Chapter IX: Appendix (3)

“I cannot but surmise,--forgive, my friend,
If the conjecture’s rash,--I cannot but
Surmise _the State_ some danger apprehends.”[196]

Among us the term is most known as the technical name for one of the political societies composing our Union. When used in this restricted sense, it must not be confounded with the same term when used in a different and broader sense. But it is obvious that some persons attribute to the one something of the qualities which can belong only to the other. Nobody has suggested, I presume, that any “State” of our Union has, through rebellion, ceased to exist as a _civil society_, or even as a _political community_. It is only as a _State of the Union_, armed with State Rights, or at least as a _local government_, annually renewing itself, as the snake its skin, that it can be called in question. But it is vain to challenge for the technical “State,” or for the annual government, that immortality which belongs to civil society. The one is an artificial body, the other is a natural body; and while the former, overwhelmed by insurrection or war, may change or die, the latter can change or die only with the extinction of the community itself, whatever its name or its form.

It is because of confusion in the use of this term that there has been so much confusion in the political controversies where it has been employed. But nowhere has this confusion led to greater absurdity than in the pretension recently made in the name of State Rights,--as if it were reasonable to claim for a technical “State” of the Union that immortality belonging to civil society.

From approved authorities it appears that a “State,” even in a broader signification, may lose its life. Dr. Phillimore, in his recent work on International Law, says: “A State, like an individual, may die,” and among the various ways, he says, “by its submission, and the donation of itself, as it were, to another country.”[197] But in the case of our Rebel States there has been a plain submission and donation of themselves, _effective, at least, to break the continuity of government_, if not to destroy that immortality which is claimed. Nor can it make any difference, in breaking this continuity, that the submission and donation, constituting a species of attornment, are to enemies at home rather than to enemies abroad,--to Jefferson Davis rather than to Louis Napoleon. The thread is snapped in one case as much as in the other.

But _change of form_ in the actual government may be equally effective. Cicero speaks of change so complete as “to leave no image of a State behind.” This is precisely what has been done throughout the whole Rebel region: no image of a _constitutional_ State is left behind. Another authority, Aristotle, whose words are always weighty, says, that, _the form of the State being changed, the State is no longer the same_, as the harmony is not the same when we modulate out of the Dorian mood into the Phrygian. But, if ever an unlucky people modulated out of one mood into another, it was our Rebels, when they undertook to modulate out of the harmonies of the Constitution into their bloody discords.

Without stopping further for these diversions, I content myself with the testimony of Edmund Burke, who, in a striking passage, which seems to have been written for us, portrays the extinction of a political community; but I quote his eloquent words rather for suggestion than authority.

“In a state of rude Nature there is no such thing as a
people. A number of men in themselves have no collective
capacity. The idea of a people is the idea of a corporation.
It is wholly artificial, and made, like all other legal
fictions, by common agreement. What the particular nature of
that agreement was is collected from the form into which the
particular society has been cast. Any other is not _their_
covenant. _When men, therefore, break up the original compact
or agreement which gives its corporate form and capacity to
a state, they are no longer a people, they have no longer a
corporate existence_, they have no longer a legal coactive
force to bind within, nor a claim to be recognized abroad.
They are a number of vague, loose individuals, and nothing
more. With them all is to begin again. Alas! they little
know how many a weary step is to be taken before they
can form themselves into a mass which has a true politic
personality.”[198]

If that great master of eloquence could be heard, who can doubt that he would stamp our Rebel States as senseless communities who have sacrificed that corporate existence which makes them living, component members of our Union of States?

* * * * *

Again, it is sometimes said that the States, by flagrant treason, have _forfeited_ their rights as States, so as to be civilly dead. It is a patent and indisputable fact, that this gigantic treason was inaugurated with all the forms of law known to the States; that it was carried forward not only by individuals, but also by States, so far as States can perpetrate treason; that the States pretended to withdraw bodily, in their corporate capacities; that the Rebellion, as it showed itself, was _by_ States, as well as _in_ States; that it was by the governments of States, as well as by the people of States; and that, to the common observer, the crime was consummated by the several corporations, as well as by the individuals of whom they were composed. From this fact, obvious to all, it is argued, that, since, according to Blackstone, a traitor “hath abandoned his connections with society, and hath no longer any right to those advantages which before belonged to him purely as a member of the community,”[199] by the same principle the traitor State is no longer to be regarded as a member of the Union. But it is not necessary, on the present occasion, to insist on the application of any such principle to States.

* * * * *

Again, it is said that the States by their treason and rebellion, levying war upon the National Government, have _abdicated_ their places in the Union; and here the argument is upheld by the historic example of England at the Revolution of 1688, when, on the flight of James and the abandonment of his kingly duties, the two Houses of Parliament voted, that the monarch, “having violated the fundamental laws, and having withdrawn himself out of this kingdom, _has abdicated the government_, and that the throne is thereby vacant.”[200] But it is not necessary for us to rely on any allegation of abdication, applicable as it may be.

