Charles Sumner: his complete works, volume 11 (of 20)
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Title: Charles Sumner: his complete works, volume 11 (of 20)
Author: Charles Sumner
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[Illustration: F. T. Stuart, Boston: WENDELL PHILLIPS]
Statesman Edition VOL. XI
CHARLES SUMNER
HIS COMPLETE WORKS
With Introduction by Hon. George Frisbie Hoar
[Illustration]
Boston
Lee and Shepard
MCM
Copyright, 1873 and 1874,
By
Charles Sumner.
Copyright, 1900,
By
Lee and Shepard.
Statesman Edition.
Limited to One Thousand Copies.
of Which This Is
No. 565
Norwood Press:
Norwood, Mass., U.S.A.
CONTENTS OF VOLUME XI.
PAGE
EXCLUSION OF WITNESSES ON ACCOUNT OF COLOR. Report in the
Senate, of the Committee on Slavery and Freedmen, February 29,
1864 1
THE MISSION TO BELGIUM. Speech in the Senate, on an Amendment
to the Consular and Diplomatic Appropriation Bill, March 15,
1864 43
CONSULAR PUPILS. Speech in the Senate, on an Amendment to the
Consular and Diplomatic Appropriation Bill, March 15, 1864 49
THE LATE HON. OWEN LOVEJOY, OF THE HOUSE OF REPRESENTATIVES.
Speech in the Senate, on the Resolutions upon his Death, March
29, 1864 54
COLORED SUFFRAGE IN THE TERRITORY OF MONTANA. Speeches in the
Senate, on an Amendment to the Bill for a Temporary Government
of that Territory, March 31 and May 19, 1864 62
CLAIMS ON FRANCE FOR SPOLIATIONS OF AMERICAN COMMERCE PRIOR
TO JULY 31, 1801. Report in the Senate, of the Committee on
Foreign Relations, April 4, 1864 70
NO PROPERTY IN MAN: UNIVERSAL EMANCIPATION WITHOUT
COMPENSATION. Speech in the Senate, on the Constitutional
Amendment abolishing Slavery throughout the United States,
April 8, 1864 173
CASTE AND PREJUDICE OF COLOR. Letter to the Young Men’s
Association of Albany, April 16, 1864 228
FINAL REPEAL OF ALL FUGITIVE SLAVE ACTS. Speech in the Senate,
on a Bill for this Purpose, April 19, 1864 229
THE NATIONAL BANKS AND THE CURRENCY. Speeches in the Senate, on
Amendments to the Bill providing a National Currency, April 27
and May 5, 1864 245
BRANCH MINTS AND COINAGE. Speech in the Senate, on the
Proposition to create a Branch Mint in Oregon, April 29, 1864 263
REFORM IN THE CIVIL SERVICE. Bill in the Senate, April 30, 1864 278
COLORED SUFFRAGE IN WASHINGTON. Remarks in the Senate, on Bills
to amend the City Charter, May 12, 26, 27, 28, 1864 284
VOTE OF BOTH HOUSES OF CONGRESS NECESSARY TO READMISSION OF
REBEL STATES. Resolution in the Senate, May 27, 1864 296
NO TAX ON BOOKS. Remarks in the Senate, on Amendment of the
Internal Revenue Bill, June 2 and 6, 1864 297
CREATION OF THE FREEDMEN’S BUREAU: A BRIDGE FROM SLAVERY TO
FREEDOM. Speeches in the Senate, on Bills and Conference
Reports creating a Bureau of Freedmen, June 8, 14, 15, 1864,
and February 13, 21, 22, 1865 301
MAKE HASTE SLOWLY: IRREVERSIBLE GUARANTIES. Speech in the
Senate, on the Recognition of Arkansas, June 13, 1864 351
MEANS FOR THE WAR THE TRUE OBJECT OF THE TARIFF. Remarks in the
Senate, on an Amendment to the Tariff Bill, June 16, 1864 376
NO TAX ON EDUCATION. Remarks in the Senate, on a Proposed Duty
on Philosophical Instruments for Colleges, June 17, 1864 378
ABOLITION OF THE COASTWISE SLAVE-TRADE. Speeches in the Senate,
on an Amendment to the Civil Appropriation Bill, June 24 and
25, 1864 380
OPENING OF THE UNITED STATES COURTS TO COLORED WITNESSES.
Speech in the Senate, on an Amendment to the Civil
Appropriation Bill, June 25, 1864 389
RECONSTRUCTION, AND ADOPTION OF PROCLAMATION OF EMANCIPATION BY
ACT OF CONGRESS. Remarks in the Senate, July 1, 1864 397
NATIONAL ACADEMY OF LITERATURE AND ART; ALSO OF MORAL AND
POLITICAL SCIENCES. Remarks in the Senate, on a Bill creating
these Two Academies, July 2, 1864 401
NO FINAL ADJOURNMENT OF CONGRESS WITHOUT INCREASED TAXATION.
Speech in the Senate, on the Resolution of Final Adjournment,
July 2, 1864 405
REJOICING IN THE DECLINE OF THE REBELLION. Remarks at a Public
Meeting in Faneuil Hall, September 6, 1864 414
REPUBLICAN PARTY AND DEMOCRATIC PARTY. Speech at a Public
Meeting at Faneuil Hall, to ratify the Republican Nominations
for President and Vice-President, September 28, 1864 418
SLAVERY AND THE REBELLION ONE AND INSEPARABLE: ISSUES OF THE
PRESIDENTIAL ELECTION. Speech before the New York Young Men’s
Republican Union, at Cooper Institute, November 5, 1864 433
EXCLUSION OF WITNESSES ON ACCOUNT OF COLOR.
