Chapter II (2)

“Your ministers require that we should receive again into our
bosom those who have been our bitterest enemies, and restore
their properties who have destroyed ours,--and this while the
wounds they have given us are still bleeding. It is many years
since your nation expelled the Stuarts and their adherents,
and confiscated their estates. Much of your resentment against
them may by this time be abated; yet, if we should propose it,
and insist on it, as an article of our treaty with you, that
that family should be recalled and the forfeited estates of its
friends restored, would you think us serious in our professions
of earnestly desiring peace?

“I must repeat my opinion, that it is best for you to drop all
mention of the refugees.”[47]

But on this occasion there was a compromise. Instead of positive stipulations in behalf of the loyalists, it was agreed in the treaty, “that the Congress shall earnestly _recommend_ it to the Legislatures of the respective States to provide for the restitution of all estates, rights, and properties which have been confiscated, belonging to _real_ British subjects, and also of the estates, rights, and properties of persons resident in districts in the possession of his Majesty’s arms, _and who have not borne arms against the said United States_.”[48] Thus, while in every other article of the treaty it was agreed that certain things _shall be done_, here it was only agreed to _recommend_ that they shall be done; and even the recommendation of restitution was confined to what are called “_real_ British subjects,” and others “who have not borne arms against the United States,”--thus evidently recognizing the liability of those who did not come within these two exceptions.

After the adoption of our Constitution, this article came under discussion between the United States and Great Britain, when Mr. Jefferson, in the most elaborate diplomatic paper of his life, ably vindicated the conduct of our Government. It was on this occasion that he quoted the words of Bynkershoek, that “it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury, … even immovables, as is the practice in regard to movables.”[49] And in the course of his argument he distinctly asserts that “an Act of the Legislature confiscating lands stands in place of _an office found_ in ordinary cases,--and that, on the passage of the Act, as on the finding of the office, the State stands _ipso facto_ possessed of the lands without a formal entry. The confiscation, then, is complete by the passage of the Act, both the title and possession being divested out of the former proprietor and vested in the State.”[50]

This is strong language. Not only in our diplomacy, but also in our courts, was the validity of these Acts upheld. Mr. Jefferson was sustained by the Supreme Court of the United States in an early case on the confiscation of British debts by Virginia,[51] where it was declared that “a State may make what rules it pleases, and those rules must necessarily have place within itself,”[52]--that “the right to confiscate the property of enemies during war is derived from a state of war, and is called the Rights of War,”[53]--and that “the right acquired by war depends on the power of seizing the enemy’s effects.”[54] The last remark has a subtle significance. But the whole case was stated at the bar by John Marshall, afterwards our honored Chief Justice, in words applicable to our own times.

“It has been conceded that independent nations have in general
the right of confiscation, and that Virginia at the time of
passing her law was an independent nation. But it is contended,
that, from the peculiar circumstances of the war, the citizens
of each of the contending nations having been members of the
same government, the general right of confiscation did not
apply, and ought not to be exercised. It is not, however,
necessary to show a parallel case in history, since it is
incumbent on those who wish to impair the sovereignty of
Virginia to establish on principle or precedent the justice
of their exception. _That State, being engaged in a war,
necessarily possessed the powers of war, and confiscation is
one of those powers, weakening the party against whom it is
employed, and strengthening the party that employs it._”[55]

In closing what I have to say of the confiscation bills of the Revolution, I cannot disguise that they have been thought severe in some cases beyond the acknowledged exigencies of the times; but, admitting their severity, they testify none the less to those Rights of War in which they had their origin.

* * * * *

Such, Sir, are examples of history, so far as I can gather them, to guide on the present occasion. The embarrassment of Hercules is constantly repeated. There are paths to avoid, as well as paths to take; and it is for you to determine, under the lights of the past, how your course shall be directed.

* * * * *

There are considerations of _policy_, and, I rejoice to believe, of justice also, which furnish illumination such as cannot be found in any other instances of history. If we go astray, it must be from blindness.

In determining what powers to exercise, you will be guided to a certain extent by the object you seek to accomplish. Do you seek really to put down the Rebellion, and to tread it out forever, or do you seek only the passage of a penal statute? Do you seek a new and decisive weapon in the war our country is compelled to wage, or do you seek nothing more than to punish a few rebels? Or, if the object you seek is simply punishment, do you wish it to be sure and effective, or only in name? Are you in earnest to strike this rebellion with all the force sanctioned by the Rights of War, or do you refuse to use anything beyond the peaceful process of Municipal Law? I put these questions sincerely and kindly. You will answer them by your votes. If you are not in earnest against the rebellion now arrayed in war, if you are content _to seem_ without acting, _to seem_ without striking, in short, _to seem_ rather than _to be_, you will pass a new penal statute, and nothing more.

