Chapter M: T. Johnstone, of the United States Coast Survey, wrote from (3)

These cases are mentioned in the “Causes Célèbres,” a well-known French collection of important trials; and the principle is attested by French authorities in jurisprudence, among which may be named Lebret, and also Loysel, whose works are found in the Library of Congress. I mention especially the “Institutes Coutumières” of Loysel, with the various notes of Laurière, Dupin, and Laboulaye, the last being the very loyal ally of our country, where this principle is stated and illustrated.[154]

The case of the slave at Metz deserves further mention. He had escaped from the besieging general, and taken with him a Spanish horse. The Duke of Guise, who commanded in the city, returned for answer to the application for his surrender, that he could not comply; that his hands were tied by the law of France from time immemorial; that, entirely free as it had been and is, it would not receive a slave: and so it would be, if he were the most barbarous and foreign in the world; having only set foot on the land of France, he is immediately at liberty and beyond all slavery and captivity, and is free as in his own country. The slave could not be returned; but the horse was sent back. The gay and lively Brantôme, who lived for pleasure, was struck by this incident, and, after repeating it “among other beautiful actions,” adds:--

“Truly, we must praise and admire that noble freedom, beautiful
and Christian, in France, not to admit such servitudes and
slaveries, too cruel, and which savor more of the Pagan and
Turk than of the Christian.”[155]

Bodin, in his work on Government, which first appeared in French in 1576, must be quoted also. I copy from the old translation by Knolles, published in 1606.

“But in France, although there be some remembrance of old
servitude, yet is it not lawful there to make any slave, or to
buy any of others: insomuch that the slaves of strangers, so
soon as they set their foot within France, become frank and
free; as was by an old decree of the Court of Paris determined
against an ambassador of Spain, who had brought a slave with
him into France. And I remember that of late a Genoa merchant,
having brought with him unto Toulouse a slave whom he had
bought in Spain, the host of the house, understanding the
matter, persuaded the slave to appeal unto his liberty. The
matter being brought before the magistrates, the merchant was
called for. The Attorney General out of the records showed
certain ancient privileges given (as is said) unto them of
Toulouse by Theodosius the Great, wherein he had granted, that
slaves, so soon as they came into Toulouse, should be free: the
merchant alleging for himself, that he had truly bought his
slave in Spain, and so was afterward come to Toulouse, from
thence to go home to Genoa, and so not to be bound to the laws
of France. In the end, he requested, that, if they would needs
deal so hardly with him as to set at liberty another man’s
slave, yet they should at least restore unto him the money he
cost him: whereunto the judges answered, that it was a matter
to be considered of. In the mean time, the merchant, fearing
lest he should lose both his dutiful slave and his money also,
of himself set him at liberty, yet covenanting with him that he
should serve him so long as he lived.”[156]

Nor was the principle restricted in application to persons of a white skin. The fugitive slave at Metz was a Moor or Turk. And there are other cases. In 1571, a merchant of Normandy brought to Bordeaux several Moors for sale; but the Parliament of Guienne, by a solemn decree, discharged them from slavery, “because France, the mother of Liberty, does not permit any slaves.” Another case occurred in the reign of Henry the Third, who, notwithstanding the remonstrances of the Spanish ambassador, refused to surrender two or three hundred “Turks, Moors, and Barbarians” who had escaped from a Spanish galley, but sent them all to Constantinople, each with a crown-piece in his pocket. These cases also appear in the authoritative pages to which I have already referred.[157]

That the African was no exception to the prevailing principle in its original vigor appears in subsequent cases. Unhappily, Slavery, exiled from France, found a home in the French colonies, and then succeeded in obtaining certain privileges even in France. By the Edict of 1716 and the supplementary Declaration of 1738, the rights of the master over his slave in France were recognized in certain cases. A slave escaping from the colonies was surrendered, and the officers of the Admiralty, and others whom it concerned, were enjoined to assist the master in his recovery; but where a master voluntarily brought or sent a slave into France, he was obliged first to obtain permission from the colonial governor, and register the same both at his place of residence and the port of disembarkation. With these considerable limitations the great rule of France prevailed. The master was not permitted to sell or exchange his slave in France; nor could he hold him, if he had failed to comply with the required formalities.[158]

In 1738, the liberty of a slave brought from San Domingo, and without compliance with prescribed formalities, was recognized after an elaborate hearing by the Admiralty. The general principle was presented with much force. One of the counsel exclaimed: “In France there are no slaves; and the custom is such that not only Frenchmen, but also foreigners entering a port of France, and crying, ‘_France and Liberty!_’ are out of the power of him who possessed them, who loses the purchase-money and the service of the slave, if the slave refuse to serve him.”[159] This case, which testifies against our Chief Justice, is found in a French collection of Celebrated Trials, and there is a full abstract of it in the notes to the case of Somerset in Howell’s edition of the State Trials.[160]

In 1776, there was a case, entitled “A Negro and a Negress who claimed their liberty against a Jew,”[161] where, after elaborate hearing, the Admiralty decreed the liberty of the claimants. Here also, while insisting upon failure to comply with the prescribed formalities, the original rule of France was eloquently declared. The counsel of the slaves began by saying: “Two slaves have had the happiness to land in France; they have heard that the air breathed here is that of Liberty.” Proceeding in his argument, the counsel refutes the Dred Scott decision. “Those,” said he, “who have thought to perceive a natural imprint of servitude on the countenances of certain people, instead of consulting reason, have taken for guide only the prejudices engendered by vanity and pride. Had they listened in silence to the powerful voice which cries at the bottom of the heart of all men, their own heart would have contradicted the error of the mind. They would then have recognized that daring to pretend that all men are not born free is to calumniate Nature.”[162]

