In 1868 the late Anson Burlingame, an old friend of mine and a man highly esteemed in Massachusetts, who had been sent to China as the American Minister in Mr. Lincoln's time, was appointed by the Chinese Government its Ambassador, or Envoy, to negotiate treaties with the United States and several European powers. He made a journey through this country and Europe, travelling with Oriental magnificence, in a state which he was well calculated to maintain and adorn. It was just after we had put down the Rebellion, abolished slavery, and made of every slave a freeman and every freeman a citizen. The hearts of the people were full of the great doctrines of liberty which Jefferson and the Fathers of our country had learned from Milton and the statesmen of the English Commonwealth.
The Chinese Treaty was concluded on the 28th of July, 1868, between Mr. Seward and Mr. Burlingame and his associate Plenipotentiaries Chih-Kang and Sun Chia-Ku. It contained the following clause:
"The United States of American and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of free migration and emigration of their citizens and subjects respectively from one country to the other for purposes of curiosity, of trade, or as permanent residents."
Article VII. of the same Treaty stipulated that citizens of each power should enjoy all the privileges of the public educational institutions under the control of the government of the other, enjoyed by the citizens or the subjects of the most favored nation, and that the citizens of each might, themselves, establish schools in the others' country. Congress passed an Act, July 27, 1868, to a like effect, to which the following is the preamble to the first section:
"Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore," etc.
Thereafter, in the first term of the Administration of President Hayes, in the December Session of 1878, a bill was introduced which, almost defiantly, as it seemed to me, violated the faith of the country pledged by the Burlingame Treaty. There had been no attempt to induce China to modify that Treaty. I resisted its passage as well as I could. But my objection had little effect in the excited condition of public sentiment. The people of the Pacific coast were, not unnaturally, excited and alarmed by the importation into their principal cities of Chinese laborers, fearing, I think without much reason, that American laboring men could not maintain themselves in the competition with this thrifty and industrious race who lived on food that no American could tolerate, and who had no families to support, and who crowded together, like sardines in a box, in close and unhealthy sleeping apartments.
I supposed that the labor of this inferior class would raise the condition of better and more intelligent laborers. That, however, was a fairly disputable question. But I could not consent to striking at men, as I have just said, because of their occupation. This bill was vetoed by President Hayes, who put his objections solely upon the ground that the bill was in violation of the terms of the existing Treaty. The House, by a vote of 138 yeas to 116 nays, refused to pass the bill over the veto.
But in 1880 a Treaty was negotiated, and approved by the Senate and ratified July 19, 1881, which relieved the United States from the provisions of the Burlingame Treaty, and permitted the exclusion of Chinese laborers. I made a very earnest speech, during a debate on this Treaty in Executive Session of the Senate, in opposition to it. The Senate did me the honor, on the motion of Mr. Dawes, of a vote authorizing my speech to be published, notwithstanding the rule of secrecy. But one Senator from the Pacific coast complained, I think with some reason, that I was permitted to publish my argument on one side when he not only was not permitted to publish his on the other, but his constituents had no means of knowing that he had defended his views or made proper answer to mine. So I thought it hardly fair to make by speech public, and it was not done.
Later, in the spring of 1882, a bill was passed to carry into effect the Treaty of 1880. That I resisted as best I could. In opposition to this bill I made an earnest speech showing it to be in conflict with the doctrines on which our fathers founded the Republic; with the principles of the Constitutions of nearly all the States, including that of California, and with the declarations of leading statesmen down to the year 1868. I showed also that the Chinese race had shown examples of the highest qualities of manhood, of intelligence, probity and industry. I protested against a compact between the two greatest nations of the Pacific, just as we were about to assert our great influence there, which should place in the public law of the world, and in the jurisprudence of America, the principle that it is fitting that there should be hereafter a distinction in the treatment of men by governments and in the recognition of their right to the pursuit of happiness by a peaceful change of their homes, based, not on conduct, not on character, but upon race and occupation; by asserting that you might justly deny to the Chinese what you might not justly deny to the Irish, that you might justly deny to the laborer what you might not deny to the idler. I pointed out that this declaration was extorted from unwilling China by the demand of America; and that laborers were henceforth to be classed, in the enumeration of American public law, with paupers, lazzaroni, harlots, and persons afflicted with pestilential diseases. I ended what I had to say as follows:
"Humanity, capable of infinite depths of degradation, is also capable of infinite heights of excellence. The Chinese, like all other races, has given us its examples of both. To rescue humanity from this degradation is, we are taught to believe, the great object of God's moral government on earth. It is not by injustice, exclusion, caste, but by reverence for the individual soul that we can aid in this consummation. It is not by Chinese policies that China is to be civilized. I believe that the immortal truths of the Declaration of Independence came from the same source with the Golden Rule and the Sermon on the Mount. We can trust Him who promulgated these laws to keep the country safe that obeys them. The laws of the universe have their own sanction. They will not fail. The power that causes the compass to point to the north, that dismisses the star on its pathway through the skies, promising that in a thousand years it shall return again true to its hour and keeps His word, will vindicate His own moral law. As surely as the path on which our fathers entered a hundred years ago led to safety, to strength, to glory, so surely will the path on which we now propose to enter bring us to shame, to weakness, and to peril."
The Statute then enacted, expired by its own limitations twenty years afterward. Meantime the prejudice against Chinese labor had modified somewhat. The public had become somewhat more considerate of their rights and, at any rate, there was a desire to maintain some show of decency in legislating the matter. So a more moderate Statute was enacted in 1902. I was the only person who voted against it in either House. It was, of course, clear that resistance was useless. It was not worth while, it seemed to me, to undertake to express my objections at length. I contented myself with the following brief remonstrance:
"Mr. President, I think this bill and this debate indicate a great progress in sentiment. The sentiment of the country has passed, certainly so far as it is represented by a majority of the Senate, the stage, if it ever was in it, of a reckless seeking to accomplish the result of Chinese exclusion without regard to constitutional restraints, treaty obligations, or moral duties. There was in some quarters, as it seemed to me, in olden times, a disregard of all these restraints, certainly in the press, certainly in the harangues which were made to excited crowds in various parts of the country. Among others I can remember a visit of the apostle of Chinese exclusion to Boston Common which indicated that spirit.
"Now, that has gone largely, and the Senate has discussed this question with a temperate desire on the part of all classes and all Senators, whatever ways of thinking they have, to do what seemed to them for the benefit of labor, the quality of the citizenship of this country, in a moderate and constitutional fashion.
"But I cannot agree with the principle on which this legislation or any legislation on the subject which we have had in the country since 1870 rests. I feel bound to enter a protest. I believe that everything in the way of Chinese exclusion can be accomplished by reasonable, practical and wise measures which will not involve the principle of striking at labor, and will not involve the principle of striking at any class of human beings merely because of race, without regard to the personal and individual worth of the man struck at. I hold that every human soul has its rights, dependent upon its individual personal worth and not dependent upon color or race, and that all races, all colors, all nationalities contain persons entitled to be recognized everywhere they go on the face of the earth as the equals of every other man."
