Part 18

According to these authorities, it seems reasonable to infer, that, under the Constitution of the United States, the pardoning power, which is clearly applicable to the offence of "transporting" slaves of the District, might remit the penalties in question. These penalties, though allotted to the owners and the county, when finally collected, are neither more nor less than the punishment, under sentence of a criminal court, for an offence of which the parties stand convicted upon indictment. They can be collected and acquitted only by the United States. No process for this purpose is at the command of the slave-owner. He had no control whatever over the prosecution at any stage, nor did it proceed at his suggestion or information. The very statute under which these public proceedings were instituted in the name of the United States secured to the slave-owner his private action on the case for damages,--thus separating the public from the private interests. These it seems the duty of the President to keep separate, except on the final collection and distribution of the penalties. Public policy and the ends of justice require that the punishment for a criminal offence should, in every case, be exclusively subject to the supreme pardoning power, without dependence upon the will of any private person. An obvious case will illustrate this. Suppose, in the case of Drayton and Sayres, it should be ascertained beyond doubt that the conviction was procured by perjury. If, by virtue of the judgment, the slave-owners have an interest in the imprisonment of these men which cannot be touched, then the prisoners, unable to meet these heavy liabilities, must continue in perpetual imprisonment, or owe their release to the accident of private good-will. The President, notwithstanding his beneficent power to pardon, under the Constitution, will be powerless to remedy this evil. But such a state of things would be monstrous; and any interpretation of the Constitution is monstrous which thus ties his hands. Mercy and justice would be rendered not merely _by halves_, but, owing to the inability of prisoners, from poverty, to pay the other half of the fine, they would be entirely arrested.

The power of pardon, which is attached by the Constitution to offences generally, should not be curtailed. It is a generous prerogative, and should be exercised generously. _Boni judicis est ampliare jurisdictionem._ This is an old maxim of the law. But if it be the duty of a good judge to extend his jurisdiction, how much more is it the duty of a good President to extend the field of his clemency! At least, no small doubt should deter him from the exercise of his prerogative.

* * * * *

The conclusion from this review is as follows.

1. By the English Common Law the costs and one half of the fines may be remitted. It is not certain that by this law, as adopted in the United States, the other half of the fines may not also be remitted.

2. Under the statutes of Maryland, now the law of the District, the Governor, and, of course, the President, may remit "the whole or any part of any fine," without exception.

3. Under the Constitution of the United States, and according to its true spirit, the pardoning power of the President is coextensive with the power to punish, except in the solitary case of impeachment.

* * * * *

Several courses are open to the President in the present case.

I. By a _general pardon_ he may discharge Drayton and Sayres _from prison, and remit all the fines and costs for which they are detained_. Such a pardon would unquestionably operate effectually upon the imprisonment and upon the costs, and also upon the half of the fines due to the county. It would be for the courts, on a proper application, and in the exercise of their just powers, to restrict it, if the pardon did not operate upon the other moiety.

Among the opinions of the Attorney-General is a case which illustrates this point. In 1824 Joshua Wingate prayed for a credit, in the settlement of his accounts, for his proportion of a fine incurred by one Phineas Varney. It appeared that suit was instituted by the petitioner as Collector of the District of Bath, Maine, on which judgment was obtained in May, 1809; the defendant was arrested and committed to jail, under execution on that judgment, and the fine was afterwards remitted by the President. The petitioner contended that the President had no constitutional or legal power to remit his proportion of the fine, the right to which had vested by the institution of the suit. On this Mr. Wirt remarks, that "it is unnecessary to express an opinion upon the correctness of this position, because, if it be correct, the act of remission by the President being wholly inoperative as to that portion of the fine claimed by the collector, his legal right to recover it remained in full force, notwithstanding the remission; and it is his own fault, if he has not enforced his right at law." (Opinions of the Attorneys-General, Vol. I. p. 479.)

A general pardon cannot conclude the question so as to divest any existing rights. It can do no wrong. Why should the President hesitate to exercise it?