In these cases there was an evident disposition to follow the teachings of Justice and Humanity. In another case, finally decided in 1759, it was suggested, that, even where the prescribed formalities had been complied with, the great rule of Liberty was not restricted, inasmuch as the Code Noir had never been registered in the Parliament of Paris. On appeal to this Parliament, the highest tribunal of France, the slave was ordered to be set free; upon which counsel, quoting the case, observed: “This decree attests that the jurisprudence of the Parliament of Paris is favorable to Liberty.”[163]

* * * * *

Thus far I have adduced only the jurisprudence of France. But French literature also cries out. The famous Encyclopædia, edited by those leaders of thought, Diderot and D’Alembert, in the middle of the last century, says at the end of an elaborate article on Slavery: “We conclude that Slavery, founded by force, by violence, and in certain climates by excess of servitude, cannot perpetuate itself in the universe but by the same means.”[164] Almost contemporaneously, Montesquieu, in his “Spirit of Laws,” exposed with admirable irony the wrongs of the African. “It is impossible,” says the philosopher, “that we should suppose that these people are men; because, if we supposed them men, people would begin to think that we ourselves were not Christians.”[165]

No Abolitionist of our day has denounced Slavery with more power, or vindicated the rights of the African with more sympathy, than Condorcet. In his notes to the “_Pensées_” of Pascal, which appeared in 1776, and gave such satisfaction to Voltaire, he steps aside to declare:--

“And let it not be said, that, in suppressing Slavery,
Government would violate the property of the colonists. How
could usage, or even a positive law, ever give a man a true
right of property in the labor, in the liberty, in the entire
being of another innocent man who had never consented to it?
In declaring the negroes free, we should not take from the
colonist his property,--we should prevent him from committing a
crime; and the money paid for a crime has never given the right
to commit it.”

Then, in reply to those who charge the negroes with vices, he says indignantly:--

“Make them free, and nearer Nature than yourselves, they will
be superior to you.”[166]

So does the French philosopher testify against the Chief Justice.

Strange that the Chief Justice, forgetting the jurisprudence and literature of France, forgot also the brilliant testimony of Lafayette, who, communicating to Congress at Philadelphia the great news that the Treaty with England acknowledging our Independence was signed, wrote by the same packet, and under the same date, February 5, 1783,[167] to Washington, calling upon the commander of our armies to unite with him in the purchase of a small property, where they might make the experiment of emancipating the negroes, and of employing them simply as farm laborers. Although Washington failed to unite with his French friend, the appeal exists as testimony against the Chief Justice. There is also the letter of Lafayette to Hamilton, April 13, 1785, asking to be enrolled in what he calls the “Association against the Slavery of Negroes,” in New York, and declaring that he has ever been “partial to his brethren of that color.”[168] This should have been remembered by the Chief Justice.

* * * * *

From France I pass to Holland, including Belgium. Here an authority so familiar as Bynkershoek tells us that the Belgians, capturing Algerines, Tunisians, and Tripolitans, on the ocean or in the Mediterranean, are accustomed to sell them into Slavery in Spain; “for the Belgians themselves have no slaves except in Asia, Africa, and America.”[169] Like France, the country at home was free, and Slavery was exiled to the colonies. The efficacy of this rule is curiously attested by an incident recorded by Diderot, the Frenchman so eminent in science and literature, and of universal knowledge. It is in his Tour in Holland, made in 1773. It is well known that Peter of Russia, called the Great, served as a shipwright in the docks of Holland. Afterwards visiting the country as Czar, he was attracted by the apparatus for execution, but, not comprehending its operation clearly, he said, “It is only necessary to take one of my slaves, and try it on him.” It was represented, that, besides the revolting atrocity of this act, it would not be possible to allow it. “Ah! why not?” said the Czar. “Am I not master of my slave, and can I not dispose of him at my will?” “In your own country, perhaps,” replied the burgomaster, “but not here. Every slave who sets foot in Holland becomes free there, and belongs only to himself.”[170] This visit of the Czar was early in the last century, though recorded by Diderot later, and then Holland was already ranged with countries that would not tolerate Slavery; but the Chief Justice remembers not the testimony.

* * * * *

Spain also cries out against the Chief Justice. Her favorite monarch, Isabella, was aroused against the discoverer of the New World at the report that slaves from the Indies had been introduced into Spain with his sanction, and she exclaimed, “By what authority does Columbus venture thus to dispose of my subjects?” Instant proclamation was made by her order, that all who had Indian slaves in their possession, granted by the Admiral, should forthwith provide for their return to their own country, while the few held by the Crown were restored to freedom in like manner. Las Casas records, that, “so great was the Queen’s indignation at the Admiral’s misconduct in this particular, that nothing but the consideration of his great public services saved him from immediate disgrace.”[171] Whatever the legislation and jurisprudence of Spain, this historic incident must not be forgotten. It was the voice of the sovereign, and therefore, for the time, the voice of the nation.