REPORT, IN THE SENATE, OF THE COMMITTEE ON SLAVERY AND FREEDMEN,
FEBRUARY 29, 1864.
February 8, 1864, on the day of introducing his Amendment of
the Constitution, declaring that “all persons are equal before
the law,” Mr. Sumner asked, and by unanimous consent obtained,
leave to bring in a bill to secure equality before the law in
the courts of the United States, which was read the first and
second times by unanimous consent, and, on his motion, referred
to the Committee on Slavery and Freedmen. This was in harmony
with other efforts on an earlier day.[1] February 29th, he
reported the bill to the Senate without amendment, accompanied
by the following report, of which three thousand extra copies
were ordered to be printed for the use of the Senate. The
success of this measure appears at a later date.[2]
The Committee on Slavery and the Treatment of Freedmen, to whom
was referred Senate Bill (No. 99) entitled “A Bill to secure
equality before the law in the courts of the United States,”
have had the same under consideration, and ask leave to report.
Before making a change in our laws, it is important to consider the
nature and extent of what is proposed; especially is this the case, if
the change will be far-reaching in influence. Therefore the Committee
have thought best, in proposing to prohibit all exclusion of colored
testimony in the courts of the United States, to exhibit with some
particularity the considerations bearing on the subject.
EXCLUSION OF COLORED TESTIMONY RECOGNIZED BY CONGRESS.
Congress has never, in formal words, declared that witnesses in the
courts of the United States shall be incompetent to testify on account
of color. The abuse has arisen indirectly. But it is none the less
fastened upon the national jurisprudence. By Act of July 16, 1862, it
was provided “that the laws of the State in which the court shall be
held shall be the rules of decision as to the competency of witnesses
in the courts of the United States, in trials at Common Law, in Equity,
and Admiralty.”[3] And this rule, thus authoritatively declared, had
been practically recognized by the courts of the United States from
the beginning of the Government. It appears from the Judiciary Act
of 1789, under which the national courts were organized, that jurors
in these courts “shall have the same qualifications as are requisite
for jurors by the laws of the State of which they are citizens”; and
still further, “that the laws of the several States, except where
the Constitution, treaties, or statutes of the United States shall
otherwise require or provide, shall be regarded as rules of decision
in trials at Common Law in the courts of the United States, in cases
where they apply.”[4] Under these injunctions it was very easy, if not
natural, for the national courts to adopt the law of evidence in the
States where they were respectively held; and thus the incapacity of
colored testimony in those States where it prevailed became a rule of
evidence in the national tribunals.
It is plain that such a system made the administration of justice
differ in different States. The same statute might be successfully
administered in a State where there was no exclusion of colored
testimony, and miserably fail in another State where such exclusion
prevailed; and the same judge might be called in one court to admit the
testimony, and in another court to reject it. But the least objection
to this system is its want of uniformity. In lending the sanction of
the United States, even indirectly, to an exclusion founded on color,
all the people have been made parties to injustice.
To appreciate the true character of this proscription, we must repair
to the Slave States, where it is declared, and consider it in the
very language, legislative and judicial, by which it is maintained,
not neglecting the eccentricities of judicial opinion by which it has
been illustrated. From the statement of the rule its consequences will
become apparent. It may be proper afterwards to glance at the associate
examples of history, and also to endeavor to comprehend the reasons on
which the proscription has been vindicated.
EXCLUSION OF COLORED TESTIMONY IN THE SLAVE STATES.
The Committee begin with the statutes of the States where this
proscription prevails. Each State will be considered by itself.
(1.) In Delaware the rule assumes its mildest form, yet even there it
is indefensible. It has been expressed by Chief Justice Bayard, who, in
an opinion of the court, said: “On the introduction of Negro Slavery
into this country, it became a settled rule of law that slaves should
not be suffered to give evidence in any matter, civil or criminal,
affecting the rights of a white man.”[5] In this spirit the Revised
Code of Delaware has provided that “to give evidence against any white
person” is one of the “rights of a freeman.”[6] But the rule is thus
applied: “In criminal prosecutions, a free negro, or free mulatto, if
otherwise competent, may testify, if it shall appear to the court that
no competent white witness was present at the time the fact charged
is alleged to have been committed, or that a white witness, being so
present, has since died, or is absent from the State, and cannot be
produced: _Provided_, that no free negro or free mulatto shall be
admitted as a witness to charge a white man with being the father of
a bastard child.”[7] With this exception, the free negro or mulatto
is disqualified as a witness against a white person.[8] But colored
testimony is admissible in a case between colored persons, or against a
colored person where the other party is white.[9]
The subtilties in the application of this rule appear in a decided
case, where one of three accomplices was indicted for kidnapping a
colored boy. The latter was opposed as a witness, on the ground that
a competent white witness, an accomplice who had not been indicted,
might be produced. But the court, considering that the statute was
originally enacted to remedy injustice to free persons of color,
construed it liberally, and admitted the testimony of the colored boy,
on the ground that the commission of an offence by two or more persons
