The Project Gutenberg eBook, Charles Sumner; His Complete Works, Volume XI (of 20), by Charles Sumner

WENDELL PHILLIPS

F. T. Stuart, Boston

Charles Sumner; his complete works, volume 11 (of 20)

Copyright, 1873 and 1874,
BY
CHARLES SUMNER.

Copyright, 1900,
BY
LEE AND SHEPARD.

Statesman Edition.

Limited to One Thousand Copies.

Of which this is

Norwood Press
Norwood, Mass., U.S.A.

CONTENTS OF VOLUME XI.

EXCLUSION OF WITNESSES ON ACCOUNT OF COLOR.

Report, in the Senate, of the Committee on Slavery and Freedmen, February 29, 1864.

February 8, 1864, on the day of introducing his Amendment of the Constitution, declaring that “all persons are equal before the law,” Mr. Sumner asked, and by unanimous consent obtained, leave to bring in a bill to secure equality before the law in the courts of the United States, which was read the first and second times by unanimous consent, and, on his motion, referred to the Committee on Slavery and Freedmen. This was in harmony with other efforts on an earlier day.[1] February 29th, he reported the bill to the Senate without amendment, accompanied by the following report, of which three thousand extra copies were ordered to be printed for the use of the Senate. The success of this measure appears at a later date.[2]

The Committee on Slavery and the Treatment of Freedmen, to whom was referred Senate Bill (No. 99) entitled “A Bill to secure equality before the law in the courts of the United States,” have had the same under consideration, and ask leave to report.

Before making a change in our laws, it is important to consider the nature and extent of what is proposed; especially is this the case, if the change will be far-reaching in influence. Therefore the Committee have thought best, in proposing to prohibit all exclusion of colored testimony in the courts of the United States, to exhibit with some particularity the considerations bearing on the subject.

EXCLUSION OF COLORED TESTIMONY RECOGNIZED BY CONGRESS.

Congress has never, in formal words, declared that witnesses in the courts of the United States shall be incompetent to testify on account of color. The abuse has arisen indirectly. But it is none the less fastened upon the national jurisprudence. By Act of July 16, 1862, it was provided “that the laws of the State in which the court shall be held shall be the rules of decision as to the competency of witnesses in the courts of the United States, in trials at Common Law, in Equity, and Admiralty.”[3] And this rule, thus authoritatively declared, had been practically recognized by the courts of the United States from the beginning of the Government. It appears from the Judiciary Act of 1789, under which the national courts were organized, that jurors in these courts “shall have the same qualifications as are requisite for jurors by the laws of the State of which they are citizens”; and still further, “that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at Common Law in the courts of the United States, in cases where they apply.”[4] Under these injunctions it was very easy, if not natural, for the national courts to adopt the law of evidence in the States where they were respectively held; and thus the incapacity of colored testimony in those States where it prevailed became a rule of evidence in the national tribunals.

It is plain that such a system made the administration of justice differ in different States. The same statute might be successfully administered in a State where there was no exclusion of colored testimony, and miserably fail in another State where such exclusion prevailed; and the same judge might be called in one court to admit the testimony, and in another court to reject it. But the least objection to this system is its want of uniformity. In lending the sanction of the United States, even indirectly, to an exclusion founded on color, all the people have been made parties to injustice.

To appreciate the true character of this proscription, we must repair to the Slave States, where it is declared, and consider it in the very language, legislative and judicial, by which it is maintained, not neglecting the eccentricities of judicial opinion by which it has been illustrated. From the statement of the rule its consequences will become apparent. It may be proper afterwards to glance at the associate examples of history, and also to endeavor to comprehend the reasons on which the proscription has been vindicated.

EXCLUSION OF COLORED TESTIMONY IN THE SLAVE STATES.

The Committee begin with the statutes of the States where this proscription prevails. Each State will be considered by itself.

(1.) In Delaware the rule assumes its mildest form, yet even there it is indefensible. It has been expressed by Chief Justice Bayard, who, in an opinion of the court, said: “On the introduction of Negro Slavery into this country, it became a settled rule of law that slaves should not be suffered to give evidence in any matter, civil or criminal, affecting the rights of a white man.”[5] In this spirit the Revised Code of Delaware has provided that “to give evidence against any white person” is one of the “rights of a freeman.”[6] But the rule is thus applied: “In criminal prosecutions, a free negro, or free mulatto, if otherwise competent, may testify, if it shall appear to the court that no competent white witness was present at the time the fact charged is alleged to have been committed, or that a white witness, being so present, has since died, or is absent from the State, and cannot be produced: Provided, that no free negro or free mulatto shall be admitted as a witness to charge a white man with being the father of a bastard child.”[7] With this exception, the free negro or mulatto is disqualified as a witness against a white person.[8] But colored testimony is admissible in a case between colored persons, or against a colored person where the other party is white.[9]

The subtilties in the application of this rule appear in a decided case, where one of three accomplices was indicted for kidnapping a colored boy. The latter was opposed as a witness, on the ground that a competent white witness, an accomplice who had not been indicted, might be produced. But the court, considering that the statute was originally enacted to remedy injustice to free persons of color, construed it liberally, and admitted the testimony of the colored boy, on the ground that the commission of an offence by two or more persons ought not to render a witness incompetent, who would be competent, if the offence had been committed by only one person. It was further said, that the statute, when it speaks of a competent white witness, means not merely his competency in the common sense of the term, but the sufficiency of his evidence under ordinary circumstances to produce conviction,—although a jury was directed to acquit the prisoner, unless part of the accomplice’s testimony was confirmed by unimpeachable evidence.[10] In another case, where two white witnesses, not accomplices, were present at an assault, the court at first excluded the testimony of the colored person; but when it afterwards appeared that one of them was drunk and the other did not see the whole transaction, although both knew that a blow was struck, the testimony of the colored person was admitted.[11]

Still further, it has been declared in Delaware, that, on indictment of a white man for kidnapping a free colored person, the latter is not competent to prove his freedom.[12] So, also, in an action against a stage-coach proprietor for aiding in the escape of a slave, the admission of the latter that he is slave of the plaintiff cannot be received.[13] But a free colored person may make oath to his book of original entries, and thus make it evidence even against a white person, on the declared ground that “it would be idle [for the law] to recognize in persons of color the right to hold property, and to obtain redress in law and equity for injuries to person or property, if the means of this redress be denied them.”[14]

Prior to the statute originally passed in 1799, where a white person committed an assault on a colored woman, and there was no third person present, the latter was held as a witness;[15] but where several white persons were present, the colored person was held incompetent.[16]

(2.) In Maryland, the Act of 1717, Ch. 13, § 2, provides that “no negro or mulatto slave, free negro, or mulatto born of a white woman during his time of servitude by law, or any Indian slave, or free Indian natives of this or the neighboring provinces, be admitted and received as good and valid evidence in law, in any matter or thing whatsoever depending before any court of record, or before any magistrate within this province, wherein any Christian white person is concerned.” Yet, nevertheless, according to this same Act, § 3, where other sufficient evidence is wanting against any negro, in such case the testimony of any negro may be heard and received in evidence, according to the discretion of the several courts of record or magistrate before whom such matter or thing against such negro shall depend, provided such testimony do not extend to depriving them of life or member.

The same system is pursued in the later Act of 1796, Ch. 67, § 5, which provides that manumitted slaves shall not be allowed “to give evidence against any white person,” nor be received “as competent evidence to manumit any slave petitioning for freedom.” But by Act of 1808, Ch. 81, § 1, it is provided, that, in all criminal prosecutions against any negro or mulatto, slave or free, the testimony of any negro or mulatto, slave or free, “may be received in evidence for or against them, any law now existing to the contrary notwithstanding.”

The original Act of 1717 does not in terms extend to free mulattoes, and the Act of 1796 does not extend to the issue of manumitted slaves. But where “a free-born white Christian man” was convicted of felony on the testimony of a mulatto born of a manumitted negro, there was among the judges in the Court of Appeals such diversity of opinion on the legality of the testimony that no decision was ever given.[17] In another case it was decided, that, where both parties are “free white Christian persons,” a free colored person is incompetent,[18] although a mulatto descended in the female line from a white woman is competent.[19]

(3.) In Virginia, the Code declares positively that “a negro or Indian shall be a competent witness in a case of the Commonwealth for or against a negro or Indian, or in a civil case to which only negroes or Indians are parties, but not in any other case.”[20] The decisions of the courts illustrate this proscription. Thus, it has been adjudged that a free colored person cannot testify for a white person, even against a colored person.[21] In another case a question was incidentally raised on the competency of a colored convict as a witness against another convict, with regard to an offence committed in the penitentiary, and it was suggested that convicts generally might be witnesses against each other.[22] This question, however, was subsequently disposed of by a provision declaring, that, on the prosecution of a convict, “all other convicts in the penitentiary shall be competent witnesses for or against the accused, except that negroes shall not be allowed as witnesses against a white person.”[23] They may, however, testify in his favor.

(4.) In Kentucky, the Revised Statutes provide that “a slave, negro, or Indian shall be a competent witness in a case of the Commonwealth for or against a slave, negro, or Indian, or in a civil case to which only negroes or Indians are parties, but in no other case. This shall not be construed to exclude an Indian in other cases, who speaks the English language and understands the nature and obligation of an oath.”[24] Under this provision, as under that of Virginia, it has been decided that a free colored person cannot be a witness for a white person against a colored person.[25]

(5.) In North Carolina, the Revised Statutes provide that “all negroes, Indians, mulattoes, and all persons of mixed blood descended from negro and Indian ancestors to the fourth generation inclusive, (though one ancestor of each generation may have been a white person,) whether bond or free, shall be deemed and taken to be incapable in law to be witnesses in any case whatsoever, except against each other.”[26] Under this statute they cannot testify for each other in a criminal case. But the decisions furnish curious illustrations. Thus, when a colored person was convicted on colored testimony as a principal felon, it was subsequently held, on trial of the white accessory, that the record of the conviction was only primâ facie evidence of guilt.[27] In another case it was held that a free colored woman could not make affidavit charging a white man as father of her illegitimate child,[28] although the contrary has been decided in Kentucky, on the assumption that the act is merely preliminary to the real controversy.[29]

(6.) In Tennessee, the Act of 1794, Ch. 1, § 32, provides that “all negroes, Indians, mulattoes, and all persons of mixed blood descended from negro and Indian ancestors to the third generation inclusive, (though one ancestor of each generation may have been a white person,) whether bond or free, shall be taken and deemed to be incapable in law to be witnesses in any case whatever, except against each other: Provided, That no person of mixed blood in any degree whatsoever, who has been liberated within twelve months previously, shall be admitted as a witness against a white person.” Under this Act, evidently borrowed from the earlier statute of North Carolina, it was decided that a colored person could not be a witness for another colored person. The judge who pronounced the opinion of the court seems to confess the harshness of the rule, when he says: “The cases under this Act in which these disqualified persons can be witnesses for each other are when, plaintiff and defendant both being men of color, the witnesses may at the same time be said to be reciprocally witnesses against each of the parties. Perhaps the practice in Tennessee may have been heretofore much more liberal than the statute. With that we have nothing to do. As the law speaks, so it is our duty to speak.”[30] To remedy this gross injustice, the Act of 1839, Ch. 7, § 1, was passed, providing that such parties, “whether bond or free, shall be taken and deemed to be good witnesses for each other in all cases, where, by the provisions of said Act [viz. Act of 1794], they are made competent witnesses against each other in criminal prosecutions.”[31]

(7.) In South Carolina there appears to have been no statute expressly excluding the testimony of a slave against a white person, although the early Act of 1740, § 39, necessarily implies this exclusion.[32] But the rule was autochthonous. It sprang from the soil without statute. Judge O’Neall, in an Essay on the Slave Laws, declares that “a slave cannot testify, except as against another slave, free negro, mulatto, or mestizo, and that without oath.”[33] But the exclusion did not bear merely upon slaves. The judge announces that “free negroes, mulattoes, and mestizoes cannot be witnesses or jurors in the superior courts; … they cannot even be witnesses in inferior courts, with the single exception of a magistrate’s and freeholder’s court, trying slaves or free negroes, mulattoes or mestizoes, for criminal offences, and then without oath.”[34] It appears that the Act of 1740, §§ 13, 14, on which this custom was founded, applies only to free Indians and slaves;[35] so that, strictly, free negroes, mulattoes, and mestizoes are not despoiled of their right at Common Law to be heard under oath, but the uniform practice under the Act, according to the judge, has been otherwise.[36] On another occasion, another judge of South Carolina says: “There is no instance in which a negro has been permitted to give evidence, except in cases of absolute and indispensable necessity; nor, indeed, has this court ever recognized the propriety of admitting them in any case where the rights of white persons were concerned.”[37] In still another case it was decided that a free person of color is not competent in any case in a court of record, although both parties are of the same class with himself.[38]

The rule thus rigorously declared has given rise to some strange illustrations. Thus, for instance, in a suit to recover certain slaves as part of a gang named, evidence was admitted that other negroes of the defendant were accustomed to speak of those in question as belonging to the gang.[39] In another case, where the book of a tradesman was made up from the entries of a negro workman on a slate, and notice was affixed to the door of the shop that all credits there would be charged according to the negro’s entries, the Court doubted whether the book could be evidence at all,—but if at all, only as to the amount of work done, and then only against a person otherwise proved to be a customer.[40]

(8.) In Georgia, as in South Carolina, there is no statute expressly excluding the testimony of a slave where white persons are parties. But they are excluded. The Act of 1770, declaring slaves to be chattels personal to all intents and purposes whatsoever, provides further, “that the evidence of any free Indians, mulattoes, mestizoes, or negroes, or slaves, shall be allowed and admitted in all cases whatsoever for or against another slave accused of any crime or offence whatsoever, the weight of which evidence, being seriously considered and compared with all other circumstances attending the case, shall be left to the justices and jury.”[41] But where white persons are parties, the rule of exclusion seems implied. And the same exclusion seems also implied in the later Act of December 19, 1816, § 5, where the rule, that “any witness shall be sworn who believes in God and a future state of rewards and punishments,” is restricted to “the trial of a slave or free person of color.”[42]

(9.) In Alabama the exclusion stands on positive statute. The Code provides that “negroes, mulattoes, Indians, and all persons of mixed blood descended from negro or Indian ancestors to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free, must not be witnesses in any cause, civil or criminal, except for or against each other.”[43]

(10.) In Mississippi, the Act of June 28, 1822, is nearly the same in language with the Code of Alabama on this subject.[44] But by Act of January 19, 1830, free Indians are placed on the same footing as white persons, and consequently can testify.[45]

(11.) In Florida the law is brief and explicit. The Act of November 21, 1828, § 16, provides that “any negro or mulatto, bond or free, shall be a good witness in the pleas of the State for or against negroes or mulattoes, bond or free, or in civil cases where free negroes or mulattoes shall alone be parties, and in no other cases whatever.”[46]

(12.) In Missouri, the Revised Statutes provide that “no negro or mulatto, bond or free, shall be a competent witness, except in pleas of the State against a negro or mulatto, bond or free, or in civil cases in which negroes or mulattoes alone are parties.”[47] But it has been decided, that, if a free negro is party to the record, even though he vouches in a white person to defend his title, colored testimony is admissible.[48]

(13.) In Arkansas, the Revised Statutes provide that “no negro or mulatto, bond or free, shall be a competent witness in any case, except in cases in which all the parties are negroes or mulattoes, or in which the State is plaintiff and a negro or mulatto, or negroes or mulattoes, are defendants.”[49]

(14.) In Louisiana, the Revised Statutes provide that “no slave shall be admitted as a witness, either in civil or criminal matters, for or against a white person”; and also, “no slave shall be admitted as a witness, either in civil or criminal matters, for or against a free person of color, except in case such free individual be charged with having raised, or attempted to raise, an insurrection among the slaves of this State, or adhering to them by giving them aid or comfort in any manner whatsoever.”[50]

The Civil Code declares “absolutely incapable of being witnesses to testaments” “women of what age soever,” and “slaves.”[51] But the Civil Code has provided expressly that “the circumstance of the witness being a free colored person is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility”;[52] so that a free colored person in Louisiana may be a witness for or against a white person, subject to inquiry as to the value of his testimony.

