Chapter XIII: Part 13

RESOLUTION IN THE SENATE, MAY 12, AND REMARKS, JUNE 28, 1862.

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

This was objected to by Mr. Saulsbury, of Delaware, but on the
next day it was agreed to.

* * * * *

The Select Committee failing to adopt this provision in
the bill reported by them, entitled “A bill to suppress
insurrection, punish treason and rebellion, and for other
purposes,” Mr. Sumner sought to engraft it on the bill by
motion in the Senate.

June 28th, Mr. Sumner moved the following amendment:--

“And in all proceedings under this Act there shall be no
exclusion of any witness on account of color.”

Mr. Clark, of New Hampshire, Chairman of the Select Committee,
said, that, “while they had no hostility to the general
principle of the amendment, they thought it was better not to
engraft it upon this bill.”

Mr. Sumner replied:--

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

Mr. Clark said, that the Committee was influenced by the
consideration, that under the bill slaves would become free on
the conviction of their masters for treason; and the Committee
“thought it would look a little like inducing the slave to
come forward and swear against the master, … if we put such a
provision in the bill; and we rejected it on that ground.”

Mr. Sumner replied:--

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

The amendment was rejected: Yeas 14, Nays 25.

This was the third move against exclusion of witnesses on
account of color.[310]

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

SPEECH IN THE SENATE, ON HIS DEATH, MAY 15, 1862.

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

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

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

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

“A violent cross wind from either coast,”

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

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

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

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

* * * * *

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

_Resolved, unanimously_, That the Senate mourns the death
of Hon. GOLDSMITH F. BAILEY, late a member of the House
of Representatives from Massachusetts, and tenders to his
relatives a sincere sympathy in this afflicting bereavement.

_Resolved_, As a mark of respect to the memory of the deceased,
that the Senate do now adjourn.

* * * * *

The resolutions were agreed to; and the Senate adjourned.

USE OF PARCHMENT IN LEGISLATIVE PROCEEDINGS.

RESOLUTION AND SPEECH IN THE SENATE, ON THE ENROLMENT OF BILLS, MAY 16, 1862.

December 23, 1861, Mr. Sumner offered the following resolution,
and said that he would call it up for consideration some day
thereafter.

“_Resolved_, That the Committee on Enrolled Bills shall
consider the expediency of changing the Joint Rules of
the two Houses of Congress, so as no longer to require
that bills which have passed both Houses shall be enrolled
on parchment; but that they shall be simply copied in
a fair hand on linen paper, and be thus preserved in
the Department of State, instead of being preserved in
cumbersome rolls of parchment.”

May 16, 1862, the resolution was taken up for consideration.

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

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

* * * * *

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

“After _a bill_ shall have passed both Houses, it shall be
duly _enrolled_ on parchment by the Clerk of the House of
Representatives, or the Secretary of the Senate, as the bill
may have _originated_ in the one or the other House, before it
shall be presented to the President of the United States.”

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

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

* * * * *

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

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

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

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

* * * * *

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

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

“That the Clerk Assistant be directed, in communication with
the proper authorities of the House of Commons, to take such
preliminary steps as may be necessary, so as to enable the
House, if it shall so think fit, at the commencement of the
next session, to dispense with the present form of engrossing
bills, and to transmit and to receive printed copies of the
same.”[321]

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

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

“That the Clerk Assistant had prepared and laid on the table,
in obedience to the resolutions of this House, a report of the
result of his communication with the authorities of the House
of Commons on the subject of dispensing with the present form
of engrossing bills.”[322]

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

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

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

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

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

“1. That, in lieu of being engrossed, every bill shall be
printed fair immediately after it shall have been passed in the
House in which it originated, and that such fair printed bill
shall be sent to the other House as the bill so passed, and
shall be dealt with by that House and its officers in the same
manner in which engrossed bills are now dealt with.

“2. That, when such bill shall have passed both Houses of
Parliament, it shall be fair printed by the Queen’s printer,
who shall furnish a fair print thereof on vellum to the House
of Lords before the royal assent, and likewise a duplicate of
such fair print, also on vellum.

