal to the service I have undertaken. I am not sure that it is now, but I desire to try.

And now again I say, the question is simply whether I shall be heard. In allowing me this privilege,--this right, I may say,--you do not commit yourselves in any way to the principle of the resolution; you merely follow the ordinary usage of the Senate, and yield to a brother Senator the opportunity which he craves, in the practical discharge of his duty, to express convictions dear to his heart, and dear to large numbers of his constituents. For the sake of these constituents, for my own sake, I now desire to be heard. Make such disposition of my resolution afterward as to you shall seem best; visit upon me any degree of criticism, censure, or displeasure; but do not refuse me a hearing. "Strike, but hear."

A debate ensued, in which Messrs. Mason, of Virginia, Brooke, of Mississippi, Charlton, of Georgia, Gwin, of California, Pratt, of Maryland, Shields, of Illinois, Douglas, of Illinois, Butler, of South Carolina, Borland, of Arkansas, and Hunter, of Virginia, took part. Objections to taking up the resolution were pressed on the ground of "want of time," "the lateness of the session," and "danger to the Union."

The question being put upon the motion by Mr. Sumner to take up his resolution, it was rejected,--Yeas 10, Nays 32,--as follows.

YEAS,--Messrs. Clarke, Davis, Dodge, of Wisconsin, Foot, Hamlin,
Seward, Shields, Sumner, Upham, and Wade:--10.

NAYS,--Messrs. Borland, Brodhead, Brooke, Cass, Charlton, Clemens,
De Saussure, Dodge, of Iowa, Douglas, Downs, Felch, Fish, Geyer,
Gwin, Hunter, King, Mallory, Mangum, Mason, Meriwether, Miller,
Morton, Norris, Pearce, Pratt, Rusk, Sebastian, Smith, Soulé,
Spruance, Toucey, and Weller:--32.

* * * * *

Mr. Sumner was thus deprived of an opportunity to present his views on this important subject, and it was openly asserted that he should not present them during the pending session. Such was the proslavery tyranny which prevailed. He was thus driven to watch for an opportunity, when, according to the rules of the Senate, he might be heard without impediment. On one of the last days of the session it came.

* * * * *

TRIBUTE TO ROBERT RANTOUL, JR.

SPEECH IN THE SENATE, ON THE DEATH OF HON. ROBERT RANTOUL, JR.,
AUGUST 9, 1852.

A message was received from the House of Representatives, by Mr. Hayes, its Chief Clerk, communicating to the Senate information of the death of the Hon. ROBERT RANTOUL, JR., a member of the House of Representatives from the State of Massachusetts, and the proceedings of the House thereon.

The resolutions of the House of Representatives were read. Mr. Sumner said:--

Mr. President,--By formal message of the House of Representatives
we learn that one of our associates in the public councils is dead.
Only a few brief days--I had almost said hours--have passed since
he was in his accustomed seat. Now he is gone from us forever.
He was my colleague and friend; and yet, so sudden has been this
change, that no tidings even of his illness came to me before I
learned that he was already beyond the reach of mortal aid or
consolation, and that the shadows of the grave were descending
upon him. He died here in Washington, late on Saturday evening,
7th August; and his earthly remains, accompanied by the bereaved
companion of his life, with a Committee of the other House, are now
far on the way to Massachusetts, there to mingle, dust to dust,
with his natal soil.

The occasion does not permit me to speak of Mr. Rantoul at length.
A few words will suffice; nor will the language of eulogy be
required.

He was born 13th August, 1805, at Beverly, in Essex County,
Massachusetts, the home of Nathan Dane, final author of the
immortal Ordinance by which Freedom was made a perpetual heirloom
in the broad region of the Northwest. Here he commenced life under
happy auspices of family and neighborhood. Here his excellent
father, honored for public services, venerable also with years and
flowing silver locks, yet lives to mourn a last surviving son.
The sad fortune of Burke is renewed. He who should have been as
posterity is to this father in the place of ancestor.

Mr. Rantoul entered the Massachusetts Legislature early, and there
won his first fame. For many years he occupied a place on the Board
of Education. He was also, for a time, Collector of Boston, and
afterwards Attorney of the United States for Massachusetts. During
a brief period he held a seat in this body. Finally, in 1851, by
the choice of his native District, remarkable for intelligence
and public spirit, he became a Representative in the other branch
of the National Legislature. In all these spheres he performed
acceptable service. And the future promised opportunities of a
higher character, to which his abilities, industry, and fidelity
would have responded amply. Massachusetts has many arrows in her
well-stocked quiver, but few could she so ill spare at this moment
as the one now irrevocably sped.

By original fitness, study, knowledge, and various experience,
he was formed for public service. But he was no stranger to
other pursuits. Devoted early to the profession of the law, he
followed it with assiduity and success. In the antiquities of
our jurisprudence few were more learned. His arguments at the
bar were thorough; nor was his intellectual promptness in all
emergencies of a trial easily surpassed. Literature, neglected by
many under pressure of professional life, was with him a constant
pursuit. His taste for books was enduring. He was a student always.
Amidst manifold labors, professional and public, he cherished the
honorable aspiration of adding to the historical productions of
his country. A work on the history of France, where this great
nation should be portrayed by an American pen, occupied much of his
thoughts. I know not if any part was ever matured for publication.