(15.) In Texas, the Act of May 13, 1846, provides that “all negroes and Indians, and all persons of mixed blood descended from negro ancestry to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be incapable of being a witness in any case whatever, except for or against each other.”[53]

SUMMARY STATEMENT OF THE RULE.

From this review of the provisions in the different States it appears, that, with slight differences, there is nevertheless a prevailing resemblance, such as becomes the sisterhood of Slavery.

“Facies non omnibus una,

Nec diversa tamen; qualem decet esse sororum.”[54]

If the recital seems weary, it has not been superfluous, for it has disclosed the disgusting terms of that proscription. It is difficult to read the provisions in a single State without impatience; but the recurrence of this injustice, expressed with such particularity in no less than fifteen States,[55] makes impatience swell into indignation, especially when it is considered that in every State this injustice is adopted and enforced by the courts of the United States.

Slaves cannot testify in any of the States for or against a white person in any case, either civil or criminal,—unless, perhaps, in Maryland they may be allowed to testify against a white person who is not a Christian.

Free persons of color are also, like slaves, incompetent to testify for or against white persons, except in Delaware and Louisiana, where, under circumstances already stated, they may testify, even though a white person is a party.

It may be observed, also, that the statutes of Delaware, Virginia, Kentucky, South Carolina, Georgia, Florida, Missouri, Arkansas, Louisiana, and Texas do not expressly include Indian slaves; but probably only a few slaves are of pure Indian blood. Those of mixed Indian descent would undoubtedly be classed with mulattoes, and share their incapacity.

ECCENTRICITIES OF JUDICIAL DECISIONS.

The rule is seen also in judicial decisions, which may be classed among the eccentricities of jurisprudence. Subtilty is a common attribute of courts, but in these cases subtilty at times becomes fantastic. Reading them, we may well confess that truth is stranger than fiction.

Thus, although slaves are not permitted to testify, their conversation or declarations may, under certain circumstances, be admitted in evidence. For instance, according to a decision in Missouri, if a white person converses with a slave, the conversation, being otherwise admissible, may be proved by any other white person who heard it. In this case, Judge Scott said: “That negroes cannot testify against white persons is clear; but this rule cannot be carried so far as to exclude the conversation of a negro with a white person, when the conversation on the part of the negro is merely given in evidence as an inducement and in illustration of what was said by the white person. If the conversation of the negro had been proved by herself, then it would clearly have been illegal. Here the State proved by competent witnesses that certain remarks were made to the plaintiff in error in order to show what her reply was. It is a matter of indifference by whom they were made. All that was required was to prove by competent evidence that they were made. That they were made is a fact which may be proved like any other fact in the cause.”[56]

On the same principle, it has been decided that any remarks by a slave to a white person, calling for some reply on the part of the latter, may be proved by the testimony of white persons, in order to show the nature of that reply, or that none was made. The question arose on an indictment for enticing a slave, when Judge Goldthwaite said: “The question which the Court is called upon to determine is simply whether the admission of a white man to the truth of any statement made by a slave in his presence and hearing can be inferred from his silence. The rule in relation to evidence of this character, so far as we are able to deduce it from adjudged cases and the best elementary writers, is, that the statement must be heard and understood by the party affected by it, that the truth of the facts embraced in it must be within his knowledge, and that the statement must be made under such circumstances and by such persons as naturally to call for a reply. To reject the evidence in the case under consideration, solely on the ground that the party making the declaration was a slave, would be in effect to decide that under no conceivable circumstances could a statement made by a slave call for a response from a white man,—a proposition in direct opposition to our daily observation and experience. That the declaration was made by a person whose condition rendered him incompetent as a witness does not in the slightest degree affect the principle on which evidence of this character rests. If the declaration was made by a slave, and the party affected by it had made by his reply a direct admission of its truth, there could be no doubt of the admissibility of the statement and reply; and in cases of implied admissions, the admission, instead of being made by language, is made by the silence of the party.”[57]

There seems no end to the illustrations of this exclusion; as, for instance, when a colored woman acted as interpreter between a testator and the person who drafted the will. In this case, Judge Lumpkin said: “We hold, that, if a negro interpreter, incapable by law of being sworn, is the only channel of communication between the testator and writer of the will, and there be no other evidence of the testator’s knowledge of its contents or his assent thereto than that which is derived through this medium, the will cannot be executed. But if the will be written in the presence of the testator, and, in a language which he understands, it is read over to him, and his dictation and approval of the instrument are interpreted by a negro in his hearing, and in the hearing of others interested in its contents, and he signifies no dissent thereto by signs or otherwise, but, on the contrary, is understood to express himself satisfied, the will may be established, especially if it appears to have been made in conformity to the previously declared intentions of the testator as to the disposition of his property.”[58]

It has been decided that the incapacity of a free colored person will not prevent him, even in a proceeding against a white person, from making an affidavit required to obtain a continuance, a new trial, absent testimony, or bail, or from swearing to a plea of non est factum. He may also bind a white person to keep the peace, or make affidavit for a writ of Habeas Corpus; and generally he may make such affidavits as may be necessary to commence a suit, or to procure such orders or steps to be taken therein as may be required to bring on a trial.[59] Without this capacity, he would, according to Chief Justice Robertson, of Kentucky, “be virtually disfranchised.” But the Chief Justice adds, that, when he is swearing to facts against a white man, to compel him to keep the peace, “he is not a witness, but a party swearing to what any other party may.”[60] And thus his incapacity as witness is still recognized.

In another class of cases, where it became necessary to show the mental condition or bodily health of the slave, his declarations have been held to be admissible, even in a suit against a white person; but they must be proved by white testimony. Thus, in an action for breach of covenant in not teaching a slave bound apprentice to the business of coach-making, the defendant having offered to prove, that, when he wished to instruct the slave, and threatened to punish him, if he did not apply himself, the latter, as soon as the defendant was out of the way, would declare “that he did [not] care about learning the trade, it was no profit to him, and if he could avoid the lash, it was all he cared for,”—it was held by that prominent magistrate, Mr. Justice Gaston, of North Carolina, that the declarations of the slave were admissible, “because his disposition and temper are subjects of investigation, and these cannot be ascertained but through the medium of such external signs.”[61] In another case the same question occurred under these circumstances: A slave was hired by his master to work in certain gold mines; but, while busy at the bottom of a shaft one hundred and eighty feet deep, he was struck on the head by an iron drill weighing five pounds, which fell from the top, and his skull was fractured so that trepanning became necessary, and “a large piece of the skull-bone was cut out.” In an action by the master for damages, Judge Pearson commented on this rule of evidence: “It being material to ascertain the bodily condition of the slave, his complaints of headache when exposed to the sun, and his declarations that he was unable to work in the sun or to endure hard labor are admissible.… The statute excluding the testimony of a slave or free person of color against a white man has no application. The distinction between natural evidence and personal evidence, or the testimony of witnesses, is clear and palpable. The actions, looks, and barking of a dog are admissible as natural evidence upon a question as to his madness. So the squealing and grunts or other expression of pain made by a hog are admissible upon a question as to the extent of an injury inflicted on him. This can in no sense be called the testimony of the dog or the hog. The only advantage of this natural evidence, when furnished by brutes, over the same kind of evidence, when furnished by human beings, whether white or black, is, that the latter, having intelligence, may possibly have a motive for dissimulation, whereas brutes have not; but the character of the evidence is the same, and the jury must pass upon its credit.”[62]

The same principle has been recognized in still another case, where the slave died of mortification in the bowels, and no physician was called in until the day before his death, although his illness had continued for three weeks. On this occasion Judge Green said: “The statement of a sick slave as to the seat of his pain, the nature, symptoms, and effects of his malady, is as well calculated to illustrate the character of his disease as would be the statements of any other person. They are, therefore, equally admissible for that purpose. But whether expressions indicating the nature and effects of a disease uttered by the sick person are real or feigned is for the jury to determine.”[63] And this principle has also been recognized in suits for breach of covenant in the warranty of a slave, or for fraud in the sale of a slave.[64] But if the master distinctly warrants the slave sound, he is not allowed to relieve himself of liability for this false warranty by declarations of the slave to the purchaser that he is diseased. A curious case occurred in Kentucky, which illustrates this principle, and also the brutality of Slavery. A poor slave woman was very ill, when her master formed “the intention of selling her, lest he should lose her value by death.” Notwithstanding her pitiable condition, he succeeded in disposing of her for two hundred dollars, one quarter in a note and the remainder in saddle-trees, on the representation that she was “hearty and sound, and fit for business.” Although the slave woman, before the sale, told the purchaser of her sickness, the Court annulled the sale, and directed the note and the price of the saddle-trees to be given up, saying: “The slave herself told the purchaser of her sickness before the sale; and after the sale, when informed by him that he had bought her, she stated she could not be of any use to him, as she was near death. When it is recollected that frequently, on such occasions, there is a strong indisposition in such creatures to be sold, and that by stratagem, to avoid a sale, they may frequently feign sickness, or magnify any particular complaint with which they are affected, the purchaser might well disbelieve her story, especially when the words of the master assured him to the contrary. For his own statements the master is responsible, and ought not to be permitted to release himself of responsibility for his own falsehoods by showing that the slave at the time so far corrected him as to tell the truth.”[65]

The principle underlying the admission of the declarations of a slave is plainly, but brutally, expressed by Judge Pearson, of North Carolina. We have already seen, that, according to this learned judge, who was for the time the voice of the law, the declarations of the slave are not to be regarded as his testimony, any more than the barking of a dog or the grunting of a hog “can be called the testimony of the dog or the hog.” The slave complains of his sickness in words, the dog moans, the hog squeals; but the law regards these expressions of suffering alike. They may be proved as facts by competent evidence; but the slave himself cannot testify what his complaints were, any more than the dog or the hog.[66]

Such are eccentricities of judicial opinion on this important question. They are not to be regarded merely as curiosities, for they are all adopted and enforced in the national courts; so that even the most brutal language becomes not merely the voice of the law, but the voice of the nation also.

CONSEQUENCES OF THIS EXCLUSION.

Thus do decisions of courts, as well as statutes, conspire to exhibit this rule in revolting features. If we glance for one moment at its consequences, there will be new occasion to condemn it.

Looking at it in a single aspect, consequences appear which baffle the imagination to picture. Throughout the States where this exclusion prevails, any white person may torture and maltreat a slave in any conceivable manner and to any extent, or he may overwork and starve him, or he may whip him to death, murder him in cold blood, or burn him alive; and so long as he is the only white person present, the laws afford him the most complete immunity from punishment, except in Delaware and Louisiana, where also he is safe, if only slaves are present. It is true that the same laws profess to punish the murder of a slave as a capital offence, and also to punish severely any mutilation or other cruel treatment of him. But such laws are nothing. So long as the slave himself is not allowed to testify, so long the laws will be justly obnoxious to the charge of actually authorizing a white person to inflict any outrage upon him, even to the extent of taking life with impunity. Every white person with only slaves about him, or, it may be, with only colored persons, slave or free, has a letter of license to commit any outrage which passion or wickedness may prompt.

The exposed condition of slaves, on account of incapacity to testify, was recognized in the early legislation of South Carolina. The preamble to Section 39 of the Act of 1740 begins as follows: “And whereas, by reason of the extent and distance of plantations in this Province, the inhabitants are far removed from each other, and many cruelties may be committed on slaves, because no white person may be present to give evidence of the same.”[67] Thus, even out of the mouth of South Carolina, before this State had learned to sacrifice everything to Slavery, we learn that “many cruelties may be committed on slaves” under operation of this rule. But no such confession was needed. The truth is apparent to the most superficial observer. Had South Carolina, at that early day, followed the suggestion of her own statute, she would have begun a career of civilization under which Slavery itself must have disappeared.

The exposed condition of slaves on this account is curiously attested by other statutes of the Slave States, showing that plantations far removed from cities, and at considerable distance from each other, are committed to the direction of a single white overseer, who, from the circumstance that he is the only white person present, is placed beyond all restraint or correction. Thus, in South Carolina,[68] in Florida,[69] in Georgia,[70] and in Louisiana,[71] the statutes exact the continued residence of one white person on every plantation, with a specified number of working slaves. These statutes had their origin in no sentiment of justice or humanity, but, as appears in early declarations, in a desire to prevent the harboring of fugitive slaves, who might find asylum among those exclusively of their own color. If, however, it was thought necessary for any purpose to require by penalties the continued residence of even one white person on a slave plantation, it is reasonable to infer that there must be many plantations where there is only one white person. And to one white person thus situated, and thus removed from all check or observation, the law commits the government and guardianship of slaves on a plantation, and promises him in advance the most complete impunity for all that he does, even to the extent of cold-blooded murder, provided only that he is careful to let no white person see the deed.

This proscription is not confined to slaves. Free colored persons, under operation of this rule, are exposed to the same fearful wrongs. A white person may treat them as he treats a slave, and they are absolutely without remedy. It would be difficult to point out any law, the spawn of cruelty or tyranny, in ancient or modern times, exceeding in atrocity that by which a free population is thus despoiled of protection on account of color. It was one of the boasts of Magna Charta that justice should be denied to no person,—“Nulli negabimus justitiam”; but under this rule it is denied to a whole race.

