Chapter II (4)

The bills now under consideration are obviously founded on the War Powers. The first section of the first bill begins as follows.

“That all the estate and property, money, stocks, credits,
and effects of the persons hereafter named in this section
are hereby forfeited to the Government of the United States,
_and are declared lawful subjects of seizure, and of prize and
capture, wherever found, for the indemnity of the United States
against the expenses of suppressing the present Rebellion_.”

The Senator must be very hardy who denies the power of Congress, in the exercise of belligerent rights, to pass such a bill; and he must be equally hardy, when he insists that belligerent rights are impaired by any limitations of the Constitution.

If the enemies against whom we now wage war were not our own fellow-citizens, if they were aliens unhappily fastened for the time on our territory, there would be no fine-spun question of constitutional immunity. Such immunities are essentially municipal in character; but a public enemy can claim nothing merely municipal. The immunities he enjoys are such only as are conceded by the Rights of War,--nor more, nor less. As a public enemy, he seeks to subvert our Government, its laws and its Constitution; and in this warfare he proceeds according to the Rights of War, indifferent to any mere local law. But if the war on our part were in accordance with mere local law, and in subordination to provisions of the Constitution devised for peace, it is evident that the National Government would be unable to cope with its enemy. It would enter into battle with hands tied behind the back. Of course, in warfare with people of another country Senators would not require any such self-sacrifice.

But the Rights of War are fixed, whether against alien enemies or against enemies whose hostility is aggravated by the guilt of rebellion, with this single difference, that against rebel enemies these rights would seem to be more complete and unsparing. Show me any Right of War which may be employed against alien enemies, and now, in the name of the Constitution, I insist upon its employment against rebels arrayed as enemies. Because enemies are also rebels, they are not on this account any the less enemies. Because rebels are also enemies, they are not on this account any the less rebels. The double character which they bear increases their liabilities, subjecting them to all the penalties of war enhanced by those personal responsibilities which every partaker in rebellion necessarily assumes.

And yet, Sir, the Constitution is cited as a limitation upon these rights. As well cite the Constitution on the field of battle to check the bayonet charge of our armies, or at the bombardment of a fortress to stay the fiery rain of shells; or, to adopt the examples with which I began, as well cite the Constitution to prevent the occupation of churches here in Washington as hospitals for our soldiers, or to save the house of General Lee in Virginia from similar dedication. The Constitution is entirely inapplicable. Sacred and inviolable, the Constitution is made for friends who acknowledge it, and not for enemies who disavow it; and it is made for a state of peace, and not for the fearful exigencies of war, treading down within its sphere all rights except the Rights of War. Born of violence, and looking to violence for victory, war discards all limitations except such as are supplied by the Rights of War. Once begun, war is a law unto itself,--or, in other words, it has a law of its own, which is part of itself. And just in proportion as you seek to moderate it by constitutional limitations do you take from war something of its efficiency. In vain do you equip our soldiers with the best of weapons, or send into the field the most powerful batteries, the latest invention of consummate science, if you direct them all in full career to stand still for an indictment, or other “due process of law,” or, at least, for the reading of the Riot Act. Undertaking to limit the Rights of War by the Constitution, where are you to stop? If the Constitution can interfere with one, it can interfere with all. If the Constitution can wrest from Government the weapons of confiscation and liberation, there is no other weapon in the whole arsenal of war which it may not take also.

Sir, the Constitution is guilty of no such absurdity. It was made by practical men, familiar with public law, who, seeing clearly the difference between peace and war, established powers accordingly. While circumscribing the Peace Powers with constitutional checks, they left untouched the War Powers. They declared, that, in the administration of the Peace Powers, all should be able to invoke the Constitution as a constant safeguard. But in bestowing upon the Government War Powers without limitation, they embodied in the Constitution all the Rights of War as completely as if those rights had been severally set down and enumerated; and among the first of these is the right to disregard the Rights of Peace. In saying this I fail in no sympathy with peace, which I seek and reverence always, but simply exhibit war in some of its essential conditions. Sir, an alien enemy is not admitted even to sue in your courts.

There is a saying of Antiquity, already quoted in this debate, _Silent leges inter arma_,--“The laws are silent in the midst of arms.”[88] Handed down from distant ages, and repeated by successive generations, this saying may be accepted as the embodied result and very essence of human experience. Had it not been true, it would have been forgotten, or at least ceased to be repeated. But it declares a truth to which every war practically testifies, while it is founded in reason and the nature of things, confirmed by centuries as attesting witnesses. The Constitution itself is only a human law; nor can it claim to speak in time of war, and within the sphere of war, more than any other human law.

How vain, then, to adduce against confiscation and liberation, as war measures, an objection derived from the Constitution! and how vain, also, to offer a penal statute, under the Peace Powers of the Constitution, as a war measure! War is war. Better arrest it at once, if it is to be war on the one side and peace on the other,--if our enemies are to employ against us all the Rights of War, while we employ against them only the Rights of Peace. Penal statutes are good for peace, when laws prevail; but in the midst of war, and against enemies, when laws are proverbially silent, they are absurd. What enemy now arrayed in arms can be indicted, or, if indicted, convicted, under the most stringent of penal statutes? Not Jefferson Davis himself. Why, then, painfully construct legislative verbiage? Why new penalties for treason, which, from the nature of the case, cannot be enforced in this hour of need? Why not see things as they are, and do what the moment requires? The War Powers of Congress are ample; but in time of war a mere penal statute against a public enemy is not so much as a pop-gun.

