Part 28

Another possible objection to the treaty is more technical. This also was presented by John Quincy Adams, when he spoke of mixed courts “as inconsistent with our Constitution,”[303] because the judges are not appointed, nor do they hold office, according to its well-known requirements. But this objection, if entitled to any consideration, is mitigated in the present treaty, which hands over the slave-trader for trial in the home courts of the captor, leaving to the mixed courts only the condemnation and destruction of the slave-ship. But whatever doubts might have prevailed at an earlier period, when the question was less understood, it is plain now that this objection is wholly superficial and untenable. Besides courts known to the Constitution and subject to its requirements, there are others extra-constitutional, like courts in the Territories, where the judges hold for four years instead of during good behavior, and yet are recognized by the Supreme Court of the United States.[304] Like Territorial courts, mixed courts are plainly extra-constitutional, standing on the treaty power and the practice of nations,--as courts martial are also extra-constitutional, standing on the war power and the practice of nations.

Among frequent means for the determination of international questions are mixed courts or mixed commissions in various forms, where different nations are represented. Such tribunals are the natural incident of treaties, and were recognized as such at the beginning of our history. Nor is it easy to see how treaties can be consummated without their ancillary help. A mixed commission, where our country was represented, sat at London under Jay’s Treaty, deciding numerous cases; and similar commissions have been sitting ever since. The Jay Commission was originally criticized on the ground that judicial power cannot be vested except according to the Constitution,[305]--being the very objection to mixed courts in anti-slave-trade treaties, that occupied so much attention at a later day, and to which I am now replying. But nobody now doubts that this commission was proper. The proposed tribunal, though differing in purpose, proceeds from the same fountain of power. It is kindred in character and origin. Now, without considering if the objection to mixed courts is not equally strong against a crowned head as arbitrator, as when the French Emperor sat in judgment on the long-pending litigation between the United States and Portugal in the _General Armstrong_ case, it is obvious that all the international tribunals constituted by treaty, whether an emperor or a commissioner, are sustained by unbroken usage as well as by reason. To insist that the restrictions of the Constitution, evidently intended for the national judicature, are applicable to these outlying tribunals, is to limit the treaty power and to curtail the means of justice beyond the national jurisdiction. Mixed courts are familiar to International Law, and our country cannot afford to reject them, least of all on a discarded technicality which would leave us isolated among nations.

* * * * *

It remains only that we make haste to ratify the treaty, nor miss the great opportunity. A moment lost is a concession to crime. Therefore must we be prompt.

Foreign nations will not fail to recognize this open pledge to Human Rights, and the Rebels will discern a new sign of the national purpose. Abroad and at home we shall be strengthened. The Rebellion itself will feel the blow, and ambitious Slavery foresee its doom.

As soon as the vote was announced in the Senate, Mr. Sumner hastened to Mr. Seward at the State Department. It was five o’clock in the afternoon, and the Secretary was reposing on a sofa. On hearing the words, “The treaty is ratified unanimously,” he exclaimed, “Where ---- were the Democrats?” His joy was great, and Lord Lyons, on learning the result, was not less happy. It is much in a diplomatic career to sign any treaty, but it was an event to have signed a treaty promising the final extinction of an infinite scandal and curse to humanity.

Subsequent action was prompt. The treaty was ratified by the Senate April 24th; ratifications were exchanged in London May 25th; the treaty was proclaimed by the President June 7th, 1862.

June 10th, a message of the President, transmitting a copy of the treaty, with correspondence between Mr. Seward and Lord Lyons in relation to it, was laid before the Senate, and on motion of Mr. Sumner referred to the Committee on Foreign Relations, and ordered to be printed.

June 13th, Mr. Sumner reported from the Committee a bill to carry the treaty into effect, providing for the appointment, with the advice and consent of the Senate, of a judge and also an arbitrator on the part of the United States to reside at New York, a judge and also an arbitrator to reside at Sierra Leone, and a judge and also an arbitrator to reside at the Cape of Good Hope,--all the judges to be paid $2,500 annually, the arbitrator at New York $1,000, and the arbitrators at Sierra Leone and the Cape of Good Hope $2,000 respectively.

Owing to the pressure of business incident to the latter days of a very crowded session, Mr. Sumner was not able to call it up immediately. June 26th, on his motion, it was considered and passed: Yeas, 34; Nays, only 4.

Among the nays was Mr. Saulsbury, of Delaware, who remarked:--

“I do not object to the suppression of the African slave-trade, but I do not believe that this Government has the constitutional right to establish any such court. I think the treaty ought not to have been adopted.”

July 7th the bill passed the House, and July 11th was approved by the President.