I do not think any man ever hated more than I have hated the affectation or the reality of singularity. I know very well that the American people mean to do right, and I believe with all my heart that the men and the party with whom I have acted for fifty years mean to do right. I believe the judgment of both far better than my own. But every man's conscience is given to him as the lamp for his path. He cannot walk by another light.
It is also true that the great political principles which have been in issue for the last thirty years, have been, in general, those that have been debated for centuries, and which cannot be settled by a single vote, in a legislative body, by the result of a single election, or even by the opinion of a single generation. In nearly every one of what I am sorry to say are the numerous instances where I have been compelled to act upon my judgment against that of my own party, and even against that of the majority of my own countrymen, the people have subsequently come around to my way of thinking, and in all of them, I believe, I have had on my side the opinion of the great men of the great generations of the past. Certainly the Chinese Exclusion Bill and the Chinese Treaty; the Spanish Treaty and the War against the Philippine people could not have lived an hour before the indignation of the American people at any time from the beginning down to the time when, in 1876, they celebrated the centennial of their Independence.
The Treaty of Washington, creditable to all who engaged in it, not to be judged by its details, but by its great effect in securing peace to the world, saved Great Britain from a war with us, in which it is not unlikely that the nations of Europe who hated her would have come to take part on our side. But it saved us from the greater danger of having the war spirit renewed and intensified by this gigantic struggle, from an international hatred which would not have cooled again for a century; or, if we did not declare war, from taking the ignoble attitude of a great and free people lying in wait for an opportunity to revenge itself.
It was the purpose of that Treaty to remove every cause of quarrel. One constant cause of quarrel, for many years, had been the exercise of our right to fish on the shores of Newfoundland. In the Treaty it was agreed that the United States should have, in addition to her existing rights for ten years, and for such further times as the parties should agree, the right to take fish on the sea coast of the British Provinces north of us, with permission to land for the purpose of drying nets and curing fish, and that we were to pay for the privilege a sum to be fixed by arbitrators. Two of these arbitrators were to be appointed by the United States and Great Britain; the other, who would serve as umpire, to be agreed upon by the two powers, or, if not agreed upon within a certain time, then to be appointed by the Emperor of Austria. Great Britain insisted upon having the Belgian Minister to the United States for the third arbitrator, and refused to name or suggest or agree to any other person. So the time expired. Thereupon the Belgian Minister, Mr. Delfosse, was selected by the Emperor of Austria. Mr. Delfosse's own fortune in public life depended upon his Sovereign's favor. We had already notified Great Britain that, if the Belgian Minister were selected, he would probably deem himself disqualified by reason of the peculiar connection of his Government with that of Great Britain. When the Treaty was negotiated, Earl de Grey, Chairman of the Commissioners, said, speaking of the Government to whom the matter might be referred: "I do not name Belgium, because Great Britain has treaty arrangements with that Government which might be supposed to incapacitate it." Belgium, as was notorious, was dependent upon Great Britain to maintain its political existence against the ambitions of France and Germany. Mr. Delfosse's sovereign was the son of the brother of Queen Victoria's mother and Prince Albert's father, and was, himself, brother of Carlotta, wife of Maximilian, whom we had lately compelled France to abandon to his fate.
The referee awarded that we should make a payment to Great Britain for this fishery privilege of five million five hundred thousand dollars. We never valued them at all. We abandoned them at the end of ten years. It would have been much better to leave the matter to Great Britain herself. If she had been put upon honor she would not have made such an award. No English Judge who valued his reputation would have suggested such a thing, as it seemed to us.
I would rather the United States should occupy the position of paying that award, after calling the attention of England to its injustice and wrong, than to occupy the position of England when she pocketed the money. A war with England would have been a grievous thing to her workingmen who stood by us in our hour of peril, and to all that class of Englishmen whom we loved, and who loved us. Such a war would have been a war between the only two great English-speaking nations of the world, and the two nations whose policy, under methods largely similar, though somewhat different, were determined by the public opinion of their people.
If however our closer and friendlier relations with England are to result in our adopting her social manners, her deference to rank and wealth, and of adopting her ideas of empire and the method of treating small and weak nations by great and strong ones, it would be better that we had kept aloof, and that the old jealousy and dislike engendered by two wars had continued.
A very interesting question was settled during the Administration of President Hayes as to the disposition of the $15,500,000 recovered from Great Britain by the award of the tribunal of Geneva for the violation of the obligations of neutrality during the Civil War. Great Britain, after what we had claimed what was full notice of what was going on, permitted certain war vessels to be constructed in England for the Confederate Government. She permitted those vessels to leave her ports and, by a preconcerted arrangement, to receive their armament, also procured in Great Britain. She turned a deaf, an almost contemptuous ear, to the remonstrances of Mr. Adams, our Minister. The Foreign Office, after a while, informed him that they did not wish to receive any more representations on that subject. But, as the War went on and the naval and military strength of the United States increased and became more manifest, Great Britain became more careful. At last some Rebel rams were built by the Lairds, ship-builders of Liverpool. Mr. Adams procured what he deemed sufficient evidence that they were intended for the Confederate service, and made a demand on Lord Russell, the British Foreign Minister, that they be detained. To this Lord Russell replied that he had submitted the matter to the Law officers of her Majesty's Government, and they could see no reason for interfering. To this Mr. Adams instantly replied that he received the communication with great regret, adding, "It would be superfluous in me to point out to your Lordship that this is war." Lord Russell hastily reconsidered his opinion, and ordered the rams to be stopped.
He afterward, as appears in his biography by Spencer Walpole, admitted his error in not interfering in the case of the vessels that had gone out before. But the mischief was done. The terror of these Confederate vessels had driven our commerce from the sea, or had compelled our merchant vessels to sail under foreign flags, and had enormously increased the rate of insurance to those who kept the sea under our flag.
After the War had ended a demand for compensation was earnestly pressed upon Great Britain. A demand was made to refer the claims to arbitration, and a Treaty negotiated for that purpose by Reverdy Johnson under Andrew Johnson's Administration, was rejected by the Senate, on the ground, among other reasons, that the element of chance entered into the result.
