Chapter II: Section 1: That the right to vote, to be voted for, and to (1)

hold office shall not be denied or abridged anywhere in the
United States, under any pretence of race or color; and
all provisions in any State Constitutions, or in any laws,
State, Territorial, or Municipal, inconsistent herewith,
are hereby declared null and void.

SEC. 2. That any person, who, under any pretence of race or
color, wilfully hinders or attempts to hinder any citizen
of the United States from being registered, or from voting,
or from being voted for, or from holding office, or who
attempts by menaces to deter any such citizen from the
exercise or enjoyment of the rights of citizenship above
mentioned, shall be punished by a fine not less than one
hundred dollars nor more than three thousand dollars, or by
imprisonment in the common jail for not less than thirty
days nor more than one year.

SEC. 3. That every person legally engaged in preparing
a register of voters, or in holding or conducting an
election, who wilfully refuses to register the name or to
receive, count, return, or otherwise give the proper legal
effect to the vote of any citizen, under any pretence of
race or color, shall be punished by a fine not less than
five hundred dollars nor more than four thousand dollars,
or by imprisonment in the common jail for not less than
three calendar months nor more than two years.

SEC. 4. That the District Courts of the United States
shall have exclusive jurisdiction of all offences against
this Act; and the district attorneys, marshals, and deputy
marshals, the commissioners appointed by the Circuit and
Territorial Courts of the United States, with powers of
arresting, imprisoning, or bailing offenders, and every
other officer specially empowered by the President of the
United States, shall be, and they are hereby, required, at
the expense of the United States, to institute proceedings
against any person who violates this Act, and cause him to
be arrested and imprisoned or bailed, as the case may be,
for trial before such court as by this Act has cognizance
of the offence.

SEC. 5. That every citizen unlawfully deprived of any of
the rights of citizenship secured by this Act, under any
pretence of race or color, may maintain a suit against
any person so depriving him, and recover damages in the
District Court of the United States for the district in
which such person may be found.

On this he spoke as follows:--

MR. PRESIDENT,--In the construction of a machine the good mechanic seeks the simplest process, producing the desired result with the greatest economy of time and force. I know no better rule for Congress on the present occasion. We are mechanics, and the machine we are constructing has for its object the conservation of Equal Rights. Surely, if we are wise, we shall seek the simplest process, producing the desired result with the greatest economy of time and force. How widely Senators are departing from this rule will appear before I have done.

* * * * *

Rarely have I entered upon any debate in this Chamber with a sense of sadness so heavy as oppresses me at this moment. It was sad enough to meet the champions of Slavery, as in other days they openly vindicated the monstrous pretension and claimed for it the safeguard of the Constitution, insisting that Slavery was national and Freedom sectional. But this was not so sad as now, after a bloody war with Slavery, and its defeat on the battle-field, to meet the champions of a kindred pretension, for which they claim the safeguard of the Constitution, insisting also, as in the case of Slavery, upon State Rights. The familiar vindication of Slavery in those early debates was less sickening than the vindication now of the intolerable pretension, that a State, constituting part of the Nation, and calling itself “Republican,” is entitled to shut out any citizen from participation in government simply on account of race or color. To denominate such pretension as intolerable expresses very inadequately the extent of its absurdity, and the utterness of its repugnance to all good principles, whether of reason, morals, or government.

I make no question with individual Senators; I make no personal allusion; but I meet the odious imposture, as I met the earlier imposture, with indignation and contempt, naturally excited by anything unworthy of this Chamber and unworthy of the Republic. How it can enter here and find Senators willing to assume the stigma of its championship is more than I can comprehend. Nobody ever vindicated Slavery, who did not lay up a store of regret for himself and his children; and permit me to say now, nobody can vindicate Inequality and Caste, whether civil or political, the direct offspring of Slavery, as intrenched in the Constitution, beyond the reach of national prohibition, without laying up a similar store of regret. Death may happily come to remove the champion from the judgment of the world; but History will make its faithful record, to be read with sorrow hereafter. Do not complain, if I speak strongly. The occasion requires it. I seek to save the Senate from participation in an irrational and degrading pretension.

Others may be cool and indifferent; but I have warred with Slavery too long, in all its different forms, not to be aroused when this old enemy shows its head under an _alias_. Once it was Slavery; now it is Caste; and the same excuse is assigned now as then. In the name of State Rights, Slavery, with all its brood of wrong, was upheld; and now, in the name of State Rights, Caste, fruitful also in wrong, is upheld. The old champions reappear under other names and from other States, each crying out, that, under the National Constitution, notwithstanding even its supplementary Amendments, a State may, if it pleases, deny political rights on account of race or color, and thus establish that vilest institution, a Caste and an Oligarchy of the Skin.