* * * * *

The importance of this treaty had not been exaggerated. The _Journal des Débats_, organ of French intelligence at Paris, in its enunciation, June 15, 1862, of the objects accomplished by the National Government, says: “There is a treaty with England, which, loyally executed, must soon render the slave-trade almost impossible.”

The slave-trade became almost impossible, so that practically it ceased to exist. The terror of the law, with these provisions for its enforcement, sufficed at last to deter the perpetrators of this inhuman crime, and the ocean, so often traversed by slave-ships, became like a peaceful metropolis with a well-ordered police.

This great result was without the capture of a single vessel. It was enough that at last we were in earnest. Judges and arbitrators found themselves without employment, when, in an appropriation bill, of March 3, 1869, Congress called on the President, with the consent of Great Britain, to terminate that part of the treaty requiring mixed courts and their annual outlay.[306] This was done by treaty between the two powers, signed at Washington, June 3, 1870; so that the mutual right of search for the suppression of the slave-trade alone remained.

ENFORCEMENT OF EMANCIPATION IN THE DISTRICT.

RESOLUTION AND REMARKS IN THE SENATE, APRIL 28, 1862.

April 18th, Mr. Sumner offered the following resolution, which was considered by unanimous consent, and adopted.

“_Resolved_, That the Secretary of the Interior be requested to furnish, for the use of the Senate, a list of all persons residing in the District of Columbia who appear in the returns of the last census as owners of slaves, indicating the number claimed to be owned by each person, with the classification of their ages according to the returns.”

April 28th, the Secretary of the Interior accompanied the return with the suggestion, that, as it exposed the private affairs of individuals, it was questionable “whether it would be proper to print it for circulation.” On hearing this communication read at the desk, Mr. Sumner moved its reference to the Committee on the District of Columbia, and remarked:--

MR. PRESIDENT,--In offering the resolution, I felt that I was doing good service to the Commissioners appointed to carry out our recent measure of Emancipation, and I felt also that I was helping to correct possible abuses in anticipation of its operation.

I have been sorry to hear of efforts during the last few weeks to run able-bodied slaves out of the District. Slavery is often called a patriarchal institution, and I am anxious to see how many of the patriarchs, in avoidance of the action of Congress, have transported slaves beyond the reach of its beneficent power. Such an outrage ought to be exposed. I confess that I find no good reason for delicacy towards persons so guilty. I am sure that freedom and truth will be gainers, when such conduct is laid bare. I cannot doubt that the object proposed is important.

These statistics should be brought before the Senate, if not before the country. They will be needed by the Commissioners, and I am sure they will do something to illustrate the character of Slavery.

The motion was agreed to.

THE CONDUCT OF OUR GENERALS TOWARDS FUGITIVE SLAVES.

SPEECH IN THE SENATE, ON A RESOLUTION OF INQUIRY, MAY 1, 1862.

May 1st, on motion of Mr. Wilson, of Massachusetts, the Senate resumed the consideration of the following resolution, submitted by him on the 3d of April.

“_Resolved_, That the Committee on Military Affairs and the Militia be directed to consider and report whether any further legislation is necessary to prevent persons employed in the military service of the United States from aiding in the return of or control over persons claimed as fugitive slaves, and to punish them therefor.”

MR. PRESIDENT,--Some time has elapsed since we listened to the persuasive speech of the Senator from Iowa [Mr. GRIMES], but, unhappily, the subject is fresh still. The character, if not the efficiency, of our armies is concerned in the complete enforcement of the late legislation with regard to slaves. If this legislation be set at defiance, or evaded, I think that our military strength will be impaired, and I am sure that our good name must suffer.

I am grateful to the Senator from Iowa for the frankness with which he exposed and condemned the recent orders of several of our generals.

One of these officers, though last from California, was originally of Massachusetts. He served honorably in the Mexican War, and, I believe, is an excellent soldier. His present position as a general is due partly to my exertions. I pressed his appointment. But, had I for a moment imagined he could do what he has just perpetrated, he would never have had my support. When an officer falls bravely in defence of his country, honest pride mingles with the regret that we feel. But when an officer falls as General Hooker has now fallen, there is nothing but regret. He has fallen, although not dead. I say this with pain; but I cannot say less.

The order of General Hooker has been quoted by the Senator from Iowa [Mr. GRIMES]. I ask leave to read part of a letter which I have received from his camp.

“I take the liberty of forwarding to you the enclosed order of General Hooker, with a report of its results, thinking that you will be interested to know how the late Act of Congress forbidding the rendition of slaves by army officers is violated, and hoping that some effort may be made to prevent such unjust and outrageous measures on the part of superior officers.