Thereafter, in General Grant's time, a Joint High Commission to deal with this controversy was agreed upon between the two countries, which sat in Washington, in 1871. The Commissioners in behalf of the United States were Hamilton Fish, Secretary of State; Robert C. Schenck, then our Minister to England; Samuel Nelson, Judge of the Supreme Court; Ebenezer Rockwood Hoar, lately Attorney-General, and George H. Williams, afterward Attorney-General. On behalf of Great Britain there were Earl de Grey and Ripon, afterward Marquis of Ripon; Sir Stafford H. Northcote, afterward Earl of Idesleigh; Edward Thornton, then the British Minister here; John A. MacDonald, Premier of Canada, and Montague Bernard, Professor of International Law at Oxford. The two countries could not, in all probability, have furnished men more competent for such a purpose. They agreed upon a treaty. The rules by which neutral governments were to be held to be bound for the purposes of the arbitration were agreed on beforehand in the Treaty itself. They agreed to observe these rules between themselves in the future, and to invite other maritime powers to accede to them. The Treaty also contained a statement that Her Britannic Majesty had "authorized her High Commissioners and Plenipotentiaries to express in a friendly spirit the regret felt by Her Majesty's Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels." I am not aware a like apology has ever been made by Great Britain during her history, to any other country. There was a provision also, for the reference of some other matters in dispute between the two countries. One of these related to the fisheries— a source of irritation between this country and the British possessions north of us ever since the Revolution.
I will not undertake to tell that part of the story here. It was agreed to submit the questions of the claims growing out of the escape of the Rebel cruisers to a tribunal which was to sit at Geneva. Of this, one member was to be appointed by each of the parties, and the others by certain designated foreign governments. Our Commissioner was Charles Francis Adams, who had borne himself so wisely and patiently during the period of the Civil War. The English Commissioner was Sir Alexander Cockburn, Lord Chief Justice of England. The United States was represented by Caleb Cushing, William M. Evarts and Morrison R. Waite, afterward Chief Justice of the United States, as counsel.
Adams rarely betrayed any deep emotion on any public occasion, however momentous. But it must have been hard for him to conceal the thrill of triumph, after the ignominy to which he had submitted during that long and anxious time, when he heard the tribunal pronounce its judgment, condemning Great Britain to pay $15,500,000 damages for the wrong-doing against which he had so earnestly and vainly protested. Perhaps the feeling of his grandfather when he signed the Treaty of Independence in 1783 might alone be compared to it. Yet his father, John Quincy Adams, had something of the same feeling when, at the close of a war which put an end forever to the impressment of American seamen, and made the sailor in his ship as safe as the farmer in his dwelling, he signed the Treaty which secured our boundary and our fisheries as they had been secured by his father.* John Quincy Adams had struck, by the direction of his father, in 1815, a seal which he gave to his son, with the injunction to give it to his, bearing the motto, "Piscemur, venemur, ut olim,"—We keep our hunting grounds and our fishing grounds as of old. I doubt if three such achievements, by three successive generations, can be found in the annals of any other family however illustrious.
[Footnote]* This story is told more fully at page 147. It seems appropriatein both places.[End of Footnote]
The $15,500,000 was promptly paid. Then came the question what to do with it. There was no doubt anywhere, that the owners of vessels or cargoes that had been captured or destroyed by the cruisers for whose departure from British ports Great Britain was in fault, were entitled to be paid. That, however, would not consume the fund. The fund had been paid in gold coin by Great Britain, September 9, 1873, and had been covered into the Treasury the same day. This sum was invested in a registered bond for the amount, of the five per cent. loan of 1881, dated September 10, 1873, inscribed, "Hamilton Fish, Secretary of State, in trust. To be held subject to the future disposition of Congress, etc." This sum largely exceeded what was necessary to make good the principal of all losses directly resulting from the damages caused by the insurgent cruisers, above what had already been reimbursed from insurance. These claims were popularly termed the "claims for direct damages."
The question what to do with the balance was the subject of great dispute throughout the country, and of much debate in both Houses of Congress. Some persons claimed that the owners directly damaged should receive interest. That would still leave a large part of the fund undisposed of. It was insisted that the remainder belonged to the Government for the benefit of the whole people who had borne the burden and cost of the war. Others claimed that, as nothing but direct damages were lawfully assessable, the balance should be paid back to Great Britain. Still others claimed that the persons who had suffered indirectly by the loss of voyages, the increased rates of insurance, and the breaking up of business, were justly entitled to the money. Still others, perhaps the most formidable and persistent of all, claimed that the underwriters who had paid insurance on vessels or cargoes destroyed, were entitled to the money on the familiar principle that an insurer who pays a loss is subrogated to all the legal and equitable claims of the party insured.
These disputes prevented any disposition of the fund by Congress until the summer of 1874.
Judge Hoar, who was then a Member of the House of Representatives, suggested that as everybody agreed that the claims for direct damage ought to be paid, that it was not fair that they should be kept waiting longer in order to settle the dispute about the rest of the fund. In accordance with his suggestion a Court was provided for by Act of Congress, whose duty it was to receive and examine all claims directly resulting from damages caused by the insurgent cruisers. They were directed, however, not to allow any claim where the party injured had received indemnity from any insurance company, except to the excess of such claim above the indemnity. They were further authorized to allow interest at the rate of four per cent. The Court performed its duty. When its judgments had been paid there still remained a large balance. The ablest lawyers in the Senate, in general, pressed the claim of the insurance companies to the balance of the fund, including Mr. Edmunds, Judge Davis, Judge Thurman and Mr. Bayard. I took up the question with a strong leaning for the insurance companies. I was, of course, impressed by the well-known principle of law that the underwriter who had paid for property destroyed by the cause against which he had insured, was entitled to be substituted to all other rights or remedies which the owner may have for reimbursement of his loss. I was very much impressed also in favor of the insurance companies, who were making what they doubtless believed an honest and just claim, fortified by many of the best legal opinions in Congress and out of it, by the character of the attacks made on them, especially by General Butler. These attacks appealed to the lowest passions and prejudices. It was said that the companies were rich; that they made their money out of the misfortunes of their countrymen; that they were trying to get up to their arm-pits in the National Treasury, and that they employed famous counsel. If there be anything likely to induce a man with legal or judicial instincts to set his teeth against a proposition, it is that style of argument.
But I came to the conclusion, both from the history of the proceedings at Geneva, and from the nature of the submission, that the claim that had been established against Great Britain was a National claim, made by National authority for a National injury. That this was the character of the claim our counsel gave express notice to Great Britain and to the tribunal. This opinion was asserted by Mr. Fish in his instructions to the counsel. When the Government of the United States received it, it seemed to me that it was entitled to apply it in its high discretion; and to give it to such persons entitled to its protection or consideration as it should see fit. I made a careful argument in support of this view. I thought, accordingly, that the balance of the fund, after compensating all persons, not yet paid, for claims directly resulting from damage done on the high seas by Confederate cruisers, and the class of insurance companies above mentioned, should be paid to persons who had paid premiums for war risks after the sailing of any Confederate cruiser. I maintained this doctrine as well as I could against the powerful arguments I have named. There were other very strong arguments on the same side, and I had the gratification of being assured by several Senators that my presentation of the case had convinced them. Mr. Blaine, who had, himself, earnestly engaged in the debate, said that he thought that the opinion of the majority of the Senators had been changed by my argument.
The two most important questions of the construction of the Constitution which came up in our early history have been finally put at rest in our day. I have had something to do with disposing of both of them. With the disposition of one of them I had a leading part.
