Part 25

Mr. President, I have striven to keep within the open field of history and philanthropy, on neutral ground; but you would not forgive me, if, on this occasion, I forbore to adduce the most interesting testimony of Granville Sharp touching that much debated clause in our National Constitution which has been stretched to the surrender of fugitive slaves. Anterior to the Constitution, even during colonial days, he wrote, that any law which orders the arrest or rendition of fugitive slaves, or in any way tends to deprive them of legal protection, is to be deemed "a corruption, null and void in itself"; and at a later period, in an elaborate communication to the Abolition Society of Maryland,--mark, if you please, of slaveholding Maryland,--which was printed and circulated by this society, as "the production of a great and respectable name," calculated to relieve persons "embarrassed by a conflict between their principles and the obligations imposed by unwise and perhaps unconstitutional laws," he exposed the utter "illegality" of Slavery, and especially of "taking up slaves that had escaped from their masters."[166] But, in a remarkable letter to Franklin, dated January 10, 1788,--a short time after the Constitution had left the hands of the Convention, and some months before its final adoption by the people,--and which has never before been adduced, even in the thorough discussion of this question, the undaunted champion, who had not shrunk from conflict with the Chief Justice of England, openly arraigned the National Constitution. Here are his words.

"Having been always zealous for the honor of free governments, I am the more sincerely grieved to see the new Federal Constitution stained by the insertion of two most exceptionable clauses: the one in direct opposition to a most humane article, ordained by the first American Congress to be perpetually observed" (referring to the sufferance of the slave-trade till 1808); "and the other, in equal opposition to an express command of the Almighty, 'not to deliver up the servant that has escaped from his master,' &c. _Both clauses, however_, (the 9th section of the 1st article, and the latter part of the 2d section of the 3d [4th] article,) _are so clearly null and void by their iniquity, that it would be even a CRIME to regard them as law_."[167]

[166] Letter to the Maryland Society for Promoting the Abolition of Slavery, (Baltimore, 1793,) pp. 2, 3.

[167] Memoirs, p. 253.

It does not appear that Franklin ever answered this letter, in the short term of life which remained to him. But, in justice to his great name, I desire to express my conviction here, of course without argument, that this patriot philosopher never attributed to the clause, which simply provides for the surrender of fugitives from "service or labor," without the mention of _slaves_, any such meaning as it has since been made to assume. And Granville Sharp himself, in putting upon it the interpretation he did, forgot the judgment he had extorted from Lord Mansfield, affirming that any law out of which Slavery is derived must be construed _strictly_; and, stranger still, he forgot his own unanswerable argument, _that the word SLAVES is nowhere to be found in the British Constitution_. The question under the fugitive clause of our Constitution is identical with that happily settled in England.

* * * * *

In works and contemplations like these was the life of our philanthropist prolonged to a generous old age, cheered by the esteem of the good, informed by study, and elevated by an enthusiastic faith, which always saw the world as the footstool of God; and when, at last, in 1813, bending under the burden of seventy-seven winters, he gently sank away, it was felt that a man had died in whom was the greatness of goodness. Among the mourners at his grave stood William Wilberforce; and over the earthly remains of this child of lowly beginnings were now dropped the tears of a royal duke. The portals of that great Temple of Honor, where are treasured England's glories, swung open at the name of England's earliest Abolitionist. A simple tablet, from the chisel of Chantrey, representing an African slave on his knees in supplication, and also the lion and the lamb lying down together, with a suitable inscription, was placed in the Poet's Corner of Westminster Abbey, in close companionship with those stones which bear the names of Chaucer, Spenser, Shakespeare, Milton, Dryden, Goldsmith, Gray. As the Muses themselves did not disdain to watch over the grave of one who had done well on earth, so do the poets of England keep watch over the monument of Granville Sharp. Nor is his place in that goodly company without poetical title. The poet is simply _creator_; and he who was inspired to create freemen out of slaves was poet of the loftiest style. Not in the sacred Abbey only was our philanthropist commemorated. The city of London, centre of those Slave-Hunting merchants over whom his great triumph was won, now gratefully claimed part of his renown. The marble bust of England's earliest Abolitionist was installed at Guildhall, home of metropolitan justice, pomp, and hospitality, in the precise spot where once had stood the bust of Nelson, England's greatest Admiral, and beneath it was carved a simple tribute, of more perennial worth than all the trophies of Trafalgar:--