“3. That one of such fair prints of each bill shall be duly
authenticated by the Clerk of the Parliaments, or other proper
officer of the House of Lords, as the bill to which both Houses
have agreed.

“4. That the royal assent shall be indorsed in the usual form
on such fair print so authenticated, which shall be deposited
in the Record Tower, in lieu of the present engrossment.

“5. That the copies promulgated in the first instance by the
Queen’s printer shall be impressions from the same form as the
deposited copy.

“6. That for the present session this arrangement shall not
apply to private bills, nor to local and personal bills, which
last mentioned bills, intended to be brought in this session,
have been for the most part already printed, in pursuance of
the standing orders of the House of Commons.

“7. That the Master of the Rolls shall, upon being duly
authorized in that behalf, receive, in lieu of the copies
of public general acts as now enrolled, the herein
before-mentioned duplicate fair print of each public general
bill, to be held for the same purposes and subject to the
same conditions for and upon which the enrolled acts are now
received and held by him.

“8. That it is expedient, with a view to economy, convenience,
and dispatch, and to the diminution of the chance of errors,
that one printer should print the public general bills for both
Houses; and that, inasmuch as the Queen’s printer is, by virtue
of his office, bound to print the acts, it would be advisable,
for the attainment of the before-mentioned objects, that the
Queen’s printer should be employed by both Houses to print the
public general bills.”[324]

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

“That the arrangement contained in the resolutions agreed to
by both Houses of Parliament on the 12th day of February last,
relative to the engrossing and enrolling of bills, (except
so much thereof as relates to the expediency of one printer
printing the bills for both Houses,) shall in future sessions
apply to local, personal, and private, as well as to public
bills.”[325]

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

* * * * *

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

* * * * *

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

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

“It is the invariable course of the Legislatures of the several
States, as well as of the United States, to have the laws and
resolutions of each session printed by authority. Confidential
persons are selected to compare the copies with the original
rolls, and superintend the printing. The very object of this
provision is to furnish the people with authentic copies; and,
from their nature, _printed copies of this kind, either of
public or private laws, are as much to be depended on_ as the
exemplification verified by an officer who is a keeper of the
record.”[327]

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

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

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

* * * * *

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

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

House copy of bill originating in the Commons.

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

Bill as delivered to each peer.

House copy of bill originating in the Lords.

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

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

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

The resolution was adopted, but no report was ever made by the
Committee.

FOOTNOTES

[1] Senate Journal, 32d Cong. 1st Sess., p. 339.

[2] Ibid., 33d Cong. 1st Sess., p. 43.

[3] Ibid., 34th Cong. 1st Sess., p. 100.

[4] Congressional Globe, 37th Cong. 2d Sess., Appendix, p. 2.

[5] Senate Journal, 37th Cong. 2d Sess., pp. 147, 549.

[6] Ibid., 38th Cong. 1st Sess., pp. 28, 47, 667.

[7] Statutes at Large, Vol. XIV. pp. 74, 75.

[8] Act of May 4, 1870: Ibid., Vol. XVI. p. 96.

[9] Opinions of Attorneys-General, Vol. X. p. 382, November 29, 1862.

[10] United States Statutes at Large, Vol. XII. p. 354.

[11] Wheaton’s Elements of International Law, edited, with Notes, by Richard H. Dana, Jr., Note 228, p. 645.

[12] Wheaton’s Elements of International Law, ed. Dana, Note 228, p. 645.

[13] Rebellion Record, Vol. III, Documents, p. 330.

[14] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p. 4.

[15] Annual Register, 1861, p. 291.

[16] Annual Register, 1861, p. 254.

[17] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p. 3.

[18] Ibid., p. 2.

[19] Wheaton’s Elements of International Law, ed. Dana, Note 228, p. 655.

[20] L’Amérique devant l’Europe, p. 176.

[21] Ibid., p. 177.

[22] Ibid., pp. 209, 210.

[23] Congressional Globe, 37th Cong. 2d Sess., pp. 176, 177.

[24] Revue des Deux Mondes, Jan.-Fév., 1862, p. 245.

[25] Wheaton’s Elements of International Law, ed. Dana, Note 228, p. 648.

[26] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p 13.

[27] Ibid., No. 22, p. 2.