The first of these questions was whether in executing the powers conferred upon it by the Constitution, Congress must confine itself to such means and instrumentalities as are strictly and indispensably necessary to their accomplishment; or whether it might select, among the measures which fairly promote such Constitutional ends, any method which it shall think for the public interest, exercising this power in a liberal way, and remembering in doing so that it is a Constitution— the vital power of a free people,—we are defining and limiting, and not an ordinary power of attorney.
This question first came up in Washington's Administration, on the bill for establishing a National Bank. Seldom any doubt is raised now as to the Constitutional power of the National Government to accomplish and secure any of the great results which we could not secure before the war, by reason of what is called the doctrine of State Rights. Democrat and Republican, men of the South and men of the North, now agree in exercising without a scruple the power of Congress to protect American interests by the tariff, to endow and to subsidize railroads across the continent, and to build an Oceanic canal.
I have in my possession, in Roger Sherman's and James Madison's handwriting, a paper which contains the first statement of a controversy which divided parties and sections, which inspired Nullification, and which entered largely in the strife which brought on the Civil War.
(In Roger Sherman's handwriting.) "You will admit that Congress have power to provide by law for raising, depositing and applying money for the purposes enumerated in the Constitution." X (and generally of regulating the finances). "That they have power so far as no particular rules are pointed out in the Constitution to make such rules and regulations as they may judge necessary and proper to effect these purposes. The only question that remains is—Is a bank (a necessary and) a proper measure for effecting these purposes? And is not this a question of expediency rather than of right?"
(The following, on the same slip of paper, is in James Madison's handwriting.) "Feb. 4, 1791. This handed to J. M. by Mr. Sherman during the debate on the constitutionality of the bill for a National bank. The line marked X given up by him on the objection of J. M. The interlineation of 'a necessary &' by J. M. to which he gave no other answer than a smile."
The other matter relates to the power of removal from office. Upon that the Constitution is silent. In the beginning two views were advocated. There was a great debate in 1789, which Mr. Evarts declares, "decidedly the most important and best considered debate in the history of Congress." The claim that the power of removal is vested absolutely in the President by the Constitution prevailed in the House of Representatives, under the lead of Madison, by a majority of twelve, and by the casting vote of John Adams in the Senate. Mr. Madison said:
"The decision that is at this time made will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius and character of the whole Government."
One party claimed that the power of removal was a necessary incident to the power of appointment, and vested in the President by virtue of his power to appoint. It was claimed also on the same side that the President's duty to see the laws faithfully executed could not be discharged if subordinates could be kept in office against his will. In most cases the President never executes the laws himself, but only has to see them executed faithfully.
This view prevailed, as we have seen, in Washington's Administration. It continued to be acted upon till the time of President Johnson. In General Jackson's time its soundness was challenged by Webster, Calhoun and Clay. But there was no attempt to resist it in practice. Mr. Webster in 1835 earnestly dissented from the original decision, while he admitted that he considered it "a settled point; settled by construction, settled by precedent, settled by the practice of the Government, and settled by statute." It remained so settled, until, in the strife which followed the rebellion, a two-thirds majority in Congress was induced by apprehension of a grave public danger to attempt to wrest this portion of the executive power from the hands of Andrew Johnson. The statute of March 2, 1867, as construed by nearly two-thirds of the Senate, enacted that officers appointed by the predecessor of President Johnson, who, by the law in force when they were appointed, and by the express terms of their commission, were removable at the pleasure of the President, should remain in office until the Senate should consent to the appointment of their successors, or approve their removal.
In 1867 Congress undertook to determine by statute the construction of the Constitution as to this disputed question. Some persons claimed that that power existed in the provision—"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department officer thereof."
The Constitutionality and effect of this statute were debated on the trial of President Johnson. But it served its purpose during the last two years of Johnson's Administration. Five days after Grant's inauguration, the House of Representatives, by a vote of 138 to 16, passed a bill totally repealing it. The Senate was unwilling to let go the hold which it had acquired on the Executive power, but proposed to suspend the law for one year, so that there might be no obstacle in the path of General Grant to the removal of the obnoxious officials who had adhered to Andrew Johnson. So a compromise was agreed upon. It permitted the President to suspend officers during the vacation of the Senate, but restored officers so suspended at the close of the next session, unless, in the meantime, the advice and consent of the Senate had been obtained to a removal or the appointment of a successor.
President Grant, in his message of December, 1869, urged the repeal of this modified act on the ground that—
"It could not have been the intention of the framers of the Constitution that the Senate should have the power to retain in office persons placed there by Federal appointment, against the will of the President. The law is inconsistent with a faithful and efficient administration of the Government. What faith can an Executive put in officials forced on him, and those, too, whom he has suspended for reason? How will such officials be likely to serve an Administration which they know does not trust them?"
The House acted on this recommendation, and passed a bill for the repeal of the statutes of 1867 and 1869 by a vote of 159 to 25. For this bill the whole Massachusetts delegation, including Mr. Dawes and myself, voted. It was never acted on in the Senate. In 1872 a similar bill passed the House without a division.
The Democratic Party has invariably supported the position of Madison and Jackson, that the power of removal is vested by the Constitution in the President, and cannot be controlled by legislation.
This was the condition of matters when Mr. Cleveland came into office March 4, 1885. The Revised Statutes, Sections 1767-1772, contained in substance the law as it was left by the legislation of 1867 and 1869 (Sec. 1767): "Every person holding any civil office to which he has been or hereafter may be appointed by and with the consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he was appointed, unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the like advice and consent, of a successor, in his place, except as herein otherwise provided."
The President was however authorized to suspend civil officers during the recess, except Judges, until the next session of the Senate, and to designate a substitute who should discharge the duties of the office, himself being subject to removal by the designation of another.
The President was further required to nominate within thirty days after the commencement of each session of the Senate persons to fill all vacancies in office, which existed at the meeting of the Senate, whether temporarily filled or not, and in place of all officers suspended. If no appointment were made, with the advice and consent of the Senate during such session, the office was to be in abeyance.
It will be seen that this statute required the assent of the Senate to the exercise of the President's power of removal, although without its consent he could suspend the officer so as to deprive him of the emoluments of his office.
So the appointment of a new officer by the advice and consent of the Senate operated in such case as a removal of the person them holding office, and a failure of the Senate to confirm such proposed appointment had the effect to restore the officer suspended, or temporarily removed.
Under these conditions there grew up a very earnest controversy between President Cleveland and the Republican majority in the Senate, led by the Judiciary Committee, of which Mr. Edmunds was then Chairman. It has been, I suppose from the beginning of the Government, the practice of the President to furnish to the Senate all papers and documents in his possession relating to the fitness of officials nominated to the Senate.
Mr. Cleveland made no objection, if I understood him correctly, to continuing that practice. But he claimed that the Senate had nothing to do with the exercise of his power of removal, and therefore was not entitled to be informed of the evidence upon which he acted in that. So he refused and sustained the heads of Departments in refusing the request of the Senate to send for its information the documents on file relating to removals.