This perversity, which to careless observation seems so incomprehensible, is easily understood, when it is considered that the present generation grew up under an interpretation of the National Constitution supplied by the upholders of Slavery. State Rights were exalted and the Nation was humbled, because in this way Slavery might be protected. Anything for Slavery was constitutional. Such was the lesson we were taught. How often I have heard it! How often it has sounded through this Chamber, and been proclaimed in speech and law! Under its influence the Right of Petition was denied, the atrocious Fugitive Slave Bill was enacted, and the claim was advanced that Slavery travelled with the flag of the Republic. Vain are all our victories, if this terrible rule is not reversed, so that State Rights shall yield to Human Rights, and the Nation be exalted as the bulwark of all. This will be the crowning victory of the war. Beyond all question, the true rule under the National Constitution, especially since its additional Amendments, is, that _anything for Human Rights is constitutional_. Yes, Sir; against the old rule, _Anything for Slavery_, I put the new rule, _Anything for Human Rights_.

* * * * *

Sir, I do not declare this rule hastily, and I know the presence in which I speak. I am surrounded by lawyers, and now I challenge any one or all to this debate. I invoke the discussion. On an occasion less important, Mr. Pitt, afterwards Lord Chatham, after saying that he came not “with the statute-book doubled down in dog’s-ears to defend the cause of Liberty,” that he relied on “a general principle, a constitutional principle,” exclaimed: “It is a ground on which I stand firm, on which I dare meet any man.”[42] In the same spirit I would speak now. No learning in books, no skill acquired in courts, no sharpness of forensic dialectics, no cunning in splitting hairs can impair the vigor of the constitutional principle which I announce. Whatever you enact for Human Rights is constitutional. There can be no State Rights against Human Rights; and this is the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding.

A State exercises its proper function, when, within its own jurisdiction, it administers local law, watches local interests, promotes local charities, and by local knowledge brings the guardianship of Government to the home of the citizen. Such is the proper function of the State, by which we are saved from that centralization elsewhere so absorbing. But a State transcends its proper function, when it interferes with those Equal Rights, whether civil or political, which by the Declaration of Independence and repeated texts of the National Constitution are under the safeguard of the Nation. The State is local in character, and not universal. Whatever is justly local belongs to its cognizance; whatever is universal belongs to the Nation. But what can be more universal than the Rights of Man? They are for “all men,”--not for all white men, but for all men. Such they have been declared by our fathers, and this axiom of Liberty nobody can dispute.

* * * * *

Listening to the champions of Caste and Oligarchy under the National Constitution, and perusing their writings, I think I understand the position they take. With as much calmness as I can command, I note what they have to say in speech and in print. I know it all. I do not err, when I say that this whole terrible and ignominious pretension is traced to direct and barefaced perversion of the National Constitution. Search history, study constitutions, examine laws, and you will find no perversion more thoroughly revolting. By the National Constitution it is provided, that “the electors in each State shall have the _qualifications_ requisite for electors of the most numerous branch of the State Legislature,”--thus seeming to refer the primary determination of what are called “qualifications” to the States; and this is reinforced by the further provision, that “the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such _regulations_.” This is all On these simple texts, conferring plain and intelligible powers, the champions insist that “color” may be made a “qualification,” and that under the guise of “regulations” citizens whose only offence is a skin not colored like our own may be shut out from political rights,--and that in this way a monopoly of rights, being at once a Caste and an Oligarchy of the Skin, is placed under the safeguard of the National Constitution. Such is the case of the champions; this is their stock-in-trade. With all their learning, all their subtlety, all their sharpness, this is what they have to say in behalf of an infamous pretension under the National Constitution. Everything from them begins and ends in a perversion of two words,--“qualifications” and “regulations.”

Now to this perversion I oppose point-blank denial. These two words are not justly susceptible of any such signification, especially in a National Constitution, which is to be interpreted always so that Human Rights shall not suffer. I do not stop now for dictionaries. The case is too plain. A “qualification” is something that can be acquired. A man is familiarly said to “qualify” for an office. Nothing can be a “qualification” which is not in its nature attainable,--as residence, property, education, or character, each of which is within the possible reach of well-directed effort. Color cannot be a “qualification.” If the prescribed “qualification” were color of the hair or color of the eyes, all would see its absurdity; but it is none the less absurd, when it is color of the skin. Here is an unchangeable condition, impressed by Providence. Are we not reminded that the leopard cannot change his spots, or the Ethiopian his skin? These are two examples of enduring conditions. Color is a quality from Nature. But a “quality” is very different from a “qualification.” A quality inherent in man and part of himself can never be a “qualification” in the sense of the National Constitution. On other occasions I have cited authorities,[43] and shown how this attempt to foist into the National Constitution a pernicious meaning is in defiance of all approved definition, as it is plainly repugnant to reason, justice, and common sense.

The same judgment must be pronounced on the attempt to found this outrage upon the power to make “regulations,”--as if this word had not a limited signification which renders such a pretension impossible. “Regulations” are nothing but rules applicable to a given matter; they concern the manner in which a business shall be conducted, and, when used with regard to elections, are applicable to what may be called incidents, in contradistinction to the principal, which is nothing less than the right to vote. A power to regulate is not a power to destroy or to disfranchise. In an evil hour Human Rights may be struck down, but it cannot be merely by “regulations.” The pretension that under such authority this great wrong may be done is another illustration of that extravagance which the champions do not shrink from avowing.

