Part 11

The apology is too obvious. “Nothing but good of the dead.” This is a familiar saying, which, to a certain extent, is acknowledged. But it is entirely inapplicable, when statues and busts are proposed in honor of the dead. Then, at least, truth must prevail.

If a man has done evil during life, he must not be complimented in marble. And if indiscreetly it is proposed to decree this signal honor, then the evil he has done must be exposed; nor shall any false delicacy seal my lips. It is not enough that he held high place, that he enjoyed worldly honors, or was endowed with intellectual gifts.

“Who wickedly is wise, or madly brave, Is but the more a fool, the more a knave.”

What is the office of Chief Justice, if it has been used to betray Human Rights? The crime is great according to the position of the criminal.

If asked, Sir, to mention the incident of our history, previous to the Rebellion, most worthy of condemnation, most calculated to cause the blush of shame, and most deadly in its consequences, I do not doubt that you would name the Dred Scott decision, and especially the unhallowed assertion of the Chief Justice. I say this with pain. I do not seek this debate. But when a proposition is made to honor the author of this enormity with a commemorative bust, at the expense of the country, I am obliged to speak plainly.

I am not aware that the English judges who decided contrary to Liberty in the case of ship-money, sustaining the king in those pretensions which ended in Civil War, have ever been commemorated in marble. I am not aware that Jeffreys, Chief Justice and Chancellor of England, famous for talents as for crimes, has found any niche in Westminster Hall. No, Sir. They have been left to the judgment of history; and there I insist that Taney shall be left in sympathetic companionship. Each was the tool of unjust power. But the power Taney served was none other than that Slave Power which has involved the country in hideous war.

I speak what cannot be denied, when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Then and there judicial baseness reached its lowest point. You have not forgotten that terrible decision, where an unrighteous judgment was sustained by falsification of history. Of course the Constitution of the United States and every principle of Liberty were falsified; but historical truth was falsified also. I have here the authentic report of the case, where it appears that the Chief Justice, while enforcing his unjust conclusion, blasting a whole race, used the following language.

“It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world _at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken._

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations,--_and so far inferior, that they had no rights which the white man was bound to respect_, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. _This opinion was at that time fixed and universal in the civilized portion of the white race._ It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute.”[92]

In these words, solemnly and authoritatively uttered by the Chief Justice of the United States, humanity and truth were set at nought, and the whole country was humbled. “Then I and you and all of us fell down, whilst bloody _Slavery_ flourished over us.”

I quote his words fully, so that there can be no mistake. Here, then, is his expressed assertion, that at the Declaration of Independence in 1776, and the adoption of the National Constitution in 1789, in Europe as well as in our own country, colored men were regarded as having “no rights which the white man was bound to respect.” Now, Sir, this is false,--terribly false. It is notorious that there were States of the Union, where, at the adoption of the Constitution, colored persons were free, and even in the enjoyment of the electoral franchise, while in England the Somerset case had already decided that there could be no distinction of persons on account of color, and Scotland, France, and Holland had all declared the same rule. Even Spain had spoken by the voice of some of her best children. So had Portugal. So also had Italy, and the Catholic Church. On this point there is no question. And yet this Chief Justice, whom you would honor with a marble bust, had the strange effrontery to declare that at that time, as well abroad as at home, colored men were regarded as having “no rights which the white man was bound to respect”; and this he said to justify a brutal interpretation of the Constitution. Search judicial annals and you find no perversion of truth more flagrant.

Sir, it is not fit, it is not decent, that such a person should be commemorated by a vote of Congress,--especially at this time, when Liberty is at last recognized. If you have money to commemorate the dead, let it be in honor of the defenders of Liberty gathered to their fathers. There was John Quincy Adams. There, also, was Joshua R. Giddings. Let their busts be placed in the Court-Room, where with marble lips they can plead always for human rights, teaching judge and advocate the glory and the beauty of justice. Then will you do something not entirely unworthy of a regenerated land, something to be an example for future times, something to help fix the standard of history.

I know that in the Court-Room there are busts of the other Chief Justices. Very well. So in the Hall of the Doges, at Venice, there are pictures of all who filled that high office in unbroken succession, with the exception of Marino Falieri, who, although as venerable from years as Taney, was deemed unworthy of a place in the historic line. Where his picture should have been is a vacant space, testifying always to the justice of the Republic. Let such a vacant space in our Court-Room testify to the justice of our Republic, and may it speak in warning to every one who would betray Liberty!