This position was encountered by the Republican majority, some of them claiming that the Senate had the same rightful share in the removals as in appointments, and that no difference was to be made between the two cases. Others believed, as I did, that although the power of removal might be exercised by the President alone on his own responsibility, without requiring the advice and consent of the Senate, still that while the President was proceeding under the law by which the appointment itself operated as a removal, and a failure to affirm the appointment restored the old officer to his place again, that the Senate whose action was to have that important effect, was entitled not only to know whether the public interest would be served by the appointment of the proposed official on his own merits solely, but also whether it would be best served by the removal of his predecessor or by the restoration to office of his predecessor. Both the President and the Senate were acting under the existing law, treating it as in force and valid. Now suppose it were true that the question of advising and consenting to the appointment proposed by the President were a very doubtful one indeed, the question on its merits being closely balanced; and the officer to be removed or restored according as the Senate should consent or refuse to consent, was a man of conspicuous and unquestioned capacity and character, against whom no reasonable objection was brought, to be removed for political reasons solely. The Senate certainly, in exercising its power had the right to consider all that the President had a right to consider, and therefore it seems to me that we were justified, in that class of cases, in asking for the documents in his possession bearing upon the question of removal.
It will be observed that in none of the arguments of this Constitutional question has it been claimed that the President had the right without statute authority to suspend public officers, even if he had the right to remove them. That right, if he had it at all, he got under the statute under which he and the Senate were acting.
On the 17th of July, 1885, the President issued an order suspending George M. Duskin of Alabama, from the office of Attorney of the United States, by virtue of the authority conferred upon him by Sec. 1768 of the Revised Statutes, which is a reenactment of the law of which I have just spoken.
On the 14th of December, 1885, the President nominated to the Senate John D. Burnett, vice George M. Duskin, suspended. The Chairman of the Committee on the Judiciary, as had been usual in such cases, addressed a note to the Attorney-General, asking that all papers and information in the possession of the Department touching the conduct and administration of the officer proposed to be removed, and touching the character and conduct of the person proposed to be appointed, be sent to the Committee for its information. To this the Attorney- General replied that he was directed by the President to say that there been sent already to the Judiciary Committee all papers in the Department relating to the fitness of John D. Burnett, recently nominated, but that it was not considered that the public interests would be promoted by a compliance with said resolution and the transmission of the papers and document therein mentioned to the Senate in Executive session.
That made a direct issue. Thereupon a very powerful report affirming the right of the Senate to require such papers was prepared by Mr. Edmunds, Chairman of the Committee on the Judiciary, and signed by George F. Edmunds, Chairman, John J. Ingalls, S. J. R. McMillan, George F. Hoar, James F. Wilson and William M. Evarts.
This was accompanied by a dissenting report by the minority of the Committee, signed by James L. Pugh, Richard Coke, George C. Vest and Howell E. Jackson, afterward Associate Justice of the Supreme Court of the United States.
So it will be seen that the two sides were very powerfully represented. The report of the Committee was encountered by a message from President Cleveland, dated March 1, 1886, in which the President claimed that these papers in the Attorney- General's Department were in no sense upon its files, but were deposited there for his convenience. He said: "I suppose if I desired to take them into my custody I might do so with entire propriety, and if I saw fit to destroy them no one could complain." Continuing, the President says that the demands of the Senate "assume the right to sit in judgment upon the exercise of my exclusive discretion and Executive function, for which I am solely responsible to the people from whom I have so lately received the sacred trust of office."
He refers to the laws upon which the Senate based its demand and said: "After an existence of nearly twenty years of almost innocuous desuetude these laws are brought forth—apparently the repealed as well as the unrepealed—and put in the way of an Executive who is willing, if permitted, to attempt an improvement in the methods of administration. The Constitutionality of these laws is by no means admitted."
The President seemed to forget that he had taken action under those laws, and had expressly cited them as the authority for his action, in his message announcing the suspension of the official.
The controversy waxed warm in the Senate, and in the press throughout the country. The effect of it was that the confirmation of Mr. Cleveland's nominees for important offices was postponed for several months, in some cases eight to ten, but as they were exercising their functions under temporary appointments, it made no difference to them. When they were at last confirmed by the Senate, they received commissions dated from the appointment which took place after the advice and consent of the Senate. So the four years, for which they could hold office, began to run then, and when a new Administration of a different politics came into power, they held their office for a period considerably more than four years, except a few who were actually removed by President Harrison.
I do not think the people cared much about the dispute. The sympathy was rather with President Cleveland. The people, both Republicans and Democrats, expected that the political control of the more important offices would be changed when a new party came into power, and considered Mr. Edmunds's Constitutional argument as a mere ingenious device to protract the day when their political fate should overtake the Republican officials.
I united with the majority of the Committee in the report, for the reasons I have stated above. I still think the position of the Senate right, and that of the President wrong. But I never agreed to the claim that the Senate had anything to do with the President's power of removal. So I took the first opportunity to introduce a bill repealing the provisions of the statute relating to the tenure of office, which interfered with the President's power of removal, so that we might go back again to the law which had been in force from the foundation of the Government, in the controversy with President Jackson. A majority of the Republicans had attempted to do that, as I have said, in the first session of Congress under President Grant. But it had been defeated by the Senate. So I introduced in the December session, 1886, a bill which became a law March 3, 1887, as follows:
"Be enacted, etc., That sections 1767, 1768, 1769, 1770, 1771, and 1772 of the Revised Statutes of the United States are hereby repealed.
"Sec. 2. This repeal shall not affect any officer heretofore suspended under the provisions of said sections, or any designation, nomination or appointment heretofore made by virtue of the provisions thereof.
"Approved, March 3, 1887."
But the blood of my Republican associates was up. I got a few Republican votes for my Bill. It passed the House by a vote of 172 to 67. Every Massachusetts Representative voted for the Bill, as did Speaker Reed. But in general the votes against it were Republican votes. Governor Long made an able speech in its favor.
In the Senate three Republicans only voted with me. Among the nays were several Senators who, as members of the House, had voted for a Bill involving the same principle in 1869. Mr. Evarts, though absent at the time of this vote, declared his approval of the Bill in debate; and so, I think, did Mr. Dawes, although of that I am not sure. Mr. Edmunds opposed it with all his might and main.
Mr. Sherman, always a good friend of mine, remonstrated with me. He asked me with great seriousness, if I was conscious of the extent of the feeling among the Republicans of the Senate at my undertaking to act in opposition to them on this and one or two other important matters, to which he alluded. I replied that I must of course do what seemed to be my duty, and that in my opinion I was rendering a great service to the Republican Party in getting rid of the controversy in which the people sympathized generally with the Democrats, and that I thought the gentlemen who differed from me, would come to my way of thinking pretty soon. The result proved the soundness of my judgment. I do not think a man can be found in the Senate now who would wish to go back to the law which was passed to put fetters on the limbs of Andrew Johnson. I have asked several gentlemen who voted against the repeal whether they did not think so, and they all now agree that the measure was eminently wise and right. The opposition to the statute of 1887 was but the dying embers of the old fires of the Johnson controversy.
