TECHNICALITIES AND QUIBBLES.

I now come upon that swarm of technicalities, devices, quirks, and quibbles, which from the beginning have infested this proceeding. It is hard to speak of such things without showing a contempt not entirely parliamentary. To say that they are petty and miserable is not enough. To say that they are utterly unworthy of this historic occasion is to treat them politely. They are nothing but parasitic insects, “vermin gendered in a lion’s mane,”—so nimble and numerous, that, to deal with them as they skip about, one must have the patience of the Italian peasant, who catches and kills, one by one, the diminutive animals that infest his person. The public has not forgotten the exhibition of “industrious fleas.” The Senate has witnessed the kindred exhibition of “industrious quibbles.”

I can give specimens only, and out of many I take one which can never be forgotten. It is found in the Opinion of the Senator from West Virginia [Mr.Van Winkle], which, from beginning to end, treats this impeachment as if it were a prosecution for sheep-stealingin the police-court of Wheeling, and brings to the defence the unhesitating resources of a well-trained criminal lawyer. This famous Opinion, which is without parallel in the annals of jurisprudence, must always be admired as the marvel of technicality in a proceeding where technicality should not intrude. It stands by itself, solitary in originality. Others have been technical also, but the Senator from West Virginia is nothing else. Travelling from point to point, or rather seeing point after point skip before him, at last he lights upon one of the largest dimensions, which he boldly seizes and presents to the Senate.

According to him, there is no allegation in the Articles that the order for the removal of Mr. Stanton was actually delivered to him, and, this being so, the Senator declares, that, “if there is evidence of a delivery to be found in the proceedings, it cannot be applicable to this Article, in which there is no charge or averment.” And this is gravely uttered on this transcendent occasion, when an indignant people has risen to demand judgment of a criminal ruler. The Article alleges that the order was “unlawfully issued,” and nobody doubts that its delivery was proved; but this is not enough, according to the Senator. I challenge history for another instance of equal absurdity in legal pretension. The case approaching it the closest is the famous extravagance of the Crown lawyer in the British Parliament, who, in reply to the argument of our fathers that they could not be taxed without representation, bravely insisted that they were represented, and sustained himself by declaring, that, under the Colonial charters, the lands were held in common socage as “of the manor of Greenwich in Kent,” and,as Greenwich was represented in Parliament, therefore the Colonies were represented there.[211]The pretension was perfect in form, but essentially absurd. The Senator from West Virginia outdoes even this climax of technicality. Other generations, as they read this great trial, with its accumulation of transgressions ending in the removal of Mr. Stanton, will note with wonder that a principal reason assigned for the verdict of Not Guilty was the failure of the Articles to allege that the order for removal was actually received, although there was a distinct allegation that it was “unlawfully issued,” with evidence that it was received, and no human being, not even the technical Senator, imagined that it was not. But how inconsistent with the Law of Impeachment already set forth,[212]which seeks substantial justice, and will not be arrested by any nice requirements! Lord Mansfield did not hesitate to condemn certain objections as “disgraceful subtilties.” What would he have said to the Senator from West Virginia?

There is another invention, which has in its support some of the ablest of the apologists, like the Senator from Iowa [Mr.Grimes], the Senator from Maine [Mr.Fessenden], and the Senator from Illinois [Mr.Trumbull]. It is said, that, as Mr. Stanton did not go out, therefore there was no removal, and therefore Andrew Johnson is not guilty. If the authority of names could change the unreal into the real, then this pretension might have weight. It is impossible that anything so essentially frivolous should be recognized in this proceeding. Such are the shifts of a cause to be defended only by shifts! Clearly the offence of the President was in the order “unlawfully issued,” and this was complete at the moment of its delivery. So far as depended upon him, Mr. Stanton was removed. This is the way in which the country saw the transaction, and the way also in which it will be recorded by history.

But these same apologists, with curious inconsistency, when they come to consider the appointment of Adjutant-General Thomas, insist that there was vacancy in law, called by the Senator from Mainelegalvacancy. But such vacancy could be only because there had been removal in law. There is no escape from this consequence. If there was removal in law, and there was no right to make it, the President was guilty of misdemeanor in law, and must take the consequences.

It would be unprofitable to follow these inventions further. From these know all. In the face of Presidential pretensions inconsistent with constitutional liberty, the apologists have contributed their efforts to save the criminal by subtilties which can secure his acquittal in form only, as by a flaw in an indictment; and they have done this, knowing that he will be left in power to assert his prerogative, and that his acquittal will be a new letter of license. Nothing the skill of the lawyer could supply has been wanting. This learned profession lends to the criminal all the arts in which it excels, giving all to him and forgetting the Republic. Every doubt, every scruple, every technicality, every subtilty, every quibble, is arrayed on his side, when, by every rule of reason and patriotism, allshould be arrayed on the side of our country. The Public Safety, which is the supreme law, is now imperilled. Are we not told by Blackstone that “the law is always ready to catch at anything in favor of Liberty”?[213]But these apologists catch at anything to save a usurper. In the early days of the Common Law there were technicalities in abundance, but they were for the maintenance of justice. On such was founded that extensiveac etiamjurisdiction of the King’s Bench, which gives occasion for the elegant Commentator to remark, that, however startling these may be at first to the student, “he will find them, upon further consideration, to be highly beneficial and useful.”[214]These generous fictions for the sake of justice must not be confounded with the devices by which justice is defeated.