* * * * *

It only remains that we should see things as they are, and not seek to substitute theory for fact. On this important question I discard all theory, whether of State suicide, or State forfeiture, or State abdication, on the one side, or of State Rights, immortal and unimpeachable, on the other side. Such discussions are only endless mazes, in which a whole Senate may be lost. And discarding all theory, I discard also the jural question, whether, for instance, the Rebel States, while the Rebellion is flagrant, are _de jure_ States of the Union, with all the rights of States. It is enough, that, for the time being, _and in the absence of a loyal government_, they can take no part and perform no function in the Union, _so that they cannot be recognized by the National Government_. The reason is plain. Since there are in these States no local functionaries bound by constitutional oaths, there are, in fact, no constitutional functionaries; and as the State Government is necessarily composed of such functionaries, there can be no State Government. Thus, for instance, in South Carolina, Pickens and his associates may call themselves Governor and Legislature, and in Virginia Letcher and his associates may call themselves Governor and Legislature; but we cannot recognize them as such. Therefore to all pretensions in behalf of State governments in the Rebel States I oppose the simple FACT, that, for the time being, no such governments exist. The broad spaces once occupied by those governments are now abandoned and vacated.

That loyal Senator, Andrew Johnson,--faithful among the faithless, the Abdiel of the South,--began his attempt to reorganize Tennessee by an address, as early as the 18th of March, 1862, in which he made use of these words:--

“I find most, if not all, of the offices, both State and
Federal, _vacated, either by actual abandonment or by the
action of the incumbents, in attempting to subordinate their
functions_ to a power in hostility to the fundamental law of
the State and subversive of her national allegiance.”[201]

In employing the word “vacated” Mr. Johnson hit upon the very term which, in the famous Resolution of 1688, was held most effective in dethroning King James. After declaring that he had abdicated the government, it was added, “that the throne is thereby _vacant_”; on which Macaulay happily remarks:--

“The word _abdication_ conciliated politicians of a more timid
school.… To the real statesman the simple important clause was
that _which declared the throne vacant_; and if that clause
could be carried, he cared little by what preamble it might be
introduced.”[202]

The same simple principle is now in issue. It is enough that the Rebel States be declared _vacated_, as _in fact_ they are, by all local government which we are bound to recognize: so that the way is open to the exercise of a rightful jurisdiction.

* * * * *

Here the question occurs, How shall this rightful jurisdiction be established in the vacated State? Some there are, so impassioned for State Rights, and so anxious for forms, even at the expense of substance, that they insist upon the instant restoration of the old State governments in all their parts, through the agency of loyal citizens, who, meanwhile, must be protected in this work of restoration. But, assuming that all this is practicable, as it clearly is not, it attributes to the loyal citizens of a Rebel State, however few in numbers,--it may be an insignificant minority,--a power clearly inconsistent with the received principle of popular government, that the majority must rule. The thirteen voters of Old Sarum were allowed to return two members of Parliament, because this place,--once a Roman fort, and afterwards a sheep-walk,--many generations before, at the early constitution of the House of Commons, had been entitled to this representation; but the argument for State Rights assumes that all these rights may be lodged in voters as few in number as ever controlled a rotten borough of England.

Pray, admitting that an insignificant minority is to organize the new government, how shall it be done, and by whom shall it be set in motion? In putting these questions, I open the difficulties. As the original government has ceased to exist, and there are none who can be its legal successors so as to administer the requisite oaths, it is not easy to see how the new government can be set in motion, without resort to some revolutionary proceeding, instituted either by the citizens or by the military power,--unless Congress, in the exercise of its plenary authority, should undertake to organize the new jurisdiction.

But every revolutionary proceeding is to be avoided. It is within the recollection of all familiar with our history, that our fathers, while regulating the separation of the Colonies from the parent country, were careful that all should be done according to forms of law, so that _the thread of legality_ should continue unbroken. To this end the Continental Congress interfered by supervising direction. But the Tory argument denied the power of Congress then as earnestly as now. Mr. Duane, of the Continental Congress, made himself its mouthpiece.

“_Congress ought not to determine a point of this sort, about
instituting government._ What is it to Congress how justice is
administered? You have no right to pass the resolution, any
more than Parliament has. How does it appear that no favorable
answer is likely to be given to our petitions?”[203]

In spite of this argument, the Congress of that day undertook, by formal resolutions, to indicate the process by which the new governments should be constituted.[204]

If we seek for the principle which entered into this proceeding of the Continental Congress, we find it in the idea that nothing can be left to illegal or informal action, but that all must be done according to rules of constitution and law previously ordained. Perhaps this principle has never been more distinctly or powerfully enunciated than by Mr. Webster, in his speech against the Dorr Constitution in Rhode Island. According to him, this principle is a fundamental part of what he calls our American system, under which the right of suffrage is prescribed by _previous law_, including its qualifications, the time and place of its exercise, and the manner of its exercise; and then, again, the results are certified to the central power by some certain rule, _by some known public officers_, in some clear and definite form, thus accomplishing two things: first, that every man entitled to vote may vote; secondly, that his vote may be sent forward and counted, so that practically he may exercise his part of sovereignty in common with his fellow-citizens. Such, according to Mr. Webster, are minute forms which must be followed, if we would impart to the result the crowning character of law. And here are other positive words from him on this important point.

“We are not to take the will of the people from public
meetings, nor from tumultuous assemblies, by which the timid
are terrified, the prudent are alarmed, and by which society is
disturbed. These are not American modes of signifying the will
of the people, and they never were.”