[28] Ibid., No. 30, p. 2.

[29] Congressional Globe, 37th Cong. 2d Sess., p. 208.

[30] Congressional Globe, 37th Cong. 2d. Sess., p. 211.

[31] Ibid., pp. 209, 210.

[32] Ibid., p. 211.

[33] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p. 3.

[34] MS. Opinion of the British Law Officers. _Ante_, p. 163.

[35] The Examiner [London], December 7, 1861, p. 769.

[36] The Examiner, December 7, 1861, p. 770.

[37] De Laudibus Legum Angliæ, Cap. 27.

[38] Witichindus Corbeiensis, lib. 2. Annal., ap. M. de Laurière, Préf. Ordon., Vol. I. p. xxxiii.,--quoted by Robertson, History of Charles V., Vol. I., Proofs and Illustrations, Note 22.

[39] The Times, November 28, 1861.

[40] Jefferson, Letter to Madame de Staël, May 24, 1813: Works, Vol. VI. p. 118. Manning, Commentaries on the Law of Nations, p. 375.

[41] Hansard, Vol. XXIV. 601, 602, February 18, 1813.

[42] Hildreth’s History of the United States, Vol. VI. p. 349.

[43] Edinburgh Review, July, 1833, Vol. LVII p. 459.

[44] American State Papers, Foreign Relations, Vol. III. p. 574.

[45] Ibid.

[46] American State Papers, Foreign Relations, Vol. III. p. 574.

[47] Ibid., Vol. II. p. 489.

[48] American State Papers, Foreign Relations, Vol. III. p. 84.

[49] American State Papers, Foreign Relations, Vol. III. p. 134.

[50] Ibid., p. 138.

[51] American State Papers, Foreign Relations, Vol. III. p. 160.

[52] The Inadmissible Principles of the King of England’s Proclamation of October 16, 1807, considered: Works, Vol. IX. p. 322.

[53] American State Papers, Foreign Relations, Vol. III. p. 405.

[54] Ibid., p. 605.

[55] Annual Register, 1813, Vol. LV. pp. 337, 339.

[56] Exposition, pp. 6, 7. This pamphlet is preserved in the Appendix to the Life and Writings of Alexander J. Dallas, by his Son, George Mifflin Dallas.

[57] Memoranda of a Residence at the Court of London, 2d edit., pp. 200, 201.

[58] Letter to Lord Ashburton, August 8, 1842: Webster’s Works, Vol. VI. p. 323; Executive Documents, 27th Cong. 3d Sess., Senate, No. 1, p. 142.

[59] Executive Documents, 36th Cong. 1st Sess., Senate, No. 2, pp. 28, 29.

[60] Le Droit des Gens, Liv. IV. ch. 7, § 85.

[61] The Caroline, 6 Robinson, Admiralty R., 468.

[62] The Orozembo, 6 Robinson, Admiralty R. 434.

[63] American State Papers, Foreign Relations, Vol. III. p. 83.

[64] American State Papers, Foreign Relations, Vol. III. p. 84.

[65] Ibid.

[66] Ibid., p. 82.

[67] American State Papers, Foreign Relations, Vol. III. p. 99.

[68] Ibid., p. 107.

[69] Ibid., p. 137.

[70] MS.

[71] Memoranda of a Residence at the Court of London, 2d edit., p. 306.

[72] Ibid., pp. 306, 307.

[73] Statutes at Large, Vol. VIII. pp. 24, 26.

[74] Ibid., p. 38.

[75] Ibid., p. 64.

[76] Ibid., p. 90.

[77] Ibid., p. 146.

[78] Ibid., p. 186.

[79] Ibid., p. 312.

[80] Ibid., p. 328.

[81] Ibid., p. 393.

[82] Ibid., p. 416.

[83] Ibid., p. 436.

[84] Ibid., p. 474.

[85] Ibid., p. 490.

[86] Ibid., p. 540.

[87] Ibid., Vol. IX. p. 888.

[88] Ibid., Vol. X. p. 880.

[89] Ibid., p. 894.

[90] Ibid., p. 936.

[91] Executive Documents, 37th Cong. 2d Sess., Senate, No. 8, p. 13.