* * * * *

There are Senators who claim these vast War Powers for the President, and deny them to Congress. The President, it is said, as commander-in-chief, may seize, confiscate, and liberate under the Rights of War, but Congress cannot direct these things to be done. Pray, Sir, where is the limitation upon Congress? Read the text of the Constitution, and you will find its powers vast as all the requirements of war. There is nothing that may be done anywhere under the Rights of War, which may not be done by Congress. I do not mean to question the powers of the President in his sphere, or of any military commander within his department; but I claim for Congress all that belongs to any Government in the exercise of the Rights of War. And when I speak of Congress, let it be understood that I mean _an Act of Congress_, passed, according to the requirements of the Constitution, by both Houses, and approved by the President. It seems strange to claim for the President alone, in the exercise of his single will, War Powers alleged to be denied to the President in association with Congress. If he can wield these powers alone, surely he can wield them in association with Congress; nor will their efficacy be impaired, when it is known that they proceed from this associate will, rather than from his single will alone. The Government of the United States appears most completely in an Act of Congress. Therefore war is declared, armies are raised, rules concerning captures are made, and all articles of war regulating the conduct of war are established by Act of Congress. It is by Act of Congress that the War Powers are all put in motion. When once put in motion, the President must execute them. But he is only the instrument of Congress, under the Constitution.

It is true, the President is commander-in-chief; but it is for Congress to make all laws necessary and proper for carrying into execution his powers, so that, according to the very words of the Constitution, his powers depend upon Congress, which may limit or enlarge them at its own pleasure. Thus, whether you regard Congress or regard the President, you will find that Congress is the arbiter and regulator of the War Powers.

Of the pretension that all these enormous powers belong to the President, and not to Congress, I try to speak calmly and within bounds. I mean always to be parliamentary. But a pretension so irrational and unconstitutional, so absurd and tyrannical, is not entitled to respect. The Senator from Ohio [Mr. WADE], in indignant words worthy of the Senate, has branded it as slavish, and handed it over to judgment. Born in ignorance, and pernicious in consequences, it ought to be received most sternly, and, just in proportion as it obtains acceptance, with execration. Such a pretension would change the National Government from a government of law to that of a military dictator. It would degrade our proud Constitutional Republic, where each department has its appointed place, to one of those short-lived, vulgar despotisms appearing occasionally as a warning to mankind. That this pretension should be put forward in the name of the Constitution is only another illustration of the effrontery with which the Constitution is made responsible for the ignorance, the conceit, and the passions of men. Sir, in the name of the Constitution, which I have sworn to support, and which, according to my ability, I mean to maintain, I protest against this new-fangled effort to foist into it a pretension abhorrent to liberty, reason, and common sense.

* * * * *

At the risk of repetition, but for the sake of clearness, I repeat the propositions on which I confidently rest.

1. Rights of Sovereignty are derived from the Constitution, and can be exercised only in conformity with the requirements of the Constitution; so that all penal statutes punishing treason must carefully comply with these requirements. This is the case of the bill introduced by the Senator from New Hampshire [Mr. CLARK].

2. Rights of War are under the Constitution in their origin, but outside the Constitution in their execution. In other words, the Constitution confers Rights of War, but sets no limits to them; so that statutes to enforce them are not mere penal statutes, restricted by the Constitution. But these rights belong to a state of war, and necessarily cease with the war. This is the case of the House bill under discussion.

3. All rebels are criminals, liable to punishment according to penal statutes; and in all proceedings against them, as such, they are surrounded by the safeguards of the Constitution.

4. Rebels in arms are public enemies, who can claim no safeguard from the Constitution; and they may be pursued and conquered according to the Rights of War.

5. Rights of War may be enforced by Act of Congress, which is the highest form of the national will.

If these conclusions needed the support of authority, they would find it in John Quincy Adams. His words have been often quoted, without perhaps fully considering the great weight to which they are entitled. At an early day, when Minister at London, while Slavery prevailed in the Government, in the discharge of official duties, under instructions from the President, he claimed compensation for slaves liberated by the British armies, arguing against any such liberation under the Rights of War. In conversation with the British Prime-Minister, as reported by himself, after saying that proclamations inviting slaves to desert from their masters had been issued by British officers, he added: “_We_ considered them as deviations from the usages of war.”[89] Afterwards, as Secretary of State under Mr. Monroe, of Virginia, he made a similar statement.[90] A full knowledge of his convictions on this occasion might, perhaps, disclose the repugnance, or, to borrow his own words on another occasion, “the bitterness of soul,” with which he discharged his duty. It is known, by avowals afterwards made, that on at least one occasion he acted as Secretary of State contrary to his convictions. “It was utterly against my judgment and wishes, but I was obliged to submit, and I prepared the requisite despatches.”[91] Such was his open declaration in the House of Representatives with regard to an important negotiation. So that it is easy to see how on this other occasion he may have represented the Government and not himself. But, whatever his actions at that time, it is beyond question, that afterwards, in his glorious career as Representative, when larger experience and still maturer years had added to his great authority, and he was called in Congress to express himself on his personal responsibility, we find him reconsidering his earlier diplomatic arguments, and, in the face of the world, defiantly claiming not only for Congress, but for the President, and every military commander within his department, full power to emancipate slaves under the Rights of War. If these words had been hastily uttered, or, if once uttered, had been afterwards abandoned, or if they could in any way be associated with the passions or ardors of controversy, as his earlier words were clearly associated with the duties of advocacy, they might be entitled to less consideration. But they are among the later and most memorable utterances of our great master of the Law of Nations, made under circumstances of peculiar solemnity, and repeated after intervals of time.[92]

