Part 16

Mr. Wilson said: “I shall vote against exempting from taxation any book whatever, even the Bible.… I am against these exemptions. What, Sir! a tax on books a tax on knowledge? Suppose it is: so is a tax on the coat the boy who goes to school wears.”

Mr. Sumner replied:--

MR. PRESIDENT,--My colleague does not see the difference between a tax on a boy’s clothes and a tax on his book. The country, in its experience, from the first settlement at Plymouth Rock, has seen it. Clearly it saw the difference, when it undertook to say that education should be at the public cost, free of charge to every one in the community. My friend [Mr. HOWE] shakes his head; he knows well that one of the proudest acts in the history of New England was when at an early day she established her system of public schools, which has continued ever since, where every child is educated free of charge. He was educated at the public cost, but not clothed at the public cost. And, Sir, if you would know what gave to New England those elements of prosperity and of influence, which are, I think, sometimes recognized, you will find them in that very education at the public cost. It was because those early settlers, founders of communities, saw that the mind should be clothed, and willingly undertook to clothe it. The family at home were left to clothe the body. Now I would have the country act according to this illustrious precedent, which has done so much for the national name, and remove every impediment in the path of knowledge. Do not tell me that by the same rule you must remove the tax from clothes. The conclusion does not follow. If our fathers were right in establishing free schools, it is right for us now to insist upon free books.

The amendment of Mr. Sumner was lost,--Yeas 5, Nays 27.

THREE CONDITIONS PRECEDENT TO THE RECEPTION OF SENATORS FROM A REBEL STATE.

RESOLUTION IN THE SENATE, MARCH 8, 1865.

March 8th, at the Extra Session, called for executive business, the Senate having under consideration the credentials of William D. Snow as Senator from Arkansas, Mr. Sumner submitted the following resolution, which was ordered to be printed.

_Resolved_, That, where a State has been declared to be in insurrection, no person can be recognized as Senator from such State, or as claimant of a seat as Senator from such State, until after the occurrence of three several conditions: first, the cessation of all armed hostility to the United States within the limits of such State; secondly, the adoption by such State of a constitution of government republican in form and not repugnant to the Constitution and laws of the United States; and, thirdly, an Act of Congress declaring that the people of such State are entitled to representation in the Congress of the United States.[182]

UNJUST ARREST AND PROSECUTION OF TWO BOSTON MERCHANTS.

PROTEST AND OPINION ON THE CASE OF THE MESSRS. SMITH BROTHERS, MARCH 17, 1865.

Benjamin G. Smith and Franklin W. Smith, merchants and co-partners in Boston, with the firm name of Smith Brothers & Co., were suddenly arrested in June, 1864, by order of the Navy Department, under the charge of fraud in the performance of contracts with the Department. They were at once consigned to Fort Warren, in the harbor of Boston, with strict injunctions to prevent any communication by them with the outer world. Bail to the amount of half a million dollars was required, which was subsequently reduced to forty thousand. Their counting-room was broken open, their safe forced, and their books seized. Their houses were searched, and private papers taken away. Their business was, for the time, destroyed. This work was crowned by ordering a court-martial for the trial of these civilians at Philadelphia.

These proceedings excited a general interest at Boston. The Massachusetts delegation in Congress united in the following appeal to the President, which was drawn by Mr. Sumner.

TO THE PRESIDENT OF THE UNITED STATES:--

The undersigned, Senators and Representatives in Congress from Massachusetts, ask leave to call your serious attention to the proceedings initiated by the Navy Department against Benjamin G. Smith and Franklin W. Smith, of Boston, of the firm of Smith Brothers & Co., a much respected firm, which has hitherto enjoyed the confidence, personal and mercantile, of the community where they reside. Among their neighbors and friends these proceedings have already attracted much attention, and awakened corresponding feeling.

The proceedings have seemed to be harsh, vindictive, and unnecessary.

1. In the character of the arrest of Messrs. Smith, which was attended by circumstances of severity utterly unjustifiable.

2. In requiring bonds to so large an amount as half a million of dollars. The fact that the parties in question easily obtained bonds for a much larger amount does not render the exaction of “excessive bail” less obnoxious to the requirements of the Constitution and of justice, or less indicative of the spirit in which these proceedings have been conducted.

3. In the seizure of their books and papers, which are still detained, although regarded by their eminent counsel as important to their defence.

4. In turning into a military offence what is more proper for a civil tribunal, and dragging these defendants before a court-martial.

5. In transferring the proceedings from Boston, where the parties reside, and the transactions in question occurred, to Philadelphia: thus increasing greatly the difficulties and the cost of defence. This will be appreciated, when it is understood that the witnesses are very numerous, and chiefly engaged in mercantile business, so that they cannot leave Boston without neglect of their private interests.