[92] 6 Robinson, Admiralty R., 440.

[93] Pratt, Law of Contraband of War, p. 58.

[94] United States Statutes at Large, Vol. VIII. p. 26.

[95] Convention with Colombia, 1824: Statutes at Large, Vol. VIII. p. 312; and later treaties, _passim_.

[96] Executive Documents, 33d Cong. 1st Sess., H. of R., No. 111, p. 13.

[97] Hautefeuille, Questions de Droit International Maritime: Affaires du Trent et du Nashville, p. 13. See also an earlier pamphlet,--Quelques Questions de Droit International Maritime, à propos de la Guerre d’Amérique (Leipzig et Paris, 1861).

[98] Europäische Völkerrecht der Gegenwart (1855), § 157 b, p. 276.

[99] The Rapid, Edwards, Admiralty R., 231.

[100] Elements of International Law, Part IV. ch. 3, § 24.

[101] United States Statutes at Large, Vol. VIII. p. 125.

[102] Ibid., p. 26.

[103] Ibid., p. 46.

[104] Executive Documents, 37th Cong. 2d Sess., Senate, Doc. 8, p. 13.

[105] Mr. Madison to Mr. Monroe, January 5, 1804: American State Papers, Foreign Relations, Vol. III. p. 86.

[106] Des Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime. 4 vol. Paris, 1848.

[107] Une Parole de Paix sur le Différend entre l’Angleterre et les États-Unis.

[108] Revue des Deux Mondes, Nov.-Déc., 1861, p. 1014.

[109] Letter to M. de Sartiges, July 28, 1856: President’s Message and accompanying Documents, December, 1856: Executive Documents, 34th Cong. 3d Sess., H. of R., No. 1, pp. 35-43.

[110] Letter to Mr. Rush, July 28, 1823: Executive Documents, 33d Cong. 1st Sess., H. of R., No. 111, p. 6.

[111] Letter to Mr. Sheldon, August 13, 1823, Ibid., p. 17; Letter to Mr. Brown, December 23, 1823, Ibid., p. 19.

[112] Letter to Mr. Gallatin, June 19, 1826: Ibid., p. 37.

[113] Letter of the Secretary of State, May 6, 1794: American State Papers, Foreign Relations, Vol. I. p. 473. See also Letter of December 15, 1794: Ibid., p. 511.

[114] This paragraph was omitted in the delivery, lest it might be turned to disparage the blockade already instituted against Slavery.

[115] Herald of Peace, August, 1862.

[116] Quarterly Review, January, 1862, p. 260.

[117] Debate on the Address respecting the War with America, Feb. 18, 1813: Hansard, XXIV. 601.

[118] _Ante_, p. 213.

[119] _Ante_, p. 164.

[120] Letters by Historicus on some Questions of International Law, reprinted from the _Times_ with considerable Additions. London and Cambridge, 1863.

[121] This was a very short time before the sudden death of this lamented author.

[122] Elements of the Law and Practice of Legislative Assemblies in the United States, by L. S. Cushing, p. 193.

[123] Clarke and Hall’s Cases of Contested Elections in Congress, p. 287.

[124] Ibid., p. 314.

[125] Sparks, Life and Treason of Benedict Arnold, p. 140: Library of American Biography, Vol. III.

[126] Sparks, Life and Treason of Benedict Arnold, p. 141: Library of American Biography, Vol. III.

[127] Annals of Congress, 10th Cong. 1st Sess., col. 57.

[128] Alison, History of Europe, 2d edit., Vol. IX. p. 553.

[129] Commentaries, Vol. IV. pp. 81, 82.

[130] 2 Douglas, R., 592.

[131] 4 Cranch, S. C. Rep., 126.

[132] Commentaries, Vol. IV. p. 82.

[133] Caron de Beaumarchais, author of _Mariage de Figaro_.

[134] 1 Burrow, R., 646.

[135] 6 Term, R., 529.

[136] Congressional Globe, 37th Cong. 2d Sess., p. 184.

[137] Writings of Washington, ed. Sparks, Vol. VII., Appendix, p. 533.

[138] Ibid., p. 540.