“Our moral and humane feelings have been violated by having been compelled to witness the attempts of slave-holders, known to be of Secession proclivities, coming into our camps and searching our private quarters for their slaves, under the cover of a protecting order from a general who exceeds his authority.”

This letter expresses feelings natural to a humane bosom. In contrast with General Hooker, I call attention to the course of General Doubleday, whose head-quarters are here in Washington. I read his order.

“HEADQUARTERS, MILITARY DEFENCES NORTH OF THE POTOMAC, WASHINGTON, April 6, 1862.

“SIR,--I am directed by General Doubleday to say, in answer to your letter of the 2d instant, that all negroes coming into the lines of any of the camps or forts under his command are to be treated as persons, and not as chattels.

“Under no circumstances has the commander of a fort or camp the power of surrendering persons claimed as fugitive slaves, as it cannot be done without determining their character.

“The additional article of war recently passed by Congress positively prohibits this.

“The question has been asked, whether it would not be better to exclude negroes altogether from the lines. The General is of the opinion that they bring much valuable information which cannot be obtained from any other source. They are acquainted with all the roads, paths, fords, and other natural features of the country, and they make excellent guides. They also know, and frequently have exposed, the haunts of Secession spies and traitors and the existence of Rebel organizations. They will not, therefore, be excluded.

“The General also directs me to say that civil process cannot be served directly in the camps or forts of his command, without full authority be obtained from the commanding officer for that purpose.

“I am, very respectfully, your obedient servant,

“E. P. HALSTED, _Assistant Adjutant-General_.

“LIEUTENANT-COLONEL JOHN D. SHAUL, _Commanding Seventy-Sixth Regiment New York Volunteers_.”

General Doubleday acted bravely at Fort Sumter; but he did not render a truer service to his country on that occasion than he has now done in this order. If this example were followed everywhere in our camps, we should at least save ourselves from shame, if we did not secure victory.

Other generals at the West think they do their duty best, when they serve Slavery. There is General McCook, of whom we have the following sad report, on the authority of a paper at Nashville, recounting the visit of a slave-hunter to his camp.

“He visited the camp of General McCook, in Maury County, in quest of a fugitive, and that officer, instead of throwing obstacles in the way, afforded him every facility for the successful prosecution of his search. That General treated him in the most courteous and gentlemanly manner, as also did General Johnson, and Captain Blake, the brigade provost-marshal. Their conduct toward him was in all respects that of high-toned gentlemen desirous of discharging their duties promptly and honorably. It is impossible for the army to prevent slaves from following them; but whenever the fugitives come into the lines of General McCook, they are secured, and a record made of their names and the names of their owners. All the owner has to do is to apply either in person or through an agent, examine the record or look at the slaves, and, if he finds any that belong to him, take them away.”

Can we listen to such a statement and not feel indignant at the levity with which human freedom is treated?

Yet similar cases multiply. There is the provost-marshal of Louisville, who seems to be a disgrace to our army, if we may believe the following report.

Here Mr. Sumner quoted at length the description of his conduct: making colored people “his subjects of oppression and inhuman treatment”; “ordering his provost guards to flog all colored persons out after dark”; “now being revenged on the colored people for their faithfulness to the Union cause.”[307]

But, Sir, an incident has occurred under General Buell’s command which cannot be read without a blush. Here it is, as described in the letter of a soldier who was more than a witness, even a party to it. I find this letter in a newspaper, but it has been furnished to me in manuscript by the person to whom it is addressed.

“CAMP ANDY JOHNSON, NEAR NASHVILLE, TENNESSEE, March 8, 1862.

“MY DEAR PARENTS,-- … A great outrage was perpetrated in our camp yesterday, as follows.

“A black boy, named Henry, has been at work for the Colonel for some days. His owner came after him while we were camped on the other side of the river, but the boys hooted him out of camp. The negro said he would sooner be killed on the spot than go back with his master, even if he knew he would not be punished. His master, he said, was a Secessionist, and had kept him (the boy) on some fortifications down the river at work for four mouths.

“Nothing more transpired concerning his return until yesterday. While the greater part of the regiment were out on picket, the boy’s owner came with two sentinels of the provost guard from the city, and, after chasing the poor frightened boy through the camp several times,--he drawing a knife once, and the sentinel knocking him down with his musket,--they captured and delivered him to his owner, who stood waiting outside the lines. The latter paid the catching sentries fifteen dollars each, and led Henry away with him unmolested, flourishing a pistol at his head as he went. They had no order--at least, showed none--for the boy from head-quarters, and the Lieutenant-Colonel of our regiment, who was in command, need not have delivered him up without such an order, yet allowed him to be caught, and the Major forbade our boys from giving him any assistance. One of the sentinels was from a Kentucky, and one from an Indiana regiment.…

“The former master of our boy will not get him without an order, and an imperative one, I believe; and if one is given for him,--his master having been a strong and active Secessionist, a quartermaster for the Southern army, in fact,--I have about concluded to follow it by immediate resignation, and this, whether the order be for him or any other negro. The order would make it an official act. What do you think my duty would be in the premises?”