ought not to render a witness incompetent, who would be competent,
if the offence had been committed by only one person. It was further
said, that the statute, when it speaks of a competent white witness,
means not merely his competency in the common sense of the term,
but the sufficiency of his evidence under ordinary circumstances
to produce conviction,--although a jury was directed to acquit the
prisoner, unless part of the accomplice’s testimony was confirmed by
unimpeachable evidence.[10] In another case, where two white witnesses,
not accomplices, were present at an assault, the court at first
excluded the testimony of the colored person; but when it afterwards
appeared that one of them was drunk and the other did not see the whole
transaction, although both knew that a blow was struck, the testimony
of the colored person was admitted.[11]
Still further, it has been declared in Delaware, that, on indictment
of a white man for kidnapping a free colored person, the latter is not
competent to prove his freedom.[12] So, also, in an action against
a stage-coach proprietor for aiding in the escape of a slave, the
admission of the latter that he is slave of the plaintiff cannot be
received.[13] But a free colored person may make oath to his book
of original entries, and thus make it evidence even against a white
person, on the declared ground that “it would be idle [for the law] to
recognize in persons of color the right to hold property, and to obtain
redress in law and equity for injuries to person or property, if the
means of this redress be denied them.”[14]
Prior to the statute originally passed in 1799, where a white person
committed an assault on a colored woman, and there was no third person
present, the latter was held as a witness;[15] but where several white
persons were present, the colored person was held incompetent.[16]
(2.) In Maryland, the Act of 1717, Ch. 13, § 2, provides that “no negro
or mulatto slave, free negro, or mulatto born of a white woman during
his time of servitude by law, or any Indian slave, or free Indian
natives of this or the neighboring provinces, be admitted and received
as good and valid evidence in law, in any matter or thing whatsoever
depending before any court of record, or before any magistrate within
this province, wherein any Christian white person is concerned.” Yet,
nevertheless, according to this same Act, § 3, where other sufficient
evidence is wanting against any negro, in such case the testimony of
any negro may be heard and received in evidence, according to the
discretion of the several courts of record or magistrate before whom
such matter or thing against such negro shall depend, provided such
testimony do not extend to depriving them of life or member.
The same system is pursued in the later Act of 1796, Ch. 67, § 5,
which provides that manumitted slaves shall not be allowed “to give
evidence against any white person,” nor be received “as competent
evidence to manumit any slave petitioning for freedom.” But by Act of
1808, Ch. 81, § 1, it is provided, that, in all criminal prosecutions
against any negro or mulatto, slave or free, the testimony of any negro
or mulatto, slave or free, “may be received in evidence for or against
them, any law now existing to the contrary notwithstanding.”
The original Act of 1717 does not in terms extend to free mulattoes,
and the Act of 1796 does not extend to the issue of manumitted slaves.
But where “a free-born white Christian man” was convicted of felony
on the testimony of a mulatto born of a manumitted negro, there was
among the judges in the Court of Appeals such diversity of opinion on
the legality of the testimony that no decision was ever given.[17]
In another case it was decided, that, where both parties are “free
white Christian persons,” a free colored person is incompetent,[18]
although a mulatto descended in the female line from a white woman is
competent.[19]
(3.) In Virginia, the Code declares positively that “a negro or
Indian shall be a competent witness in a case of the Commonwealth
for or against a negro or Indian, or in a civil case to which only
negroes or Indians are parties, _but not in any other case_.”[20] The
decisions of the courts illustrate this proscription. Thus, it has
been adjudged that a free colored person cannot testify for a white
person, even against a colored person.[21] In another case a question
was incidentally raised on the competency of a colored convict as a
witness against another convict, with regard to an offence committed
in the penitentiary, and it was suggested that convicts generally
might be witnesses against each other.[22] This question, however,
was subsequently disposed of by a provision declaring, that, on the
prosecution of a convict, “all other convicts in the penitentiary shall
be competent witnesses for or against the accused, _except that negroes
shall not be allowed as witnesses against a white person_.”[23] They
may, however, testify in his favor.
(4.) In Kentucky, the Revised Statutes provide that “a slave, negro,
or Indian shall be a competent witness in a case of the Commonwealth
for or against a slave, negro, or Indian, or in a civil case to which
only negroes or Indians are parties, _but in no other case_. This
shall not be construed to exclude an Indian in other cases, who speaks
the English language and understands the nature and obligation of an
oath.”[24] Under this provision, as under that of Virginia, it has been
decided that a free colored person cannot be a witness for a white
person against a colored person.[25]
(5.) In North Carolina, the Revised Statutes provide that “all
negroes, Indians, mulattoes, and all persons of mixed blood descended
from negro and Indian ancestors to the fourth generation inclusive,
(though one ancestor of each generation may have been a white person,)
whether bond or free, shall be deemed and taken to be _incapable in
law to be witnesses in any case whatsoever_, except against each
other.”[26] Under this statute they cannot testify for each other in
a criminal case. But the decisions furnish curious illustrations.