“Is it not obvious enough, that men cannot get together and
count themselves, and say they are so many hundreds and so
many thousands, and judge of their own qualifications, and
call themselves the people, and set up a government? _Why,
another set of men, forty miles off, on the same day, with the
same propriety, with as good qualifications, and in as large
numbers, may meet and set up another government._”

“When, in the course of events, it becomes necessary to
ascertain the will of the people on a new exigency or a new
state of things or of opinion, _the legislative power provides
for that ascertainment by an ordinary act of legislation_.”

“What do I contend for? I say that the will of the people must
prevail, when it is ascertained; but there must be _some legal
and authentic mode of ascertaining that will_, and then the
people may make what government they please.”

“All that is necessary here is, that the will of the people
should be ascertained by some regular rule of proceeding,
_prescribed by previous law_.”

“But the law and the Constitution, the whole system of American
institutions, do not contemplate a case in which a resort will
be necessary to proceedings _aliunde_, or _outside of the law
and the Constitution_, for the purpose of amending the frame of
government.”[205]

Happily, we are not constrained to any such revolutionary proceeding. The new governments can all be organized by Congress, which is the natural guardian of the people, without any immediate government, and within the jurisdiction of the National Constitution. Indeed, with the State governments already _vacated_ by Rebellion, the Constitution becomes, for the time, the supreme and only law, binding alike on President and Congress, so that neither can establish any law or institution incompatible with it; and the whole Rebel region, deprived of all local government, lapses under the exclusive jurisdiction of Congress, precisely as any other territory,--or, in other words, the negation of the local government leaves the whole vast region without any other government than Congress, unless the President should undertake to govern it by military power. Startling as this proposition may seem, especially to all who believe that there is a “divinity doth hedge” a State hardly less than a king, it will appear, on careful consideration, to be as well founded in the Constitution as it is simple and natural, while it affords easy and constitutional solution to all present embarrassments.

I have no theory to maintain, but only the truth; and in presenting this argument for Congressional government I simply follow teachings which I cannot control. The wisdom of Socrates, in the words of Plato, has aptly described these teachings, when he says,--

“These things, as I affirm, are held and bound (though it is
somewhat rude to say so) in reasons of iron and adamant, as
would really appear to be the case,--so that, unless you, or
some one stronger than you, can break them, it is not possible
that any one who says otherwise than as I now say can speak
correctly; for my statement is always the same,--that I know
not how these things are, but that of all the persons with
whom I have ever conversed, as now with you, no one who says
otherwise can avoid being ridiculous.”[206]

Show me that I am wrong, that this conclusion is not founded in the Constitution, and is not sustained by reason, and I shall at once renounce it; for, in the present condition of affairs, there can be no pride of opinion which must not fall at once before the sacred demands of country. Not as partisan, not as advocate, do I make this appeal, but simply as citizen, seeking, in all sincerity, to offer my contribution to the establishment of that policy by which Union and Peace may be restored.

* * * * *

Looking at the origin of this power in Congress, we find that it comes from three distinct fountains, any one of which is ample to supply it. Three fountains, generous and hospitable, are found in the Constitution ready for this occasion.

_First._ From the necessity of the case, _ex necessitate rei_, Congress must have jurisdiction over every portion of the United States _where there is no other government_; and since in the present case there is no other government, the whole region falls within the jurisdiction of Congress. This jurisdiction is incident, if you please, to that guardianship and eminent domain belonging to the United States over all its territory and the people thereof, and springing into activity when the local government ceases. It can be questioned only in the name of the local government; but since this government has disappeared in the Rebel States, the jurisdiction of Congress is uninterrupted there. The whole broad Rebel region is _tabula rasa_, or “a clean slate,” where Congress, under the Constitution of the United States, may write the laws. In adopting this principle, I follow the authority of the Supreme Court of the United States in determining the jurisdiction of Congress over the Territories. Here are the words of Chief-Justice Marshall:--

“Perhaps the power of governing a Territory belonging to the
United States, which has not, by becoming a State, acquired
the means of self-government, _may result necessarily from the
facts that it is not within the jurisdiction of any particular
State_, and is within the power and jurisdiction of the United
States. The right to govern may be the inevitable consequence
of the right to acquire territory.”[207]

If the right to govern may be the inevitable consequence of the right to acquire territory, surely, and by much stronger reason, this right must be the inevitable consequence of the sovereignty of the United States, wherever there is no local government.

_Secondly._ The jurisdiction may also be derived from the _Rights of War_, which surely are not less abundant for Congress than for President. If the President, disregarding the pretension of State Rights, can appoint military governors within the Rebel States to serve a temporary purpose, who can doubt that Congress can exercise a similar jurisdiction? That of the President is derived from the war powers; but these are not sealed to Congress. If it be asked, where in the Constitution such powers are bestowed upon Congress, I reply, that they are found precisely where the President now finds his powers. But it is clear that the powers to “declare war,” to “suppress insurrections,” and to “support armies” are all ample for this purpose. It is Congress that conquers, and the same authority that conquers must govern. Nor is this authority derived from any strained construction; it springs from the very heart of the Constitution. It is among those powers, latent in peace, which war and insurrection call into being, but as intrinsically constitutional as any other power.