The whole structure of Caste and Oligarchy, as founded on two words, may be dismissed. It is hard even to think of it without impatience, to speak of it without denouncing it as unworthy of human head or human heart. There are honorable Senators who shrink from any direct argument on these two words, and, wrapping themselves in pleonastic phrase, content themselves with the general assertion, that power over suffrage belongs to the States. But they cannot maintain this conclusion without founding on these two words,--insisting that color may be a “qualification,” and that under the narrow power to make “regulations” a race may be broadly disfranchised. To this wretched pretension are they driven. And now, if there be any such within the sound of my voice, I ask the question directly,--Can “color,” whether of hair, eyes, or skin, be a “qualification” under our National Constitution? under the pretence of making “regulations” of elections, can a race be disfranchised? With all the power derived from both these words, can any State undertake to establish a Caste and organize an Oligarchy of the Skin? To put these questions is to answer them.

* * * * *

Such is the case as presented by the champions. But looking at the National Constitution, we shall be astonished still more at this pretension. On other occasions I have gone over the whole case of Human Rights vs. State Rights under the National Constitution. For the present I content myself with allusions only to the principal points.

It is under the National Constitution that the champions set up their pretension; therefore to the National Constitution I go. And I begin by appealing to the letter, which from beginning to end does not contain one word recognizing “color.” Its letter is blameless; and its spirit is not less so. Surely a power to disfranchise for color must find some sanction in the Constitution. There must be some word of clear intent under which this terrible prerogative can be exercised. This conclusion of reason is reinforced by the positive text of our Magna Charta, the Declaration of Independence, where it is expressly announced that all men are equal in rights, and that just government stands only on the consent of the governed. In the face of the National Constitution, interpreted, first by itself, and then by the Declaration of Independence, how can this pretension prevail?

But there are positive texts of the National Constitution, refulgent as the Capitol itself, which forbid it with sovereign, irresistible power, and invest Congress with all needful authority to maintain the prohibition.

There is that key-stone clause, by which it is expressly declared that “the United States shall guaranty to every State in this Union a republican form of government”; and Congress is empowered to enforce this guaranty. The definition of a republican government was solemnly announced by our fathers, first, in that great battle-cry which preceded the Revolution, “Taxation without representation is tyranny,” and, secondly, in the great Declaration at the birth of the Republic, that all men are equal in rights, and that just government stands only on the consent of the governed. A Republic is where taxation and representation go hand in hand, where all are equal in rights, and no man is excluded from participation in the government. Such is the definition of a republican government, which it is the duty of Congress to maintain. Here is a bountiful source of power, which cannot be called in question. In the execution of the guaranty Congress may--nay, must--require that there shall be no Inequality, Caste, or Oligarchy of the Skin.

I know well the arguments of the champions. They insist that the definition of a Republican Government is to be found in the State Constitutions at the adoption of the National Constitution; and as all these, except Massachusetts, recognized Slavery, they find that the denial of Human Rights is republican. But the champions forget that Slavery was regarded as a temporary exception,--that the slave, who was not represented, was not taxed,--that he was not part of the “body-politic,”--that the difference at that time was not between white and black, but between slave and freeman, precisely as in the days of Magna Charta,--that in most of the States all freemen, without distinction of color, were citizens,--and that, according to the history of the times, there was no State which ventured to announce in its Constitution a discrimination founded on color, except Virginia, Georgia, and South Carolina,--this last the persevering enemy of republican government for successive generations; so that, if we look at the State Constitutions, we find that they also testify to the true definition.

There are words of authority which the champions forget also. They forget Magna Charta, that great title-deed called “the most august diploma and sacred anchor of English liberties,” where, after declaring that “there shall be but _one measure_ throughout the realm,”[44] it is announced in memorable words, that “_no freeman_ shall be disseized of his freehold or liberties but by legal judgment of his peers or by the law of the land,”[45] meaning, of course, the law of the whole land, _in contradistinction to any local law_. The words with which this great guaranty begin still resound: _Nullus liber homo_, “No freeman,” shall be denied the liberties which belong to freemen.

The champions also forget that “The Federalist,” in commending the Constitution, at the time of its adoption, insisted, that, if the slaves became free, they would be entitled to representation. I have quoted the potent words before,[46] and now I quote them again:--

“It is only under the pretext that the laws have transformed
the negroes into subjects of property, that a place is denied
to them in the computation of numbers; and it is admitted,
that, if the laws were to restore the rights which have been
taken away, the negroes could no longer be refused an equal
share of representation with the other inhabitants.”[47]

The champions also forget, that, in the debates on the ratification of the National Constitution, it was charged by its opponents, and admitted by its friends, that Congress was empowered to correct any inequality of suffrage. I content myself with quoting the weighty words of Madison in the Virginia Convention:--

“Some States might regulate the elections on the principles of
_Equality_, and others might regulate them otherwise.… Should
the people of any State by any means be deprived of the right
of suffrage, _it was judged proper that it should be remedied
by the General Government_.… If the elections be regulated
properly by the State Legislatures, the Congressional control
will very probably never be exercised. The power appears to me
satisfactory, and as unlikely to be abused as any part of the
Constitution.”[48]