GRANVILLE SHARP,

TO WHOM ENGLAND OWES THE GLORIOUS VERDICT OF HER HIGHEST COURT OF LAW, THAT THE SLAVE WHO SETS HIS FOOT ON BRITISH GROUND BECOMES THAT INSTANT FREE.

Gentlemen of the Mercantile Library Association,--such was Granville Sharp, and such honors England to her hero paid. And now, if it be asked, why, in enforcing the duties of the Good Merchant, I select his name, the answer is prompt. It is in him that the merchant, successor to the chivalrous knight, aiming to fulfil his whole duty, may find a truer prototype than in any stunted, though successful votary of trade, while the humble circumstances of his life seem to make him an easy example. Imitating him, commerce would thrive none the less, but goodness more. Business would not be checked, but it would cease to be pursued as the "one idea" of life. Wealth would still abound; but there would be also that solid virtue, never to be moved from truth, which, you will admit, even without the admonition of Plato, is better than all the cunning of Dædalus or all the treasures of Tantalus.[168] The hardness of heart engendered by the accursed greed of gain, and by the madness of worldly ambition, would be overcome: the perverted practice, that _Policy is the best Honesty_, would be reversed; and _Merchants would be recalled, gently, but irresistibly, to the great PRACTICAL DUTIES of this age_, and thus win the palm of true honesty, which trade alone can never bestow.

[168] Euthyphron, § 12.

"Who is the HONEST MAN? He that doth still and strongly good pursue, To GOD, his neighbor, and himself, most true."[169]

YOUNG MERCHANTS OF BOSTON! I have spoken to you frankly and faithfully, trusting that you would frankly and faithfully hearken to me. And now, in the benison once bestowed upon the youthful Knight, I take my leave: "Go forth! be brave, loyal, and successful!"

[169] Herbert, The Temple: _Constancy_.

WAGES OF SEAMEN IN CASE OF WRECK.

SPEECH IN THE SENATE, ON INTRODUCING A BILL TO SECURE WAGES TO SEAMEN IN CASE OF WRECK, FEBRUARY 12, 1855.

On the 26th of December, 1854, Mr. Sumner introduced the following resolution:--

"_Resolved_, That the Committee on Commerce be directed to consider if any legislation be needed in order to secure the wages of merchant seamen in the case of wreck."

On the 12th of February, 1855, Mr. Sumner followed up this resolution by introducing a bill, which was read twice and referred to the Committee on Commerce, as follows:--

"_A Bill to secure Wages to Seamen in case of Wreck._

"_Be it enacted_, &c., That, in case of wreck or loss of any ship or vessel of the United States, every seaman belonging thereto shall be entitled to his wages up to the period of such wreck or loss, whether such ship or vessel shall or shall not have previously earned freight, provided such seaman shall have exerted himself to the utmost to save the ship, cargo, and stores; and in any trial of the question of services, the master, although a party to the suit, shall be a competent witness on this question.

"SEC. 2. _And be it further enacted_, That every stipulation, by which any seaman shall consent to abandon his wages, in case of wreck or loss of the ship or vessel, or in case of the failure to earn freight, shall be wholly void."

On this bill Mr. Sumner spoke as follows.

Mr. President,--In introducing this bill, I desire to make a brief explanation, which shall, at least, be a record of my views with regard to it.

The bill proposes an amelioration of the existing Maritime Law in respect to the wages of merchant seamen, which, so far as England is concerned, has been made already by Act of Parliament, and in our country can be accomplished only by Act of Congress.