The trick of the apologists has been, by stringent application of technical rules, to shut out all except offences charged, and then, when stress was laid upon these offences, to cry out that at most they were only technical, and too trifling for impeachment. To satisfy lawyers, the House weakly declined to act on the bloody transgressions of two years, but sought to provide against the future. Like the Roman ambassadors, they traced a line about the offender, which he was not to pass except at peril. This was the line of law. At last he passed the line, openly, knowingly, defiantly; and now that he is arraigned, we are told that this plain offence is nothing, only a little technicality. One of the counsel at the bar, [Mr.Groesbeck,] in a speech which showed how much feeling and talent could be given to a wrong side, exclaimed:—

“It almost shocks me to think that the President of the United States is to be dragged out of his office on these miserable little questions whether he could make anad interimappointment for a single day.”

Only by excluding the whole context and all its antecedents could the question be reduced to this trivial form; and yet, even thus reduced, it involved nothing less than the supremacy of the laws.

I know not how such a question can be called “trifling.” Often a great cause is presented on a narrow issue: as when English liberty was argued on the claim of ship-money, which was a tax of a few shillings only. Behind this question, called trifling by the kingly apologists of that day, loftily stood the great cause of the People against Prerogative, being the same now pending before the Senate. That other cause, on which at a later day hung the destinies of this continent, was presented on a narrower issue still. There was a tax of threepence a pound on tea, which our fathers refused to pay. But behind this question, so trifling to the apologists of prerogative, as behind that of ship-money, stood loftily the same great cause. The first cost Charles the First his head. The second cost George the Third his colonies. If such a question can be disparaged as of small moment, then have the martyred dead in all times suffered in vain, then was the costly blood lavished for the suppression of our Rebellion an empty sacrifice.

Constantly we are admonished that we must confine ourselves to the Articles. Senators express a pious horror at looking outside the Articles, and insist upon directing attention to these only. Here the Senator fromMaine is very strong. It is “the specific offences charged,” and these only, that he sees. He will not look at anything else, although spread upon the record of the Senate, and filling the land with accumulated horrors. Of course such a system of exclusion sacrifices justice, belittles this trial, and forgets that essential latitude of inquiry which belongs to a political proceeding, having for its purpose expulsion from office only, and not punishment. It is easy, by looking at an object through the wrong end of an opera-glass, to find it dwarfed, contracted, and solitary. This is not the way to look at Nature; nor is it the way to look at Andrew Johnson. The great offender should be seen in the light of day, precisely as he is, nor more nor less, with nothing dwarfed, with no limits to the vision, and with all the immense background of thronging transgressions filling the horizon as far as eye can reach. The sight may ache; but how else can justice be done? A Senator who begins by turning these Articles into an inverted opera-glass takes the first step towards judgment of acquittal. Alas that the words of Burke are not true, when, asserting the comprehensive character of impeachment, he denied, that, under it, “they who have no hope at all in the justice of their cause can have any hope that by some subtilties of form, some mode of pleading, by something, in short, different from the merits of the cause, they may prevail.”[215]The orator was right in thus indignantly dismissing all questions of pleading and all subtilties of form. This proceeding is of substance, and not of form. It is on the merits only that it can be judged.Anything short of this is the sacrifice of justice.

Such is the case of this enormous criminal. Events belonging to history, enrolled in the records of the Senate, and familiar to the country, are deliberately shut out from view, while we are treated to legal niceties without end. The lawyers have made a painful record. Nothing ever occurred so much calculated to bring the profession into disrepute; for never before has been such a theatre where lawyers were actors. Their peculiarities have been exhibited. Here was a great question of justice, appealing to the highest sentiments, and involving the best interests of the country; but lawyers, instinctive for the dialectics of the profession, forgot everlasting truth, never to be forgotten with impunity. They started at once in full cry, and the quibble became to them what Dr. Johnson says it was to the great dramatist: “He follows it at all adventures; it is sure to lead him out of his way, and sure to ingulf him in the mire. It has some malignant power over his mind, and its fascinations are irresistible.… A quibble is the golden apple for which he will always turn aside from his career, or stoop from his elevation. A quibble, poor and barren as it is, gave him such delight that he was content to purchase it by the sacrifice of reason, propriety, and truth.”[216]In this Shakespearean spirit our lawyers have acted. They have pursued quibbles with the ardor of the great dramatist, and even now are chasing them through the Senate Chamber.