The appropriation was vindicated by Mr. Trumbull, Mr. Reverdy Johnson, of Maryland, and Mr. Carlile, of West Virginia. It was opposed by Mr. Hale, of New Hampshire, Mr. Wilson, of Massachusetts, and Mr. Wade, of Ohio. Mr. Sumner then obtained the floor.

At last I have the floor again. I rose at once to reply to the Senator from Maryland [Mr. JOHNSON], when he made his objurgatory vindication of the proposed bust; but the floor was given to others. And now, as I look at the clock, I see that I can only begin what I have to say.

Again let me declare that I am sorry to be drawn into this debate. But they who seek to canonize one of the tools of Slavery are responsible. Taney shall not be recognized as a saint by any vote of Congress, if I can help it.

The Senator has a bad cause, and I inferred that he thought so himself,--first, because he talked so loud, and, secondly, because he became personal. A good cause would have been discussed in softer voice, and without personality. The Senator becomes personal easily. In the sweep of his movement, he brushed against my distinguished friend from New Hampshire [Mr. HALE], and also against my colleague and myself, simply because we could not join in this oblation to the author of the Dred Scott decision. The Senator from New Hampshire and my colleague have already answered him in proper terms. But I say for my colleague what he could not say for himself. He can bear gibes for not being a lawyer. He is not, like the Senator, a counsellor of the Supreme Court of the United States, but in all the duties of Senator he is in every respect the equal of the Senator from Maryland.----

Here Mr. Sumner was arrested by the Vice-President announcing that the hour fixed for a recess had arrived. The consideration of the bill was never resumed, and it expired with the session. Had opportunity occurred, Mr. Sumner would have continued:--

I have already said that Chief Justice Taney, in pronouncing that fatal judgment, falsified history. Judicial error is aggravated by such a falsification; and here the evidence is complete. His statement is precise, that for more than a century before the Declaration of Independence and the adoption of our Constitution people of the African race had “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations”; and this unhappy asseveration culminates in the words, “and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.” And he adds: “_This opinion was at that time fixed and universal_ in the civilized portion of the white race. It was regarded as an axiom in morals, as well as in politics, which no one thought of disputing or _supposed to be open to dispute_.” This is plain, though failing in the precision which belongs to the bench. But how untrue! All this naturally ends in shutting out the unhappy African from citizenship, involving the right to sue in the courts of the United States.

Unhappily, at that time Slavery prevailed extensively; but it had already received many blows, while the rights of the African were asserted not only by individuals, but by communities. Nay, more, from the beginning, the axiom of the Chief Justice, which, according to him, no one supposed open to dispute, had been assailed. Great authorities, great names, together with legislative and judicial bodies, stood forth against it.

* * * * *

There is Massachusetts, my own honored Commonwealth. From the earliest days of her history Slavery found little favor with her Legislature or her people. As early as 1645 the Legislature sent back two negroes brought from Guinea in a Boston ship, and the next year repeated its testimony against “the heinous and crying sin of man-stealing.”[93] In the same spirit, John Eliot, the apostle to the Indians, presented a memorial to the Governor and Council against selling captured Indians into slavery, saying, “To sell souls for money seemeth to me a dangerous merchandise.”[94] In 1701, Boston desired her Representatives in the General Court “to promote the encouraging the bringing of white servants, and to put a period to negroes being slaves.”[95] At the same time Chief Justice Sewall, of a family constant in warfare with Slavery, published a tract entitled “The Selling of Joseph a Memorial,” where he maintained that “originally and naturally there is no such thing as Slavery,” and that “these Ethiopians, as black as they are, seeing they are the sons and daughters of the first Adam, the brethren and sisters of the last Adam, and the offspring of God, they ought to be treated with a respect agreeable.”[96] In this spirit, the judicature of Massachusetts, in 1770, made haste against Slavery, by declaring the principle of Emancipation,--according to one authority, two years before the famous Somerset case in England.[97] This was followed, in 1780, by the Declaration of Rights, announcing that “all men are born free and equal,” which the same judicature interpreted as abolishing Slavery; so that at the adoption of the National Constitution Slavery did not exist in Massachusetts. That this undoubted history should have been disregarded by the Chief Justice is more astonishing, when it is considered that the conclusion belonged to the jurisprudence of our country. In a case well known to all interested in the history of Slavery, and especially to lawyers, decided in 1836, Chief Justice Shaw said: “How, or by what act particularly, Slavery was abolished in Massachusetts, whether by the adoption of the opinion in Somerset’s case, as a declaration and modification of the Common Law, or by the Declaration of Independence, or by the [State] Constitution of 1780, it is not now very easy to determine; and it is rather a matter of curiosity than of utility, _it being agreed on all hands_, that, if not abolished before, it was so by the Declaration of Rights.”[98] And yet even these words are forgotten in this fatal decision.