There are other eminent Spaniards to be included in the cloud of witnesses, especially Las Casas, whose story I give on the authority of our own historian, just quoted, whose works were in every library of the country when the Chief Justice launched his decree: I mean my much valued friend, the late William H. Prescott. In his “History of the Conquest of Mexico” is a description of the good Bishop, who, to relieve the Indian natives from slavery in the islands of the West Indies, proposed the introduction of Africans, and in an evil hour his advice was followed. At a later period he regretted keenly the wrong he had done, since, to use his own words, “the same law applies equally to the Negro and the Indian.” Afterwards, at a hearing before the Emperor, Charles the Fifth, he denounced Slavery in words of fervid eloquence, worthy of any Abolitionist, saying: “The Christian religion is equal in its operation, and is accommodated to every nation on the globe. It robs no one of his freedom, violates none of his inherent rights, on the ground that he is a slave by nature, as pretended; and it well becomes your Majesty to banish so monstrous an oppression from your kingdoms in the beginning of your reign, that the Almighty may make it long and glorious.”[172] In an elaborate memorial prepared in 1542, the same upright churchman denounces Slavery, saying, “God forbids us to do evil that good may come of it”; and the historian adds, “The whole argument, which comprehends the sum of what has been since said more diffusely in defence of Abolition, is singularly acute and cogent.”[173] But the Chief Justice forgot all these things.

And he forgot also the dying testimony of Cortés, the conqueror of Mexico, who, in his testament, revealed his anxieties as a slave-master, in the following direction to his son: “It has long been a question, whether one can conscientiously hold property in Indian slaves. Since this point has not yet been determined, I enjoin it on my son Martin and his heirs, that they spare no pains to come to an exact knowledge of the truth, as a matter which deeply concerns the conscience of each of them, no less than mine.” The historian from whom I copy this passage adds: “The state of opinion in respect to the great question of Slavery in the sixteenth century, at the commencement of the system, bears some resemblance to that which exists in our time, when we may hope it is approaching its conclusion. Las Casas and the Dominicans of the former age, the Abolitionists of their day, thundered out their uncompromising invectives against the system, on the broad ground of natural equity and the rights of man.”[174] Thus in advance did the historian answer the Chief Justice.

Associated with Las Casas in lofty truth was the Dominican, Dominic Soto, the confessor of Charles the Fifth, and the oracle of the Council of Trent, to whom, it is said, that assembly was indebted for much of the precision, and even elegance, recognized in its doctrinal decrees. His Treatise on Justice and Law is not unknown to students of philosophy, and it has been commended by Sir James Mackintosh, who rejoices in bringing forward the remarkable testimony it furnishes against Slavery. “It is affirmed,” says the Dominican, “that the unhappy Ethiopians are by fraud or force carried away and sold as slaves. If this is true, neither those who have taken them, nor those who purchased them, nor those who hold them in bondage can ever have a quiet conscience, till they emancipate them, _even if no compensation should be obtained_.”[175] This testimony has not been left to slumber in the Latin text of the author. I take it from a favorite production in our own language. Not content with quoting it, Mackintosh adds: “As the work which contains this memorable condemnation of Man-Stealing and Slavery was the substance of lectures for many years delivered at Salamanca, Philosophy and Religion appear, by the hand of their faithful minister, to have thus smitten the monsters in their earliest infancy.”[176] But the Chief Justice ignored all this.

* * * * *

Nor is Portugal to be omitted in this catalogue; and here the testimony is from a familiar authority, being none other than the History of Brazil, by Robert Southey. In this elaborate work, the author, an English classic of the present century, dwells on the unsurpassed eloquence of the Father Vieyra, in the early settlement of Brazil, while he denounced Slavery. No modern Abolitionist has ever used stronger language. Born at Lisbon, in 1608, and dying at Bahia, in 1697, he was called by his countrymen “the last of the mediæval preachers,” and is the most celebrated of Portuguese divines. Thus he spoke: “Oh, what a market! a negro for a soul, and the soul the blacker of the two! ‘This negro shall be your slave for the few days that you may have to live, and your soul shall be my slave through all eternity, as long as God is God!’--this is the bargain which the Devil makes with you.” Then again the fierce orator said: “My brethren, if there be any who doubt upon this matter, here are the laws, here are the lawyers; let the question be asked.… Go to Turkey, go to Hell: for there can neither be Turk so beturked in Turkey, nor Devil so bedevilled in Hell, as to affirm that a free man may be a slave.… We ought to support ourselves with our own hands; for better is it to be supported by the sweat of one’s own brow than by another’s blood. O ye riches of Maranham! What if these mantles and cloaks were to be wrung? They would drop blood!”[177] Surely here is testimony worthy of memory; but our Chief Justice knew it not.

Nor has he regarded official acts by which Portugal at an early day set herself against Slavery. The years 1570, 1587, 1595, 1661, and 1680 were marked by Portuguese to secure the liberty of native Indians. At a later day, but anterior to our Constitution, the African began to feel the same recognition. On the 19th September, 1761, it was enacted, that “all black slaves who should henceforward come to the ports of the kingdom of Portugal and Algarve from Africa or America should be free”; and this was followed by royal order of the 2d January, 1767, extending “this beneficent measure to mulattoes of both sexes who were not mentioned in preceding laws.” Then came the law of 16th January, 1773, which determined that “the children of male and female slaves, who might be born in the kingdom of Portugal after the above date, should be free, and _capable of holding office, honors, and dignities_, without the stigma of freedmen, which the superstition of the Romans established in their customs, and which Christian union and civil society now render intolerable in the kingdom.” These important facts I have from the Portuguese Legation at Washington. Note, if you please, the dates; yet the Chief Justice knew nothing of this important and honorable testimony.

