Eng^d. by A. H. Ritchie

EDWIN M. STANTON

Charles Sumner; his complete works, volume 16 (of 20)

Copyright, 1877,
BY
FRANCIS V. BALCH, Executor.

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 XVI.

EQUAL RIGHTS, WHETHER POLITICAL OR CIVIL, BY ACT OF CONGRESS.

Letter to the Border State Convention at Baltimore, September 8, 1867.

September 12, 1867, Tennessee, Delaware, Maryland, Missouri, Kentucky, and the District of Columbia were fully represented in what was called “the Border State Convention,” which assembled in the Front Street Theatre, Baltimore. The object, in the language of the call, was “to advance the cause of manhood suffrage, and to demand of Congress the passage of the Sumner-Wilson bill.” The following letter from Mr. Sumner was read to the Convention.

Boston, September 8, 1867.

DEAR SIR,—I shall not be able to be with you at your Convention in Baltimore, according to the invitation with which you have honored me. I ask you to accept my best wishes.

Congress will leave undone what it ought to do, if it fails to provide promptly for the establishment of Equal Rights, whether political or civil, everywhere throughout the Union. This is a solemn duty, not to be shirked or postponed.

The idea is intolerable, that any State, under any pretension of State Rights, can set up a political oligarchy within its borders, and then call itself a republican government. I insist with all my soul that such a government must be rejected, as inconsistent with the requirements of the Declaration of Independence.

Faithfully yours,

Charles Sumner.

A letter from Hon. Henry Wilson stated: “At the last session I offered an amendment, on the 17th of July, allowing all, without distinction of color, to vote and hold office, making no distinction in rights or privileges.”

ARE WE A NATION?

Address before the New York Young Men’s Republican Union, at the Cooper Institute, Tuesday Evening, November 19, 1867.

And I will make them one nation in the land upon the mountains of Israel, … and they shall be no more two nations.… Neither shall they defile themselves any more with their idols, nor with their detestable things, nor with any of their transgressions.—Ezekiel, xxxvii. 22, 23.

In these days their union is so entire and perfect that they are not only joined together in bonds of friendship and alliance, but even make use of the same laws, the same weights, coins, and measures, the same magistrates, counsellors, and judges: so that the inhabitants of this whole tract of Greece seem in all respects to form but one single city, except only that they are not enclosed within the circuit of the same walls; in every other point, both through the whole republic and in every separate state, we find the most exact resemblance and conformity.—Polybius, General History, tr. Hampton, (London, 1756,) Vol. I. pp. 147, 148.

We represent the people,—we are a Nation. To vote by States will keep up colonial distinctions.… The more a man aims at serving America, the more he serves his colony. I am not pleading the cause of Pennsylvania; I consider myself a citizen of America.—Benjamin Rush, Speech in the Continental Congress, July, 1776: Bancroft, History of the United States, Vol. IX. p. 54.

It is my first wish to see the United States assume and merit the character of one great Nation, whose territory is divided into different States merely for more convenient government and the more easy and prompt administration of justice,—just as our several States are divided into counties and townships for the like purposes. Until this be done, the chain which holds us together will be too feeble to bear much opposition or exertion, and we shall be daily mortified by seeing the links of it giving way and calling for repair, one after another.—John Jay, Letter to John Lowell, May 10, 1785: Life, by William Jay, Vol. I. p. 190.

He took this occasion to repeat, that, notwithstanding his solicitude to establish a National Government, he never would agree to abolish the State Governments or render them absolutely insignificant. They were as necessary as the General Government, and he would be equally careful to preserve them.—George Mason, Speech in the Constitutional Convention, June 20, 1787: Debates, Madison Papers, Vol. II. pp. 914, 915.

Whether the Constitution be good or bad, the present clause clearly discovers that it is a National Government, and no longer a Confederation: I mean that clause which gives the first hint of the General Government laying direct taxes.—George Mason, Speech in the Virginia Convention to ratify the Constitution, June 4, 1788: Elliot’s Debates, (2d edit.,) Vol. III. p. 29.

The Declaration of Independence having provided for the national character and the national powers, it remained in some mode to provide for the character and powers of the States individually, as a consequence of the dissolution of the colonial system. Accordingly the people of each State set themselves to work, under a recommendation from Congress, to erect a local government for themselves; but in no instance did the people of any State attempt to incorporate into their local system any of those attributes of national authority which the Declaration of Independence had asserted in favor of the United States.—Alexander James Dallas, Argument in the Case of Michael Bright and others, in the Circuit Court of the United States, April 28, 1809: Life and Writings, p. 104.

Hence, while the sovereignty resides inherently and inalienably in the people, it is a perversion of language to denominate the State, as a body politic or government, sovereign and independent.—Ibid., p. 100.

America has chosen to be, in many respects and to many purposes, a Nation; and for all these purposes her government is complete, to all these objects it is competent. The people have declared, that, in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States; they are members of one great empire.—Chief Justice Marshall, Cohens v. Virginia, Wheaton, Rep., Vol. VI. p. 414.

This Address was prepared as a lecture, and was delivered on a lecture-tour reaching as far as Milwaukee, Dubuque, and St. Louis. On its delivery in New York, Dr. Francis Lieber was in the chair. It became the subject of various local notice and discussion.

The idea of Nationality had prevailed with Mr. Sumner from the beginning of his public life. In his appeal to Mr. Webster before the Whig State Convention, as early as September 23, 1846, while calling on the eminent Senator and orator to become Defender of Humanity, he recognized his received title, Defender of the Constitution, as justly earned by the vigor, argumentation, and eloquence with which he had “upheld the Union and that interpretation of the Constitution which makes us a Nation.”[1] And from that time he had always insisted that we were a Nation,—believing, that, while many things were justly left to local government, for which the States are the natural organs, yet the great principles of Unity and Human Rights should be placed under central guardianship, so as to be everywhere the same; and this he considered the essence of the Nation.—The word “Federal” Mr. Sumner habitually rejected for “National.” Courts and officers under the United States Government he called “National.”

ADDRESS.

MR. PRESIDENT,—At the close of a bloody Rebellion, instigated by hostility to the sacred principles of the Declaration of Independence, and inaugurated in the name of State Rights, it becomes us now to do our best that these sacred principles shall not again be called in question, and that State Rights shall not again disturb the national repose. One terrible war is more than enough; and since, after struggle, peril, and sacrifice, where every household has been a sufferer, we are at last victorious, it is not too much to insist on all possible safeguards for the future. The whole case must be settled now. The constant duel between the Nation and the States must cease. The National Unity must be assured,—in the only way which is practical and honest,—through the principles declared by our fathers and inwoven into the national life.

In one word, the Declaration of Independence must be recognized as a fundamental law, and State Rights, in all their denationalizing pretensions, must be trampled out forever, to the end that we may be, in reality as in name, a Nation.

Are we a Nation? Such is the question I now propose, believing that the whole case is involved in the answer. Are we a Nation? Then must we have that essential, indestructible unity belonging to a Nation, with all those central, pervasive, impartial powers which minister to the national life; then must we have that central, necessary authority inherent in just government, to protect the citizen in all the rights of citizenship; and then must we have that other central, inalienable prerogative of providing for all the promises solemnly made when we first claimed our place as a Nation.

Words are sometimes things; and I cannot doubt that our country would gain in strength and our people in comprehensive patriotism, if we discarded language which in itself implies certain weakness and possible disunion. Pardon me, if I confess that I have never reconciled myself to the use of the word “Federal” instead of “National.” To my mind, our government is not Federal, but National; our Constitution is not Federal, but National; our courts under the Constitution are not Federal, but National; our army is not Federal, but National. There is one instance where this misnomer does not occur. The debt of our country is always National,—perhaps because this term promises in advance additional security to the anxious creditor. “Liberty” and “Equality” are more than dollars and cents; they should be National also, and enjoy the same security.

During the imbecility of the Confederation, which was nothing but a league or fœdus, the government was naturally called Federal. This was its proper designation. Any other would have been out of place, although even then Washington liked to speak of the Nation. In summoning the Convention which framed the National Constitution, the States all spoke of the existing government as “Federal.” But after the adoption of the National Constitution, completing our organization as one people, the designation was inappropriate. It should have been changed. If not then, it must be now. New capacities require a new name. The word Saviour did not originally exist in the Latin; but St. Augustine, who wrote in this language, boldly used it, saying there was no occasion for it until after the Saviour was born.[2] If among us in the earlier day there was no occasion for the word Nation, there is now. A Nation is born.

The word Nation is suggestive beyond any definition of the dictionary. It awakens an echo second only to that of Country. It is a word of unity and power. It brings to mind intelligent masses enjoying the advantage of organization, for whom there is a Law of Nations,—as there is a Law of Nature,—each nation being a unit. Sometimes uttered vaguely, it is simply an intensive, as in the familiar exaggeration, “only a nation louder”; but even here the word furnishes a measure of vastness. In ordinary usage, it implies an aggregation of human beings who have reached such advanced stage of political development that they are no longer a tribe of Nomads, like our Indians,—no longer a mere colony, city, principality, or state,—but they are one people, throbbing with a common life, occupying a common territory, rejoicing in a common history, sharing in common trials, and securing to each the protection of the common power. We have heard, also, that a Nation is a people with the consciousness of Human Rights. Well spoke Louis the Fifteenth of France, when this word first resounded in his ears: “What means it? I am king; is there any king but me?” The monarch did not know that the Nation was more than king, all of which his successor learned among the earliest lessons of the Revolution, as this word became the inspiration and voice of France.

The ancients had but one word for State and City; nor did they use the word Nation as it is latterly used. Derived from the Latin nascor and natus, signifying “to be born” and “being born,” it was originally applied to a race or people of common descent and language, but seems to have had no reference to a common government. In the latter sense it is modern. Originally ethnological, it is now political. The French Communists have popularized the kindred word “Solidarity,” denoting a community of interests, which is an element of nationality. There is the solidarity of nations together, and also the solidarity of a people constituting one nation, being those who, according to a familiar phrase, are “all in one bottom.”

England early became a Nation; and this word seems to have assumed there a corresponding meaning. Sir Walter Raleigh, courtier of Queen Elizabeth, and victim of James the First, who was a master of our language, in speaking of the people of England, calls them “our Nation.”[3] John Milton was filled with the same sentiment, when, addressing England and Scotland, he says: “Go on, both hand in hand, O Nations, never to be disunited! be the praise and the heroic song of all posterity!”[4] In the time of Charles the Second, Sir William Temple furnished a precise definition, which foreshadows the definition of our day. According to this accomplished writer and diplomatist, a Nation was “a great number of families, derived from the same blood, born in the same country, and living under the same government and civil constitutions.”[5] Here is the political element. Johnson, in his Dictionary, follows Temple substantially, calling it “a people distinguished from another people, generally by their language, original, or government.” Our own Webster, the lexicographer, calls it “the body of inhabitants of a country united under the same government”; Worcester, “a people born in the same country and living under the same government”; the French Dictionary of the Academy, “the totality of persons born or naturalized in a country and living under the same government.”[6] Of these definitions, those of Webster and the French Academy are the best; and of the two, that of Webster the most compact.

These definitions all end in the idea of unity under one government. They contemplate political unity, rather than unity of blood or language. Undoubted nations exist without the latter. Various accents of speech and various types of manhood, with the great distinction of color, which we encounter daily, show that there is no such unity here. But this is not required. If the inhabitants are of one blood and one language, the unity is more complete; but the essential condition is one sovereignty, involving, of course, one citizenship. In this sense Gibbon employs the word, when, describing the people of Italy,—all of whom were recognized as Roman citizens,—he says: “From the foot of the Alps to the extremity of Calabria, all the natives of Italy were born citizens of Rome. Their partial distinctions were obliterated, and they insensibly coalesced into one great Nation, united by language, manners, and civil institutions, and equal to the weight of a powerful empire.”[7] Here dominion proceeding originally from conquest is consecrated by concession of citizenship, and the great historian hails the coalesced people as Nation.

One of our ablest writers of History and Constitutional Law, Professor Lieber, of Columbia College, New York, has discussed this question with learning and power.[8] According to this eminent authority, Nation is something more than a word. It denotes that polity which is the normal type of government at the present advanced stage of civilization, and to which all people tend just in proportion to enlightenment and enfranchisement. The learned Professor does not hesitate to say that such a polity is naturally dedicated to the maintenance of all the rights of the citizen as its practical end and object. It is easy to see that the Nation, thus defined, must possess elements of perpetuity. It is not a quicksand, or mere agglomeration of particles, liable to disappear, but a solid, infrangible crystallization, against which winds and rains beat in vain.