By existing Maritime Law, the seaman's wages depend upon a technical rule, which sometimes occasions hardship. Freight is compendiously said to be the mother of wages. In conformity with this fanciful idea, wages are made to depend upon the earning of freight, unless the freight is waived by agreement of the owner, or the voyage or freight is lost by negligence, fraud, or misconduct of the owner or master, or voluntarily abandoned. In case of wreck, the sailor has simply the chance of something under the name of salvage, if the fragments saved happen to be of any value; but if the loss be total, then he is without remedy. In wrecks, which occur with melancholy frequency, on our churlish winter coast, this hardship adds even to the sorrows of disaster. Thus, as in a case which has actually arisen, a crew may commence service at Calcutta, may navigate the Indian Ocean, double the Cape of Good Hope, and bring their ship safely within sight of land, and then, by total loss of ship and cargo, from acknowledged perils of the sea, they may lose everything, even their right to wages, and may find themselves in a strange port, the prey of poverty. Nor can any merit, either throughout the protracted voyage or in the hour of peril and shipwreck, prevent the operation of this technical rule.

There is also another circumstance which constrains the poor sailor. The owner may insure his ship, and also his freight, so that he may lose nothing but the premium he pays; but the sailor is not allowed to protect himself by insurance from loss of wages: his loss is literally total.

Now this technical rule, which fastens the wages of the sailor to the fortunes of the vessel, or, in other words, makes the right dependent on the successful issue of the enterprise for which he is hired, must be considered an offshoot of Mediæval Maritime Law. It is not found in the Roman Law, nor in the maritime legislation of the Eastern Empire, nor in that early compilation which goes under the name of the Rhodian Laws. An eminent American judge, who sheds great light upon maritime jurisprudence,--I refer to the learned and able Judge Ware, of the District Court of Maine,--says, in a judicial opinion, that "it owes its origin to the necessities and peculiar hazards which maritime commerce had to encounter in the Middle Ages, when to the dangers of the winds and waves were added the more formidable perils of piracy and robbery."[170] The rule, having been thus established, was preserved in the maritime jurisprudence of Europe, when the special exigencies in which it had its birth ceased to exist. It has outlived the circumstances and excuses of its origin, and now survives to vex, oppress, and disappoint the most needy, if not the most meritorious, of all concerned in the business of the seas.

[170] _The Dawn_, Daveis, 133.

This hard rule survives with us, but not everywhere. The greatest commercial nation of the world has led the way in its abolition, and set an example to the United States. The Act of Parliament, of 7th and 8th Victoria, ch. 112, sec. 17 (at the close),--called "The Merchant Seamen's Act,"--provides that

"In all cases of wreck or loss of the ship, every surviving seaman shall be entitled to his wages up to the period of the wreck or loss of the ship, whether such ship _shall or shall not have previously earned freight_: provided the seaman shall produce a certificate from the master or chief surviving officer of the ship, to the effect that he had exerted himself to the utmost to save the ship, cargo, and stores."

But the sailor was not completely protected by this provision. Experience in England showed that the cunning of agents was able to introduce into the shipping articles an agreement waiving the right to wages in case of loss, which the unthrifty sailor signed, ignorant or careless of its import. To remedy this abuse, a further Act of Parliament, of 13th and 14th Victoria, ch. 93, sec. 53,--known as "The Mercantile Marine Act,"--

"No seaman shall, by reason of any agreement, forfeit his lien upon the ship, or be deprived of any remedy for the recovery of his wages, to which he would otherwise have been entitled; and every stipulation which is inconsistent with any provision of this Act, or of any other Act relating to merchant seamen, and every stipulation by which any seaman consents _to abandon his right to wages in the case of the loss of the ship_, or to abandon any right which he may have or obtain in the nature of salvage, _shall be wholly inoperative_."

The bill which I now introduce is grounded on the provisions quoted from the two Acts of the British Parliament, and contains two principles: _first_, that seamen shall be paid their wages down to the time of the loss of the ship, in case they serve faithfully to the last; and, _secondly_, that they shall not be permitted to lose their wages through any agreement in the shipping articles.