[139] 37th Congress, 2d Session, p. 418.

[140] Statutes at Large, Vol. XII. p. 333.

[141] This important principle was affirmed by Mr. Everett somewhat tardily; also by Dr. Brownson, at an earlier date. See, _post_, Appendix, pp. 307, 313.

[142] _Post_, Vol. VII. p. 1.

[143] _Post_, Ibid., pp. 112, 119.

[144] Duty of Supporting the Government; Address delivered in Faneuil Hall, 19th October, 1864: Orations and Speeches, Vol. IV. pp. 718, 719.

[145] Congressional Globe, 37th Cong. 2d Sess., March 20, 1862, pp. 1300, 1302.

[146] Congressional Globe, 37th Cong. 2d Sess., April 1, 1862, p. 1472.

[147] Ibid., April 2, pp. 1493, 1495.

[148] Congressional Globe, 37th Cong. 2d Sess., June 25, 1862, p. 2925.

[149] Ibid., July 7, p. 3148.

[150] Ibid., 39th Cong. 1st Sess., January 17, 1866, pp. 268, 274.

[151] Ibid., January 10, p. 162.

[152] Congressional Globe, 39th Cong. 1st Sess., January 26, 1865, p. 441.

[153] Ibid., 39th Cong. 2d Sess., February 16, 1867, p. 1444.

[154] Ibid., 40th Cong. 2d Sess., February 24, 1868, p. 1378.

[155] Congressional Globe, 40th Cong. 2d Sess., January 30, 1868, p. 860.

[156] See, _post_, pp. 381, 376.

[157] April, 1862, Vol. XCIV. pp. 435-463.

[158] Hon. Joel Parker, Professor in the Law School, Cambridge, formerly Chief Justice of New Hampshire.

[159] Hon. Martin F. Conway, Representative in Congress from Kansas.

[160] Brownson’s Quarterly Review, Third New York Series, April, 1862, Vol. III. pp. 194-220.

[161] Ibid., p. 199.

[162] Ibid., p. 200.

[163] Ibid., pp. 201, 202.

[164] Ibid., pp. 217, 218.

[165] Le Temps, 5 Mars, 1862.

[166] For a long time the able and learned Judge of the District Court of the United States in Maine.

[167] Senate Reports, 39th Cong. 1st Sess., No. 112, June 8, 1866, pp. 13, 14.

[168] Hon. Amasa Walker, in the Chicago Advance, February 2, 1871.

[169] Commentaries on the Constitution, Vol. II. § 1372.

[170] Craig et al. _v._ The State of Missouri, 4 Peters, R., 432.

[171] Madison, Debates in the Federal Convention, August 16, 1787.

[172] Briscoe _v._ The Bank of the Commonwealth of Kentucky, 11 Peters, R., 257. Story’s Commentaries on the Constitution, Vol. II. § 1362-1367, and note.

[173] Collections Mass. Hist. Soc., 2d Ser. Vol. III. p. 261.

[174] History of Massachusetts, Vol. I. p. 402.

[175] Hutchinson, History of Massachusetts, Vol. I. p. 403, note.

[176] Hening, Statutes at Large, Vol. VI. p. 467.

[177] Ibid., Vol. X. pp. 279, 286.

[178] 24 George II, Chap. 53.

[179] No. XLIV., by Mr. Madison.

[180] Journals of Congress, Vol. II. p. 21.

[181] Circular Letter from Congress to their Constituents, September 13, 1779: Journals of Congress, Vol. V. p. 347.

[182] 45,578,000,000 francs. Say, J. B., Cours Complet d’Économie Politique Pratique, Part. III. ch. 16. Nervo, le Baron de, Les Finances Françaises sous l’Ancienne Monarchie, la République, le Consulat et l’Empire, Tom. II. p. 280.

[183] Report on Bank Acts, 1857, Part I., Q. 4270.

[184] Report on Bank Acts, 1857, Part I., Q. 4634, 4635.

[185] Ibid., Q. 4764, 4765.

[186] Report on Bank Acts, 1857, Part I., Q. 5422.

[187] Ibid., Q. 5458.

[188] Report on Bank Acts, 1857, Part I., Q. 5483-5485.