Opposed to this prevailing tendency is the earlier propensity to local sovereignty, which is so gratifying to petty pride and ambition. This propensity, assuming various forms in different ages and countries, according to the degree of development, has always been a species of egotism. When the barbarous islanders of the Pacific imagined themselves the whole world, they furnished an illustration of this egotism in its primitive form. Its latest manifestation has been in State pretensions. But here a distinction must be observed. For purposes of local self-government, and to secure its educational and political blessings, the States are of unquestioned value. This is their true function, to be praised and vindicated always. But local sovereignty, whether in the name of State or prince, is out of place and incongruous under a government truly national. It is entirely inconsistent with the idea of Nation. Perhaps its essential absurdity in such a government was never better illustrated than by the homely apologue of the ancient Roman,[9] which so wrought upon the secessionists of his day that they at once returned to their allegiance. According to this successful orator, the different members of the human body once murmured against the “belly,” which was pictured very much as our National Government has been, and they severally refused all further coöperation. The hands would not carry food to the mouth; nor would the mouth receive it, if carried; nor would the teeth perform their office. The rebellion began; but each member soon found that its own welfare was bound up inseparably with the rest, and especially that in weakening the “belly” it weakened every part. Such is the discord of State pretensions. How unlike that unity of which the human form, with heaven-directed countenance, is the perfect type, where every part has its function, and all are in obedience to the divine mandate which created man in the image of God! And such is the Nation.

Would you know the incalculable mischief of State pretensions? The American continent furnishes three different examples, each worthy of extended contemplation. There are, first, our Indians, aborigines of the soil, split into tribes, possessing a barbarous independence, but through this perverse influence kept in constant strife, with small chance of improvement. Each chief is a representative of State pretensions. Turning the back upon union, they turn the back upon civilization itself. There is, next, our neighbor republic, Mexico, where Nature is bountiful in vain, and climate lends an unavailing charm, while twenty-three States, unwilling to recognize the national power, set up their disorganizing pretensions, and chaos becomes chronic. The story is full of darkness and tragedy. The other instance is our own, where sacrifices of all kinds, public and private, rise up in blood before us. Civil war, wasted treasure, debt, wounds, and death are the witnesses. With wailing voice all these cry out against the deadly enemy lurking in State pretensions. But this wail is heard from the beginning of history, saddening its pages from generation to generation.

In ancient times the City-State was the highest type, as in Greece, where every city was a State, proud of its miniature sovereignty. The natural consequences ensued. Alliances, leagues, and confederations were ineffectual against State pretensions. The parts failed to recognize the whole and its natural supremacy. Amidst all the triumphs of genius and the splendors of art, there was no national life, and Greece died. From her venerable sepulchre, with ever-burning funeral lamps, where was buried so much of mortal beauty, there is a constant voice of warning, which sounds across continent and ocean, echoing “Beware!”

Rome also was a City-State. If it assumed at any time the national form, it was only because the conquering republic took to itself all other communities and melted them in its fiery crucible. But this dominion was of force, ending in universal empire, where the consent of the governed was of little account. How incalculably different from a well-ordered Nation, where all is natural, and the people are knit together in self-imposed bonds!

Then came the colossal power of Charlemagne, under whom peoples and provinces were accumulated into one incongruous mass. Here again was universal empire, but there was no Nation.

Legend and song have depicted the paladins that surrounded Charlemagne, fighting his battles and constituting his court. They were the beginning of that Feudal System which was the next form that Europe assumed. The whole country was parcelled among chieftains under the various names of Duke, Count, and Baron, each of whom held a district, great or small, where, asserting a local sovereignty, he revelled in State pretensions; and yet they all professed a common allegiance. Guizot was the first to remark that Feudalism, taken as a whole, was a confederation, which he boldly likens to what he calls the federal system of the United States. It is true that Feudalism was essentially federal, where each principality exercised a disturbing influence, and unity was impossible; but I utterly deny that our country can fall into any such category, unless it succumbs at last to the dogma of State pretensions, which was the essential element of the feudal confederation.

Feudalism was not a government; it was only a system. During its prevalence, the Nation was unknown. Wherever its influence subsided, the Nation began to appear; and now, wherever its influence still lingers on earth, there the yearnings for national life, instinctive in the popular heart, are for the time suppressed.

Curiously enough, Sweden and Hungary were not brought within the sphere of Feudalism, and these two outlying lands, left free to natural impulses, revealed themselves at an early day as Nations. When the European continent was weakened by anarchy, they were already strong in national life, with an influence beyond their population or means.

Feudalism has left its traces in England; but it was never sufficiently strong in that sea-girt land to resist the natural tendencies to unity, partly from its insular position, and partly from the character of its people. At an early day the seven-headed Heptarchy was changed into one kingdom; but a transformation not less important occurred when the feudal lords were absorbed into the government, of which they became a component part, and the people were represented in a central Parliament, which legislated for the whole country, with Magna Charta as the supreme law. Then was England a Nation; and just in proportion as the national life increased has her sway been felt in the world.

France was less prompt to undergo this change, for Feudalism found here its favorite home. That compact country, so formed for unity, was the victim of State pretensions. It was divided and subdivided. North and South, speaking the same language, were separated by a difference of dialect. Then came the great provinces, Normandy, Brittany, Burgundy, Provence, Languedoc, and Gascony, with constant menace of resistance and nullification, while smaller fiefs shared the prevailing turbulence. A French barony was an “autonomic government,” with a moated town, in contrast with an English barony, which was merged in the Kingdom. Slowly these denationalizing pretensions were subdued; but at last the flag of the French monarchy,—the most beautiful invention of heraldry,—with lilies of gold on a field of azure, and angelic supporters, waved over a united people. From that time France has been a Nation, filled with a common life, burning with a common patriotism, and quickened by a common glory. To an Arab chieftain, who, in barbaric simplicity, asked the number of tribes there, a Frenchman promptly replied, “We are all one tribe.”

Spain also triumphed over State pretensions. The Moors were driven from Granada. Castile and Aragon were united under Ferdinand and Isabella. Feudalism was overcome. Strong in the national unity, her kings became lords of the earth. The name of Spain was exalted, and her language was carried to the uttermost parts of the sea. For her Columbus sailed; for her Cortes and Pizarro conquered. But these adventurous spirits could have done little, had they not been filled with the exuberance of her national life.

Italy has been less happy. The pretensions of Feudalism here commingled with the pretensions of City-States. Petty princes and petty republics, restless with local sovereignty, constituted together a perpetual discord. That beauty which one of her poets calls a “fatal gift” tempted the foreigner. Disunited Italy became an easy prey. Genius strove in the bitterness of despair, while this exquisite land, where History adds to the charms of Nature and gilds anew the golden fields, sank at last to become, in the audacious phrase of Napoleon, simply a geographical name. A checker-board of separate States, it was little else. It had a place on the map, as in the memory, but no place in the present. It performed no national part. It did nothing for imitation or remembrance. Thus it continued, a fearful example to mankind. Meanwhile the sentiment of Nationality began to stir. At last it broke forth like the pent-up lava from its own Vesuvius, and Garibaldi was its conductor. Separate States, renouncing local pretensions, became greater still as parts of the great whole, and Italy stood forth a Nation, to testify against the intolerable jargon of State pretensions. All hail to this heroic revival, where dissevered parts have been brought together, as were those of the ancient Deity, and shaped anew into a form of beauty and power!

But Germany is the most instructive example. Here, from generation to generation, have State pretensions triumphed, perversely postponing that National Unity which is the longing of the German heart. Stretching from the Baltic to the Adriatic and the Alps, penetrated by great rivers, possessing an harmonious expanse of territory, speaking one language, filled with the same intellectual life, and enjoying a common name, which has been historic from the days of Tacitus, Germany, like France, seems formed for unity. Martin Luther addressed one of his grand letters An die Deutsche Nation (To the German Nation); and these words are always touching to Germans as the image of what they desire so much. Thus far the great longing has failed. Even the Empire, where all were gathered under one imperial head, was only a variegated patchwork of States. Feudalism, in its most extravagant pretensions, still prevails. Confederation takes the place of Nationality, and this vast country, with all its elements of unity, is only a discordant conglomerate. North and South are inharmonious, Prussia and Austria representing two opposite sections. Other divisions have been more perplexing. Not to speak of Circles, or groups, each with a diet of its own, which once existed, I mention simply the later division into thirty-nine States, differing in government and in extent, being monarchies, principalities, dukedoms, and free cities, all proportionately represented in a general council or diet, and proportionately bound to the common defence, but every one filled with State egotism. So complete was this disjunction, and such its intolerable pretensions, that internal commerce, the life-blood of the Nation, was strangled. Down to a recent day, each diminutive state had its own custom-house, where the traveller was compelled to exhibit his passport and submit to local levies. This universal obstruction slowly yielded to a Zollverein, or Customs-Union, under which these barriers were obliterated and customs were collected on the external frontiers. Here was the first triumph of Unity. Meanwhile the perpetual strife between Prussia and Austria broke out in terrible battle. Prussia has succeeded in absorbing several of the smaller states. But the darling passion of the German heart is still unsatisfied. Not in fact, but in aspiration only, is Germany one nation. Patriot Poetry takes up the voice, and, scorning the claims of individual states, principalities, and cities, scorning also the larger claims of Prussia and Austria alike, exclaims, in the spirit of a true Nationality:—

“That is the German’s fatherland

Where Germans all as brothers glow;

That is the land;

All Germany’s thy fatherland.”

God grant that the day may soon dawn when all Germany shall be one!

Confessing the necessity of a true national life, we have considered what is a Nation, and how the word itself implies indestructible unity under one government with common rights of citizenship; and then we have seen how this idea has grown with the growth of civilization, slowly conquering the adverse pretensions of States, until at last even Italy became one nation, while Germany was left still struggling for the same victory. And now I come again to the question with which I began.

Are we a Nation? Surely we are not a City-State, like Athens and early Rome in antiquity, or like Florence and Frankfort in modern times; nor, whatever the extent of our territory, are we an Empire cemented by conquest, like that of later Rome, or like that of Charlemagne; nor are we a Feudal Confederation, with territory parcelled among local pretenders; nor are we a Confederation in any just sense. From the first settlement of the country down to the present time, whether in the long annals of the Colonies or since the Colonies were changed into States, there has been but one authentic voice: now breaking forth in organized effort for Union; now swelling in that majestic utterance of a united people, the Declaration of Independence; now sounding in the scarcely less majestic utterance of the same united people, the opening words of the National Constitution; and then again leaping from the hearts of patriots. All these, at different times and in various tones, testify that we are one people, under one sovereignty, vitalized and elevated by a dedication to Human Rights.

There is a distinction for a long time recognized by German writers, and denoted by the opposite terms Staatenbund and Bundesstaat,—the former being “a league of states,” and the latter “a state formed by a league.” In the former the separate states are visibly distinct; in the latter they are lost in unity. And such is the plain condition of our republic.

Of the present thirty-seven States only thirteen were originally Colonies; three are offsets from some of these; all the rest have been founded on territory which was the common property of the people of the United States, and at their own request they have been received into the fellowship of government and citizenship. If on any ground one of the original Thirteen might renounce its obligations to the Union, it would not follow that one of the new States, occupying the common territory, could do likewise. It is little short of madness to attribute such a denationalizing prerogative to any State, whether new or old. For better or worse, we are all bound together in one indissoluble bond. The National Union is a knot which in an evil hour the sword may cut, but which no mortal power can unloose without the common consent.

From the earliest landing, this knot has been tying tighter and tighter. Two ways it promptly showed itself: first, in the common claim of the rights of British subjects; and, secondly, in the common rights of citizenship coextensive with the Colonies, and the consequent rights of every Colony in every other Colony.

The Colonies were settled separately, under different names, and each had its own local government. But no local government in any Colony was allowed to restrict the rights, liberties, and immunities of British subjects. This was often declared. Above all charters or local laws were the imprescriptible safeguards of Magna Charta, which were common to all the inhabitants. On one occasion, the Legislature of Massachusetts reminded the king’s governor of these safeguards in memorable words: “We hope we may without offence put your Excellency in mind of that most grievous sentence of excommunication solemnly denounced by the Church in the name of the sacred Trinity, in the presence of King Henry the Third and the estates of the realm, against all those who should make statutes, or observe them, being made, contrary to the liberties of Magna Charta.”[10] Massachusetts spoke for all the Colonies. Enjoyment of common rights was a common bond, constituting an element of nationality. As these rights grew more important, the common bond grew stronger.

The rights of citizenship in the Colonies were derived from common relations to the mother country. No Colonist could be an alien in any other Colony. As British subject he had the freedom of every Colony, with the right of making his home there, and of inheriting lands. Among all the Colonies there was a common and interchangeable citizenship, or inter-citizenship. The very rule of the Constitution then began, that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Here was another element of nationality. If not at that time fellow-citizens, all were at least fellow-subjects. Fellowship had begun. Thus in the earliest days, even before Independence, were the Colonists one people, with one sovereignty, afterwards renounced.

Efforts for a common government on this side of the ocean soon showed themselves. The Pilgrims landed at Plymouth in 1620. As early as 1643, only twenty-three years later, there was a confederation under the name of “The United Colonies of New England,” formed primarily for the common defence; and here is the first stage of nationality on this continent. In the preamble to the Articles the parties declare: “We, therefore, do conceive it our bounden duty without delay to enter into a present consociation amongst ourselves for mutual help and strength in all our future concernments, that, as in nation and religion, so in other respects, we be and continue One.”[11] Better words could not mark the beginning of a nation. A distinguished character of the time, recording the difficulties encountered by the Articles, says: “But, being all desirous of union and studious of peace, they readily yielded each to other in such things as tended to common utility, etc., so as in some two or three meetings they lovingly accorded.”[12] Encouraged by “loving accord,” another proposition was brought forward in Massachusetts, “for all the English within the United Colonies to enter into a civil agreement for the maintenance of religion and our civil liberties.”[13] More than a century elapsed before this aspiration was fulfilled.