The undersigned, on reviewing these circumstances, which are so inconsistent with the administration of justice in its most ordinary forms, have been at a loss to account for the spirit manifested in the prosecution. If they look at the trivial character of many of the specifications against the defendants, they are still more at a loss. It is difficult to account for such elaborate and persistent harshness, without yielding to the prevailing belief that other motives than the vindication of justice have entered into this case.

The undersigned are not strangers to the fact, that one of these defendants, in the discharge of what he believed to be his duty as a good citizen, has, by correspondence and testimony before committees of Congress, been brought into collision with officers of the Navy Department; and there is too much reason to believe that some of these officers have allowed themselves to be governed by personal feelings throughout these strange proceedings.

Under such circumstances, the undersigned most respectfully ask your assistance in securing justice to these defendants, according to the common course of proceedings at law. They are acquainted with the statute which provides court-martial for contractors in certain cases, and they are unwilling to make any suggestion which shall interfere with its efficiency; but they have no hesitation in saying that such a statute, intended for extreme cases, should not be applied to a case like the present, where, with a single exception, the questions are simply whether the defendants complied with their _contract_, and therefore, from their nature, can be better considered by the ordinary tribunals accustomed to such questions than by a naval tribunal composed of officers who have no familiarity with them.

If the pending proceedings against the Messrs. Smith should be continued, there are two courses with regard to them which may be recommended.

_First_, That they should be transferred at once to the United States Court in Massachusetts, and be placed under the direction of the learned Attorney of the United States for that District.

_Secondly_, If the foregoing order is not deemed expedient, on the existing evidence, then a commission or commissioner might be appointed by the President to inquire into the circumstances attending the arrest of the defendants, and also into the nature of the charges against them, in order to ascertain and report if there is any sufficient reason for the singular harshness to which they have been already subjected, and also for the exceptional proceedings instituted against them.

For the sake of justice, and to relieve the Government from all suspicion of undue harshness, the undersigned protest against the spirit in which these proceedings have been conducted, and appeal to you for such remedy as shall seem best, to the end that the public interests may be adequately protected without any sacrifice of the rights of the citizen, and without needless interference with the order of business.

CHARLES SUMNER, HENRY WILSON, THOMAS D. ELIOT, HENRY L. DAWES, S. HOOPER, JOHN B. ALLEY, _by C. Sumner, as by letter_,[183] D. W. GOOCH, WILLIAM B. WASHBURN, JOHN D. BALDWIN, GEORGE S. BOUTWELL.

[BOSTON, August 15, 1864.]

The trial proceeded at Charlestown, lasting several months, with able counsel for the defendants, and it ended in judgment against the defendants, who were sentenced to imprisonment for two years and a fine of twenty thousand dollars. This judgment and sentence were approved by the Secretary of the Navy, and it only remained for the President to give them his sanction. Before this was done, Mr. Sumner saw him. The President listened to his appeal, and at once put into his hands the elaborate report from the Secretary of the Navy, setting forth the facts in the case and approving the conclusion of the court-martial,--asking him to read it carefully and give his opinion upon it, which he did without delay.

OPINION.

This case has been pending since 17th June, 1864, when the Messrs. Smith Brothers, who, as merchants, enjoyed an enviable reputation, were suddenly arrested by military authority, and, without any opportunity of conferring with counsel or friends, were hurried off to Fort Warren. During all this period, running over nine months, I have kept myself aloof from the case, so far as possible, knowing that I was not so circumstanced as to consider it on its merits, and under the conviction, that, at last, justice would be done.

On certain matters independent of the merits I have with others been called to speak. One of these was the manner of the arrest and the bail required. At the time of the arrest, all the books and papers of the parties were seized and sequestered. The hardship of the arrest was aggravated by the bail required, which was fixed at half a million of dollars. “Excessive bail” is forbidden by the Constitution; but it would be difficult to say what bail could be “excessive,” if this was not.

The other matter on which I was called to speak was the order for the trial of the Messrs. Smith Brothers by court-martial at Philadelphia, when it was notorious that the proceedings must be protracted, and that numerous witnesses must be summoned from Boston, at great expense: the whole constituting a plain oppression, not unlike the demand of “excessive bail.”

The hardship in these preliminary proceedings seemed to justify an appeal to the President, in which I joined, for his intervention at least to change the place of trial. Perhaps they illustrate also the temper which entered into this prosecution.

It is only since the President has put into my hands the report on the findings of the Court, adopted by the Secretary of the Navy, that I have looked into the case on its merits. I have read that report carefully, and also the arguments of the counsel on both sides; but I have not had any opportunity to examine the whole record. From the fulness of the report, and of the arguments, this was hardly necessary. The record is extensively cited in the report and the arguments, and also in a pamphlet by one of the respondents, which I have read.