If, on looking back, I were to select the things which I have done in public life in which I take the most satisfaction, they would be, the speech in the Senate on the Fisheries Treaty, July 10, 1886, the letter denouncing the A. P. A., a secret, political association, organized for the purpose of ostracizing our Catholic fellow-citizens, and the numerous speeches, letters and magazine articles against the subjugation of the Philippine Islands.
I do not think any one argument, certainly that my argument, caused the defeat of the Fisheries Treaty, negotiated by Mr. Joseph Chamberlain and Mr. Bayard during Mr. Cleveland's first Administration. The argument against it was too strong not to have prevailed without any one man's contribution to it; and the Senate was not so strongly inclined to support President Cleveland as to give a two-thirds majority to a measure, unless it seemed clearly for the public interest. He had his Republican opponents to reckon with, and the Democrats in the Senate disliked him very much, and gave him a feeble and half-hearted support.
The question of our New England fisheries has interested the people of the country, especially of New England, from our very early history. Burke spoke of them before the Revolutionary War, as exciting even then the envy of England. One of the best known and most eloquent passages in all literature is his description of the enterprise of our fathers. Burke adds to that description:
"When I reflect upon the effects, when I see how profitable they have been to us, I feel all the pride of power sink, and all presumption in the wisdom of human contrivances melt and die away within me. My rigor relents. I pardon something to the spirit of Liberty."
The War of the Revolution, of course, interrupted for a time the fisheries of the American colonies. But the fishermen were not idle. They manned the little Navy whose exploits have never yet received from history its due meed of praise. They furnished the ships' companies of Manly and Tucker and Biddle and Abraham Whipple. They helped Paul Jones to strike terror into St. George's Channel. In 1776, in the first year of the Revolutionary War, American privateers, most of them manned by our fishermen, captured three hundred and forty- two British vessels.
The fisheries came up again after the war. Mr. Jefferson commended them to the favor of the nation in an elaborate and admirable report. He said that before the war 8,000 men and 52,000 tons of shipping were annually employed by Massachusetts in the cod and whale fisheries. England and France made urgent efforts and offered large bounties to get our fishermen to move over there.
For a long time the fisheries were aided by direct bounties.Later the policy of protection has been substituted.
John Adams has left on record that when he went abroad as our representative in 1778, and again when the Treaty of 1783 was negotiated, his knowledge of the fisheries and his sense of their importance were what induced him to take the mission. He declared that unless our claims were fully recognized, the States would carry on the war alone. He said:
"Because the people of New England, besides the natural claim of mankind to the gifts of Providence on their coast, are specially entitled to the fishery by their charters, which have never been declared forfeited."
In the debate on the articles of peace in the House of Lords,Lord Loughborough, the ablest lawyer of his party, said:
"The fishery on the shores retained by Britain is in the next article not ceded, but recognized as a right inherent in the Americans, which though no longer British subjects, they are to continue to enjoy unmolested."
This was denied nowhere in the debate.
John Adams took greater satisfaction in his achievement when he secured our fisheries in the treaty of 1783 than in any other of the great acts of his life.* After the treaty of 1783 he had a seal struck with the figures of the pine tree, the deer and the fish, emblems of the territory and the fisheries secured in 1783. He had it engraved anew in 1815 with the motto, "Piscemur, venemur, ut olim." I have in my possession an impression taken from the original seal of 1815. This letter from John Quincy Adams tells its story:
"QUINCY, September 3, 1836.
"My Dear Son:On this day, the anniversary of the definitive treaty of peace of 1783, whereby the independence of the United States of America was recognized, and the anniversary of your own marriage, I give you a seal, the impression upon which was a device of my father, to commemorate the successful assertion of two great interests in the negotiation for the peace, the liberty of the fisheries, and the boundary securing the acquisition of the western lands. The deer, the pine tree, and the fish are the emblems representing those interests.
"The seal which my father had engraved in 1783 was without the motto. He gave it in his lifetime to your deceased brother John, to whose family it belongs. That which I now give to you I had engraved by his direction at London in 1815, shortly after the conclusion of the treaty of peace at Ghent, on the 24th of December, 1814, at the negotiation of which the same interests, the fisheries, and the bounty had been deeply involved. The motto, 'Piscemur, venemur, ut olim,' is from Horace.
"I request you, should the blessing of heaven preserve the life of your son, Charles Francis, and make him worthy of your approbation, to give it at your own time to him as a token of remembrance of my father, who gave it to me, and of yours.
"JOHN QUINCY ADAMS.""My son Charles Francis Adams."
[Footnote]* See Ante, p. 131.[End of Footnote]
The negotiations of 1815 and 1818 were under the control of as dauntless and uncompromising a spirit, and one quite as alive to the value of the fisheries and the dishonor of abandoning them as that of John Adams himself. If John Quincy Adams, the senior envoy at Ghent, and the Secretary of State in 1818, had consented to a treaty bearing the construction which is lately claimed he never could have gone home to face his father. When the War of 1812 ended, Great Britain set up the preposterous claim that the war had abrogated all treaties, and that with the treaty of 1783 our rights in the fisheries were gone. There was alarm in New England; but it was quieted by the knowledge that John Quincy Adams was one of our representatives. It was well said at that time that, as
"John Adams saved the fisheries once, his son would a second time."
When someone expressed a fear that the other commissioners would not stand by his son, the old man wrote in 1814, that—
"Bayard, Russell, Clay, or even Gallatin, would cede the fee-simple of the United States as soon as they would cede the fisheries." (pp. 21-22).
These fisheries still support the important city of Gloucester, and are a very valuable source of wealth to the hardy and enterprising people who maintain them. Their story is full of romance. A touching yearly ceremonial is celebrated at the present time in Gloucester in commemoration of the men who are lost in this dangerous employment.
But the value of the fisheries does not consist chiefly in historic association or in the wealth which they contribute to any such community.
They are the nursery of seamen, more valuable and less costly than the Naval School at Annapolis. They train the men who are employed in them to get to be at home on the sea. They are valuable for naval officers and for sailors. Whenever there shall be a war with a naval power, they will be thrown out of employ, and will seek service in our Navy. All the English authorities, I believe, concur in this opinion. I read in my speech a very interesting letter from Admiral Porter who testified strongly to that effect.
While it is true that many of our common sailors engaged in our cod and other fisheries are of foreign birth, it is equally true that they, almost all of them, come to live in this country, get naturalized and become ardent Americans. This is true of the natives of the British Dominions. But it is still more true of the Scandinavians, a hardy and adventurous race, faithful and brave, who become full of the spirit of American nationality.