The champions also forget that Chief Justice Taney, in that very Dred Scott decision where it was ruled that a person of African descent could not be a citizen of the United States, admitted, that, if he were once a citizen, that is, if he were once admitted to be a component part of the body-politic, he would be entitled to the equal privileges of citizenship. Here are some of his emphatic words:--

“There is not, it is believed, to be found in the theories of
writers on Government, or in any actual experiment heretofore
tried, an exposition of the term _citizen_ which has not been
understood as conferring _the actual possession and enjoyment,
or the perfect right of acquisition and enjoyment, of an entire
equality of privileges, civil and political_.”[49]

Thus from every authority, early and late,--from Magna Charta, wrung out of King John at Runnymede,--from Hamilton, writing in “The Federalist,”--from Madison, speaking in the Convention at Richmond,--from Taney, presiding in the Supreme Court of the United States,--is there one harmonious testimony to the equal rights of citizenship.

If in the original text of the Constitution there could be any doubt, it was all relieved by the Amendment abolishing Slavery and empowering Congress to enforce this provision. Already Congress, in the exercise of this power, has passed a _Civil Rights Act_. It only remains that it should now pass a _Political Rights Act_, which, like the former, shall help consummate the abolition of Slavery. According to a familiar rule of interpretation, expounded by Chief Justice Marshall in his most masterly judgment, Congress, when intrusted with any power, is at liberty to select the “means” for its execution.[50] The Civil Rights Act came under the head of “means” selected by Congress, and a Political Rights Act will have the same authority. You may as well deny the constitutionality of the one as of the other.

The Amendment abolishing Slavery has been reinforced by another, known as Article XIV., which declares peremptorily that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” and again Congress is empowered to enforce this provision. What can be broader? Colored persons are citizens of the United States, and no State can abridge their privileges or immunities. It is a mockery to say, that, under these explicit words, Congress is powerless to forbid any discrimination of color at the ballot-box. Why, then, were they inscribed in the Constitution? To what end? There they stand, supplying additional and supernumerary power, ample for safeguard against Caste or Oligarchy of the Skin, no matter how strongly sanctioned by any State Government.

But the champions, anxious for State Rights against Human Rights, strive to parry this positive text, by insisting, that, in another provision of this same Amendment, the power over the right to vote is conceded to the States. Mark, now, the audacity and fragility of this pretext. It is true, that, “when the right to vote … is denied to any of the male inhabitants of a State, … or in any way abridged, except for participation in rebellion or other crime,” the basis of representation is reduced in corresponding proportion. Such is the penalty imposed by the Constitution on a State which denies the right to vote, except in a specific case. But this penalty on the State does not in any way, by the most distant implication, impair the plenary powers of Congress to enforce the guaranty of a republican government, the abolition of Slavery, and that final clause guarding the rights of citizens,--three specific powers which are left undisturbed, unless the old spirit of Slavery is once more revived, and Congress is compelled again to wear those degrading chains which for so long a time rendered it powerless for Human Rights.

The pretension, that the powers of Congress, derived from the Constitution and its supplementary texts, were all foreclosed, and that the definition of a republican government was dishonored, merely by the indirect operation of the clause imposing a penalty upon a State, is the last effort of the champions. They are driven to the assumption, that all these beneficent powers have been taken away by indirection, and that a provision evidently temporary and limited can have this overwhelming consequence. They set up a technical rule of law, “_Expressio unius est exclusio alterius_.” It is impossible to see the application of this technicality. Because the basis of representation is reduced in proportion to any denial of the right to vote, therefore, it is argued, the denial of the right to vote is placed beyond the reach of Congress, notwithstanding all its plenary powers from so many sources. It is enough to say of this conclusion, that it is as strong as anything founded on the “argal” of the grave-digger in “Hamlet.” Really, Sir, it is too bad that so great a cause should be treated with such levity.

* * * * *

Mr. President, I make haste to the conclusion. Unwilling to protract this debate, I open the question in glimpses only. Even in this imperfect way, it is clearly seen, first, that there is nothing, absolutely nothing, in the National Constitution to sustain the pretension of Caste or Oligarchy of the Skin, as set up by certain States,--and, secondly, that there is in the National Constitution a succession and reduplication of powers investing Congress with ample authority to repress any such pretension. In this conclusion, I raise no question on the power of States to regulate the suffrage; I do not ask Congress to undertake any such regulation. I simply propose, that, under the pretence of regulating the suffrage, States shall not exercise a prerogative hostile to Human Rights, without any authority under the National Constitution, and in defiance of its positive texts.

* * * * *

I am now brought directly to the proposed Amendment of the Constitution. Of course, the question stares us in the face, Why amend what is already sufficient? Why erect a supernumerary column?

So far as I know, two reasons are assigned. The first is, that the power of Congress is doubtful. It is natural that those who do not sympathize strongly with the Equal Rights of All should doubt. Men ordinarily find in the Constitution what is in themselves; so that the Constitution in its meaning is little more than a reflection of their own inner nature. As I am unable to find any ground of doubt, in substance or even in shadow, I shrink from a proposition which assumes that there is doubt. To my mind the power is too clear for question. As well question the obligation of Congress to guaranty a republican form of government, or the abolition of Slavery, or the prohibition upon States to interfere with the rights and privileges of citizenship, each of which is beyond question.