Meanwhile the Colonies grew in population and power. No longer merely scattered settlements, they began to act a part in history. Anxious especially against French domination, already existing in Canada and extending along the Lakes to the Mississippi, they came together in Congress at Albany, in 1754, to take measures for the common defence. Delegates were present from seven Colonies, being all north of the Potomac. Here the genius of Benjamin Franklin prevailed. A plan from this master mind provided for what was called a “General Government,” administered by a “President-General and Grand Council,” where each Colony should have representatives in proportion to its contributions,—Massachusetts and Virginia having seven each, while New York had only four; and the first meeting of the “General Government” was to be at Philadelphia.[14] Local jealousy and pretension were then too strong for such a Union: and it found no greater favor in England; for there Union was “dreaded as the keystone of Independence.”[15] In defending this plan, Franklin, who had not yet entered into the idea of Independence, did not hesitate to say that he looked upon the Colonies “as so many counties gained to Great Britain,”[16]—employing an illustration which most forcibly suggested actual Unity. Though this experiment failed, it revealed the longing for one Cisatlantic government, and showed how under other auspices it might be accomplished.

Little more than ten years elapsed before the same yearning for common life appeared again in the Colonial Congress at New York, convened in 1765, on the recommendation of Massachusetts, to arrest the tyranny of the Stamp Act and assaults upon the common liberties. Nine Colonies, after deliberation, united in a Declaration of Rights common to all. Here was the inspiration of James Otis, the youthful orator of Freedom, whose tongue of flame had already flashed the cry, “Taxation without representation is tyranny,” and that other cry, worthy of perpetual memory, “Equality and the power of the whole, without distinction of color.” These were voices that heralded our Nation.

The mother country persisted; and in the same proportion the Colonies were aroused to the necessity of union. Meanwhile that inflexible Republican, Samuel Adams, of Massachusetts, brooding on the perils to Liberty, conceived the idea of what he called “a Congress of American States,” out of whose deliberations should come what he boldly proclaimed “an American Commonwealth,”[17]—not several commonwealths, not Thirteen, but One. Here, in a single brilliant flash, was revealed the image of National Unity, while the word “Commonwealth” denoted the common weal which all should share. The declared object of this burning patriot was “to answer the great purpose of preserving our liberties,”[18]—meaning, of course, the liberties of all. Better words could not be chosen to describe a republican government. This was in 1773. Every Colony, catching the echo, stirred with national life. Delegates were appointed, and in 1774 a Congress called “Continental,” with a representation from twelve Colonies, was organized at Philadelphia, and undertook to speak in the name of “the good people” of the Colonies. Here was a national act. In the Declaration of Rights which it put forth,—fit precursor of the Declaration of Independence,—it grandly claims, that, by the immutable laws of Nature, the principles of the English Constitution, and the several Charters, all the inhabitants are “entitled to life, liberty, and property,” and then announces “that the foundation of English liberty and of all free government is a right in the people to participate in their legislative council.”[19] Here was a claim of popular rights as a first principle of government. Proceeding from a Congress of all, such a claim marks yet another stage of national life.

The next year witnessed a second Continental Congress, also at Philadelphia, which entered upon a mightier career. Proceeding at once to exercise national powers, this great Congress undertook to put the Colonies in a state of defence, authorized the raising of troops, framed rules for the government of the army, commenced the equipment of armed vessels, and commissioned George Washington as “general and commander-in-chief of the army of the United Colonies, and of all the forces now raised or to be raised by them, and of all others who shall voluntarily offer their service and join the said army, for the defence of American liberty.” Here were national acts, which history cannot forget, and their object was nothing less than American liberty. It was American liberty which Washington was commissioned to defend. Under these inspirations was our Nation born. The time had now come.

Independence was declared. Here was an act which, from beginning to end, in every particular and all its inspirations, was National, stamping upon the whole people Unity in the support of Human Rights. It was done “in the name and by authority of the good people of these Colonies,” called at the beginning “one people,” and it was entitled “Declaration by the Representatives of the United States of America in Congress assembled,” without a word of separate sovereignty. As a National act it has two distinct features: first, a severance of the relations between the “United Colonies” and the mother country; and, secondly, a declaration of self-evident truths on which the severance was justified and the new Nation founded. It is the “United Colonies” that are declared free and independent States; and this act is justified by the sublime declaration that all men are created equal, with certain inalienable rights, and that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed. Here was that “American Commonwealth,” the image of National Unity, dedicated to Human Rights, which had enchanted the vision of the early patriot seeking new safeguards for Liberty. Here was a new Nation, with new promises and covenants, never before made. The constituent authority was “the People.” The rights it promised and covenanted were the Equal Rights of All; not the rights of Englishmen, but the rights of Man. On this account our Declaration has its great meaning in history; on this account our nation became at once a source of light to the world. Well might the sun have stood still on that day to witness a kindred luminary ascending into the sky!

In this sudden transformation where was the sovereignty? It was declared that the United Colonies are and of right ought to be free and independent States. It was never declared that the separate Colonies were so of right. Plainly they never were so in fact. Therefore there was no separate sovereignty either of right or in fact. The sovereignty anterior to Independence was in the mother country; afterwards it was in the people of the United States, who took the place of the mother country. As the original sovereignty was undivided, so also was that sovereignty of the people which became its substitute. If authority were needed for this irresistible conclusion, I might find it in the work of the great commentator, Mr. Justice Story, and in that powerful discourse of John Quincy Adams entitled “The Jubilee of the Constitution,” in both of which the sovereignty is accorded to the People, and not to the States. Nor should I forget that rarest political genius, Alexander Hamilton, who, regarding these things as a contemporary, declared most triumphantly that “the Union had complete sovereignty”; that “the Declaration of Independence was the fundamental constitution of every State”; and, finally, that “the union and independence of these States are blended and incorporated in one and the same act.”[20] Such was the great beginning of national life.

A beautiful meditative poet, whose words are often most instructive, confesses that we may reach heights we cannot hold:—

“And the most difficult of tasks to keep

Heights which the soul is competent to gain.”[21]

Our nation found it so. Only a few days after the great Declaration in the name of “the People,” Articles of Confederation were brought forward in the name of “the States.” Evidently these were drawn before the Declaration, and they were in the handwriting of John Dickinson, then a delegate from Pennsylvania, whom the eldest Adams calls “the bell-wether of the aristocratical flock,”[22] and who had been the orator against the Declaration. Not unnaturally, an opponent of the Declaration favored a system which forgot the constituent sovereignty of the people, and made haste to establish the pretensions of States. These Articles were not readily adopted. There was hesitation in Congress, and then hesitation among the States. At last, on the 1st of March, 1781, Maryland gave a tardy adhesion, and this shadow of a government began. It was a pitiful sight. The Declaration was sacrificed. Instead of “one people,” we were nothing but “a league” of States; and our nation, instead of drawing its quickening life from “the good people,” drew it from a combination of “artificial bodies”; instead of recognizing the constituent sovereignty of the people, by whose voice Independence was declared, it recognized only the pretended sovereignty of States; and, to complete the humiliating transformation, the national name was called “the style,” being a term which denotes sometimes title and sometimes copartnership, instead of unchangeable unity. Such an apostasy could not succeed.

Even before the adoption of this denationalizing framework, its failure had begun. The Confederation became at once a byword and a sorrow. It was not fit for war or peace. It accomplished nothing national. It arrested all the national activities. Each State played the part of the feudal chieftain, selfishly absorbing power and denying it to the Nation. Money could not be collected even for national purposes. Commerce could not be regulated. Justice could not be administered. Rights could not be assured. Congress was without coercive power, and could act only through the local sovereignty. National unity was impossible, and in its stead was a many-headed pretension. The country was lapsing into chaos.

From Boston, which was the early home of the Revolution, had already proceeded a cry for Nationality. A convention of delegates from Massachusetts, Connecticut, and New Hampshire, with Thomas Cushing as President, assembled at Boston in August, 1780, where, among other things, it was recommended “that the Union of these States be fixed in a more solid and permanent manner, that the powers of Congress be more clearly ascertained and defined, and that the important national concerns of the United States be under the superintendency and direction of one supreme head,” and the word Nation is adopted as the natural expression for our unity.[23] But the time had not yet come for this fulfilment.

In the prevailing darkness, two voices made themselves heard, both speaking for National Unity on the foundation of Human Rights. The singular accord between the two, not only in sentiment, but also in language, and in date of utterance, attests concert. One voice was that of Congress, in an Address and Recommendations to the States on the close of the war, bearing date 18th April, 1783, where, urging “effectual provision” for the war debts, as demanded alike by national honor, and the honor of the cause in which they had been contracted, it was said, in words worthy of companionship with the immortal Declaration: “Let it be remembered that it has ever been the pride and boast of America that the rights for which she contended were the rights of Human Nature.”[24] The other voice was that of Washington, in a general order, also bearing date 18th April, 1783, announcing the close of the war, where, after declaring his “rapture” in the prospect before the country, he says: “Happy, thrice happy, shall they be pronounced hereafter who have contributed anything, who have performed the meanest office, in erecting this stupendous fabric of Freedom and Empire on the broad basis of Independency, who have assisted in protecting the rights of Human Nature.”[25] This appeal was followed by a circular letter to the Governors, where, after announcing that it is for the United States to determine “whether they will be respectable and prosperous or contemptible and miserable as a Nation,” Washington proceeds to name first among the things essential to national well-being, if not even to national existence, what he calls “an indissoluble union of the States under one federal head”; and he adds, that there must be a forgetfulness of “local prejudices and policies,” and that “Liberty” must be at the foundation of the whole structure.[26] Soon afterwards appearing before Congress to surrender the trust committed to him as commander-in-chief, he hailed the United States as a “Nation,” and “our dearest country,”[27]—thus embracing the whole in his heart, as for seven years he had defended the whole by his prudence and valor.

An incident of a different character attested the consciousness of National Unity. The vast outlying territory, unsettled at the beginning of the war, and wrested from the British crown by the common blood and treasure, was claimed as a common property, subject to the disposition of Congress for the general good. One by one, the States yielded their individual claims. The cession of Virginia comprehended all that grand region northwest of the Ohio, fertile and rich beyond imagination, where are now prosperous States rejoicing in the Union. All these cessions were on the condition that the lands should “be disposed of for the common benefit of the United States, and be settled and formed into distinct republican States.”[28] Here was a National act, with the promise of republican government, which was the forerunner of the guaranty of a republican government in the National Constitution.

The best men, in their longing for national unity, all concurred in the necessity of immediate action to save the country. Foremost in time, as in genius, was Alexander Hamilton, who was prompt to insist that Congress should have “complete sovereignty, except as to that part of internal police which relates to the rights of property and life among individuals and to raising money by internal taxes”; and still further, in words which harmonized with the Declaration of Independence, that “the fabric of the American empire ought to rest on the solid basis of the consent of the people.”[29] In kindred spirit, Schuyler announced “the necessity of a supreme and coercive power in the government of these States.”[30] Hamilton and Schuyler were both of New York, which, with such representatives, took the lead in solemn resolutions, which, after declaring that “the situation of these States is in a peculiar manner critical,” and that “the present system exposes the common cause to a precarious issue,” concluded with a call for “a general convention of the States, specially authorized to revise and amend the Confederation.”[31] The movement ended in the National Convention. Other States followed, and Congress recommended it as “the most probable means of establishing in these States a firm National Government.”[32] Meantime, Noah Webster, whom you know so well as author of the popular Dictionary, in an essay on the situation, published at the time, proposed a new system of government, which should act directly on the individual citizens, and by which Congress should be invested with full powers of legislation within its sphere, and for carrying its laws into effect.[33] But this proposition involved nothing less than a National Government with supreme powers, to which the States should be subordinate.

Here I mention three illustrious characters, who at this time lent the weight of their great names to the national cause,—Jay, Madison, and Washington,—each in his way without a peer. I content myself with a few words from each. John Jay, writing to John Adams, at the time our minister in London, under date of 4th May, 1786, says: “One of the first wishes of my heart” is “to see the people of America become One Nation in every respect; for, as to the separate Legislatures, I would have them considered, with relation to the Confederacy, in the same light in which counties stand to the State of which they are parts, viz., merely as districts to facilitate the purposes of domestic order and good government.”[34] Even in this strong view Jay was not alone. Franklin had already led in likening the colonies to “so many counties.”[35] Madison’s desires were differently expressed. After declaring against “an individual independence of the States,” on the one side, and “a consolidation of the States into one simple republic,” on the other side, he sought what he called a “middle ground,” which, if varying from that of Jay, was essentially national. He would have “a due supremacy of the National authority, and leave in force the local authorities so far as they can be subordinately useful.”[36] Here is the definition of a Nation. Washington, in a letter to Jay, dated 1st August, 1786, stated the whole case with his accustomed authority. Insisting upon the importance of “a coercive power,” he pleads for national life: “I do not conceive we can exist long as a Nation without having lodged somewhere a power which will pervade the whole Union in as energetic a manner as the authority of the State governments extends over the several States.” He then adds: “To be fearful of investing Congress, constituted as that body is, with ample authorities for National purposes, appears to me the very climax of popular absurdity and madness.”[37] Such were the longings of patriots, all filled with a passion for country. But Washington went still further, when, on another occasion, he denounced State sovereignty as “bantling,” and even “monster.”[38]

The Constituent Convention, often called Federal, better called National, assembled at Philadelphia in May, 1787. It was a memorable body, whose deliberations have made an epoch in the history of government. Jefferson and John Adams were at the time abroad in the foreign service of the country, Samuel Adams was in service at home in Massachusetts, and Jay in New York; but Washington, Franklin, Hamilton, Madison, Gouverneur Morris, George Mason, Wilson, Ellsworth, and Sherman appeared among its members. Washington, by their unanimous voice, became President; and, according to the rules of the Convention, on adjournment, every member stood in his place until the President had passed him. Here is a glimpse of that august body which Art may yet picture. Who would not be glad to look upon Franklin, Hamilton, and Madison standing in their places while Washington passed?