Of course, the race, whether bond or free, which is thus despoiled, suffers. But this is not all. Justice itself also suffers. Crime, even against white persons in the presence of colored persons, must go unpunished.

And yet this proscription is adopted and enforced in the courts of the United States.

There are other aspects of this subject which invite attention. History has her lessons. Reason also speaks with a voice that must be heard. It becomes important, therefore, to consider this proscription, first, in its origin and the examples of history, and, secondly, in the grounds on which it is founded.

EXAMPLES OF HISTORY.

This proscription, or its equivalent, is traced to the earliest age. It belongs to the Barbarism of Slavery. Even as applied to free colored persons, it must be considered as a relic of Slavery not yet removed out of sight.

The rule may also be treated as belonging to that system of evidence which, in defiance of reason, undertook to declare in advance that certain classes of witnesses were incompetent to testify,—or, in other words, that the court and jury should not be permitted to hear what they had to say on the issue. In the early Common Law numbers were excluded who are now admitted to testify; and the Committee cannot err, when they declare that the plain tendency of recent legislation, and also of judicial decisions, in England and in the United States, has been to limit the exclusion of witnesses, allowing the court and jury, on hearing their testimony, to estimate its weight and value. The whole system of exclusion was covered with ridicule by Jeremy Bentham,[72] who exposed its irrational character. In our own country it has been treated in a similar spirit, in a series of masterly essays on the Rules of Evidence, by the present learned Chief Justice of Maine, Hon. John Appleton.[73] Its origin may be traced to ignorance and prejudice. There was a time, when, in Great Britain, at least on the borders of England and Scotland, “an Englishman could not be a witness against a Scot, nor a Scot against an Englishman, by reason of the enmity between the two nations; … so that, if never so many Englishmen should with their open eyes see a Scot commit murder, their testimony would signify nothing, unless some Scot or other testified the same thing.”[74] But their exclusion in this historic case was identical in principle and consequence with that still receiving the sanction of Congress.

This whole body of cases has been despatched by Jeremy Bentham in these words: “Exclusion put upon all persons of this or that particular description includes a license to commit, in the presence of any number of persons of that description, all imaginable crimes.”[75] The Psalmist exclaims: “I said in my haste all men are liars.” But the malediction of the Psalmist in his haste is gravely adopted in this proscription, which undertakes to blast “all men” of a specified description as “liars.” Assuming that all of a certain class or race or color cannot be believed on oath, it practically says, that, though present in point of fact at any crime, they are absent in point of law.

By the Mohammedan Law, no person could be convicted of adultery without the testimony of four male witnesses,—a requirement which was called by Gibbon “a law of domestic peace.”[76] The extravagance of this requirement rendered it practically a law to prevent conviction, not unlike the law excluding testimony. It is a disguised exclusion. But of the two, the Mohammedan Law is the least irrational. At all events, it does not assume the form of proscription.

The rule of exclusion, when founded on race or color, is something more than a rule of evidence from which justice may suffer. It is a proscription, which finds prototypes in other countries and times, kindred in character to the persecution of the Moors in Spain, and to that cruelty which for ages pursued the Jews everywhere, while it reveals that insensibility to the claims of a common humanity which has so slowly yielded to the demands of a just civilization. In France, during the last century, even after politeness had begun to prevail, it is recorded of a most intellectual lady, the commentator upon Newton, Madame du Châtelet, that she did not hesitate to undress before her male domestics, as it did not seem clear that such persons were men.[77] But it is in the irreligious system of Caste, as established in India, that we find the most perfect parallel. Indeed, the late Alexander von Humboldt, in speaking of colored persons, has designated them as a Caste;[78] and a political and juridical writer of France has used the same term to denote not only the distinctions in India, but those in our own country, which he characterizes as “humiliating and brutal.”[79] But the Caste of India, by which the Brahmins and Sudras have been kept apart, is already repudiated by Christian civilization as “part and parcel of idolatry.” Bishop Heber, of Calcutta, says of this injustice, it is “a system which tends more than anything else the Devil has yet invented to destroy the feelings of general benevolence, and to make nine tenths of mankind the hopeless slaves of the remainder.”[80] But the language with which this accomplished bishop condemns the heathen Caste of India is not inapplicable to that other Caste in our own country, which, in one of its incidents, despoils the colored person of his right to testify.

If we go back to the ancient Greeks, we find an interesting distinction. A slave was not believed on oath; so that one is recorded as exclaiming, in words which might be adopted in our day: “I know I am a slave: I don’t know even what I do know.”[81] But, though not believed on oath, his evidence was always taken with torture. On this account his testimony appears to have been considered of more value even than that of a freeman. Isæus, in arguing a case, said: “When slaves and freemen are at hand, you do not make use of the testimony of freemen; but, putting slaves to the torture, you thus endeavor to find out the truth of what has been done.” Any person might offer his own slave to be examined by torture, or demand the same thing of his adversary, and the refusal of the latter was regarded as a strong presumption against him.[82] Thus cruelly did this sharp people seek to counteract the senseless rule of exclusion. Torture was recognized, but justice was not absolutely sacrificed.

The Romans seem to have borrowed the practice from the Greeks, or they were inspired to kindred cruelty. Not only slaves, but even free persons of an inferior condition, were seldom examined except under torture. Any person who wished the testimony of a slave might obtain it on giving sufficient security to the master for full reparation on account of damage from his torture. Mr. Jefferson states mildly our own practice, in contrast with that of Rome, when he says: “With the Romans, the regular method of taking the evidence of their slaves was under torture; here it has been thought better never to resort to their evidence.”[83] In the latter days of the Empire, a general rule made the slave inadmissible as witness for or against his master or his master’s children, except in cases of treason, where the danger of the crime overruled ordinary considerations, and also in cases of incest and adultery, for the good reason that in a society where all domestics were slaves any other evidence could hardly be procured.[84] But the latter reason might obviously exist in the case of any crime; so that, on principle, when other proofs were wanting, resort might be had to the testimony of slaves. Indeed, a learned commentator on the Roman Law has distinctly said that this law did not admit slaves to be witnesses, unless the cause was difficult, looking to the welfare of the republic, or other proofs were wanting: “Servos lex civilis non patitur testes esse, … nisi causa sit ardua, ad rei publicæ spectans utilitatem, aut aliæ desint probationes.”[85] It became customary, in civil matters, to admit the testimony of slaves as to their own acts, although affecting the interests of their masters; and after the establishment of Christianity, when heresy took its place as a crime to be dreaded as much as treason, the testimony of slaves was received equally with regard to each.

The rule of exclusion during the Dark Ages naturally took its character from the prevailing darkness. The Barbarians did not, in this respect, soften the law of ancient Rome. Amidst the cares of empire this task was attempted by Charlemagne; but how little he accomplished may be seen in his Capitularies, where slaves are rejected as witnesses against their masters, except in cases of treason, and even freedmen, unless in the third generation, are not admitted to testify against freemen.[86] And the same intolerance is attributed to the Canon Law: “Item placuit, ut omnes servi vel proprii liberti ad accusationem non admittantur.”[87] But it appears that at this time, among some races, it was the prerogative of royal serfs, and of others not of base condition, to have their testimony received against freemen, especially in cases of childbirth, violence, or death by accident.[88] And the influence of the clergy seems to have overruled this exclusion in certain specified districts. Thus, in 1109, on the petition of the ecclesiastics of Paris, Louis the Sixth conceded to the serfs of the latter a perfect liberty of testifying and combating (testificandi et bellandi) against freemen as well as slaves; and this important concession was confirmed by the Pope, who declared, however, that there ought to be a difference in the conditions governing a family of the Church and the slaves of secular persons.[89] Although this concession was made for the sake of the Church rather than its humble dependants, it was an example by which the world became accustomed to receive the testimony of slaves.

In England, under the Common Law, the rule of exclusion on account of Slavery was never fully recognized. The villein seems to have been admitted as a witness in all cases except against his lord. “I do not know,” says Mr. Hallam, “that their testimony, except against their lord, was ever refused in England.”[90] It was only in respect of his lord that he was without rights. But he was sometimes received, although the lord himself was a party;[91] and in criminal cases generally it was no exception to a witness that he was a bondman.[92] Such, even at the beginning, was the voice of the Common Law. But with the disappearance of villenage all pretence of exclusion on this account vanished in England, never to return.

The offensive rule seems to have found less acceptance in the possessions of other countries than with us. It has been inferred, after careful inquiry, that slaves in the Spanish and Portuguese settlements are not always incompetent as witnesses, while the Code Noir of Louis the Fourteenth, amidst ungenerous prohibitions, allowed their evidence to be heard, “as a suggestion, or unauthenticated information, which might throw light on the evidence of other witnesses,” and afterwards, by later edict, sanctioned the testimony of slaves, “when white witnesses were wanting, except against their masters.”[93] But the rule is the natural complement of Slavery; and it cannot be disguised that it has prevailed, with corresponding degrees of force, wherever Slavery has been recognized. Its prevalence with us is only another illustration of the power of Slavery.

If you would find the country where slaves have been most completely despoiled of the right of testimony, you will not go to Greece or Rome, for in these classic lands the slaves were admitted to testify in certain cases; nor will you linger even in the Dark Ages, for there were then excepted cases; nor will you search English precedents, for the villein was incompetent only against his lord, and not always against him; nor will you look to the colonies of Spain, Portugal, or France, for in all of these the cruel rule was mitigated; but you will turn to those States of our Republic where the slave is not permitted to testify against his master or any other white person, and where even free colored persons, having no master, are smitten with the same incapacity to testify against any white person.

GROUNDS FOR THIS INJUSTICE.

From examples of history the way is easy to an inquiry into the grounds on which this proscription is founded.

The true reason may be traced to the unhappy prejudices engendered by Slavery, and to the policy of sustaining this wrong. Indeed, it is hardly less essential to Slavery than the lash itself. An early statute of Virginia places the rule on the ground that none but Christians should be witnesses, and even among these “Popish recusants convict” were inadmissible.[94] But it is generally vindicated by dwelling on the degraded condition of the slave, and the interest he may have to conceal or deny the truth.[95] A careful examination will show that this apology is baseless as Slavery itself.

Of course, if a witness is too degraded to feel the sanction of an oath, his testimony should not be received. Such is the unquestionable suggestion of reason; nor can it make any difference that the witness is white or black. But the slave is not necessarily and universally so degraded as to merit exclusion, nor is his interest to conceal or deny the truth different materially from that of other persons,—although it is undoubtedly true, that, under the instinct of self-defence, and against the exactions of Slavery, he learns to deceive. But in every State except South Carolina the oath of the slave is received against colored persons, which could not be done, if he could not be trusted under oath. A judge of South Carolina has vindicated the capacity of the slave in this respect, and thus unintentionally repelled the rule of exclusion. “Negroes, slaves or free,” says Judge O’Neall, “will feel the sanction of an oath with as much force as any of the ignorant classes of white people in a Christian country. They ought, too, to be made to know, if they testify falsely, they are to be punished for it by human laws. The course pursued on the trial of negroes, in the abduction and obtaining testimony, leads to none of the certainties of truth. Falsehood is often the result, and innocence is thus often sacrificed on the shrine of prejudice.”[96] But this learned judge of South Carolina is not alone in vindicating the propriety of examining the slave on oath. Judge Clayton, of the High Court of Errors and Appeals in Mississippi, in delivering the opinion of the Court, thus expressed himself: “It is also objected, that there ought, in the case of slaves, to be some evidence of a sense of religious accountability, upon which the validity of all testimony rests, and that the same presumption of such religious belief cannot be indulged in reference to them as in regard to white persons. As to the latter, it is said the presumption is in favor of their proper religious culture and belief in revelation and a future state of rewards and punishments; as to slaves, it is contended the presumption does not arise, because of a defect of religious education. It is true, that, if the declarant had no sense of future responsibility, his declarations would not be admissible. But the absence of such belief must be shown. The simple elementary truths of Christianity, the immortality of the soul and a future accountability, are generally received and believed by this portion of our population. From the pulpit many, perhaps all, who attain maturity, hear these doctrines announced and enforced, and embrace them as articles of faith.”[97]

But if slaves generally have a sufficient amount of religious belief to supply the sanction of an oath, it is clear that they are not so degraded as to justify their exclusion as sworn witnesses. And the Slave States, while excluding them, have practically recognized their fitness. Not only is the oath of a slave received in all the Slave States except South Carolina, but he is liable to punishment for perjury,[98] and sometimes the punishment inflicted is diabolic. In Virginia,[99] and also in Maryland,[100] the punishment formerly was “cropping.” In Florida, the statute appoints that the offender “shall have his or her ears nailed to posts, and there to stand for one hour, and, moreover, receive thirty-nine lashes on his or her bare back.”[101] In Mississippi, if a colored person is found to have given false testimony, he is “to have one ear nailed to the pillory, and there to stand for the space of one hour, and then the said ear to be cut off, and thereafter the other ear nailed in like manner, and cut off at the expiration of one other hour; and, moreover, to receive thirty-nine lashes on his or her bare back, well laid on, at the public whipping-post, or such other punishment as the court shall think proper, not extending to life or limb.”[102] But every recognition of the oath of a slave on any occasion, and especially every punishment of a slave for perjury, testifies to his capacity as a witness. The barbarism of the punishment testifies also against Slavery. It is vain to say that a slave is incompetent, when, in certain cases, he is already accepted as witness, and visited with fiendish punishment, if he violates his oath.

The absurdity of this pretension is illustrated by a provision in the statutes of Kentucky, by which a slave in the penitentiary may be a competent witness against a white convict.[103] Such was early the law of Virginia, and even now he is competent for the white convict. Thus, so long as a slave commits no crime, his oath is not received in court to affect a white person even with the smallest pecuniary liability; but let him be sent to the penitentiary as a convict for crime, and forthwith his capacity as a witness is enlarged, and on his testimony a white convict may be deprived of life! But, obviously, the commission of a crime carrying with it the doom of the penitentiary must impair rather than increase confidence in the veracity of the criminal. Such is the absurd inconsistency in the application of this rule.

Although the rule may be properly traced to Slavery, of which it is an important ally, yet, from considerations already presented, it seems to follow that it is founded on a reason broader than Slavery, suggested, however, by Slavery. According to the logic of these considerations, the disqualification of the slave as a witness against white persons is not founded on the fact that he is a slave, because the disqualification, except in Delaware and Louisiana, attaches also to free colored persons; nor is it founded on want of that religious belief required in a sworn witness, nor on any actual disregard of his testimony under oath, because the slave in certain cases is sworn, and his testimony under oath is accepted in the administration of justice, and he is punished for perjury; but it is simply, in the last analysis, an incapacity attached by law to persons of color. Indeed, the obvious inference from the remarks of Judge O’Neall[104] is, that, in his opinion, it is not slavery, but color, which is the ground of exclusion. But the Committee have already shown the pernicious consequences of such proscription, and especially that the disfranchisement of the African race operates as a liberty to all white persons, not excepting, in most of the States, even white convicts, to do as they please, and commit any crime in the Decalogue, “unwhipped of justice,” if nobody but a colored person is present. It needs no argument to establish the unreasonableness of a disqualification which, according to the confession of its advocates, attaches to the shading of the human skin, especially in view of the fearful cruelty that is its natural consequence.