Thus, when a colored person was convicted on colored testimony as
a principal felon, it was subsequently held, on trial of the white
accessory, that the record of the conviction was only _primâ facie_
evidence of guilt.[27] In another case it was held that a free colored
woman could not make affidavit charging a white man as father of her
illegitimate child,[28] although the contrary has been decided in
Kentucky, on the assumption that the act is merely preliminary to the
real controversy.[29]
(6.) In Tennessee, the Act of 1794, Ch. 1, § 32, provides that “all
negroes, Indians, mulattoes, and all persons of mixed blood descended
from negro and Indian ancestors to the third generation inclusive,
(though one ancestor of each generation may have been a white person,)
whether bond or free, shall be taken and deemed to be incapable in law
to be witnesses in any case whatever, _except against each other_:
_Provided_, That no person of mixed blood in any degree whatsoever, who
has been liberated within twelve months previously, shall be admitted
as a witness against a white person.” Under this Act, evidently
borrowed from the earlier statute of North Carolina, it was decided
that a colored person could not be a witness _for_ another colored
person. The judge who pronounced the opinion of the court seems to
confess the harshness of the rule, when he says: “The cases under this
Act in which these disqualified persons can be witnesses for each
other are when, plaintiff and defendant both being men of color, the
witnesses may at the same time be said to be reciprocally witnesses
against each of the parties. Perhaps the practice in Tennessee may have
been heretofore much more liberal than the statute. With that we have
nothing to do. As the law speaks, so it is our duty to speak.”[30] To
remedy this gross injustice, the Act of 1839, Ch. 7, § 1, was passed,
providing that such parties, “whether bond or free, shall be taken and
deemed to be good witnesses for each other in all cases, where, by the
provisions of said Act [viz. Act of 1794], they are made competent
witnesses against each other in criminal prosecutions.”[31]
(7.) In South Carolina there appears to have been no statute expressly
excluding the testimony of a slave against a white person, although the
early Act of 1740, § 39, necessarily implies this exclusion.[32] But
the rule was autochthonous. It sprang from the soil without statute.
Judge O’Neall, in an Essay on the Slave Laws, declares that “a slave
cannot testify, except as against another slave, free negro, mulatto,
or mestizo, and that without oath.”[33] But the exclusion did not bear
merely upon slaves. The judge announces that “free negroes, mulattoes,
and mestizoes cannot be witnesses or jurors in the superior courts;
… they cannot even be witnesses in inferior courts, with the single
exception of a magistrate’s and freeholder’s court, trying slaves or
free negroes, mulattoes or mestizoes, for criminal offences, and then
without oath.”[34] It appears that the Act of 1740, §§ 13, 14, on which
this custom was founded, applies only to free Indians and slaves;[35]
so that, strictly, free negroes, mulattoes, and mestizoes are not
despoiled of their right at Common Law to be heard under oath, but
the uniform practice under the Act, according to the judge, has been
otherwise.[36] On another occasion, another judge of South Carolina
says: “There is no instance in which a negro has been permitted to give
evidence, except in cases of absolute and indispensable necessity; nor,
indeed, has this court ever recognized the propriety of admitting them
in any case where the rights of white persons were concerned.”[37] In
still another case it was decided that a free person of color is not
competent in any case in a court of record, although both parties are
of the same class with himself.[38]
The rule thus rigorously declared has given rise to some strange
illustrations. Thus, for instance, in a suit to recover certain slaves
as part of a gang named, evidence was admitted that other negroes
of the defendant were accustomed to speak of those in question as
belonging to the gang.[39] In another case, where the book of a
tradesman was made up from the entries of a negro workman on a slate,
and notice was affixed to the door of the shop that all credits there
would be charged according to the negro’s entries, the Court doubted
whether the book could be evidence at all,--but if at all, only as
to the amount of work done, and then only against a person otherwise
proved to be a customer.[40]
(8.) In Georgia, as in South Carolina, there is no statute expressly
excluding the testimony of a slave where white persons are parties.
But they are excluded. The Act of 1770, declaring slaves to be
chattels personal to all intents and purposes whatsoever, provides
further, “that the evidence of any free Indians, mulattoes, mestizoes,
or negroes, or slaves, shall be allowed and admitted in all cases
whatsoever for or against another slave accused of any crime or offence
whatsoever, the weight of which evidence, being seriously considered
and compared with all other circumstances attending the case, shall
be left to the justices and jury.”[41] But where white persons are
parties, the rule of exclusion seems implied. And the same exclusion
seems also implied in the later Act of December 19, 1816, § 5, where
the rule, that “any witness shall be sworn who believes in God and a
future state of rewards and punishments,” is restricted to “the trial
of a slave or free person of color.”[42]
(9.) In Alabama the exclusion stands on positive statute. The Code
provides that “negroes, mulattoes, Indians, and all persons of mixed
blood descended from negro or Indian ancestors to the third generation
inclusive, though one ancestor of each generation may have been a white
person, whether bond or free, must not be witnesses in any cause, civil
or criminal, except for or against each other.”[43]
(10.) In Mississippi, the Act of June 28, 1822, is nearly the same in
language with the Code of Alabama on this subject.[44] But by Act of
January 19, 1830, free Indians are placed on the same footing as white
persons, and consequently can testify.[45]
(11.) In Florida the law is brief and explicit. The Act of November 21,
1828, § 16, provides that “any negro or mulatto, bond or free, shall
be a good witness in the pleas of the State for or against negroes
or mulattoes, bond or free, or in civil cases where free negroes or
mulattoes shall alone be parties, and in no other cases whatever.”[46]
(12.) In Missouri, the Revised Statutes provide that “no negro or
mulatto, bond or free, shall be a competent witness, except in pleas of
the State against a negro or mulatto, bond or free, or in civil cases
in which negroes or mulattoes alone are parties.”[47] But it has been
decided, that, if a free negro is party to the record, even though he
vouches in a white person to defend his title, colored testimony is
admissible.[48]
(13.) In Arkansas, the Revised Statutes provide that “no negro or
mulatto, bond or free, shall be a competent witness in any case, except
in cases in which all the parties are negroes or mulattoes, or in which
the State is plaintiff and a negro or mulatto, or negroes or mulattoes,
are defendants.”[49]
(14.) In Louisiana, the Revised Statutes provide that “no slave shall
be admitted as a witness, either in civil or criminal matters, for or
against a white person”; and also, “no slave shall be admitted as a
witness, either in civil or criminal matters, for or against a free
person of color, except in case such free individual be charged with
having raised, or attempted to raise, an insurrection among the slaves
of this State, or adhering to them by giving them aid or comfort in any
manner whatsoever.”[50]
The Civil Code declares “absolutely incapable of being witnesses to
testaments” “women of what age soever,” and “slaves.”[51] But the Civil
Code has provided expressly that “the circumstance of the witness
being a free colored person is not a sufficient cause to consider the
witness as incompetent, but may, according to circumstances, diminish
the extent of his credibility”;[52] so that a free colored person in
Louisiana may be a witness for or against a white person, subject to
inquiry as to the value of his testimony.
