Part 11

If these conclusions needed the support of authority, they would find it in John Quincy Adams. His words have been often quoted, without perhaps fully considering the great weight to which they are entitled. At an early day, when Minister at London, while Slavery prevailed in the Government, in the discharge of official duties, under instructions from the President, he claimed compensation for slaves liberated by the British armies, arguing against any such liberation under the Rights of War. In conversation with the British Prime-Minister, as reported by himself, after saying that proclamations inviting slaves to desert from their masters had been issued by British officers, he added: “_We_ considered them as deviations from the usages of war.”[89] Afterwards, as Secretary of State under Mr. Monroe, of Virginia, he made a similar statement.[90] A full knowledge of his convictions on this occasion might, perhaps, disclose the repugnance, or, to borrow his own words on another occasion, “the bitterness of soul,” with which he discharged his duty. It is known, by avowals afterwards made, that on at least one occasion he acted as Secretary of State contrary to his convictions. “It was utterly against my judgment and wishes, but I was obliged to submit, and I prepared the requisite despatches.”[91] Such was his open declaration in the House of Representatives with regard to an important negotiation. So that it is easy to see how on this other occasion he may have represented the Government and not himself. But, whatever his actions at that time, it is beyond question, that afterwards, in his glorious career as Representative, when larger experience and still maturer years had added to his great authority, and he was called in Congress to express himself on his personal responsibility, we find him reconsidering his earlier diplomatic arguments, and, in the face of the world, defiantly claiming not only for Congress, but for the President, and every military commander within his department, full power to emancipate slaves under the Rights of War. If these words had been hastily uttered, or, if once uttered, had been afterwards abandoned, or if they could in any way be associated with the passions or ardors of controversy, as his earlier words were clearly associated with the duties of advocacy, they might be entitled to less consideration. But they are among the later and most memorable utterances of our great master of the Law of Nations, made under circumstances of peculiar solemnity, and repeated after intervals of time.[92]

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The representatives of Slavery broke forth in characteristic outrage upon the venerable orator, but nobody answered him. And these words have stood ever since as a landmark of public law. You cannot deny the power of Congress to liberate the slaves, without removing this landmark. Vain work! It is not less firm than the Constitution itself.

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Thus do I vindicate for Congress all the Rights of War. If, assuming the powers of Congress, any further question be raised as to the extent of these rights, I reply, briefly, that there is no right, according to received authorities, against a hostile sovereign or prince, embracing, of course, confiscation of property, real as well as personal, which may not in our discretion be exercised against a rebel enemy; and the reason is obvious. Whatever the mitigations of the Rights of War introduced by modern civilization, under which private property in certain cases is exempt from confiscation, _this rule does not apply to cases where there is a direct personal responsibility for the war_. And here is the precise difference between the responsibility of the sovereign or prince and the responsibility of the private citizen: the private citizen is excused; but the sovereign or prince is always held responsible to the full extent of his property, real as well as personal. Now every rebel who has voluntarily become a public enemy has assumed a _personal responsibility_, for which, according to acknowledged principles of public law, especially if he has taken high office in the rebel government, he is liable to the full extent of his property, real as well as personal. Every citizen who voluntarily aids in armed rebellion is a hostile sovereign or prince. A generous lenity may interfere to limit his liability, but on principles of public law he is in the very condition of Shylock, when his cruelty was arrested by the righteous judge:--

“If thou dost shed One drop of Christian blood, thy lands and goods Are by the laws of Venice _confiscate_ Unto the State of Venice.”

Such, Sir, is the extent of powers which may be exercised by Congress. Of course, it is for Congress to determine the degree of severity or lenity it will adopt. In claiming these powers to the full extent, I yield to no Senator in that spirit of clemency which, next to justice, is the grace and ornament of success.

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Mr. President, these are the principles on which we must act. Announcing them and reducing them to practice, Congress will enlarge its accumulating claims to public gratitude.

The present Congress has already done much beyond any other Congress in our history. Measures, which for long years seemed attainable only to the most sanguine hope, have triumphed. Emancipation in the National Capital; freedom in all the National Territories; the offer of ransom to help emancipation in the States; the recognition of Hayti and Liberia; the treaty with Great Britain for the suppression of the slave-trade; the prohibition of the return of fugitive slaves by military officers; homesteads for actual settlers on the public lands; a Pacific railroad; endowments of agricultural colleges out of the public lands: such are some of the achievements by which the present Congress is already historic. There have been victories of war, won on hard-fought fields, but none comparable to the victories of peace. Besides these measures of unmixed beneficence, the present Congress has created an immense army and a considerable navy, and has provided the means for all our gigantic expenditures by a tax, which in itself is an epoch.