In Delaware and Louisiana the disqualification rests on the fact of Slavery. In many other States the free colored persons are so few in number that the fact of Slavery seems still to overshadow the whole race. Assuming, then, that the disqualification is traced not merely to the shading of the skin, but to the fact of Slavery, it is none the less to be rejected, not only as part of Slavery, but as essentially irrational and inhuman.

The slave feels the sanction of an oath hardly less than many white persons of inferior condition. On grounds of reason, therefore, and independently of prejudice, the two classes at the outset would be entitled to an equal degree of confidence,—modified, of course, and decreasing, as there was a manifest interest or temptation to testify falsely. But the slave is exposed to such corrupting power less than a white person. He can have no pecuniary interest, since he has no right of property. And, except where his master is a party or otherwise interested, he must be alike without hope of gain or fear of punishment to make him swerve from the truth. Accordingly, in all cases where his master stands indifferent, the reason for excluding the slave is not so strong as for excluding white persons of inferior condition, since the slave may feel the sanction of an oath as much as they, while he is less exposed to any disturbing influence. Such, certainly, is the conclusion justified by the facts.

The dependence of the slave upon his master must naturally subject him peculiarly to his influence, whether from hope of reward or fear of punishment; so that his testimony in favor of his master would always be viewed with suspicion. If, contrary to this active interest, the slave testifies against his master, his testimony would seem to be worthy of peculiar consideration. But even where he testifies for his master, there can be no more reason for excluding his testimony than for excluding that of a child for a father or a mother, or of excluding that of a father or a mother for a child. Unquestionably, in each of these cases the bias is stronger than any that can exist on the part of a slave, as love is stronger than fear. Therefore there is no valid reason why a slave should not be permitted to testify for or against his master. The same considerations which determine the value of other testimony will suffice with regard to him; and thus, in every respect, the rule of exclusion becomes irrational and arbitrary.

But this rule, whether applicable to slaves or free colored persons, is still more irrational and unwarranted when it is considered that the testimony is submitted to the scrutiny of a jury of white persons, under the watchful observation of a court of white persons likewise, and that it can have no effect whatever except through assent of their judgment. The motive which actuates the slave, whatever it may be, whether revenge or interest or fear, must be open to discovery. It is therefore preposterous to argue that any white person, at any time or anywhere, especially in a Slave State, can be prejudiced by colored testimony, or that he can be convicted by a white jury under the eye of a white court, unless that testimony is strictly worthy of belief. The rule of exclusion is not only an expression of tyranny and prejudice, but an insult to the understanding, and even to common sense.

If this rule were only irrational and eccentric, it might be pardoned to immeasurable madness, and handed over to the derision of mankind. But even its absurdity disappears in its appalling injustice. Two things are obvious to the most superficial observation: first, that under its influence the slave is left absolutely without legal protection of any kind, the victim of lawless outrage; and, secondly, that even crimes against white persons may escape unpunished: so that in these two important cases justice must fail. But this failure of justice becomes intolerable, when it is considered that it is not from accident or temporary weakness, but that it is absolutely organized by law. Nor is it confined to slaves. It embraces in its ban free colored persons also, without regard to intelligence, property, or relations in life.

CONCLUSION.

Such is this proscription, as it appears (1.) in the various statutes of the Slave States, (2.) in the eccentricities of judicial decisions, (3.) in its consequences, (4.) in examples of history, and (5.) in the grounds on which it is founded. Regarding it in either of these aspects, it must be rejected. The statutes in which it is declared and the judicial eccentricities by which it is illustrated belong to the curiosities of an expiring barbarism. Its consequences shock the conscience of the world. The examples of history testify against it. The reason on which it is founded shows that it stands on nothing that is reasonable.

It is for Congress to determine whether this proscription shall continue in the courts of the United States,—or, in other words, if a local rule, barbarous, irrational, and unjust, born of Slavery, shall be allowed to exist yet longer under the national sanction.

THE MISSION TO BELGIUM.

Speech in the Senate, on an Amendment to the Consular and Diplomatic Appropriation Bill, March 15, 1864.

March 14th, the Senate having under consideration the bill making appropriations for the consular and diplomatic service, Mr. Sumner, in behalf of the Committee on Foreign Relations, moved the following amendment:—

“That the President may, in his discretion, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary to the kingdom of Belgium, who shall receive no higher compensation than is now allowed to a minister resident.”

The amendment was opposed by Mr. Fessenden, of Maine, to whom Mr. Sumner replied.[105]

March 15th, the debate was continued, and Mr. Sumner spoke several times. In reply to Mr. Davis, of Kentucky, he said:—

MR. PRESIDENT,—There seems a perpetual disposition in this debate to change the issue. I stated that the issue was how we shall best give efficiency to our representation in Europe. Now the Senator from Kentucky says that the issue is how we shall give our minister at Belgium an opportunity to get into a little better company. That is his imagination. Surely it is not the way the Committee directed me to state the case. It is not the way in which I have presented it at any time in this discussion. I hope that Senators will not be diverted from the real issue, which is simply, Will the public interests be promoted by this change? The Committee answer in the affirmative, and in my humble opinion the Committee is right.

Mr. Davis. Will the Chairman specify in what respect the public interest will be promoted, in what respect the efficiency of our representative at the court of Brussels will be increased, and in what respect the increase of his grade will render this Government and its interests more acceptable to Leopold?

Mr. Sumner. In the same way, Sir, that the public interests are promoted at London, and also at Paris, by a plenipotentiary instead of a minister resident.

Mr. Davis. According to that rule, we ought to have a first-class minister at every court in Europe and at every government in South America, and everywhere else where we send diplomatic representatives.

Mr. Sumner. No,—the Senator will pardon me,—not at every court in Europe, but only at those where we have considerable interests. It all pivots upon that. What are our relations with different courts? With considerable interests, we should be represented accordingly. With inconsiderable interests only, there is no reason to raise the mission. We have first-class missions, according to our scale of rank, at London, Paris, Madrid, Turin, Vienna, Berlin, and St. Petersburg. And why?

Mr. Davis. Will the honorable Chairman tell me the relative proportion between the commercial interests of the United States and England, the United States and France, and the United States and Belgium?

Mr. Sumner. There are interests of all kinds, commercial and political, differing in different countries. I need not remind the Senator that our interests with England and France are largely superior to those with any other European power,—much above those with Belgium; but if you ask me what other European power I should place next after those two, I should hesitate, in the condition of our affairs at this precise moment, to place any before Belgium.

Mr. Davis. Would you not place Russia before Belgium?

Mr. Sumner. I would not exaggerate, but I am obliged to acknowledge, in reply to the Senator, that I should hesitate at this moment to say that even Russia was so situated as to make our minister there so important to our present interests as our minister at Belgium. In one word, our minister at Brussels has more to do than our minister at St. Petersburg. Look I pray you, at the geographical position of Belgium, its thronging, active population, its commerce, its manufactures. But countries derive character and even power from their rulers, and this is the happy advantage of Belgium, especially in her relations with us. You all know that her sovereign is able to exercise a persuasive influence over international affairs, entirely out of proportion to the extent of territory he so wisely governs, and this influence has been exerted at a critical moment in our favor.

I would not say a word in disparagement of any other power. But it would be difficult, after England and France, to name any power which, all things considered, furnishes at this moment such opportunities of usefulness in the public service to any American plenipotentiary as are afforded by Belgium. Would the Senator compare our interests there with those in Prussia, one of the most respectable and highly educated courts of the globe, or with Austria, great in military power and physical resources? At Berlin and Vienna there is less for our ministers to do, and less of opportunity, than at Brussels. The geographical position of these capitals explains this difference, at least in part.

Or, if you please, take the government of Spain, representing that great Castilian monarchy on which it was said that the sun never set. A Senator whispers that this was said some time ago. True; but you have in Spain the old Castilian pride and faith born of that immense empire; and yet our interests with Spain at this moment, or, in other words, our opportunities in that kingdom, are not more important than in the smaller kingdom of Belgium, which the sun covers in much less than a single hour.

Then there is the new-born kingdom of Italy, where we have also a plenipotentiary. Does any one suppose, that, if you put aside that sympathy which every American feels for this interesting power, newly dedicated to Liberty, our interests there at this moment are equal to those with Belgium? Here again geography explains the difference.

There only remains in this review, to which the Senator invites me, the empire of Russia, bound by many years of history to amity with the United States, and absolutely fixed as our friend beyond any jar of diplomacy or any jealousy of growing power. But our commercial relations with this extensive country are inferior to those with Belgium; and St. Petersburg is further removed from the great centre of observation than Brussels. The Emperor of Russia is illustrious from a transcendent act, for which his name will be blessed; but his assured regard for us takes away all solicitude as to his policy, while the complications of present questions in which he is involved render his relations to other European governments less intimate than those of King Leopold, even if the latter had not, from family and long experience, a position of peculiar weight in the scale of European affairs, so that Belgium under his rule has a value beyond her natural power or territorial extent. Belgium may be small in domain, but so was Greece; nor will any one presume to measure the influence her sovereign may exercise by the number of square miles he governs.

But the Senator asked if there was any other government so small in numbers where we were represented by a plenipotentiary. I have before me, from the last almanac, the population of Chile, where we have a plenipotentiary. It is one million five hundred and fifty-eight thousand. Here, also, is the population of Peru, where we have a plenipotentiary,—two million five hundred thousand.

Mr. Davis. I believe that those missions ought to be reduced, and I would vote to-day for the reduction of the missions to Chile and to Peru.

Mr. Sumner. Very well; but let us take each question by itself. That is the more practical way. When the proposition to reduce the missions to Chile and Peru comes before the Senate, I shall be ready to meet it, and I do not say that I shall differ from the Senator; but that proposition is not now before us, nor is it involved even indirectly in the pending amendment.

It is said, that, if we raise this mission, next year there will be attempt to raise the salary. Very well; when that comes, we can meet it. Again it is said that next year there will be attempt to raise both mission and salary at the Hague and other places. Very well; when the time comes,—and it must have the sanction of a committee of this body to come before the Senate,—we will meet it. Meanwhile I ask you to consider the actual question under debate, which is, whether you will authorize the Government, in view of the peculiar circumstances of the case and for the support of our interests abroad, to raise the Belgian mission without any increase of salary. I have said this too often, I know; but I have been driven to it by the pertinacity with which Senators have insisted upon presenting the case in a false light.

The amendment was adopted,—Yeas 21, Nays 18,—and the bill passed the Senate; but the House of Representatives would not consent to raise the Belgian mission. Two different conference committees were appointed. The first united in the following substitute, drawn by Mr. Sumner, which would enable the President to raise the mission in his discretion without increase of salary: “That an envoy extraordinary and minister plenipotentiary, appointed at any place where the United States are now represented by a minister resident, shall receive the compensation fixed by law and appropriated for a minister resident, and no more.” But this was disagreed to by the House, and at the second conference the Senate receded from the amendment, so that it was lost.

In the next Congress it was renewed by Mr. Sumner, and prevailed. It will be found in the Consular and Diplomatic Act of July 25, 1866.[106]

CONSULAR PUPILS.

Speech in the Senate, on an Amendment to the Consular and Diplomatic Appropriation Bill, March 15, 1864.

The Senate having under consideration the Consular and Diplomatic Appropriation Bill, an amendment was reported by Mr. Fessenden from the Committee on Finance reviving the provision in the Act of August 18, 1856,[107] authorizing twenty-five consular pupils, and making an appropriation for them. The amendment was opposed by Mr. Collamer, of Vermont, and Mr. Reverdy Johnson, of Maryland. Mr. Sumner said in reply:—

MR. PRESIDENT,—The chief objection of the Senator from Maryland seemed to be that we might educate these young men at the national expense and very soon thereafter lose them,—in other words, not get our money back. In the first place, it is very easy, by regulations at the State Department before these appointments, to provide against any such contingency; and I understand that Mr. Marcy, indefatigable and ingenious as the Senator remembers he was, did, by a series of regulations, carefully provide for this very case. Should we return to the original law, the Secretary of State would have only to revive those original regulations by one of his most distinguished predecessors. I believe this a sufficient answer to the Senator.

But the Senator from Michigan [Mr. Chandler] has already answered him in another way, when he asked, very pertinently, What assurance have we that we shall enjoy the services of the cadets at West Point, or the naval cadets now at Newport? There are certain requirements of service, but the Senator knows well that nothing is more common than for cadets, especially military, to pass immediately from that education they have received at the expense of their country into occupations serving only their private advantage.

Mr. Johnson. That is with the consent of the Government. The Government accepts their resignations.

Mr. Sumner. Very well; what is to hinder regulations at the Department of State requiring the consent of the Government before these pupils shall be released,—in short, holding them by some words of contract for a certain term? Here let me say, that, unlike cadets, these pupils will give the Government valuable service even while pupils.

But, Sir, passing from these considerations, allow me for a moment to ask the attention of the Senate to this proposition in two aspects,—the first as a carrying out of the consular and diplomatic statute of the United States, and the second as in the nature of an educational provision calculated to benefit our consular service abroad.

In the first aspect, the Senate will bear in mind that down to 1855 we had no general diplomatic and consular statute. Our representation in foreign countries went under thorough review, and the result was the statute in our books, determining grades, adjusting salaries, and, in one word, systematizing the whole business. Let the character of the statute be borne in mind. But this statute, which aimed to present a complete system, contained the provision for consular pupils.

Now, Sir, at that time and by that statute our consular salaries were adjusted to this very provision of consular pupils. The one was in the nature of a complement to the other. The salaries were made lower than they otherwise would have been in certain cases, because the consuls were to be aided by pupils with a compensation fixed by statute. But the provision for pupils was repealed shortly afterwards, indeed before the experiment had been tried, without, however, raising the consular salaries in corresponding degree. It seems clear that something must be done now. You must do one of two things,—either raise the consular salaries or appoint consular pupils. Otherwise the original idea of the statute fails, and our system is defective.