On the first day after the adoption of the rules, Edmund Randolph, of Virginia, opened the great business. He began by announcing that the “Confederation” produced no security against foreign invasion; that the “Federal Government” could not suppress quarrels or rebellion; that the “Federal Government” could not defend itself against encroachments from the States; and then, insisting that the remedy must be found in “the republican principle,” concluded with a series of propositions for a National Government, with a “National” Legislature in two branches, a “National” Executive, and a “National” Judiciary, the whole crowned by the guaranty of a republican government in each State. This series of propositions was followed the next day by a simple statement in the form of a resolution, where, after setting forth the insufficiency of “a union of the States merely Federal,” or of “treaties among the States as individual sovereignties,” it was declared “that a National Government ought to be established, consisting of a supreme legislative, executive, and judiciary.” Better words could not have been chosen to express the prevailing aspiration for national life. After ample debate, the resolution in this form was adopted. At a later stage, in seeming deference to mistaken sensibilities, the word “National” gave place to the term “the government of the United States”; but this term equally denoted National Unity, although it did not use the words. The whole clause afterwards found a noble substitute in the Preamble to the Constitution, which is the annunciation of a National Government proceeding directly from the People, like the Declaration of Independence itself.

From the beginning to the end of its debates, the Convention breathed the same patriotic fervor. Amidst all difference in details, and above the persistent and sinister contest for the equal representation of the States, great and small, the sentiment of Unity found constant utterance. I have already mentioned Madison and Hamilton, who wished a National Government; but others were not less decided. Gouverneur Morris began early by explaining the difference between “Federal” and “National.” The former implied “a mere compact, resting on the good faith of the parties”; the latter had “a complete and compulsive operation.”[39] Constantly this impassioned statesman protested against State pretensions, insisting that the States were originally “nothing more than colonial corporations,”[40] and exclaiming, “We cannot annihilate, but we may perhaps take out the teeth of the serpents.”[41] Wilson was a different character,—gentle by nature, but informed by studies in jurisprudence and by the education brought from his Scottish home. He was for a National Government, and did not think it inconsistent with the “lesser jurisdictions” of States, which he would preserve;[42] he would not “extinguish these planets,” but keep them “within their proper orbits for subordinate purposes.”[43] He was too much of a jurist to admit, “that, when the Colonies became independent of Great Britain, they became independent also of each other,” and he insisted that they became independent, “not individually, but unitedly.”[44] Elbridge Gerry, of Massachusetts, was as strong on this point as Gouverneur Morris, insisting that “we never were independent States, were not such now, and never could be, even on the principles of the Confederation.”[45] Rufus King, also of Massachusetts, touched a higher key, when he wished that “every man in America” should be “secured in all his rights,” and that these should not be “sacrificed to the phantom of State sovereignty.”[46] Good words, worthy of him who in the Continental Congress moved the prohibition of Slavery in the national territories.[47] And Charles Pinckney, of South Carolina, said, in other words of precious significance, that “every freeman has a right to the same protection and security,” and then again, that “equality is the leading feature of the United States.”[48] Under such influences the Constitution was adopted by the Convention.

It is needless to dwell on its features, all so well known; but there are certain points not to be disregarded now. There is especially the beginning. Next after the opening words of the Declaration of Independence, the opening words of the Constitution are the grandest in history. They sound like a majestic overture, fit prelude to the transcendent harmonies of National life on a theatre of unexampled proportions. Though familiar, they cannot be too often repeated; for they are in themselves an assurance of popular rights and an epitome of National duties: “We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Thus by the people of the United States was the Constitution ordained and established; not by the States, nor even by the people of the several States, but by the people of the United States in aggregate individuality. Nor is it a league, alliance, agreement, compact, or confederation; but it is a Constitution, which in itself denotes an indivisible unity under one supreme law, permanent in character; and this Constitution, thus ordained and established, has for its declared purposes nothing less than liberty, justice, domestic tranquillity, the common defence, the general welfare, and a more perfect union, all essentially National, and to be maintained by the National arm. The work thus begun was completed by three further provisions: first, the lofty requirement that “the United States shall guaranty to every State in this Union a republican form of government,”—thus subjecting the States to the presiding judgment of the Nation, which is left to determine the definition of a republican government; secondly, the practical investiture of Congress with authority “to make all laws which shall be necessary and proper for carrying into execution all the powers vested by this Constitution in the Government of the United States, or in any department or officer thereof,”—thus assuring the maintenance of the National Government, and the execution of its powers through a faithful Congress chosen by the people; and, thirdly, the imperial declaration, that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, 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,”—thus forever fixing the supremacy of the National Government on a pinnacle above all local laws and constitutions. And thus did our country again assume the character and obligations of a Nation. Its first awakening was in the Declaration of Independence; its second was in the National Constitution.

On its adoption, the Constitution was transmitted to Congress with a letter from Washington, where, among other things, it is said that “in all our deliberations we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our National existence.”[49] Enough that this letter is signed “George Washington”; but it was not merely the expression of his individual sentiments. It was unanimously adopted by the Convention, on the report of the committee that made the final draught of the Constitution itself, so that it must be considered as belonging to this great transaction. By its light the Constitution must be read. If anybody is disposed to set up the denationalizing pretensions of States under the National Constitution, let him bear in mind this explicit declaration, that, throughout all the deliberations of the Convention, the one object kept steadily in view was the consolidation of our Union. Such is the unanimous testimony of the Convention, authenticated by George Washington.

The Constitution was discussed next in the States. It was vindicated as creating a National Government, and it was opposed also on this very ground. Thus from opposite quarters comes the concurring testimony. In Connecticut, Mr. Johnson, who had been chairman of the committee that reported the final draught, said, in reply to inquiries of his constituents, that the Convention had “gone upon entirely new ground: they have formed one new Nation out of the individual States.”[50] George Mason, of Virginia, proclaimed at home that “the Confederation of the States was entirely changed into one consolidated government,”—that it was “a National government, and no longer a Confederation.”[51] Patrick Henry, in his vigorous opposition, testified to the completeness with which the work had been accomplished. Inquiring by what authority the Convention assumed to make such a government, he exclaimed: “That this is a consolidated government is demonstrably clear.… Give me leave to demand, What right had they to say, We, the people?… Who authorized them to speak the language of We, the people, instead of We, the States?… If the States be not the agents of this compact, it must be one great consolidated National government of the people of all the States.”[52] Then again the same fervid orator declared, with infinite point, “The question turns, Sir, on that poor little thing, the expression, We, the people, instead of the States.”[53] Patrick Henry was right. The question did turn on that grand expression, We, the people, in the very frontispiece of the Constitution, filling the whole with life-giving power; and so long as it stands there, the denationalizing pretensions of States must shrink into littleness. Originally “one people” during colonial days, we have been unalterably fixed in this condition by two National acts: first, the Declaration of Independence, and then again, the National Constitution. Thus is doubly assured the original unity in which we were born.

Other tokens of Nationality, like the air we breathe, are so common that they hardly attract attention; but each has a character of its own. They belong to the “unities” of our nation.

1. There is the National Flag. He must be cold indeed, who can look upon its folds rippling in the breeze without pride of country. If in a foreign land the flag is companionship, and country itself, with all its endearments, who, as he sees it, can think of a State merely? Whose eyes, once fastened upon its radiant trophies, can fail to recognize the image of the whole Nation? It has been called “a floating piece of poetry”; and yet I know not if it have an intrinsic beauty beyond other ensigns. Its highest beauty is in what it symbolizes. It is because it represents all, that all gaze at it with delight and reverence. It is a piece of bunting lifted in the air; but it speaks sublimely, and every part has a voice. Its stripes of alternate red and white proclaim the original union of thirteen States to maintain the Declaration of Independence. Its stars of white on a field of blue proclaim that union of States constituting our national constellation, which receives a new star with every new State. The two together signify Union, past and present. The very colors have a language, officially recognized by our fathers. White is for purity; red, for valor; blue, for justice. And all together, bunting, stripes, stars, and colors, blazing in the sky, make the flag of our country, to be cherished by all our hearts, to be upheld by all our hands.

Not at once did this ensign come into being. Its first beginning was in the camp before Boston, and it was announced by Washington in these words: “The day which gave being to the new army, we hoisted the Union flag, in compliment to the United Colonies.”[54] The National forces and the National flag began together. Shortly afterwards, amidst the acclamations of the people, a fleet of five sail left Philadelphia, according to the language of the time, “under the display of a Union flag with thirteen stripes.”[55] This was probably the same flag, not yet matured into its present form. In its corner, where are now the stars, were the crosses of St. George and St. Andrew, red and white, originally representing England and Scotland, and when conjoined, after the union of those two countries, known as “the Union.” To these were added thirteen stripes, alternate red and white, and the whole was hailed at the time as the Great Union Flag. The States, represented by the stripes, were in subordination to the National Unity, represented by the two crosses. But this form did not continue long. By a resolution adopted 14th June, 1777, and made public 3d September, 1777, Congress determined “that the flag of the thirteen United States be thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field, representing a new constellation.”[56] Here the crosses of St. George and St. Andrew gave place to white stars in a blue field; the familiar symbol of British union gave place to another symbol of union peculiar to ourselves; and this completed the national flag, which a little later floated at the surrender of Burgoyne. Long afterward, in 1818, it was provided by Congress that a star be added on the admission of a new State, “to take effect on the fourth day of July next succeeding such admission.”[57] Thus, in every respect, and at each stage of its history, the National Flag testifies to the National Unity. The whole outstretched, indivisible country is seated in its folds.

There is a curious episode of the national flag, which is not without value. As far back as 1754, Franklin, while attempting a union of the Colonies, pictured the principal ones in a wood-cut under the device of a snake divided into eight parts marked with their initials, and under the disjointed whole the admonitory motto, “Join or die,”—thus indicating the paramount necessity of Union. In the heats of the Revolutionary discussion, a similar representation of all the Thirteen Colonies was adopted as the head-piece of newspapers, and was painted on banners; but when the Union was accomplished, the divisions and initials were dropped, and the snake was exhibited whole, coiled in conscious power, with thirteen rattles, and under it another admonitory motto, “Don’t tread on me,”—being a warning to the mother country.[58] This flag was yellow, and it became the early standard of the Revolutionary navy, being for the first time hoisted by Paul Jones with his own hands. It had a further lesson. A half-formed additional rattle was said by Franklin “to represent the province of Canada,” and the wise man added, that “the rattles are united together so as never to be separated but by breaking them to pieces.” Thus the snake at one time pictured the necessity of Union, and at another time its indissoluble bond.[59] But these symbols were all in harmony with the national flag, which, from its first appearance, in all its forms, pictured the common cause.

2. There is next the National Motto, as it appears on the national seal and on the national money. A common seal and common money are signs of National Unity. In each the supreme sovereignty of the Nation is manifest. The first is like the national flag, and stands for the Nation, especially in treaties with foreign powers. The second is a national convenience, if not necessity, taking its distinctive character from the Nation, so that everywhere it is a representative of the Nation. Each has the same familiar motto, E pluribus unum,—“From many one.” Its history attests its significance.

On the 4th of July, 1776, the very day of Independence, Benjamin Franklin, John Adams, and Thomas Jefferson were appointed a committee to prepare a device for a great seal. They were of the identical committee that had reported the Declaration of Independence itself. Their report on the seal was made 20th August, 1776; and here we first meet the national motto, in such entire harmony with the Declaration, making us “one people.” Questions of detail intervened, and no conclusion was reached until 20th June, 1782, when the present seal was adopted, being the American bald eagle, with the olive-branch in one talon and a bundle of thirteen arrows in the other, and in his beak a scroll, bearing the inscription, E pluribus unum. Familiar as these Latin words have become,—so that they haunt the memory of manhood, youth, and childhood alike,—it is not always considered how completely and simply they tell the story of our national life. Out of Many Colonies was formed One Nation. Former differences were merged in this unity. No longer Many, they were One. The Nation by its chosen motto repeats perpetually, “We are One”; and the Constitution echoes back, “We, the people of the United States.”

3. There is next the National Name, which of itself implies National Unity. The States are not merely allied, associated, coalesced, confederated, but they are United, and the Constitution, formed to secure a more perfect union, is “for the United States of America,” which term was used as the common name of the Nation.