Here we must mention Rhode Island with honor. This State, planted by Roger Williams, may point with pride to her early record on Slavery. At a General Court held May 19, 1652, after setting forth, that “there is a common course practised amongst Englishmen to buy negroes, to that end they may have them for service or slaves forever,” it was ordered, “that no black mankind, or white, being forced by covenant bond, or otherwise, to serve any man or his assigns longer than ten years, or until they come to be twenty-four years of age, if they be taken in under fourteen, from the time of their coming within the liberties of this colony.”[99] If Rhode Island afterwards departed from this law, it existed, nevertheless, as an example not to be forgotten by the Chief Justice. Nor should he have forgotten that Pennsylvania, as early as 1712, passed an act to prevent the increase of slaves, although it was annulled by the Crown,[100] and that this same State enacted, March 1, 1780, that all persons born in that State after that day were free at the age of twenty-eight years.[101] But all this is inconsistent with the famous “axiom” on which the Chief Justice founded his fearful superstructure.

I need go no further than the dissenting opinion of Mr. Justice Curtis, on this very occasion, to find, that, “at the time of the ratification of the Articles of Confederation, all free native-born inhabitants of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors on equal terms with other citizens.”[102] Was all this forgotten by the Chief Justice? But how could he forget the decision of the admirable Judge Gaston, of North Carolina, who, describing the State Constitution of 1776, says, that it “extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution”?[103]

Strangely, he forgets also an important passage of history, being nothing less than the point-blank refusal of the Continental Congress to insert the word “white” in the Articles of Confederation. The question came up June 25, 1778, on these words: “The _Free Inhabitants_ of each of these States (paupers, vagabonds, and fugitives from justice excepted) shall be entitled to all privileges and immunities of _free citizens_ in the several States.” The delegates from South Carolina, acting in the spirit of the Dred Scott decision, moved, in behalf of their State, to limit this guaranty to “free _white_ inhabitants.” On the question of inserting the word “white,” eleven States voted, two in favor of the insertion, one was divided, and eight were against it. South Carolina, not disheartened, made another attempt, by moving to add, after the words “the several States,” the further clause, “according to the law of such States respectively for the government of their own _free white_ inhabitants,” thus seeking again to limit the operation of this guaranty. This proposition was also voted down by the same decisive majority of eight to three.[104] Such was the authoritative testimony of our fathers. And in harmony with this action was the Resolution for the Temporary Government of the Western Territory “ceded or to be ceded by individual States to the United States,” dated April 23, 1784, and drawn by Jefferson, and also the famous Ordinance for the Government of the Northwestern Territory, drawn by Nathan Dane, of Massachusetts, adopted by the Confederation July 13, 1787, in both of which the voters were without distinction of color.