Even if not conceded to the President, these powers must be conceded to Congress. Would you know their extent? They are found in the authoritative texts of Public Law,--in the works of Grotius, Vattel, and Wheaton. They are the powers conceded by civilized society to nations at war, known as Rights of War,--at once multitudinous and minute, vast and various. It would be strange, if Congress could organize armies and navies to conquer, and could not also organize governments to protect.

De Tocqueville, who saw our institutions with so keen an eye, remarked, that, since, in spite of all political fictions, the preponderating power resided in the States and not in the nation, a civil war here would be “nothing but foreign war in disguise.”[208] Of course the natural consequence would be to give the nation, in such a civil war, all the rights it would have in a foreign war. And this conclusion from the observation of the ingenious publicist has been practically adopted by the Supreme Court of the United States, in those recent cases where this tribunal, after most learned argument, followed by most careful consideration, adjudged, that, since the Act of Congress of July 13, 1861, the nation has been waging “a _territorial_ civil war,” in which all property afloat, belonging to a resident of the _belligerent territory_, is liable to capture and condemnation as lawful prize. But, surely, if the nation may stamp upon all residents in this _belligerent territory_ the character of foreign enemies, so as to subject ships and cargoes to the penalties of confiscation, it may perform the milder service of making all needful rules and regulations for the government of this territory under the Constitution, so long as requisite for the sake of peace and order; and since the object of war is “indemnity for the past and security for the future,” it may do everything necessary to make these effectual. But it will not be enough to crush the Rebellion; its terrible root must be exterminated, so that it may no more flourish in blood.

_Thirdly._ There is another source for this jurisdiction common alike to Congress and the President. It is found in the constitutional provision, that “the United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion.” Here, be it observed, are words of guaranty and an obligation of protection. In the original concession to the United States of this twofold power there was open recognition of the ultimate responsibility and duty of the National Government, _conferring jurisdiction above all pretended State Rights_; and now the occasion has come for the exercise of this twofold power thus solemnly conceded. The words of twofold power and corresponding obligation are plain, and beyond question. If there be any ambiguity, it is only in what constitutes a republican form of government. But for the present this question does not arise. It is enough that a wicked rebellion has undertaken to detach certain States from the Union, and to take them beyond its protection and sovereignty, with the menace of seeking foreign alliance and support, even at the cost of every distinctive institution. It is well known that _Mr. Madison anticipated this precise danger from Slavery, and upheld this precise grant of power in order to counteract the danger_. His words, which will be found in a yet unpublished document produced by Mr. Collamer in the Senate, seem prophetic.

Among the defects he remarked in the old Confederation was what he called “want of guaranty to the States of their constitutions and laws _against internal violence_.” In showing why this guaranty was needed, he says, that, “according to republican theory, right and power, being both vested in the majority, are held to be synonymous; according to fact and experience, a minority may, in an appeal to force, be an overmatch for the majority”; and he then adds, in words of wonderful prescience, “_Where Slavery exists, the republican theory becomes still more fallacious_.”[209] This was written in April, 1787, before the meeting of the Convention that formed the National Constitution. Here is the origin of the very clause in question. The danger which this statesman foresaw is now upon us. When a State fails to maintain a republican government, _with officers sworn according to requirement of the Constitution_, it ceases to be a constitutional State. The very case contemplated by the Constitution has arrived, and the National Government is invested with plenary powers, whether of peace or war. There is nothing in the storehouse of peace, and there is nothing in the arsenal of war, it may not employ in the maintenance of this solemn guaranty, and in the extension of that protection against invasion to which it is pledged. But this extraordinary power carries with it corresponding duty. Whatever shows itself dangerous to a republican form of government must be removed without delay or hesitation; and if the evil be Slavery, our action will be bolder when it is known that the danger was foreseen.

In reviewing these three sources of power, I know not which is most complete. Either is ample alone; but the three together are three times ample. Thus out of this triple fountain, or, if you please, by this triple cord, do I educe the power of Congress over the vacated States.

* * * * *

There are yet other words of the Constitution which cannot be forgotten. “New States may be admitted by the Congress into this Union.” Assuming that the Rebel States are no longer _de facto_ States of this Union, but that the territory occupied by them is within the jurisdiction of Congress, then these words become completely applicable. It is for Congress, in such way as it shall think best, to regulate their return to the Union, whether in time or manner. No special form is prescribed. But the vital act must proceed from Congress. Here again is another testimony to that Congressional power, which, under the Constitution, will restore the Republic.

* * * * *

Against this power I have heard nothing which can be called argument. There are objections, originating chiefly in the baneful pretension of State Rights; but these objections are animated by prejudice rather than reason. Assuming the impeccability of a State, and openly declaring that States, like kings, can do no wrong, while, like kings, they wear “the round and top of sovereignty,” politicians treat them with most mistaken forbearance and tenderness, as if these Rebel corporations could be dandled into loyalty. At every suggestion of rigor, State Rights are invoked; and we are vehemently told not to destroy the States, when all that Congress proposes is simply to recognize the actual condition of the States, and undertake their temporary government by providing for the condition of political syncope into which they have fallen, and during this interval substitute its own constitutional powers for the unconstitutional powers of the Rebellion. Congress will blot no star from the flag, nor will it obliterate any State liabilities; but it will seek, according to its duty, in the best way, to maintain the great and real sovereignty of the Union, by upholding the flag unsullied, and by enforcing everywhere within its jurisdiction the supreme law of the Constitution.