II. By a _limited pardon_ the President may discharge Drayton and Sayres simply and exclusively _from their imprisonment, without touching their pecuniary liability_, but leaving them still exposed to proceedings for all fines and costs, to be satisfied out of any property they may hereafter acquire.

If the imprisonment were a specific part of the sentence,--as, if they had been sentenced to one year's imprisonment and a fine of one hundred dollars,--beyond all question they might be discharged, by pardon, from this imprisonment. But where the imprisonment, as in the present case, is not a specific part of the sentence, but simply an alternative in the nature of a remedy, to secure the payment of the fine, the power of the President cannot be less than in the former case.

So far as all private parties are concerned, the imprisonment is a mere matter of _remedy_, which can be discharged without divesting the beneficiaries of any rights; and since imprisonment for debt has been abolished, it is reasonable, under the circumstances, that this peculiar remedy should be discharged.

III. By another form of _limited pardon_, the President may discharge Drayton and Sayres _from their imprisonment, also from all fines and costs in which the United States have an interest_, without touching the rights of other parties.

This would set them at liberty, but would leave them exposed to private proceedings at the instigation of the owners of the "transported" slaves, if any should be so disposed.

IV. By still another form of pardon, reference may be made to the Maryland statute of 1782, under which the Governor is authorized "to remit the whole or any part of any fine," without any exception therefrom; and this power, now vested in the President, may be made the express ground for the remission of all fines and costs due from Drayton and Sayres. By this form of pardon the case may be limited, as a precedent hereafter, to a very narrow circle of cases. It would not in any way affect cases arising under the general laws of the Union.

In either of these alternatives the great object of this application would be gained,--the discharge of these men from prison.

CHARLES SUMNER.

May 14, 1852.

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PRESENTATION OF A MEMORIAL AGAINST THE FUGITIVE SLAVE BILL.

REMARKS IN THE SENATE, MAY 26, 1852.

In the Senate, Wednesday, 26th May, 1852, on the presentation of a Memorial against the Fugitive Slave Bill, the following passage occurred, which illustrates the sensitiveness of the Senate with regard to Slavery and the impediments to its discussion. Mr. Sumner said:--

Mr. President,--I hold in my hand, and desire to present, a memorial from the representatives of the Society of Friends in New England, formally adopted at a public meeting, and authenticated by their clerk, in which they ask for the repeal of the Fugitive Slave Bill. After setting forth their sentiments on the general subject of Slavery, the memorialists proceed as follows.

"We, therefore, respectfully, but earnestly and sincerely, entreat you to repeal the law of the last Congress respecting fugitive slaves: first and principally, because of its injustice towards a long sorely oppressed and deeply injured people; and, secondly, in order that we, together with other conscientious sufferers, may be exempted from the penalties which it imposes on all who, in faithfulness to their Divine Master, and in discharge of their obligations to their distressed fellow-men, feel bound to regulate their conduct, even under the heaviest penalties which man can inflict for so doing, by the divine injunction, 'All things whatsoever ye would that men should do to you, do ye even so to them,' and by the other commandment, 'Thou shalt love the Lord thy God with all thy heart, and thy neighbor as thyself.'"

Mr. President,--This memorial is commended by the character of the religious association from which it proceeds,--men who mingle rarely in public affairs, but with austere virtue seek to carry the Christian rule into life.

THE PRESIDENT [Mr. KING, of Alabama]. The Chair will have to interpose. The Senator is not privileged to enter into a discussion of the subject now. The contents of the memorial, simply, are to be stated, and then it becomes a question whether it is to be received, if any objection is made to its reception. Silence gives consent. After it is received, he can make a motion with regard to its reference, and then make any remarks he thinks proper.

MR. SUMNER. I have but few words to add, and then I propose to move the reference of the memorial to the Committee on the Judiciary.