Still more incomprehensible is the assertion of the Chief Justice, when we glance at the political literature of our country. Not only in Massachusetts, but elsewhere, the “axiom” of the Chief Justice, “which no one thought of disputing, or supposed to be open to dispute,” was denied. Nobody did this in more energetic terms than General Oglethorpe, the founder of Georgia, who, in a letter to Granville Sharp, wrote, under date of October 13, 1776: “My friends and I settled the colony of Georgia, and by charter were established trustees, to make laws, &c. We determined not to suffer Slavery there.… We would not suffer Slavery (which is against the Gospel, as well as the fundamental law of England) to be authorized under our authority; we refused, as trustees, to make a law permitting such a horrid crime.”[105] In the same spirit, John Wesley, the founder of Methodism, who had witnessed the workings of Slavery on our continent and in the West Indies, declared “American Slavery the vilest that ever saw the sun,” and the “execrable sum of all villanies.” “Men-buyers” he stigmatizes as “exactly on a level with men-stealers,” the slaveholder as “partaker with a thief, and not a jot honester,” and the means whereby slaves are procured as “nothing near so innocent as picking of pockets, housebreaking, or robbery upon the highway.”[106] So also spoke James Otis, in his famous pamphlet entitled “The Rights of the British Colonists Asserted and Proved,” first published in 1764, and reprinted in London, when he said: “The Colonists are, by the Law of Nature, free-born, as, indeed, all men are, white or black.… Does it follow that it is right to enslave a man because he is black? Will short curled hair, like wool, instead of Christian hair, as it is called by those whose hearts are as hard as the nether millstone, help the argument? Can any logical inference in favor of Slavery be drawn from a flat nose, a long or a short face?”[107] And so spoke Benjamin Rush, the patriot physician of Philadelphia, in “An Address to the Inhabitants of the British Settlements on the Slavery of the Negroes in America,” where Slavery is exhibited as “repugnant to the genius of Christianity” and inconsistent with “the justice and goodness of the Supreme Being,” and “a Christian slave” is called “a contradiction in terms.”[108] To these testimonies add the familiar words of statesmen, especially of Patrick Henry, “It is a debt that we owe to the purity of our religion, to show that it is at variance with that law that warrants Slavery,”[109]--and of Jefferson, in that memorable utterance, prompted by Slavery, “I tremble for my country, when I reflect that God is just, that His justice cannot sleep forever.”[110] All these sayings, directly repellent to the allegation of the Chief Justice, have often been cited in public speech, and most of them appear in a work entitled “Slavery and Antislavery,” by that devoted Abolitionist, William Goodell, published several years before the opinion of the Chief Justice.

Forgetting laws, judicial decisions, history, and political literature, it was easy for the Chief Justice to forget how the religious sects of the country testified for the rights of the African, sometimes by individuals, and sometimes by corporate acts. Here the Quakers took the lead. As far back as 1688, a small body of German Quakers at Germantown, Pennsylvania, presented a protest to the Yearly Meeting against “buying, selling, and holding men in slavery,”[111] which was followed in 1696 by formal advice from this body that the members should “be careful not to encourage the bringing in of any more negroes, and that such that have negroes be careful of them.”[112] One of their number, George Keith, denounced Slavery with especial vigor, as “contrary to the religion of Christ, the rights of man, and sound reason and policy.”[113] At the beginning of the last century the Quakers of New England were agitated. In 1716, they sent forth a declaration from Nantucket, that “it is not agreeable to truth for Friends to purchase slaves and keep them term of life;”[114] and in 1730, Elihu Coleman, of Nantucket, wrote a tract in reprobation of Slavery as “anti-Christian,” and “very opposite both to Grace and Nature.”[115] In 1729, at Philadelphia, Ralph Sandiford exposed it in a pamphlet entitled “The Mystery of Iniquity”; and in 1737, Benjamin Lay gave to the world his work with the expressive title, “All Slave-Keepers, that keep the Innocent in Bondage, Apostates,”--and this was printed by Benjamin Franklin.[116] Then came the extraordinary labors of John Woolman, who, from 1746 to 1768, travelled through the Middle and Southern Colonies, an avowed Abolitionist, testifying against Slavery,--and of Anthony Benezet, who, by various writings, and by gratuitous instruction of negroes at an evening school, showed his sense of their common humanity. Meanwhile at their Yearly Meetings Slavery was condemned. In 1754, there was a recommendation “to advise and deal with such as engage” in the traffic, with the declared desire to guard against “promoting the bondage of such unhappy people.”[117] In 1776, it was declared “that the owners of slaves who refused to execute proper instruments for giving them their freedom were to be disowned.”[118] There are also reports of meetings,--in Rhode Island, in 1717, 1727, 1760, 1769, and thence, nearly every year, to 1787,--in New York, previous to 1759, and in 1767, 1771, 1772, 1774, 1775, 1776, 1777, 1781, 1782, 1784, 1785, 1787,--and in Virginia, in 1757, 1764, 1766, 1767, 1768, 1773, 1780, and thence annually, with but one intermission, to 1787,--where the rights of the African were recognized, and in most of them Slavery was condemned.[119] The meeting of 1782, in Rhode Island, spoke of “that iniquitous practice of holding or dealing with mankind as slaves.”[120] The meeting of 1776, in New York, refused “to employ or accept the services in the church, or receive the collections,” of those “who continue these poor people in bondage.”[121] The meeting of 1773, in Virginia, earnestly recommended manumissions, and quoted the words of the Prophet, “The people of the land have used oppression and exercised robbery.”[122] These are only illustrations of the extent to which the pretension of the Chief Justice was disowned.