It is clear that such a statute will be of perfect inefficiency. It will not produce even a moderate intimidation,--not so much as a Quaker gun. With the provision in our Constitution applicable to jury trials in criminal cases, it is obvious that throughout the whole Rebel country there can be no conviction under such statute. Proceedings would fail through the disagreement of the jury, while the efforts of counsel would make every case an occasion of irritation. People talk flippantly of the gallows as the certain doom of the Rebels. This is a mistake. For weal or woe, the gallows is out of the question. It is not possible as a punishment for this rebellion.[56] Nor would any forfeiture or confiscation whatever be sanctioned by a jury in the Rebel country. I think that in this judgment I do not err. But if this be correct, surely we should take all proper steps to avoid such failure of justice. Let Senators see things as they are; let us not deceive ourselves or deceive others. A new statute against treason will be simply a few more illusive pages on the statute-book, and that is all.

I cannot doubt that Senators are in earnest, that they mean what they say, and that they intend to do all in their power, by all proper legislation, to bring the war to a final close. But if this be their purpose, they will not hesitate to employ all the acknowledged Rights of War calculated to promote this end. Two transcendent powers have been exercised without a murmur: first, to raise armies, and, secondly, to raise money. These were essential to the end. But there is another power, without which, I fear, the end will escape us. It is that of confiscation and liberation; and this power is just as constitutional as the other two. The occasion for its exercise is found in the same terrible necessity. An army is not a _posse comitatus_; nor is it, when in actual war, face to face with the enemy, amenable to the ordinary provisions of the Constitution. It takes life without a jury trial, or any other process of law; and we have already seen, it is by virtue of the same Right of War that the property of enemies may be taken, and freedom given to their slaves. On the exercise of these rights there can be no check or limitation in the Constitution. Any such check or limitation would be irrational. War cannot be conducted _in vinculis_. Seeking to fasten upon it the restraints of the Constitution, you repeat the ancient tyranny which compelled its victims to fight in chains. Glorious as it is that the citizen is surrounded by the safeguards of the Constitution, yet this rule is superseded by war, bringing into being other rights which know no master. An Italian publicist has said that there is no right which does not, in some measure, impinge upon some other right. But this is not correct. The Rights of War can never impinge upon any rights under the Constitution, nor can any rights under the Constitution impinge upon the Rights of War. Rights, when properly understood, harmonize with each other.

Assuming, then, what is so amply demonstrated, that the Rights of War are ours without abridgment, and assuming also that you will not allow the national cause, which has enlisted such mighty energies, to be thwarted through any failure on your part, I ask you to exercise these rights in such way as to insure promptly and surely that permanent peace in which is contained all we desire. But to this end mere victory will not be enough. The Rebellion must be so completely crushed that it cannot again break forth, while its authors have penalties to bear, all of which may be accomplished only by such a bill as I have proposed. The reasons of policy, as well as of duty, are controlling.

* * * * *

But while all desire to see the Rebellion completely crushed, there may be difference with regard to the Rights of War to be exercised. Some may be for part; others may be for all. Some may reject the examples of the past; others may insist upon them. It is for you to choose; but, in making election, you will not forget the object in view. At another point I have leaned on the authority of Grotius. Turning now to Vattel, a writer of masculine understanding, who has done much to popularize the Law of Nations, I am influenced by the consideration, that, less austere than others, he seems always inspired by the free air of his native Switzerland, and filled with the desire of doing good, so that what he sanctions cannot be regarded as illiberal or harsh. In grouping the details entering into the object proposed, this benevolent master teaches that we may seek these things:--

1. Possession of what belongs to us;

2. Expenses and charges of the war, with reparation of damages;

3. Reduction of the enemy, so that he shall be incapable of unjust violence;

4. Punishment of the enemy.[57]

And in order to arrive at these results, the Rights of War are ours, to be employed in our discretion. Nor is it to be forgotten that these rights are without any of those limitations which modern times have adopted with regard to the private property of enemies in international war, and that, on reason and principle, which are the foundations of all Public Law, _every rebel who voluntarily becomes an enemy is as completely responsible in all his property, whether real or personal, as a hostile Government or Prince_, whose responsibility to this extent is unquestioned.

Such in detail is the object that is all contained in the idea of peace. In this work it is needless to say there is no place for any sentiment of hate or any suggestion of vengeance. There can be no exaction and no punishment beyond the necessity of the case,--nothing harsh, nothing excessive. Lenity and pardon become the conqueror more even than victory. “Do in time of peace the most good, and in time of war the least evil possible: such is the Law of Nations.” These are the admirable words of an eminent French magistrate and statesman.[58] In this spirit it is our duty to assuage the calamities of war, and especially to spare an inoffensive population.

But not so should we deal with conspirators. For those who organized this great crime and let slip the dogs of war there can be no penalty too great. They should be not only punished to the extent of our power, but stripped of all means of influence, so that, should their lives be spared, they may be doomed to wear them out in poverty, if not in exile. To this end their property must be taken. Their poor deluded followers may be safely pardoned. Left to all the privileges of citizenship in a regenerated land, they will unite in judgment of leaders who have been to them such cruel taskmasters.

The property of the leaders consists largely of land, owned in extensive plantations. It is just that these should be broken up, so that never again can they be nurseries of conspiracy or disaffection. Partitioned into small estates, they will afford homes to many now homeless, while their peculiar and overbearing social influence will be destroyed. Poor neighbors, so long dupes and victims, will become independent possessors of the soil. Brave soldiers, who have left their Northern skies to fight the battles of their country, resting at last from their victories, and changing their swords for ploughshares, will fill the land with Northern industry and Northern principles.

