Chapter M: T. Johnstone, of the United States Coast Survey, wrote from (4)

“Mrs. Lincoln went down the Potomac this morning for City
Point and Richmond, escorted by Mr. Sumner, who remains in
Washington to exert his influence in the right direction
in closing up the war. Nor let any man suppose that Mr.
Sumner’s influence is slight over this Administration, when
Congress is in session. I know of no man who has more. The
President disagrees entirely with Mr. Sumner in his views
respecting Reconstruction. He was almost indignant at the
Senator’s course towards Louisiana, adverting to it over
and over again in the presence of strangers. But still he
respects Mr. Sumner, confers with him, and perhaps fears
him. Besides, the Senator has great influence with Mr.
Stanton and Mr. Welles. Mr. Sumner is a clever diplomatist,
and has always been friendly with Mr. Lincoln. So long as
‘peace negotiations’ are talked of, Mr. Sumner will not
leave Washington but for a day or two, I presume.”

The effort of Mr. Sumner on the Louisiana question found a warm
and cordial response, as amply appears from letters at the time.

Wendell Phillips wrote from Boston:--

“Though I have but half an hour at home, I cannot let it
pass without thanking you for your gallant fight against
Louisiana. Your tireless patience in carrying in detail one
point after another of the enemy’s defences, all winter
long, has not passed without our grateful admiration; the
masterly strategy of the last week is the grand and fitting
climax,--all the more grateful, because we had been told
you felt the resistance so hopeless as to fear you must
succumb to the dictation of the Cabinet. We have watched
your white plume with fearful delight. Could we only hope
this defeat would be final, our joy would be unmixed. At
any rate, the effort will bear fruit thousand-fold.”

Hon. Francis W. Bird wrote from Boston:--

“Let me thank you most heartily for your gallant fight
against Louisiana. I hope it will be powerful to the end.
I can see it was against fearful odds, and all the more
splendid.”

Dr. Estes Howe wrote from Cambridge:--

“I don’t trouble you much with letters, but I must thank
and congratulate you most warmly on your splendid fight
and great victory in the Bogus Louisiana struggle. Some
weak-kneed Republicans who rejoice at the result did not
know at first whether to rejoice or not, when they saw what
tools you had to work with; but your true friends, who have
their eyes open, are full of joy, and all the rest will
fall into line as soon as the great truth becomes apparent
to them.”

Hon. Edward L. Pierce wrote from Boston:--

“God bless you a thousand times for your indomitable
resistance to the admission of Louisiana with her caste
system! This afternoon some forty gentlemen dined at Bird’s
room, and all, _nemine dissentiente_, approved it, and with
full praise.”

Joel P. Bishop, the learned law-writer, and author of a much
used work on Criminal Law, wrote from Boston:--

“Blessings on you! You have done in this Louisiana matter
an excellent work, for which some of your friends thank you
less now than they will by-and-by.”

Hon. Charles W. Slack, an Antislavery journalist, wrote from
Boston:--

“Thanks!--hearty, cordial, continued thanks!--for your
brave and persistent opposition to Louisiana.

“There is a very much larger share of the community who
will sustain you than at first thought may be supposed.

“The idea of negro suffrage in the disloyal States grows
daily in favor and advocacy among business men.”

William S. Robinson, the journalist, known as “Warrington,”
wrote:--

“I cannot sit down to my work this morning, albeit pressed
for time, without giving you the homage of my sincere
admiration and respect for killing Louisiana, at least _pro
tempore_. Thanks! thanks! thanks!”

General William L. Burt, afterwards Postmaster of Boston, who
had served in Louisiana during the Rebellion, wrote:--

“I congratulate you upon your defeat of the Louisiana
Bill. Your action was not only justifiable, but
commendable,--doubly so in view of the fact of your
concession upon the Reconstruction Bill.… The complaints
made by the Administration, or its friends, of the means
you took to prevent the fraud upon you and the people, are
a compliment, first, to your sagacity, and, secondly, to
your skill and ability. You will be vindicated a hundred
times before December.”

Colonel Albert J. Wright, having great influence in the local
politics of Boston, wrote:--

“Something must be done in Boston. Some of your admiring
friends here, who at first, in the midst of the muddle
of telegraphic despatches, had some misgivings in regard
to your action on ‘Reconstruction’ questions before the
Senate, have had their eyes opened, and now feel that you
have rendered a great service to the country in battling
manfully for the rights of humanity,--that you have done
right, and saved us from a new disaster. Of course we must
have a great meeting at the Music Hall, and give you an
ovation: nothing less will satisfy us.”

F. B. Sanborn wrote from Concord, Massachusetts:--

“Allow me to add my congratulations to those of your other
friends on your successful opposition to the Louisiana
scheme of Reconstruction. I look upon you as the real
destroyer of that fine web of intrigue and absurdity so
carefully spun.”

Henry O. Stone wrote from Framingham, Massachusetts:--

“Although an humble and obscure individual, I cannot
refrain from thanking you for your persistent resistance to
the admission into Congress of the Louisiana claimants. I
feel as if you ought to have personal acknowledgment from
every one in Massachusetts who can appreciate your just and
patriotic motives and wise statesmanship. I know you will
be accused of factious opposition to the Administration
and the President; but there are those who believe your
opposition comes from a desire to do justice, not only to
the blacks, but to the poor whites, and to establish the
Government upon the only permanent and safe foundation on
true democratic principles.”