Thus, in the prosecution of the war, Congress has exercised two great powers,--first, to raise armies, and, secondly, to tax. Both bear directly upon loyal fellow-citizens everywhere throughout the country. Sons, brothers, and husbands are taken from happy homes and from the concerns of business, leaving vacant places, never, perhaps, to be filled again, and hurried away to wage a fearful war. But beyond this unequalled draft upon the loyal men of the country, summoning them to the hazards of battle, there is another unequalled draft upon the loyal property of the country, presenting a combined draft without precedent upon men and upon property. If you would find a parallel to the armies raised, you must go back to the forces marshalled under Napoleon in the indulgence of unbridled ambition. If you would find a parallel to the tax, you must go further back, to that early day of which the Gospel, in its simple narrative, speaks: “And it came to pass in those days that there went out a decree from Cæsar Augustus, that _all the world_ should be taxed.” A similar decree is about to go out from you,--not, indeed, to tax all the world, but to tax a large and generous people: vast, it may be, even for the world. There have been taxes here before; and in other countries there have been taxes as enormous: but there has been no such tax here before; and in no other country has any such tax been levied at once, without the preparation and education of long-continued taxation.

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Confiscation and liberation are other War Powers of Congress, incident to the general grant of such powers, which it remains for us to employ. So important are they, that without them I fear all the rest will be in vain. Yes, Sir, in vain do we gather mighty armies, and in vain do we tax our people, unless we are ready to grasp these other means, through which the war can be carried to the homes of the Rebellion: I mean especially the criminal homes of the authors and leaders of all this wickedness. By the confiscation of property, the large Rebel estates, where treason laid its eggs, will be broken up, while by the liberation of slaves the Rebels will be deprived of an invaluable ally, whether in labor or in battle. But I confess frankly that I look with more hope and confidence to liberation than to confiscation. To give freedom is nobler than to take property, and on this occasion it cannot fail to be more efficacious, for in this way the rear-guard of the Rebellion will be changed into the advance-guard of the Union. There is in confiscation, unless when directed against the criminal authors of the Rebellion, a harshness inconsistent with that mercy which it is always a sacred duty to cultivate, and which should be manifest in proportion to our triumphs, “mightiest in the mightiest.” But liberation is not harsh, and it is certain, if properly conducted, to carry with it the smiles of a benignant Providence.

The war began in Slavery, and it can end only with the end of Slavery. It was set in motion and organized by the Slave Oligarchy, and it cannot die except with this accursed Oligarchy. Therefore, for the sake of peace, and to restore the Union, every power should be enlisted by which Slavery, which is the soul of the war, can be reached. Are you in earnest? Then strike at Slavery. Liberation is usually known as a charity; but while none the less a charity, comprehending all other charities, it is now, in the course of events, _a necessity of war_. Through liberation alone can we obtain that complete triumph, bringing with it assured tranquillity, without which the war will stop merely to break forth anew, and peace will be nothing but an uneasy truce. Among all the powers of Congress incident to our unparalleled condition, there is none so far-reaching, as there is none so beneficent,--there is none so potent to beat down rebellion, as there is none other by which peace can be made truly secure. Powerful and beautiful prerogative! The language of Chatham is not misapplied, when I call it the “master feather of the eagle’s wing.”

PRIZE-MONEY AND ITS POLICY.

REMARKS IN THE SENATE, JUNE 30, 1862.

The pending bill, providing that property taken by the Rebels and then retaken under national authority should be restored to the former loyal owner without salvage, was opposed by Mr. Grimes.

Mr. Sumner said:--

I take it that the policy of prize-money is always open to question. It has been handed down from other generations, but I cannot doubt, that, in proportion as nations advance in civilization and refinement, it is more and more drawn into doubt.

MR. GRIMES. I will ask the Senator, whether, under the law as it now exists, our officers and sailors have not certain vested rights? This bill is retrospective, as well as prospective.

MR. SUMNER. But these vested rights, according to existing law, are acquired in war with foreign enemies. And here is the precise point of principle. Certain property of fellow-citizens is taken, not by foreign enemies, but by rebels, and afterwards it is retaken. Several vessels are in this predicament. Even if the recapture were from a foreign enemy, English and American statutes treat it as a case of salvage, and not of prize. But the claim now made involves nothing less than the extension of the ancient rule of war to a new class. I am against such extension. I would have no amplification of such a rule.

I am disposed to go still further, and to reconsider the whole policy of prize-money in any case. Even if not ready for this larger question, the Senate will not hesitate to apply the limitation now proposed. Besides the hardship of prize-money at the expense of our own fellow-citizens, there is the uncivilized character of the whole system, which should make us pause.