(15.) In Texas, the Act of May 13, 1846, provides that “all negroes
and Indians, and all persons of mixed blood descended from negro
ancestry to the third generation inclusive, though one ancestor of each
generation may have been a white person, shall be incapable of being a
witness in any case whatever, except for or against each other.”[53]
SUMMARY STATEMENT OF THE RULE.
From this review of the provisions in the different States it appears,
that, with slight differences, there is nevertheless a prevailing
resemblance, such as becomes the sisterhood of Slavery.
“Facies non omnibus una,
Nec diversa tamen; qualem decet esse sororum.”[54]
If the recital seems weary, it has not been superfluous, for it has
disclosed the disgusting terms of that proscription. It is difficult
to read the provisions in a single State without impatience; but the
recurrence of this injustice, expressed with such particularity in no
less than fifteen States,[55] makes impatience swell into indignation,
especially when it is considered that in every State this injustice is
adopted and enforced by the courts of the United States.
Slaves cannot testify in any of the States for or against a white
person in any case, either civil or criminal,--unless, perhaps, in
Maryland they may be allowed to testify against a white person who is
not a Christian.
Free persons of color are also, like slaves, incompetent to testify
for or against white persons, except in Delaware and Louisiana, where,
under circumstances already stated, they may testify, even though a
white person is a party.
It may be observed, also, that the statutes of Delaware, Virginia,
Kentucky, South Carolina, Georgia, Florida, Missouri, Arkansas,
Louisiana, and Texas do not expressly include Indian slaves; but
probably only a few slaves are of pure Indian blood. Those of mixed
Indian descent would undoubtedly be classed with mulattoes, and share
their incapacity.
ECCENTRICITIES OF JUDICIAL DECISIONS.
The rule is seen also in judicial decisions, which may be classed among
the eccentricities of jurisprudence. Subtilty is a common attribute of
courts, but in these cases subtilty at times becomes fantastic. Reading
them, we may well confess that truth is stranger than fiction.
Thus, although slaves are not permitted to testify, their conversation
or declarations may, under certain circumstances, be admitted in
evidence. For instance, according to a decision in Missouri, if a
white person converses with a slave, the conversation, being otherwise
admissible, may be proved by any other white person who heard it. In
this case, Judge Scott said: “That negroes cannot testify against white
persons is clear; but this rule cannot be carried so far as to exclude
the conversation of a negro with a white person, when the conversation
on the part of the negro is merely given in evidence as an inducement
and in illustration of what was said by the white person. If the
conversation of the negro had been proved by herself, then it would
clearly have been illegal. Here the State proved by competent witnesses
that certain remarks were made to the plaintiff in error in order to
show what her reply was. It is a matter of indifference by whom they
were made. All that was required was to prove by competent evidence
that they were made. That they were made is a fact which may be proved
like any other fact in the cause.”[56]
On the same principle, it has been decided that any remarks by a slave
to a white person, calling for some reply on the part of the latter,
may be proved by the testimony of white persons, in order to show the
nature of that reply, or that none was made. The question arose on an
indictment for enticing a slave, when Judge Goldthwaite said: “The
question which the Court is called upon to determine is simply whether
the admission of a white man to the truth of any statement made by a
slave in his presence and hearing can be inferred from his silence. The
rule in relation to evidence of this character, so far as we are able
to deduce it from adjudged cases and the best elementary writers, is,
that the statement must be heard and understood by the party affected
by it, that the truth of the facts embraced in it must be within his
knowledge, and that the statement must be made under such circumstances
and by such persons as naturally to call for a reply. To reject the
evidence in the case under consideration, solely on the ground that
the party making the declaration was a slave, would be in effect to
decide that under no conceivable circumstances could a statement
made by a slave call for a response from a white man,--a proposition
in direct opposition to our daily observation and experience. That
the declaration was made by a person whose condition rendered him
incompetent as a witness does not in the slightest degree affect the
principle on which evidence of this character rests. If the declaration
was made by a slave, and the party affected by it had made by his
reply a direct admission of its truth, there could be no doubt of the
admissibility of the statement and reply; and in cases of implied
admissions, the admission, instead of being made by language, is made
by the silence of the party.”[57]
There seems no end to the illustrations of this exclusion; as, for
instance, when a colored woman acted as interpreter between a testator
and the person who drafted the will. In this case, Judge Lumpkin said:
“We hold, that, if a negro interpreter, incapable by law of being
sworn, is the _only_ channel of communication between the testator and
writer of the will, and there be no other evidence of the testator’s
knowledge of its contents or his assent thereto than that which is
derived through this medium, the will cannot be executed. But if the
will be written in the presence of the testator, and, in a language
which he understands, it is read over to him, and his dictation
and approval of the instrument are interpreted by a negro in his
hearing, and in the hearing of others interested in its contents, and
he signifies no dissent thereto by signs or otherwise, but, on the
contrary, is understood to express himself satisfied, the will may be
established, especially if it appears to have been made in conformity
to the previously declared intentions of the testator as to the
disposition of his property.”[58]
It has been decided that the incapacity of a free colored person will
not prevent him, even in a proceeding against a white person, from
making an affidavit required to obtain a continuance, a new trial,
absent testimony, or bail, or from swearing to a plea of _non est
factum_. He may also bind a white person to keep the peace, or make
affidavit for a writ of _Habeas Corpus_; and generally he may make such
affidavits as may be necessary to commence a suit, or to procure such
orders or steps to be taken therein as may be required to bring on a
trial.[59] Without this capacity, he would, according to Chief Justice
Robertson, of Kentucky, “be virtually disfranchised.” But the Chief
Justice adds, that, when he is swearing to facts against a white man,
to compel him to keep the peace, “he is not a witness, but a party
swearing to what any other party may.”[60] And thus his incapacity as
witness is still recognized.