Another reason assigned for a Constitutional Amendment is, its permanent character in comparison with an Act of Congress, which may be repealed. On this head I have no anxiety. Let this beneficent prohibition once find place in our statute-book, and it will be lasting as the National Constitution itself, to which it will be only a legitimate corollary. In harmony with the Declaration of Independence, and in harmony with the National Constitution, it will become of equal significance, and no profane hand will touch its sacred text. It will never be repealed. The elective franchise, once recognized, can never be denied,--once conferred, can never be resumed. The rule of Equal Rights, once applied by Congress under the National Constitution, will be a permanent institution as long as the Republic endures; for it will be a vital part of that Republican Government to which the nation is pledged.

Dismissing the reasons for the Amendment, I turn to those which make us hesitate. There are two. The Amendment admits, that, under the National Constitution as it is, with its recent additions, a Caste and an Oligarchy of the Skin may be set up by a State without any check from Congress; that these ignoble forms of inequality are consistent with republican government; and that the right to vote is not an existing privilege and immunity of citizenship. All this is plainly admitted by the proposed Amendment,--thus despoiling Congress of beneficent powers, and emasculating the National Constitution itself. It is only with infinite reluctance that I consent to any such admission, which, in the endeavor to satisfy ungenerous scruples, weakens all those texts which are so important for Human Rights.

The hesitation to present the Amendment is increased, when we consider the difficulties in the way of its ratification. I am no arithmetician, but I understand that nobody has yet been able to enumerate the States whose votes can be counted on to assure its ratification within any reasonable time. Meanwhile this great question, which cannot brook delay, which for the sake of peace and to complete Reconstruction should be settled at once, is handed over to prolonged controversy in the States. I need not depict the evils which must ensue. A State will become for the time a political caldron, into which will be dropped all the poisoned ingredients of prejudice and hate, while a powerful political party, chanting, like the Witches in “Macbeth,”

“Double, double, toil and trouble;
Fire, burn; and, caldron, bubble,”

will use this very Amendment as the pudding-stick with which to stir the bubbling mass. Such a controversy should be avoided, if possible; nor should an agitation so unwelcome and so sterile be needlessly invited. “Let us have peace.”

Of course, if there were no other way of accomplishing the great result, the Amendment should be presented, even with all its delays, uncertainties, and provocations to local strife. But happily all these are unnecessary. The same thing may be accomplished by Act of Congress, without any delay, without any uncertainty, and without any provocation to local strife. The same vote of two thirds required for the presentation of the Amendment will pass the Act over the veto of the President. Once adopted, it will go into instant operation, without waiting for the uncertain concurrence of State Legislatures, and without provoking local strife so wearisome to the country. The States will not be turned into political caldrons, and the Democratic party will have no pudding-stick with which to stir the bubbling mass.

I do not depart from the proprieties of this occasion, when I show how completely the course I now propose harmonizes with the requirements of the political party to which I belong. Believing most sincerely that the Republican party, in its objects, is identical with country and with mankind, so that in sustaining it I sustain these comprehensive charities, I cannot willingly see this agency lose the opportunity of confirming its supremacy. You need votes in Connecticut, do you not? There are three thousand fellow-citizens in that State ready at the call of Congress to take their place at the ballot-box. You need them also in Pennsylvania, do you not? There are at least fifteen thousand in that great State waiting for your summons. Wherever you most need them, there they are; and be assured they will all vote for those who stand by them in the assertion of Equal Rights. In standing by them you stand by all that is most dear in the Republic.

Pardon me,--but, if you are not moved by considerations of justice under the Constitution, then I appeal to that humbler motive which is found in the desire for success. Do this and you will assure the triumph of all that you can most desire. Party, country, mankind, will be elevated, while the Equal Rights of All will be fixed on a foundation not less enduring than the Rock of Ages.

The bill offered by Mr. Sumner as a substitute for the original
joint resolution was rejected; and the latter, embodying the
proposed Amendment to the Constitution, failed for want of the
requisite two-thirds of the votes cast,--these standing, Yeas
31, Nays 27.

CLAIMS ON ENGLAND,--INDIVIDUAL AND NATIONAL.

SPEECH ON THE JOHNSON-CLARENDON TREATY, IN EXECUTIVE SESSION OF THE SENATE, APRIL 13, 1869.

MR. PRESIDENT,--A report recommending that the Senate do not advise and consent to a treaty with a foreign power, duly signed by the plenipotentiary of the nation, is of rare occurrence. Treaties are often reported with amendments, and sometimes without any recommendation; but I do not recall an instance, since I came into the Senate, where such a treaty has been reported with the recommendation which is now under consideration. The character of the treaty seemed to justify the exceptional report. The Committee did not hesitate in the conclusion that it ought to be rejected, and they have said so.