…

The representatives of Slavery broke forth in characteristic outrage upon the venerable orator, but nobody answered him. And these words have stood ever since as a landmark of public law. You cannot deny the power of Congress to liberate the slaves, without removing this landmark. Vain work! It is not less firm than the Constitution itself.

* * * * *

Thus do I vindicate for Congress all the Rights of War. If, assuming the powers of Congress, any further question be raised as to the extent of these rights, I reply, briefly, that there is no right, according to received authorities, against a hostile sovereign or prince, embracing, of course, confiscation of property, real as well as personal, which may not in our discretion be exercised against a rebel enemy; and the reason is obvious. Whatever the mitigations of the Rights of War introduced by modern civilization, under which private property in certain cases is exempt from confiscation, _this rule does not apply to cases where there is a direct personal responsibility for the war_. And here is the precise difference between the responsibility of the sovereign or prince and the responsibility of the private citizen: the private citizen is excused; but the sovereign or prince is always held responsible to the full extent of his property, real as well as personal. Now every rebel who has voluntarily become a public enemy has assumed a _personal responsibility_, for which, according to acknowledged principles of public law, especially if he has taken high office in the rebel government, he is liable to the full extent of his property, real as well as personal. Every citizen who voluntarily aids in armed rebellion is a hostile sovereign or prince. A generous lenity may interfere to limit his liability, but on principles of public law he is in the very condition of Shylock, when his cruelty was arrested by the righteous judge:--

“If thou dost shed
One drop of Christian blood, thy lands and goods
Are by the laws of Venice _confiscate_
Unto the State of Venice.”

Such, Sir, is the extent of powers which may be exercised by Congress. Of course, it is for Congress to determine the degree of severity or lenity it will adopt. In claiming these powers to the full extent, I yield to no Senator in that spirit of clemency which, next to justice, is the grace and ornament of success.

* * * * *

Mr. President, these are the principles on which we must act. Announcing them and reducing them to practice, Congress will enlarge its accumulating claims to public gratitude.

The present Congress has already done much beyond any other Congress in our history. Measures, which for long years seemed attainable only to the most sanguine hope, have triumphed. Emancipation in the National Capital; freedom in all the National Territories; the offer of ransom to help emancipation in the States; the recognition of Hayti and Liberia; the treaty with Great Britain for the suppression of the slave-trade; the prohibition of the return of fugitive slaves by military officers; homesteads for actual settlers on the public lands; a Pacific railroad; endowments of agricultural colleges out of the public lands: such are some of the achievements by which the present Congress is already historic. There have been victories of war, won on hard-fought fields, but none comparable to the victories of peace. Besides these measures of unmixed beneficence, the present Congress has created an immense army and a considerable navy, and has provided the means for all our gigantic expenditures by a tax, which in itself is an epoch.

Thus, in the prosecution of the war, Congress has exercised two great powers,--first, to raise armies, and, secondly, to tax. Both bear directly upon loyal fellow-citizens everywhere throughout the country. Sons, brothers, and husbands are taken from happy homes and from the concerns of business, leaving vacant places, never, perhaps, to be filled again, and hurried away to wage a fearful war. But beyond this unequalled draft upon the loyal men of the country, summoning them to the hazards of battle, there is another unequalled draft upon the loyal property of the country, presenting a combined draft without precedent upon men and upon property. If you would find a parallel to the armies raised, you must go back to the forces marshalled under Napoleon in the indulgence of unbridled ambition. If you would find a parallel to the tax, you must go further back, to that early day of which the Gospel, in its simple narrative, speaks: “And it came to pass in those days that there went out a decree from Cæsar Augustus, that _all the world_ should be taxed.” A similar decree is about to go out from you,--not, indeed, to tax all the world, but to tax a large and generous people: vast, it may be, even for the world. There have been taxes here before; and in other countries there have been taxes as enormous: but there has been no such tax here before; and in no other country has any such tax been levied at once, without the preparation and education of long-continued taxation.