In another class of cases, where it became necessary to show the
mental condition or bodily health of the slave, his declarations have
been held to be admissible, even in a suit against a white person; but
they must be proved by white testimony. Thus, in an action for breach
of covenant in not teaching a slave bound apprentice to the business
of coach-making, the defendant having offered to prove, that, when
he wished to instruct the slave, and threatened to punish him, if he
did not apply himself, the latter, as soon as the defendant was out
of the way, would declare “that he did [not] care about learning the
trade, it was no profit to him, and if he could avoid the lash, it
was all he cared for,”--it was held by that prominent magistrate, Mr.
Justice Gaston, of North Carolina, that the declarations of the slave
were admissible, “because his disposition and temper are subjects of
investigation, and these cannot be ascertained but through the medium
of such external signs.”[61] In another case the same question occurred
under these circumstances: A slave was hired by his master to work
in certain gold mines; but, while busy at the bottom of a shaft one
hundred and eighty feet deep, he was struck on the head by an iron
drill weighing five pounds, which fell from the top, and his skull was
fractured so that trepanning became necessary, and “a large piece of
the skull-bone was cut out.” In an action by the master for damages,
Judge Pearson commented on this rule of evidence: “It being material to
ascertain the bodily condition of the slave, his complaints of headache
when exposed to the sun, and his declarations that he was unable to
work in the sun or to endure hard labor are admissible.… The statute
excluding the testimony of a slave or free person of color against a
white man has no application. The distinction between natural evidence
and personal evidence, or the testimony of witnesses, is clear and
palpable. The actions, looks, and barking of a dog are admissible as
natural evidence upon a question as to his madness. So the squealing
and grunts or other expression of pain made by a hog are admissible
upon a question as to the extent of an injury inflicted on him. This
can in no sense be called the testimony of the dog or the hog. The only
advantage of this natural evidence, when furnished by brutes, over the
same kind of evidence, when furnished by human beings, whether white or
black, is, that the latter, having intelligence, may possibly have a
motive for dissimulation, whereas brutes have not; but the character of
the evidence is the same, and the jury must pass upon its credit.”[62]
The same principle has been recognized in still another case, where
the slave died of mortification in the bowels, and no physician was
called in until the day before his death, although his illness had
continued for three weeks. On this occasion Judge Green said: “The
statement of a sick slave as to the seat of his pain, the nature,
symptoms, and effects of his malady, is as well calculated to
illustrate the character of his disease as would be the statements of
any other person. They are, therefore, equally admissible for that
purpose. But whether expressions indicating the nature and effects of
a disease uttered by the sick person are real or feigned is for the
jury to determine.”[63] And this principle has also been recognized in
suits for breach of covenant in the warranty of a slave, or for fraud
in the sale of a slave.[64] But if the master distinctly warrants the
slave sound, he is not allowed to relieve himself of liability for this
false warranty by declarations of the slave to the purchaser that he
is diseased. A curious case occurred in Kentucky, which illustrates
this principle, and also the brutality of Slavery. A poor slave woman
was very ill, when her master formed “the intention of selling her,
lest he should lose her value by death.” Notwithstanding her pitiable
condition, he succeeded in disposing of her for two hundred dollars,
one quarter in a note and the remainder in saddle-trees, on the
representation that she was “hearty and sound, and fit for business.”
Although the slave woman, before the sale, told the purchaser of her
sickness, the Court annulled the sale, and directed the note and the
price of the saddle-trees to be given up, saying: “The slave herself
told the purchaser of her sickness before the sale; and after the sale,
when informed by him that he had bought her, she stated she could not
be of any use to him, as she was near death. When it is recollected
that frequently, on such occasions, there is a strong indisposition in
such creatures to be sold, and that by stratagem, to avoid a sale, they
may frequently feign sickness, or magnify any particular complaint with
which they are affected, the purchaser might well disbelieve her story,
especially when the words of the master assured him to the contrary.
For his own statements the master is responsible, and ought not to be
permitted to release himself of responsibility for his own falsehoods
by showing that the slave at the time so far corrected him as to tell
the truth.”[65]
The principle underlying the admission of the declarations of a
slave is plainly, but brutally, expressed by Judge Pearson, of North
Carolina. We have already seen, that, according to this learned judge,
who was for the time the voice of the law, the declarations of the
slave are not to be regarded as his _testimony_, any more than the
barking of a dog or the grunting of a hog “can be called the testimony
of the dog or the hog.” The slave complains of his sickness in words,
the dog moans, the hog squeals; but the law regards these expressions
of suffering alike. They may be proved as facts by competent evidence;
but the slave himself cannot testify what his complaints were, any more
than the dog or the hog.[66]
Such are eccentricities of judicial opinion on this important
question. They are not to be regarded merely as curiosities, for they
are all adopted and enforced in the national courts; so that even the
most brutal language becomes not merely the voice of the law, but the
voice of the nation also.