THE PRESIDENT. The memorial has first to be received, before any motion as to its reference can be entertained. The Senator presenting a memorial states distinctly its objects and contents; then it is sent to the Chair, if a reference of it is desired. But it is not in order to enter into a discussion of the merits of the memorial until it has been received.[95]

MR. SUMNER. I do not propose to enter into any such discussion. I have already read one part of the memorial, and it was my design merely to refer to the character of the memorialists,--a usage which I have observed on this floor constantly,--and to state the course I should pursue, concluding with a motion for a reference.

[95] On any subject but Slavery there was no check upon Senators at any time.

THE PRESIDENT. The Chair will hear the Senator, if such is the pleasure of the Senate, if he does not go into an elaborate discussion.

MR. SUMNER. I have no such purpose.

MR. DAWSON [of Georgia]. Let him be heard.

SEVERAL SENATORS. Certainly.

MR. SUMNER. I observed that this memorial was commended by the character of the religious association from which it proceeds. It is commended also by its earnest and persuasive tone, and by the prayer which it presents. Offering it now, Sir, I desire simply to say, that I shall deem it my duty, on some proper occasion hereafter, to express myself at length on the matter to which it relates. Thus far, during this session, I have forborne. With the exception of an able speech from my colleague [Mr. DAVIS], the discussion of this all-absorbing question has been mainly left with Senators from another quarter of the country, by whose mutual differences it is complicated, and between whom I do not care to interfere. But there is a time for all things. Justice also requires that both sides should be heard; and I trust not to expect too much, when, at some fit moment, I bespeak the clear and candid attention of the Senate, while I undertake to set forth, frankly and fully, and with entire respect for this body, convictions deeply cherished in my own State, though disregarded here, to which I am bound by every sentiment of the heart, by every fibre of my being, by all my devotion to country, by my love of God and man. Upon these I do not enter now. Suffice it, for the present, to say, that, when I undertake that service, I believe I shall utter nothing which, in any just sense, can be called _sectional_, unless the Constitution is sectional, and unless the sentiments of the Fathers were sectional. It is my happiness to believe, and my hope to be able to show, that, according to the true spirit of the Constitution, and according to the sentiments of the Fathers, FREEDOM, and not _Slavery_, is NATIONAL, while SLAVERY, and not _Freedom_, is SECTIONAL.

In duty to the petitioners, and with the hope of promoting their prayer, I move the reference of their petition to the Committee on the Judiciary.

A brief debate ensued, in which Messrs. Mangum, of North Carolina, Badger, of North Carolina, Hale, of New Hampshire, Clemens, of Alabama, Dawson, of Georgia, Adams, of Mississippi, Butler, of South Carolina, and Chase, of Ohio, took part; and, on motion of Mr. Badger, the memorial was laid on the table.

* * * * *

THE NATIONAL FLAG THE EMBLEM OF UNION FOR FREEDOM.

LETTER TO THE BOSTON COMMITTEE FOR THE CELEBRATION OF THE 4TH OF JULY, 1852.

WASHINGTON, July 2, 1852.

Dear Sir,--It will not be in my power to unite with my fellow-citizens of Boston in celebrating the approaching anniversary of our national independence. I venture, however, in response to the invitation with which I have been honored, to recall an incident not unworthy of remembrance, especially in our local history.

The thirteen stripes which now distinguish our national flag were first unfurled by Washington, when in command of the American forces which surrounded Boston, after the Battle of Bunker Hill, and before the Declaration of Independence. Thus early was this emblem of Union consecrated to Freedom. Our great chief at once gave to the new ensign a name which may speak to us still. In a letter, written at the time, he calls it the Union Flag, and declares why it was first displayed. His language is, that he had "_hoisted the UNION FLAG in compliment to the UNITED Colonies_."[96] Afterwards, on the 14th of June, 1777, by a resolution of the Continental Congress, the stars and stripes were formally adopted as the flag of the _United States_.

[96] Letter to Joseph Reed, Jan. 4, 1776: Writings, ed. Sparks, Vol. III. p. 225.