* * * * *

The evidence may well be closed with Italy and the Catholic Church. Surely Bancroft’s History of the United States should have taught the Chief Justice at least to hesitate. In his learned chapter on Slavery the historian records, that, “by the Venetian law, no slave might enter a Venetian ship, and to tread the deck of an argosy of Venice became the privilege and the evidence of freedom.” Then, again, the Chief Justice might have learned from him, that in the twelfth century Pope Alexander the Third became the guardian of the oppressed, and wrote: “But since Nature created all free, no one by condition of Nature was subjected to slavery”; and he might have learned also how even Pope Leo the Tenth, in the midst of his luxurious life, making his pontificate a carnival, declared that “not the Christian religion only, but Nature herself, cries out against the state of Slavery.”[178]

* * * * *

But how could our Chief Justice, belonging and faithful to the Roman Church, forget the testimony of that Church as presented by Balmés, the remarkable Spanish writer, in his work entitled “Protestantism and Catholicity compared in their Effects on the Civilization of Europe”? Here is found an eloquent vindication of the Church, which, according to its defender, rejected the assumptions of the Chief Justice. The famous bull against the slave-trade by Gregory the Sixteenth, in 1839, sets forth what was done to this end by Paul the Third in 1537, by Urban the Eighth in 1639, and by Benedict the Fourteenth in 1741, casting “the most severe censures upon those who venture to reduce the inhabitants of the East or West Indies into slavery, buy, sell, give, or exchange them, separate them from their wives and children, strip them of their property, take or send them into strange places, or deprive them of their liberty in any way, to retain them in slavery, or aid, counsel, succor, or favor those who do these things under any color or pretence whatever, or preach or teach that this is lawful, and, in fine, coöperate therewith in any way whatever.”[179] But, in face of this arraignment by successive pontiffs, where is the Chief Justice? Thus does his own Church testify against him.

* * * * *

Here I suspend the testimony, leaving several famous countries unvisited. But there is enough for conviction; nor is argument needed. The witnesses are before you, excellent and unanswerable, in long array,--witnesses from our own country, witnesses from England, witnesses from Scotland, witnesses from France, witnesses from Holland, witnesses from Spain, witnesses from Portugal, witnesses from Italy, witnesses from the Catholic Church, all rising up to testify against that “opinion” which the Chief Justice announces as “fixed and universal in the civilized portion of the white race,”--against that “axiom in morals as well as in politics” which he says “no one thought of disputing, or supposed to be open to dispute.” They rejected his “opinion”; they disputed his “axiom.” Did he forget? or, for the sake of Slavery, did he pervert judgment? But such forgetfulness was akin to such perversion. And when it is considered that this was to put Slavery in the National Constitution, it was nothing less than a criminal falsification; nor should ignorance be an excuse.

Plainly, the Chief Justice who could do this deserves no marble bust by vote of Congress. His comprehensive office was Justice; his special duty was Liberty. But these he sacrificed, making Law and Constitution hideous. The old maxim of Law cries out against him: _Impius et crudelis judicandus est, qui Libertati non favet._ Such is the terrible judgment. Again the Law speaks: _Execrandus est, qui Libertati non favet_: “Accursed is he who does not favor Liberty.” This is the ancient voice of the Law, older than Constitution and Declaration of Independence, which must not be disobeyed.

NO RECONSTRUCTION WITHOUT THE VOTES OF THE BLACKS.

REMARKS IN THE SENATE, ON THE RESOLUTION RECOGNIZING THE NEW STATE GOVERNMENT OF LOUISIANA, FEBRUARY 24, 25, AND 27, 1865.

February 18th, Mr. Trumbull, of Illinois, Chairman of the
Committee on the Judiciary, reported the following resolution,
which, at the request of Mr. Sumner, was read:--

“_Resolved, &c._, That the United States do hereby
recognize the Government of the State of Louisiana,
inaugurated under and by the Convention which assembled
on the 6th day of April, A. D. 1864, at the city of New
Orleans, as the legitimate Government of the said State,
and entitled to the guaranties and all other rights of
a State Government under the Constitution of the United
States.”

The admission of the State, as here proposed, had the favor of
President Lincoln. It was earnestly opposed by Mr. Sumner, as
not republican in origin or form, and furnishing no security
for the rights of colored persons.

* * * * *

February 23d, on motion of Mr. Trumbull, the Senate proceeded
to consider the resolution, when Mr. Sumner moved the following
substitute:--

“That neither the people nor the Legislature of any State,
the people of which were declared to be in insurrection
against the United States by the Proclamation of the
President, dated August 16, 1861, shall hereafter elect
Representatives or Senators to the Congress of the United
States, until the President, by proclamation, shall have
declared that armed hostility to the Government of the
United States within such State has ceased, nor until the
people of such State shall have adopted a Constitution
of Government not repugnant to the Constitution and laws
of the United States, nor until, by a law of Congress,
such State shall have been declared to be entitled to
representation in the Congress of the United States of
America.”

This was lost,--Yeas 8, Nays 29.

February 24th, Mr. Lane, of Kansas, moved that the resolution
be made the special order for the next day at one o’clock. In
the debate on this motion the following colloquy occurred.

MR. SUMNER. If we are to make any special order for
to-morrow, I think it should be the bill which the Senate
has most maturely considered, and on which it is most
prepared to vote, known as the Railroad Bill, in charge of
my friend from Michigan [Mr. CHANDLER]. The Senator from
Illinois [Mr. TRUMBULL] came forward with his measure----

MR. CONNESS. Will my friend permit me--I know he will--to
appeal to him not to waste the fifteen minutes we have left
in discussing the order of business, but let us take a
vote?…

SEVERAL SENATORS (to Mr. SUMNER). Give up.

MR. SUMNER. Senators say, “Give up.” That is not my habit.