But this seems to be the least important aspect of the subject. A mere question of salary, or, if you please, of system in the statute, is trivial, to my mind, by the side of that other consideration to which Senators have already alluded. I said that this was part of an educational system for the advancement of our service abroad. I do not think you can exaggerate its importance in this respect. Let any one who has been abroad, or had personal acquaintance with those who have been abroad, bear testimony to the abounding ignorance in our foreign service, from the circumstance that there is nobody there, unless a hired foreigner, acquainted with the language, the laws, or the usages of the people about him. Sir, it is a shame that our offices abroad, whether consular or diplomatic, are served in this inferior way. Here, now, is a practical proposition beginning a remedy. It is simple and direct. It seems to me that it cannot fail to be of considerable advantage. The business of these offices will be better done, and there will be a staff of educated experts, familiar with foreign life, whose knowledge and experience, even if not always in the service of Government, will pass into the capital stock and resources of the country. Nothing is clearer than that the education of the people is a source of national wealth, even of national power.

But the Senator from Vermont says that education is needed more in the diplomatic service than in the consular. Granted; it is needed very much in the diplomatic service; but because needed there, is that any reason why we should not supply it here? The argument, it seems to me, was hardly worthy of that Senator. Let a proposition be brought forward for an educational system applicable to our diplomatic representatives, and we will entertain it. Meanwhile let us act on that before us, which, I submit, is eminently practical in character. Who are our consuls? They are not diplomatic or political agents in the common sense of the term; they are commercial agents. To discharge their duties fitly, they should be familiar with the interests of commerce, how it is conducted, and the language it employs, where they happen to be. And permit me to say, that a great country like ours, one of whose chief sources of wealth and of grandeur is commerce, must not hesitate to supply the education needed to secure commercial representatives not unworthy of the Republic they represent.

As the consul is a commercial representative, he is on this account especially the agent of a commercial country. If our commerce were less, our interest in having good consuls would be less. But with the surpassing growth of our commerce this interest enlarges. To send abroad consuls without proper education must necessarily bring the national character into disrepute, and jeopard the concerns intrusted to them. For the sake of our good name abroad, which is part of our national possessions, and also for the sake of those vast commercial concerns which encircle the globe, I hope that this proposition, which is a small beginning in the right direction, will not be rejected.

March 16th, the debate was continued, and Mr. Sumner spoke again. The amendment was adopted,—Yeas 20, Nays 16,—and the bill passed the Senate. The House disagreed to the amendment, but afterwards accepted the report of a conference committee, authorizing the appointment of “consular clerks, not exceeding thirteen in number at any one time, who shall be citizens of the United States, and over eighteen years of age at the time of their appointment, and shall be entitled to compensation for their services respectively at a rate not exceeding one thousand dollars per annum, to be determined by the President.”[108]

THE LATE HON. OWEN LOVEJOY, OF THE HOUSE OF REPRESENTATIVES.

Speech in the Senate, on the Resolutions upon his Death, March 29, 1864.

MR. PRESIDENT,—It is proposed to adjourn in honor of Owen Lovejoy, whose recent death we mourn. Could his wishes prevail, Senators would continue in their seats and help enact into law some one of the several measures pending to secure the obliteration of Slavery. Such an act would be more acceptable to him than any personal tribute.

He spoke well always, but he believed in deeds rather than words, although speech with him was a deed. It was his contribution to that sublime cause for which he toiled always. Words may be often “the daughters of earth,” but there was little of earth in his. Proceeding from a pure and generous heart, they have so far prevailed, even during his life, that they must be named gratefully among those good influences by which the triumph has been won. How his enfranchised soul would be elevated, even in those abodes to which he is removed, at knowing that his voice is still heard on earth, encouraging, exhorting, insisting that there shall be no hesitation anywhere in striking at Slavery,—that this unpardonable wrong, from which alone the Rebellion draws its wicked life, must be blasted by Presidential proclamation, blasted by Act of Congress, blasted by constitutional prohibition, blasted in every possible way, by every available agency, and at every occurring opportunity, so that no trace of the outrage may continue in the institutions of the land, and especially that its accursed footprints may no longer defile the national statute-book! In vain you pass resolutions in tribute to him, if you neglect that cause for which he lived, and hearken not to his voice.

Shortly before he went away from Washington to die, I sat by his bedside. There, too, within call, was the beloved partner of his life. He was cheerful; but his thoughts were mainly turned to his country, whose fortunes in the bloody conflict with Slavery he watched with intensest care. He did not doubt the great result; but he longed to be at his post again, to teach his fellow-citizens, and to teach Congress, how vain to expect an end of the Rebellion without making an end of Slavery. It is only just to his fame that now, on this occasion of commemoration, all this should be faithfully told. To suppress it would be dishonest. I could not speak at his funeral, if I were expected to unite in robbing his grave of any of these honors derived from his transcendent courage and discernment in the trials of the present hour.

The Journals of the House show how faithfully he began his labors at the present session. On the 14th of December he introduced a bill, whose title discloses its character: “A bill to give effect to the Declaration of Independence, and also to certain provisions of the Constitution of the United States.” It proceeds to recite that all men are created equal, and endowed by the Creator with the inalienable right to life, liberty, and the fruits of honest toil; that the Government of the United States was instituted to secure those rights; that the Constitution declares that no person shall be deprived of liberty without due process of law, and also provides (Article six, clause two) that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”; that it is now demonstrated by the Rebellion that Slavery is absolutely incompatible with the union, peace, and general welfare for which Congress is to provide; and it therefore enacts that all persons heretofore held in slavery in any of the States or Territories of the United States are declared freedmen, and are forever released from slavery or involuntary servitude, except as punishment for crime on due conviction. On the same day he introduced another bill, to protect freedmen and to punish any one for enslaving them. These were among his last public acts. And now they testify how honestly he dealt with that question of questions in which all other questions are swallowed up. It is easy to see that he scorned the wicked fantasy that man can hold property in man. This pernicious delusion, which is the source of such intolerable pretensions on the part of slave-masters, and, worse still, of such intolerable irresolution on the part of many professing opposition to Slavery, could get no hold of him. He knew that it was a preposterous falsehood, as wicked as false, born of prejudice and supreme credulity, and therefore he brushed aside as cobweb all the fine-spun snares of law or Constitution so ingeniously woven in its support. Recognizing Freedom as the God-given birthright of all who wear the human form, he knew no duty higher than to protect it always; and to this end law and Constitution must minister.

He had never been a judge, and was not even a lawyer, so that the technicalities and subtilties of the profession had no chance of enslaving him. Besides, to a nature like his, independent and self-poised, what were the sophisms of learning and skill, when employed in the support of Wrong? It was enough, that, wherever Slavery appeared, it was in defiance of that commanding law of Right, before which all unjust pretensions, whatever form they take, must disappear like the morning dew under the flashing arrows of the ascending sun. From the beginning and at all times he was fixed against all compromise with Slavery, and stood like a fortress. Sir, let it be spoken here in his honor. He lies cold in death, but he could have no better epitaph than this: “Here rests one who would not compromise with Wrong.” When Senators and Presidents bent to the ignoble behest, he stood firm. He was gifted to see that Slavery, unlike Tariff or Bank, did not come within the range of compromise any more than the Decalogue or Multiplication Table. He saw well how shamefully unconstitutional and inhuman was the Fugitive Slave Act, in spite of every apology of compromise, and refused it all support. He lies cold in death, but his principles will live to sweep this unutterable atrocity from the statute-book, which it still fills from cover to cover with blackness.

He was not only a faithful counsellor of perfect loyalty, in whom truth was a religion and an instinct, but he was a counsellor whose experience of mankind and of public life united with aptitude for affairs in giving to what he said added value. He sat for several years in the other House face to face with Slave-Masters, who then ruled the country, so that he knew them well in every respect, but especially in their open brutality and surpassing effrontery. During this period, while shut out from participation in the public business, his duty was that of champion, and nobly did he perform it. But those who watched him under the responsibility recently cast upon a Representative of his character observed that he developed a practical talent which rendered him useful, not only as champion, but also as workman in the machine of government. He was a supporter of the present Administration, and of that declared policy which, according to the motto of Algernon Sidney, adopted on the arms of Massachusetts, seeks “placid quiet under Liberty,”—placidam sub Libertate quietem. There are few among his associates who may not be instructed and inspired by his magnanimous example.

He had been a lifelong soldier of Liberty, baptized into a service of blood. While yet young, his brother, an editor in Illinois, devoted to the slave, fell a victim to the cause he served so well. His fate awakened a wide sympathy throughout the country, drawing Channing from his retirement to speak at Faneuil Hall, and touching with a living coal the lips of Wendell Phillips, whose voice then and there, for the first time, flamed forth against Slavery. It was natural that Owen Lovejoy should assume those vows of perpetual warfare with the tyrant murderer which he so truly kept,—tyrant murderer of a cherished brother,—tyrant murderer of Liberty, not only on the plantation, but everywhere throughout the land,—tyrant murderer of the Constitution, which guards alike the rights of States and citizens,—and tyrant murderer of national peace, without which there can be no true prosperity or happiness. Thus, as a soldier of Liberty, he began, and he kept his harness on to the last.

He was one of the most amiable of men, whose heart was abundant with goodness and gentleness, and whose countenance streamed with sunshine. But on this account he was only the more inexorable toward a wrong so cruel in all its influences. A child of the New Testament, he was no stranger to the early Hebrew spirit, and had little patience with those who, born among Northern schools and churches, strove to arrest or mitigate the doom of Slavery. The famous curse of Meroz, so solemnly denounced against neutrality, which had been echoed from ancient Judea by English Puritans in their great contest, found an echo in his heart: “Curse ye Meroz, said the angel of the Lord, curse ye bitterly the inhabitants thereof, because they came not to the help of the Lord, to the help of the Lord against the mighty.”[109] Of course, in this spirit he used plain words, and did not hesitate. But if he did not hesitate, it was because he saw clearly the path of duty. Amiability did not make him doubt. He was a positive man, of positive principles, who knew well how much was always lost by timid counsels, especially on great occasions. Because there were some about him who were skeptical and irresolute, he was not disheartened, but preserved to the last an example of fidelity which history will piously enshrine. His own illustrations were from the sacred writings, but a heathen poet has given a warning which is part of the lesson of his life:—

“Old Priam’s age, or Nestor’s, may be out,

And thou, O Taurus, still go on in doubt.

Come, then, how long such wavering shall we see?

Thou mayst doubt on; but then thou’lt nothing be.”[110]

Of all doubts, there are none more painful or indefensible than those by which human rights are put in jeopardy.

He was a Representative of Illinois, born in Maine when Maine was part of Massachusetts, which made him a connecting link between the East and the West. The welcome he found in the West, and his complete fellowship with that region, while his sympathies overflowed to his early home, attest better than arguments the ligatures binding together these different parts of our common Union; so that, hereafter, should any malignant spirit seek to sow strife between us, his name alone will be a standing protest against the alienation. Born in the East, he was honored in the West. Honored in the West, he never lost his love for the East. But the whole country, not excepting the South, had a home in his patriotic, hospitable, and capacious heart. He hated Slavery; but he loved his country in every part, with heart, soul, and mind.

He was of the Old Guard of Antislavery, and we bury him with the honors that belong to such a soldier. Flags are at half-mast, and funeral guns are sounding in our hearts. But from his new-made grave he speaks now to the whole vast Republic, animating all good citizens to labor as he labored and to live as he lived, that this land may be redeemed. Especially does he speak to the State that honored him in life, and to those associate States constituting the mighty Northwest, where he found the home of his mature years,—Indiana, Michigan, Wisconsin, Iowa, Minnesota,—exhorting them to take up bravely and without faltering the cause he made his own, that it may not lose by his death. But, alas! the vigilance of many will be needed to supply the place he filled.

Such a character must be mourned in Congress; but he will be mourned throughout the country, at all those virtuous firesides where fathers, mothers, brothers, and sisters speak of those who have helped human happiness on earth. And there is another company, who cannot yet pronounce his name, but, as they hear how truly he was their friend, will rise to call him blessed. Already, unseen of men, in vast uncounted procession, the slaves of the Union help to swell his funeral.

COLORED SUFFRAGE IN THE TERRITORY OF MONTANA.

Speeches in the Senate, on an Amendment to the Bill for a Temporary Government of that Territory, March 31 and May 19, 1864.

March 30th, the Senate having under consideration a bill, that had already passed the House of Representatives, to provide a temporary government for the Territory of Montana, Mr. Wilkinson, of Minnesota, moved to amend the clause relating to persons entitled to vote and eligible to office, so that, instead of “every white male inhabitant,” it should read “every free male citizen of the United States, and those who have declared their intention to become such.” Mr. Reverdy Johnson at once declared that “the effect of the amendment was to admit to the elective franchise in the proposed Territory black men as well as white,” and, after mentioning the number of Africans now in the United States, he proceeded to say that “it can hardly be seriously contended, that, of that four millions, such portion of them as have been in a state of slavery from infancy to the present time are intelligent enough, or likely to become intelligent enough, at once to exercise the right of suffrage”; and he anticipated another question, “just as likely to excite the public as the question of the existence of Slavery in itself.”

March 31st, the amendment was adopted,—Yeas 22, Nays 17. The debate continuing, Mr. Johnson said that the term “citizen” was not applicable to “black men,” “because the Supreme Court of the United States has decided, and that question was directly before the Court in the Dred Scott case, that a person of African descent is not a citizen of the United States.” Mr. Wilkinson was willing it should stand according to his amendment, and let the decision of the Supreme Court be whatever it might. He wanted neither “white” nor “black” put into the bill. Mr. Sumner then remarked:—

“I take it that each branch of the Government can interpret the Constitution for itself. I think that Congress is as good an authority in its interpretation as the Supreme Court, and I hope that in legislation it will proceed absolutely without respect to a decision which has disgraced the country, and ought to be expelled from its jurisprudence.”

Mr. Johnson vindicated the Dred Scott decision at length, and made an elaborate eulogy of Chief Justice Taney. In the course of his remarks, he said: “There are many men, the equals of the honorable Senator, to say the least, intellectually, who think that that decision was anything but an outrage.… We have an interest, jurisprudence has an interest, justice has an interest, the nation has an interest, in maintaining the character of that tribunal against all unjust reproach. It is no light thing to pronounce a decision given by such a tribunal as that as a disgrace.… I cannot, therefore, stand still and hear a tribunal like that assailed, as I think unnecessarily, by anybody, and particularly by the honorable member from Massachusetts.”

Mr. Sumner replied:—

MR. PRESIDENT,—The multiplication table tells us that two and two make four. Now, if a tribunal honored like the Supreme Court should undertake to declare that two and two make five, and a Senator as distinguished as the Senator from Maryland should uphold the high tribunal in its decision, I am not satisfied that it would be presumptuous in me to call that decision in question. But the Dred Scott decision was as absurd and irrational as such a reversal of the multiplication table, besides shocking the moral sense of mankind. The Senator will pardon the little scruple with which I denounce it. I claim nothing for myself; I may be weak; but, according to the measure of my abilities as God has given them to me, I enter a standing protest against that atrocious judgment, which was false in law, and also false in the history with which it sought to maintain its false law.