The more I have examined the case, the more I have been surprised by the preliminary proceedings, the continued prosecution, and the findings of the Court. I can well understand how they were used in the House of Representatives as an argument for the total repeal of the Act of Congress authorizing the trial of civilians by courts-martial. Such a case must make us fear, that, under this Act, justice may be sacrificed. It might make honest merchants hesitate to enter into business relations with the Government.

On careful examination, it seems that the whole prosecution, so far as proof is seriously pretended, is reduced to one single specification,--to wit, the sale and delivery of five thousand pounds of a tin called Revely, instead of a tin called Banca, by which, at most, the Government lost one hundred dollars. There are other specifications; but the report adopted by the Secretary of the Navy forbears to dwell on them; and I do not think they can be made the foundation of any judgment against the respondents. They did not seem to have impressed the President, in the conversation which I had with him on the subject. I put them aside as unproved or irrelevant. There only remains the single specification with regard to tin.

Look at this carefully, and the wonder increases that these proceedings were ever instituted.

1. The first remark to make is, that, even according to the finding of the Court, the Government has suffered only to the amount of one hundred dollars,--being the difference in price between the two kinds of tin at the date of delivery. _The pettiness of this loss_ is still more apparent, when it is considered that the transactions of the respondents with the Government reached the sum of more than twelve hundred thousand dollars, having such infinite details that they covered twelve hundred and five pages of sales. Surely, on every principle of reason or evidence, the insignificance of this loss, in transactions on so large a scale, and extending over three years of time, constitutes an unanswerable presumption in favor of the respondents, excluding, as it does, any adequate motive for the perpetration of fraud. Even assuming that the supply of tin was questionable, it would be reasonable to call it ill-considered, hasty, or mistaken, rather than criminal, according to the finding of the Court. Certainly it could be no justification of the vindictive arrest and bail with which the proceedings began, and it is frightful that it should be made the pretence for a sentence of two year’ imprisonment and twenty thousand dollar’ fine. If a mountain in labor ever brought forth a mouse, it is this mountainous prosecution, whose only offspring yet crawling on earth is an allegation of loss to the United States of one hundred dollars! But, if we look further at this transaction, it will be seen that it is absolutely unimpeachable.

2. Much confusion has been caused by _ignorance with regard to the two tins in question_. The report adopted by the Secretary of the Navy says of them, that, “in the course of commerce, _the two are never confounded by dealers_”; then, again, that “Banca tin is _one article_, having a certain price, and that Revely tin is _another and a different article_, having a different price.” The repetition of this assumption again and again shows how important it was regarded in support of the accusation. But this assumption is founded on mistake.

I call attention to the letter of Hon. S. Hooper, addressed to myself, under date of 14th March instant, in which he testifies from his experience as an importer, for many years, of these two tins. He says: “If the only charge against Messrs. Smith Brothers & Co. is the delivery of Revely tin, on a contract to supply the Government with Banca tin, it is an absurdity, and it is evident to me that the Court did not know what Banca tin was.” He then proceeds to say, that the tin of the East passes under the _general name_ of Banca tin, which is applicable to the Revely or Straits tin as well as to the Dutch; and he adduces the authority of the Commercial Dictionaries. Thus, McCulloch, under the word “Tin,” after speaking of the tin of Great Britain, says, “Tin, Oriental, in commercial language usually called Banca tin,” produced, according to this authority, in China, the Malay countries, and the islands lying toward Java. He also cites Simmonds’s “Dictionary of Trade,” published in London as late as 1858, which, under the term “Banca-Tin,” says, “A valuable kind of tin, equal to English refined, obtained in the Eastern Archipelago, originally from the island of Banca exclusively; but much is now procured in Malacca, and sent to Singapore for shipment.” The latter, it will be borne in mind, is what has been treated in this case as Revely.

Certainly, the testimony of Mr. Hooper, in concurrence with the Commercial Dictionaries, must tend to show that the report is mistaken, when it so confidently asserts, that, “in the course of commerce, the two tins are never confounded by dealers.” On the contrary, they have been treated by “dealers,” and by authoritative writers on commerce, as substantially the same. It is almost superfluous for me to add, that, according to the ruling of our courts, such testimony would be decisive. Thus, where certain words were used in the tariff, Mr. Justice Story decided, that, “the tariff being a statute regulating commerce, the terms of it must be construed _according to commercial usage and understanding_.”[184] Common sense is in harmony with this judgment.

As if to put this _commercial usage_ beyond question, we have the testimony of Mr. Richards, a witness _for the prosecution_, as follows.