* * * * *

Confiscation and liberation are other War Powers of Congress, incident to the general grant of such powers, which it remains for us to employ. So important are they, that without them I fear all the rest will be in vain. Yes, Sir, in vain do we gather mighty armies, and in vain do we tax our people, unless we are ready to grasp these other means, through which the war can be carried to the homes of the Rebellion: I mean especially the criminal homes of the authors and leaders of all this wickedness. By the confiscation of property, the large Rebel estates, where treason laid its eggs, will be broken up, while by the liberation of slaves the Rebels will be deprived of an invaluable ally, whether in labor or in battle. But I confess frankly that I look with more hope and confidence to liberation than to confiscation. To give freedom is nobler than to take property, and on this occasion it cannot fail to be more efficacious, for in this way the rear-guard of the Rebellion will be changed into the advance-guard of the Union. There is in confiscation, unless when directed against the criminal authors of the Rebellion, a harshness inconsistent with that mercy which it is always a sacred duty to cultivate, and which should be manifest in proportion to our triumphs, “mightiest in the mightiest.” But liberation is not harsh, and it is certain, if properly conducted, to carry with it the smiles of a benignant Providence.

The war began in Slavery, and it can end only with the end of Slavery. It was set in motion and organized by the Slave Oligarchy, and it cannot die except with this accursed Oligarchy. Therefore, for the sake of peace, and to restore the Union, every power should be enlisted by which Slavery, which is the soul of the war, can be reached. Are you in earnest? Then strike at Slavery. Liberation is usually known as a charity; but while none the less a charity, comprehending all other charities, it is now, in the course of events, _a necessity of war_. Through liberation alone can we obtain that complete triumph, bringing with it assured tranquillity, without which the war will stop merely to break forth anew, and peace will be nothing but an uneasy truce. Among all the powers of Congress incident to our unparalleled condition, there is none so far-reaching, as there is none so beneficent,--there is none so potent to beat down rebellion, as there is none other by which peace can be made truly secure. Powerful and beautiful prerogative! The language of Chatham is not misapplied, when I call it the “master feather of the eagle’s wing.”

PRIZE-MONEY AND ITS POLICY.

REMARKS IN THE SENATE, JUNE 30, 1862.

The pending bill, providing that property taken by the Rebels
and then retaken under national authority should be restored
to the former loyal owner without salvage, was opposed by Mr.
Grimes.

Mr. Sumner said:--

I take it that the policy of prize-money is always open to question. It has been handed down from other generations, but I cannot doubt, that, in proportion as nations advance in civilization and refinement, it is more and more drawn into doubt.

MR. GRIMES. I will ask the Senator, whether, under the law as
it now exists, our officers and sailors have not certain vested
rights? This bill is retrospective, as well as prospective.

MR. SUMNER. But these vested rights, according to existing law, are acquired in war with foreign enemies. And here is the precise point of principle. Certain property of fellow-citizens is taken, not by foreign enemies, but by rebels, and afterwards it is retaken. Several vessels are in this predicament. Even if the recapture were from a foreign enemy, English and American statutes treat it as a case of salvage, and not of prize. But the claim now made involves nothing less than the extension of the ancient rule of war to a new class. I am against such extension. I would have no amplification of such a rule.

I am disposed to go still further, and to reconsider the whole policy of prize-money in any case. Even if not ready for this larger question, the Senate will not hesitate to apply the limitation now proposed. Besides the hardship of prize-money at the expense of our own fellow-citizens, there is the uncivilized character of the whole system, which should make us pause.

The bill was passed,--Yeas 25, Nays 12.

THE RANK OF ADMIRAL.

REMARKS IN THE SENATE, ON THE BILL TO ESTABLISH THE GRADES OF NAVY OFFICERS, JULY 2, 1862.

The bill under consideration was “to establish and equalize the
grades of line officers of the United States Navy.” By this
bill the rank of Admiral was established in the national navy.
Mr. Hale moved to reduce the pay of admirals from five thousand
seven hundred and eighteen to five thousand dollars.

Mr. Sumner said:--

I hope the amendment will prevail. For years we have been asked to make admirals. Congress has refused,--partly, perhaps, from motives of economy, and partly, also, from hesitation to create officers with that rank and title.

Now, Sir, I am willing, considering the increase of our navy and the exigency of the public service at this time, to create officers with that rank and title. So doing, we confer honor and consideration,--we bestow what officers, military and naval, naturally covet. Wherever they go, they will be addressed as Admiral; and, with naval men, that is much. Sir, I believe it more than money. But, while bestowing rank, I hesitate to increase emolument largely, particularly at this moment of our history. It costs nothing to confer rank; but it will be most expensive to the Treasury, if we enter upon a new scale of pay. Therefore I follow the Senator from New Hampshire in his proposition to reduce the salary. Create the admirals,--bestow this new title, this consideration, this introduction wherever the admiral goes, this equality, if you please, with the admirals of other nations and other fleets; but do not undertake to vie with those nations in salaries. To me it seems unwise.

The amendment was agreed to.

TESTIMONY OF COLORED PERSONS IN THE COURTS OF THE UNITED STATES.

SPEECHES IN THE SENATE, ON AN AMENDMENT TO TWO DIFFERENT BILLS, ONE RELATING TO THE JUDICIARY, AND THE OTHER TO THE COMPETENCY OF WITNESSES, JULY 3 AND 15, 1862.

The Senate having under consideration a bill “relating to the
Judiciary,” in which provision was made for proceedings “in the
courts of the United States,” Mr. Sumner made another attempt
to overthrow the rule excluding colored witnesses by the
following amendment:--

“And there shall be no exclusion of any witness on account
of color.”

This was rejected,--Yeas 14, Nays 21.