I say little of personal property, because, although justly liable to confiscation, yet it is easy to see that it is of much less importance than the land, except so far as slaves are falsely classed under that head.

* * * * *

Vattel says that in our day a soldier would not dare to boast of having killed the enemy’s king; and there seems to be similar timidity on our part towards Slavery, which is our enemy’s king. If this king were removed, tranquillity would reign. Charles the Twelfth, of Sweden, did not hesitate to say that the cannoneers were perfectly right in directing their shots at him; for the war would instantly end, if they could kill him; whereas they would reap little from killing his principal officers. There is no shot in this war so effective as one against Slavery, which is king above all officers; nor is there any better augury of complete success than the willingness, at last, to fire upon this wicked king. The illusions through which Slavery has become strong must be abandoned.

The slaves of Rebels cannot be regarded as property, real or personal. Though claimed as property by their masters, and though too often recognized as such by individuals in the National Government, it is the glory of our Constitution that it treats slaves always as “persons.” At home, beneath the lash and local law, they may be chattels; but they are known to our Constitution only as _men_. In this simple and indisputable fact there is a distinction, clear as justice itself, between the pretended property in slaves and all other property, real or personal. Being men, they are bound to allegiance, and entitled to reciprocal protection. It only remains that a proper appeal should be made to their natural and instinctive loyalty. Nor can any pretended property of their masters supersede this claim, I will not say of eminent domain, but of eminent power, inherent in the National Government, which at all times has a right to the services of all. Declaring the slaves free, you will at once do more than in any other way, whether to conquer, to pacify, to punish, or to bless. You will take from the Rebellion its mainspring of activity and strength; you will stop its chief source of provisions and supplies; you will remove a motive and temptation to prolonged resistance; and you will destroy forever that disturbing influence, which, so long as allowed, will keep this land a volcano ever ready to break forth anew. While accomplishing this work, you will at the same time do an act of wise economy, giving new value to all the lands of Slavery, and opening untold springs of wealth; and you will also do an act of justice, destined to raise our national name more than any triumph of war or any skill in peace. God, in His beneficence, offers to nations, as to individuals, opportunity, _opportunity_, OPPORTUNITY, which, of all things, is most to be desired. Never before in history has He offered such as is ours here. Do not fail to seize it. The blow with which we smite an accursed Rebellion will at the same time enrich and bless; nor is there any prosperity or happiness it will not scatter abundantly throughout the land. Such an act will be an epoch, marking the change from Barbarism to Civilization. By old Rights of War, still prevalent in Africa, freemen were made slaves; but by the Rights of War which I ask you to exercise slaves will be made freemen.

* * * * *

Mr. President, if you seek Indemnity for the Past and Security for the Future, if you seek the national unity under the Constitution of the United States, here is the way. Strike down the leaders of the Rebellion, and lift up the slaves.

“To tame the proud, the fettered slave to free,--
These are imperial arts, and worthy thee.”

Then will there be Indemnity for the Past such as no nation ever before was able to win, and there will be Security for the Future such as no nation ever before enjoyed, while the Republic, strengthened and glorified, will be assured forever, one and indivisible.

NO SURRENDER OF FUGITIVE SLAVES IN WASHINGTON.

RESOLUTION AND REMARKS IN THE SENATE, MAY 23, 1862.

May 23d, the Senate proceeded to consider a resolution offered
the preceding day by Mr. Sumner:--

“_Resolved_, That the Committee on the District of Columbia
be directed to consider what legislation, if any, is
needed to protect persons of African descent in Washington
from unconstitutional seizure as fugitive slaves, or from
seizure by disloyal persons.”

Mr. Sumner said:--

MR. PRESIDENT,--The question presented in this resolution has a practical value to-day, when, here in Washington, we are shocked by efforts of slave-hunters, coming from an adjoining State, to carry off human beings as slaves. This is menaced on a large scale. Whole hecatombs are to be sacrificed. A Philadelphia paper of this morning, “The Press,” which I find on my table, contains, under the telegraphic head, an account of certain proceedings instituted by persons called Commissioners, who have undertaken gravely to decide, that, in a case of human freedom, “it was discretionary with them to allow cross-examination as to identity and ownership.” According to these wise Daniels, a person may be doomed to Slavery, even without any cross-examination of witnesses against him. The statement of this assumption shows the outrage which offends justice and common sense, and, I am happy to believe, the Constitution also, even if it be assumed that anybody now can be treated as a slave in the District.

The much discussed clause of the Constitution bearing on this question provides that “no person held to service or labor _in one State_, under the laws thereof, _escaping into another_, shall, in consequence of any law or regulation therein, be discharged from such service or labor.” It will be observed that this is limited to escape _from one State into another State_. Nothing is said of escape into Territories, or into the District of Columbia. If made applicable to Territories or the District, it is only by inference and deduction, and not by virtue of any express words.