Hon. Adin Thayer wrote from Worcester:--

“I thank you from the bottom of my heart for your heroic
and successful opposition to the Louisiana fraud. Nothing
you have ever done better deserves the gratitude of the
country and of mankind.”

Elizur Wright, one of our earliest Abolitionists, wrote from
Boston:--

“Your keeping out the _sham_ State of Louisiana is worth,
in my estimation, any three average military victories.
I would give the United States Treasury half I am worth
to have Congress, the next thing it does on the subject,
decide black suffrage as the ‘inexorable condition’ of
readmission.”

Rev. A. P. Marvin wrote from Winchendon, Massachusetts:--

“I have just risen from reading in the telegraphic
despatch of the noble stand made by you in the Senate last
night, by which the admission of Louisiana is staved off
for the present. I have often fervently thanked God that
you were in your present position, and enabled to do so
much to prevent evil and accomplish good,--but never more
earnestly than now. I know it must be hard to withstand
so many of the supporters of the Administration, but the
battle _must_ be fought on the very question involved in
this measure. It will not only be wicked and infamous,
but suicidal, for us to let the greater part of the rank
and file of the Rebels come back and be voters, while we
exclude our colored countrymen. I hope strength will be
given to you, according to your day; as to your zeal,
courage, ability, and prudence, nothing is wanting.”

Rev. George C. Beckwith, Secretary of the American Peace
Society, wrote from Boston:--

“I have just been reading, with my wife, some account of
your course on the Louisiana question; and we can’t help
sending you our thanks for your persistent efforts to
avert the very possible evils likely to come from a wrong
decision in this case. God grant you success in preventing
here a precedent that _may_ lead to irretrievable mischief!”

Rev. George B. Cheever, the constant Abolitionist, wrote from
New York:--

“Permit me the pleasure of congratulating you on the firm
and noble stand you are maintaining in the Senate for
the rights of loyal men in Louisiana, irrespective of
color, and for the prerogative of Congress, as well as its
obligation, to settle the government of that State as a
republican government. Your efforts are so much the more
admirable and important as they are opposed by mistaken
Senators, such as Trumbull and Doolittle, and by some of
our editors, as of the _Times_. The heart of the country
goes with you, not with your opponents. It would be a
terrible disaster to have the precedent set of a State
readmitted to the Union with the sacrifice of the rights of
the blacks. Your resolutions of Saturday, as well as the
amendment you proposed, were admirable. The victory will be
worth everything, if you can carry something of that kind.”

A. P. Hayden wrote from New York:--

“I cannot let this opportunity pass of thanking you for the
manner in which you have stood by the colored people of
Louisiana,--almost the only out-and-out Loyalists of that
State. I agree with you that any settlement of the question
that will not put the ballot into their hands will create
mischief that will take a long time to remedy. When I read
in this morning’s _Tribune_ of the vote to postpone the
Louisiana matter until December, I felt as if a great moral
as well as political battle had been won by our side.”

Dr. J. B. Smith, giving expression to the feelings of colored
citizens in a letter from Boston, said:--

“I know of no words of any language adequate to convey to
you the gratitude I feel in my inmost soul towards you for
your efforts and final success in defeating the bill for
the readmission of Louisiana as a State into the Union,
with the present flagrantly unjust and proscriptive laws
and Constitution. _The white people of this country have
been so accustomed to regard and treat us as their natural
inferiors_, that we dread the very thought of submitting to
them the adjustment of our rights after their own are made
secure. What is not gained for us now will not be obtained
for a quarter of a century after peace is declared.”

Frederick Douglass, the watchful orator of his race, wrote from
Rochester, New York:--

“The friends of Freedom all over the country have looked
to you, and confided in you, of all men in the United
States Senate, during all this terrible war. They will
look to you all the more, now that peace dawns, and the
final settlement of our national troubles is at hand. God
grant you strength equal to your day and your duties! is my
prayer and that of millions.”

In harmony with these expressions, the following resolution
was adopted unanimously by the Worcester Freedom Club, and
communicated to Mr. Sumner:--

“_Resolved_, That the ‘Worcester Freedom Club’ tenders to
the Hon. Charles Sumner their gratitude as freemen, for the
able manner in which he met the question for the admission
of Louisiana, and for his noble defence of the ‘Equality of
all men before the Law.’”

Evidently Mr. Sumner was not alone. The right of colored
fellow-citizens was recognized as next in order for discussion
and judgment. The Antislavery fires were flaming forth anew.

GUARANTY OF REPUBLICAN GOVERNMENTS IN THE REBEL STATES.

RESOLUTIONS IN THE SENATE, FEBRUARY 25, 1865.

While the resolution recognizing the existing State government
of Louisiana was under consideration, Mr. Sumner introduced the
following resolutions, which, on his motion, were ordered to be
printed. He gave notice that at the proper time he should move
them as a substitute for the pending resolution. But before the
proper time the Louisiana resolution was postponed, and it fell
with the session.

Resolutions declaring the duty of the United States to guaranty Republican Governments in the Rebel States, on the basis of the Declaration of Independence; so that the new Governments shall be founded on the consent of the governed, and the Equality of all persons before the Law.

_Resolved_, That it is the duty of the United States, by Act of Congress, at the earliest practicable moment consistent with the common defence and the general welfare, to reëstablish republican governments in those States where loyal governments have been vacated by the existing Rebellion, and thus, to the full extent of their power, fulfil the requirement of the Constitution, that “the United States shall guaranty to every State in this Union a republican form of government.”