* * * * *

At the next stage of the bill, Mr. Sumner said:--

MR. PRESIDENT,--This bill relates to the national judiciary. The Senate is making rules for the courts of the United States, and now by its vote sanctions the rule that a witness who happens to have a color different from ours is incompetent to testify, he cannot be heard in court. The practical effect of such exclusion is, that any outrage by a white man on a colored person, if no other white person is present, must go unpunished; and the Senate of the United States refuses to interfere against this cruelty. I must say, Sir, that I lose my interest in the bill, when it is associated with such wickedness,--for such I must call it. If there is any outrage at this moment in the form of law, and actually within our reach, it is what I now hold up to the indignation of the country and of mankind. It is hard to think that human beings can be placed thus defenceless by Act of Congress,--that masters or overseers, being white, may offer to colored persons any offence, any brutality, and the testimony of the witnesses, merely because they are colored, shall be excluded absolutely. And yet, Sir, that is what the Senate to-day declares.

The Senator from New Hampshire [Mr. HALE] has voted to sustain this cruelty. Other Senators have voted to sustain it. It is their privilege. Each Senator votes, I know, according to his conscience; but, Sir, I call attention to the vote, and remind you of what occurred on another occasion. Formerly, when I moved this proposition, it was opposed on the allegation that it was not pertinent to the bill under consideration. When I moved it, the other day, on what was known as the Confiscation Bill, the other Senator from New Hampshire [Mr. CLARK] mildly suggested, that, at a proper occasion, on a proper bill, he would be ready to support it. I know that the motion must have the approbation of that excellent Senator. He is too just and too humane not to be in favor of it. And now, Sir, the time has come. Here is a bill regulating evidence in courts of the United States,--not in courts of the States, but in courts of the United States. The whole subject is directly before you. It is within your province now to decide. Yours the jurisdiction and power. And yet, Sir, you choose to continue the wrong. I shall vote for the bill on its final passage, because in other respects I think it ought to be a law; but I enter my protest against the conclusion of the Senate. It is melancholy, disastrous, discreditable.

Mr. Hale vindicated the vote of the Senate, and insisted that
the proper object of attack was the Supreme Court.

Mr. Sumner replied:--

The Senator from New Hampshire severely criticizes the Supreme Court, which he reminds us has decided that the rights of citizenship, being rights that white men are bound to respect, and all the rights which make human life worth anything, are dead to colored persons; and he then proceeds forthwith to sustain a principle every way as bad. He condemns Chief-Justice Taney for declaring that colored persons are not citizens, and then, with marvellous logic, proceeds to say that he will not interfere to overturn the rule by which the testimony of colored persons is excluded from the national courts. Sir, I do not know which is most open to condemnation, the Supreme Court or the Senator. I am against the decision of the Supreme Court. The Senator knows it well. I am not one whit behind him in condemnation of that judgment, which must forever stand forth among the inhumanities of this generation. But permit me to remind the Senator that the rule he sustains is not less inhuman. There is not a word he can launch against the Court that must not rebound upon himself. To me it is unintelligible as painful that the Senator should interfere to save any such inhumanity. I use strong language, but it is only in this way that I can fitly characterize the doctrines of the Supreme Court and of the Senator. The Supreme Court has erred infinitely and wretchedly, but the Senator now errs in the same way.

The Senator is entirely mistaken, when he says that the rule which I seek to overturn proceeds from the Supreme Court. It is no such thing; and if I can have his attention one moment, I can make him understand it. The rule against the testimony of colored persons stands on the local law of the States, and not on any decision of the Supreme Court of the United States. The Court cannot interfere with it one way or the other. Congress alone, when legislating for its own courts, can interfere with it; and I entreat the Senate now, as it is about to legislate for the national courts, to interfere with it. The amendment of the Senator from Connecticut, which I have in my hand, is as follows:--

“That _the laws of the several States_, except where the
Constitution, treaties, or statutes of the United States shall
otherwise require or provide, shall be regarded as _rules of
decision in all trials at Common Law_ in the courts of the
United States, in cases where they apply.”

That is, the laws of the several States shall be rules of decision in the United States courts. That is what we declare. I simply propose to add, that those laws shall not be rules of decision in the United States courts, so far as they exclude witnesses on account of color. The Senator from New Hampshire opposes this just, humane, and irresistible proposition; and his argument is, that, instead of reaching the result by legislation, we must overturn the Supreme Court. Sir, permit me to say, his argument is entirely inapplicable, his whole philippic against the Supreme Court is out of place. Whether I agree with him or not, it is plain that this is not the time for it; and I must confess that I like to see things in their proper place. The question now is much more simple, more direct. Why enter upon the ample, illimitable debate which the Senator opens? Why review the Supreme Court and its relations to the country, and whether it shall be overturned, whether it shall be reformed, whether it shall be modified? All this has nothing to do with the question, and the Senator, when he introduced it, simply diverted attention from the business before us. I do not know that he did it purposely. Indeed, I rather suspect the ardor of his nature, which has led him into this strange diversion with its irrelevant amplification.