A regret has been sometimes expressed by patriots and by poets, that some single term was not originally adopted, which of itself should exclude every denationalizing pretension, and be a talisman for the heart to cherish and for the tongue to utter,—as when Nelson gave his great watchword at Trafalgar, “England expects every man to do his duty.” Occasionally it is proposed to call the country Columbia, and thus restore to the great discoverer at least part of the honor taken from him when the continent was misnamed America. Alleghania has also been proposed; but this word is too obviously a mere invention, besides its unwelcome suggestion of Alligator. Another proposition has been Vinland, being the name originally given by the Northmen, four centuries before Christopher Columbus. Professor Lieber, on one occasion, called the nation Freeland, a name to which it will soon be entitled. Even as a bond of union, such a name would not be without value. As long ago as Herodotus, it was said of a certain people,[60] that they would have been the most powerful in the world, if they had been united; but this was impossible, from the want among themselves of a common name.

Forgetting that the actual name implies Unity, and, when we consider its place in the preamble of the National Constitution, that it implies Nationality also, the partisans of State pretensions argue from it against even the idea of country; and here I have a curious and authentic illustration. In reply to an inquirer,[61] who wished a single name, Mr. Calhoun exclaimed: “Not at all; we have no name because we ought to have none; we are only States united, and have no country.” Alas, if it be so!—if this well-loved land, for which so many have lived, for which so many have died, is not our country! But this strange utterance shows how completely the poison of these pretensions had destroyed the common sense, as well as the patriotism, of this much-mistaken man.

Names may be given by sovereign power to new discoveries or settlements; but, as a general rule, they grow out of the soil, they are autochthonous. Even Augustus, when ruling the Roman world, confessed that he could not make a new word,[62] and Plato tells us that “a creator of names is the rarest of human creatures.”[63] Reflecting on these things, we may appreciate something of the difficulty in the way of a new name at the formation of the National Constitution. As this was little more than a transcript of prevailing ideas and institutions, it was natural to take the name used in the Declaration of Independence.

And yet it must not be forgotten that there was a name of different character which was much employed. Congress was called “Continental,” the army “Continental,” the money “Continental,”—a term certainly of unity, as well as vastness. But there was still another national designation, accepted at home and abroad. Our country was called “America,” and we were called “Americans.” Here was a natural, unsought, and instinctive name,—a growth, and not a creation,—implying national unity and predominance, if not exclusive power, on the continent. It was used not occasionally or casually, but constantly,—not merely in newspapers, but in official documents. Not an address of Congress, not a military order, not a speech, which does not contain this term, at once so expansive and so unifying. At the opening of the first Continental Congress, Patrick Henry, in a different mood from that of a later day, announced the national unity under this very name. Declaring the boundaries of the several Colonies effaced, and the distinctions between Virginians, Pennsylvanians, New-Yorkers, and New-Englanders as no more, he exclaimed, in words of comprehensive patriotism, “I am not a Virginian, but an American.”[64] Congress took up the strain, and commissioned Washington as commander-in-chief of the armies “for the defence of American liberty”;[65] and Washington himself, in his first general order at Cambridge, assuming his great command, announced that the armies were “for the support and defence of the liberties of America;[66] and in a letter to Congress, just before the Battle of Trenton, he declared that he had labored “to discourage all kinds of local attachments and distinctions of country, denominating the whole by the greater name of American.”[67] Then at the close of the war, in its immortal Address, fit supplement to the Declaration of Independence, Congress said: “Let it be remembered that it has ever been the pride and boast of America that the rights for which she contended were the rights of Human Nature.”[68] Washington again, in his letter to Congress communicating the National Constitution, says, in other words, which, like those of Congress, cannot be too often quoted, that “the consolidation of our Union” is “the greatest interest of every true American.”[69] Afterwards, in his Farewell Address, which from beginning to end is one persuasive appeal for nationality, after enjoining upon his fellow-citizens that “unity of government which constitutes them one people,” he gives to them a national name, and this was his legacy: “The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations.”[70] Thus did Washington put aside those baneful pretensions under which the country has suffered, even to the extent of adopting a National Name, which, like the Union itself, should have a solid coercive power.

It is not impossible that in the lapse of time history will vindicate the name adopted by Washington, which may grow with the Republic, until it becomes the natural designation of one country. Our fathers used this term more wisely than they knew; but they acted under Providential guidance. Is it not said of the stars, that God “calleth them all by names, by the greatness of His might”?[71] Is it not declared also that He will make him who overcometh a pillar in the temple, and give to him a “new name”?[72] So, as our stars multiply, and the nation overcometh its adversaries, persuading all to its declared principles, everywhere on the continent, it will become a pillar in the temple, and the name of the continent itself will be needed to declare alike its unity and its power.

4. To these “unities,” derived from history and the heart of the people, may be added another, where Nature is the great teacher. I refer to the geographical position and configuration of our country, if not of the whole continent, marking it for one nation. Unity is written upon it by the Almighty hand. In this respect it differs much from Europe, where, for generations, seas, rivers, and mountains kept people apart, who had else, “like kindred drops, been mingled into one.” There is no reason why they should not commingle here. Nature in every form is propitious. Facility of intercourse, not less than common advantage, leads to unity: both these are ours. Here are navigable rivers, numerous and famous, being so many highways of travel, and a chain of lakes, each an inland sea. Then there is an unexampled extent of country adapted to railways; and do not forget that with the railway is the telegraph, using the lightning as its messenger, so that the interrogatory to Job is answered, “Canst thou send lightnings that they may go?”[73] The country is one open expanse, from the frozen Arctic to the warm waters of the Gulf, and from the Atlantic to the Rocky Mountains,—and there already science supplies the means of overcoming this barrier, which in other days would have marked international boundaries. The Pacific Railway will neutralize these mountains, and complete the geographical unity of the continent. The slender wire of the telegraph, when once extended, is an indissoluble tie; the railway is an iron band. But these depend upon opportunities which Nature supplies, so that Nature herself is one of the guardians of our nation.

He has studied history poorly, and human nature no better, who imagines that this broad compacted country can be parcelled into different nationalities. Where will you run the thread of partition? By what river? Along what mountain? On what line of latitude or longitude? Impossible. No line of longitude or latitude, no mountain, no river, can become the demarcation. Every State has rights in every other State. The whole country has a title, which it will never renounce, in every part, whether the voluminous Mississippi as it pours to the sea, or that same sea as it chafes upon our coast. As well might we of the East attempt to shut you of the West from the ocean as you attempt to shut us from the Mississippi. The ocean will always be yours as it is ours, and the Mississippi will always be ours as it is yours.

Our country was planned by Providence for a united and homogeneous people. Apparent differences harmonize. Even climate, passing through all gradations from North to South, is so tempered as to present an easy uniformity from the Atlantic to the Rocky Mountains. Unmeasured supplies of all kinds, mineral and agricultural, are at hand,—the richest ores and the most golden crops, with the largest coal-fields of the world below and the largest corn-fields of the world above. Strabo said of ancient Gaul, that, by its structure, with its vast plains and considerable rivers, it was destined to become the theatre of a great civilization.[74] But the structure of our country is more auspicious. Our plains are vaster and our rivers more considerable, furnishing a theatre grander than any imagined by the Greek geographer. It is this theatre, thus appointed by Nature, which is now open for the good of mankind.

Here I stop, to review the field over which we have passed, and to gather its harvest into one sheaf. Beginning with the infancy of the Colonies, we have seen how, with different names and governments, they were all under one sovereignty, with common and interchangeable rights of citizenship, so that no British subject in one Colony could be made an alien in any other Colony; how, even at the beginning, longings for a common life began, showing themselves in “loving accord”; how Franklin regarded the Colonies “as so many counties”; how the longings increased, until, under the pressure of the mother country, they broke forth in aspiration for “an American Commonwealth”; how they were at last organized in a Congress, called, from its comprehensive character, “Continental”; how, in the exercise of powers derived from “the good people,” and in their name, the Continental Congress put forth the Declaration of Independence, by which the sovereignty of the mother country was forever renounced, and we were made “one people,” solemnly dedicated to Human Rights, and thus became a Nation; how the undivided sovereignty of all was substituted for the undivided sovereignty of the mother country, embracing all the States as the other sovereignty had embraced all the Colonies; how, according to Franklin, the States were locked together, “so as never to be separated, but by breaking them to pieces”; how in an evil hour the Confederation was formed in deference to denationalizing pretensions of the States; how the longings for national life continued, and found utterance in Congress, in Washington, and in patriot compeers; how Jay wished the States should be like “counties”; how “Washington denounced State sovereignty as “bantling” and “monster”; how at last a National Convention assembled, with Washington as President, where it was voted that “a National Government ought to be established”; how in this spirit, after ample debate, the National Constitution was formed, with its preamble beginning “We, the people,” with its guaranty of a republican government to all the States, with its investiture of Congress with all needful powers for the maintenance of the Government, and with its assertion of supremacy over State constitutions and laws; how this Constitution was commended by Washington in the name of the Convention as “the consolidation of our Union”; how it was vindicated and opposed as creating a National Government; how on its adoption we again became a Nation; then how our nationality has been symbolized in the National Flag, the National Motto, and the National Name; and, lastly, how Nature, in the geographical position and configuration of the country, has supplied the means of National Unity, and written her everlasting guaranty. And thus do I bind the whole together into one conclusion, saying to all, We are a Nation.

Nor is this all. Side by side with the growth of National Unity was a constant dedication to Human Rights, which showed itself not only in the Declaration of Independence, with its promises and covenants, but in the constant claim of the rights of Magna Charta, the earlier cries of Otis, the assertion by the first Continental Congress of the right of the people “to participate in their legislative council,” the commission of Washington as commander-in-chief “for the defence of American liberty,” and the first general order of Washington, on taking command of his forces, where he rallies them to this cause; also in the later proclamation of Congress, at the close of the Revolution, that the rights contended for had been “the rights of Human Nature,” and the farewell general order of Washington, on the same occasion, where the contest is characterized in the same way: so that Human Rights were the beginning and end of the war, while the nation, as it grew into being, was quickened by these everlasting principles, and its faith was plighted to their support.

As a Nation, with a place in the family of nations, we have the powers of a nation, with corresponding responsibilities. Whether we regard these powers as naturally inhering in the nation, or as conferred upon it by those two title-deeds, the Declaration of Independence and the National Constitution, the conclusion is the same. From Nature, and also from its title-deeds, our nation must have all needful powers: first, for the national defence, foremost among which is the power to uphold and defend the national unity; secondly, for the safeguard of the citizen in all his rights of citizenship, foremost among which is equality, the first of rights, so that, as all owe equal allegiance, all shall enjoy equal protection; and, thirdly, for the support and maintenance of all the promises made by the nation, especially at its birth, being baptismal vows which cannot be disowned. These three powers are essentially national. They belong to our nation by the very law of its being and the terms of its creation. They cannot be neglected or abandoned. Every person, no matter what his birth, condition, or color, who can raise the cry, “I am an American citizen,” has a right to require at the hands of the nation, that it shall do its utmost, by all its central powers, to uphold the national unity, to protect the citizen in the rights of citizenship, and to perform the original promises of the nation. Failure here is apostasy and bankruptcy combined.

It is vain to say that these requirements are not expressly set down in the National Constitution. By a law existing before this title-deed, they belong to the essential conditions of national life. If not positively nominated in the Constitution, they are there in substance; and this is enough. Every word, from “We, the people,” to the signature, “George Washington,” is instinct with national life, and there is not a single expression taking from the National Government any inherent power. From this “nothing” in the Constitution there can come nothing adverse. But there has always been a positive injunction on the nation to guaranty “a republican form of government” to all the States; and who can doubt, that, in the execution of this guaranty, the nation may exercise all these powers, and provide especially for the protection of the citizen in all the rights of citizenship? There are also recent Amendments, abolishing slavery, and expressly securing “the privileges and immunities of citizens” against the pretensions of States. Then there is the Declaration of Independence itself, which is the earlier title-deed. By that sacred instrument we were declared “one people,” with liberty and equality for all, and then, fixing forever the rights of citizenship, it was announced that all just government was derived only from “the consent of the governed.” Come weal or woe, that great Declaration must stand forever. Other things may fail, but this cannot fail. It is immortal as the nation itself. It is part of the nation, and the part most worthy of immortality. By it the National Constitution must be interpreted; or rather, the two together are the Constitution,—as Magna Charta and the Bill of Rights together are the British Constitution. By the Declaration our nation was born and its vital principles were announced; by the Constitution the nation was born again and supplied with the machinery of government. The two together are our National Scriptures, each being a Testament.

Against this conclusion there has been from the beginning one perpetual pretension in the name of States. The same spirit which has been so hostile to national unity in other countries, which made each feudal chief a petty sovereign, which for a long time convulsed France, which for centuries divided Italy, and which, unhappily, still divides Germany, has appeared among us. Assuming that communities never “sovereign” while colonies, and independent only by the national power, had in some way, by some sudden hocus-pocus, leaped into local sovereignty, and forgetting also that two sovereignties cannot coexist in the same place, as, according to the early dramatist,

“Two kings in England cannot reign at once,”[75]

the States insisted upon sovereign powers justly belonging to the Nation. Long ago the duel began. The partisans of State pretensions, plausibly professing to decentralize the Government, have done everything possible to denationalize it. In the name of self-government, they have organized local lordships hostile to Human Rights; in the name of the States, they have sacrificed the Nation.