Of General Buell I know nothing personally; but such an incident must fill us with distrust. He may possess military talent, he may be a thunderbolt of war; but it is clear that he wants that just comprehension of the times and that sympathy with humanity without which no officer can do his complete duty.

But General Buell may, perhaps, shelter himself behind the instructions of his superior officer; and this brings me to the famous Order No. 3 of Major-General Halleck. I have it in my hands, and quote these words:--

“We will prove to them that we come to restore, not to violate, the Constitution and the laws.… The orders heretofore issued from this department in regard to pillaging, marauding, and the destruction of private property, and stealing and the concealment of slaves, must be strictly enforced. It does not belong to the military to decide upon the relation of master and slave: such questions must be settled by the civil courts. _No fugitive slaves will, therefore, be admitted within our lines or camps, except when specially ordered by the General commanding._”[308]

In this order, so strangely inconsistent, absurd, unconstitutional, and inhuman, the General perversely perseveres. In every aspect it is bad. It wants common sense, as well as common humanity. It is unworthy a man of honor and a soldier.

It is inconsistent with itself, inasmuch as the General proclaims that he “comes to restore, not to violate, the Constitution and the laws,” and then proceeds to a direct violation of them. In the same order he says: “It does not belong to the military to decide upon the relation of master and slave: such questions must be settled by the civil courts.” And then, in the face of this declaration, he proceeds to say that “no fugitive slaves will be admitted within our lines or camps.” But pray, Sir, how can such persons be excluded from lines or camps without deciding that they are fugitive slaves? This flat and discreditable inconsistency is in harmony with the whole order.

But worse than its inconsistency is its absurdity. This watchful, prudent General proposes to exclude all fugitive slaves from his camps. In other words, he shuts out all opportunities of information with regard to the enemy naturally afforded by this class of deserters. They may come charged with knowledge of movements and plans; but the General will not receive them, because they are slaves. They may be able to disclose the secret of a campaign; but the General will not have it, because they are slaves. If we have failed thus far in knowledge of the enemy’s designs, it is because this absurd policy has prevailed.

General Halleck may be instructed by General McDowell, whose opposite conduct shines in a despatch published in the papers.

“CATLETTSVILLE STATION, VIRGINIA, FIFTEEN MILES SOUTH OF MANASSAS JUNCTION, April 13.

“HON. EDWIN M. STANTON, _Secretary of War_:--

“An intelligent negro has just come in from Stafford County, and says his master returned this morning from Fredericksburg to his home, and told his wife, in this negro’s presence, that all the enemy’s troops had left Fredericksburg for Richmond and Yorktown, the last of them leaving on Saturday morning. This last has just been confirmed by another negro.

“IRVIN MCDOWELL, _Major-General_.”

Here are two negroes coming into camp with important information, both of whom General Halleck’s order would repel and drive back to bondage. And he may be instructed by the despatch of General Wool, just received, announcing our success at New Orleans, the news of which came by a “fugitive black.” The General adds: “The negro bringing the above reports that the Rebels have two iron-clad steamers nearly completed, and that it is believed that the Merrimac will be out to-morrow.” But all this information would be shut out by General Halleck. Can absurdity be more complete?

But worse than inconsistency or absurdity is its positive unconstitutionality. What right, under the Constitution, has this General to set himself up as judge in cases of human freedom? Where does he find his power? By whom has he been invested with this attribute? It is the boast of the National Constitution that all are “persons.” The National Constitution so regards everybody, and surrounds everybody with the safeguards of “persons,” even to the extent of declaring that “no person shall be deprived of _liberty_ without due process of law.” And yet the army is gravely told to treat certain persons as slaves. Of course this cannot be without sitting in judgment most summarily on human freedom. How does the General know that they are slaves? On what evidence? Because they are black? Why may they not be free blacks? General Halleck would reverse the true presumption. He assumes Slavery, when he ought to assume Freedom. In the eye of the Constitution all are freemen until proved to be slaves, no matter of what color. The only question to be asked concerns loyalty. Are you loyal or rebel? If loyal, then welcome to the hospitality and protection of our camps. If rebel, then surrender to our arms. Be these the inquiries, with this rule, and the Union we seek to restore will not be indefinitely postponed.