In some details I have departed from the British Act. It does not seem advisable to make the wages dependent on "a certificate from the master or chief surviving officer of the ship," but to leave the question of services open to proof in any way, according to received rules of evidence. Therefore I have said that the wages shall be paid, "_provided_ the seaman shall have exerted himself to the utmost to save the ship, cargo, and stores." The reasons for this course are clear. Masters are often part owners of American ships, and thus have a personal interest adverse to the sailor. In a mood of selfishness or recklessness, they might refuse the certificate, even though well earned. Now, in constructing a protection to the sailor, it does not seem prudent to make his wages dependent upon any such quarter. Indeed, it is hardly just to take from him the right to establish his claim before the Admiralty Court, merely because an interested master refuses a certificate, when, perhaps, plenary proof might be furnished _aliunde_. Moreover, if the question were put in control of the master, he might obtain an improper influence over the minds of the crew, inducing them even to sacrifice truth in the event of litigation between owners and underwriters.

There can be no harm in leaving the question of fact to be proved by competent witnesses, like every other question of fact: and the seamen should be competent witnesses for each other. A sagacious court will know how to weigh their testimony, should it come in conflict with that of the officers. It seems proper that the master, too, though a party to the suit,--as in the case of a libel against him _in personam_, or in a suit at Common Law,--should be competent to testify to the conduct of the libellant or plaintiff,--in other words, whether he has "exerted himself to the utmost"; and I have introduced into the bill a provision accordingly.

The British Act of 7th and 8th Victoria contains another defect. It limits the wages to "every surviving seaman." I can see no good reason why the wife and children of the sailor who has perished in the forlorn hope perhaps, in the cause of all, should be deprived of the humble wages so dearly earned by their natural protector, and thus be compelled to feel a new deprivation added to their bereavement. In the proposed bill there is no such limitation.

Beyond this brief statement, I need not on this occasion add another word. Already Congress has shown a disposition to modify the rigorous Maritime Law in some of its provisions. In 1851 it made a change in the liability of ship-owners as common carriers. But this very liability originated, to a certain extent, in the same principles from which is derived the liability of the seamen, if they fail to bring the ship and cargo to port. Ship-owners and sailors were both treated as insurers. This was in the age of force, before the contract of insurance had spread its broad protection over commerce in every sea. The seaman should share this protection. He should be treated as not necessarily either pirate or coward.

In the discussions of the Senate on the proposed change in the liability of ship-owners, it was effectively urged by my immediate predecessor, a distinguished Senator from Massachusetts, the late Robert Rantoul, Jr., that, if the United States failed to adopt that measure, the other maritime nations would have an advantage in the carrying trade. It is equally true, that, unless we adopt the measure now proposed, Great Britain will have the advantage of us in the rate of seamen's wages; for, under her existing laws, the seaman can afford to work cheaper on board a British ship than under the American flag.

The measure now proposed is of direct importance to the hundred and fifty thousand seamen constituting the mercantile marine of the United States. It also concerns the million of men constituting the mercantile marine of the civilized world, any of whom, in the vicissitudes of the sea, may find themselves in American bottoms. I commend it as a measure of enlightened philanthropy, and also of simple justice.

I ask that the bill, having been read twice, be referred to the Committee on Commerce.

The motion was agreed to.

AGAINST CAPITAL PUNISHMENT.

LETTER TO A COMMITTEE OF THE MASSACHUSETTS LEGISLATURE, FEBRUARY 12, 1855.

SENATE CHAMBER, February 12, 1855.