This pretension, constantly showing itself, has broken out on three principal occasions. The first was in the effort of Nullification, which occurred in 1832, where, under the lead of Mr. Calhoun, South Carolina attempted to nullify the Revenue Acts of Congress, or, in other words, to declare them void within her limits. After encountering the matchless argument of Daniel Webster, enforced by his best eloquence, Nullification was blasted by the thunderbolt of Andrew Jackson, who, in his Proclamation, as President, thus exposed it, even in the form of Secession, which it assumed at a later day: “Each State, having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation.”[76] The pretension next showed itself in the Rebellion; and now that the Rebellion is crushed, it reappears in still another form, by insisting that each State at its own will may disregard the universal rights of the citizen, and apply a discrimination according to its own local prejudices,—thus within its borders nullifying the primal truths of the Declaration of Independence. Here again do State pretensions, in their anarchical egotism, interfere with the National Unity.

The pretensions of States have found their ablest and frankest upholder in John C. Calhoun. I take a single instance, on account of its explicitness. In reply to a Northern Senator, the defender of Slavery said:—

“Now let me tell the Senator that the doctrines which we advocate are the result of the fullest and most careful examination of our system of government, and that our conviction that we constitute an Union, and not a Nation, is as strong and as sincere as that of the Senator or any other in the opposite opinion.”

“We are as devoted to the Union as any portion of the American people (I use the phrase as meaning the people of the Union); but we see in a national consolidated government evils innumerable to us. Admit us to be a Nation and not an Union, and where would we stand? We are in the minority.”[77]

Evidently, in that minority he saw the doom of Slavery.

Local self-government, whether in the town, county, or State, is of incalculable advantage, supplying the opportunities of political education, and also a local administration adapted precisely to local wants. On this account the system has been admired by travellers from abroad, who have found in our “town meetings” the nurseries of the Republic, and have delighted in local exemption from central supervisorship. De Tocqueville, who journeyed here, has recorded his authoritative praise,—and Laboulaye, who has visited us only in his remarkable studies, unites with De Tocqueville. Against that exacting centralization, absorbing everything, of which Paris is the example, I oppose the American system of self-government, which leaves the people to themselves, subject only to the paramount conditions of national life. But these conditions cannot be sacrificed. No local claim of self-government can for a moment interfere with the supremacy of the Nation, in the maintenance of Human Rights.

According to the wisdom of Plutarch, we must shun those pestilent persons who would “carry trifles to the highest magistrate,” and, in the same spirit, reject that pestilent supervisorship which asserts a regulating power over local affairs, and thus becomes a giant intermeddler. Let these be decided at home, in the States, counties, and towns to which they belong. Such is the genius of our institutions. This is the precious principle of self-government, which is at once educator and agency. In the former character, it is an omnipresent schoolmaster; in the latter, it is a suit of chain-armor, which, from flexibility, is adapted to the body of the nation, so that the limbs are free. Each locality has its own way in matters peculiar to itself. But the rights of all must be placed under the protection of all; nor can there be any difference in different parts of the country. Here the rule must be uniform, and it must be sustained by the central power radiating to every part of the various empire. This is according to the divine Cosmos, which in all its spaces is pervaded by one universal law. It is the rule of Almighty Beneficence, which, while leaving human beings to the activities of daily life and the consciousness of free-will, subjects all to the same commanding principles. Such centralization is the highest civilization, for it approaches the nearest to the heavenly example. Call it imperialism, if you please: it is simply the imperialism of the Declaration of Independence, with all its promises fulfilled. It is rendering unto Cæsar the things that are Cæsar’s. Already by central power Slavery has been abolished. Already by central power all have been assured in the equality of civil rights.

“Two truths are told,

As happy prologues to the swelling act

Of the imperial theme.”

It remains now that by central power all should be assured in the equality of political rights. This does not involve necessarily what is sometimes called the “regulation” of the suffrage by the National Government, although this would be best. It simply requires the abolition of any discrimination among citizens, inconsistent with Equal Rights. If not by Act of Congress, let it be by a new Amendment of the Constitution; but it must be at once. Until this is done, we leave undone what ought to be done, and, in pitiable failure to perform a national duty, justify the saying that “there is no health in us.” The preposterous pretension, that color, whether of the hair or of the skin, or that any other unchangeable circumstance of natural condition may be made the “qualification” of a voter, cannot be tolerated. It is shocking to the moral sense, and degrading to the understanding.

As in the Nation there can be but one sovereignty, so there can be but one citizenship. The unity of sovereignty finds its counterpart and complement in the unity of citizenship, and the two together are the tokens of a united people. Thus are the essential conditions of national life all resolved into three,—one sovereignty, one citizenship, one people.

I conclude as I began. The late Rebellion against the nation was in the name of State Rights; therefore State Rights in their denationalizing pretensions must be overthrown. It proceeded from hostility to the sacred principles of the Declaration of Independence; therefore must these sacred principles be vindicated in spirit and in letter, so that hereafter they shall be a supreme law, coëqual with the Constitution, in whose illumination the Constitution must be read, and they shall supply the final definition of a Republic for guidance at home and for example to mankind.

In this great change we follow Nature and obey her mandate. By irresistible law, water everywhere seeks its level, and finds it; and so, by law as irresistible, man seeks the level of every other man in rights, and will find it. Human passions and human institutions are unavailing to arrest it, as Nature is stronger than man, and the Creator is mightier than the creature. The recognition of this law is essential to the national cause; for so you will work with Nature rather than against it, and at the same time in harmony with the Declaration of Independence. Here I borrow a word from Locke, who, in his Essay “Of the Conduct of the Understanding,” says, that, in dealing with propositions, we must always examine upon what they “bottom.”[78] Now, in dealing with the Rebellion, we find, that, though in the name of State Rights, it “bottomed” on opposition to National Law and open denial of the self-evident truths declared by our fathers, especially of that central truth which Abraham Lincoln, at Gettysburg, in the most touching speech of all history, thus announces: “Four-score and seven years ago, our fathers brought forth upon this continent a new Nation, conceived in Liberty, and dedicated to the proposition that all men are created Equal.”[79] Slavery was “bottomed” on the direct opposite; and so was the Rebellion, from beginning to end. Therefore we must encounter this denial. We do not extinguish Slavery, we do not trample out the Rebellion, until the vital truth declared by our fathers is established, and Nature in her law is obeyed. To complete the good work, this is necessary. Liberty is won: Equality must be won also. In England there is Liberty without Equality; in France, Equality without Liberty. The two together must be ours. This final victory will be the greatest of the war; it will be the consummation of all other victories. Here must we plant the national standard. To this championship I summon you. Go forth, victors in so many fields, and gather now the highest palm of all. The victory of ideas is grander far than any victory of blood. What battle ever did so much for humanity as the Sermon on Mars Hill? What battle ever did so much as the Declaration of Independence? But Sermon and Declaration are one, and it is your glorious part to assure the National Unity on this adamantine base.

All hail to the Republic, redeemed and regenerated, One and Indivisible! Nullification and Secession are already, like the extinct monsters of a former geological period, to be seen only in the museum of History. With their extinction must disappear the captious, litigious, and disturbing spirit engendered by State pretensions. The whole face of the country will be transformed. There will be concord for discord, smiles for frowns. There will be a new consciousness of national life, with a corresponding glow. The soul will dilate with the assured unity of the Republic, and all will feel the glory of its citizenship. Since that of Rome, nothing so commanding. Local jealousies and geographical distinctions will be lost in the attractions of a common country. Then, indeed, there will be no North, no South, no East, no West; but there will be One Nation. No single point of the compass, but the whole horizon, will receive our regard. Not the Southern Cross flaming with beauty, not even the North Star, long time guide of the mariner and refuge to the flying bondman, but the whole star-spread firmament, will be our worship and delight.

As the Nation stands confessed in undivided sovereignty, the States will not cease their appropriate functions. Interlocked, interlaced, and harmonized, they will be congenial parts of the mighty whole, with Liberty and Equality the recognized birthright of all, and no local pretension to interfere against the universal law. There will be a sphere alike for the States and Nation. Local self-government, which is the pride of our institutions, will be reconciled with the national supremacy in maintenance of human rights, and the two together will constitute the elemental principles of the Republic. The States will exercise a minute jurisdiction required for the convenience of all; the Nation will exercise that other paramount jurisdiction required for the protection of all. The reconciliation—God bless the word!—thus begun will embrace the people, who, forgetting past differences, will feel more than ever that they are One, and it will invigorate the still growing Republic, whose original root was little more than an acorn, so that it will find new strength to resist the shock of tempest or time, while it overarches the continent with its generous shade. Such, at least, is the aspiration in which all may unite.

“Firm like the oak may our blest nation rise,

No less distinguished for its strength than size;

The unequal branches emulous unite

To shield and grace the trunk’s majestic height;

Through long succeeding years and centuries live,

No vigor losing from the aid they give!”[80]

CONSTANT DISTRUST OF THE PRESIDENT.

Remarks in the Senate, on the Final Adjournment, November 26, 1867.

Thursday, November 21st, Congress reassembled, pursuant to the resolution adopted July 20th. According to existing law, the regular session would commence on the first Monday of December.

November 26th, Mr. Grimes, of Iowa, moved the adjournment of the two Houses on Monday, December 2d, at half past eleven o’clock, A. M. Mr. Sumner suggested “twelve o’clock,” remarking,—

I question whether we should leave even the break of half an hour between the two sessions. The point is just this: Will you leave to the President one half-hour within which he may take advantage of the absence of Congress, and issue commissions which would perhaps run—I do not decide the point now, but which, I say, might run to the last day of the next session?—that may be midsummer or autumn. I take it that an appointment during that interim of half an hour might possibly be valid to the last day of the next session of Congress.

Mr. Edmunds [of Vermont]. But the law takes no notice of parts of a day.

Mr. Sumner. That is a technicality. Why open the question?

Mr. Grimes, following the suggestion, altered his motion to “twelve o’clock.” A debate ensued, in which Mr. Sherman, of Ohio, Mr. Fessenden, of Maine, and Mr. Trumbull, of Illinois, took part. Mr. Sumner followed.

I hope that what we do will be for the welfare of the country, and with no reference to mere rumors or reports. There I agree with my friend; but then I do not agree with him, when he says, Give the President another chance. We have been giving him chances, and we cannot act now without taking into consideration his character and position, which have become matters of history. I would speak with proper delicacy, with proper reserve, but I must speak under the responsibility of a Senator. A large portion of our country believe the President a wicked man, of evil thoughts and unpatriotic purposes, in spirit and conduct the successor of Jefferson Davis, through whom the Rebellion is revived. Such are the sentiments of a large portion of our people.

Mr. Dixon [of Connecticut]. I desire to ask the Senator if that is the opinion of a majority of the American people, in his judgment.

Mr. Sumner. It is unquestionably the opinion of a large portion of the people of the United States; whether a majority or not the future may disclose. I will not anticipate any such judgment. I speak now with reference to what is before us. The question is, whether we shall give him another opportunity. I say, No. And here I act on no floating rumor, to which the Senator from Illinois refers; I act with reference to the character of the chief magistrate, displayed in his public conduct. It seems to me that it will be something like rashness, if the Senate concede to him another occasion to practise on the country in carrying out his policy, as we know he has practised in times past. We must stop the way. We should not give him a day; we should not give him five minutes,—I am ready to say that,—not five minutes, for the chance of illegitimate power. I will not allow him to exercise it, and then take my chance hereafter of applying the corrective.

And that brings me to the exact point as to whether the present session should expire precisely when the coming session begins. I see no reason why it should not. I see no reason why we should interpose the buffer even of five minutes. Let one session come close upon the other, and then we shall exclude every possibility of evil consequences. In France, during the old monarchy, when the king died, the moment the breath was out of his body the reign of his successor began, so that the cry, “The king is dead,” was followed instantly by another cry, “Long live the king!” Now I know not why, when this session expires, we may not at the same time announce its expiration and announce a new session.

The resolution was agreed to, and Congress adjourned accordingly.

THE FOURTEENTH AMENDMENT: WITHDRAWAL OF ASSENT BY A STATE.

Remarks in the Senate, on the Resolutions of the Legislature of Ohio rescinding its former Resolution in Ratification of the Fourteenth Amendment, January 31, 1868.

The resolutions from the Legislature of Ohio are so important in character, and so wholly without precedent, I believe, in our history, that I think they justify remark even by a Senator who has not the honor of any special association with that State.

It seems to me very clear that the authors of these resolutions have accomplished nothing except to exhibit their own blind prejudices. By the Constitution of the United States, a State may give its assent to a Constitutional Amendment. There is no provision for any withdrawal of such assent, when once given. The assent of the State, once given, is final. A State, I do not hesitate to say, can no more withdraw such assent than it can withdraw from the Union; and on the latter proposition I believe there is now a universal accord.