Notwithstanding this omission in the Constitution, the Act of 1793, providing for the surrender of fugitives from service, was made applicable to escape into Territories, and this questionable precedent was followed in the terrible Act of 1850. But neither of these Acts was made applicable to escape into the District of Columbia. While Slavery prevailed in the District, it was difficult to raise a question with regard to the surrender of fugitive slaves. But since Freedom has happily become the law here, the case is materially changed. Slaves at last are beginning to have rights. And the question arises, whether, in the absence of express power in the Constitution, and also in the absence of express words in any statute, commissioners can undertake to surrender men into Slavery. Even if there were express words in the statute, we should be obliged to find express words also in the Constitution, which is the source of the power. But there are no words applicable to this pretension either in statute or Constitution.

Sir, I have always understood, that, in the interpretation of statutes, and especially of the Constitution, every word is to be interpreted in favor of life and liberty,--_in favorem vitæ ac libertatis_. Indeed, one of the received maxims of the Common Law says strongly, “Impious and cruel is he to be adjudged who does not favor Liberty.”[59] If these maxims are not entirely rejected, it is impossible to find, either in statute or Constitution, any power to gratify the hunters now thronging this District in quest of human prey. It is _casus omissus_ in our texts legislative or constitutional, and no commissioner, in the plenitude of petty power, can undertake to supply words which do not appear in statute or Constitution. It is for them only to administer the law as it is, and not to make it, especially against Freedom. They are not greater than the Constitution; and they should know that human freedom, in the estimation of every civilized jurisprudence, is priceless.

The question which I now raise, if I may employ the language of lawyers, is proper for the courts. A court in Washington, properly inspired, could not hesitate in its conclusion. It would deny any such offensive prerogative, unless sanctioned by clear and positive words. In the absence of such words, it would rejoice to set aside the whole pretension. It would not hesitate or halt, but it would do it gladly, generously, justly, and make a new precedent by which civilization should be advanced. Yet this is too much to expect from the courts of Washington, whose sense of justice has been enfeebled by the atmosphere of Slavery.

This pretension is aggravated by the fact that many of these hunters are notoriously disloyal. Sir, it is hard that our Constitution should be violated, and men hurried into Slavery, at the trumpery process of such offensive characters. I think the Committee will find a remedy.

On motion of Mr. Grimes, the resolution was amended by
substituting the Committee on the Judiciary for the Committee
on the District of Columbia, and then agreed to.

INFORMATION IN REGARD TO FREEING SLAVES BY OUR ADVANCING ARMIES.

RESOLUTION IN THE SENATE, MAY 26, 1862.

Mr. Sumner submitted the following resolution for consideration.

RESOLVED, That the Secretary of War be requested to communicate to the Senate copies of any instructions to commanding generals, in pursuance of the Act of Congress, approved August 6, 1861, setting free slaves who have been employed by the consent of their masters against the Government and lawful authority of the United States; and also to inform the Senate if any steps have been taken to make this statute effective, and to insure its due execution by our advancing armies, for the benefit of slaves who have been so employed.

June 4th, the resolution was considered and agreed to.

July 10th, a report was received from the Secretary of War,
entitled “Instructions to commanding generals in regard to the
freeing of slaves,” which, besides the instructions, contained
communications from General Phelps and General Butler.[60]

HELP FROM SLAVES, WITH RECIPROCAL PROTECTION IN THEIR RIGHTS AS MEN.

RESOLUTION IN THE SENATE, MAY 26, 1862.

The following resolution was introduced, as an expression of
opinion, and an appeal to the country.

RESOLVED, That, in the prosecution of the present war for the suppression of a wicked Rebellion, the time has come for the Government of the United States to appeal to the loyalty of the whole people everywhere, but especially in the Rebel districts, and to invite all, without distinction of color, to make their loyalty manifest by ceasing to fight or labor for the Rebels, and also by rendering every assistance in their power to the cause of the Constitution and the Union, according to their ability, whether by arms, or labor, or information, or in any other way; and since protection and allegiance are reciprocal duties, dependent upon each other, it is the further duty of the Government of the United States to maintain all such loyal people, without distinction of color, in their rights as _men_, according to the principles of the Declaration of Independence.

TAX ON COTTON.

SPEECHES IN THE SENATE, MAY 27 AND JUNE 4, 1862.

In the consideration of the Internal Tax Bill Mr. Sumner took
an active part, as the _Congressional Globe_ attests.

When this bill came from the House of Representatives, it
contained a tax of one cent a pound on cotton. The Finance
Committee of the Senate reported against this tax. Mr. Sumner,
though never disposed to spare Slavery, was unwilling to
bear hard on an interest so important as cotton to the whole
country, especially to the South when redeemed, as well as to
the manufactures of the North, and therefore exerted himself
against the tax. May 27th, he spoke as follows.

MR. PRESIDENT,--I am in favor of the proposition of the Committee, which seems to me sound in principle and policy.

There are reasons against taxing cotton,--first, from the character of the product itself, and, secondly, from the effect of the tax on manufactures.

If we look at the character of the product, we find, in the first place, that it is agricultural,--peculiar, indeed, to one section of the country, but as much an agricultural product as grain, hemp, and flax, which are left untouched by this bill. There should be reason for adopting the tax in one case and not in the other. No such reason exists.