At the close of an argument already too long drawn out, I shall not stop to array the considerations of reason and expediency in behalf of this jurisdiction; nor shall I dwell on the inevitable influence it must exercise over Slavery, which is the motive of the Rebellion. To my mind nothing can be clearer, as a proposition of Constitutional Law, than that everywhere within the exclusive jurisdiction of the National Government Slavery is impossible. The argument is as brief as it is unanswerable. Slavery is so odious that it can exist only by virtue of positive law, plain and unequivocal; but no such words can be found in the Constitution; therefore Slavery is impossible within the exclusive jurisdiction of the National Government. For many years I have had this conviction, and have constantly maintained it. I am glad to believe that it is implied, if not expressed, in the Chicago Platform. Mr. Chase, among our public men, is known to accept it sincerely. Thus Slavery in the Territories is unconstitutional; but if the Rebel territory falls under the exclusive jurisdiction of the National Government, then Slavery becomes impossible there. In a legal and constitutional sense, it must die at once. The air is too pure for a slave. I cannot doubt that this great triumph has been already won. The moment that the States fell, Slavery fell also; so that, even without any proclamation of the President, Slavery ceased to have legal and constitutional existence in every Rebel State.

Even if we hesitate to accept this important conclusion, which treats Slavery within the Rebel States as already dead in law and Constitution, it cannot be doubted that by the extension of Congressional jurisdiction, as now proposed, many difficulties will be removed. Holding every acre of soil and every inhabitant within its jurisdiction, Congress can easily do whatever is needful within Rebel limits to assure freedom and save society. The soil may be divided among patriot soldiers, poor whites, and freedmen; but above all things the inhabitants may be saved from harm. Those citizens in the Rebel States who throughout the darkness of the Rebellion have kept their faith will be protected, and the freedmen rescued from hands that threaten to cast them back into Slavery.

This jurisdiction, which is so completely practical, is grandly conservative also. Had it been early recognized that Slavery depends exclusively upon the local government, and falls with that government, who can doubt that every Rebel movement would have been checked? Tennessee and Virginia would never have stirred; Maryland and Kentucky would never have thought of stirring; there would have been no talk of neutrality between the Constitution and the Rebellion; and every Border State would have been fixed in loyalty. Let it be established in advance, as an inseparable incident to every Act of Secession, that it is not only impotent against the National Constitution, but that, on its occurrence, both soil and inhabitants lapse beneath the jurisdiction of Congress, and no State will ever again pretend to secede. The word “territory,” according to old and quaint etymology, is said to come from _terreo_, to terrify, because it was a bulwark against the enemy: _Territorium est quidquid hostis terrendi causâ constitutum est_,[210]--“A territory is anything established for the purpose of terrifying an enemy”; but I know of no way in which our Rebel enemy would have been more terrified than by being told that his course would inevitably precipitate his State into a territorial condition. Let this principle be adopted, and it will contribute essentially to that consolidation of the Union which was so near the heart of Washington.

The necessity of this principle is apparent as a restraint upon the lawless vindictiveness and inhumanity of the Rebel States, whether against Union men or against freedmen. Union men in Virginia already tremble at the thought of being delivered over to a State government wielded by original Rebels pretending to be patriots; but the freedmen, who have only recently gained their birthright, are justified in keener anxiety, lest it should be lost as soon as won. Mr. Saulsbury, a Senator from Delaware, with most instructive frankness, has announced in public debate what the restored State governments will do. Assuming that the local governments will be preserved, he predicts that in 1870 there will be more slaves in the United States than there were in 1860, and then unfolds the reason as follows, all of which will be found in the “Congressional Globe.”

“By your Acts you attempt to free the slaves. You will not have
them among you. You leave them where they are. Then what is
to be the result? I presume that local State governments will
be preserved. If they are, if the people have a right to make
their own laws and to govern themselves, they will not only
reënslave every person that you attempt to set free, but they
will reënslave the whole race.”[211]

Nor has the horrid menace of reënslavement proceeded from the Senator from Delaware alone. It has been uttered even by Mr. Willey, the mild Senator from Virginia, speaking in the name of State Rights. Newspapers have taken up and repeated the revolting strain. That is to say, no matter what may be done for Emancipation, whether by proclamation of the President, or by Congress even, the State, resuming its place in the Union, will, in the exercise of its sovereign power, reënslave every colored person within its jurisdiction; and this is the menace from Delaware, and even from regenerated Western Virginia! I am obliged to Senators for their frankness. If additional motive were needed for the urgency with which I assert the power of Congress, it would be found in the pretensions thus savagely proclaimed. In the name of Heaven, let us spare no effort to save the country from such shame, and an oppressed people from the additional outrage.

As I quote Mr. Willey, I desire his precise words should be understood, that the country may see the necessity of Congressional action. In opposing Emancipation in the District of Columbia, he depicted the unhappy fate of the freedman.