2. That this important duty is positively imposed by the Constitution on “the United States,” and not on individuals or classes of individuals, or on any military commander or executive officer, and cannot be intrusted to any such persons, acting, it may be, for an oligarchical class, and in disregard of large numbers of loyal people; but it must be performed by the United States, represented by the President and both Houses of Congress, acting for the whole people.

3. That, in determining the extent of this duty, and in the absence of any precise definition of the term “republican in form,” we cannot err, if, when called to perform this guaranty, we adopt the self-evident truths of the Declaration of Independence as an authoritative rule, and insist that in every reëstablished State the consent of the governed shall be the only just foundation of government, and all persons shall be equal before the law.

4. That, outside the Declaration of Independence, it is plain that any duty imposed by the Constitution must be performed in conformity with justice and reason, and in the light of existing facts; that therefore, in the performance of this guaranty, there can be no power under the Constitution to disfranchise loyal people, or to recognize any such disfranchisement, especially when it may hand over the loyal majority to the government of the disloyal minority; nor can there be any power under the Constitution to discriminate in favor of the Rebellion by admitting to the electoral franchise Rebels who have forfeited all rights, and excluding loyal persons who have never forfeited any right.

5. That the United States, now at a crisis of history called to perform this guaranty, will fail in duty under the Constitution, should they allow the reëstablishment of any State without proper safeguards for the rights of all the citizens, and especially without making it impossible for Rebels in arms against the National Government to trample upon the rights of those fighting the battles of the Union.

6. That the path of justice is also the path of peace, and that for the sake of peace it is better to obey the Constitution, and, in conformity with the guaranty, to reëstablish State governments on the consent of the governed, and the equality of all persons before the law, to the end that the foundations may be permanent, and that no loyal majorities may be again overthrown or ruled by any oligarchical class.

7. That a government founded on military power, or having its origin in military orders, cannot be “republican in form,” according to the requirement of the Constitution; and that its recognition will be contrary, not only to the Constitution, but also to that essential principle of our Government which, in the language of Jefferson, establishes “the supremacy of the civil over the military authority.”[180]

8. That, in the States whose governments have already been vacated, a government founded on an oligarchical class, even if erroneously recognized as “republican in form” under the guaranty of the Constitution, cannot sustain itself securely without national support; that such an oligarchical government is not competent at this moment to discharge the duties and execute the powers of a State; and that its recognition as a legitimate government will tend to enfeeble the Union, to postpone the day of reconciliation, and to endanger the national tranquillity.

9. That considerations of expediency are in harmony with the requirements of the Constitution and the dictates of justice and reason, especially now, when colored soldiers have shown their military value; that, as their muskets are needed for the national defence against Rebels in the field, so are their ballots yet more needed against the subtle enemies of the Union at home; and that without their support at the ballot-box the cause of human rights and of the Union itself will be in constant peril.

NO PICTURE AT THE CAPITOL OF VICTORY OVER FELLOW-CITIZENS.

REMARKS IN THE SENATE, ON JOINT RESOLUTION AUTHORIZING A CONTRACT WITH WILLIAM H. POWELL, FEBRUARY 27, 1865.

February 27th, the Senate having under consideration a joint
resolution from the House of Representatives, authorizing a
contract with William H. Powell for a picture at the Capitol,
not to exceed twenty-five thousand dollars in amount, Mr.
Sumner said:--

MR. PRESIDENT,--I am sorry that my friend from Vermont [Mr. COLLAMER] feels obliged to press this proposition. I do not like to vote against it. Still more, I am reluctant to speak against it. But, satisfied as I am, after careful reflection, that it ought not to pass, I shall express briefly the grounds of my opposition. When it was called up the other day, I ventured to say that I did not think this the time for us to enter upon the patronage of art. Of course such patronage is beautiful and most tempting. It may seem ungracious to arrest it; but I submit confidently, that at this moment, with the national debt accumulating at the rate of millions a day, with brave soldiers still unpaid, with a drain upon our resources at every point, it is not advisable to enter upon the patronage of art, beautiful and most tempting as it is.

There is much to be done to complete the National Capitol in all its parts. Let the work proceed, until the sublime structure stands forth worthy in everything of the destinies it enshrines. But I think we may hesitate at this time to enter upon any ornamentation not essential to the work. If you order one costly picture, you will be called to order another; and where will this expenditure stop? Better wait for the days of peace, soon to come, I trust, when your means will be greater, and you will approach the question in a calmer mood.

Thus far I have said nothing of the artist. But the vote proposed selects one artist for especial honor, and leaves all others unnoticed. It is like a vote of thanks to an officer in the army or navy. Are the merits of this artist so peculiar and commanding that he should be taken and all others left? I doubt. At least, I know that there are other artists in the country who deserve well of those who assume the patronage of art. Are you ready, in this off-hand way, without inquiry, without even hearing their names, to discriminate against them all? I put these questions in no spirit of criticism, and certainly in no unkindness to the artist, for whom, let me say, I have a sincere regard. There is already one picture by him in the Capitol. A second would be more than enough.

Then, again, are you sure that the subject selected at the present time would be such as a maturer and more chastened taste could approve? This is a period of war. We are all under its influence. But I doubt if it be desirable to keep before us any picture of war, especially of a war with fellow-citizens. There are moral triumphs to which art may better lend its charms. I need only refer to the Proclamation of Emancipation, which belongs to the great events of history.