But cotton is not only an agricultural product, it is also a leading export. Now I raise no constitutional question on the power to tax exports, although it may not be entirely easy to reconcile such tax with the language of the Constitution: “No tax or duty shall be laid on articles exported from any State.” The object of this clause was to prevent discrimination among States through the taxing power. But not questioning the power in the present case, it seems to me that its exercise is of doubtful policy, according to principles of political economy. I do not think that it is the policy of civilized nations to tax exports, which play an important part, first, in quickening commerce, and, secondly, in furnishing the equivalent of imports.

Then there is difficulty arising from the condition of the country. Until the Cotton States are restored to the Union, little or no revenue can be expected from any such tax. But if their representatives were once more here, can anybody suppose it possible to tax this great staple of the South, while the great staples of the West--grain, provisions, and wool--are free? It seems to me unadvisable to attempt, in the absence of these representatives, what we would not attempt, if they were present,--in other words, to do what is of doubtful equity, simply because we have the votes. Our tax, at best, can be little more than prospective. Is it not better to wait till it may be a reality?

Even if at another time the tax on cotton seemed politic, I doubt if it can be so regarded for some time to come. Considering the peculiar condition of things, there is small doubt that the country for the next five years will have greater interest in encouraging the production of cotton than in taxing it.

Sometimes it is said, that, if cotton is not taxed, the Cotton States will escape taxation, which would be a practical injustice to other parts of the country. But I am not satisfied that we cannot tax their slaves. Besides, the $200,000,000 of cotton exported assures the importation of $200,000,000 of foreign products, which, with twenty-five per cent duty, gives a revenue of $50,000,000 annually.

But if cotton must be taxed, it should not be by a specific tax, but by a tax _ad valorem_, and for obvious reason. Cotton is sold in the market under seven different grades, varying materially in value. These grades are classified as follows, beginning with the lowest or least valuable, and ending with the highest or most valuable: (1.) ordinary, (2.) good ordinary, (3.) low middling, (4.) middling, (5.) good middling, (6.) middling fair, (7.) Sea Island. For ten years, from 1850 to 1860, the average price of ordinary cotton was six and five eighths cents a pound, while middling fair, the highest grade except Sea Island, averaged twelve cents a pound. A tax of one cent a pound on ordinary cotton would be over fifteen per cent on its value, while one cent a pound on middling fair cotton would be eight and one third per cent, and the same tax on Sea Island cotton, commanding the highest price of all, would be less than five per cent.

The tax on cotton, if any is imposed, ought not to exceed five per cent _ad valorem_. In the natural course of events, without interruption of war, the cotton exported would have amounted in value for a year to $200,000,000. If to this we add the value of cotton used in the United States, $35,000,000, we shall have the sum-total of $235,000,000. A tax of five per cent _ad valorem_ on this would be $11,750,000.

The proposed tax of one cent a pound is much larger. During the year ending the 30th of June, 1860, the value of the cotton exported was $191,806,555, and the number of pounds exported was 1,767,686,338. A tax of one cent a pound would be $17,676,863,--a very large sum, which I should be glad to pour into our Treasury. But, assuming the value of this cotton at ten and eight tenths cents a pound, the tax of one cent a pound will be above nine and one fourth per cent,--nearly double what the tax ought to be.

Consider now, if you please, the effect of this tax on cotton manufactures. It appears that we manufacture annually about seven hundred thousand bales of cotton, one half of which is of the three lower grades, and is worked into what is called by manufacturers coarse goods. Of these one pound of cotton will make about two and a half yards, worth twenty cents. Now a tax of three per cent on this cloth would be six mills. Add the tax of one cent a pound on cotton, and you have a total of sixteen mills, making a tax of eight per cent on the value of the cloth,--a higher tax than is imposed by the Tax Bill on anything except dogs, whiskey, and tobacco.

The rest of the cotton manufactured in our country is worked into what are called fine goods, of which one pound will make from four to eight yards, valued at thirty to forty cents, or, on an average, thirty-five cents. The tax of three per cent on these goods at thirty-five cents would be ten and a half mills. Add the tax of one cent on the cotton, which is ten mills, and you have the total of twenty and a half mills, making a tax on this article of more than five and eight tenths per cent.

Of the finest goods, a pound of cotton would make cloth worth seventy-five cents. The tax upon this class would be four and one third per cent.

Thus the cheap goods used by the poorer people will be taxed much higher than the finer goods used by the rich. Are you ready to set up this discrimination?

There is an important export trade of cotton manufactures, which must not be forgotten. But these are entirely of the class known as coarse goods. For instance, during the year ending June 30, 1860, cotton goods exported amounted to $10,934,796. This commerce is conducted under difficulties. Necessarily it encounters strong competition in the foreign markets, and must have failed, but for the anomalous opportunities it enjoyed in China and the East Indies, where these goods were often sent as remittances instead of bills of exchange, it being cheaper to pay for them in Boston even more than they will bring at their destination than to pay the premium of exchange. But this business, having such anomalous support, cannot bear additional burden. It will be annihilated,--at least I am so assured by those who ought to know.