The Senator seems to imply that I am not familiar with the case. Sir, I know it too well. I have read carefully the opinion of the Chief Justice, which the Senator now vaunts, and I have read, also, the opposing opinions, by the side of which that much vaunted opinion is dwarfed into the pettiness proper to a production in such a cause, ignoble in character, and impotent except in that little brief authority incident to judicial rank. The Senator pleads for this judgment in the name of jurisprudence, of justice, and of the nation. Sir, by the same title I denounce it,—in the name of jurisprudence, which it disgraces, of justice, which it denies, and of the nation it has offended.

Among the influences and agencies that helped forward the present Rebellion, and set fellow-citizens in bloody conflict with each other, the Dred Scott decision must always be held in dismal memory. It gave conspirators new confidence. It filled patriots for a while with despair. It became the platform of Slavery, whose tyrannical behests would have triumphed, had this decision been allowed to prevail. Hating the Rebellion in its origin and all the circumstances that nursed it into wicked being, we must hate this decision.

But the Senator wandered into eulogy of that old Supreme Court, now departed, when Marshall was Chief Justice, and from the past claimed consideration for the present. Sir, I have been no careless student of that court in its great and palmy days. I know the learning, wisdom, and ability of its judgments, and am proud that there are such pages in the jurisprudence of my country. My sentiments toward the court of that day are warmed, also, by personal experience. It is among the cherished reminiscences of early life, that I was privileged to know, as a youth might know, the illustrious magistrate whom the Senator praises so well. He received me at his table, and allowed me to accompany him in his morning walks to the court-room. He was a venerable character. But I pray the Senator not to claim for the Dred Scott decision any of the reverence justly belonging to his name. There is no question of tribute to Chief Justice Marshall, or respect for the tribunal while he presided over it. The Dred Scott decision is more noticed from contrast with all that is good and great in the decisions of other days. It is sad that the tribunal that had established such an authority among us should do an act by which its authority has been endangered.

This whole debate is in the nature of a diversion or a deviation, and therefore I bring it back to the precise point from which it started. The Senator from Maryland invoked the Dred Scott decision as a reason why Congress should not recognize colored persons as citizens. In reply I simply asserted the right of Congress to interpret the Constitution without constraint from the Supreme Court, and this I now repeat. Each branch of the Government must interpret the Constitution for itself, according to its own sense of obligation under the oath we have all taken. And God forbid that Congress should consent to wear the strait-jacket of the Dred Scott decision!

Mr. Johnson closed his reply by saying: “And without meaning to offend the honorable member from Massachusetts, and with all the personal regard which I feel for him, and recollecting the courtesy that he has extended to me, and which I have reciprocated from the bottom of my heart, I say to him, without any purpose of offence, that, if I am obliged to act upon the weight of authority upon all questions of Constitutional Law, I shall prefer holding to the opinion of Taney than holding to the opinion of the honorable member.” Mr. Hale, of New Hampshire, after remarking that he differed from Mr. Sumner, said: “I do not believe that I think any better of that decision than he does. I think it was an outrage upon the civilization of the age and a libel upon the law; but I do not think it was a disgrace to the Supreme Court of the United States.” [Laughter.]

The bill passed,—Yeas 29, Nays 8.

The House of Representatives disagreed to the Senate amendment, and a Committee of Conference was ordered, which reported in its favor. But the House again disagreed, and, April 15th, another Committee of Conference was appointed, under instructions, moved by Mr. Webster, of Maryland, “to agree to no report that authorizes any other than free white male citizens, and those who have declared their intention to become such, to vote.” The vote of the House on these instructions stood, Yeas 75, Nays 67. The Senate refused a further conference upon the terms proposed, which were abandoned by the House, and a conference without limitation was agreed to. May 19th, the Conference Committee reported, in lieu of the Senate amendment, the following clause: “All citizens of the United States, and those who have declared their intention to become such, and who are otherwise described and qualified under the fifth section of the Act of Congress providing for a temporary government for the Territory of Idaho, approved March 3, 1863.” The reference to the Idaho Act required explanation, when the following dialogue took place.

Mr. Sumner. I should like to know the nature of the substitute, if the Senator from Maine [Mr. Morrill] will be good enough to state it.

Mr. Morrill. I will state in a word that the effect of the amendment of the Committee of Conference is to authorize the temporary organization of the Government of Montana by that class of persons that were authorized to organize the Territory of Idaho.

Mr. Sumner. What class of persons was that?

Mr. Morrill. They were, as I recollect the qualification, white citizens of the United States, and such others as had declared their intention to become citizens. As it now stands, the qualification in Montana will be that the voters at the first election will be citizens of the United States, and such as have declared their intention to be citizens of the United States, and such as are qualified by the fifth section of the Act organizing the Territory of Idaho.

Mr. Sumner. That is, free white persons, I understand.

Mr. Morrill. That is what it comes to.…

Mr. Sumner. Is not the new proposition almost identical with the original House proposition on the question of color?

Mr. Morrill. On the question of the exclusion of colored men it is identical. It does exclude colored men.

Mr. Sumner. I understand that the point of difference between the two Houses was simply as to the word “white” or “black.”

Mr. Morrill. That was the principal question, and on that point I desire to say precisely how the Committee found the question.…

Mr. Sumner. Then the proposition, as I understand it, is, that the Senate shall abandon its position. Why so? Because the House of Representatives will not abandon its position.

Mr. Morrill. No, Sir, the Senator will allow me: because there did not seem to be any practical sense in adhering to it; because to adhere to it defeated the bill; because to adhere to it accomplished no earthly purpose, gave nobody any right.

Mr. Sumner. For the other House to adhere on the other side defeated the bill also.

Mr. Morrill. Yes.

Mr. Sumner. And the question is, Which shall adhere, the side that is right or the side that is wrong?

Mr. Morrill. And that is the question the Committee submit to the Senate.

Mr. Sumner. I hope the Senate will adhere to its original position, and I believe that the assertion of that principle at this moment is more important than the bill.

In the debate that ensued, Mr. Harlan said that he should “vote against the report of the Committee, chiefly, however, because he did not think there was a pressing necessity for the organization of another Territory in that part of our domain.” Mr. Sumner called attention to the Ordinance for the organization of the Northwest Territory, and then said:—

It will be observed that in this Ordinance, to which we so often refer as a commanding authority, there is no discrimination of color. Now I ask if this is not a good precedent. Like the present bill, it was applicable to a vast unsettled Territory. Senators may say that our fathers, in the Ordinance, were not practical. I am not of that number. Senators may say that our fathers, in the Declaration of Independence, were not practical. I am not of that number. Senators may say that our fathers, in the Constitution of the United States, which contains no discrimination of color, were not practical. I am not of that number. Sir, I believe that the authors of this Ordinance, and the authors of the Declaration of Independence, and the authors of the Constitution were eminently practical, when they excluded from those instruments any discrimination of color. But it is said that there are no persons in the new Territory to whom the principle is now applicable. This can make no difference. It is something to declare a principle, and I cannot hesitate to say that at this moment the principle is much more important than the bill. The bill may be postponed, but the principle must not be postponed.

Mr. Morrill. I will suggest to the Senator, if he will permit me,—

Mr. Sumner. Certainly.

—that the statement I made about its applicability was this: it is not by possibility applicable to any man of African descent. There are some five or six thousand Indians, to whom a bill in general phrase, without limitation of “white,” might possibly apply; I do not say that it would apply to them in this case.

Mr. Sumner. Practically, the subject-matter of this clause is not Indians, but the well-known African race of this continent; and it is proposed, by specious words wrapped up in a clause borrowed from another bill, to exclude them from the right of suffrage in this Territory; and the argument for this injustice, as my friend from New Hampshire [Mr. Hale] has so ably stated, is only a reproduction of that well-known ancient argument for Slavery in the Territories. How often were we in those days compelled to encounter the charge that we were not practical,—that we were urging a prohibition, when there was no occasion for it! For myself, I believe you cannot too often assert a prohibition of Slavery, nor too often assert human rights, wherever they may be called in question; and especially do I believe in the importance of such assertion when you are laying the foundations of a new community. “Just as the twig is bent the tree’s inclined.” These are familiar words of childhood. Would my friend from Maine have the tree that he plants grow up with a generous and protecting shelter for all mankind, or shall it be the bent and crabbed product of unhappy prejudices which are only a growth of Slavery? I know my friend means no such thing; but I insist that the policy he recommends tends to such fatal end. For myself, Sir, I am satisfied with the Declaration of Independence; I am satisfied with the Constitution on this important subject; and, adopting the language of our Lieutenant-General in the field, I desire to say, “I will fight on this line to the end, even if it takes all summer.” There is no line better than that of human rights. While fighting on that line, I cannot err; there is no pertinacity too great; there is no ardor that is not respectable. I thank General Grant for these words. They express his own steadfast purpose, and we all thank him. But each, in his sphere, may make them his own. I make them mine, wherever human rights are in question.

The report of the Conference Committee was adopted,—Yeas 26, Nays 13. And so this first battle for colored suffrage was lost.

CLAIMS ON FRANCE FOR SPOLIATIONS OF AMERICAN COMMERCE PRIOR TO JULY 31, 1801.

Report in the Senate, of the Committee on Foreign Relations, April 4, 1864.

April 14th, the Senate, after debate, ordered three thousand extra copies of this report,—Yeas 23, Nays 19. Mr. Reverdy Johnson, while urging the extra copies, remarked: “The report is quite an elaborate one, drawn up with all the fulness which characterizes papers of this description prepared by the Chairman of the Committee on Foreign Relations. He has collected together, very accurately, I have no doubt, all the facts connected with the claims. He has given the history of the proceedings in Congress and the proceedings of the Executive, and has examined very fully all the principles of law applicable to the questions which the claims present.”

The same report was subsequently adopted by the Committee on Foreign Relations, and printed by the Senate, March 12, 1867, and also January 17, 1870.

The Committee on Foreign Relations, to whom were referred numerous petitions and resolutions of State Legislatures, taken from the files of the Senate, and also the petition of sundry citizens of New York, presented at the present session, asking just compensation for “individual” claims on France, appropriated by the United States to obtain release from important “national” obligations, have had the same under consideration, and beg leave to report.

The welfare of the Republic requires that there should he an end of “suits,” lest, while men are mortal, these should be immortal. Such is a venerable maxim of the law, illustrated by the case before the Committee. The present claims have outlived all the original sufferers, and at least two generations of those who have so ably enforced them in the Halls of Congress. Against their unwonted vitality death has not been able to prevail.

CHARACTER OF THESE CLAIMS.

Of all claims in our history, these are most associated with great events and great sacrifices. First in time, they are also first in character, for they spring from the very cradle of the Republic and the trials of its infancy. To comprehend them, you must know, first, how independence was won, and, secondly, how, at a later day, peace was assured. Other claims have been personal or litigious; these are historic. Here were “individual” losses, felt at the time most keenly, and constituting an unanswerable claim upon France, which, at a critical moment, were employed by our Government, like a credit or cash in hand, to purchase release from outstanding “national” obligations, so that the whole country became at once trustee of these sufferers, bound, of course, to gratitude for the means thus contributed, but bound also to indemnify them against these losses. And yet these sufferers, thus unique in situation, have been compelled to see all other claims for foreign spoliations satisfied, while they alone have been turned away. At the beginning of our history, our plundered fellow-citizens obtained compensation to the amount of many million dollars on account of British spoliations. Similar indemnities have been obtained since from Spain, Naples, Denmark, Mexico, and the South American states, while, by the famous Convention of 1831, France contributed five million dollars to the satisfaction of spoliations under the Continental system of Napoleon. Spain stipulated to pay for every ship or cargo taken within Spanish waters, even by the French; so that French spoliations on our commerce within Spanish waters have been paid for, but French spoliations on our commerce elsewhere before 1800 are still unredeemed. Such has been the fortune of claimants the most meritorious of all.

In all other cases there has been simply a claim for foreign spoliations, but without superadded obligation on the part of our Government. Here is a claim for foreign spoliations, the precise counterpart of all other claims, but with superadded obligation, on the part of our Government, in the nature of a debt, constituting an assumpsit, or implied promise to pay; so that these sufferers are not merely claimants on account of French spoliations, but they are also creditors on account of a plain assumption by the National Government of the undoubted liability of France. The appeal of these creditor claimants is enhanced beyond the pecuniary interests involved, when we consider the nature of this assumption, and especially that in this way our country obtained final release from embarrassing stipulations with France contracted in the war for national independence. Regarding it, therefore, as debt, it constitutes part of that sacred debt incurred for national independence, and is the only part now outstanding and unpaid.

PRELIMINARY OBJECTIONS.

Before proceeding to consider the nature of existing obligations on the part of the United States, the Committee ask attention to three objections which they encounter on the threshold: the first, founded on the alleged antiquity of the original claims; the second, on the alleged character of the actual possessors; and the third, on the present condition of the country.

I.—CLAIMS ANCIENT, BUT NOT STALE.

It is said that the claims are ancient and stale, and therefore not to be entertained. It is true that the claims are the most ancient of any now pending, and that they date from the very origin of our existence as a nation. But in this respect they do not differ from a Revolutionary pension or a Revolutionary claim. Down to this day there is a standing committee of the Senate, entitled “Committee on Revolutionary Claims”; but if a claim traced to the Revolution must be rejected for staleness, there can be little use for this committee. If these claims, after uninterrupted sleep throughout the long intervening period, were now for the first time revived, they might be obnoxious to this imputation. But, as from the beginning of the century they have occupied the attention of Congress, and been sustained by speeches, reports, and votes, it is impossible to say that they have been allowed to sleep.

The whole case was stated with admirable succinctness, as long ago as 1807, by Mr. Marion, of South Carolina, in the report of a committee of the House of Representatives.

“From a mature consideration of the subject, and from the best judgment your Committee have been able to form on the case, they are of opinion that this Government, by expunging the second article of our Convention with France of the 30th September, 1800, became bound to indemnify the memorialists for those just claims which they otherwise would rightfully have had on the Government of France, for the spoliations committed on their commerce by the illegal captures made by the cruisers and other armed vessels of that power, in violation of the Law of Nations, and in breach of treaties then existing between the two nations; which claims they were, by the rejection of the said article of the Convention, forever barred from preferring to the Government of France for compensation.”[111]

Claims thus authoritatively stated at that early day cannot be overcome by any sleep.