“Suppose they are emancipated, what then? Are they freemen in
fact? Will they have the rights of freemen? Sir, such an idea
is utterly fallacious. It will practically amount to nothing.
You cannot enact the slave into a freeman by bill in Congress.
A charter of his liberty may be engrossed, enrolled, and passed
into a law, with all the formalities of legislation, _and still
he must remain virtually a slave_.”[212]

Pursuing this same strain in a later debate on the Confiscation Bill, which provided for Emancipation in certain cases, the Senator said:--

“Sir, what will be the necessary and inevitable result of this
policy, if it be carried into effect? It will be that Virginia,
by this increase of the free negro population under the
operation of this bill, will be driven not only to reënslave
those who may be manumitted under the operation of the present
bill, but also to reënslave the sixty thousand free negroes
already there.… Sir, the evil will be unendurable, and the
result will be the reënslavement of the slaves thus manumitted,
as well as those already free in our State.”[213]

I quote these words with extreme pain. Their author is not known as a fanatic of Slavery. Therefore do they reveal the terrible peril against which Congress must provide.

“Once free, always free.” This is a rule of law and an instinct of humanity. It is a self-evident axiom, which only tyrants and slave-traders have denied. The brutal pretension thus flamingly advanced already puts us all on our guard. There must be no chance or loophole for such intolerable, Heaven-defying iniquity. Alas! there have been crimes in human history, but I know of none blacker than this. There have been acts of baseness, but I know of none more utterly vile. Against the possibility of such a sacrifice we must take a bond which cannot be set aside; and this can be found only in the powers of Congress.

Congress has already done much. Besides its noble Act of Emancipation, it has provided that every person guilty of treason, or of inciting or assisting the Rebellion, shall be “disqualified to hold any office under the United States”[214]; and by another Act it has provided, that every person, elected or appointed to any office of honor or profit under the Government of the United States, shall, before entering upon its duties, _take and subscribe an oath or affirmation_ that he has “never voluntarily borne arms against the United States since he has been a citizen thereof,” or “voluntarily given aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto,” or “sought, or accepted, or attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States.”[215] This oath is a bar against return to _national office_ of any taking part with the Rebels. It shuts out in advance the whole criminal company. But these same persons, rejected by the National Government, are left free to hold office in the States; and here is another motive to further action by Congress. The oath is well as far as it goes; more must be done in the same spirit.

But enough. The case is clear. Behold the Rebel States in arms against that paternal government to which, as the supreme condition of constitutional existence, they owe duty and love; and behold all legitimate powers, executive, legislative, and judicial, in these States, abandoned and vacated. _It only remains that Congress should enter and assume the proper jurisdiction._ If we are not ready to exclaim with Burke, speaking of revolutionary France, “It is but an empty space on the political map,” we may at least adopt the response hurled back by Mirabeau, that this empty space is a volcano red with flames and overflowing with lava-floods. But whether we deal with it as “empty space” or as “volcano,” the jurisdiction, civil and military, centres in Congress, to be employed for the happiness, welfare, and renown of the American people,--changing Slavery into Freedom, and present Chaos into a Cosmos of perpetual beauty and power.

BENJAMIN FRANKLIN AND JOHN SLIDELL AT PARIS.

ARTICLE IN THE ATLANTIC MONTHLY, NOVEMBER, 1863.

This article appeared originally under the title, “Monograph
from an Old Note-Book.” Beyond the curiosity of the discussion
was the object, at a critical moment, of contrasting the
diplomatic representative of our fathers at Paris and that of
Rebel Slavery, with a new appeal to France. It was in the same
vein with the recent speech on Our Foreign Relations.[216]

In a famous speech, made in the House of Lords, March 6, 1838, against the Eastern slave-trade, Lord Brougham arrests the current of his eloquence by the following illustrative diversion.

“I have often heard it disputed among critics, which of
all quotations was the most appropriate, the most closely
applicable to the subject-matter illustrated; _and the palm is
generally awarded to that which applied to Dr. Franklin the
line in Claudian_,--

‘Eripuit fulmen cœlo, mox sceptra tyrannis’;

yet still there is a difference of opinion, and even that
citation, admirably close as it is, has rivals.”[217]

The British orator errs in attributing this remarkable verse to Claudian, misled, perhaps, by reminiscence of like-sounding words by that poet,--

“Rapiat fulmen sceptrumque Typhœus.”[218]

And he errs also in the quotation of the verse itself, which he fails to give with entire accuracy. And this double mistake becomes more noticeable, when it appears in the carefully prepared collection of speeches, revised at leisure, and preserved in permanent volumes.

The beauty of this verse, even in its least accurate form, will not be questioned, especially as applied to Franklin, who, before the American Revolution, in which he performed so illustrious a part, had already awakened the world’s admiration by drawing the lightning from the skies. But, beyond its acknowledged beauty, this verse has an historic interest which has never been adequately appreciated. Appearing at the moment it did, it is closely associated with the acknowledgment of American Independence. Plainly interpreted, it calls George the Third “tyrant,” and announces that the sceptre has been snatched from his hands. It was a happy ally to Franklin in France, and has ever since been an inspiring voice. Latterly it has been adopted by the city of Boston, and engraved on granite in letters of gold, in honor of its greatest son and citizen. It may not be entirely superfluous to recount the history of a verse which has justly attracted so much attention, and in the history of Civilization has been of more value than the whole State of South Carolina.