Mr. Bayard who was, I think, inspired by a patriotic and praiseworthy desire to establish more friendly relations with Great Britain, seemed to me to give away the whole American case, and to have been bamboozled by Joseph Chamberlain at every point. The Treaty gave our markets to Canada without anything of value to us in return, and afforded no just indemnity for the past outrages of which we justly complained, and gave no security for the future.
The Treaty, which required a two-thirds majority for its ratification, was defeated by a vote of twenty-seven yeas to thirty nays. There were nine Senators paired in the affirmative, and eight in the negative. The vote was a strict party vote, with the exception of Messrs. Palmer and Turpie, Democrats, who were against it.
I discussed the subject with great earnestness, going fully into the history of the matter, and the merits of the Treaty. I think I may say without undue vanity that my speech was an important and interesting contribution to a very creditable chapter of our history.
In December, 1889, the Republican Party succeeded to the legislative power in the country for the first time in sixteen years. Since 1873 there had been a Democratic President for four years, and a Democratic House or Senate or both for the rest of the time. There was a general belief on the part of the Republicans, that the House of Representatives, as constituted for fourteen years of that time, and that the Presidency itself when occupied by Mr. Cleveland, represented nothing but usurpation, by which, in large districts of the country, the will of the people had been defeated. There were some faint denials at the time when these claims were made in either House of Congress as to elections in the Southern States. But nobody seems to deny now, that the charges were true. Mr. Senator Tillman of South Carolina stated in my hearing in the Senate:
"We took the Government away. We stuffed ballot boxes. We shot them. We are not ashamed of it. The Senator from Wisconsin would have done the same thing. I see it in his eye right now. He would have done it. With that system—force, tissue ballots, etc.—we got tired ourselves. So we called a Constitutional Convention, and we eliminated, as I said, all of the colored people whom we could under the fourteenth and fifteenth amendments.
"I want to call your attention to the remarkable change that has come over the spirit of the dream of the Republicans; to remind you, gentlemen of the North, that your slogans of the past—brotherhood of man and fatherhood of God—have gone glimmering down the ages. The brotherhood of man exists no longer, because you shoot negroes in Illinois, when they come in competition with your labor, and we shoot them in South Carolina, when they come in competition with us in the matter of elections. You do not love them any better than we do. You used to pretend that you did; but you no longer pretend it, except to get their votes.
"You deal with the Filipinos just as you deal with the negroes, only you treat them a heap worse."
No Democrat rose to deny his statement, and, so far as I know, no Democratic paper contradicted it. The Republicans, who had elected President Harrison and a Republican House in 1888, were agreed, with very few exceptions, as to the duty of providing a remedy for this great wrong. Their Presidential Convention, held at Chicago in 1888, passed a resolution demanding, "effective legislation to secure integrity and purity of elections, which are the fountains of all public authority," and charged that the "present Administration and the Democratic majority in Congress owe their existence to the suppression of the ballot by a criminal nullification of the Constitution and the laws of the United States."
In the Senate at the winter session of 1888 and at the beginning of the December session of 1889, a good many Bills were introduced for the security of National elections. Similar Bills were introduced in the House. A special Committee was appointed there to deal with that subject. I had, myself, no doubt of the Constitutional authority of Congress, and of its duty, if it were able, to pass an effective law for that purpose.
I was the Chairman of the Committee on Privileges and Elections, and it was my duty to give special attention to that subject. I had carefully prepared a Bill in the vacation, based on one introduced by Mr. Sherman, providing for holding, under National authority, separate registrations and elections for Members of Congress. But when I got to Washington, I found, on consultation with every Republican Senator except one, that a large majority were averse to an arrangement which would double the cost of elections throughout the country, and which, in States where personal registration every year is required, would demand from every citizen his presence at the place of polling or registration four times every alternate year. That is, in the years when there were Congressmen to be elected he must go twice to be registered—once for the State election, and once for the Congressional—and twice to vote. So I drew another Bill. I say I drew it. But I had the great advantage of consultation with Senator Spooner of Wisconsin, a very able lawyer who had lately come to the Senate, and I can hardly say that the Bill, as it was finally drafted, was more mine or his. This Bill provided, in substance, that there should be National officers of both parties who should be present at the registration and election of Members of Congress, and at the count of the vote, and who should know and report everything which should happen, so that all facts affecting the honesty of the election and the return might be before the House of Representatives. To this were added some section providing for the punishment of bribery, fraud and misconduct of election officers.
In the meantime the House of Representatives had appointed a special Committee charged with a similar duty. Members of that Committee saw me, and insisted, with a good deal of reason, that a measure which concerned the election of members of the House of Representatives, should originate in that body. Accordingly the Senate Committee held back its Bill, and awaited the action of the House, which sent a Bill to the Senate, July 15, 1890. The House Bill dealt not only with the matter of elections, but also with the selection of juries, and some other important kindred subjects. Our Committee struck out from it everything that did not bear directly on elections; mitigated the severity of the penalties, and reduced the bulk of the Bill very considerably. The measure was reported in a new draft by way of substitute. It remained before the Senate until the beginning of the next Session, when it was taken up for action. It was a very simple measure.
It only extended the law which, with the approbation of both parties, had been in force in cities of more than twenty thousand inhabitants, to Congressional districts, when there should be an application to the Court, setting forth the necessity for its protection. That law had received the commendation of many leading Democrats, including S. S. Cox, Secretary Whitney, the four Democratic Congressmen who represented Brooklyn, and General Slocum, then Representative at large from the State of New York. It had been put in force on the application of Democrats quite as often as on that of Republicans. We added to our Bill a provision that in case of a dispute concerning an election certificate, the Circuit Court of the United States in which the district was situated should hear the case and should award a certificate entitling the member to be placed on the Clerk's roll, and to hold his seat until the House itself should act on the case. That provision was copied from the English law of 1868 which has given absolute public satisfaction there. This was the famous Force Bill, and the whole of it—a provision that, if a sufficient petition were made to the court for that purpose, officers, appointed by the court, belonging to both parties should be present and watch the election; that the Judge of the Circuit Court should determine, in case of dispute, what name should be put on the roll of the House of Representatives, in the beginning, subject to the Constitutional power of the House to correct it, and that a moderate punishment for bribery, intimidation and fraud, on indictment and conviction by a jury of the vicinage, should be imposed. That was the whole of it.
But the Southern Democratic leaders, with great adroitness, proceeded to repeat the process known as "firing the Southern heart." They persuaded their people that there was an attempt to control elections by National authority. They realized that the waning power of their party at the South, many of whose business men saw that the path of prosperity for the South as well as for the North lay in the adoption of Republican policies, might be reestablished by exciting the fear of negro domination. The Northern Democrats, either very ignorantly or wilfuly, united in the outcry. Governor William E. Russell of Massachusetts, a gentleman of large influence and popularity with both parties, telegraphed to President Cleveland a pious thanksgiving for the defeat of this "wicked Bill."