But, happily, Sir, this extraordinary effort of an accidental Legislature is absolutely impotent. The Amendment in question is already a part of the Constitution of the United States, and in full vigor, even without the assent of Ohio. By a report from the Secretary of State it appears that there is official evidence of the assent of the Legislatures of Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, New York, Illinois, West Virginia, Kansas, Nevada, Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania, Michigan, Massachusetts, and Nebraska,—being twenty in all, without Ohio. To these now we may add Iowa, which has given its assent very recently, and also Maine, which has notoriously given its assent, although I understand it has not been officially communicated to the Department of State,—making, therefore, twenty-two States, even without Ohio. Twenty-two States are more than three fourths of the Loyal States, or, in other words, of those States that at this moment have Legislatures. The full requirement of the Constitution is therefore met.

This Amendment was originally proposed by a vote of two thirds of Congress, composed of the representatives of the Loyal States. It has now been ratified by the Legislatures of three fourths of the Loyal States, being the same States which originally proposed it through their representatives in Congress. The States that are competent to propose a Constitutional Amendment are competent to adopt it. Both things have been done. The required majority in Congress have proposed it; the required majority of States have adopted it. Therefore, I say, this resolution of the Legislature of Ohio is brutum fulmen,—impotent as words without force. It can have no practical effect, except to disclose the character of its authors. As such it may be dismissed to the limbo of things lost on earth.

Mr. Johnson, of Maryland, followed with some remarks, to which Mr. Sumner replied:—

Mr. President,—I wish to remind the Senator from Maryland of the exact words of the Constitution, which were not, it seems to me, in his mind when he spoke. An Amendment, when proposed, “shall be valid to all intents and purposes as part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” It does not say, “when ratified by three fourths of the several States,” but “by the ‘Legislatures’ of three fourths of the several States.” Now, if there are States without Legislatures, they can have no voice in the ratification. Apply this practically. Three fourths of the actual Legislatures of this Union have ratified the proposed Amendment, and I insist, on the text of the Constitution, and also on the reason of the case, that such ratification is complete. But I am unwilling that this argument should stand merely on my words. I introduce here the authority of the best living text-writer on the jurisprudence of our country, who has treated this very point in a manner which leaves no opportunity for reply. I refer to the book of Mr. Bishop on the Criminal Law, who, in one of his notes,[81] considers whether the Amendment of the Constitution abolishing Slavery had been at the time he wrote adopted in a constitutional manner. Of course the very question which we are now discussing with reference to the Fourteenth Amendment arises also on the Amendment prohibiting Slavery. They are both in the same predicament. If the Fourteenth Amendment is not now a part of the Constitution of the United States, then the Amendment prohibiting Slavery is not a part of the Constitution of the United States. They both stand on the same bottom; they were both proposed by Congress in the same way,—that is, by a vote of two thirds of the representatives of the Loyal States; and they have both been ratified by the votes of three fourths of the States having Legislatures. I send to the Chair the work of Mr. Bishop, and I ask the Secretary to be good enough to read what I have marked.

The Secretary read the note above cited.

LOYALTY IN THE SENATE: ADMISSION OF A SENATOR.

Remarks in the Senate, on the Resolution to admit Philip F. Thomas as Senator from Maryland, February 13, 1868.

February 13th, the question of the admission of Hon. Philip F. Thomas, Senator-elect from Maryland, charged with disloyalty, coming up for consideration, on a resolution of Hon. Reverdy Johnson, of that State, that said Thomas “be admitted to his seat on his taking the oaths prescribed by the Constitution and laws of the United States,” Mr. Sumner moved the following substitute:—

“That Philip F. Thomas, Senator-elect from Maryland, cannot be admitted to take the oaths of office required by the Constitution and laws, inasmuch as he allowed his minor son to leave the paternal house to serve as a Rebel soldier, and gave him at the time one hundred dollars in money, all of which was ‘aid,’ ‘countenance,’ or ‘encouragement’ to the Rebellion, which he was forbidden to give; and further, inasmuch as in forbearing to disclose and make known the treason of his son to the President, or other proper authorities, according to the requirement of the statute in such cases, he was guilty of misprision of treason as defined by existing law.”

Mr. Sumner said:—

A great debate on the question how loyalty shall be secured in the Rebel States is for the time silenced in order to consider how loyalty shall be secured in this Chamber. Everywhere in the Rebel States disloyal persons are struggling for power; and now at the door of the Senate we witness a similar struggle. If disloyalty cannot be shut out of this Chamber, how can we hope to overcome it elsewhere?

More than once at other times I have discussed the question of loyalty in the Senate. But this was anterior to the adoption of the Fourteenth Constitutional Amendment. The case is plainer now than then, inasmuch as there is now an explicit text requiring loyalty as a “qualification.” Formerly we were left to something in the nature of inference; now the requirement is plain as language can make it.

By the new Amendment it is provided that “no person shall be a Senator or Representative in Congress, … who, having previously taken an oath, as a member of Congress, or as an officer of the United States, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

These words are precisely applicable to the present case. They lay down a rule from which there is no appeal; and this rule is not merely in the statutes, but in the Constitution. It is the plain declaration that loyalty is a requirement in a Senator and Representative. If we do not apply it to ourselves now, it is difficult to see with what consistency we can apply it to others. Your course here will affect the meaning of this Constitutional Amendment, if not its validity for the future.

I do not stop to argue the question if that Amendment is now a part of the Constitution; for I would not unnecessarily occupy your time, nor direct attention from the case which you are to decide. For the present I content myself with two remarks: first, the Amendment has already been adopted by three fourths of the States that took part in proposing it, and this is enough, for the spirit of the Constitution is thus satisfied; and, secondly, it has already been adopted by “the Legislatures of three fourths of the several States” which have Legislatures, thus complying with the letter of the Constitution. Therefore, by the spirit of the Constitution, and also by its letter, this Amendment is now a part of the Constitution, binding on all of us. As such I invoke its application to this case. In face of this positive, peremptory requirement, it is impossible to see how loyalty can be other than a “qualification.” In denying it, you practically set aside this Amendment.

But, even without this Amendment, I cannot doubt that the original text is sufficiently clear and explicit. It is nowhere said in the Constitution that certain specified requirements, and none others, shall be “qualifications” of Senators. This word “qualifications,” which plays such a part in this case, occurs in another connection, where it is provided that “each House shall be the judge of the elections, returns, and qualifications of its own members.” What these “qualifications” may be is to be found elsewhere. Searching the Constitution from beginning to end, we find three “qualifications,” which come under the head of form, being (1.) age, (2.) citizenship, and (3.) inhabitancy in the State. But behind and above these is another “qualification,” which is of substance, in contradiction to form only. So supreme is this, that it is placed under the safeguard of an oath. This is loyalty. It is easy to see how infinitely more important is this than either of the others,—than age, than citizenship, or than inhabitancy in the State. A Senator failing in either of these would be incompetent by the letter of the Constitution; but the Republic might not suffer from his presence. On the other hand, a Senator failing in loyalty is a public enemy, whose presence in this council-chamber would be a certain peril to the Republic.

It is vain to say that loyalty is not declared to be a “qualification.” I deny it. Loyalty is made a “qualification” in the Amendment to the Constitution; and then again in the original text, when, in the most solemn way possible, it is distinguished and guarded by an oath. Men are familiarly said to “qualify,” when they take the oath of office; and thus the language of common life furnishes an authentic interpretation of the Constitution.

But no man can be allowed to take the oath as Senator, when, on the evidence before the Senate, he is not competent. If it appear that he is not of sufficient age, or of the required citizenship or inhabitancy, he cannot be allowed to go to that desk. Especially if it appear that he fails in the all-important “qualification” of loyalty, he cannot be allowed to go to that desk. A false oath, taken with our knowledge, would compromise the Senate. We who consent will become parties to the falsehood; we shall be parties in the offence. It is futile to say that the oath is one of purgation only, and that it is for him who takes it to determine on his conscience if he can take it. The Senate cannot forget the evidence; nor can its responsibility in the case be swallowed up in any process of individual purgation. On the evidence we must judge, and act accordingly. The “open sesame” of this Chamber must be something more than the oath of a suspected applicant.

According to Lord Coke, “an infidel cannot be sworn” as a witness. This was an early rule, which has since been softened in our courts. But, under the Constitution of the United States and existing statutes, a political infidel cannot be sworn as a Senator. Whatever may be his inclination or motive, he must not be allowed to approach your desk. The country has a right to expect that all who enter here shall have a sure and well-founded loyalty, above all question or suspicion. And such, I insist, is the rule of the Constitution and of Congress.

As if to place the question beyond all doubt, Congress by positive enactment requires that every Senator, before admission to his seat, shall swear that he has “voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility” to the United States.[82] Here is little more than an interpretation of the Constitution. The conclusion is plain. No person who has voluntarily given even “countenance” or “encouragement” to another engaged in the Rebellion can be allowed to take that oath.

After this statement of the rule, the question arises, if Philip F. Thomas can be permitted to take the oath at your desk, or, in other words, to “qualify” as a Senator of the United States. Is he competent? This is a question of evidence.

The ample discussion of the facts in this case, and their singular plainness, supersede the necessity of all details. The atmosphere about Mr. Thomas and his acts are harmonious. From the beginning we find him enveloped in coldness and indifference while his country was in peril. Observing him more closely, we are shocked by two acts of positive disloyalty, one of which is the natural prelude of the other. The first muttering of the Rebellion found him a member of the Cabinet of Mr. Buchanan; but when this uncertain President proposed the succor of our troops at Charleston, already menaced with war, Mr. Thomas withdrew from the patriotic service. He resigned his seat, following the lead of Cobb, Thompson, and Floyd. A man is known by the company he keeps. His company at this time were traitors, and the act they united in doing was essentially disloyal. As the Rebellion assumed the front of war, they all abandoned their posts: some to join the Rebellion and mingle with its armies; Mr. Thomas, more prudently, to watch the course of events in Maryland, ready to lift his arm also, if his State pronounced the word. This concerted desertion was in itself a conspiracy against the Government; and in the case of Mr. Thomas, who was Secretary of the Treasury, it was a blow at the national credit, which it was his special duty to guard. It was an act of disloyalty to be blasted by indignant history, even if your judgment fails now. And this was the first stage in this record.

Meanwhile the war rages. Armies are marshalled; battles ensue; Washington itself is beleaguered; the Republic trembles with peril. But Mr. Thomas continues in the seclusion of his home, enveloped in the same disloyal atmosphere, and refusing always the oath of allegiance. At last, in 1863, an only son arrives at the age of eighteen. Though still a minor, he is already of the military age. Naturally filled with the sentiments of his father’s fireside, he seeks to maintain them by military service. He is like his father, but with the ardor of youth instead of the caution of years. He avows his purpose to enlist in the Rebel army, thus to levy war against his country, and adhere to its enemies. All this was treason,—plain, palpable, unquestionable, downright treason. Instead of detaining his son,—instead of keeping him back,—instead of interposing a paternal veto,—instead of laying hands gently upon him,—instead of denouncing him to the magistrate,—all of which the father might have done,—he deliberately lets him go, and then, to cap the climax of criminal complicity, furnishes the means for his journey and his equipment. He gives one hundred dollars. The father is not rich, and yet he gives this considerable sum. Few soldiers started with such ample allowance. Thus it stands: the father, who has already deserted his post in the Cabinet, and has refused to take the oath of allegiance to his country, contributes a soldier to the Rebellion, and that soldier is his only son; to complete and assure the great contribution, he contributes a sum of money also. If all this accumulated disloyalty, beginning in a total renunciation of every patriotic duty, and finally consummated by an act of flagrant, unblushing enormity, is not “aid and comfort” or “countenance” or “encouragement” to the Rebellion, it is difficult to say what can be. There must be new dictionaries for these familiar words, and they must receive a definition down to this day unknown. They must be treated as thread or gossamer, when they should be links of iron.

On an occasion like the present, where the moral guilt is so patent, I hesitate to employ technical language. The simplest phrase is the best. But the law supplies language of its own. Regarding the act of Mr. Thomas in the mildest light, it was “misprision of treason,” according to every definition of that crime which can be found in the books. Lord Hale, whose authority, in stating the rules of Criminal Law, is of the highest character, says, under this head: “Every man is bound to use all possible lawful means to prevent a felony, as well as to take the felon; and if he doth not, he is liable to a fine and imprisonment.”[83] Lord Coke, another eminent authority, says: “If any be present when a man is slain, and omit to apprehend the slayer, it is a misprision.”[84] The same rule is, of course, applicable to treason. Mr. Bishop, who in his remarkable work on the Criminal Law has compressed the result of all the authorities, says: “Misprision of felony is a criminal neglect, either to prevent a felony from being committed by another, or to bring to justice a person known to be guilty of felony. Misprision of treason is the same of treason.”[85] Then again he says, citing Hawkins, Blackstone, East, and Russell, all familiar names in our courts, each an oracle:—

“The doctrine of misprision, as now understood, may be stated as follows: To make a man liable for a crime committed through the physical volition of another, his own will must in some degree concur in or contribute to the crime. But when it is treason or felony, and he stands by while it is done, without using the means in his power to prevent it, though his will concurs not in it,—or when he knows of its having been in his absence committed, but neither makes disclosure of it to the authorities nor does anything to bring the offender to punishment,—the law holds him guilty of a breach of the duty due from every man to the community wherein he dwells and the government which protects him.”[86]

I adduce these authorities in order to show, that, by the Common Law, as illustrated by some of its best names, Mr. Thomas is beyond all question an offender. Clearly he did not use “the means in his power” to prevent the treason of his son, nor did he “make disclosure of it to the authorities,” according to the received rule of law.