The proposed tax upon coarse goods used in our country is found, on calculation, equal to seven per cent on the capital invested in their manufacture, and on exported goods it is equal to five per cent. If cotton must be taxed, it ought not to be higher than five per cent, and I have already shown that it ought to be _ad valorem_. On goods exported there should be a drawback in favor of the manufacturer, not only of the three per cent on the goods, but also of the five per cent on the cotton. If the three per cent tax on all goods used in this country were reduced to one and one half per cent _ad valorem_, this, with the five per cent tax on the cotton, would be equal to three and one sixth per cent _ad valorem_ on coarse goods, and to three and one third per cent on fine goods. But I prefer the proposition of the Committee, leaving the bill otherwise as it is.

In conclusion, I have to say that the cotton cloths manufactured in our country are nearly as much a necessary as breadstuffs, entering into the daily life of all, whether rich or poor, like daily bread.

In the debate which ensued, Mr. Davis, of Kentucky, alluded to
Mr. Sumner.

“I have been very strongly arrested by the debate to-day,
and I very much approve of its spirit and its tenor. I am
glad to see gentlemen quitting visionary subjects”--

MR. CLARK. Do not lug them in.

--“and coming to questions of legitimate political
economy; and especially I am glad that the Senators from
Massachusetts have shown a disposition to come to such
legitimate ground of legislation.”

In the same speech the Kentucky Senator indulged in prophecy.

“And if the slaves were liberated, if the theory of the
gentlemen from Massachusetts and other Senators were
carried into operation, I believe, as certainly as I
believe that I am now addressing the Senate of the United
States, that there would not be one fifth as much cotton
raised in any year in the next five years as has been
raised, according to the estimate of the Senator from Rhode
Island, for the past year. I do not believe that the man
lives, that the child lives, who will ever see, after the
universal emancipation of the slaves, under any state of
labor, or of care, or of application of labor, either the
labor of men or of machinery, that the production of cotton
in the United States will reach one half of five millions
of bags.”[61]

The amendment striking out the tax was adopted,--Yeas 20, Nays
16.

* * * * *

June 3d, at the next stage of the bill, the question was
presented again, when Mr. Sumner renewed his opposition to
the tax. In the course of his remarks the following passages
occurred.

MR. SUMNER. Then, Sir, as I had the honor of saying in the former debate, suppose the vacant seats on the other side of the Chamber were filled, suppose Senators here from the Cotton States, would you think of imposing a tax on cotton without in the same bill imposing a tax on the agricultural products of the North? You would not, I am sure; and, Sir, in their absence, I will not do what I would not do, if I could, were they here.

MR. GRIMES. Would you not abolish Slavery in the District of
Columbia?

MR. SUMNER. I would do that, were they here, and propose it to their faces, and be too happy in the opportunity.

June 4th, the debate was continued, when Mr. Sumner spoke as
follows.

I am admonished by my friend, the Senator from Maine [Mr. FESSENDEN], not to say anything. I shall say very little. I am in favor of reducing the tax from one cent to half a cent, and I am also in favor of striking out the whole tax. If there must be a tax, I wish the smallest; and if I can have the attention of the Senator from Wisconsin [Mr. HOWE], whose remarks were so candid, I should like to put him a question. You heard him say that he would not impose any tax which he knew would really be burdensome on the manufacturers. Other Senators have repeated the same thing.

Now, Sir, on whom will he rely, in determining whether the tax will be burdensome? I take it that the manufacturers are competent witnesses, if not the best witnesses; and Senators from manufacturing States, when they express themselves on the question, are to be heard. But it is the clear opinion of the manufacturers that the proposed tax will be burdensome, that it will almost annihilate a certain branch of trade with China and the East Indies, and that it will be most oppressive on the coarser fabrics at home. The tax on the latter will swell to as much as seven per cent, which is a very large tax, larger than is imposed on anything else in the bill, unless it be whiskey and dogs.

I put it to the Senator from Wisconsin, who so candidly said that he would not impose a tax that he knew to be burdensome, whose testimony will he accept? On what will he rely? Is it his own knowledge, his own impressions, his own imagination, if you please? In answer to all these I present the positive testimony of those really familiar with the subject.

Here, then, is the question in a nutshell. In imposing this tax, you have on one side the certainty of undue burden on a special interest; and what have you on the other side? An uncertainty. Who here can say that the proposed tax will be productive? Sir, we have not the cotton in our hands. Through the machinations of wicked men, it has ceased to be within our possession. I remember in my childhood being much amused with a little poem entitled “Oxen in the Skies,” which pleasantly described a contest between two senseless persons as to who should own certain imagined oxen in the skies,--that is, a contest about something not within reach. The cotton you propose to tax is not within reach. I trust that it may soon be. Should we not act on existing facts, rather than on hopes?

There is a larger view of the question. While you begin to tax the agricultural products of the country, you open the door to that great experiment. If the Senate is ready to march in that direction, I will not say whether I am not ready to march also; but the Senate should not commence the experiment without considering where it leads. In this whole bill you do not tax a single agricultural product. Why, therefore, make an exception of cotton? If you begin with cotton, where will you stop? Must you not also tax hemp, flax, and corn? Why not? Not that I am in favor of such taxation; but where in principle are you to stop? Sir, I put these questions as a warning to Senators.

The original proposition from the House of Representatives was
amended by substituting “one half cent” a pound, instead of
“one cent,”--Yeas 30, Nays 10.

TAX ON SLAVE-MASTERS.