CONSEQUENCES OF THIS EXCLUSION.
Thus do decisions of courts, as well as statutes, conspire to exhibit
this rule in revolting features. If we glance for one moment at its
consequences, there will be new occasion to condemn it.
Looking at it in a single aspect, consequences appear which baffle the
imagination to picture. Throughout the States where this exclusion
prevails, any white person may torture and maltreat a slave in any
conceivable manner and to any extent, or he may overwork and starve
him, or he may whip him to death, murder him in cold blood, or burn
him alive; and so long as he is the only white person present, the
laws afford him the most complete immunity from punishment, except
in Delaware and Louisiana, where also he is safe, if only slaves are
present. It is true that the same laws profess to punish the murder
of a slave as a capital offence, and also to punish severely any
mutilation or other cruel treatment of him. But such laws are nothing.
So long as the slave himself is not allowed to testify, so long the
laws will be justly obnoxious to the charge of actually authorizing a
white person to inflict any outrage upon him, even to the extent of
taking life with impunity. Every white person with only slaves about
him, or, it may be, with only colored persons, slave or free, has _a
letter of license_ to commit any outrage which passion or wickedness
may prompt.
The exposed condition of slaves, on account of incapacity to testify,
was recognized in the early legislation of South Carolina. The preamble
to Section 39 of the Act of 1740 begins as follows: “And whereas, by
reason of the extent and distance of plantations in this Province,
the inhabitants are far removed from each other, _and many cruelties
may be committed on slaves, because no white person may be present to
give evidence of the same_.”[67] Thus, even out of the mouth of South
Carolina, before this State had learned to sacrifice everything to
Slavery, we learn that “many cruelties may be committed on slaves”
under operation of this rule. But no such confession was needed. The
truth is apparent to the most superficial observer. Had South Carolina,
at that early day, followed the suggestion of her own statute, she
would have begun a career of civilization under which Slavery itself
must have disappeared.
The exposed condition of slaves on this account is curiously attested
by other statutes of the Slave States, showing that plantations far
removed from cities, and at considerable distance from each other, are
committed to the direction of _a single white overseer_, who, from
the circumstance that he is the only white person present, is placed
beyond all restraint or correction. Thus, in South Carolina,[68] in
Florida,[69] in Georgia,[70] and in Louisiana,[71] the statutes exact
the continued residence of _one white person_ on every plantation,
with a specified number of working slaves. These statutes had their
origin in no sentiment of justice or humanity, but, as appears in
early declarations, in a desire to prevent the harboring of fugitive
slaves, who might find asylum among those exclusively of their own
color. If, however, it was thought necessary for any purpose to require
by penalties the continued residence of _even one white person_ on a
slave plantation, it is reasonable to infer that there must be many
plantations where there is only one white person. And to one white
person thus situated, and thus removed from all check or observation,
the law commits the government and guardianship of slaves on a
plantation, and promises him in advance the most complete impunity for
all that he does, even to the extent of cold-blooded murder, provided
only that he is careful to let no white person see the deed.
This proscription is not confined to slaves. Free colored persons,
under operation of this rule, are exposed to the same fearful wrongs.
A white person may treat them as he treats a slave, and they are
absolutely without remedy. It would be difficult to point out any
law, the spawn of cruelty or tyranny, in ancient or modern times,
exceeding in atrocity that by which a free population is thus despoiled
of protection on account of color. It was one of the boasts of Magna
Charta that justice should be denied to no person,--“_Nulli negabimus
justitiam_”; but under this rule it is denied to a whole race.
Of course, the race, whether bond or free, which is thus despoiled,
suffers. But this is not all. Justice itself also suffers. Crime, even
against white persons in the presence of colored persons, must go
unpunished.
And yet this proscription is adopted and enforced in the courts of the
United States.
There are other aspects of this subject which invite attention.
History has her lessons. Reason also speaks with a voice that must be
heard. It becomes important, therefore, to consider this proscription,
first, in its origin and the examples of history, and, secondly, in the
grounds on which it is founded.
EXAMPLES OF HISTORY.
This proscription, or its equivalent, is traced to the earliest age. It
belongs to the Barbarism of Slavery. Even as applied to free colored
persons, it must be considered as a relic of Slavery not yet removed
out of sight.
The rule may also be treated as belonging to that system of evidence
which, in defiance of reason, undertook to declare in advance that
certain classes of witnesses were incompetent to testify,--or, in other
words, that the court and jury should not be permitted to hear what
they had to say on the issue. In the early Common Law numbers were
excluded who are now admitted to testify; and the Committee cannot err,
when they declare that the plain tendency of recent legislation, and
also of judicial decisions, in England and in the United States, has
been to limit the exclusion of witnesses, allowing the court and jury,
on hearing their testimony, to estimate its weight and value. The whole
system of exclusion was covered with ridicule by Jeremy Bentham,[72]
who exposed its irrational character. In our own country it has been
treated in a similar spirit, in a series of masterly essays on the
Rules of Evidence, by the present learned Chief Justice of Maine, Hon.
John Appleton.[73] Its origin may be traced to ignorance and prejudice.