The bill was passed,--Yeas 25, Nays 12.

THE RANK OF ADMIRAL.

REMARKS IN THE SENATE, ON THE BILL TO ESTABLISH THE GRADES OF NAVY OFFICERS, JULY 2, 1862.

The bill under consideration was “to establish and equalize the grades of line officers of the United States Navy.” By this bill the rank of Admiral was established in the national navy. Mr. Hale moved to reduce the pay of admirals from five thousand seven hundred and eighteen to five thousand dollars.

Mr. Sumner said:--

I hope the amendment will prevail. For years we have been asked to make admirals. Congress has refused,--partly, perhaps, from motives of economy, and partly, also, from hesitation to create officers with that rank and title.

Now, Sir, I am willing, considering the increase of our navy and the exigency of the public service at this time, to create officers with that rank and title. So doing, we confer honor and consideration,--we bestow what officers, military and naval, naturally covet. Wherever they go, they will be addressed as Admiral; and, with naval men, that is much. Sir, I believe it more than money. But, while bestowing rank, I hesitate to increase emolument largely, particularly at this moment of our history. It costs nothing to confer rank; but it will be most expensive to the Treasury, if we enter upon a new scale of pay. Therefore I follow the Senator from New Hampshire in his proposition to reduce the salary. Create the admirals,--bestow this new title, this consideration, this introduction wherever the admiral goes, this equality, if you please, with the admirals of other nations and other fleets; but do not undertake to vie with those nations in salaries. To me it seems unwise.

The amendment was agreed to.

TESTIMONY OF COLORED PERSONS IN THE COURTS OF THE UNITED STATES.

SPEECHES IN THE SENATE, ON AN AMENDMENT TO TWO DIFFERENT BILLS, ONE RELATING TO THE JUDICIARY, AND THE OTHER TO THE COMPETENCY OF WITNESSES, JULY 3 AND 15, 1862.

The Senate having under consideration a bill “relating to the Judiciary,” in which provision was made for proceedings “in the courts of the United States,” Mr. Sumner made another attempt to overthrow the rule excluding colored witnesses by the following amendment:--

“And there shall be no exclusion of any witness on account of color.”

This was rejected,--Yeas 14, Nays 21.

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At the next stage of the bill, Mr. Sumner said:--

MR. PRESIDENT,--This bill relates to the national judiciary. The Senate is making rules for the courts of the United States, and now by its vote sanctions the rule that a witness who happens to have a color different from ours is incompetent to testify, he cannot be heard in court. The practical effect of such exclusion is, that any outrage by a white man on a colored person, if no other white person is present, must go unpunished; and the Senate of the United States refuses to interfere against this cruelty. I must say, Sir, that I lose my interest in the bill, when it is associated with such wickedness,--for such I must call it. If there is any outrage at this moment in the form of law, and actually within our reach, it is what I now hold up to the indignation of the country and of mankind. It is hard to think that human beings can be placed thus defenceless by Act of Congress,--that masters or overseers, being white, may offer to colored persons any offence, any brutality, and the testimony of the witnesses, merely because they are colored, shall be excluded absolutely. And yet, Sir, that is what the Senate to-day declares.

The Senator from New Hampshire [Mr. HALE] has voted to sustain this cruelty. Other Senators have voted to sustain it. It is their privilege. Each Senator votes, I know, according to his conscience; but, Sir, I call attention to the vote, and remind you of what occurred on another occasion. Formerly, when I moved this proposition, it was opposed on the allegation that it was not pertinent to the bill under consideration. When I moved it, the other day, on what was known as the Confiscation Bill, the other Senator from New Hampshire [Mr. CLARK] mildly suggested, that, at a proper occasion, on a proper bill, he would be ready to support it. I know that the motion must have the approbation of that excellent Senator. He is too just and too humane not to be in favor of it. And now, Sir, the time has come. Here is a bill regulating evidence in courts of the United States,--not in courts of the States, but in courts of the United States. The whole subject is directly before you. It is within your province now to decide. Yours the jurisdiction and power. And yet, Sir, you choose to continue the wrong. I shall vote for the bill on its final passage, because in other respects I think it ought to be a law; but I enter my protest against the conclusion of the Senate. It is melancholy, disastrous, discreditable.

Mr. Hale vindicated the vote of the Senate, and insisted that the proper object of attack was the Supreme Court.