[189] Ibid., Q. 3825. The Evidence of Lord Overstone is in a separate volume, revised by himself.

[190] Ibid., Q. 3822.

[191] Report on Bank Acts, 1857, Part I., Q. 4049.

[192] Ibid., Q. 4054.

[193] Report on Bank Acts, 1857, Part I., Q. 4179.

[194] Encyclopædia Britannica (8th edit.), art. MONEY, Vol. XV. p. 456.

[195] Congressional Globe, 37th Cong. 2d Sess., p. 183.

[196] 37th Cong. 2d Sess., p. 266.

[197] Annals of Congress, 10th Cong. 1st Sess., col. 1492, 1493.

[198] Congressional Globe, 37th Cong. 2d Sess., p. 696.

[199] Horatio Greenough, the sculptor.

[200] Bramston, Art of Politics, 162-165: Dodsley’s Collection, Vol. I. p. 265. Speech of Col. Titus in the House of Commons, Jan. 7, 1680-1, on the King’s Message concerning the Exclusion Bill: Hansard’s Parliamentary History, Vol. IV. col. 1291. Webster’s Works, Vol. II. p. 443.

[201] Art. 6, par. 3.

[202] Statutes at Large, Vol. I. p. 23.

[203] Heb., vi. 16.

[204] Burke, Letter to a Noble Lord: Works (London, 1801), Vol. VII. p. 417.

[205] Cowen and Hill’s Notes to Phillipps on Evidence, Note 55, p. 24.

[206] In the Report as printed by the Senate this clause was omitted by a mistake of the copyist.

[207] Statutes at Large, Vol. XII. p. 589.

[208] Statutes at Large, Vol. IV. p. 104.

[209] American State Papers, Post-Office Department, p. 27. See also McPherson’s Political History of the Rebellion, p. 239, note.

[210] Congressional Globe, 37th Cong. 2d Sess., pp. 2231, 2232.

[211] _Ante_, p. 152.

[212] His private Secretaries, John G. Nicolay and John Hay.

[213] Congressional Globe, 37th Cong. 2d Sess., p. 1680.

[214] P. Fletcher, The Locusts or Apollyonists, Canto I. st. 10.

[215] Speech on Manumission, 1788: American Museum, July, 1789, Vol. VI. p. 75.

[216] Speech on Negro Slavery, July 13, 1830. Works, Vol. X. p. 216.

[217] Jones _v._ Vanzandt, 2 McLean, R., 603.

[218] The State _v._ Mann, 2 Devereux, R., 266.

[219] The Antelope, 10 Wheaton, R., 121.

[220] Speech in the Senate, August 26, 1852: _ante_, Vol. III. pp. 126, 127.

[221] Speech in the Senate, March 26, 27, 1850: Congressional Globe, 31st Cong. 1st Sess., Appendix, pp. 468-480.

[222] Speech in the House of Representatives, February 23, 1849: Ibid., 30th Cong. 2d Sess., Appendix, pp. 318-326.

[223] Journal of Congress, Vol. VIII. p. 419.

[224] Debates in the Federal Convention, August 22, 1787: Madison Papers, p. 1394.

[225] Annals of Congress, 1st. Cong. 2d Sess., col. 1189.

[226] Journal of Congress, Vol. X. pp. 29, 50, 52.

[227] Introduction to the Anas: Jefferson’s Writings, Vol. IX. p. 94.

[228] United States Statutes at Large, Vol. I. p. 130.

[229] Laws of Maryland, 1791, Ch. XLIV. sec. 2.

[230] United States Statutes at Large, Vol. II. pp. 104, 105.

[231] Laws of Maryland, 1715, Ch. XLIV. sec. 22.

[232] Ibid., 1717, Ch. XIII. sec. 2.

[233] Laws of Maryland, 1796, Ch. LXVII. sec. 5.

[234] Howell’s State Trials, Vol. XX. col. 82.

[235] See Harry _v._ Decker, Walker, Mississippi R., 42; Rankin _v._ Lydia, 2 A. K. Marshall, Kentucky R., 470.

[236] Barron _v._ Baltimore, 7 Peters, R., 243.