Unhappily this is according to history, and our lawyers are not among the splendid exceptions. But there is reward for those who stand firm. Who does notreverence the exalted magistrate of France, the Chancellor L’Hospital, who set the great example of rectitude and perfect justice? Who does not honor those lawyers of English history through whose toils Liberty was upheld? There was Selden, so wise and learned; Pym, so grand in statesmanship; Somers, who did so much to establish the best securities of the Constitution. Nor can I forget, at a later day, that greatest advocate, Erskine, who lent to the oppressed his wonderful eloquence; nor Mackintosh and Brougham, who carried into courts that enlarged intelligence and sympathetic nature which the profession of the law could not constrain. These are among the names that have already had their reward, above the artful crowd which in all times has come to the defence of prerogative. It is no new thing that we witness now. The lawyer in other days has been, as we know him, prone to the support of power, and ready with technical reasons. Whichever side he takes, he finds reasons plenty as pins. When free to choose, and not hired, his argument is the reflection of himself. All that he says is his own image. He takes sides on a law point according to his sentiments. Cultured in law, and with aptitude sharpened by its contests, too easily he finds a legal reason for an illegal judgment. Next to an outright mercenary, give me a lawyer to betray a great cause. Forms of law lend themselves to the betrayal. It is impossible to forget that the worst pretensions of prerogative, no matter how colossal, have been shouldered by lawyers. It was they who carried ship-money against the patriot exertions of Hampden; and in our country it was they who held up Slavery in all its terrible pretensions from beginning to end. What issometimes called “the legal mind” of Massachusetts, my own honored State, bent before the technical reasoning which justified the unutterable atrocities of the Fugitive Slave Bill, while the Supreme Court of the State adopted the crime from the bench. Alas that it should be so! When will lawyers and judges see that nothing short of justice can stand?

After this survey it is easy for me to declare how I shall vote. My duty is to vote, Guilty on all the Articles. If consistent with the rules of the Senate, I should vote, “Guilty of all, and infinitely more.”

Not doubting that Mr. Stanton was protected by the Tenure-of-Office Act, and that he was believed to be so by the President, it is clear to me that the charges in the first and second Articles are sustained. These two go together. I have said already, in the course of this Opinion, that the appointment of Adjutant-General Thomas as Secretary of Warad interimwas without authority of law, and under the circumstances a violation of the National Constitution. Accordingly the third Article is sustained.

Then come what are called the Conspiracy Articles. Here also I am clear. Plainly there was an agreement between the President and Adjutant-General Thomas to obtain possession of the War Department, and prevent Mr. Stanton from continuing in office, and this embraced control of the mails and property belonging to the Department, all of which was contrary to the Tenure-of-Office Act. Intimidation and threats were certainly used by one of the conspirators, and in the case of conspiracy the acts of one are the acts of all. The evidence that force was intended is considerable, and all this must be interpreted by the general character of the offender, his menacing speeches, and the long series of transgressions preceding the conspiracy. I cannot doubt that the conspiracy was to obtain possession of the War Department, peaceably, if possible, forcibly, if necessary. As such it was violation of law, demanding the judgment of the Senate. This disposes of the fourth, fifth, sixth, and seventh Articles.

The eighth Article charges that Adjutant-General Thomas was appointed to obtain the control of moneys appropriated for the military service and the Department of War. All this would be incident to the control of the War Department. Controlling the latter, he would be able to wield the former. The evidence applicable to the one is also applicable to the other.

The ninth Article opens a different question. This charges a wicked purpose to corrupt General Emory and draw him from his military duty. Not much passed between the President and the General; but it was enough to show the President playing the part of Iago. There was hypocritical profession of regard for the Constitution, while betraying it. Here again his past character explains his purpose beyond reasonable doubt.

Then come the scandalous speeches, proved as set forth in the Articles, so that even the Senator from West Virginia [Mr.Van Winkle] must admit that evidence and pleading concur. Here is no question of form. To my mind this is one of the strongest Articles. On this alone, without anything else, I should deem it my duty to vote for expulsion from office. A young lieutenant, at the bottom of the ladder, if guilty of such things, would be cashiered promptly. A President, at the top of the ladder, with less excuse from the inexperience of early life, and with greater responsibility from the elevation he had reached, should be cashiered promptly also; and this is the object of impeachment. No person capable of such speeches should be allowed to govern this country. It is absurd to tolerate the idea. Besides being degraded, the country cannot be safe in such hands. The speeches are a revelation of himself, not materially different from well-known incidents; but they serve to exhibit him in his true character. They show him unfit for official trust. They were the utterances of a drunken man; and yet it does not appear that he was drunk. Now it is according to precedents of our history that a person disqualified by drunkenness shall be removed from office. This was the case of Pickering in 1804. But a sober man, whose conduct suggests drunkenness, is as bad at least as if he were drunk. Is he not worse? If without the explanation of drunkenness he makes such harangues, I cannot doubt that his unfitness for office becomes more evident, inasmuch as his deplorable condition is natural, and not abnormal. The drunken man has lucid intervals; but where is the assurance of a lucid interval for this perpetual offender? Derangement is with him the normal condition.