This piece of history suggests a sentiment which I beg leave to offer.

_Our National Flag._ First hoisted before Boston, as the emblem of Union for the sake of Freedom. Wherever it floats, may it never fail to inspire the sentiments in which it had its origin!

I have the honor to be, dear Sir,

Your faithful servant,

CHARLES SUMNER.

Hon. BENJAMIN SEAVER, Chairman of the Committee, &c., &c.

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UNION AGAINST THE SECTIONALISM OF SLAVERY.

LETTER TO A FREE-SOIL CONVENTION AT WORCESTER, JULY 6, 1852.

This Convention was organized with the following officers: Hon. Stephen C. Phillips, of Salem, President,--William Davis, of Plymouth, Gershom B. Weston, of Duxbury, Edward L. Keyes, of Dedham, William B. Spooner, of Boston, John G. Palfrey, of Cambridge, John B. Alley, of Lynn, Samuel E. Sewall, of Stoneham, John W. Graves, of Lowell, John Milton Earle, of Worcester, William Jackson, of Newton, Rodolphus B. Hubbard, of Sunderland, Caleb Swan, of Easton, Joel Hayden, of Williamsburg, William M. Walker, of Pittsfield, Vice-Presidents,--Robert Carter, of Cambridge, George F. Hoar, of Worcester, S.B. Howe, of Lowell, Andrew J. Aiken, of North Adams, S.L. Gere, of Northampton, Secretaries.

The resolutions were reported by Hon. Henry Wilson.

WASHINGTON CITY, July 3, 1852.

Dear Sir,--The true and well-tried friends of Freedom in Massachusetts are about to assemble at Worcester. It will not be in my power to be with them, to catch the contagion of their enthusiasm, to be strengthened by their determination, and to learn anew from eloquent lips the grandeur of our cause and the exigency of our duties. But I confidently look to them for trumpet words which shall again rally the country against the _sectionalism_ of Slavery.

At Worcester, in 1848, commenced the first strong movement, which, gaining new force at Buffalo, and sweeping the Free States, enrolled three hundred thousand electors in constitutional opposition to a hateful wrong. The occasion now requires a similar effort. Both the old parties, with apostasy greater than that which aroused our condemnation at that time, have trampled on the Declaration of Independence, and the most cherished sentiments of the Fathers of the Republic. Even liberty of speech is threatened. It is difficult to see how any person, loyal to Freedom, and desirous of guarding it by all constitutional means, can support the national candidates of either of these parties, without surrendering the cause he professes to have at heart. Let no man expect from me any such surrender.

The two Conventions at Baltimore, by their recorded resolutions, have vied with each other in servility to Slavery. But I rejoice to believe that in both parties there are large numbers of good men who will scorn these professions. The respectable persistence in opposition to the Black Flag, which distinguished at least one of the Conventions, furnishes an earnest for the future, though Massachusetts can derive small encouragement from her delegates there. All her votes in that Convention were cast in favor of those declarations by which Slavery has received new safeguards and Freedom new restrictions.

But these efforts are doomed to disappointment. In spite of the clamors of partisans and the assumptions of the Slave Power, there is one principle which must soon prevail. It cannot be too often declared; for it is an all-sufficient basis for our political position, and an answer also to the cry of "Sectionalism," by which the prejudices of the country are ignorantly and illogically directed against us. According to the true spirit of the Constitution and the sentiments of the Fathers, _Freedom_, and not Slavery, is _national_, while _Slavery_, and not Freedom, is _sectional_. Though this proposition commends itself at once, and is sustained by the history of the Constitution, yet both the great parties, under the influence of the Slave Power, have reversed the true application of its terms. A _National_ Whig is simply a Slavery Whig, and a _National_ Democrat is simply a Slavery Democrat, in contradistinction to all who regard Slavery as a _sectional_ institution, within the exclusive control of the States, and with which the Nation has nothing to do. In upholding Freedom everywhere under the _National_ Government, we oppose a pernicious _sectionalism_, which falsely calls itself _national_. All this will yet be seen and acknowledged.