Some worthy Republican Senators became alarmed. They thought, with a good deal of reason, that it was better to allow existing evils and conditions to be cured by time, and the returning conscience and good sense of the people, rather than have the strife, the result of which must be quite doubtful, which the enactment and enforcement of this law, however moderate and just, would inevitably create.
On reflection, I came myself to the conclusion that, while the Bill was reasonable and there was no reasonable doubt of the power of Congress to enact it, yet the attempt to pass it, if it were to fail, would do the cause infinite mischief. It would be an exhibition of impotence, always injurious to a political party. It would drive back into the Democratic Party many men who were afraid of negro domination; who looked with great dislike on the assertion of National power over elections, and whom other considerations would induce to act with the Republicans. So I thought it was best to ascertain carefully the prevailing opinion and see if we were likely to get the Bill through, and, if we found that unlikely, not to proceed far enough to have a debate in either House.
Accordingly I visited the House of Representatives, saw several of my Massachusetts colleagues and some other leaders. They agreed that, if I found that the Bill could not, in all probability, pass the Senate, it should be arranged to lay it aside in the House without making any serious movement for it there. After that arrangement was made there was a Senate caucus. I brought up the matter and moved the appointment of a Committee to consider the whole question of legislation with reference to the security of elections. A gentleman who had recently become a Member of the Senate rose and quite angrily objected to taking up the matter for consideration. He declared that he would not consent to have the subject introduced in a Republican caucus. The proceedings of such caucuses are supposed to be kept from the public. But they are pretty sure to leak out. I could not very well get up and say that my reason for asking for a committee was to see whether the law should be suppressed or not. So I did not urge my motion. But I did the best I could.
Before reporting the Bill I saw every Republican Senator and obtained his opinion upon it. I have in my possession the original memoranda of the various answers. Not only a majority of the Republican Senators, but a majority of the whole Senate declared emphatically for an Election Bill. I further consulted them whether the authority, in case of a disputed election, to order, upon hearing, the name of the person found to be elected to be placed on the roll should be lodged in the United States Courts, or in some special tribunal. Two or three preferred that the court should not be invoked. But a majority of the whole Senate favored vesting the power in the courts, and those who preferred another way stated that they were willing to abide by the judgment of the Committee.
When the House Bill came up, it was, on the 7th of August, 1890, reported favorably with my Bill as a substitute. Meantime the McKinley Tariff Bill, which Mr. Cleveland had made, so far as he could, the sole issue in the late election, had been matured and reported. It affected all the business interests of the country. They were in a state of uncertainty and alarm. Mr. Quay of Pennsylvania proposed a resolution to the effect that certain enumerated measures, not including the Election Bill, should be considered at that session, and that all others should be postponed. That, I suppose, would have had the entire Democratic support and Republicans enough to give it a majority. It would have postponed the Election Bill without giving any assurance of its consideration at the short session. So a conference of Republicans was held at which an agreement was made, which I drew up, and signed by a majority of the entire Senate. It entitled the friends of the Election Bill to be assured that it would be brought to a vote and passed at the short session, if there were then a majority in its favor. This is the agreement, of which I have the original, with the original signatures annexed, in my possession.
"We will vote: 1. To take up for consideration on the first day of the next session the Federal Election Bill, and to keep it before the Senate to the exclusion of other legislative business, until it shall be disposed of by a vote. 2. To make such provision as to the time and manner of taking the vote as shall be decided, by a majority of the Republican Senators, to be necessary in order to secure such vote, either by a general rule like that proposed by Mr. Hoar, and now pending before the committee on rules, or by special rule of the same purport, applicable only to the Election Bill."
At the next December session the Bill was taken up for consideration and, after a few days' debate, there was a motion to lay it aside. Since the measure had been first introduced, the sentiment in certain parts of the country in favor of the free coinage of silver had been strengthened. Several of the Republican Senators were among its most zealous advocates. There was a motion to lay aside the Election Bill which was adopted by a bare majority—the Democrats voting for it and several of the Silver Republican Senators, so-called. All but one of these had signed their names to the promise I have printed. I never have known by what process of reasoning they reconciled their action with their word. But I know that in heated political strife men of honor, even men of ability, sometimes deceive themselves by a casuistic reasoning which would not convince them at other times.
The Election Bill deeply excited the whole country. Its supporters were denounced by the Democratic papers everywhere, North and South, with a bitterness which I hardly knew before that the English language was capable of expressing. My mail was crowded with letters, many of them anonymous, the rest generally quite as anonymous, even if the writer's name were signed, denouncing me with all the vigor and all the scurrility of which the writers were capable. I think this is the last great outbreak of anger which has spread through the American people.
I got, however, a good deal of consolation from the stanch friendship and support of the Republicans of Massachusetts, which never failed me during the very height of this storm. Whittier sent me a volume of poetry which he had just published, with the inscription written on the blank leaf in his own hand, "To George F. Hoar, with the love of his old friend, John G. Whittier." I think I would have gone through ten times as much objurgation as I had to encounter for those few words.
There has never since been an attempt to protect National elections by National authority. The last vestige of the National statute for securing purity of elections was repealed in President Cleveland's second Administration, under the lead of Senator Hill of New York. I have reflected very carefully as to my duty in that matter. I am clearly of the opinion that Congress has the power to regulate the matter of elections of Members of the House of Representatives and to make suitable provisions for honest elections and an honest ascertainment of the result, and that such legislation ought to be enacted and kept on the statute book and enforced. But such legislation, to be of any value whatever, must be permanent. If it only be maintained in force while one political party is in power, and repealed when its antagonist comes in, and is to be constant matter of political strife and sectional discussion, it is better, in my judgment, to abandon it than to keep up an incessant, fruitless struggle. It is like legislation to prohibit by law the selling of liquor. I believe that it would be wise to prohibit the sale of liquor, with the exceptions usually made in prohibitory laws. But if we are to have in any State, as we have had in so many States, a prohibitory law one year, another with different provisions the next, a license law the next, and the difficulty all the time in enforcing any of them, it is better to give the attempt at prohibition up and to adopt a local option, or high license, or some other policy. In other words, it is better to have the second best law kept permanently on the statute book than to have the best law there half the time.
So, after Senator Hill's repealing act got through the Senate, I announced that, so far as I was concerned, and so far as I had the right to express the opinion of Northern Republicans, I thought the attempt to secure the rights of the colored people by National legislation would be abandoned until there were a considerable change of opinion in the country, and especially in the South, and until it had ceased to be a matter of party strife. To that announcement, Senator Chandler of New Hampshire, who had been one of the most zealous advocates of the National laws, expressed his assent. That statement has been repeated once or twice on the floor of the Senate. So far as I know, no Republican has dissented from it. Certainly there has been no Bill for that purpose introduced in either House of Congress, or proposed, so far as I know, in the Republican press, or in any Republican platform since.