I do not disguise the importance of this act; but I believe that in the interest of peace, which every one should have at heart, the treaty must be rejected. A treaty, which, instead of removing an existing grievance, leaves it for heart-burning and rancor, cannot be considered a settlement of pending questions between two nations. It may seem to settle them, but does not. It is nothing but a snare. And such is the character of the treaty now before us. The massive grievance under which our country suffered for years is left untouched; the painful sense of wrong planted in the national heart is allowed to remain. For all this there is not one word of regret, or even of recognition; nor is there any semblance of compensation. It cannot be for the interest of either party that such a treaty should be ratified. It cannot promote the interest of the United States, for we naturally seek justice as the foundation of a good understanding with Great Britain; nor can it promote the interest of Great Britain, which must also seek a real settlement of all pending questions. Surely I do not err, when I say that a wise statesmanship, whether on our side or on the other side, must apply itself to find the real root of evil, and then, with courage tempered by candor and moderation, see that it is extirpated. This is for the interest of both parties, and anything short of it is a failure. It is sufficient to say that the present treaty does no such thing, and that, whatever may have been the disposition of the negotiators, the real root of evil remains untouched in all its original strength.

I make these remarks merely to characterize the treaty and prepare the way for its consideration.

THE PENDING TREATY.

If we look at the negotiation which immediately preceded the treaty, we find little to commend. You have it on your table. I think I am not mistaken, when I say that it shows a haste which finds few precedents in diplomacy, but which is explained by the anxiety to reach a conclusion before the advent of a new Administration. Mr. Seward and Mr. Reverdy Johnson unite in this unprecedented activity, using the Atlantic cable freely. I should not object to haste, or to the freest use of the cable, if the result were such as could be approved; but, considering the character of the transaction, and how completely the treaty conceals the main cause of offence, it seems as if the honorable negotiators were engaged in huddling something out of sight.

The treaty has for its model the Claims Convention of 1853. To take such a convention as a model was a strange mistake. This convention was for the settlement of outstanding claims of American citizens on Great Britain, and of British subjects on the United States, which had arisen since the Treaty of Ghent in 1814. It concerned individuals only, and not the nation. It was not in any respect political; nor was it to remove any sense of national wrong. To take such a convention as the model for a treaty which was to determine a national grievance of transcendent importance in the relations of two countries marked on the threshold an insensibility to the true nature of the difference to be settled. At once it belittled the work to be done.

An inspection of the treaty shows how from beginning to end it is merely for the settlement of individual claims on both sides, putting the two batches on an equality, so that the sufferers by the misconduct of England may be counterbalanced by British blockade-runners. It opens with a preamble, which, instead of announcing the unprecedented question between the two countries, simply refers to individual claims that have arisen since 1853,--the last time of settlement,--some of which are still pending and remain unsettled. Who would believe that under these words of commonplace was concealed the unsettled difference which has already so deeply stirred the American people, and is destined, until finally adjusted, to occupy the attention of the civilized world? Nothing here gives notice of the real question. I quote the preamble, as it is the key-note to the treaty:--

“Whereas claims have at various times since the exchange of
the ratifications of the convention between Great Britain and
the United States of America, signed at London on the 8th of
February, 1853, been made upon the Government of her Britannic
Majesty on the part of citizens of the United States, and upon
the Government of the United States on the part of subjects of
her Britannic Majesty; and whereas _some of such claims are
still pending and remain unsettled_; her Majesty the Queen
of the United Kingdom of Great Britain and Ireland, and the
President of the United States of America, being of opinion
that a speedy and equitable settlement of all such claims will
contribute much to the maintenance of the friendly feelings
which subsist between the two countries, have resolved to make
arrangements for that purpose by means of a convention.”[51]

The provisions of the treaty are for the trial of these cases. A commission is constituted, which is empowered to choose an arbitrator; but, in the event of a failure to agree, the arbitrator shall be determined “by lot” from two persons, one named by each side. Even if this aleatory proceeding were a proper device in the umpirage of private claims, it is strangely inconsistent with the solemnity which belongs to the present question. The moral sense is disturbed by such a process at any stage of the trial; nor is it satisfied by the subsequent provision for the selection of a sovereign or head of a friendly state as arbitrator.

The treaty not merely makes no provision for the determination of the great question, but it seems to provide expressly that it shall never hereafter be presented. A petty provision for individual claims, subject to a set-off by the individual claims of England, so that in the end our country may possibly receive nothing, is the consideration for this strange surrender. I borrow a term from an English statesman on another occasion, if I call it a “capitulation.”[52] For the settlement of a few individual claims, we condone the original far-reaching and destructive wrong. Here are the plain words by which this is done:--

“The high contracting parties engage to consider the result
of the proceedings of this commission as a full and final
settlement of every claim upon either Government arising out
of any transaction of a date prior to the exchange of the
ratifications of the present convention; and further engage
that every such claim, whether or not the same may have been
presented to the notice of, made, preferred, or laid before the
said commission, shall, from and after the conclusion of the
proceedings of the said commission, be considered and treated
as finally settled and barred, and thenceforth inadmissible.”

All this I quote directly from the treaty. It is Article V. The national cause is handled as nothing more than a bundle of individual claims, and the result of the proceedings under the proposed treaty is to be “a full and final settlement,” so that hereafter all claims “shall be considered and treated as finally settled and barred, and thenceforth inadmissible.” Here is no provision for the real question, which, though thrust out of sight, or declared to be “finally settled and barred,” according to the terms of the treaty, must return to plague the two countries. Whatever the treaty may say in terms, there is no settlement in fact; and until this is made, there will be constant menace of discord. Nor can it be forgotten that there is no recognition of the rule of international duty applicable to such cases. This, too, is left unsettled.