Amidst the difficulties and defections at the present moment, the Future is clear. Nothing can permanently obstruct Truth. But our duties increase with the occasion; nor will the generous soul be deterred by the greatness of the peril. Any such will be content to serve Freedom, to support her supporters, and to leave the result to Providence. Better be where Freedom is, though in a small minority or alone, than with Slavery, though surrounded by multitudes, whether Whigs or Democrats, contending merely for office and place.

Believe me, dear Sir, ever faithfully yours,

CHARLES SUMNER.

Hon. E.L. KEYES.

* * * * *

"STRIKE, BUT HEAR": ATTEMPT TO DISCUSS THE FUGITIVE SLAVE BILL.

REMARKS IN THE SENATE, ON TAKING UP THE RESOLUTION INSTRUCTING THE COMMITTEE ON THE JUDICIARY TO REPORT A BILL FOR IMMEDIATE REPEAL OF THE FUGITIVE SLAVE ACT, JULY 27 AND 28, 1852.

Mr. President,--I have a resolution which I desire to offer; and as it is not in order to debate it to-day, I give notice that I shall expect to call it up to-morrow, at an early moment in the morning hour, when I shall throw myself upon the indulgence of the Senate to be heard upon it.

The resolution was then read, as follows:--

"_Resolved_, That the Committee on the Judiciary be instructed to consider the expediency of reporting a bill for the immediate repeal of the Act of Congress, approved September 18, 1850, usually known as the Fugitive Slave Act."

In pursuance of this notice, on the next day, 28th July, during the morning hour, an attempt was made by Mr. Sumner to call it up, that he might present his views on Slavery.

Mr. President,--I now ask permission of the Senate to take up the resolution which I offered yesterday. For that purpose, I move that the prior orders be postponed, and upon this motion I desire to say a word. In asking the Senate to take up this resolution for consideration, I say nothing now of its merits, nor of the arguments by which it may be maintained; nor do I at this stage anticipate any objection to it on these grounds. All this will properly belong to the discussion of the resolution itself,--the main question,--when it is actually before the Senate. The single question now is, not the resolution, but whether I shall be heard upon it.

As a Senator, under the responsibilities of my position, I have deemed it my duty to offer this resolution. I may seem to have postponed this duty to an inconvenient period of the session; but had I attempted it at an earlier day, I might have exposed myself to a charge of a different character. It might then have been said, that, a new-comer and inexperienced in this scene, without deliberation, hastily, rashly, recklessly, I pushed this question before the country. This is not the case now. I have taken time, and, in the exercise of my most careful discretion, at last ask the attention of the Senate. I shrink from any appeal founded on a trivial personal consideration; but should I be blamed for delay latterly, I may add, that, though in my seat daily, my bodily health for some time past, down to this very week, has not been equal to the service I have undertaken. I am not sure that it is now, but I desire to try.

And now again I say, the question is simply whether I shall be heard. In allowing me this privilege,--this right, I may say,--you do not commit yourselves in any way to the principle of the resolution; you merely follow the ordinary usage of the Senate, and yield to a brother Senator the opportunity which he craves, in the practical discharge of his duty, to express convictions dear to his heart, and dear to large numbers of his constituents. For the sake of these constituents, for my own sake, I now desire to be heard. Make such disposition of my resolution afterward as to you shall seem best; visit upon me any degree of criticism, censure, or displeasure; but do not refuse me a hearing. "Strike, but hear."

A debate ensued, in which Messrs. Mason, of Virginia, Brooke, of Mississippi, Charlton, of Georgia, Gwin, of California, Pratt, of Maryland, Shields, of Illinois, Douglas, of Illinois, Butler, of South Carolina, Borland, of Arkansas, and Hunter, of Virginia, took part. Objections to taking up the resolution were pressed on the ground of "want of time," "the lateness of the session," and "danger to the Union."