I send to the Chair an amendment, to come in at the end of the resolution:--

“_Provided_, That in the National Capitol, dedicated to the
National Union, there shall be no picture of a victory in
battle with our own fellow-citizens.”

* * * * *

In the debate that ensued, Mr. Wilson, of Massachusetts,
said: “I rise more especially to say that I disagree with
my colleague altogether in the proposition that no work of
art shall grace the Capitol of this country that represents
anything of the present war of a military or naval character.
I do not believe in that doctrine.” Mr. Howe, of Wisconsin,
said: “If there were any one proposition which could make
the original resolution more distasteful to me than it is in
itself, it would be the proviso moved by the Senator from
Massachusetts.”

February 28th, the amendment of Mr. Sumner was rejected without
a division.

Mr. Sumner then offered another:--

“_Provided_, That no contract shall be made, until after
a competition among the artists of the country, all of
whom shall have an opportunity of offering themselves as
candidates, and of exhibiting designs for the proposed
picture; and the committee shall postpone any contract
with Mr. Powell, until they shall be satisfied, after such
competition, that he is the most meritorious artist.”

This also was lost,--Yeas 15, Nays 23,--as also another
amendment, to purchase of F. B. Carpenter his picture of “The
Emancipation Proclamation,” instead of a picture from Mr.
Powell, for which there were only two votes. The resolution was
then passed.

* * * * *

Among those who expressed sympathy with Mr. Sumner on this
occasion was General Robert Anderson, who commanded at Fort
Sumter. He wrote:--

“I am glad to see that you, like myself, are looking
forward to the time when this Rebellion shall end, and do
not wish to see perpetuated, on canvas or in marble, a
trace of its having existed.”[181]

FREE SCHOOLS AND FREE BOOKS.

REMARKS IN THE SENATE, ON AN AMENDMENT TO THE INTERNAL REVENUE ACT, MAKING BOOKS FREE, FEBRUARY 27, 1865.

February 27th, the Senate had under consideration a bill
to amend the Internal Revenue Act, by striking out of the
clause relating to printed books the word “magazines,” and by
inserting after the word “newspapers” the words “and periodical
magazines,” so that it would read: “On all printed books,
pamphlets, reviews, and all other similar printed books, except
newspapers and periodical magazines, a duty of five per cent
ad valorem.” In commenting on this proposition and another
adopted by the House, Mr. Sherman, of Ohio, remarked: “I almost
became a convert to the idea of the Senator from Massachusetts,
and that it would be better to strike out the whole clause,
rather than to attempt to make these discriminations and
qualifications and exceptions.” Mr. Sumner followed.

I am very glad to hear the Senator from Ohio say that he had become almost a convert to the idea of removing all tax on books. He reminded me of a certain person who was “almost persuaded to be a Christian.” I think it would be better for the Senator, had he become a complete convert. I am sure his influence would be better for the country.

I speak from no motive of self, and from no personal interest whatever, but from a profound conviction that for the best interests of the country there should be no tax on books. What you can extort out of this tax, in any event, is very small; and it is always a tax on knowledge. Look at it as you will, to that complexion it comes at last. I do not think it worth while for Congress to adopt such a tax. It is the boast of our institutions that they stand upon the intelligence of the people, and it is a further boast that we supply education for all at the public cost; but books are indispensable in this benefaction. Every tax upon books, therefore, is an impediment to that education which is the pride of our country. Plainly it is inconsistent with the genius of our institutions. The result of this tax will be petty, but, to the extent of its influence, prejudicial.

Mr. Sumner moved to strike out the whole clause. Then, in reply
to Mr. Clark, of New Hampshire, he remarked:--

The Senator from New Hampshire does not quite like to tax the Bible. Sir, I do not like to tax it. My proposition is broader than his; but he knows very well that the real signification of _Bible_ is _book_.

MR. CLARK. Not in our language.

MR. SUMNER. I do not know about that. The Senator does plead, however, for the manufacturer of the shirt, whose shop is by the side of the bookseller; but the difference between the two cases is, as I have indicated: that, if you tax the book, you tax knowledge; if you tax the shirt, you but tax one of the general manufactures of the country. The distinction may not be accepted by all; and yet to my mind it is perfectly clear. You cannot tax a book without taxing knowledge. But it is said there are books that might very well be taxed out of existence. Where run the line? How make the discrimination? The trouble is more than it is worth. Better, therefore, have no such tax than run any such line or make any such discrimination. A book is a book; and there should be no tax on a book.

Afterwards, in reply to Mr. Reverdy Johnson, of Maryland, he
remarked:--

I have only one word in reply to the learned Senator from Maryland. He does not regard a tax on books as a tax on knowledge. Pray, then, what is such a tax? I can imagine no tax more directly on knowledge. If the Senator can, I should like to have him indicate it. Possibly he can. I believe he cannot. If we repair to the experience of other countries, we find that books are not taxed. In England, where taxation is carried to the farthest point, we know that books are not taxed. We know, also, that, after long and protracted struggle, only during this last year was the last tax on knowledge overthrown, being the paper duty. And yet, Sir, Senators would take up the cast-off taxes of Great Britain, and do even worse. Great Britain has taxed paper, has imposed a stamp-tax also on newspapers, all of which have been latterly removed; but I am not aware that this taxing nation has imposed a tax upon books. And shall our Republic, founded on knowledge, whose duty and mission are to make knowledge cheap, impose, for the first time, a tax on books?

Mr. Wilson said: “I shall vote against exempting from taxation
any book whatever, even the Bible.… I am against these
exemptions. What, Sir! a tax on books a tax on knowledge?
Suppose it is: so is a tax on the coat the boy who goes to
school wears.”