It is astonishing to find that these infamous utterances, where ribaldry vies with blasphemy, have received a coat of varnish from the Senator from Maine[Mr.Fessenden], who pleads that they were not “official,” nor did they “violate the Constitution, or any provision of the Statute or Common Law, either in letter or spirit.” In presence of such apologies for revolting indecencies it is hard to preserve proper calmness. Were they not uttered? This is enough. The drunkenness of Andrew Johnson, when he took his oath as Vice-President, was not “official”; but who will say that it was not an impeachable offence? And who will say that these expectorations differ in vileness from that drunkenness? If they did not violate the National Constitution, or any provision of law, common or statute, as is apologetically alleged, I cannot doubt that they violated the spirit of all laws. And then we are further reminded by the apologist of that “freedom of speech” which is a constitutional right; and thus, in the name of a great right, we are to license utterances that shock the moral sense, and are a scandal to human nature. Spirit of John Milton! who pleaded so grandly for this great liberty, but would not allow it to be confounded with license, speak now to save this Republic from the shame of surrender to an insufferable pretension!

The eleventh Article is the most comprehensive. In some respects it is anomnium gatherum. In one mass is the substance of other Articles, and something else beside. Here is an allegation of a speech by the President in which he denied that Congress was a Congress, and then, in pursuance of this denial, attempted to prevent the execution of the Tenure-of-Office Act, also of an important clause in the Army Appropriation Act, and also of the Reconstruction Act. Evidence followed, sustaining completely the compound allegation. The speech was made as set forth. The attempt to preventthe execution of the Tenure-of-Office Act who can question? The attempt to corrupt General Emory is in evidence. The whole history of the country shows how earnest the President has been to arrest the Reconstruction Act, and generally the Congressional scheme of Reconstruction. The removal of Mr. Stanton was to be relieved of an impediment. I accept this Article in gross and in detail. It has been proved in all its parts.

In the judgment which I now deliver I cannot hesitate. To my vision the path is clear as day. Never in history was there a great case more free from all just doubt. If Andrew Johnson is not guilty, then never was a political offender guilty; and if his acquittal is taken as a precedent, never can a political offender be found guilty. The proofs are mountainous. Therefore you are now determining whether impeachment shall continue a beneficent remedy in the National Constitution, or be blotted out forever, and the country handed over to the terrible process of revolution as its sole protection. If the milder process cannot be made effective now, when will it ever be? Under what influences? On what proofs? You wait for something. What? Is it usurpation? You have it before you, open, plain, insolent. Is it abuse of delegated power? That, too, you have in this offender, hardly less broad than the powers he has exercised. Is it violation of law? For more than two years he has set your laws at defiance; and when Congress, by special enactment, strove to constrain him, he broke forth in rebellion against the constitutional authority. Perhaps you ask still for somethingmore. Is it a long catalogue of crime, where violence and corruption alternate, while loyal men are sacrificed and the Rebellion is lifted to its feet? That also is here.

The apologists are prone to remind the Senate that they are acting under the obligation of an oath. So are the rest of us, even if we do not ostentatiously declare it. By this oath, which is the same for all, we are sworn to do “impartial justice.” It is justice, and this justice must be impartial. There must be no false weights, and no exclusion of proper weights. Therefore I cannot allow the jargon of lawyers on mere questions of form to sway the judgment against justice. Nor can I consent to shut out from view the long list of transgressions explaining and coloring the final act of defiance. To do so is not to render impartial justice, but to depart from this prescribed rule. The oath we have taken is poorly kept, if we forget the Public Safety in devices for the criminal. Above all else, now and forever, is that justice which “holds the scales of right with even hand.” In this sacred name, and in the name also of country, that great charity embracing so many other charities, I make this final protest against all questions of form at the expense of the Republic.

Something also is said of the people, now watching our proceedings with patriotic solicitude, and it has been proclaimed that they are wrong to intrude their judgment. I do not think so. This is a political proceeding, which the people are as competent to decide as the Senate. They are the multitudinous jury, coming from no small vicinage, but from the whole country: for on this impeachment, involving the Public Safety,the vicinage is the whole country. It is they who have sent us here, as their representatives, and in their name, to consult for the common weal. In nothing can we escape their judgment, least of all on a question like that before us. It is a mistake to suppose that the Senate only has heard the evidence. The people have heard it also, day by day, as it was delivered, and have carefully considered the case on its merits, properly dismissing all apologetic subtilties. It is for them to review what has been done. They are above the Senate, and will “rejudge its justice.” Thus it has been in other cases. The popular superstition which long surrounded the Supreme Court could not save that eminent tribunal from condemnation, amounting sometimes to execration, when, by an odious judgment, it undertook to uphold Slavery; and down to this day Congress has justly refused to place the bust of the Chief Justice pronouncing this judgment in the hall of the tribunal where he presided so long. His predecessors are all there in marble; no marble of Taney is there. The present trial, like that in the Supreme Court, is a battle with Slavery. Acquittal is another Dred Scott decision, and another chapter in the Barbarism of Slavery. How can Senators, discharging a political function only, expect that the voice of the people will be more tender for them than for a Chief Justice pronouncing judgment from the bench of the Supreme Court, in the exercise of judicial power? His fate we know. Nor learning, nor private virtues, nor venerable years could save him from justice. In the great pillory of history he stands, and there he must stand forever.