Mr. Sumner replied:--

The Senator from New Hampshire severely criticizes the Supreme Court, which he reminds us has decided that the rights of citizenship, being rights that white men are bound to respect, and all the rights which make human life worth anything, are dead to colored persons; and he then proceeds forthwith to sustain a principle every way as bad. He condemns Chief-Justice Taney for declaring that colored persons are not citizens, and then, with marvellous logic, proceeds to say that he will not interfere to overturn the rule by which the testimony of colored persons is excluded from the national courts. Sir, I do not know which is most open to condemnation, the Supreme Court or the Senator. I am against the decision of the Supreme Court. The Senator knows it well. I am not one whit behind him in condemnation of that judgment, which must forever stand forth among the inhumanities of this generation. But permit me to remind the Senator that the rule he sustains is not less inhuman. There is not a word he can launch against the Court that must not rebound upon himself. To me it is unintelligible as painful that the Senator should interfere to save any such inhumanity. I use strong language, but it is only in this way that I can fitly characterize the doctrines of the Supreme Court and of the Senator. The Supreme Court has erred infinitely and wretchedly, but the Senator now errs in the same way.

The Senator is entirely mistaken, when he says that the rule which I seek to overturn proceeds from the Supreme Court. It is no such thing; and if I can have his attention one moment, I can make him understand it. The rule against the testimony of colored persons stands on the local law of the States, and not on any decision of the Supreme Court of the United States. The Court cannot interfere with it one way or the other. Congress alone, when legislating for its own courts, can interfere with it; and I entreat the Senate now, as it is about to legislate for the national courts, to interfere with it. The amendment of the Senator from Connecticut, which I have in my hand, is as follows:--

“That _the laws of the several States_, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as _rules of decision in all trials at Common Law_ in the courts of the United States, in cases where they apply.”

That is, the laws of the several States shall be rules of decision in the United States courts. That is what we declare. I simply propose to add, that those laws shall not be rules of decision in the United States courts, so far as they exclude witnesses on account of color. The Senator from New Hampshire opposes this just, humane, and irresistible proposition; and his argument is, that, instead of reaching the result by legislation, we must overturn the Supreme Court. Sir, permit me to say, his argument is entirely inapplicable, his whole philippic against the Supreme Court is out of place. Whether I agree with him or not, it is plain that this is not the time for it; and I must confess that I like to see things in their proper place. The question now is much more simple, more direct. Why enter upon the ample, illimitable debate which the Senator opens? Why review the Supreme Court and its relations to the country, and whether it shall be overturned, whether it shall be reformed, whether it shall be modified? All this has nothing to do with the question, and the Senator, when he introduced it, simply diverted attention from the business before us. I do not know that he did it purposely. Indeed, I rather suspect the ardor of his nature, which has led him into this strange diversion with its irrelevant amplification.

But the Senator says that the cases in which colored persons are interested arise in the State courts, and not in the United States courts, and that therefore my amendment is entirely inapplicable. The Senator is entirely mistaken again. The United States courts have jurisdiction of crimes without reference to color. They also have civil jurisdiction in other cases which do not depend upon citizenship. The Senator, as a lawyer, knows this well; and yet, deliberately, by vote, and now by speech, he upholds the barbarous rule of exclusion on account of color. Sir, I do not know which was worse, the vote or the speech, although the latter was in harmony with the former. I was astonished at the vote. I am now astonished at the speech, which, pardon me, is as illogical in argument as bad in principle. Most kindly, but most earnestly, do I dissent from it. Sir, I do not wish to take up time, but the subject is of transcendent importance. You will bear with my frankness, if I add, that sanctioning this exclusion can do no honor to Congress. I am sure it must be recorded in judgment against us, and deservedly too. Civilization will blush at the record. God save us!

Mr. Davis, of Kentucky, followed with the remark:--

“I do not think, Mr. President, there was any need for sticking the perpetual, the all-pervading, the everywhere-to-be-found, the ever-in-the-way negro to this bill. I hope and trust that the Senate and the Congress of the United States will be allowed to mature and perfect some few bills, in which the interests and the business of the white man are involved, without having this ever-present negro stuck upon them by the Senator from Massachusetts. If he desires to bring up this matter of the negro in connection with the rules of proceeding in the Federal courts, let him introduce a distinct bill, and not make everything odoriferous of his friend.”

Mr. Sumner then renewed his motion in the form of a proviso, and afterwards the Senate adjourned. The bill was never taken up again. But the same question was soon presented on another bill.

July 15th, the Senate had under consideration a bill concerning the competency of witnesses in courts of the United States, which provided that this should be regulated by “the laws of the State in which the court shall be held.” Mr. Sumner offered his amendment again. It was opposed by Mr. Foster, of Connecticut, who had reported the pending bill. In the course of his remarks he said: “It is competent for every State to fix its own rules for itself, and the independence of each State of every other State requires that they should be protected in that right of making their own laws.”

Mr. Sumner replied:--