[237] Elliot’s Debates, II. 484, III. 211, IV. 223.

[238] Hoare’s Memoirs of Sharp, p. 38.

[239] Writings, ed. Sparks, Vol. IX. p. 164.

[240] S. Ambrosius, De Officiis Ministrorum, Lib. II. c. 28.

[241] Cochin, L’Abolition de l’Esclavage, Tom. II. pp. 437-439.

[242] Keatinge’s Travels, p. 250.

[243] Braithwaite’s Revolutions in Morocco, p. 353.

[244] Histoire d’Alger (Paris, 1830), Ch. 27.

[245] Letter from M. Le Veillard, October 9, 1785: Franklin’s Works, ed. Sparks, Vol. X. p. 230.

[246] Annals of Congress, 1st Cong. 2d Sess., col. 1572.

[247] American State Papers, Foreign Relations, Vol. I. p. 101.

[248] Ibid., p. 100.

[249] American State Papers, Foreign Relations, Vol. I. p. 105.

[250] Ibid., p. 106.

[251] American State Papers, Foreign Relations, Vol. I. p. 128.

[252] Ibid.

[253] Ibid., p. 136.

[254] Ibid., p. 136.

[255] Statutes at Large, Vol. I. p. 285.

[256] American State Papers, Foreign Relations, Vol. I. pp. 291, 292.

[257] Ibid., p. 292.

[258] Letter from Richard O’Brien to the President of the United States, Algiers, November 5, 1793: American State Papers, Foreign Relations, Vol. I. p. 417.

[259] Ibid., p. 418.

[260] Ibid., p. 421.

[261] Independent Chronicle (Boston), April 9, 1795.

[262] Algerine Captive, Ch. 32, Vol. I. p. 213.

[263] Mr. Baldwin, of Georgia, February 6, 1794: Annals of Congress, 3d Cong. 1st Sess., col. 434.

[264] Statutes at Large, Vol. I. p. 345.

[265] Ibid.

[266] American State Papers, Foreign Relations, Vol. I. p. 529.

[267] Ibid., p. 28.

[268] Statutes at Large, Treaties, Vol. VIII. p. 136.

[269] American State Papers, Foreign Relations, Vol. I. pp. 30, 31.

[270] American State Papers, Foreign Relations, Vol. II. p. 372.

[271] Remarks on the War between the United States and Tripoli: Miscellaneous Works (New York, 1804), p. 73.

[272] Statutes at Large, Treaties, Vol. VIII. p. 214.

[273] Ibid., p. 226.

[274] Osler’s Life of Admiral Viscount Exmouth, Appendix, p. 432.

[275] Senate Reports, 37th Cong. 2d Sess., No. 41, p. 10.

[276] See, _ante_, p. 410.

[277] Congressional Globe, 37th Cong. 2d Sess., p. 1646, April 11, 1862.

[278] Debates on the Panama Mission, March and April, 1826: Gales and Seaton’s Register of Debates in Congress, Vol. II. 166, 291, 330, 2150.

[279] National Intelligencer, December 19 and 21, 1838.

[280] See Statistical View, annexed to Speech: Congressional Globe, 37th Cong. 2d Sess., p. 1775. Also, Report of the Register of the Treasury of the Commerce and Navigation of the United States for the Year ending June 30, 1860, Tables 10, 11, 13: Executive Documents, 36th Cong. 2d Sess., H. of R., Vol. XI.

[281] Report of Register of Treasury of the Commerce and Navigation of the United States, for the Year ending June 30, 1860, Table No. 1: Executive Documents, 36th Cong. 2d Sess., H. of R., Vol. XI.

[282] Report on the Commercial Relations of the United States with all Foreign Nations, Vol. IV. p. 509: Executive Documents, 34th Cong. 1st Sess., H. of R., No. 47.

[283] Ibid., Vol. I. p. 559.

[284] Commercial Relations, Vol. I. p. 560.

[285] This foothold on the Dominican portion of the island proved to be only temporary.

[286] Kennett et al. _v._ Chambers, 14 Howard, R., 38.

[287] Elements of International Law, Part III. ch. 1, § 22.