It is true that these claims were pressed with less constancy and determination at the beginning of the century than at a later day. But there are two sufficient reasons for the change. First, the evidence on which they are founded was less generally known at the beginning than afterward. It was only in 1826, under the administration of John Quincy Adams, by the communication to Congress of the ample materials accumulated in the Archives of State, that the true strength of the case was fully revealed. Here, in one full volume, was the documentary history of the whole double transaction,[112] showing at once the original obligation of France, and the substituted obligation of the United States, reinforced by the associations of our own Revolutionary history. A more sufficient reason for this change is found in the fact, that for some time in the early part of the century our country was still laboring under pressure of the Revolutionary debt. As this pressure was gradually removed, and the national resources became more apparent, these claims were naturally urged with more confidence, until, on the final extinction of that debt, they occupied the attention of the best minds in both Houses of Congress.

No single question in our history has been the subject of such a succession of able reports. Whether counted or weighed, these reports are equally exceptional. They are no less than forty-one in number, twenty-two in the Senate and nineteen in the House. Among the eminent characters whose names they bear are Edward Livingston, John Holmes, Edward Everett, Daniel Webster, Caleb Gushing, Charles J. Ingersoll, John M. Clayton, and Rufus Choate. Out of the whole number only three have been adverse,—one in the Senate and two in the House. But the three adverse reports were evasive only, besides being prior to the communication of the decisive evidence on the subject. The thirty-six reports since that communication were all in favor of the claims.[113]

Resolutions in favor of these claims by thirteen States, being the original number which declared independence, have been presented to Congress between the years 1832 and 1858. Some States, not content with one series, have repeated their resolutions, and accompanied them with elaborate arguments. They all tend to the conclusion that it is the duty of Congress, without further delay, to provide for these claims; and Senators and Representatives are earnestly requested to use their best exertions for an Act of Congress to carry this obligation into effect.

Memorials and petitions from the beginning testify to the sleeplessness of these claims. On the 5th of February, 1802, only forty-six days after the promulgation of the Convention of 1800, they began, and they have continued from that early day down to this very session of Congress, making in all four thousand six hundred and two. Of these, nineteen hundred and thirty-one were in the Senate, two thousand six hundred and seventy-one in the House. They are chiefly from original sufferers, their executors, administrators, assigns, widows, and heirs, residing in the large seaports from which the despoiled vessels originally sailed; but there are some from all parts of the country, where, in the vicissitudes of life, the representatives of original sufferers have been carried,—all of which may be seen in the list of these petitioners.[114]

Two several times—once under President Polk, and again under President Pierce—both Houses of Congress concurred in an act for the relief of these claimants; but this tardy justice was arrested by Presidential veto.

In the face of this constant succession of reports, resolutions of State Legislatures, and petitions, constituting not only “continual claim,” but continual recognition of the claim,—the whole crowned by two several Acts of Congress,—it is impossible to infer negligence in the claimants, or, indeed, any assumption of inordinate confidence. They have had good reason to believe that they should be successful. Under such circumstances, the lapse of time, sometimes urged against them, becomes an argument in their favor; for it adds constantly recurring testimony to their merits, besides a new title from the disappointment to which they have been doomed. Claims beginning thus early, and thus sustained, may be ancient, but they cannot be stale.

II.—POSSESSORS OF THE CLAIMS ARE NOT SPECULATORS.

A trivial remark, which is rather slur than objection, may justify a moment’s attention. It is sometimes said that these claims are no longer the property of the original sufferers or their representatives, but that they have passed, like a fancy stock, into the hands of speculators. This remark, if it had foundation in fact, has little in equity. It would be hardly creditable for a government to take advantage of its own procrastination, and refuse just compensation, because the original sufferer had been compelled by unwelcome necessity to discount his claims.

From the nature of the case, such claims, being unliquidated, do not readily pass from hand to hand, but remain in the original custody, as has become apparent in ample experience. Precisely the same reflection was cast upon the claims against Spain, Denmark, and Naples,—and, indeed, it is cast upon long outstanding claims generally, until it has become a commonplace of sarcasm. The records of successive Commissions which have liquidated foreign claims afford its best refutation. In every case these Commissions required proof of property; but the evidence disclosed that the original sufferers, or their legal representatives, including heirs, executors, assignees of bankrupts, persons having a lien for advances, or underwriters, possessing in law and equity the same right as the original sufferers, were actual possessors of the larger part. There is no reason to suppose that it would be otherwise with the claims for French spoliations. On the contrary, it is believed that they remain substantially unchanged, except by legal inheritance.

The great speculator has been Death; for there are few of these claims that have not passed through his hands. Such a transfer cannot draw the title into doubt, especially when we consider the character of the petitioners whose names are spread on the journals of Congress. It is well known that in many families these claims still exist as heirlooms, transmitted by ancestral care in full confidence that sooner or later they will be recognized by the Government.

III.—PRESENT CONDITION OF THE COUNTRY NO REASON AGAINST PAYMENT OF JUST DEBTS.

It is sometimes suggested, that, even assuming the meritorious character of these claims, yet, in the present condition of the country, they ought to be postponed. Looking at the practical consequences of this suggestion, it will be found, that, though plausible in form, it is fatal in substance. Any postponement must inevitably throw these claims into direct competition with those now accumulating on account of losses during the Rebellion, having in their favor the swelling sympathies of our time. It is not unjust to human nature, if the Committee say that the distant in time, like the distant in space, is too often out of mind. If the earlier claims are just, they should not be exposed to the hazards of any such competition, when feeling will be stronger than reason. From the probability of future claims, whose shadows already commence, the argument is strengthened for the immediate satisfaction of those now existing, especially when we consider their character and origin.

The resources of the people are tasked to put down the Rebellion which Slavery has aroused. Let nothing be stinted. But there is another duty not to be forgotten. The just debts of the Republic must be paid, to the last dollar. Here, also, nothing must be stinted; and the glory of the one will be kindred to the glory of the other. The Republic will have new title to love at home and to honor abroad, when with one hand it overcomes the Rebellion now menacing its existence, and with the other does justice to ancient petitioners, long neglected, constituting the only remaining creditors left to us from the War of Independence.

STATEMENT OF THE QUESTION.

Therefore, putting aside all preliminary objections from alleged antiquity, from the character of the actual possessors, or from the present condition of the country, the Committee insist that the present obligations of the United States must be determined according to principles of justice and the facts of the case. The hearing now is as if there had been no lapse of time since the obligations accrued, and as if no war now existed to task the country.

Is the money justly due? To answer this question, the subject must be considered in detail, under several heads.

First. Claims of citizens of the United States against France, founded on spoliations of our commerce, as seen in their origin and history.

Secondly. Counter claims of France, founded on treaty stipulations and services rendered in the War of Independence, also as seen in their origin and history.

Thirdly. The Convention of 1800 and the reciprocal release of the two Governments, by which the “individual” claims of the petitioners were treated as a set-off to the “national” claims of France.

Fourthly. The assumption by our Government of the obligations of France, so that the United States were substituted for France, and became liable to these petitioners as France had been liable.

After considering these heads in their order, it will be proper to review the objections alleged against the liability of the United States: (1.) from the semi-hostile relations between France and the United States anterior to the Convention; (2.) from payments under the Louisiana Treaty; (3.) from payments under the Convention with France in 1831; (4.) from the Act of Congress annulling the early treaties with France; (5.) from the early efforts of our Government to obtain from France the satisfaction of these claims; and (6.) from the desperate character attributed to these claims at the time of their abandonment.

The question of “just compensation” will present itself last: (1.) in the advantages secured to the United States by the sacrifice of these claims; (2.) in the value of the losses which the claimants suffered; and (3.) in the recommendation of the Committee.

The subject is of such importance, from the magnitude of interests involved, and from its historic character, that the minuteness of this inquiry will not be regarded as superfluous.

I.
CLAIMS OF AMERICAN CITIZENS IN THEIR ORIGIN AND HISTORY.

The history of French spoliations on our commerce is a gloomy chapter, where a friendly power, assuming the name of Republic, shows itself fitful, passionate, and unjust. This conduct is more remarkable, when it is considered, that, only a short time before, France, while yet a kingdom, contributed treasure and blood to sustain our national independence. And yet an explanation may be found in the extraordinary temper of the times. By a generous uprising of the people the kingdom was overthrown, and then, as the alarmed royalties of Europe intervened, the head of the monarch was flung to them as a gage of battle. The gage had been accepted in advance, and all those royalties, by successive treaties, entered into coalition against France. The fleets of England came tardily into the great contest, but their presence gave to it a new character, and enveloped ocean as well as land in its flames. The growing commerce of the United States suffered from both sides, but especially from France, driven to frenzy by the British attempt, in the exercise of belligerent rights, to starve a whole nation.

French feelings were still further aroused against the United States, when, instead of friendship and alliance, France was encountered by the Proclamation of Neutrality launched by Washington on the 22d April, 1793, where he undertook, in behalf of the United States, to “adopt and pursue a conduct friendly and impartial toward the belligerent powers.”[115] Here, according to France, was a failure not only of that proper sympathy due from us, but even of solemn duties pledged by those early treaties which helped to secure the national independence. This failure, which became afterward the occasion of counter claims, contributed to the exasperations of the time.

An early apology, addressed to the American minister at Paris by the French Government, attests the spoliations which had begun, and discloses also their indefensible character, unless the common language spoken by the English and ourselves was a sufficient excuse. Here are the exact words:—

“We hope that the Government of the United States will attribute to their true cause the abuses of which you complain, as well as other violations of which our cruisers may render themselves guilty in the course of the present war. It must perceive how difficult it is to contain within just limits the indignation of our marines, and, in general, of all the French patriots, against a people who speak the same language and having the same habits as the free Americans. The difficulty of distinguishing our allies from our enemies has often been the cause of offences committed on board your vessels; all that the Administration could do is to order indemnification to those who have suffered, and to punish the guilty.”[116]

Thus recklessly did these spoliations begin. The National Convention associated itself with this injustice, when, on the 9th May, 1793, only seventeen days after the Proclamation of Neutrality, but before it had arrived in France, a retaliatory decree was issued in response to the British attempt at starvation,—arresting all neutral vessels laden with provisions and destined to an enemy port. The decree itself did not disguise that it was a violation of neutral rights; but the necessity of the hour was pleaded, and indemnity was promised to neutrals suffering by its operation.[117] Unwilling to await the dilatory performance of this promise, our minister at Paris remonstrated against the application of the decree to vessels of the United States. Amidst vacillations of the National Convention, which, under the urgency of our minister, at one time seemed to relent, the decree continued to be enforced against property of American citizens. Here were spoliations, confessed at the time to be in violation of neutral rights, which still rise in judgment.

As this intelligence reached the United States, our whole commerce was fluttered. Merchants hesitated to expose ships and cargoes to such cruel hazards. It was necessary that something should be done to enlist again their activity. The National Government came forward voluntarily, with assurance of protection and redress, in a circular letter, dated 27th August, 1793, when Mr. Jefferson, the Secretary of State, in the name of the President, used the following language: “I have it in charge from the President to assure the merchants of the United States concerned in foreign commerce or navigation, that due attention will be paid to any injuries they may suffer on the high seas or in foreign countries, contrary to the Law of Nations or to existing treaties, and that, on their forwarding hither well-authenticated evidence of the same, proper proceedings will be adopted for their relief.”[118] This circular was confirmed by President Washington, in his message of December 5, 1793, where he speaks as follows: “The vexations and spoliation understood to have been committed on our vessels and commerce by the cruisers and officers of some of the belligerent powers appeared to require attention. The proofs of these, however, not having been brought forward, the description of citizens supposed to have suffered were notified, that, on furnishing them to the Executive, due measures would be taken to obtain redress of the past and more effectual provisions against the future.”[119] Here, then, was a double promise from the National Government, and under its encouragement our merchants resumed their commerce, venturing once more upon the ocean. Their Government had tempted them, and, on the occurrence of “injuries on the high seas,” these good citizens, according to instructions, made haste to lodge with the Department of State the “well-authenticated evidence of the same.” Their children and grandchildren are waiting, even now, the promised redress.

Thus, at the very beginning, these spoliations were recognized by both Governments in their true character. The National Convention, even in its arbitrary edict, confessed them. The Administration of Washington, in its solemn assurance of protection, also confessed them. Offspring of wrongful violence in the heat of war, they were regarded on both sides as indefensible. Ministers, in this respect, reflected the sentiments of the two Governments. Fauchet, the French minister at Philadelphia, in a communication to the Secretary of State, under date of March 27, 1794, expressed himself in this manner: “If any of your merchants have suffered any injury by the conduct of our privateers, (a thing which would be contrary to the intention and express orders of the Republic,) they may with confidence address themselves to the French Government, which will never refuse justice to those whose claims shall be legal.”[120] Mr. Morris, our minister at Paris, under date of March 6, 1794, gave vent to his feelings: “These captures create great confusion, must produce much damage to mercantile men, and are a source of endless and well-founded complaint. Every post brings me piles of letters about it from all quarters, and I see no remedy.… In the mean time, if I would give way to the clamors of the injured parties, I ought to make demands very like a declaration of war.”[121] But M. Buchot, the French Commissioner of Foreign Relations, addressed Mr. Morris the following soothing words, under date of July 5, 1794: “The sentiments of the Convention and of the Government towards your fellow-citizens are too well known to you to leave a doubt of their dispositions to make good the losses which the circumstances inseparable from a great revolution may have caused some American navigators to experience.”[122] Such was the testimony, at that day, of ministers on both sides.

Meanwhile, Genet, the French minister, was recalled, at the instance of President Washington, on account of presumptuous interference in our affairs, especially hostile to the Proclamation of Neutrality; and John Jay reached London to negotiate the treaty of 1794 which goes under his name. The latter event added to the exasperation of France. But Mr. Monroe, who took the place of Mr. Morris at Paris, was full of sympathy for the new republic, even when he frankly discharged his unpleasant duties. In a communication to the Committee of Public Safety, under date of October 18, 1794, he exposed “a frightful picture of difficulties and losses, equally injurious to both countries, and which, if suffered to continue, will unavoidably interrupt for the time the commercial intercourse between them.”[123] Notwithstanding this strong language, his influence was thought to have prevailed so far that President Washington ventured to announce, in a confidential message of February 28, 1795, good news for our plundered merchants. “It affords me,” he said, “the highest pleasure to inform Congress that perfect harmony reigns between the two republics, and that those claims are in a train of being discussed with candor, and of being amicably adjusted.”[124] This perfect harmony was short-lived, and the hopes flowering from it were nipped.