The people cannot witness with indifference the abandonment of the great Secretary, who organized their armies against the Rebellion, and then organized victory. Following him gratefully through the trials of the war, they found new occasion for gratitude when he stood out alone against that wickedness which was lifted to power on the pistol of an assassin. During these latter days, while tyrannical prerogative invaded all, he has kept the bridge. When, at a similar crisis of English history, Hampden stood out against the power of the Crown, it is recorded by the contemporary historian, Clarendon, that “he grew the argument of all tongues; every man inquiring who and what he was, that durst at his own charge support the liberty and property of the kingdom, and rescue his country, as he thought, from being made a prey to the Court.”[217]Such things are also said with equal force of our Secretary. Nor is it forgotten that the Senate, by two solemn votes of more than two thirds, has twice instructed him to stay at the War Department, the President to the contrary notwithstanding. The people will not easily understand on what principle of Constitution, law, or morals, the Senate can twice instruct the Secretary to stay, and then, by another vote, deliberately surrender him a prey to Presidential tyranny. Talk of a somersault; talk of self-stultification: are not both here? God save me from participation in this disastrous wrong, and may He temper it kindly to our afflicted country!

For myself, I cannot despair of the Republic. It is a life-boat, which wind and wave cannot sink; but it may suffer much and be beaten by storm. All this I clearly see before us, if you fail to displace an unfit commander, whose power is a peril and a shame.

Alas for all the evil that must break upon the country, especially in the suffering South, as it goes forth that this bad man is confirmed in the prerogatives he has usurped!

Alas for that peace and reconciliation, the longing of good men, now postponed!

Alas for that security, so important to all, as the only foundation on which to build, politically or financially! This, too, is postponed. How can people found a government, or plant or buy, unless first secure?

Alas for the Republic, degraded as never before, while the Whiskey Ring holds its orgy of corruption, and the Ku-Klux-Klan holds its orgy of blood!

Alas for the hearts of the people, bruised to unutterable sadness, as they witness a cruel tyranny installed once more!

Alas for that race so long oppressed, but at last redeemed from bondage, now plunged back into another hell of torment!

Alas for the fresh graves already beginning to yawn, while violence, armed with your verdict, goes forth, like another Fury, and murder is quickened anew!

Alas for the Unionists, white and black alike, who have trusted to our flag! You offer them a sacrifice to persecutors whose representative is before you for judgment. They are the last in my thoughts, as I pronounce that vote which is too feeble to save them from intolerable wrong and outrage. They are fellow-citizens of a common country, brethren of a common humanity, two commanding titles, both strong against the deed. I send them at this terrible moment the sympathy and fellowship of a heart that suffers with them. So just a cause cannot be lost. Meanwhile, may they find in themselves,and in the goodness of an overruling Providence, that refuge and protection which the Senate refuses to give!

Resolutions in the Senate, June 3, 1868.

June 3d, Mr. Sumner submitted the following Resolutions, which were read and ordered to be printed.

Whereas a pretension has been put forth to the effect that the vote of a Senator on an impeachment is so far different in character from his vote on any other question that the people have no right to criticize or consider it; and whereas such pretension, if not discountenanced, is calculated to impair that freedom of judgment which belongs to the people on all that is done by their representatives: Therefore, in order to remove all doubts on this question, and to declare the constitutional right of the people in cases of impeachment,—

1.Resolved, That, even assuming that the Senate is a Court in the exercise of judicial power, Senators cannot claim that their votes are exempt from the judgment of the people; that the Supreme Court, when it has undertaken to act on questions essentially political in character, has not escaped this judgment; that the decisions of this high tribunal in support of Slavery have been openly condemned; that the memorable utterance known as the Dred Scott decision was indignantly denounced and repudiated, while the Chief Justice who pronounced it became a mark for censure and rebuke; and thatplainly the votes of Senators on an impeachment cannot enjoy an immunity from popular judgment which has been denied to the Supreme Court, with Taney as Chief Justice.

2.Resolved, That the Senate is not at any time a Court invested with judicial power, but that it is always a Senate with specific functions declared by the Constitution; that, according to express words, “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,” while it is further provided that “the Senate shall have the sole power to try all impeachments,” thus positively making a distinction between the judicial power and the power to try impeachments; that the Senate, on an impeachment, does not exercise any portion of the judicial power, but another and different power, exclusively delegated to the Senate, having for its sole object removal from office and disqualification therefor; that, by the terms of the Constitution, there may be, after conviction on impeachment, a further trial and punishment “according to law,” thus making a discrimination between a proceeding by impeachment and a proceeding “according to law”; that the proceeding by impeachment is not “according to law,” and is not attended by legal punishment, but is of an opposite character, and from beginning to end political, being instituted by a political body on account of political offences, being conducted before another political body having political power only, and ending in a judgment which is political only; and therefore the vote of a Senator on impeachment, though different in form, is not different in responsibility, from his vote on any other political question;nor can any Senator, on such an occasion, claim immunity from that just accountability which the representative at all times owes to his constituents.