[288] International Law, or Rules regulating the Intercourse of States in Peace and War, by H. W. Halleck, p. 242.

[289] It was translated into French.

[290] Nathaniel Gordon, commander of the slave-ship Erie, executed at New York, February 21, 1862.

[291] Commentaries on the Constitution of the United States, Vol. II. § 1334.

[292] Annual Register, 1814, p. 418. Martens, Nouveau Recueil de Traités, Tom. II. p. 15.

[293] United States Statutes at Large, Vol. VIII. p. 223.

[294] Martens, Nouveau Recueil de Traités, Tom. II. p. 432.

[295] American State Papers, Foreign Relations, Vol. V. p. 93.

[296] Ibid., p. 141.

[297] Annals of Congress, 17th Cong. 2d Sess., 928, 1147, 1155.

[298] Annals of Congress, 17th Cong. 2d Sess., 1154.

[299] American State Papers, Foreign Relations, Vol. V. p. 320. See also p. 335.

[300] Ibid., pp. 361, 362. Rush’s Memoranda of a Residence at the Court of London (2d Series), p. 499.

[301] Speech in the House of Representatives, April 14, 1842: Congressional Globe, 27th Cong. 2d Sess., p. 424.

[302] Report from the Select Committee of the House of Lords on the Final Extinction of the African Slave-Trade, July 23, 1849, Appendix F, No. 1: Parliamentary Papers, 1850, Vol. IX., No. 53, p. 370.

[303] Letter to Mr. Rush, June 24, 1823: American State Papers, Foreign Relations, Vol. V. p. 334. See, also, Letter to Messrs. Gallatin and Rush, November 2, 1818, Ibid., p. 73; and Letter of Mr. Rush to Lord Castlereagh, December 21, 1818, Ibid., p. 113.

[304] American Ins. Co. et al. _v._ Canter, 1 Peters, S. C. R., 546; Benner et al. _v._ Porter, 9 Howard, R., 244.

[305] Features of Mr. Jay’s Treaty, by Alexander J. Dallas,--originally published in the _American Daily Advertiser_. This able disquisition is preserved in the Appendix to the Life of Mr. Dallas by his Son, George Mifflin Dallas. See pp. 188, 189.

[306] United States Statutes at Large, Vol. XV. p. 321.

[307] Congressional Globe, 37th Cong. 2d Sess., May 1, 1862, p. 1893.

[308] Rebellion Record, Vol. IV., Documents, p. 204. General Halleck’s subsequent explanation of this order, as “military, and not political,” is criticized by Mr. Greeley: The American Conflict, Vol. II. p. 241. See also, _ante_, pp. 119, 120.

[309] Memoirs of Lieut-General Scott, LL.D., written by Himself, Vol. I. pp. 188-190.

[310] See, _ante_, p. 442.

[311] “On a donné sa mesure à quarante ans.”

[312] See, _ante_, Vol. V. p. 310.

[313] Hon. James M. Ashley.

[314] On motion of Hon. William Vandever, of Iowa.

[315] Reported by Mr. Ashley, March 12, 1862, when the bill was read at length. Mr. Pendleton, after saying that it “ought to be entitled ‘A Bill to dissolve the Union and abolish the Constitution of the United States,’” moved to lay it on the table, which was done,--Yeas 65, Nays 56.

[316] Annals of Congress, 1st Cong. 1st Sess., col. 44, 420.

[317] Statutes at Large, Vol. I. p. 68.

[318] Ezra, vi. 1.

[319] May’s Parliamentary Practice, or Treatise on the Law, Privileges, Proceedings, and Usage of Parliament (London, 1859), p. 228.

[320] Ibid.

[321] Journals of the House of Lords, Vol. LXXX. p. 867.

[322] Journals of the House of Lords, Vol. LXXXI. p. 16.

[323] Ibid., pp. 18, 19.

[324] Journals of the House of Commons, Vol. CIV. p. 52.

[325] Journals of the House of Lords, Vol. LXXXI. pp. 588, 589.

[326] Gilbert, Law of Evidence, Vol. I. p. 12.

[327] Greenleaf, Law of Evidence, Vol. I. § 480.

[328] May’s Parliamentary Practice, p. 452.