But the Senator says that the cases in which colored persons are interested arise in the State courts, and not in the United States courts, and that therefore my amendment is entirely inapplicable. The Senator is entirely mistaken again. The United States courts have jurisdiction of crimes without reference to color. They also have civil jurisdiction in other cases which do not depend upon citizenship. The Senator, as a lawyer, knows this well; and yet, deliberately, by vote, and now by speech, he upholds the barbarous rule of exclusion on account of color. Sir, I do not know which was worse, the vote or the speech, although the latter was in harmony with the former. I was astonished at the vote. I am now astonished at the speech, which, pardon me, is as illogical in argument as bad in principle. Most kindly, but most earnestly, do I dissent from it. Sir, I do not wish to take up time, but the subject is of transcendent importance. You will bear with my frankness, if I add, that sanctioning this exclusion can do no honor to Congress. I am sure it must be recorded in judgment against us, and deservedly too. Civilization will blush at the record. God save us!

Mr. Davis, of Kentucky, followed with the remark:--

“I do not think, Mr. President, there was any need
for sticking the perpetual, the all-pervading, the
everywhere-to-be-found, the ever-in-the-way negro to this
bill. I hope and trust that the Senate and the Congress of
the United States will be allowed to mature and perfect
some few bills, in which the interests and the business
of the white man are involved, without having this
ever-present negro stuck upon them by the Senator from
Massachusetts. If he desires to bring up this matter of the
negro in connection with the rules of proceeding in the
Federal courts, let him introduce a distinct bill, and not
make everything odoriferous of his friend.”

Mr. Sumner then renewed his motion in the form of a proviso,
and afterwards the Senate adjourned. The bill was never taken
up again. But the same question was soon presented on another
bill.

July 15th, the Senate had under consideration a bill concerning
the competency of witnesses in courts of the United States,
which provided that this should be regulated by “the laws
of the State in which the court shall be held.” Mr. Sumner
offered his amendment again. It was opposed by Mr. Foster, of
Connecticut, who had reported the pending bill. In the course
of his remarks he said: “It is competent for every State to fix
its own rules for itself, and the independence of each State
of every other State requires that they should be protected in
that right of making their own laws.”

Mr. Sumner replied:--

MR. PRESIDENT,--It may be well, as the Senate is called to enact a new national statute, to glance back at an early landmark, and contemplate the principles declared by our fathers. I hold in my hand the Declaration of Independence, with these words at the beginning: “We hold these truths to be self-evident, that all men are created equal,” &c. Now, Sir, the Senator from Connecticut [Mr. FOSTER], representing the Judiciary Committee, proposes to establish as a rule of evidence in the national courts that men are not equal.

Mr. Foster here interrupted to say that he proposed “no such
rule of evidence”; that he simply proposed “to allow the laws
of the several States of this Union to operate as rules to
control the courts of the United States sitting within those
several States, as it regards the competency of witnesses: that
is all.”

Mr. Sumner resumed:--

I could not intentionally do the Senator injustice. Nor do I find that I did him injustice; and he will therefore pardon me, if I repeat what I said before,--that, representing the Judiciary Committee, the Senator comes forward, in defiance of the Declaration of Independence, to ingraft into the legislation of the United States the practical principle that all men are not equal. The Senator rises and denies that he is doing any such thing. He simply recognizes local laws in the States. That is all,--nothing else. But pray, Sir, is not this enough? Local laws which defy the Declaration of Independence cannot be recognized without defying the Declaration; nor can the Senator escape responsibility merely by saying that he follows the local laws. Does he not sanction injustice? The case is plain. He asks us to legislate on the competency of witnesses. He proposes to regulate this competency by Act of Congress, where, among other things, we are to provide that in the courts of the United States witnesses shall be incompetent on account of color. The proposition is not made openly, but in the covert words, that the local laws of States shall in all cases prevail in the national courts. The Senator cannot forget these local laws, how instinct with barbarism they are, nor the shame and scandal they bring upon our country and upon civilization itself; and yet he would give them new sanction and effect,--not in the courts of the States, within the local jurisdiction, but in the courts of the United States, under the Constitution of the United States, within the national jurisdiction, where you and I, Sir, are responsible for the barbarism. No matter in what form it is put, no matter how subtly the attempt is concealed, it is the adoption by Congress of an outrageous rule.

Offer any objection you please to the credibility of a witness, show that he is not intelligent, that he is not worthy of belief, that his character is bad, and make all proper deductions from his testimony on this account, but do not say that he is absolutely incompetent, that he cannot be heard in court, that, no matter how intelligent, truthful, or respectable, he cannot be admitted to testify, if he happens to be of another color than ourselves. Such exclusion is cruel to the witness, degrading to courts administering it, and destructive of justice, which seeks evidence from every quarter.

I listened closely to the ingenious argument of the Senator, going along with him in what he claimed for the States and for their courts. He said, each State is entitled, within its own jurisdiction, to have its rules of evidence. Granted. He thought it better to leave every State its own rule on this question. Granted again, Sir, so far as the courts of the States are concerned.

MR. FOSTER. Why allow them barbarism?

MR. SUMNER. Because I have no right to interfere with them.

MR. FOSTER. That answers the two questions.