3.Resolved, That Senators in all that they do are under the constant obligation of an oath, binding them to the strictest rectitude; that on an impeachment they take a further oath, according to the requirement of the Constitution, which says, Senators, when sitting to try impeachment, “shall be on oath or affirmation”; that this simple requirement was never intended to change the character of the Senate as a political body, and cannot have any such operation; and therefore Senators, whether before or after the supplementary oath, are equally responsible to the people for their votes,—it being the constitutional right of the people at all times to sit in judgment on their representatives.

Speech in the Senate, June 10, 1868.

The Senate having under consideration the bill to admit the States of North Carolina, South Carolina, Louisiana, Georgia, and Alabama to representation in Congress, Mr. Sumner said:—

MR. PRESIDENT,—What I have to say to-day will be confined to a single topic. I shall speak ofthe validity and necessity of fundamental conditions on the admission of States into the body of the Nation,—passing in review objections founded on the asserted equality of States, and also on a misinterpretation of the power to determine the “qualifications” of electors, and that other power to make “regulations” for the election of certain officers. Here I shall encounter the familiar pretensions of another time, no longer put forth by defiant Slave-Masters, but retailed by conscientious Senators, who think they are supporting the Constitution, when they are only echoing the voice of Slavery.

Fundamental conditions on the admission of States are older than our Constitution; for they appear in the Ordinance for the vast Territory of the Northwest, adopted anterior to the Constitution itself. In that Ordinance there are various conditions, of perpetual obligation, as articles of compact. Among these is the famous prohibition of Slavery. In the early days of our Nation nobody thought of questioning the validity ofthese conditions. Scattered efforts were made to carry Slavery into some portions of this region, and unquestionably there were sporadic cases, as in Massachusetts itself; but the Ordinance stood firm and unimpeached.

One assurance of its authority will be found in the historic fact, that in 1820, on the admission of Missouri as a State of the Union, there was a further provision that in all territory of the United States north of 36° 30´ north latitude, “Slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be and is herebyFOREVERprohibited.”[218]This was the famous Missouri Compromise. Missouri was admitted as a State without any restriction of Slavery, but all the outlying territory west and north was subjected to this conditionforever. It will be observed that the condition was in no respect temporary, but that it was “forever,”—thus outlasting any territorial government, and constituting a fundamental law, irrepealable through all time. Surely this condition, perpetual in form, would not have been introduced, had it been supposed to be inoperative,—had it been regarded as a sham, and not a reality. This statute, therefore, testifies to the judgment of Congress at that time.

It was only at a later day, and at the demand of Slavery, that the validity of the great Ordinance of Freedom was called in question. Mr. Webster, in his memorable debate with Mr. Hayne in 1830, vindicated this measure in language worthy of the cause and of himself, giving to it a palm among the laws by which civilization has been advanced, and asserting its enduring character:—

“We are accustomed, Sir, to praise the lawgivers of antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character than the Ordinance of 1787.… It fixed forever the character of the population in the vast regions northwest of the Ohio, by excluding from them involuntary servitude. It impressed on the soil itself, while it was yet a wilderness, an incapacity to sustain any other than freemen.It laid the interdict against personal servitude in original compact, not only deeper than all local law, but deeper also than all local constitutions.”[219]

Words of greater beauty and power cannot be found anywhere in the writings or speeches of our American orator. It would be difficult to declare the perpetual character of this original interdict more completely. The language is as picturesque as truthful. Deeper than all local law, deeper than all local constitutions, is this fundamental law; and such is its essential quality, that the soil which it protects cannot sustain any other than freemen. Of such a law the orator naturally proceeded to say:—

“We see its consequences at this moment; and we shall never cease to see them, perhaps, while the Ohio shall flow.It was a great and salutary measure of prevention.”[220]

In these last words the value of such a law is declared. It is forprevention, which is an essential object of all law. In this case it is the more important, as the evil to be prevented is the most comprehensive of all.

Therefore, on the authority of Mr. Webster, in harmony with reason also, do I say, that this original condition was not only perpetual in character, but beneficent also. It was beneficence in perpetuity.