From its first application to Franklin, this verse has excited something more than curiosity. Lord Brougham tells us that it is often discussed in private circles. There is other evidence of the interest it has created. For instance, in an early number of “Notes and Queries,” is the following inquiry:--

“Can you inform me who wrote the line on Franklin,

‘Eripuit cœlo fulmen, sceptrumque tyrannis’?

“HENRY H. BREEN.

“ST. LUCIA.”[219]

A subsequent writer in this same work, after calling the verse “a parody” of a certain line of Antiquity, says: “I am unable, however, to say who adapted these words to Franklin’s career. Was it Condorcet?”[220] Another writer in the same work says: “The inscription was written by Mirabeau.”[221]

I remember well a social entertainment in Boston, where a distinguished scholar of our country,[222] in reply to an inquiry at the table, said that the verse was founded on a line from the “Astronomicon” of Manilius, which he repeated:--

“Eripuitque Jovi fulmen, viresque tonandi.”[223]

John Quincy Adams, who was present, seemed to concur. Mr. Sparks, in his notes to the correspondence of Franklin, attributes to it the same origin.[224] But there are other places where its origin is traced with more precision. One of the correspondents of “Notes and Queries” says that he has read, but does not remember where, “that this line was _immediately_ taken from one in the ‘Anti-Lucretius’ of Cardinal Polignac.”[225] Another correspondent shows the intermediate authority.[226] My own notes were made without any knowledge of these studies, which, while fixing its literary origin, fail to exhibit its important character, especially as illustrating an historical epoch.

* * * * *

The verse cannot be found in any ancient writer,--not Claudian or anybody else. It is clear that it does not come from Antiquity, unless indirectly; nor does it appear that at the time of its first production it was referred to any ancient writer. Manilius was not mentioned. It is of modern invention, and was composed after the arrival of Franklin in Paris on his eventful mission. At first it was anonymous, but was attributed sometimes to D’Alembert and sometimes to Turgot. Beyond question, it was not the production of D’Alembert, while it is found in the Works of Turgot, published after his death, in the following form:--

“Eripuit cœlo fulmen, sceptrumque tyrannis.”[227]

There is no explanation by the editor of the circumstances under which the verse was written; but it is given among poetical miscellanies of the author, immediately after a translation into French of Pope’s “Essay on Man,” in connection with the following French composition, entitled “Verses beneath the Portrait of Benjamin Franklin”:--

“Le voilà ce mortel dont l’heureuse industrie
Sut enchaîner la Foudre et lui donner des loix,
Dont la sagesse active et l’éloquente voix
D’un pouvoir oppresseur affranchit sa Patrie,
Qui désarma les Dieux, qui réprime les Rois.”

The single Latin verse is a marvellous substitute for these diffuse and feeble lines.

If there were any doubt upon its authorship, it would be removed by the positive statement of Condorcet, who, in his Life of Turgot, written shortly after the death of this great man, says: “There is known from Turgot but one Latin verse, designed for the portrait of Franklin”; and he gives the verse in this form:--

“Eripuit cœlo fulmen, mox sceptra tyrannis.”[228]

But Sparks and Mignet,[229] and so also both the biographical dictionaries of France,--that of Michaud and that of Didot,--while ascribing it to Turgot, concur in the form already quoted from Turgot’s Works, which was likewise adopted by Ginguené, the scholar who has done so much to illustrate Italian literature, on the title-page of his “Science du Bon-Homme Richard,” with an abridged Life of Franklin, in 1794, and by Cabanis, who lived in such intimacy with Franklin.[230] It cannot be doubted that this was the final form the verse assumed,--as it is unquestionably the best.

* * * * *

This verse was no common event. It was a new expression of the French alliance, and an assurance of independence. After its appearance and general adoption, there was no retreat for France.

To appreciate its importance in marking and helping a great epoch, certain dates must be borne in mind. Franklin reached Paris on his mission towards the close of 1776. He had already signed the Declaration of Independence, and his present duty was to obtain the recognition of France for the new power. The very clever Madame du Deffand, in her amusing correspondence with Horace Walpole, describes him in a visit to her “with a fur cap on his head and spectacles on his nose,” in the same small circle with Madame de Luxembourg, a great lady of the time, the Abbé Barthélemy, and the Duc de Choiseul, late Prime-Minister. This was on the 31st of December, 1776.[231] A pretty good beginning. More than a year of effort and anxiety ensued, brightened at last by the Burgoyne surrender at Saratoga. On the 6th of February, 1778, the work of the American Plenipotentiary was crowned by the signature of the two Treaties of Alliance and Commerce, by which France acknowledged our independence and pledged her belligerent support. On the 13th of March, one of these treaties, with a diplomatic note announcing that the Colonies were free and independent States, was communicated to the British Government, at London, which promptly encountered it by a declaration of war. On the 20th of March, Franklin was received by the King at Versailles, and this remarkable scene is described by the same feminine pen to which we are indebted for the early glimpse of him on his arrival in Paris.[232] But throughout this intervening period he had not lived unknown. Indeed, he had become at once a celebrity. Lacretelle, the eminent French historian, says: “By the effect which Franklin produced in France he might have been said to have fulfilled his mission, not to a court, but to a free people.… His virtues and renown negotiated for him.”[233]

