Part 7

“Doubtless,” says Blackstone, “all arbitrary powers, well executed, are _the most convenient_.”[19] But _mere convenience_ is not a proper reason, under a free government, for the assumption of powers not granted; and this is especially the case where the powers are arbitrary and despotic, and touch the liberty of the citizen.

Now, if the present inquiry were in the House of Representatives, and were directed against the President or the Secretary of War, on the ground of negligence or malfeasance at an important moment, it would be clearly within the jurisdiction of that body, which has the _sole_ power of impeachment; but it would not come within the jurisdiction of the Senate, until it became the duty of the latter body to try the impeachment instituted by the House.

But the present inquiry is neither preliminary to impeachment nor on the trial of an impeachment. It has no such element. It is precisely the same as if an inquiry should be instituted into the murder of Dr. Burdell in New York, or into the burning of slaves in Alabama, or into the banks of New York, or into the conduct of the Supreme Court of Wisconsin in alleged obstructions of the Fugitive Slave Bill,--with regard to all which the Senate has no judicial powers. And yet it has judicial powers in all these cases, precisely to the same extent that it has in the case of John Brown at Harper’s Ferry.

I know it is said that this power is necessary _in aid of legislation_. I deny the necessity. _Convenient_, at times, it may be; but _necessary_, never. We do not drag members of the Cabinet or the President to testify before a committee, _in aid of legislation_; but I say, without hesitation, they can claim no immunity which does not belong equally to the humblest citizen. Mr. Hyatt and Mr. Sanborn have rights as ample as if they were office-holders. Such a power as this--which, without the sanction of law, and merely at the will of a partisan majority, may be employed to ransack the most distant States, and to drag citizens before the Senate all the way from Wisconsin or from South Carolina--may be convenient, and to certain persons may seem to be necessary. Throughout all time alleged necessity has been the apology for wrong.

“So spake the Fiend, and with _necessity_, The tyrant’s plea, excused his devilish deeds.”

Such, according to Milton, was the practice among the fallen angels.

Let me be understood as admitting the power of the Senate, where it is essential to its own protection or the protection of its privileges, but not where it is required merely in aid of legislation. The difference is world-wide between what is required for _protection_ and what is required merely for _aid_; and here I part from Senators with whom I am proud on other matters to act. They hold that this great power may be exercised, not merely for the _protection_ of the Senate, but also for its _aid_ in framing a bill or in maturing any piece of legislation. To aid a committee of this body merely in a legislative purpose, a citizen, guilty of no crime, charged with no offence, presumed to be innocent, honored and beloved in his neighborhood, may be seized, handcuffed, kidnapped, and dragged away from home, hurried across State lines, brought here as criminal, and then thrust into jail. The mere statement of the case shows the dangerous absurdity of such a claim. “Nephew,” said Algernon Sidney in prison, on the night before his execution, “I value not my own life a chip; but what concerns me is, that the _law_ which takes away my life may hang every one of you, whenever it is thought convenient.” It was a dangerous _law_ that aroused the indignation of the English patriot. But in the present case there is not even a law,--nothing but an order made by a fractional part of Congress.

There are Senators here who pretend to find in the Constitution the right to carry slaves into the National Territories. That such Senators should also find in the same Constitution the right to make a slave of Mr. Hyatt or Mr. Sanborn, or of anybody else, merely to aid legislation, is not astonishing; but I am at a loss how Senators who love Freedom can find any such right in the Constitution.

I say nothing now of precedents from the British Parliament, for they are all more or less inapplicable. We live under a written Constitution, with certain specified powers; and all these are restricted by the Tenth Amendment, declaring that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But even British precedents have found a critic at home, in the late Chief Justice of England, Lord Denman, pronouncing judgment in the great case of _Stockdale_ v. _Hansard_,[20]--and also in the words of an elegant and authoritative historian, whose life has been passed in one or the other of the two Houses of Parliament: I refer to Lord Mahon, now Earl Stanhope, who, in his History of England, thus remarks:--

“I may observe, in passing, that throughout the reign of George the Second the privileges of the House of Commons flourished in the rankest luxuriance.… So long as men in authority are enabled to go beyond the law, on the plea of their own dignity and power, _the_ ONLY _limit to their encroachments will be that of the public endurance_.”[21]

Nothing can be more true than this warning. But Lord Brougham has expressed himself in words yet stronger, and, if possible, still more applicable to the present case.

“All rights,” says this consummate orator, “are now utterly disregarded by the advocates of Privilege, excepting that of exposing their own short-sighted impolicy and thoughtless inconsistency. Nor would there be any safety for the people under their guidance, if unhappily their powers of doing mischief bore any proportion to their disregard of what is politic and just.”[22]

With these observations I quit this question, anxious only that the recent Usurpation of the Senate may not be drawn into a precedent hereafter.