“_Cross-Question 18._ Do you ever have orders from customers for Banca tin, that you execute by the delivery of Revely or Straits?--_Ans. We have._”

“_Cross-Question 22._ Suppose you had an order from a foundry--say Hooper & Co.--for five thousand pounds of Banca tin, which you knew was to be used for castings, how would you fill such an order?--_Ans. We should not hesitate to give him Revely._”

“_Re-Cross-Question 1._ Would you not deliver to a party five thousand pounds of Revely tin, upon a contract for Banca tin, if you had never known them to buy such a quantity of any kind but Revely or Straits, if you had repeatedly sold them Revely or Straits acceptably, and you considered the tin was to be used for castings?--_Ans. I should._”

3. The _usage at the Navy Yard_ was in harmony with commercial usage, as the testimony abundantly shows. For _at least seven years_ previous to the contract of the respondents, the tin known as Revely had been received at the yard as Banca. Edward Cody, witness for the prosecution, and the master founder, on cross-examination, puts this beyond question.

“_Cross-Question 4._ During these seven years [past], has not the Revely tin been the standard article in use in your bureau or foundry?--_Ans. It has._”

“_Cross-Question 11._ If you had been inquired of by them [Smith Brothers & Co.] what kind of tin you required, what would have been your reply?--_Ans. I should have had the same as I have had._

“_Cross-Question 12._ What is that?--_Ans. Revely._”

Another witness, the Hon. Eugene L. Norton, the Navy Agent at Boston, testifies, that, having occasion to buy tin on a requisition from the Ordnance Office, he sent to inquire of Captain Green, the Ordnance Officer, what brand was required. The answer was, “that, in all cases where it was foundry work, Revely or Straits would be the kind that would be received; that, in those cases where it was wanted in small quantities, for solder, Banca would be preferred, as Revely or Straits was somewhat cheaper than Banca.” And he added, that the quantity named in the requisition, as a ton, or a pig, would indicate the kind he should buy. Add to the testimony of these two witnesses the undisputed fact, that, when, in May, 1863, C. W. Schofield, being under contract to deliver five thousand pounds of Banca, failed to perform his contract, the Government, although entitled to purchase the desired article in open market at his expense, _bought Revely_. Here was a practical interpretation of the contract, which establishes the usage of the Navy Yard.

4. The _openness of the transaction_ and of the delivery testify also to the _usage_. The tin, when delivered, was stamped upon its face “Revely & Co.” This stamp, which was open to the observation of all officers, workmen, and passers-by, is an incontrovertible witness, which no argument of counsel or ingenious commentary can neutralize. Calmly, but unanswerably, it shows two things: first, the usage at the Navy Yard; and, secondly, the good faith of the transaction. But I refer to it now simply to illustrate the usage.

5. Then comes _the acceptance of the tin_ marked as Revely, and the approval of the bills by the officers of the Government, in performance of the contract. It is not denied that the tin was accepted by Mr. Merriam, the master machinist at the Navy Yard, and that the bills were approved by Mr. Kimball, the inspecting officer of Government,--an inspector who is said to have been unfriendly to the respondents. This double fact is beyond question. An attempt is made to throw doubt on the integrity of one of these witnesses, by charging complicity; but it does not appear that there is a scrap of evidence in the record to sustain the imputation, and I need not say it is outrageous to imagine it, in order to increase the pressure upon the respondents. Mr. Merriam, in his testimony, says: “I was influenced, undoubtedly, _from my knowledge of the practice which had existed heretofore_, and also from my belief that the article answered every purpose in the department which Banca tin was required for. _The previous practice of the department_, of which I had been informed, in addition to my own judgment _as to the substantial equality of the articles_, were reasons for my approving the bill.” Nothing could be more explicit or reasonable.

The report adopted by the Secretary of the Navy seeks to parry the force of this approval by the allegation, that “there is not a particle of proof on the record that any one of the officers or other persons employed at the Navy Yard, or in the transaction of its business, had ever received from the Government any sort of authority to make such inspection, approval, and payment as appears in the case.” The report forgets _the usage of seven years_ at the Navy Yard, and _the commercial usage_ besides, which were ample to justify them.

6. As it is evident that the Government did not expect to receive other than Revely, so it is proved that _the respondents never expected to supply other than Revely_, unless in cases of small quantities, where, as we have seen, the Banca was supposed to be desired. Such is the testimony of Benjamin G. Smith, one of the respondents, and also of Mr. Dunnells, their clerk. The latter states, that his instructions from the respondents were to deliver Banca when small lots were required, but Revely when large lots of one thousand pounds and upwards were required, and that, as far as his knowledge went, this had always been done. Therefore the contract was performed according to _the mutual understanding of the two parties_.

7. _The price_, according to the contract, shows that the tin called Revely was intended. This can be demonstrated.