MR. SUMNER. There is the mistake of the Senator. He confounds our duties in the two different cases of national courts, where we are responsible, and of State courts, where we have no responsibility and no right to interfere. In his remarks he said: “It is competent for each State to make these rules for itself.” Granted again,--within its own jurisdiction. But he would allow each State its sovereign will on this question. Sir, where I cannot constitutionally interfere to check a barbarism, of course I do not interfere; sorrowfully I allow the sovereign will to prevail. But when a barbarism seeks shelter under the jurisdiction of Congress, when it falls under the direct responsibility of my vote, I cannot be silent.

The Senator will pardon me, if I add, that he erred, when he undertook to transfer the rules of the State courts, without amendment or modification, to the National courts. The State courts have their rules of evidence,--they are beyond our control; but the United States courts are within our control, and the time has come to bring them at last within the pale of civilization. Why, Sir, has the good cause advanced thus far? to what end is it triumphant on this floor, if, in determining rules of evidence in the national courts, we take up and sanction this relic of barbarism?

If the rule is not justly within our reach, pray, Sir, why are we asked to vote on a bill concerning the competency of witnesses, and with a section expressly regulating the whole subject? Sir, I should feel untrue to myself, untrue to the principles I have at heart, and to the people I have the honor to represent, if I allowed a bill like this, with such a title, with such an object, to pass without earnest endeavor to exclude from it all support of the vileness which seeks shelter under its words. Within a few days the Senator has voted for a bill to punish the fraudulent counterfeiting of postage stamps; but suppose the counterfeiter does his work in the presence of colored persons and nobody else, where, under the proposed rule, will the Senator find the evidence required to carry the law into effect? As long as Congress undertakes to legislate criminally, as long as it has courts with a national jurisdiction in the Slave States, it is due to itself, and it is due to justice, that it should furnish the evidence by which such legislation may be made effective, and justice be administered, without a constant act of shame calculated to bring a blush upon the cheeks. I speak plainly, as is my habit, and perhaps with feeling, but I trust that I have said nothing that I ought not to say.

The amendment was rejected,--Yeas 14, Nays 23. The next volume
will show how this effort of Mr. Sumner at last prevailed.

PROVISIONAL GOVERNMENTS AND RECONSTRUCTION.

REMARKS IN THE SENATE, ON A BILL TO ESTABLISH PROVISIONAL GOVERNMENTS IN CERTAIN CASES, JULY 7, 1862.

This was reported from the Judiciary Committee, by Mr. Harris,
of New York, with certain amendments, one of which recognized
“the laws and _institutions_” in a State before the Rebellion.
On the latter amendment Mr. Sumner remarked:--

MR. PRESIDENT,--I cannot consent to the amendment. Plainly it is going too far. A government organized by Congress and appointed by the President is to enforce laws and institutions, some of which are abhorrent to civilization. Take, for instance, the Revised Code of North Carolina, which I have before me. Here is a provision which the Governor, under this Act, must enforce. I say must enforce. The amendment is, that there shall be “no interference with the laws and institutions existing in such State at the time its authorities assumed to array the same against the Government of the United States.” Therefore they must be enforced. And now, if you please, listen to one of them.

“Any free person, who shall teach, or attempt to teach, any
slave to read or write, the use of figures excepted, or shall
give or sell to such slave any book or pamphlet, shall be
deemed guilty of a misdemeanor, and upon conviction thereof, if
a white man or woman, shall be fined not less than one hundred
nor more than two hundred dollars, or imprisoned, and if a free
person of color, shall be fined, imprisoned, or whipped, not
exceeding thirty-nine nor less than twenty lashes.”

That abomination, Sir, is set forth in the Revised Code of North Carolina, chap. 34, sec. 82. But lest it should fail by the employment of slaves as school-teachers, we have the following prohibition.

“It shall not be lawful for any slave to teach, or attempt to
teach, any other slave or free negro to read or write, the use
of figures excepted.”[93]

The punishment of slaves for this offence is whipping, repeated for every act. But, Sir, here is another specimen.

“If any person shall wilfully bring into the State, with an
intent to circulate, or shall wilfully circulate or publish
within the State, or shall aid or abet the bringing into,
or the circulation or publication of within, the State, any
written or printed pamphlet or paper, whether written or
printed in or out of the State, the evident tendency whereof
is to cause slaves to become discontented with the bondage in
which they are held by their masters and the laws regulating
the same, and free negroes to be dissatisfied with their social
condition and the denial to them of political privileges, and
thereby to excite among the said slaves and free negroes a
disposition to make conspiracies, insurrections, or resistance
against the peace and quiet of the public, such person so
offending shall be deemed guilty of felony, and on conviction
thereof shall, for the first offence, be imprisoned not less
than one year, and be put in the pillory and whipped, at the
discretion of the court, and for the second offence _shall
suffer death_.”[94]

Here is yet another.

“If any free person of color shall preach or exhort in public,
or in any manner officiate as a preacher or teacher in any
prayer meeting, or other association for worship, where slaves
of different families are collected together, he shall be
deemed guilty of a misdemeanor, and, on conviction, shall, for
each offence, receive not exceeding thirty-nine lashes on his
bare back.”[95]

And now one more.