Mr. Chase, in his admirable argument before the Supreme Court of the United States, in theVanzandtcase, is hardly behind Mr. Webster in homage to this Ordinance, or in a sense of its binding character. In his opinion it is a compact of perpetual obligation:—

“I know not that history records a sublimer act than this. The United American States, having just brought their perilous struggle for freedom and independence to a successful issue, proceeded to declare the terms and conditions on which their vacant territory might be settled and organized into States; and these terms were, not tribute, not render of service, not subordination of any kind, butthe perpetual maintenance of the genuine principles of American Liberty, declared to be incompatible with Slavery; and that these principles might be inviolably maintained, they were madethe articles of a solemn covenantbetween the original States, then the proprietors of the territory and responsible for its future destiny, and the people and the States who were to occupy it. Every settler within the territory, by the very act of settlement, became a party to thiscompact, bound by its perpetual obligations, and entitled to the full benefit of its excellent provisions for himself and his posterity. No subsequent act of the original States could affect it, without his consent.No act of his, nor of the people of the territory, nor of the States established within it, could affect it, without the consent of the original States.”[221]

According to these words, which I am sure would not be disowned by the present Chief Justice of the United States, the Ordinance is a sublime act, having for its object nothing less thanthe perpetual maintenance of the genuine principles of American Liberty. In form it is a compact, unalterable except by the consent of the parties, and thereforeforever.

If anything in our history is settled by original authority, supported by tradition and time, it is the binding character of the Ordinance for the Government of the Northwest Territory. Nobody presumed to call it in question, until at last Slavery flung down its challenge to everything that was settled for Freedom. The great Ordinance, with its prohibition of Slavery, was not left unassailed.

All this makes a strange, eventful passage of history. The enlightened civilization of the age was beginning to be felt against Slavery, when its representatives turned madly round to confront the angel of light. The madness showed itself by degrees. Point by point it made itself manifest in Congress. The Slave-Masters forgot morals, history, and the Constitution. Their manifold pretensions resolved themselves into three, in which the others were absorbed: first, that Slavery, instead of an evil to be removed, was a blessing to be preserved; secondly, that the right of petition could not be exercised against Slavery; thirdly, that, in all that concerns Slavery, State Rights were everything, while National Rights were nothing. These three pretensions entered into Congress, like so many devils, and possessed it. The first broke forth in eulogies of Slavery, and even in blandishments for the Slave-Trade. The second broke forth in the “Atherton Gag,” under which the honest, earnest petitions from the national heart against Slavery, even in the District of Columbia, were tabled without reference, and the great Right of Petition, promised by the Constitution, becamea dead letter. The third, beginning with the denial of the power of the Nation to affix upon new States the perpetual condition of Human Rights, broke forth in the denial of the power of the Nation over Slavery in the Territories or anywhere else, even within the national jurisdiction. These three pretensions all had a common origin, and one was as offensive and unreasonable as another. The praise of Slavery and the repudiation of the Right of Petition by the enraged Slave-Masters were not worse than the pretension of State Rights against the power of the Nation to prohibit Slavery in the national jurisdiction, or to affix righteous conditions upon new States.

The first two pretensions have disappeared. These two devils have been cast out. Nobody dares to praise Slavery; nobody dares to deny the Right of Petition. The third pretension has disappeared only so far as it denied the power of the Nation over Slavery in the Territories; and we are still doomed to hear, in the name of State Rights, the old cry against conditions upon new States. This devil is not yet entirely cast out. Pardon me, if I insist upon putting the national rights over the Territories and the national rights over new States before their admission in the same category. These rights not only go together, but they are one and the same. They are not merely companion and cognate, but they are identical. The one is necessarily involved in the other. Prohibition in the Territories is prolonged in conditions upon new States. The Ordinance of 1787, which is the great example, asserts theperpetuityof all its prohibitions; and this is the rule alike of law and statesmanship. Vain were its prohibitions, if they fell dead in presence of StateRights. The pretension is too irrational. The Missouri Act takes up the rule asserted in the Ordinance, and declares that in certain Territories Slavery shall be prohibitedforever. A territorial existence terminating in State Rights is a short-livedforever. Only by recognizing the power of the Nation over the States formed out of the Territory can thisforeverhave a meaning above the prattle of childhood or the vaunt of Bombastes.

The whole pretension against the proposed condition is in the name of State Rights; but it cannot be doubted that it may be traced directly to Slavery. Shall the pretension be allowed to prevail, now that Slavery has disappeared? The principal has fallen; why preserve the incident? The wrong guarded by this pretension has yielded; why should not the pretension yield also? Asserting, as I now do, the validity and necessity of the proposed condition, I would not seem indifferent to the rights of the States in those proper spheres appointed for them. Unquestionably States have rights under the Constitution, which we are bound to respect,—nay, more, which are a source of strength and advantage. It is through the States that the people everywhere govern themselves, and our Nation is saved from a central domination. Here is the appointed function of the States. They supply the machinery of local self-government for the convenience of life, while they ward off the attempts of an absorbing imperialism.But there can be no State Rights against Human Rights.Because a State, constituting part of a Nation dedicated to Human Rights, may govern itself and supply the machinery of local self-government,it does not follow thatsuch a State may deny Human Rights within its borders. State Rights, when properly understood, are entirely consistent with the maintenance of Human Rights by the Nation. The State is not humbled, when it receives the mandate of the Nation to do no wrong; nor can the Nation err, when it asserts everywhere within its borders the imperialism of Human Rights. Against this righteous supremacy all pretensions of States must disappear, as darkness before the King of Day.