Mr. Sumner replied:--

MR. PRESIDENT,--My colleague does not see the difference between a tax on a boy’s clothes and a tax on his book. The country, in its experience, from the first settlement at Plymouth Rock, has seen it. Clearly it saw the difference, when it undertook to say that education should be at the public cost, free of charge to every one in the community. My friend [Mr. HOWE] shakes his head; he knows well that one of the proudest acts in the history of New England was when at an early day she established her system of public schools, which has continued ever since, where every child is educated free of charge. He was educated at the public cost, but not clothed at the public cost. And, Sir, if you would know what gave to New England those elements of prosperity and of influence, which are, I think, sometimes recognized, you will find them in that very education at the public cost. It was because those early settlers, founders of communities, saw that the mind should be clothed, and willingly undertook to clothe it. The family at home were left to clothe the body. Now I would have the country act according to this illustrious precedent, which has done so much for the national name, and remove every impediment in the path of knowledge. Do not tell me that by the same rule you must remove the tax from clothes. The conclusion does not follow. If our fathers were right in establishing free schools, it is right for us now to insist upon free books.

The amendment of Mr. Sumner was lost,--Yeas 5, Nays 27.

THREE CONDITIONS PRECEDENT TO THE RECEPTION OF SENATORS FROM A REBEL STATE.

RESOLUTION IN THE SENATE, MARCH 8, 1865.

March 8th, at the Extra Session, called for executive business,
the Senate having under consideration the credentials of
William D. Snow as Senator from Arkansas, Mr. Sumner submitted
the following resolution, which was ordered to be printed.

_Resolved_, That, where a State has been declared to be in insurrection, no person can be recognized as Senator from such State, or as claimant of a seat as Senator from such State, until after the occurrence of three several conditions: first, the cessation of all armed hostility to the United States within the limits of such State; secondly, the adoption by such State of a constitution of government republican in form and not repugnant to the Constitution and laws of the United States; and, thirdly, an Act of Congress declaring that the people of such State are entitled to representation in the Congress of the United States.[182]

UNJUST ARREST AND PROSECUTION OF TWO BOSTON MERCHANTS.

PROTEST AND OPINION ON THE CASE OF THE MESSRS. SMITH BROTHERS, MARCH 17, 1865.

Benjamin G. Smith and Franklin W. Smith, merchants and
co-partners in Boston, with the firm name of Smith Brothers &
Co., were suddenly arrested in June, 1864, by order of the Navy
Department, under the charge of fraud in the performance of
contracts with the Department. They were at once consigned to
Fort Warren, in the harbor of Boston, with strict injunctions
to prevent any communication by them with the outer world. Bail
to the amount of half a million dollars was required, which was
subsequently reduced to forty thousand. Their counting-room was
broken open, their safe forced, and their books seized. Their
houses were searched, and private papers taken away. Their
business was, for the time, destroyed. This work was crowned by
ordering a court-martial for the trial of these civilians at
Philadelphia.

These proceedings excited a general interest at Boston. The
Massachusetts delegation in Congress united in the following
appeal to the President, which was drawn by Mr. Sumner.

TO THE PRESIDENT OF THE UNITED STATES:--

The undersigned, Senators and Representatives in Congress from Massachusetts, ask leave to call your serious attention to the proceedings initiated by the Navy Department against Benjamin G. Smith and Franklin W. Smith, of Boston, of the firm of Smith Brothers & Co., a much respected firm, which has hitherto enjoyed the confidence, personal and mercantile, of the community where they reside. Among their neighbors and friends these proceedings have already attracted much attention, and awakened corresponding feeling.

The proceedings have seemed to be harsh, vindictive, and unnecessary.

1. In the character of the arrest of Messrs. Smith, which was attended by circumstances of severity utterly unjustifiable.

2. In requiring bonds to so large an amount as half a million of dollars. The fact that the parties in question easily obtained bonds for a much larger amount does not render the exaction of “excessive bail” less obnoxious to the requirements of the Constitution and of justice, or less indicative of the spirit in which these proceedings have been conducted.

3. In the seizure of their books and papers, which are still detained, although regarded by their eminent counsel as important to their defence.

4. In turning into a military offence what is more proper for a civil tribunal, and dragging these defendants before a court-martial.

5. In transferring the proceedings from Boston, where the parties reside, and the transactions in question occurred, to Philadelphia: thus increasing greatly the difficulties and the cost of defence. This will be appreciated, when it is understood that the witnesses are very numerous, and chiefly engaged in mercantile business, so that they cannot leave Boston without neglect of their private interests.

The undersigned, on reviewing these circumstances, which are so inconsistent with the administration of justice in its most ordinary forms, have been at a loss to account for the spirit manifested in the prosecution. If they look at the trivial character of many of the specifications against the defendants, they are still more at a loss. It is difficult to account for such elaborate and persistent harshness, without yielding to the prevailing belief that other motives than the vindication of justice have entered into this case.

The undersigned are not strangers to the fact, that one of these defendants, in the discharge of what he believed to be his duty as a good citizen, has, by correspondence and testimony before committees of Congress, been brought into collision with officers of the Navy Department; and there is too much reason to believe that some of these officers have allowed themselves to be governed by personal feelings throughout these strange proceedings.