While doing so little for us, the treaty makes ample provision for all known claims on the British side. As these are exclusively “individual,” they are completely covered by the text, which has no limitations or exceptions. Already it is announced in England that even those of “Confederate bondholders” are included. I have before me an English journal which describes the latter claims as founded on “immense quantities of cotton, worth at the time of their seizure nearly two shillings a pound, which were then in the legal possession of those bondholders”; and the same authority adds, “These claims will be brought, indifferently with others, before the designed joint commission, whenever it shall sit.” From another quarter I learn that these bondholders are “very sanguine of success _under the treaty as it is worded_, and certain it is that the loan went up from 0 to 10 as soon as it was ascertained that the treaty was signed.” I doubt if the American people are ready just now to provide for any such claims. That they have risen in the market is an argument against the treaty.

THE CASE AGAINST ENGLAND.

Passing from the treaty, I come now to consider briefly, but with proper precision, the true ground of complaint; and here again we shall see the constant inadequacy of the remedy now applied. It is with reluctance that I enter upon this statement, and I do it only in the discharge of a duty which cannot be postponed.

Close upon the outbreak of our troubles, little more than one month after the bombardment of Fort Sumter, when the Rebellion was still undeveloped, when the National Government was beginning those gigantic efforts which ended so triumphantly, the country was startled by the news that the British Government had intervened by a Proclamation which accorded belligerent rights to the Rebels. At the early date when this was done, the Rebels were, as they remained to the close, without ships on the ocean, without prize courts or other tribunal for the administration of justice on the ocean, _without any of those conditions which are the essential prerequisites to such a concession_; and yet the concession was general, being applicable to the ocean and the land, so that by British fiat they became ocean belligerents as well as land belligerents. In the swiftness of this bestowal there was very little consideration for a friendly power; nor does it appear that there was any inquiry into those _conditions-precedent_ on which it must depend. Ocean belligerency, being a “fact,” and not a “principle,” can be recognized only on evidence showing its _actual existence_, according to the rule first stated by Mr. Canning and afterward recognized by Lord John Russell.[53] But no such evidence was adduced; for it did not exist, and never has existed.

Too much stress cannot be laid upon the rule, that belligerency is a “fact,” and not a “principle.” It is perhaps the most important contribution to this discussion; and its original statement, on the occasion of the Greek Revolution, does honor to its author, unquestionably the brightest genius ever directed to this subject. According to this rule, belligerency must be proved to exist; it must be shown. It cannot be imagined, or divined, or invented; it must exist as a “fact” within the knowledge of the world, or at least as a “fact” susceptible of proof. Nor can it be inferred on the ocean merely from its existence on the land. From the beginning, when “God called the dry land Earth, and the gathering together of the waters called He Seas,” the two have been separate, and power over one has not necessarily implied power over the other. There is a dominion of the land, and a dominion of the ocean. But, whatever power the Rebels possessed on the land, they were always without power on the ocean. Admitting that they were belligerents on the land, they were never belligerents on the ocean.

“The oak leviathans, whose huge ribs make
Their clay creator the vain title take
Of lord of thee, _and arbiter of war_,”--

these they never possessed. Such was the “fact” that must govern the present question. The rule, so simple, plain, and intelligible, as stated by Mr. Canning, is a decisive touchstone of the British concession, which, when brought to it, is found to be without support.

Unfriendly in the precipitancy with which it was launched, this concession was more unfriendly in substance. It was the first stage in the depredations on our commerce. Had it not been made, no Rebel ship could have been built in England: every step in her building would have been piracy. Nor could any munitions of war have been furnished: not a blockade-runner, laden with supplies, could have left the English shores, except under a kindred penalty. The direct consequence of this concession was to place the Rebels on an equality with ourselves in all British markets, whether of ships or munitions of war. As these were open to the National Government, so they were open to the Rebels. The asserted neutrality between the two began by this tremendous concession, when the Rebels, at one stroke, were transformed not only into belligerents, but into customers.

In attributing to that bad Proclamation this peculiar influence I follow the authority of the Law Lords of England, who, according to authentic report, announced that without it the fitting out of a ship in England to cruise against the United States would have been an act of piracy. This conclusion was clearly stated by Lord Chelmsford, ex-Chancellor, speaking for himself and others, when he said: “If the Southern Confederacy had not been recognized by us as _a belligerent power_, he agreed with his noble and learned friend [Lord Brougham], that any Englishman aiding them by fitting out a privateer against the Federal Government _would be guilty of piracy_.”[54] This conclusion is only according to analogies of law. It is criminal for British subjects to forge bombs or hand-grenades to be employed in the assassination of a foreign sovereign at peace with England, as when Bernard supplied from England the missiles used by Orsini against the life of the French Emperor,--all of which is illustrated by Lord Chief-Justice Campbell, in his charge to the jury on the trial of Bernard, and also by contemporaneous opinions of Lord Lyndhurst, Lord Brougham, Lord Truro, and at an earlier day by Lord Ellenborough in a case of libel on the First Consul. That excellent authority, Sir George Cornewall Lewis, gives a summary drawn from all these opinions, when he says: “The obligation incumbent upon a state of preventing her soil from being used _as an arsenal_, in which the means of attack against a foreign government may be collected and prepared for use, is wholly independent of the form and character of that government.”[55] As every government is constrained by this rule, so every government is entitled to its safeguards. There can be no reason why the life of our Republic should be less sacred than the life of an Emperor, or should enjoy less protection from British law. That England became an “arsenal” for the Rebels we know; but this could not have been, unless the Proclamation had prepared the way.