MR. CONNESS. We know that. [_Laughter._]

MR. LANE (of Kansas). Will the Senator from Massachusetts
permit me to withdraw my motion?

MR. SUMNER. If the motion is withdrawn, I have nothing
further to say.

MR. LANE. I withdraw the motion.

The motion to postpone was not pressed, and the resolution came
up in regular order. After an elaborate speech against it by
Mr. Powell, of Kentucky, Mr. Howard, of Michigan, obtained the
floor, when his colleague, Mr. Chandler, moved to proceed with
the bill to regulate commerce among the States, known as the
Railroad Bill. In the debate that ensued, Mr. Sumner spoke of
the latter bill as “a reality,” and called the resolution “a
shadow.” Mr. Doolittle, of Wisconsin, vindicated the resolution
as “the great measure of this Congress,” and said, “It is not
for the Senator from Massachusetts, with all his boastful
friendship for Freedom and free States, to join hands with the
Senator from Kentucky, and undertake to prevent the recognition
of the free State of Louisiana.” In reply, Mr. Sumner said:--

This measure, I say, Sir, is a shadow. So far as it is calculated to exercise any influence, it is to bring disaster. Sir, I do not stand here as a prophet, and I will not at this moment, on this incidental question, be carried into debate; but I warn the Senator from Wisconsin, as he loves Human Freedom, ay, Sir, as he represents a State dedicated to Freedom, to hesitate, before he throws his influence on the side of such a proposition, opening the way to an ominous future.

Sir, I am not disposed to go on, and yet there is one other remark of the Senator to which I must reply. The Senator insists constantly upon foisting an unconstitutional idea in the way of establishing Emancipation throughout this country. He says the vote of Louisiana is needed to the Constitutional Amendment. Sir, the vote of Louisiana is not needed; and when the Senator makes the assertion, he interposes an obstacle to the Amendment. Is he a friend to it? Why, then, interpose an obstacle by an untenable and erroneous interpretation of the Constitution? The Constitution declares that an Amendment shall become to all intents and purposes a part of the Constitution, when ratified by the Legislatures of three fourths of the States.

MR. DOOLITTLE. “When ratified by the Legislatures of three
fourths of the several States.”

MR. SUMNER. Very well,--“when ratified by the Legislatures of three fourths of the several States”; but if no Legislatures exist in States, will the Senator make that an excuse for avoiding the establishment of the Amendment? I will not recognize the Rebellion to such extent; I will not recognize the independence of the Rebel States, as the Senator does. I insist, Sir, that these States shall not control the National Government at this moment, in this great period of our history, and thwart the establishment of human freedom throughout the land.

After remarks from other Senators, the motion to take up the
Railroad Bill was lost,--Yeas 10, Nays 25. Mr. Henderson, of
Missouri, made an elaborate speech in favor of the admission,
claiming that its Constitution was republican in form, in the
course of which the following colloquy occurred.

MR. HENDERSON. The Senator from Kentucky thinks the
Constitution of Louisiana is the offspring of military
usurpation, but he does not say that the Constitution
itself is antirepublican.

MR. SUMNER. I do.

MR. HENDERSON. You do?

MR. SUMNER. Certainly.

MR. HENDERSON. In what particular? Mr. President, I have
been in the Senate for nearly four years, and I believe now
candidly that the Rebellion is about at an end, and, if
there were no other evidence of it, that evidence would be
presented to-night in the close alliance and affiliation of
my friend from Massachusetts and my friend from Kentucky.
Truly, the lion and the lamb have lain down together.

MR. JOHNSON (of Maryland). Who is the lion, and who is the
lamb?

MR. HENDERSON. That is for the gentlemen themselves to
settle. [_Laughter._] The Senator from Massachusetts says
that these State Constitutions are not republican in form.
Will he tell me in what respect?

MR. SUMNER. Because they do not follow out the principles
of the Constitution of the United States.

MR. HENDERSON. I should like to know in what particular.
The answer is a very general one, indeed. He refuses,
then, to specify. The Senator can answer more particularly
hereafter, if he chooses. He says these Constitutions do
not follow the Constitution of the United States. I have
looked over them, and I find no objection to them.… The
Senator from Massachusetts says the act of secession took
the States out. In the name of sense, cannot the act of the
loyal men bring them back?…

MR. SUMNER. Does the Senator refer to me as having ever
said that the act of secession took a State out?

MR. HENDERSON. I understand the Senator to claim that these
States are in a territorial condition,--that they are not
States,--that, by losing their State Governments in the act
of secession, they lose their specific identity as States.

MR. SUMNER. I would rather the Senator should use my
language than his own, when he undertakes to state my
position. I have never said that any act of secession
took a State out. I have always said just the contrary.
No act of secession can take a State out of this Union.
Whatever may be attempted, the State continues under the
Constitution of the United States, subject to all its
requirements and behests. The Government of the State is
subverted by secession; the Senator does not recognize the
existing Government as legal or constitutional, any more
than I do. Where, then, is the difference between us? There
is no Government which he or I recognize; but we do hold
that the whole region, the whole territory, is under the
Constitution, to be protected and governed by it.

MR. HENDERSON. The Senator, then, admits that the States
are in the Union. Now I ask him if we can restore the Union
without restoring State Governments in the seceded States.

MR. SUMNER. That is the desire I have most at heart. I wish
to restore State Governments in those States.

MR. HENDERSON. Then I desire to ask the Senator, if
the loyal men in one of those States acquiesce in the
Constitution presented here, are they not entitled to
govern the State under it?