Under such circumstances, the undersigned most respectfully ask your assistance in securing justice to these defendants, according to the common course of proceedings at law. They are acquainted with the statute which provides court-martial for contractors in certain cases, and they are unwilling to make any suggestion which shall interfere with its efficiency; but they have no hesitation in saying that such a statute, intended for extreme cases, should not be applied to a case like the present, where, with a single exception, the questions are simply whether the defendants complied with their _contract_, and therefore, from their nature, can be better considered by the ordinary tribunals accustomed to such questions than by a naval tribunal composed of officers who have no familiarity with them.

If the pending proceedings against the Messrs. Smith should be continued, there are two courses with regard to them which may be recommended.

_First_, That they should be transferred at once to the United States Court in Massachusetts, and be placed under the direction of the learned Attorney of the United States for that District.

_Secondly_, If the foregoing order is not deemed expedient, on the existing evidence, then a commission or commissioner might be appointed by the President to inquire into the circumstances attending the arrest of the defendants, and also into the nature of the charges against them, in order to ascertain and report if there is any sufficient reason for the singular harshness to which they have been already subjected, and also for the exceptional proceedings instituted against them.

For the sake of justice, and to relieve the Government from all suspicion of undue harshness, the undersigned protest against the spirit in which these proceedings have been conducted, and appeal to you for such remedy as shall seem best, to the end that the public interests may be adequately protected without any sacrifice of the rights of the citizen, and without needless interference with the order of business.

CHARLES SUMNER,
HENRY WILSON,
THOMAS D. ELIOT,
HENRY L. DAWES,
S. HOOPER,
JOHN B. ALLEY, _by C. Sumner, as by letter_,[183]
D. W. GOOCH,
WILLIAM B. WASHBURN,
JOHN D. BALDWIN,
GEORGE S. BOUTWELL.

[BOSTON, August 15, 1864.]

The trial proceeded at Charlestown, lasting several months,
with able counsel for the defendants, and it ended in judgment
against the defendants, who were sentenced to imprisonment for
two years and a fine of twenty thousand dollars. This judgment
and sentence were approved by the Secretary of the Navy, and
it only remained for the President to give them his sanction.
Before this was done, Mr. Sumner saw him. The President
listened to his appeal, and at once put into his hands the
elaborate report from the Secretary of the Navy, setting forth
the facts in the case and approving the conclusion of the
court-martial,--asking him to read it carefully and give his
opinion upon it, which he did without delay.

OPINION.

This case has been pending since 17th June, 1864, when the Messrs. Smith Brothers, who, as merchants, enjoyed an enviable reputation, were suddenly arrested by military authority, and, without any opportunity of conferring with counsel or friends, were hurried off to Fort Warren. During all this period, running over nine months, I have kept myself aloof from the case, so far as possible, knowing that I was not so circumstanced as to consider it on its merits, and under the conviction, that, at last, justice would be done.

On certain matters independent of the merits I have with others been called to speak. One of these was the manner of the arrest and the bail required. At the time of the arrest, all the books and papers of the parties were seized and sequestered. The hardship of the arrest was aggravated by the bail required, which was fixed at half a million of dollars. “Excessive bail” is forbidden by the Constitution; but it would be difficult to say what bail could be “excessive,” if this was not.

The other matter on which I was called to speak was the order for the trial of the Messrs. Smith Brothers by court-martial at Philadelphia, when it was notorious that the proceedings must be protracted, and that numerous witnesses must be summoned from Boston, at great expense: the whole constituting a plain oppression, not unlike the demand of “excessive bail.”

The hardship in these preliminary proceedings seemed to justify an appeal to the President, in which I joined, for his intervention at least to change the place of trial. Perhaps they illustrate also the temper which entered into this prosecution.

It is only since the President has put into my hands the report on the findings of the Court, adopted by the Secretary of the Navy, that I have looked into the case on its merits. I have read that report carefully, and also the arguments of the counsel on both sides; but I have not had any opportunity to examine the whole record. From the fulness of the report, and of the arguments, this was hardly necessary. The record is extensively cited in the report and the arguments, and also in a pamphlet by one of the respondents, which I have read.

The more I have examined the case, the more I have been surprised by the preliminary proceedings, the continued prosecution, and the findings of the Court. I can well understand how they were used in the House of Representatives as an argument for the total repeal of the Act of Congress authorizing the trial of civilians by courts-martial. Such a case must make us fear, that, under this Act, justice may be sacrificed. It might make honest merchants hesitate to enter into business relations with the Government.

On careful examination, it seems that the whole prosecution, so far as proof is seriously pretended, is reduced to one single specification,--to wit, the sale and delivery of five thousand pounds of a tin called Revely, instead of a tin called Banca, by which, at most, the Government lost one hundred dollars. There are other specifications; but the report adopted by the Secretary of the Navy forbears to dwell on them; and I do not think they can be made the foundation of any judgment against the respondents. They did not seem to have impressed the President, in the conversation which I had with him on the subject. I put them aside as unproved or irrelevant. There only remains the single specification with regard to tin.

Look at this carefully, and the wonder increases that these proceedings were ever instituted.