The song of State Rights has for its constant refrain the assertedEquality of the States. Is it not strange that words so constantly employed as a cover for pretensions against Human Rights cannot be found in the Constitution? It is true, that, by the Laws of Nations, all sovereign States, great or small, are equal; but this principle has been extended without authority to States created by the Nation and made a part of itself. There is but one active provision in the Constitution which treats the States as equal, and this provision shows how this very Equality may be waived. Every State, large or small, has two Senators, and the Constitution places this Equality of States under its safeguard by providing that “no State,without its consent, shall be deprived of itsequal suffragein the Senate.” But this very text contains what lawyers might call a “negative pregnant,” being a negation of the right to change this rule, with an affirmation that it may be changed. The State,with its consent, may be deprived of its equal suffrage in the Senate. And this is the whole testimony of the Constitution to that Equality of States which is now asserted in derogation of all compacts or conditions. It is startling to find how constantly the obvious conclusions from the text of the Constitution have been overlooked.Even in the contemplation of the Constitution itself, a State may waive its equal suffrage in the Senate, so as to be represented by a single Senator only. Of course, all this must depend on its own consent, in concurrence with the Nation. Nothing is said of the manner in which this consent may be given by the State or accepted by the Nation. But if this important limitation can in any way be made the subject of agreement or compact, pray, Sir, where will you stop? What other power or prerogative of the State may not be limited also, especially where there is nothing in the Constitution against any such limitation? All this I adduce simply by way of illustration. There is no question now of any limitation, in the just sense of this term. A condition in favor of Human Rights cannot be a limitation on a State or on a citizen.

If we look further, and see how the Senatorial equality of States obtained recognition in the Constitution, we shall find new occasion to admire that facility which has accorded to this concession so powerful an influence; and here the record is explicit. The National Convention had hardly assembled, when the small States came forward with their pretensions. Not content with suffrage in the Senate, they insisted upon equal suffrage in the House of Representatives. They had in their favor the rule of the Continental Congress, and also of the Confederation, under which each State enjoyed one vote. Assuming to be independent sovereignties, they had likewise in their favor the rule of International Law. Against these pretensions the large States pleaded the simple rule of justice; and here the best minds concurred. On this head the debates of the Convention are interesting. At an early day we find Mr. Madison moving“that the equality of suffrage established by the Articles of Confederation ought not to prevail in theNationalLegislature.”[222]This proposition, so consistent with reason, was seconded by Gouverneur Morris, and, according to the report, “being generally relished,” was about being adopted, when Delaware, by one of her voices on the floor, protested, saying, that, in case it were adopted, “it might become the duty of her deputies to retire from the Convention.”[223]Such was the earliest cry of Secession. Gouverneur Morris, while observing that the valuable assistance of those members could not be lost without real concern, gave his testimony, that “the change proposed was so fundamental an article in aNationalGovernment that it could not be dispensed with.”[224]Mr. Madison followed, saying, very justly, that, “whatever reason might have existed for the equality of suffrage when the Union was a Federal oneamong sovereign States, it must cease when aNationalgovernment should be put into the place.”[225]Franklin, in similar spirit, reminded the Convention that the equal suffrage of the States “was submitted to originally by Congress under a conviction of its impropriety, inequality, and injustice.”[226]This is strong language from the wise old man, but very true. Elbridge Gerry, after depicting the States as “intoxicated with the idea of their sovereignty,” said that “the injustice of allowing each State an equal vote was long insisted on. He voted for it; but it was against his judgment, and under the pressure of public danger and the obstinacy of the lesser States.”[227]Against these overwhelming words of Madison, Morris,Franklin, and Gerry, the delegates from Delaware pleaded nothing more than that, without an equal suffrage, “Delaware would have about one ninetieth for its share in the general councils, whilst Pennsylvania and Virginia would possess one third of the whole”;[228]and New Jersey, by her delegates, pleaded also “that it would not be safe for Delaware to allow Virginia sixteen times as many votes” as herself.[229]On the part of the small States, the effort was for power disproportioned to size. On the part of the large States there was a protest against the injustice and inequality of these pretensions, especially in a government national in its character. The question was settled by the great compromise of the Constitution, according to which representation in the House of Representatives was proportioned to population, while each State was entitled to an equal suffrage in the Senate. To this extent the small States prevailed, and the Senate ever since has testified to the equality of States; or rather, according to the language of the “Federalist” on this very point, it has been “a palladium to the residuary sovereignty of the States.”[230]Thus, by the pertinacity of the small States, was this concession extorted from the Convention, in defiance of every argument of justice and equity, and contrary to the judgment of the best minds; and now it is exalted into a universal rule of Constitutional Law, before which justice and equity must hide their faces.

This protracted and recurring conflict in the Convention is compendiously set forth by our great authority, Judge Story, when he says:—

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