MR. SUMNER. _If the loyal men, white and black, recognize
it, then it will be republican in form. Unless that is
done, it will not be._

MR. HENDERSON. Now, Mr. President, I desire to ask the
Senator if the Congress of the United States can interfere
with the right of suffrage in one of the American States of
this Union. I put the question to him as a constitutional
lawyer.

MR. SUMNER. I answer at once, as a constitutional
lawyer, that at the present time, under the words of the
Constitution of the United States, declaring that the
United States shall guaranty to every State a republican
form of government, it is the bounden duty of the United
States by Act of Congress to guaranty complete freedom to
every citizen, immunity from all oppression, and absolute
equality before the law. No Government failing to guaranty
these things can be recognized as republican in form, when
the United States are called to enforce the constitutional
guaranty.

In the course of the speech of Mr. Henderson, this further
colloquy occurred.

MR. HENDERSON. To secure national supremacy, you must have
the aid of State authority. For legitimate State authority
you must rely upon the _loyal voters_.

MR. SUMNER. _There is where I agree precisely with the
Senator; and I should like to hold him to it._ He says the
loyal men must form the Government, and we should recognize
that Government; and yet he insists upon a mere oligarchy
forming it, and an oligarchy of the skin.

MR. HENDERSON. The Senator says he agrees with me in my
position, but insists that I am in favor of an oligarchy.
If I am in favor of an oligarchy, and he agrees with me,
then he also wants an oligarchy. [_Laughter._]

MR. SUMNER. The Senator plays upon words.

Mr. Henderson continued at length, answering various objections
to the Louisiana State Government on account of irregularity
in the proceedings. Upon his statement that the failure of
the Rebels to vote did not harm the great principles of
Republicanism, the following passage occurred.

MR. SUMNER. It was the failure of loyal citizens to vote
that did the damage.

MR. HENDERSON. I answer that by asking, What loyal men did
General Banks prevent from voting?

MR. SUMNER. _All the colored race._

At a late hour Mr. Henderson concluded, and the Senate
adjourned.

* * * * *

February 25th, the Senate proceeded with the resolution, when
Mr. Sumner sent to the Chair resolutions which he proposed to
offer as a substitute, declaring the duty of the States to
guaranty republican governments in the Rebel States on the
basis of the Declaration of Independence,--being the next
article in this volume.

Mr. Howard, of Michigan, made an elaborate speech against the
resolution, and Mr. Reverdy Johnson, of Maryland, for it. The
latter asked: “Are these States to be governed as provinces?
That is the idea of the honorable member from Massachusetts.…
Will the honorable member deny that it would be in the power
of Massachusetts now to exclude the black? I suppose not; and
yet, if by an Act of Congress you place it out of the power of
the seceded States, when they come back, under the authority of
that Act, to change the qualifications of electors, they will
not come back as the equals of Massachusetts.” Then ensued a
colloquy.

MR. SUMNER. Allow me to ask the Senator, whether, in his
opinion, the Ordinance governing the Northwest Territory,
prohibiting Slavery, and declared to be a perpetual
compact, could be set aside by any one of the States formed
out of the Territory now.

MR. JOHNSON. I certainly think they can, except so far as
rights are vested.

MR. SUMNER. The Senator, then, thinks Ohio can enslave a
fellow-man?

MR. JOHNSON. Just as much as Massachusetts can.

MR. SUMNER. Massachusetts cannot.

MR. JOHNSON. Why not?

MR. SUMNER. Massachusetts cannot do an act of injustice.

MR. JOHNSON. Oh, indeed! I did not know that. [_Laughter._]

MR. SUMNER. The Senator ought to know it.

MR. JOHNSON. I do not think that is in the Constitution.

MR. SUMNER. I beg the Senator’s pardon; it is in the
Constitution.

MR. JOHNSON. The United States Constitution, or your State
Constitution?

MR. SUMNER. Yes, Sir,--in our State Constitution.

MR. JOHNSON. But it is not in the constitution of your
people. You sometimes do, or have done, acts of injustice.
What I mean to say is this,--and I am sure the honorable
member will not be able successfully to controvert it,
certainly not by authority,--that there is no difference
between the State of Massachusetts and any other State in
the Union with reference to its State powers. That is what
I mean to say.

MR. SUMNER. I mean to say that the State of Massachusetts
has no power to do an act of wrong,--no power
constitutionally, morally, politically, or in any way.

MR. JOHNSON. What is an act of wrong? Who is to judge of it?

MR. SUMNER. To enslave a fellow-man.

MR. JOHNSON. You had them there.

MR. SUMNER. Not since the Constitution.

Afterwards came the following question and answer.

MR. SUMNER. Does the Senator from Maryland, who now
calls in question the validity of the Proclamation of
Emancipation, question that the Supreme Court of the United
States, with its present Chief Justice, would affirm the
complete validity of that Proclamation everywhere within
the Rebel States strictly according to its letter?

MR. JOHNSON. If I am perfectly satisfied, as I am, that the
Chief Justice is abundantly capable of filling the high
office he has, I do not think he would; but whether he
would or not does not settle the question, what the Court
would do. He is but one of ten.

At the close of Mr. Johnson’s speech, Mr. Sumner offered the
following proviso, to come at the end of the resolution:--

“_Provided_, That this shall not take effect, except upon
the fundamental condition that within the State there shall
be no denial of the electoral franchise, or of any other
rights, on account of color or race, but all persons shall
be equal before the law. And the Legislature of the State,
by a solemn public act, shall declare the assent of the
State to this fundamental condition, and shall transmit to
the President of the United States an authentic copy of
such assent, whenever the same shall be adopted; upon the
receipt whereof, he shall, by proclamation, announce the
fact; whereupon, without any further proceedings on the
part of Congress, this joint resolution shall take effect.”