1. The first remark to make is, that, even according to the finding of the Court, the Government has suffered only to the amount of one hundred dollars,--being the difference in price between the two kinds of tin at the date of delivery. _The pettiness of this loss_ is still more apparent, when it is considered that the transactions of the respondents with the Government reached the sum of more than twelve hundred thousand dollars, having such infinite details that they covered twelve hundred and five pages of sales. Surely, on every principle of reason or evidence, the insignificance of this loss, in transactions on so large a scale, and extending over three years of time, constitutes an unanswerable presumption in favor of the respondents, excluding, as it does, any adequate motive for the perpetration of fraud. Even assuming that the supply of tin was questionable, it would be reasonable to call it ill-considered, hasty, or mistaken, rather than criminal, according to the finding of the Court. Certainly it could be no justification of the vindictive arrest and bail with which the proceedings began, and it is frightful that it should be made the pretence for a sentence of two year’ imprisonment and twenty thousand dollar’ fine. If a mountain in labor ever brought forth a mouse, it is this mountainous prosecution, whose only offspring yet crawling on earth is an allegation of loss to the United States of one hundred dollars! But, if we look further at this transaction, it will be seen that it is absolutely unimpeachable.

2. Much confusion has been caused by _ignorance with regard to the two tins in question_. The report adopted by the Secretary of the Navy says of them, that, “in the course of commerce, _the two are never confounded by dealers_”; then, again, that “Banca tin is _one article_, having a certain price, and that Revely tin is _another and a different article_, having a different price.” The repetition of this assumption again and again shows how important it was regarded in support of the accusation. But this assumption is founded on mistake.

I call attention to the letter of Hon. S. Hooper, addressed to myself, under date of 14th March instant, in which he testifies from his experience as an importer, for many years, of these two tins. He says: “If the only charge against Messrs. Smith Brothers & Co. is the delivery of Revely tin, on a contract to supply the Government with Banca tin, it is an absurdity, and it is evident to me that the Court did not know what Banca tin was.” He then proceeds to say, that the tin of the East passes under the _general name_ of Banca tin, which is applicable to the Revely or Straits tin as well as to the Dutch; and he adduces the authority of the Commercial Dictionaries. Thus, McCulloch, under the word “Tin,” after speaking of the tin of Great Britain, says, “Tin, Oriental, in commercial language usually called Banca tin,” produced, according to this authority, in China, the Malay countries, and the islands lying toward Java. He also cites Simmonds’s “Dictionary of Trade,” published in London as late as 1858, which, under the term “Banca-Tin,” says, “A valuable kind of tin, equal to English refined, obtained in the Eastern Archipelago, originally from the island of Banca exclusively; but much is now procured in Malacca, and sent to Singapore for shipment.” The latter, it will be borne in mind, is what has been treated in this case as Revely.

Certainly, the testimony of Mr. Hooper, in concurrence with the Commercial Dictionaries, must tend to show that the report is mistaken, when it so confidently asserts, that, “in the course of commerce, the two tins are never confounded by dealers.” On the contrary, they have been treated by “dealers,” and by authoritative writers on commerce, as substantially the same. It is almost superfluous for me to add, that, according to the ruling of our courts, such testimony would be decisive. Thus, where certain words were used in the tariff, Mr. Justice Story decided, that, “the tariff being a statute regulating commerce, the terms of it must be construed _according to commercial usage and understanding_.”[184] Common sense is in harmony with this judgment.

As if to put this _commercial usage_ beyond question, we have the testimony of Mr. Richards, a witness _for the prosecution_, as follows.

“_Cross-Question 18._ Do you ever have orders from customers
for Banca tin, that you execute by the delivery of Revely or
Straits?--_Ans. We have._”

“_Cross-Question 22._ Suppose you had an order from a
foundry--say Hooper & Co.--for five thousand pounds of Banca
tin, which you knew was to be used for castings, how would you
fill such an order?--_Ans. We should not hesitate to give him
Revely._”

“_Re-Cross-Question 1._ Would you not deliver to a party five
thousand pounds of Revely tin, upon a contract for Banca tin,
if you had never known them to buy such a quantity of any kind
but Revely or Straits, if you had repeatedly sold them Revely
or Straits acceptably, and you considered the tin was to be
used for castings?--_Ans. I should._”

3. The _usage at the Navy Yard_ was in harmony with commercial usage, as the testimony abundantly shows. For _at least seven years_ previous to the contract of the respondents, the tin known as Revely had been received at the yard as Banca. Edward Cody, witness for the prosecution, and the master founder, on cross-examination, puts this beyond question.

“_Cross-Question 4._ During these seven years [past], has not
the Revely tin been the standard article in use in your bureau
or foundry?--_Ans. It has._”

“_Cross-Question 11._ If you had been inquired of by them
[Smith Brothers & Co.] what kind of tin you required, what
would have been your reply?--_Ans. I should have had the same
as I have had._

“_Cross-Question 12._ What is that?--_Ans. Revely._”

Another witness, the Hon. Eugene L. Norton, the Navy Agent at Boston, testifies, that, having occasion to buy tin on a requisition from the Ordnance Office, he sent to inquire of Captain Green, the Ordnance Officer, what brand was required. The answer was, “that, in all cases where it was foundry work, Revely or Straits would be the kind that would be received; that, in those cases where it was wanted in small quantities, for solder, Banca would be preferred, as Revely or Straits was somewhat cheaper than Banca.” And he added, that the quantity named in the requisition, as a ton, or a pig, would indicate the kind he should buy. Add to the testimony of these two witnesses the undisputed fact, that, when, in May, 1863, C. W. Schofield, being under contract to deliver five thousand pounds of Banca, failed to perform his contract, the Government, although entitled to purchase the desired article in open market at his expense, _bought Revely_. Here was a practical interpretation of the contract, which establishes the usage of the Navy Yard.