During Mr. Hyatt’s protracted imprisonment, Mr. Sumner visited him constantly, and thus became familiar with the condition of the jail. This led to the introduction of the following resolution, March 13, 1860.

“_Resolved_, That the Committee on the District of Columbia be directed to consider the expediency of doing something to improve the condition of the common jail of the city of Washington.”

Before the vote on the resolution was taken, Mr. Sumner remarked that he had visited the jail, and found it neither more nor less than a mere human sty; and since the Senate had undertaken to send a fellow-creature there, he thought that the least it could do was to see that something was done to improve its condition.

ABOLITION OF CUSTOM-HOUSE OATHS.

RESOLUTION IN THE SENATE, MARCH 15, 1860.

Mr. Sumner submitted the following resolution, which was considered by unanimous consent, and agreed to.

RESOLVED, That the Committee on Finance be instructed to consider whether the numerous custom-house oaths, now administered under Acts of Congress, may not with propriety be abolished, and a simple declaration be substituted therefor.

BOSTON COMMON, AND ITS EXTENSION.

LETTER TO GEORGE H. SNELLING, ESQ., OF BOSTON, MARCH 26, 1860.

Mr. Snelling interested himself much with regard to the disposition of the lands west of Boston Common, known as the “Back Bay Lands,” and owned by the Commonwealth of Massachusetts. Beyond a general desire to keep them open, his special aim was to have a tidal lake, bordered by avenues with trees. In this effort he was aided particularly by John A. Andrew, afterwards Governor. Other citizens, including the venerable Josiah Quincy, Professor Agassiz, and Dr. Edward Jarvis, wrote letters, published at the time, and used before the Committee of the Legislature to whom the matter was referred. Among these was the following.

SENATE CHAMBER, March 26, 1860.

MY DEAR SIR,--I am grateful for your timely intervention to save our Boston Common, by keeping it open to the western breezes and the setting sun. It is not pleasant, I know, to separate in opinion from those about us; but your object is so disinterested, so pure, so benevolent, so truly in the nature of a charity, that all, even though differing in details, must be glad that you have come forward.

I know well the value of water in scenery. Perhaps nothing else adds so much to the effect of a landscape, which, indeed, without water often seems lifeless, or, as was once said by a valued friend of mine, “like a face without eyes.” Boston, from its peninsular situation, cannot be entirely deprived of this picturesque feature. It seems to me, however, that, in a region like that now in question, we should hesitate long before renouncing the opportunity of adding to its attractions by a piece of water, which, from perennial supply, would always prove an ornament of unsurpassed beauty, as well as a place of recreation, and a source of health.

On this it is useless to enlarge. All who have ever stood on Boston Common will easily see how much this pleasant retreat must lose in charm, when its great western vista is closed; and all who have ever speculated on the probable growth of our metropolis, and the longing of a crowded population for fresh air, will recognize the necessity for open spaces, which will be _outdoor ventilators_.

Boston is already growing in every direction. A wise forecast, if not able at once to provide all the means needful for its salubrity and adornment, will at least avoid embarrassing the future, when half a million of souls have built their homes about the ancient Trimountain.

Our Common has been ample enough for the past; but the metropolis has already outgrown it in every respect. Besides being too narrow in proportions, it is wanting in those accessories of beauty and of knowledge especially illustrative of Natural History, which, according to the experience of other countries, are proper for public grounds. I wish much to see there, among other things, an arboretum, where every tree that can bear our climate shall find its classified place,--pleasing the eye by its beauty, protecting the body by its shade, and speaking to all by the voice of Science.

Accept the thanks of an absent citizen, who never thinks of his native Boston without a yearning to see it foremost in all that contributes to a true civilization; and believe me to be, my dear Sir,

Very faithfully yours,

CHARLES SUMNER.

To GEORGE H. SNELLING, Esq.

ATTEMPT TO KIDNAP A CITIZEN UNDER ORDER OF THE SENATE.

THE CASE OF FRANK B. SANBORN, OF CONCORD, MASSACHUSETTS, WITH SPEECHES IN THE SENATE, APRIL 10, 13, AND 16, 1860.

The case of Mr. Sanborn illustrates the reach of the Slave Power, and the extent to which the Senate did its bidding, at the instance of the author of the Fugitive Slave Bill. It is one of the skirmishes in the warfare with Slavery.

April 10, 1860, Mr. Sumner presented the memorial of Mr. Sanborn, which he explained as follows.