Dear Sir,--In response to your inquiry, I beg leave to say, that I am happy in an opportunity to bear my testimony against Capital Punishment. My instincts were ever against it, and, from the time when, while yet a student of law, I read the classical report to the Legislature of Louisiana, by that illustrious jurist, Edward Livingston, I have been constantly glad to find my instincts confirmed by reason. Nothing of argument or experience since has in any respect shaken the original and perpetual repugnance with which I have regarded it. Punishment is justly inflicted by human power, with a twofold purpose: _first_, for the protection of society, and, _secondly_, for the reformation of the offender. Now it seems to me clear, that, in our age and country, the taking of human life is not _necessary_ to the protection of society, while it reduces the period of reformation to a narrow, fleeting span. If not necessary, it cannot come within the province of _self-defence_, and is unjustifiable.

It is sad to believe that much of the prejudice in favor of the gallows may be traced to three discreditable sources: _first_, the spirit of vengeance, which surely does not properly belong to man; _secondly_, unworthy timidity, as if a powerful, civilized community would be in peril, if life were not sometimes taken by the government; and, _thirdly_, blind obedience to the traditions of another age. But rack, thumbscrew, wheel, iron crown, bed of steel, and every instrument of barbarous torture, now rejected with horror, were once upheld by the same spirit of vengeance, the same timidity, and the same tradition of another age.

I trust that the time is at hand, when Massachusetts, turning from the vindictive gallows, will provide a comprehensive system of punishment, which by just penalties and privations shall deter from guilt, and by just benevolence and care shall promote the reformation of its unhappy subjects. Then, and not till then, will our beloved Commonwealth imitate the Divine Justice, which "desireth not the death of a sinner, but rather that he may turn from his wickedness and live."

Believe me, dear Sir, very faithfully yours,

CHARLES SUMNER.

TO THE CHAIRMAN OF THE COMMITTEE.

THE DEMANDS OF FREEDOM:

REPEAL OF THE FUGITIVE SLAVE ACT.

SPEECH IN THE SENATE AGAINST MR. TOUCEY'S BILL, AND FOR THE REPEAL OF THE FUGITIVE SLAVE ACT, FEBRUARY 23, 1855.

On the 23d of February, 1855, on motion of Mr. Toucey, of Connecticut, the Senate proceeded to the consideration of "a bill to protect officers and other persons acting under the authority of the United States," by which it was provided that "suits commenced or pending in any State Court against any officer of the United States, or other person, for or on account of any act done under any law of the United States, or under color thereof, or for or on account of any right, authority, claim, or title set up by such officer or other person, under any law of the United States," should be removed for trial to the Circuit Court of the United States. It was seen at once that under these words an attempt was made to oust the State Courts of cases arising from trespasses and damages under the Fugitive Slave Act; and the bill was pressed, as everything for Slavery was always pressed, even on Friday, to the exclusion of the private claims to which that day was devoted under the rules of the Senate. A debate commenced, which was continued with much animation and feeling late into the night.

Mr. Sumner seized this opportunity to urge again his proposition to repeal the Fugitive Slave Act. Just before the final question, he took the floor and spoke as follows.

Mr. President,--On a former occasion, as Slavery was about to clutch one of its triumphs, I rose to make my final opposition at midnight. It is now the same hour. Slavery is pressing again for its accustomed victory, which I undertake again for the moment to arrest. It is hardly an accidental conjunction which constantly brings Slavery and midnight together.

Since eleven o'clock this forenoon we have been in our seats, detained by the dominant majority, which, in subservience to Slavery, refuses to postpone this question or to adjourn. All other things are neglected. Various public interests, at this late stage of the session, demanding attention, are put aside. According to usage of the Senate, Friday is devoted to private claims. I am accustomed to call it our day of _justice_,--glad, that, since these matters are referred to us, at least one day in the week is thus set apart. But Slavery grasps this whole day, and changes it to a day of _injustice_. By the calendar, which I hold in my hand, it appears that upwards of seventy-five private bills, with which are associated hopes and fears of widows and orphans, and of all who come to Congress for relief, are on your table,--neglected, ay, Sir, sacrificed, to the bill now urged with so much pertinacity. Like Juggernaut, the bill is driven over prostrate victims. And here is another sacrifice to Slavery.