The practice of the law, while sharpening the intellect, is too
apt to cramp the faculties within the narrow limits of form, and
to restrain the genial currents of the soul. On him it had no
such influence. He was a Reformer. In warfare with Evil he was
enlisted early and openly as a soldier for life. As such, he did
not hesitate to encounter opposition, to bear obloquy, and to
brave enmity. His conscience, pure as goodness, sustained him in
every trial,--even that sharpest of all, the desertion of friends.
And yet, while earnest in his cause, his zeal was tempered beyond
that of the common reformer. He knew well the difference between
the _ideal_ and the _actual_, and sought, by practical means, in
harmony with existing public sentiment, to promote the interests he
fondly cherished. He saw that reform does not prevail at once, in
an hour, or in a day, but that it is the slow and certain result of
constant labor, testimony, and faith. Determined and tranquil in
his own convictions, he had the grace to respect the convictions
of others. Recognizing in the social and political system those
essential elements of stability and progress, he discerned at once
the offices of Conservative and Reformer. But he saw also that a
blind conservatism was not less destructive than a blind reform.
By mingled caution, moderation, and earnestness, he seemed often
to blend two characters in one, and to be at the same time a
_Reforming Conservative_ and a _Conservative Reformer_.

I might speak of his devotion to public improvements of all kinds,
particularly to the system of Railroads. Here he was on the popular
side. There were other causes where his struggle was keener and
more meritorious. At a moment when his services were much needed,
he was the faithful supporter of Common Schools, the peculiar
glory of New England. By word and example he sustained the cause
of Temperance. Some of his most devoted labors, commencing in the
Legislature of Massachusetts, were for the Abolition of Capital
Punishment. Since that consummate jurist, Edward Livingston, no
person has done so much, by reports, essays, letters, and speeches,
to commend this reform. With its final triumph, in the progress
of civilization, his name will be indissolubly connected. There
is another cause that commanded his early sympathies and some of
his latest best endeavors, to which, had life been spared, he
would have given the splendid maturity of his powers. Posterity
cannot forget this; but I am forbidden by the occasion to name it
here. Sir, in the long line of portraits on the walls of the Ducal
Palace at Venice, commemorating its Doges, a single panel, where a
portrait should have been, is shrouded by a dark curtain. But this
darkened blank, in that place, attracts the beholder more than any
picture. Let such a curtain fall to-day upon this theme.[97]

[97] Slavery could not bear to be pointed at, and this slight
allusion, which seemed due to the memory of Mr. Rantoul, caused
irritation at the time. Hon. John Davis, the other Senator from
Massachusetts, assigned as a reason for silence on the occasion,
that he observed the ill-feeling of certain persons, and thought it
best that the vote should be taken at once.

In becoming harmony with these noble causes was the purity of his
private life. Here he was blameless. In manners he was modest,
simple, and retiring. In conversation he was disposed to listen
rather than to speak, though all were well pleased when he broke
silence and in apt language declared his glowing thought. But in
the public assembly, before the people, or in the legislative hall,
he was bold and triumphant. As a debater he rarely met his peer.
Fluent, earnest, rapid, sharp, incisive, his words came forth
like a flashing scymitar. Few could stand against him. He always
understood his subject, and then, clear, logical, and determined,
seeing his point before him, pressed forward with unrelenting
power. His speeches on formal occasions were enriched by study,
and contain passages of beauty. But he was most truly at home in
dealing with practical questions arising from the actual exigencies
of life.

Few had studied public affairs more minutely or intelligently.
As a constant and effective member of the Democratic party, he
became conspicuous by championship of its doctrines on the Currency
and Free Trade. These he often discussed, and from the amplitude
of his knowledge, and his overflowing familiarity with facts,
statistics, and the principles of political economy, poured upon
them a luminous flood. There was no topic within the wide range of
national concern which did not occupy his thoughts. The resources
and needs of the West were all known to him, and Western interests
were like his own. As the pioneer, resting from his daily labors,
learns the death of RANTOUL, he will feel a personal grief. The
fishermen on the distant Eastern coast, many of whom are dwellers
in his District, will sympathize with the pioneer. These hardy
children of the sea, returning in their small craft from late
adventures, and hearing the sad tidings, will feel that they too
have lost a friend. And well they may. During his last fitful hours
of life, while reason still struggled against disease, he was
anxious for their welfare. The speech which he had hoped soon to
make in their behalf was then chasing through his mind. Finally, in
broken utterances, he gave to them his latest earthly thoughts.

The death of such a man, so sudden, in mid-career, is well
calculated to arrest attention and to furnish admonition. From
the love of family, the attachment of friends, and the regard of
fellow-citizens, he has been removed. Leaving behind the cares of
life, the concerns of state, and the wretched strifes of party, he
has ascended to those mansions where there is no strife or concern
or care. At last he stands face to face in His presence whose
service is perfect freedom. He has gone before. You and I, Sir, and
all of us, must follow soon. God grant that we may go with equal
consciousness of duty done!

* * * * *

I beg leave to offer the following resolutions.