“If any person shall wilfully carry or convey any slave, the
property of another, without the consent of the owner or the
guardian of the owner, with the intent and for the purpose
of enabling such slave to escape out of this State, from the
service of his owner, or any one having an interest in such
slave, present or future, vested or contingent, legal or
equitable, or if any person shall wilfully conceal any slave,
the property of another, with such intent and purpose, the
person so offending shall suffer death.”[96]

I have read enough, Sir. These passages show you the statutes to be enforced in the name of the National Union, by its constituted authorities, in courts organized by Congress. And behind all these is Slavery itself to be enforced also.

Sir, such an exhibition is more than sufficient. You cannot consent to any such thing. In organizing these governments, all that we can do is to protect life and property, and generally to provide the machinery of administration. Further we cannot go, and protect institutions in themselves an outrage to civilization.

In the debate that ensued Mr. Sumner remarked:--

In this country there is but one “institution,” as all the world knows, and the phrase “and institutions,” when carefully introduced, means only one institution, which I need not name.

Mr. Trumbull united with Mr. Sumner in criticizing the bill.

“I was for it in the Committee; but since I have seen the
operation of these laws in the Southern States, and the
manner in which persons acting in behalf of the United
States undertake to execute them, I have changed my opinion
in regard to the propriety of such a clause as this, and I
agree with the Senator from Massachusetts. I cannot consent
by my vote, and I never will consent by my vote, to give
sanction to a law that punishes a man for teaching another
to read the word of God.”

The bill was allowed to drop. But this debate had its influence
in showing how impossible it was to recognize “institutions”
existing in a State before the Rebellion. Slavery and the Black
Code were not to obtain license under any such terms. Here was
a point in Reconstruction.

TAXES ON KNOWLEDGE.

REMARKS IN THE SENATE, ON THE DUTIES UPON IMPORTED BOOKS AND RAGS, JULY 8, 1862.

MR. PRESIDENT,--I ask a moment’s attention to the tax on books, which is raised in this bill from fifteen to twenty per cent. Assuming that this is done to increase the revenue, I have to say, that, if we place reliance on the evidence before us, it will not have such effect.

The annual importation of books during the last four years shows that a duty of ten per cent is more productive than a higher rate. The increased importation is more than compensation for the diminished rate; but here it is with books as with other things.

If there were a tax on the manufacture of books in our country, there might be reason for a corresponding duty; but there is no such tax.

By the experience of the last tariff we are warned. The increase of this duty was disastrous to the book-trade, and I am assured that several booksellers who have imported largely are withdrawing from this branch of business, because the rate of fifteen per cent renders it unprofitable. And yet you propose to raise the rate to twenty per cent.

Nor is there any practical argument founded on protection. There are no interests requiring protection which will be promoted by an increased duty, as appears in last year’s memorial of publishers and importers, praying a reduction to ten per cent, and also in another and later memorial from New York importers, praying for the same reduction, and setting forth that their business seriously suffers from the existing rate.

And now I add, that this increased duty is a tax on knowledge, and as such to be discountenanced and opposed. But I rest my argument on the simple ground, that it will not increase the revenue. If at this exacting moment it would have any such consequence, much as I should regret the necessity, I could not oppose it. But it is easy to show that such will not be the consequence: at least, the statistics point this way. The total value of books imported in 1858, with a duty of eight per cent, amounted to five hundred and thirty thousand dollars: I do not give the odd figures. The total value in 1859, likewise with a duty of eight per cent, was seven hundred and seventy-seven thousand dollars; and in 1860, with the same rate, it was seven hundred and thirty-four thousand. In 1861, the total value, with a duty of fifteen per cent, sank as low as three hundred and forty-six thousand. These figures speak.

I do not err, when I infer from them that the higher duty has been an injury to the revenue, and also to the importer. Therefore it is open to a twofold objection. With a duty of ten per cent the revenue would gain, and the public with the importer would be benefited.

The case is stated in a few words. An increased duty on books will do nothing for the revenue; but it will interfere with a useful business, and at the same time impose a tax on knowledge.

Mr. Sumner moved to reduce the tax from twenty to ten per
cent, but, at the suggestion of Mr. Fessenden, Chairman of the
Finance Committee, consented to fifteen per cent, which was
adopted. The amendment failed between the two Houses.

The bill as it came from the House had a proviso, “That all
imported cotton and linen rags for the manufacture of paper
shall be free of duty.” Mr. Sumner made an ineffectual effort
to prevent this from being struck out. In the course of his
remarks, he said:--

Here is another tax on knowledge. On the face it is a tax on rags; but rags are imported to make paper; so that a tax on rags is a tax on paper, and as such is a tax on knowledge.

CONSTITUTIONAL QUORUM OF THE SENATE.

SPEECH IN THE SENATE, ON A RESOLUTION DECLARING THE CONSTITUTIONAL QUORUM, JULY 12, 1862.

According to long-continued usage, a quorum of the Senate was a
majority of the whole number of Senators, assuming each State
represented by two Senators. After the withdrawal of the Rebel
Senators, business was often embarrassed from the failure of
what was supposed to be the constitutional quorum. To remove
this difficulty, Mr. Sherman, April 11th, introduced the
following:--

“_Resolved_, That a majority of the Senators duly elected
and entitled to seats in this body is a constitutional
quorum.”

July 12th, Mr. Sumner said:--