4. The _openness of the transaction_ and of the delivery testify also to the _usage_. The tin, when delivered, was stamped upon its face “Revely & Co.” This stamp, which was open to the observation of all officers, workmen, and passers-by, is an incontrovertible witness, which no argument of counsel or ingenious commentary can neutralize. Calmly, but unanswerably, it shows two things: first, the usage at the Navy Yard; and, secondly, the good faith of the transaction. But I refer to it now simply to illustrate the usage.

5. Then comes _the acceptance of the tin_ marked as Revely, and the approval of the bills by the officers of the Government, in performance of the contract. It is not denied that the tin was accepted by Mr. Merriam, the master machinist at the Navy Yard, and that the bills were approved by Mr. Kimball, the inspecting officer of Government,--an inspector who is said to have been unfriendly to the respondents. This double fact is beyond question. An attempt is made to throw doubt on the integrity of one of these witnesses, by charging complicity; but it does not appear that there is a scrap of evidence in the record to sustain the imputation, and I need not say it is outrageous to imagine it, in order to increase the pressure upon the respondents. Mr. Merriam, in his testimony, says: “I was influenced, undoubtedly, _from my knowledge of the practice which had existed heretofore_, and also from my belief that the article answered every purpose in the department which Banca tin was required for. _The previous practice of the department_, of which I had been informed, in addition to my own judgment _as to the substantial equality of the articles_, were reasons for my approving the bill.” Nothing could be more explicit or reasonable.

The report adopted by the Secretary of the Navy seeks to parry the force of this approval by the allegation, that “there is not a particle of proof on the record that any one of the officers or other persons employed at the Navy Yard, or in the transaction of its business, had ever received from the Government any sort of authority to make such inspection, approval, and payment as appears in the case.” The report forgets _the usage of seven years_ at the Navy Yard, and _the commercial usage_ besides, which were ample to justify them.

6. As it is evident that the Government did not expect to receive other than Revely, so it is proved that _the respondents never expected to supply other than Revely_, unless in cases of small quantities, where, as we have seen, the Banca was supposed to be desired. Such is the testimony of Benjamin G. Smith, one of the respondents, and also of Mr. Dunnells, their clerk. The latter states, that his instructions from the respondents were to deliver Banca when small lots were required, but Revely when large lots of one thousand pounds and upwards were required, and that, as far as his knowledge went, this had always been done. Therefore the contract was performed according to _the mutual understanding of the two parties_.

7. _The price_, according to the contract, shows that the tin called Revely was intended. This can be demonstrated.

At the date of the contract, 30th March, 1863, the price of Banca in the market was fifty-seven to fifty-eight cents a pound. Revely was less. The price stipulated in the contract was fifty-seven cents. But it is plain that the respondents could not undertake to supply an article at less than its market price. This would be absurd. Of course, as merchants, they expected a profit. Therefore, in their bid, they would naturally take into consideration the various elements which would enter into the final price. These would be, first, the original price; secondly, the commission; thirdly, the condition of the currency, which at that time had begun to depreciate; fourthly, the variation of the market for a month; fifthly, store expenses and interest; sixthly, postponement of payment; and, seventhly, risks of a contractor in placing himself within the unhesitating grasp of military power. So far as these can be estimated, they are as follows:--

Original price .52
Store expenses and interest at 5 per cent .0260
-----
.5460
Commission at 5 per cent .0273
-----
.5733

But the price was fifty-seven cents.

Now can any person, not to say any merchant, assert that fifty-seven cents a pound was a high price for the tin called Revely? Would anybody but a fool offer to supply the tin which in this prosecution is called Banca at fifty-seven cents a pound, when its original price was more than this, and the contractor must lose store expenses and interest, with the risks of currency, market, postponement of payment, and military tribunals, without the possibility of a mill for commissions? Clearly not. It is evident, therefore, that, in offering to supply Banca tin at fifty-seven cents a pound, they must have intended that species of Banca tin known as Revely, which, according to the usage of the Navy Yard and of merchants, had been recognized as Banca tin.

On this point we have the testimony of Mr. Richards, a witness for the Government, whose cross-examination thus confirms the foregoing conclusion.

“_Cross-Question 37._ What would it be worth to give a party
the refusal for, say, five thousand pounds of tin for twenty or
thirty days?--_Ans. At least fifteen per cent._”

“_Cross-Question 44._ During the year 1863, how much, in
addition to the cash market price, would you have considered
should be added for a refusal of thirty days?--_Ans. From, ten
to fifteen per cent._

“_Cross-Question 45._ Tin being sold to us at fifty and
three-fourths cents net cash in the market, would fifty-seven
cents be an improper sum for us to charge the Government on a
time refusal?--_Ans. I should think not._

“_Cross-Question 46._ If you were to be subject to a delay of
vouchers for merchandise delivered for thirty days, if there
should be a reservation of twenty per cent until the contract
was closed, and if then you were liable to be compelled to
receive certificates of indebtedness that would not sell in
the market at par, what, in addition to the cash market price,
would you consider should be added?--_Ans. From five to ten per
cent, I should think._”

“_Cross-Question 50._ Upon a Government contract, to run three
months or one year, with a reservation of twenty per cent, a
bid being made which amounts to a refusal for twenty or thirty
days, and subject to terms of Government payment, what would
you consider a fair addition to the cash market price on a sale
to the Government?--_Ans. At least ten per cent._”

“_Cross-Question 52._ Among Boston merchants what is the
character of the house of Smith Brothers & Co. for integrity
and fair dealing?--_Ans. A No. 1._”