Mr. Sumner remarked, that he desired to call attention to
the precedent on which this proviso was modelled, and he was
induced to do so from the very elaborate way in which Mr.
Johnson had seemed to anticipate it. He has announced that it
would be futile; but those who preceded us did not think so;
and Mr. Sumner then read the resolution for the admission of
Missouri into the Union on a certain condition, where is a
proviso, as he insisted, similar in character.

Mr. Henderson moved to amend the proviso by inserting after the
word “race” the words “or sex.” Meanwhile occurred a desultory
debate, in which the proviso was opposed by Mr. Henderson
and Mr. Johnson,--also by Mr. Pomeroy, of Kansas. The latter
said: “I usually vote for everything that the Senator from
Massachusetts brings forward on the Antislavery question; but
I am opposed to this amendment,--in the first place, because I
do not suppose that we have the right to say what shall be the
qualifications of voters in any State in the Union.… I shall
vote against all amendments that look like dictation on the
part of Congress to any State, whether they will let the right
of suffrage be enjoyed by a whole or a part of the people.”

After some time, Mr. Wade, of Ohio, remarked, that it had “got
now to be pretty late in the evening,” and he moved that the
resolution be postponed till the first Monday in December next.
While this was pending, Mr. Wilson, of Massachusetts, moved an
adjournment, which was lost,--Yeas 11, Nays not counted. After
debate, the question was put on the motion of Mr. Wade, which
was lost,--Yeas 12, Nays 17. Mr. Howard, of Michigan, then
moved an adjournment, which was lost,--Yeas 12, Nays 19. Mr.
Howard then moved that the whole subject be laid on the table,
which was lost,--Yeas 12, Nays 18.

MR. SUMNER. I agree with the Senator from Michigan in the impropriety of pressing a measure of this importance. Perhaps it is the most important measure we have had before us. I shall regard its passage as a national calamity. It will be the political Bull Run of this Administration, sacrificing a great cause and the great destinies of the Republic. I will not go into debate at this time. I think the Senate is not in a condition to vote finally upon it. There are many who would unquestionably like to record their names upon it who are not here. We ought to give them an opportunity. We ought also to give an opportunity for further discussion. It never has been the habit of the Senate, except in those days which we ought not to imitate,----

MR. FOSTER (of Connecticut). Will the honorable Senator allow
me to ask him a question?

MR. SUMNER. Certainly.

MR. FOSTER. I will ask the honorable Senator if he is not fully
prepared to vote on the question.

MR. SUMNER. I certainly am prepared to vote on it.

MR. FOSTER. I will merely say I am.

MR. SUMNER. … I think, on his account, it would be well that the question should be postponed for another day. It is never too late to mend; and it is not impossible that even the Senator, coming from New England, representing, as I doubt not he does, liberal ideas, devoted as he must be to the cause of Human Freedom and of his country, may think there is something in this question to justify the most mature consideration,--something on which the Senate ought to deliberate carefully, without rushing precipitately to a vote. Sir, this question ought not to be closed to-night, and I therefore move an adjournment; and on that I ask for the yeas and nays.

The motion was lost,--Yeas 11, Nays 18.

Mr. Trumbull then appealed for a vote, saying: “The Senator
from Massachusetts has fought it day after day to prevent
it coming up; and when a large majority of the Senate has
overruled him time and again, and decided that it should come
up, he stands here, at half after ten o’clock on Saturday
night, making dilatory motions.” He also protested against what
he called “manifestations of a determination to browbeat the
Senate on the part of a minority.” Mr. Sumner followed.

The Senator from Illinois draws upon his imagination, which, on this occasion, is peculiarly lively. I know not that anybody has undertaken to browbeat. Certainly nobody on the side with which I am associated has done any such thing, or, I believe, imagined doing it.

MR. TRUMBULL. I heard it said that there should be no vote
to-night.

MR. SUMNER. Well, Sir, is that browbeating?

MR. TRUMBULL. I think it is undertaking to decide for the
Senate.

MR. SUMNER. Is that browbeating? No, Sir; it is only undertaking to decide the conduct of an individual Senator with regard to an important public measure. The question between the Senator from Illinois and myself is simply this: he wishes to pass the measure, and I do not wish to pass it. He thinks the measure innocent; I think it dangerous, and, thinking it dangerous, I am justified in opposing it, and in employing all the means to be found in our arsenal. But, Sir, I mean to employ them properly and in a parliamentary way. In no other way can I act in this Chamber.

The Senator is entirely mistaken, if he supposes that this measure can be passed to-night. I tell him it cannot. Parliamentary Law is against him; and the importance of the question justifies a resort to every instrument that Parliamentary Law supplies. The Senator knows it well. I need not even suggest it.

And now, Sir, I have to counsel the Senator,--perhaps he would say that I am taking too great a liberty, and even dictating,--but I would first advise the Senator to look at the clock. He will see that on this evening of Saturday it is twenty-five minutes of eleven,--that it is approaching Sunday. Then let him remember that we have been here all day, and ask himself whether, all things considered, it is advisable to press such a revolutionary measure after this protracted session, and at this late hour. I think his better judgment will come to the conclusion that it is not. At any rate, should he not come to that conclusion, I think he will make a mistake, and all his efforts will be fruitless. There is a certain character of Antiquity who was found sowing salt in the sand by the sea-shore, and ploughing it in. The Senator will be engaged in an occupation just about as profitable.