Condorcet, who was part of that intellectual society which welcomed the new Plenipotentiary, has left a record of his reception. “The celebrity of Franklin in the sciences,” he says, “gave him the friendship of all who love or cultivate them, that is, of all who exert a real and durable influence upon public opinion. At his arrival he became an object of veneration to all enlightened men, and of curiosity to others. He submitted to this curiosity with the natural facility of his character, and with the conviction that he thereby served the cause of his country. It was an honor to have seen him. People repeated what they had heard him say. Every _fête_ which he was willing to receive, every house where he consented to go, spread in society new admirers, _who became so many partisans of the American Revolution_.… Men whom the reading of philosophical books had secretly disposed to the love of Liberty became enthusiastic for that of a strange people.… A general cry was soon raised in favor of the American War, and the friends of peace dared not even complain that peace was sacrificed to the cause of Liberty.”[234] This is an animated picture by an eye-witness. But all authorities concur in its truthfulness. Even Capefigue, whose business is to belittle all that is truly great, and especially to efface the names associated with human liberty, while, like another Old Mortality, he furbishes the tombstones of royal mistresses, is yet constrained to attest the popularity and influence which Franklin achieved. The critic dwells on what he styles his “Quaker garb,” his “linen so white under his brown clothes,” and also the elaborate art of the philosopher, who understood France and knew well “that a popular man became soon more powerful than power itself”; but he cannot deny that the philosopher “fulfilled his duties with great superiority,” or that he became at once famous.[235] The rosewater biographer of Diane de Poitiers, Madame de Pompadour, and Madame du Barry would naturally disparage the representative of Science and Revolution.

From other quarters proceeds concurring testimony. A correspondent at Paris wrote: “He now engrosses the whole attention of the public. People of all ranks pay their court to him. His affability and complaisant behavior have gained him the esteem of the greatest people in this kingdom.”[236] Another wrote a little later: “When Dr. Franklin appears abroad, it is more like a public than a private gentleman, and the curiosity of the people to see him is so great that he may be said to be followed by a genteel mob.”[237] His mysterious power was asserted by an American newspaper, in announcing his intention “shortly to produce an electrical machine of such wonderful force, that, instead of giving a slight stroke to the elbows of fifty or a hundred thousand men who are joined hand in hand, it will give a violent shock even to Nature herself, so as to disunite kingdoms, join islands to continents, and render men of the same nation strangers and enemies to each other.”[238] The London paper which spoke of him as “the old fox” acknowledged his power.[239]

The influence of Franklin was great beyond that of any American in Europe since. His presence gave character to the cause he represented, and was a standing recommendation of our country. Jefferson, who served two years with him at Paris, describes his influence there, and, in reply to the charge of subservience, says, in pregnant words: “He possessed the confidence of that Government in the highest degree, insomuch that it may truly be said that they were more under his influence than he under theirs. The fact is, that his temper was so amiable and conciliatory, his conduct so rational, never urging impossibilities, or even things unreasonably inconvenient to them, in short, so moderate and attentive to their difficulties, as well as our own, that what his enemies called subserviency I saw was only that reasonable disposition which, sensible that advantages are not all to be on one side, yielding what is just and liberal, is the more certain of obtaining liberality and justice.”[240] It is easy to see how such a character obtained from the French people the fame of snatching the sceptre from the tyrant.

The arrival of Franklin was followed very soon by the departure of the youthful Lafayette, who crossed the sea to offer his inspired sword to the service of American Liberty. Our cause was now widely known. In the thronged _cafés_ and the places of public resort it was discussed with sympathy and admiration.[241] And so completely was Franklin recognized as the representative of new ideas, that the Emperor Joseph the Second of Austria, professed reformer as he was, visiting France under the travelling name of Count Falkenstein, is reported to have remarked, when asked to see him, “My business is to be a royalist,”--thus doing homage to the real character of him in whom the Republic was personified.

Franklin became at once, by natural attraction, the welcome guest of that brilliant company of philosophers who exercised such influence over the eighteenth century. The “Encyclopédie” was their work, and they were masters at the Academy. He was received into their guild. At the famous table of the Baron D’Holbach, where twice a week, Sunday and Thursday, at dinner, lasting from two till seven o’clock, were gathered the wits of the time, he found a hospitable chair. But he was most at home with Madame Helvétius, the widow of the rich and handsome philosopher, whose name, derived from Switzerland, is now almost unknown. At her house he met in social familiarity D’Alembert, Diderot, D’Holbach, Morellet, Cabanis, and Condorcet, with their compeers. There, also, was Turgot, greatest of all. There was another, famous in some respects as any of these, but leading a different life, whom Franklin saw often,--Caron Beaumarchais, author already of the “Barbier de Séville,” as he was afterwards of the “Mariage de Figaro,” who, turning aside from an unsurpassed success at the theatre, exerted his peculiar genius to enlist the French Government on the side of the struggling Colonies, predicted their triumph, and at last, under the assumed name of a mercantile house, became the agent of the Comte de Vergennes in furnishing clandestine supplies of arms before the recognition of independence. It is supposed that through this popular dramatist Franklin maintained communications with the French Government until the mask was thrown aside.[242]

* * * * *