The rumor of Mr. Jay’s negotiations with England had already produced uneasiness in France; but when the treaty, on its ratification, in October, 1795, was finally divulged, there was an outburst against us. The treaty was pronounced to be in violation of existing engagements with France, and our whole policy was openly branded by the President of the Directory, in reply to Mr. Monroe, as a “condescension of the American Government to the wishes of its ancient tyrants.”[125] The Directory refused to receive Charles Cotesworth Pinckney, sent by our Government in place of James Monroe. Meanwhile, by a succession of cruel edicts, it unleashed all its cruisers to despoil our commerce, and cry havoc wherever they sailed. On the 2d July, 1796, it was declared that “the French Republic will treat neutral vessels, either as to confiscation, as to searches, or capture, in the same manner as they shall suffer the English to treat them.”[126] The indefinite terms of this edict were justly denounced by our Government, as “giving scope for arbitrary constructions, and consequently for unlimited oppression and vexation.”[127] These results were soon manifest. With contagious injustice, the French commissioners at San Domingo reported to the Government at home, “that, having found no resource in finance, and knowing the unfriendly disposition of the Americans, and to avoid perishing in distress, they had armed for cruising, and that already eighty-seven cruisers were at sea, and that for three months preceding the Administration had subsisted and individuals been enriched with the products of those prizes.”[128] So extensively did this brutality prevail, that it was announced that American vessels “no longer entered the French ports, unless carried in by force.”[129]

This spirit of hostility broke forth in another edict of the Directory, which became at once a universal scourge to American commerce. This fulmination, bearing date March 2, 1797, after enlarging the list of contraband, and ordaining other measures of rigor, proceeds to declare all American vessels lawful prize, if found without a rôle d’équipage, or circumstantial list of the crew:[130] all of which was in violation of existing treaties, and also of American usage, which notoriously did not require, among a ship’s papers, any such list. No edict was so comprehensive in its sweep; for, as all our vessels were without this safeguard, they were all defenceless. Numberless spoliations ensued, so absolutely lawless and unjust that John Marshall did not hesitate to record of them in his journal, under date of December 17, 1797, “The claims of the American citizens for property captured and condemned for want of a rôle d’équipage” constituted “as complete a right as any individuals ever possessed.”[131] This right, thus complete, according to the judgment of our great authority, enters into a large part of the claims still pending before Congress.

As if to perfect this strange, eventful history, a third edict, at once inhospitable and unjust, was launched by the Directory, January 18, 1798, prohibiting “every foreign vessel which in the course of her voyage shall have entered into an English port from being admitted into a port of the French Republic, except in case of necessity,” and, still further, handing over to condemnation “every vessel found at sea loaded in whole or in part with merchandise the production of England or of her possessions.”[132] This edict was promptly denounced by the American plenipotentiaries newly arrived at Paris. In earnest, vigorous tones, they said that it invaded at the same time the interests and the independence of neutral powers,—that it took from them the profits of an honest and lawful industry, as well as the inestimable privilege of conducting their own affairs as their own judgment might direct,—and that acquiescence in it would establish a precedent for national degradation, authorizing any measures power might be disposed to practise.[133] Our plenipotentiaries depicted the spirit in which French spoliations had their origin, and the humiliating consequences of submission to the outrage; but the personal sufferers are, down to this day, without redress.

Perplexed and indignant, the United States constituted a special mission of three eminent citizens, Mr. Pinckney, Mr. Marshall, and Mr. Gerry, who were charged to secure indemnity for these spoliations. In his elaborate instructions, dated July 15, 1797, the Secretary of State, Mr. Pickering, lays down the following rule of conduct: “In respect to the depredations on our commerce, the principal objects will be to agree on an equitable mode of examining and deciding the claims of our citizens, and the manner and periods of making them compensation.… The proposed mode of adjusting those claims, by commissioners appointed on each side, is so perfectly fair, we cannot imagine that it will be refused.” Although this reparation was not made “an indispensable condition of the proposed treaty,” yet the plenipotentiaries were enjoined “not to renounce these claims of our citizens, nor to stipulate that they be assumed by the United States as a loan to the French Government.”[134] Thus fully were these claims recognized at the time by our Government, and most carefully placed under the protection of our plenipotentiary triumvirate.

The triumvirate found the French Republic in no mood of justice. Bonaparte was then triumphant at the head of the army of Italy, and Talleyrand was exhibiting his remarkable powers at the head of the foreign relations of France. Victory had given confidence, and the exulting Republic was standing tiptoe, more disposed to strike than negotiate, unless it could dictate, and implacable always towards England and all supposed to sympathize with that power. After exactions and humiliations hard to bear, the plenipotentiaries were compelled to return home without any official reception by the intoxicated Government to which they were accredited, but not before they had encountered the masterly ability of Talleyrand, who, in reply to their statement of the claims of the United States, presented the counter claims of France. Though in Paris merely on sufferance, they had unofficial interviews with various agents of the Republic, and even with Talleyrand himself; but without dwelling on details not pertinent to the occasion, it is enough to say, that, while refusing to offer a loan or bribe, they were able to declare frankly “that France had taken violently from America more than fifteen millions of dollars, and treated us in every respect as enemies”;[135] and also to receive from Talleyrand a concession, recorded in one of their despatches, that “some of those claims were probably just,” with the inquiry, “whether, if they were acknowledged by France, we could not give a credit as to the payment,—say, for two years?”[136] Here again was an admission not to be forgotten.

The return of our disappointed plenipotentiaries was aggravated by circumstances which an eminent Continental writer has not hesitated to brand as “unique in the annals of diplomacy.”[137] They had been invited to contribute a gratification of twelve hundred thousand francs, and the whole desperate intrigue, conducted by persons known in the correspondence as W, X, Y, Z, was unveiled to the world. The country was indignant, and war seemed imminent. By various acts of legislation Congress entered upon preparations, summoning Washington from retirement to gird on his sword once more as Lieutenant-General. The claims for French spoliations were never absent from mind. By Act of the 28th May, 1798, public vessels of the United States were authorized to capture all “armed vessels sailing under authority or pretence of authority from the Republic of France,” “which shall have committed, or which shall be found hovering on the coasts of the United States for the purpose of committing, depredations on the vessels belonging to citizens thereof”; and this statute was introduced by a preamble asserting “depredations on the commerce of the United States, … in violation of the Law of Nations and treaties between the United States and the French nation.” By Act of June 13, 1798, all commercial intercourse was suspended between the United States and France, until “the Government of France … shall clearly disavow, and shall be found to refrain from, the aggressions, depredations, and hostilities which have been and are by them encouraged and maintained against the vessels and other property of the citizens of the United States.” By Act of June 25, 1798, merchant vessels of the United States were authorized to resist search or seizure by any French armed vessel, to repel assaults, and to capture the aggressors, until “the Government of France … shall disavow, and shall cause the commanders and crews of all armed French vessels to refrain from, the lawless depredations and outrages hitherto encouraged and authorized by that Government against the merchant vessels of the United States.” By Act of July 7, 1798, the treaties with France were declared to be no longer obligatory on the United States; and this statute was introduced by a preamble asserting that “the just claims of the United States for reparation of injuries have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity.” Thus, by express words, in repeated acts, did Congress recognize these claims.

By such vigorous measures were the rights of these claimants asserted, while the country assumed an attitude of defence. The French Directory became less intolerable, and negotiations were invited again, with assurance that the former rudeness should not be renewed. John Adams was President, and for the sake of peace he seized the opportunity of this overture, by appointing Chief Justice Ellsworth, Patrick Henry, and William Vans Murray as a second plenipotentiary triumvirate to France. As Mr. Henry declined, Mr. Davie, of North Carolina, was substituted in his place. In adjusting the instructions President Adams himself took a personal part, as appears by a letter to the Secretary of State, where he says: “The principal points, indeed all the points, of the negotiation were so minutely considered and approved by me and all the heads of department that nothing remains but to put them into form and dress: this service I pray you to perform as promptly as possible.”[138] But “all the points” were three only: 1st, Indemnity for spoliations of American commerce; 2d, The unquestionable wrong of seizing American vessels for want of the paper known to French law as rôle d’équipage; 3d, The refusal to renew the treaty guaranty of the French West Indies. Such were the ultimata originally settled by the President and his cabinet on the 11th of March, 1799, and afterwards fully developed in the elaborate instructions of Mr. Pickering, dated 22d October, 1799, which, after announcing that “the conduct of the French Republic would well have justified an immediate declaration of war on the part of the United States,” proceeded to declare, as the first point, that the plenipotentiaries, “at the opening of the negotiation, will inform the French ministers that the United States expect from France, as an indispensable condition of the treaty, a stipulation to make to the citizens of the United States full compensation for all losses and damages which they shall have sustained by reason of irregular or illegal captures or condemnations of their vessels and other property.” And the instructions end, as they began, by declaring, first among the terms, “that an article be inserted for establishing a board with suitable powers to hear and determine the claims of our citizens, and binding France to pay or secure payment of the sums which shall be awarded.”[139] Observe the positiveness of the assertion.

These instructions attest the interest of our Government. Placed first among the ultimata adopted in the councils of President Adams, these indemnities were placed first in the diplomatic instructions. There is yet other evidence of the character and amount of the spoliations. The Secretary of State, in a report to Congress, dated January 18, 1799, after attributing them to French feeling on account of the British treaty, proceeds to characterize them in remarkable words: “Yet that treaty had been made by the French Government its chief pretence for those unjust and cruel depredations on American commerce which have brought distress on multitudes and ruin on many of our citizens, and occasioned a total loss of property to the United States of probably more than twenty millions of dollars.”[140] Such were the outrages for which our plenipotentiaries were to seek redress.

The Directory had ceased; but on reaching Paris the plenipotentiaries were cordially received by Talleyrand, the citizen minister of Foreign Affairs, who without delay presented them to the First Consul as he was about to mount for that wonderful campaign which, opening with the passage of the Alps, closed at Marengo. Negotiations commenced at once, Joseph Bonaparte, elder brother of the First Consul, and afterward King of Spain, being at the head of the commission on the part of France. “Appreciating,” as they announced, “the value of time,” the American plenipotentiaries, in a brief note, on the 7th of April,—the very day when the exchange of powers was completed,—proposed “an arrangement to ascertain and discharge the equitable claims of the citizens of either nation upon the other, whether founded on contract, treaty, or the Law of Nations”; all of which was to be done in order “to satisfy the demands of justice, and render a reconciliation cordial and permanent.”[141] Thus instantly were these claims presented. The French plenipotentiaries in their prompt reply admitted that “the first object of the negotiation ought to be the determination of the regulations, and the steps to be followed, for the estimation and indemnification of injuries for which either nation may make claim for itself or for any of its citizens.”[142] Here was the suggestion of claims, not only “individual,” but also “national,” under which loomed the counter claims of France.

The American plenipotentiaries, while professing to be free from “apprehension of an unfavorable balance,” protested against the consideration of any “national” claims until some “convenient stage of the negotiation, after it shall be seen what arrangement would be acceptable for the claims of citizens.”[143] The French plenipotentiaries rejoined by enforcing “national” as well as “individual” claims.[144] The issue seemed to be made. On the one side were the “individual” claims of American citizens, on the other side the “national” claims of France. The American plenipotentiaries were not authorized to recognize the “national” claims alone. The French plenipotentiaries were not authorized to recognize the “individual” claims, without a previous recognition on our part of the “national” claims. At last, after various efforts at harmony, it was officially announced that “the negotiation was at a stand on the part of France,” as her plenipotentiaries were constrained by instructions of the First Consul to make “the acknowledgment of former treaties the basis of negotiation and the condition of compensation.”[145] The First Consul was then on the Italian slope of the Alps, about to pounce upon the astonished Austrians. Claims and counter claims were of little concern to him.

Thus far the Committee have exhibited our claims in their origin and history. The time has come to change the scene, and to exhibit those counter claims which played such part in the successive negotiations, and finally produced that memorable dead-lock, when the two powers stood face to face with antagonist pretensions, unable to go forward, and unwilling to go backward.

II.
COUNTER CLAIMS OF FRANCE, THEIR ORIGIN AND HISTORY.

The counter claims of France differ widely from the claims of American citizens. They were not “individual,” but “national,” being founded on alleged violations of treaty stipulations assumed by the United States in return for the aid of France in the establishment of national independence. During the protracted controversy between the two republics they were detailed in numerous official notes; but they were brandished by Talleyrand, with offensive skill and effect, in the very faces of our insulted plenipotentiaries, under date of March 18, 1798, when, while driving them from Paris, he insisted “that the priority of grievances and complaints belonged to the French Republic,” and “that these complaints and these grievances were as real as numerous, long before the United States had the least grounded claim to make.”[146] Careful inquiry enables us to see that this allegation, thus confidently uttered, was not without a certain foundation; and here we revert to the history of our country.

The triumph with which the War of Independence happily ended came tardily, after seven years of battle, suffering, and exhaustion; but it was hastened, if not assured, by the generous alliance of France. From Bunker Hill to Saratoga the war was checkered with gloom, which even the surrender of Burgoyne did not suffice to dispel. Then came the dreary winter of Valley Forge, when soldiers of Washington, after treading the snows barefoot, were obliged, for want of blankets, to huddle all night by the fires, and even the stout heart of the commander-in-chief bent so far as to announce, in formal letter to Congress, that, “unless some great and capital change suddenly takes place, the army must inevitably be reduced to one or other of these three things,—starve, dissolve, or disperse.”[147] But the scene changed with the glad tidings that France, by solemn treaty, signed by Franklin, February 6, 1778, had bound herself to “guaranty to the United States their liberty, sovereignty, and independence, absolute and unlimited.” The camp broke forth with the mingled joy of soldier and patriot, as it turned gratefully to Lafayette, already by the side of Washington, glorious forerunner of armies and navies promised to our cause. Congress took up the strain, and, by unanimous vote, ratified the treaty which opened to our country the gates of the Future.

It is difficult to estimate the value of this treaty in money, especially when we consider its consequences. According to the report of Calonne, the French Minister of Finance, the war which ensued in the support of this guaranty cost France fourteen hundred and forty millions of francs, or about two hundred and eighty millions of dollars. But French blood, more costly than money, was shed on land and sea in the same cause, until at last the army of Cornwallis surrendered at Yorktown to the allied forces of Rochambeau and Washington, and the war closed by the recognition of our national independence. If liberty be priceless, if life be priceless, then was the aid lavished by France infinite beyond calculation.

The engagements were not all on the side of France. Beyond gratitude due for this powerful alliance, were express obligations solemnly assumed by the United States, not only in the Treaty of Alliance, but also in the Treaty of Amity and Commerce negotiated on the same day. These obligations, constituting the consideration of the weighty contract, were of two classes: first, a guaranty by the United States of the possessions of France in America; and, secondly, important privileges for the armed ships of France, with a promise of American convoy to French commerce.