Mr. Davis, of Kentucky, then moved a call of the Senate, which
being ruled out of order, as never entertained by the Senate,
Mr. Sumner moved an adjournment, which was lost,--Yeas 8, Nays
19. In the desultory debate that ensued, Mr. Doolittle, of
Wisconsin, criticized Mr. Sumner, who replied. Mr. Hendricks,
of Indiana, followed, and, in the course of his remarks, said:
“The question is, What is to be done with the four million
negroes, when they are set free? There are Senators upon
the Republican side who feel that it is a very troublesome
question. That is the trouble here to-night.… The Senator from
Massachusetts is determined that none of these States shall
ever be heard in the Halls of Congress, until the men who speak
from those States speak the voice of the negroes as well as
of the white men. Other Senators say that shall not be. We
Democrats are a unit upon that question.” On motion of Mr.
Lane, of Kansas, the Senate adjourned shortly before midnight,
leaving the resolution pending.

February 27th, the resolution came up in regular order, when
Mr. Sherman moved to proceed with the Internal Revenue Bill,
and then called attention to the Indian Appropriation Bill,
the Civil Appropriation Bill, the Tariff Bill, also the Army
and Navy Appropriation Bills, all of which must be considered
before March 4th, when the session closed. In the debate that
followed, Mr. Sumner said:--

MR. PRESIDENT,--I remember that good fortune last summer threw me in the path of a distinguished gentleman just returned from Louisiana. I think he had been present at the sittings of the Convention whose work finds such an advocate in my friend from Illinois; at any rate, he had been in New Orleans at the time, in the discharge of important public duties. In reply to an inquiry with regard to that Convention, he said compendiously, that it was “nothing but a stupendous hoax,”--yes, Sir, nothing but a stupendous hoax, and the product of that Convention----

Here Mr. Sumner was called to order by Mr. Sherman, for
discussing the merits of the measure, when only the order of
business was in question. He was also interrupted by Mr.
Grimes, of Iowa, who said, that, if the Senate would give him a
committee, he would show fraudulent voting.

MR. SUMNER. I doubt not that my friend from Iowa is right; but I am aware that it is not proper to discuss the merits of the question on this preliminary motion, and I shall not. I was simply characterizing it, and I was going on to say that in my opinion the resolution the Senator from Illinois so earnestly presses upon the Senate, when we consider its origin and character, is itself very little different from “a stupendous hoax.” I say nothing about the Convention, for I was not there, I did not see it. On that point I simply cite the testimony of another. But the resolution of the Senator is before us; we are familiar with its nature. Every moment gives new glimpses of the violence and fraud with which it is associated. Perhaps the expression I have quoted is hardly grave enough in speaking of such a matter, where, in forming the Constitution of a State, military power and injustice to a whole race have been enlisted in defiance of the self-evident truths of the Declaration of Independence. The United States are bound by the Constitution to “guaranty to every State in this Union a republican form of government.” Being called to perform this guaranty, you are asked to recognize an oligarchy of the skin, and on this very question the Senate is now called to vote.

The pretended State Government in Louisiana is utterly indefensible, whether you look at its origin or its character. To describe it, I must use plain language. It is a mere seven-month’ abortion, begotten by the bayonet in criminal conjunction with the spirit of caste, and born before its time, rickety, unformed, unfinished,--whose continued existence will be a burden, a reproach, and a wrong. That is the whole case; and yet the Senator from Illinois now presses it upon the Senate, to the exclusion of the important public business of the country. For instance,----

Here Mr. Sherman insisted on confining the debate to the
pending motion. The vote was then taken, and resulted,--Yeas
34, Nays 12; so the resolution for the admission of Louisiana
was postponed, never to be resumed.

During the next Congress, Mr. Sumner urged a bill for the
organization of Louisiana, with safeguards for Equal Rights,
including suffrage without distinction of color; but the Senate
was not inclined to consider it.

* * * * *

The failure of the Louisiana resolution attracted attention
at the time. Some journals spoke of Mr. Sumner’s course with
severity; others were rejoiced at the result. The New York
_Herald_ said:--

“The factious opposition of Mr. Sumner has probably
defeated the recognition of the new government of Louisiana
by the Senate at the present session, … although probably
two thirds of the Senate are in favor of recognition.”

One journal said, in figurative language, that Mr. Sumner
had “kicked the pet scheme of the President down the marble
steps of the Senate Chamber,” and that, as a consequence, the
intimate relations which he had sustained with the President
must cease.

President Lincoln was too good a man to be influenced by an
honest opposition on political grounds. A few days later, Mr.
Sumner received from him the following note.

“EXECUTIVE MANSION, WASHINGTON, March 5, 1865.

“HON. C. SUMNER.

“My dear Sir,--I should be pleased for you to accompany
us to-morrow evening, at ten o’clock, on a visit of half
an hour to the Inaugural Ball. I enclose a ticket. Our
carriage will call for you at half past nine.

“Yours truly,

“A. LINCOLN.”

At the appointed time the carriage was at Mr. Sumner’s
lodgings. During the ball he was with the Presidential
party, which gave occasion to comment; the New York _Herald_
remarking, “It was presumed that the President had indorsed
his Reconstruction theories.” There is reason to believe that
he had not; but he recognized the right of Mr. Sumner to his
own individual judgment.

The following extract from the letter of a newspaper
correspondent at Washington illustrates the course of the
President towards Mr. Sumner.