SPEECHES IN THE SENATE, ON AMENDMENT TO THE INTERNAL TAX BILL, MAY 28 AND JUNE 6, 1862.

While voting and speaking against a tax on cotton, Mr. Sumner
was anxious to tax Slavery, and this he sought to accomplish by
a tax on those who pretended to hold slaves.

* * * * *

May 28th, he moved the following amendment:--

“_And be it further enacted_, That any person who shall
claim the service or labor for life of any other person,
under the laws of any State, shall pay, on account of such
person so claimed, the sum of ten dollars.”

And then said:--

MR. PRESIDENT,--A tax of ten dollars on account of each slave will give $40,000,000. And in putting the tax at ten dollars I follow the precedent of the Constitution, which taxes slaves imported at ten dollars. I do not disguise that on this question I have shared the doubts of others. Of course, no tax would be tolerable which gave any sanction to property in man; and it has been feared that a tax on slaves might be interpreted into such sanction. This fear is not unnatural to persons shocked by the idea of Slavery. It was early avowed by Roger Sherman, of Connecticut, whose sensibility is recorded by Madison in his report of the debates in the Federal Convention.

“He was opposed to a tax on slaves imported, as making the
matter worse, because it implied they were property.”[62]

Again, a few days later, when the same clause of the Constitution was under discussion, Mr. Sherman repeated his objection, and the following debate occurred, which seems to exhaust the argument on both sides.

“MR. SHERMAN was against this second part, as acknowledging men
to be property, by taxing them as such under the character of
slaves.

“COLONEL MASON. Not to tax will be equivalent to a bounty on
the importation of slaves.

“MR. GORHAM thought that Mr. Sherman should consider the
duty, _not as implying that slaves are property_, but as a
discouragement to the importation of them.

“MR. GOUVERNEUR MORRIS remarked, that, as the clause now
stands, it implies that the Legislature may tax freemen
imported.

“MR. SHERMAN, in answer to Mr. Gorham, observed, that the
smallness of the duty showed revenue to be the object, not the
discouragement of the importation.

“MR. MADISON thought it wrong to admit in the Constitution the
idea that there could be property in men. The reason of duties
did not hold, as slaves are not, like merchandise, consumed, &c.

“COLONEL MASON, in answer to Mr. Gouverneur Morris. The
provision, as it stands, was necessary for the case of
convicts, in order to prevent the introduction of them.”[63]

After this discussion, the clause as found in the Constitution, laying “a tax or duty on such importation, not exceeding ten dollars for each person,” was adopted, _nem. con._ Thus it appears that Sherman, Morris, Franklin, and Gerry, to say nothing of Madison, all known for opposition to Slavery, and determination to give it no sanction, concurred in this proposition. They felt that a tax or duty, thus arranged, was not a sanction of Slavery.

The same question is now presented to us. Clearly there can be no such thing as property in man. The whole idea is offensive and odious. There is no revenue, whatever be its amount, to compensate for this recognition. Better be poor, better be pinched in means, better forego much needed supplies, than obtain help through any such sacrifice. But the same considerations which induced our fathers, with all their avowed scruples, to sustain such a tax or duty, may properly influence us.

It is the boast of the Constitution that it knows nobody as a slave. All are “persons.” But at the same time it does not assume to interfere with a well-known State institution by which “persons” are degraded to be property. The condition of the slave is anomalous. He is property by local law; he is a “person” by the Constitution. But nobody questions the existence of Slavery. It is a monstrous _fact_, beyond reach in the States, except through the War Power, and yet none the less a _fact_, which taxation will only recognize, and not sanction. It is an intolerable nuisance intrenched in State lines; but we shall not treat it otherwise than as nuisance, when we tax it. In taxing it we do not assume its rightfulness; we only assume its undeniable existence as a _fact_, and nothing else.

If our tax were an encouragement, it would be clearly immoral. But it is a discouragement. Exemption from taxation is encouragement. Taxation is discouragement just in proportion to its extent, until, in the progress of events, it becomes destructive. Regarding the present question in this light, our course is plain. It is not permissible to encourage Slavery, while every principle of economy and every sentiment of justice and humanity urge its discouragement.

But it is said that the Constitution prohibits a capitation tax, “unless in proportion to the census.” The tax I propose is not a capitation tax, any more than the tax on auctioneers, or lawyers, or jugglers, or peddlers, or slaughterers of cattle is a capitation tax. According to lexicographers, a capitation tax is a poll tax, a tax on each individual. Now this tax makes no pretension to be a poll tax, or a tax on each individual. It is a tax on a person who claims the service or labor of another for life, proportioned to the extent of his claim. In other words, _it is a tax on a claim of property_; and when I tax this claim, surely I do not recognize its morality, nor do I accord to it any sanction.