But the statutes of the United States leave us no room for doubt or indulgence. According to the precise text, the present case is anticipated and provided for. The Statute of Crimes, adopted in 1790, at the beginning of the National Government, after declaring the punishment of treason, proceeds to declare the punishment of “misprision of treason,” as follows:—

“That, if any person or persons, having knowledge of the commission of any of the treasons aforesaid, shall conceal and not as soon as may be disclose and make known the same to the President of the United States or some one of the Judges thereof, or to the President or Governor of a particular State or some one of the Judges or Justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars.”[87]

Apply these plain words to the present case. Nobody can doubt that Mr. Thomas had “knowledge” of the treason of his son, and, having this knowledge, failed to “disclose and make known the same” to the President of the United States or the other proper authorities. Abraham Lincoln was at the time President. There is no pretence that the father communicated the crime of the son to this patriot magistrate, or to any other loyal officer by whom he could have been arrested. Therefore, beyond all question, on the facts of the case, the father is guilty under the statute, and liable to seven years of imprisonment and a fine of one thousand dollars. And now, instead of seven years of imprisonment and a fine of one thousand dollars, it is proposed to give him six years of trust and honor as a Senator of the United States, with an annual allowance of five thousand dollars.

According to the old law, the indictment against Mr. Thomas would allege, that, “not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil,” he perpetrated his crime. And now, with this crime unatoned for, he comes here to ask your support and countenance. We are to forget all that he did, “moved and seduced” by evil instigation, and welcome him to this Chamber, instead of handing him over to judgment.

It is treating this case with a levity which it is hard to pardon, when Senators argue that the father was not under obligations to exercise all the paternal power in restraint of his son, or at least in denouncing him to the proper authorities. What is patriotism, what is the sacred comprehensive charity of country, if a father can be blameless after such a license to his son? The country was another mother to this son, and he went away to strike this mother on the bosom. There is a case in antiquity which illustrates the solemn duty of the father at least to detain the son. I quote from Sallust. This remarkable writer, in his history of the Catilinarian conspiracy, tells us that there were many not enlisted in the conspiracy who went out to join Catiline; that among these was Aulus Fulvius, the son of a Senator; and the historian adds, without comment, that the father, when his son was brought back, ordered him to be slain: “Fuere tamen extra conjurationem complures, qui ad Catilinam profecti sunt: in his A. Fulvius, Senatoris filius; quem retractum ex itinere parens necari jussit.”[88] Humanity rejects the barbarous exercise of the paternal power according to the Roman Law; but patriotism may find even in this example a lesson of paternal duty. The American father should not have slain his son, but he should have kept him from joining the enemies of his country. This requirement of duty was none the less strong because not enforced by death. I utter not only the rule of patriotism, but the rule of law, when I say that it was positive and peremptory. I will not admit that an American citizen can be blameless who dismisses a son from the paternal roof with money in his purse, to make war upon his country. All that the son did afterward, all that the son sought to do, became the act of the father who sent him forth on his parricidal errand. The father’s treason was continued and protracted in the treason of the son.

In making this contribution to the Rebellion, the act of the father was enhanced by his eminent position. He had held a seat in the Cabinet, binding him more than any common citizen to the most watchful allegiance, and giving to what he did peculiar importance. A soldier contributed to the Rebellion by such a person was a startling event. It was aid and comfort, countenance and encouragement, of far-reaching significance. It was a hostile act, directly injurious to his country, and of evil example, the influence of which no man can measure. How many others were weakened in loyalty by this parricidal act who can tell? When the citizen who has enjoyed public trust and been a “pillar of State” gives way, others about him must fall likewise. So great a parricide must cause other parricides.

And now this father, who gave a son to the Rebellion, comes into this sanctuary of the Constitution, where loyalty is the first condition of admission, and asks for a seat. Immo in Senatum venit. Is there not hardihood in the application? Of course, he cannot be admitted without your act having an influence proportioned to the importance of the position. It will be felt everywhere throughout the country. Admit him, and you will unloose the bonds of loyalty and give a new license to the Rebellion in its protracted struggle. On the contrary, if you send him away, you will furnish a warning to the disloyal, and teach a lesson of patriotism which will thrill the hearts of good citizens now anxiously watching for peace and reconciliation through the triumph of loyalty.

I speak this positively, because on this case I see no doubt. The facts are indisputable, and over all towers one supreme act of parricide, for which there can be no excuse or apology. A soldier was contributed to the enemies of his country. There is no question of motive. The parricidal act was complete, and it explains itself. There is no doubt that it was done. In the presence of such an act, so absolutely criminal, there can be no room for inquiry as to the motive. All this I put aside and look only at the transcendent fact, in which all pretence of innocence is so entirely lost and absorbed that it cannot be seen. As well seek to find a motive, if a son struck at the bosom of his mother. The law supplies the motive, when it says, in its ancient phrase, “moved and seduced by the instigation of the Devil.”

Some there are who doubt the motive of the father, and claim for him now the benefit of that doubt. Even if the motive of this criminal act were in question, as I insist that it cannot be, then do I say, that, in a case like this, when disloyalty is to be shut out of this Chamber, I give the benefit of doubt to my country.

There is another voice which sometimes reaches me. We are told, that, if the applicant be disloyal, then we may expel him. For myself, I prefer to take no such risk. Viewing the case as I do, I have no right to take any such risk. Disloyalty must be met at the door, and not allowed to enter in. The old verses, more than once repeated in our public discussions, are applicable now,—never more so:—

“I hear a lion in the lobby roar:

Say, Mr. Speaker, shall we shut the door,

And keep him there? or shall we let him in,

To try if we can turn him out again?”[89]

February 19th, after a debate of several days, Mr. Thomas was declared “not entitled to take the oath of office, or to hold a seat, as a Senator of the United States,”—Yeas 27, Nays 20.

INTERNATIONAL COPYRIGHT.

Letter to a Committee in New York, on this Subject, February 17, 1868.

From time to time International Copyright has occupied attention, and Mr. Sumner has often in correspondence expressed himself with regard to it. The following letter, in answer to an inquiry, was published by a New York committee of the following gentlemen: George P. Putnam, S. Irenæus Prime, Henry Ivison, James Parton, Egbert Hasard.

Senate Chamber, February 17, 1868.

MY DEAR SIR,—Pardon my delay. There are two ways of dealing with the question of International Copyright,—one by the treaty power, and the other by reciprocal legislation.

I have always thought that the former was the easier, but at the present moment the House of Representatives is not disposed to concede much to the treaty power.

Mr. Everett, while Secretary of State, negotiated a treaty on this subject with Great Britain, which was submitted to the Senate, reported by the Committee on Foreign Relations, considered in the Senate, and finally left on the table, without any definitive vote.

I shall send you a copy of this treaty, which, I believe, has never seen the light.

I have always been in favor of an International Copyright, as justice to authors and a new stage in the unity of nations. Perhaps the condition of public affairs at this time, the preoccupation of the public mind, the imminence of the Presidential election, and also the alienation from England, may present temporary obstacles. But I am sanguine that at last the victory will be won. If authors should have a copyright anywhere, they should have it everywhere within the limits of civilization.

Accept my best wishes, and believe me, dear Sir,

Faithfully yours,

Charles Sumner.

James Parton, Esq., Secretary of the Committee.

THE IMPEACHMENT OF THE PRESIDENT.
THE RIGHT OF THE PRESIDENT OF THE SENATE PRO TEM. TO VOTE.

Remarks in the Senate, on the Question of the Competency of Mr. Wade, Senator from Ohio, then President of the Senate pro Tem., to vote on the Impeachment of President Johnson, March 5, 1868.

MR. PRESIDENT,—I shall not attempt to follow learned Senators in the question whether this is a Senate or a Court. That question, to my mind, is simply one of language, and not of substance. Our powers at this moment are under the Constitution of the United States; nor can we add to them a tittle by calling ourselves a Court or calling ourselves a Senate. There they are in the Constitution. Search its text and you will find them. The Constitution has not given us a name, but it has given us powers; and those we are now to exercise. The Senate has the sole power to try impeachments. No matter for the name, Sir. I hope that I do not use an illustration too familiar, when I remind you that a rose under any other name has all those qualities which make it the first of flowers.

I should not at this time have entered into this discussion, if I had not listened to objections on the other side which seem to me founded, I will not say in error, for that would be bold when we are discussing a question of so much novelty, but I will say founded in a reading of history which I have not been able to verify. Senator after Senator on the other side, all distinguished by ability and learning, have informed us that the Constitution intended to prevent a person who might become President from presiding at the trial of the President. I would ask learned Senators who have announced this proposition, where they find it in the Constitution. The Constitution says:—

“When the President of the United States is tried, the Chief Justice shall preside.”

This is all; and yet on this simple text the superstructure of Senators has been reared.

The Constitution does not proceed to say why the Chief Justice shall preside; not at all; nothing of the kind. Senators supply the reason, and then undertake to apply it to the actual President of the Senate. Where, Sir, do they find the reason? They cannot find the reason which they now assign in any of the contemporary authorities illustrating the Constitution; they cannot find it in the debates of the National Convention reported by Madison, or in any of the debates in the States at that time; nor can they find it in the “Federalist.” When does that reason first come on the scene? Others may be more fortunate than I; but I have not been able to find it earlier than 1825, nearly forty years after the formation of the Constitution, in the Commentaries of William Rawle. We all know the character of this work,—one of great respectability, and which most of us in our early days have read and studied. How does he speak of it? As follows:—

“The Vice-President, being the President of the Senate, presides on the trial, except when the President of the United States is tried. As the Vice-President succeeds to the functions and emoluments of the President of the United States, whenever a vacancy happens in the latter office, it would be inconsistent with the implied purity of a judge that a person under a probable bias of such a nature should participate in the trial, and it would follow that he should wholly retire from the court.”[90]

Those are the words of a commentator on the Constitution. They next appear eight years later, in the Commentaries of Mr. Justice Story. After citing the provision, “When the President of the United States is tried, the Chief Justice shall preside,” the learned commentator proceeds:—

“The reason of this clause has been already adverted to. It was to preclude the Vice-President, who might be supposed to have a natural desire to succeed to the office, from being instrumental in procuring the conviction of the Chief Magistrate.”[91]

And he cites in his note “Rawle on the Constitution, ch. 22, p. 216,”[92] being the very passage that I have just read. Here is the first appearance of this reason, which is now made to play so important a part, being treated even as a text of the Constitution itself. At least I have not been able to meet it at an earlier day.

If you repair to the contemporary authorities, including the original debates, you will find no such reason assigned,—nothing like it,—not even any suggestion of it. On the contrary, you will find Mr. Madison, in the Virginia Convention, making a statement which explains in the most satisfactory manner the requirement of the Constitution.[93] No better authority could be cited. Any reason supplied by him anterior to the adoption of the Constitution must be of more weight than any ex post facto imagination or invention of learned commentators.

If we trust to the lights of history, the reason for the introduction of this clause in the Constitution was because the framers of the Constitution contemplated the possibility of the suspension of the President from the exercise of his powers, in which event the Vice-President could not be in your chair, Sir. If the President were suspended, the Vice-President would be in his place. The reports will verify what I say. If you refer to the debates of the National Convention, under the date of Friday, September 14, 1787, you will find the following entry, which I read now by way of introduction to what follows at a later date, on the authority of Mr. Madison himself.

“Mr. Rutledge and Mr. Gouverneur Morris moved ‘that persons impeached be suspended from their offices until they be tried and acquitted.’

“Mr. Madison. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate.

“Mr. King concurred in the opposition to the amendment.”[94]

The proposition was rejected by the decisive vote of eight States in the negative to three in the affirmative. We all see, in reading it now, that it was rejected on good grounds. It would obviously be improper to confer upon the other branch of Congress the power, by its own vote, to bring about a suspension of the Chief Magistrate. But it did not follow, because the Convention rejected the proposition that a suspension could take place on a simple vote of the House of Representatives, that therefore the President could not be suspended. When the Senate was declared to have the sole power to try impeachments, it was by necessary implication invested with the power, incident to every court, and known historically to belong to the English court of impeachment, from which ours was borrowed, of suspending the party accused. All this was apparent at the time, if possible, more clearly than now. It was so clear, that it furnishes an all-sufficient reason for the provision that the Chief Justice should preside on the trial of the President, without resorting to the later reason which has been put forward in this debate.

But we are not driven to speculate on this question. While the Constitution was under discussion in the Virginia Convention, George Mason objected to some of the powers conferred upon the President, especially the pardoning power. This was on June 18, 1788, and will be found under that date in the reports of the Virginia Convention. This earnest opponent of the Constitution said that the President might “pardon crimes which were advised by himself,” and thus further his own ambitious schemes. This brought forward Mr. Madison, who had sat, as we all know, throughout the debates of the National Convention, and had recorded its proceedings, and who, of all persons, was the most competent to testify at that time as to the intention of the framers. What said this eminent authority? I give you his words:—

“There is one security in this case to which gentlemen may not have adverted. If the President be connected in any suspicious manner with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they”—