The only justification that I have heard for this extraordinary concession, which unleashed upon our country the Furies of War to commingle with the Furies of Rebellion at home, is, that President Lincoln undertook to proclaim a _blockade_ of the Rebel ports. By the use of this word “blockade” the concession is vindicated. Had President Lincoln proclaimed a _closing_ of the Rebel ports, there could have been no such concession. This is a mere technicality; lawyers might call it an _apex juris_; and yet on this sharp point England hangs her defence. It is sufficient that in a great case like the present, where the correlative duties of a friendly power are in question, an act fraught with such portentous evil cannot be vindicated on a technicality. In this debate there is no room for technicality on either side. We must look at the substance, and find a reason in nothing short of overruling necessity. War cannot be justified merely on a technicality; nor can the concession of ocean belligerency to rebels without a port or prize court. Such a concession, like war itself, must be at the peril of the nation making it.

The British assumption, besides being offensive from mere technicality, is inconsistent with the Proclamation of the President, taken as a whole, which, while appointing a blockade, is careful to reserve the rights of sovereignty, thus putting foreign powers on their guard against any premature concession. After declaring an existing insurrection in certain States, and the obstruction of the laws for the collection of the revenue, as the motive for action, the President invokes not only the Law of Nations, but “the laws of the United States,” and, in further assertion of the national sovereignty, declares Rebel cruisers to be pirates.[56] Clearly the Proclamation must be taken as a whole, and its different provisions so interpreted as to harmonize with each other. If they cannot stand together, then it is the “blockade” which must be modified by the national sovereignty, and not the national sovereignty by the blockade. Such should have been the interpretation of a friendly power, especially when it is considered that there are numerous precedents of what the great German authority, Heffter, calls “Pacific Blockade,” or blockade without concession of ocean belligerency,--as in the case of France, England, and Russia against Turkey, 1827; France against Mexico, 1837-39; France and Great Britain against the Argentine Republic, 1838-48; Russia against the Circassians, 1831-36, illustrated by the seizure of the Vixen, so famous in diplomatic history.[57] Cases like these led Heffter to lay down the rule, that “_blockade_” does not necessarily constitute _a state of regular war_,[58] as was assumed by the British Proclamation, even in the face of positive words by President Lincoln asserting the national sovereignty and appealing to “the laws of the United States.” The existence of such cases was like a notice to the British Government against the concession so rashly made. It was an all-sufficient warning, which this power disregarded.

So far as is now known, the whole case for England is made to stand on the use of the word “Blockade” by President Lincoln. Had he used any other word, the concession of belligerency would have been without justification, even such as is now imagined. It was this word which, with magical might, opened the gates to all those bountiful supplies by which hostile expeditions were equipped against the United States: it opened the gates of war. Most appalling is it to think that one little word, unconsciously used by a trusting President, could be caught up by a friendly power and made to play such a part.

I may add that there is one other word often invoked for apology. It is “Neutrality,” which, it is said, was proclaimed between two belligerents. Nothing could be fairer, always provided that the “neutrality” proclaimed did not begin with a concession to one party without which this party would be powerless. Between two established Nations, both independent, as between Russia and France, there may be neutrality; for the two are already equal in rights, and the proclamation would be precisely equal in its operation. But where one party is an established Nation, and the other is nothing but an odious combination of Rebels, the proclamation is most unequal in operation; for it begins by a solemn investiture of Rebels with all the rights of war, saying to them, as was once said to the youthful knight, “Rise; here is a sword; use it.” To call such an investiture a proclamation of neutrality is a misnomer. It was a proclamation of equality between the National Government on the one side and Rebels on the other, and no plausible word can obscure this distinctive character.

Then came the building of the pirate ships, one after another. While the Alabama was still in the ship-yard, it became apparent that she was intended for the Rebels. Our Minister at London and our Consul at Liverpool exerted themselves for her arrest and detention. They were put off from day to day. On the 24th July, 1862, Mr. Adams “completed his evidence,” accompanied by an opinion from the eminent barrister, Mr. Collier, afterward Solicitor-General, declaring the plain duty of the British Government to stop her.[59] Instead of acting promptly by the telegraph, five days were allowed to run out, when at last, too tardily, the necessary order was dispatched. Meanwhile the pirate ship escaped from the port of Liverpool by a stratagem, and her voyage began with music and frolic. Here, beyond all question, was negligence, or, according to the language of Lord Brougham on another occasion, “crass negligence,” making England justly responsible for all that ensued.