I have a memorial, Mr. President, from Frank B. Sanborn, of Concord, Massachusetts, setting forth a gross attempt to kidnap, by men pretending to act in the name of the Senate of the United States. The memorial is authenticated by his affidavit before a notary public. It sets forth, that, on the evening of the 3d of April, certain persons, who had been prowling about his neighborhood, under shelter of night, with fraudulent pretence drew him to his door, seized him, handcuffed him, and then by force undertook to convey him to a carriage. By the courageous interposition of a refined lady, his sister, neighbors were aroused; the village was next summoned by the ringing of bells, and at length that great friend of the oppressed in our country, the writ of _Habeas Corpus_, arrived on the ground. By intervention of that writ he was taken from the custody of the kidnappers. The next day a hearing was had before the Supreme Court of Massachusetts; and Chief Justice Shaw, for thirty years the honored Chief Justice of Massachusetts, whose opinions are respected in every part of the country, representing the full bench, without undertaking to pass upon the question of jurisdiction in the Senate, went on to declare that the power delegated to its Sergeant-at-Arms could not be delegated to another, and that therefore all these proceedings were void, and the prisoner was discharged.

Now, Mr. President, this act, it seems to me, is conspicuous, both from the person against whom it was directed and the place where it was attempted. It was directed against Mr. Sanborn, a quiet citizen engaged in the instruction of youth, a scholar of excellent attainments, of perfect purity, and much beloved by friends and neighbors. It was attempted at Concord, where another seizure was once attempted, which began that revolutionary contest that ended in Independence. I affirm, Mr. President, that a person like Mr. Sanborn, having suffered this outrage at the hands of persons claiming to act in the name of the Senate, has a right to redress in this body: and I assert, still further, that this body owes something to its own character; it ought to wash its hands of such an outrage. I offer his memorial, and ask its reference to the Committee on the Judiciary, and, that the Senate may better understand it, I think it ought to be printed. I move also its printing.

Mr. Mason, of Virginia, Chairman of the Harper’s Ferry Committee, made an explanation of the attempt to arrest Mr. Sanborn, in the course of which he said: “This man Sanborn was in correspondence either with the man who was not long since hung in Virginia for his conduct as a traitor and murderer at Harper’s Ferry, or with some of his associates, I do not recollect which.” At the call of Mr. Fessenden the memorial was read, when Mr. Sumner said, in reply to Mr. Mason:--

I merely wish to correct one error into which the Senator has fallen. He states that Mr. Sanborn was taken from the custody of those pretended officers by a mob. Now nothing is within my knowledge except what is authenticated by that memorial under oath, and there the statement is express that he was not taken from the custody of these pretended officers except by the intervention of the writ of _Habeas Corpus_, sustained by the _posse comitatus_ of the neighborhood.

Mr. Mason having stated that he expected a return of the officer, at his suggestion the memorial was laid on the table to await that return. To this Mr. Sumner consented, as he declared, with great reluctance, and with the understanding that then it should be referred.

April 13, 1860, Mr. Sumner presented additional papers in the case. After reading these, he said:--

There, Sir, is the official response to the assertion of the Senator from Virginia. The Senator says that Mr. Sanborn was rescued by a mob. It is true there was a mob in Concord. It was a mob of kidnappers, who went there in the name of the Senate of the United States to seize a citizen of Massachusetts. I have here a letter which I have received from a prominent citizen of Concord, present at the time. This is his statement:--

“No rescue by the crowd was made or attempted, till the writ of _Habeas Corpus_ was served; and this, even, Carleton and his fellows resisted, till the deputy sheriff was obliged to use force to take Mr. Sanborn from him.… The arrest was as brutal, cowardly, and outrageous a proceeding as I ever knew in seven years’ experience as sheriff of that county.”

Sir, it is not unnatural that an arrest made under such circumstances should have attracted attention in that town and throughout Massachusetts. It did so. It has excited a feeling of indignation against this attempt, increased, perhaps, when people put the question, “Why all this effort to seize Mr. Sanborn? Why this overthrow of law to accomplish such a purpose?”

It is notorious that there is a citizen of Virginia, formerly chief magistrate of that State, who has openly avowed that he knew much in regard to the very matters in inquiry before that committee, and that rubies could not bribe him to disclose it. He has thrown the challenge down to that committee and this Senate, before the whole country, refusing openly to testify; and yet that committee make no motion to bring Ex-Governor Wise before the Senate, and compel him to testify. Instead, the committee seeks a Northern man, Mr. Hyatt, now in jail, and another Northern man, Mr. Sanborn, who it is well understood know nothing of the matter; and it follows up Mr. Sanborn by an attempt which I characterize here as simply an act of kidnapping.