If it be said, that at one time I insist the slave shall have all the rights of “persons” under the Constitution, while I now insist that his master shall pay a tax on his claim of property, I reply, that there is no inconsistency, but perfect harmony. By an unquestionable rule of interpretation, applicable to the Constitution, every word must be construed _in favor of Liberty_, so as most to promote Liberty. According to this rule, every presumption is in favor of Liberty. But, while insisting upon every such presumption, it does not follow that the counter claim shall not be taxed. Indeed, the same principle which inclines in favor of the slave must incline also to tax the claim of his master, so long as this claim exists in fact. Freedom is to be enlarged in every way possible, whether by encouraging the slave or discouraging the master. Therefore do I say fearlessly, that the slave, whenever he appears within the national jurisdiction or before national tribunals, is entitled to all the rights of “persons”; but the master, who asserts this odious property, cannot claim any immunity for it on this account. The indulgence is all for the slave, and not at all for the master. For the slave Congress must do everything in its power; for the master Congress must have nothing but disapprobation and discouragement.

These are reasons that influence me, and I present them now in order to influence those who hesitate to impose this tax, on the old idea of Roger Sherman, that it will be a recognition of property in man. Of course, where Senators have no such scruple, the argument for this tax is unanswerable.

It is easy to levy.

It is profitable.

And so far as it exerts an influence, it must be a discouragement to an offensive wrong, which is the parent of our present troubles, and the occasion of all this taxation. It would be strange, if Slavery, after causing our national calamity, should escape from all its consequences. It would be strange, if Slavery, which has played the tyrant thus far in our history, should now, like the tyrant, be so far indulged as to escape burdens of all kinds. It shall not be by my vote.

Subsequently Mr. Sumner modified his amendment, by accepting
a substitute drawn by Mr. Simmons, of Rhode Island, in behalf
of the Finance Committee, who suggested, that “the section,
as presented by the Senator from Massachusetts, might leave
the slave liable to be sold to pay the tax, and that conflicts
about as much with the Senator’s notions as he could well have
drawn any provision to do so.” Mr. Sumner had no anxiety on
this head, and said at once:--

Perhaps the Senator and myself start from different points. I do not think the United States can own a slave. I cannot doubt, that, if a slave should be seized under process of the United States, he would be taken to Freedom, and not to Slavery, for the simple reason that the nation cannot own a slave. Therefore any special provision for this emergency is superfluous. I rest in the conviction, that, when a slave passes into the hands of the United States, he at once becomes free.

Mr. Sumner added, that the proposition he had presented was “in
the plainest form and fewest words,” and on this account had
merits of its own.

Mr. Collamer hoped Mr. Sumner would accept the substitute,
and thought “ten dollars a head on all ages and conditions an
unreasonable tax.”

The substitute accepted by Mr. Sumner was as follows.

“SEC.--_And be it further enacted_, That an annual tax of
five dollars shall be paid by every person or persons,
corporation, or society, for and on account of the service
or labor of every other person between the ages of ten and
sixty-five years, whose service or labor, for a term of
years or for life, is claimed to be owned by such first
mentioned person or persons, corporation, or society,
whether in a fiduciary capacity or otherwise, under and by
virtue of the laws or customs of any State; and said annual
tax shall be levied and collected of the person or persons,
corporation, or society, making such claim, and of their
goods, chattels, or lands, as is herein before provided;
but in no case shall the person or persons whose service or
labor is so claimed, or their service or labor, be sold for
the purpose of collecting said tax: _Provided_, That this
tax shall not apply to service due to parents.”[64]

Mr. Sherman, of Ohio, took the lead in answer to Mr. Sumner,
and in opposition to his amendment. After insisting that slaves
are “persons,” and that, if the amendment be adopted, “they
will be the only persons taxed under this bill,” he said:--

“If the Senator had made his argument yesterday, when
we proposed to tax cotton, a production which goes into
manufactures, what he has said would apply with great
force. Cotton is a production of slave labor solely.… All
his arguments apply to cotton as a subject of taxation; but
he convinced a majority of the Senate yesterday that it was
not expedient to tax cotton; and now he proposes to tax
slaves, and how?… With all our immense resources, we cannot
now collect it, except from the loyal people who live in
the Border States, who now recognize our flag and are
subject to our law. I am not willing to select them as the
first to bear a heavy and peculiar taxation. I believe that
the true course is to insist upon the tax on cotton.”[65]

The special points of Mr. Sherman’s opposition appear in Mr.
Sumner’s reply.

MR. PRESIDENT,--I will make one remark in reply to the Senator from Ohio. He objects to my proposition as in the nature of a direct tax, or poll tax. How is this? Has not the Senator voted to tax auctioneers, lawyers, jugglers, and slaughterers of cattle, all being classes of persons in the community?

MR. SHERMAN. To tax their employments.

MR. SUMNER. And I propose to tax the employment of the slave-master,--that is all. It is the business of the slave-master to make the slave work. This is his high vocation. In other words, his business consists in using the service and labor of another. And to this class of persons he belongs. Is it not plain? Can there be any doubt? Look at it. He is an auctioneer of human rights, a broker of human labor, a juggler of human sufferings and human sympathies,--I might say a slaughterer of human hopes; and, Sir, if the Senator from Ohio can tax auctioneer, broker, juggler, or slaughterer of cattle, I am at a loss to understand why he cannot tax the peculiar form of these vocations all concurring in the slave-master. He is swift to tax the less, but hesitates to tax the greater. He can tax the petty employment, which is not immoral or cruel; but he will not tax the larger multiform employment, in which immorality and cruelty commingle.