Mr. Mason, in reply, insisted, at some length, that Mr. Sumner could have no information on the action of the committee, which had not yet reported. To this Mr. Sumner rejoined:--

Mr. President, I profess to have no information except what is open to all the world; and there are two things open to all the world, through the public press: first, that the Ex-Governor of Virginia has more than once declared that he had important information in reference to the matter before the committee, and that rubies would not tempt him to disclose it; and, secondly, it is known that the Ex-Governor of Virginia has not been brought to Washington, as Mr. Hyatt has been, and as an attempt has been made to bring Mr. Sanborn. No kidnappers have been sent into Virginia, nor handcuffs put upon Ex-Governor Wise.

April 16, 1860, Mr. Mason presented to the Senate the warrant for the arrest of Mr. Sanborn, with the return of the Deputy Marshal of Massachusetts to whom it was addressed, and moved its reference to the Committee on the Judiciary, with instructions to inquire and report whether any, and what, further proceedings were necessary to vindicate the authority of the Senate and to effect the arrest of the witnesses. This motion was agreed to. Mr. Sumner then moved that the memorial of Mr. Sanborn, with the additional papers, be taken from the table and referred to the same committee. Here Mr. Mason promptly interposed the very unusual motion _that the memorial be rejected_. The Chair decided that the motion “to reject” could not take precedence, and therefore the motion to refer was first in order. Then it was that Mr. Sumner spoke as follows.

Mr. President, I think that I ought not to listen to such a proposition as has been made by the Senator from Virginia with reference to this memorial, without one word in reply. Here is a memorial from a gentleman of perfect respectability, charged with no crime, presumed to be innocent, complaining of gross outrage at the hands of certain persons pretending to act in the name of the Senate. The facts are duly set forth. They are authenticated also by documents now of record. The Senator moves--without any reference to a committee, without giving the petition the decency of a hearing, according to the ordinary forms of this body--that the memorial be “rejected”; and he makes this unaccustomed motion with a view to establish a precedent in such a case. I feel it my duty to establish a precedent also in this case, by entering an open, unequivocal protest against such attempt. Sir, an ancient poet said of a judge in hell, that he punished first and heard afterwards,--“_castigatque auditque_”; and, permit me to say, the Senator from Virginia, on this occasion, takes a precedent from that court.

To this protest Mr. Mason replied: “The Senator from Massachusetts, it seems to me, makes an opportunity to use language in the Senate Chamber which, so far as my intercourse with the world goes, is not usual out of the Senate Chamber. There is nothing in it that I have a right to take as personally offensive to myself. The Senate is the proper judge and arbiter of the decorum of its own proceedings.”

Then ensued a debate on the return, in which Mr. Bayard, of Delaware, and Mr. Trumbull, of Illinois, took part, when Mr. Sumner, at last obtaining the floor, remarked as follows.

Only one word. I presented a memorial to this body, setting forth an outrage. The Senator from Virginia moved its rejection, while he proposed that the case should be proceeded with. I characterized that motion as I thought I was authorized to do, referring to a precedent of antiquity, and that was all; and this is the occasion for a lecture from the Senator on the manner in which one should conduct on this floor. From the heights of his self-confidence he addresses me. Sir, I wish to say simply, in reply, that, when an outrage comes before this body, I shall denounce it in plain terms; and if a precedent from a very bad place seems to be in point, I shall not hesitate to quote it.

Mr. Mason rejoined: “I did not undertake to lecture the Senator, of all others, upon the subject of manners or propriety. I do not mean it offensively, but, for my own convenience, I should consider it time thrown away. All that I said was, that I was not accustomed, in my intercourse with the world outside of this Chamber, to hear language of that sort in the circles in which I move.”

April 17, 1860, the memorial of Mr. Sanborn was referred to the Judiciary Committee, according to the motion of Mr. Sumner.

June 7, Mr. Bayard, of Delaware, from the Committee on the Judiciary, to whom was referred the return of the Deputy-Marshal and the other papers, reported a “Bill concerning the Sergeant-at-Arms of the Senate and the Sergeant-at-Arms of the House of Representatives,” authorizing the appointment of deputies. This was intended to meet the decision of Chief Justice Shaw, of Massachusetts.[23]

June 15, Mr. Bayard moved to proceed with the consideration of his bill. The motion was not agreed to,--there being, on a division, ayes 22, noes 25. This was the end of that bill.

* * * * *

This incident was much noticed by the Northern press, especially in Massachusetts. The Boston _Atlas and Bee_ expressed itself thus:--

“In our opinion the people of the Free States are never better satisfied with their representatives than when they see them repelling indignantly and manfully the arrogant insults of the slave-driving aristocracy. It will not diminish their attachment to Mr. Sumner, when they take notice that his rebuke of Mr. Mason was not in reply to any insult upon himself, but upon one of his outraged and abused constituents.”

PETITIONS AGAINST SLAVERY.

SPEECH IN THE SENATE, APRIL 18, 1860.

The treatment of these petitions illustrates the tyranny of the Slave Power to the very eve of its fall. Such an incident is not without historic significance.