There was a time, when, in Great Britain, at least on the borders of
England and Scotland, “an Englishman could not be a witness against a
Scot, nor a Scot against an Englishman, by reason of the enmity between
the two nations; … so that, if never so many Englishmen should with
their open eyes see a Scot commit murder, their testimony would signify
nothing, unless some Scot or other testified the same thing.”[74] But
their exclusion in this historic case was identical in principle and
consequence with that still receiving the sanction of Congress.
This whole body of cases has been despatched by Jeremy Bentham in these
words: “Exclusion put upon all persons of this or that particular
description _includes a license to commit_, in the presence of any
number of persons of that description, _all imaginable crimes_.”[75]
The Psalmist exclaims: “I said in my haste all men are liars.” But
the malediction of the Psalmist in his haste is gravely adopted in
this proscription, which undertakes to blast “all men” of a specified
description as “liars.” Assuming that all of a certain class or race
or color cannot be believed on oath, it practically says, that, though
present _in point of fact_ at any crime, they are absent _in point of
law_.
By the Mohammedan Law, no person could be convicted of adultery
without the testimony of _four male witnesses_,--a requirement which
was called by Gibbon “a law of domestic peace.”[76] The extravagance of
this requirement rendered it practically a law to prevent conviction,
not unlike the law excluding testimony. It is a disguised exclusion.
But of the two, the Mohammedan Law is the least irrational. At all
events, it does not assume the form of proscription.
The rule of exclusion, when founded on race or color, is something
more than a rule of evidence from which justice may suffer. It is a
proscription, which finds prototypes in other countries and times,
kindred in character to the persecution of the Moors in Spain, and
to that cruelty which for ages pursued the Jews everywhere, while it
reveals that insensibility to the claims of a common humanity which has
so slowly yielded to the demands of a just civilization. In France,
during the last century, even after politeness had begun to prevail,
it is recorded of a most intellectual lady, the commentator upon
Newton, Madame du Châtelet, that she did not hesitate to undress before
her male domestics, as it did not seem clear that such persons were
men.[77] But it is in the irreligious system of Caste, as established
in India, that we find the most perfect parallel. Indeed, the late
Alexander von Humboldt, in speaking of colored persons, has designated
them as a Caste;[78] and a political and juridical writer of France has
used the same term to denote not only the distinctions in India, but
those in our own country, which he characterizes as “humiliating and
brutal.”[79] But the Caste of India, by which the Brahmins and Sudras
have been kept apart, is already repudiated by Christian civilization
as “part and parcel of idolatry.” Bishop Heber, of Calcutta, says of
this injustice, it is “a system which tends more than anything else the
Devil has yet invented to destroy the feelings of general benevolence,
and to make nine tenths of mankind the hopeless slaves of the
remainder.”[80] But the language with which this accomplished bishop
condemns the heathen Caste of India is not inapplicable to that other
Caste in our own country, which, in one of its incidents, despoils the
colored person of his right to testify.
If we go back to the ancient Greeks, we find an interesting
distinction. A slave was not believed on oath; so that one is recorded
as exclaiming, in words which might be adopted in our day: “I know I
am a slave: I don’t know even what I do know.”[81] But, though not
believed on oath, his evidence was always taken with torture. On this
account his testimony appears to have been considered of more value
even than that of a freeman. Isæus, in arguing a case, said: “When
slaves and freemen are at hand, you do not make use of the testimony
of freemen; but, putting slaves to the torture, you thus endeavor to
find out the truth of what has been done.” Any person might offer his
own slave to be examined by torture, or demand the same thing of his
adversary, and the refusal of the latter was regarded as a strong
presumption against him.[82] Thus cruelly did this sharp people seek to
counteract the senseless rule of exclusion. Torture was recognized, but
justice was not absolutely sacrificed.
The Romans seem to have borrowed the practice from the Greeks, or
they were inspired to kindred cruelty. Not only slaves, but even free
persons of an inferior condition, were seldom examined except under
torture. Any person who wished the testimony of a slave might obtain
it on giving sufficient security to the master for full reparation
on account of damage from his torture. Mr. Jefferson states mildly
our own practice, in contrast with that of Rome, when he says: “With
the Romans, the regular method of taking the evidence of their slaves
was under torture; here it has been thought better never to resort to
their evidence.”[83] In the latter days of the Empire, a general rule
made the slave inadmissible as witness for or against his master or
his master’s children, except in cases of treason, where the danger
of the crime overruled ordinary considerations, and also in cases of
incest and adultery, for the good reason that _in a society where all
domestics were slaves any other evidence could hardly be procured_.[84]
But the latter reason might obviously exist in the case of any crime;
so that, on principle, when other proofs were wanting, resort might be
had to the testimony of slaves. Indeed, a learned commentator on the
Roman Law has distinctly said that this law did not admit slaves to be
witnesses, unless the cause was difficult, looking to the welfare of
the republic, _or other proofs were wanting_: “_Servos lex civilis non
patitur testes esse, … nisi causa sit ardua, ad rei publicæ spectans
utilitatem, aut aliæ desint probationes._”[85] It became customary,
in civil matters, to admit the testimony of slaves as to their own
acts, although affecting the interests of their masters; and after the
establishment of Christianity, when heresy took its place as a crime
to be dreaded as much as treason, the testimony of slaves was received
equally with regard to each.
The rule of exclusion during the Dark Ages naturally took its
character from the prevailing darkness. The Barbarians did not, in this
respect, soften the law of ancient Rome. Amidst the cares of empire
this task was attempted by Charlemagne; but how little he accomplished
may be seen in his Capitularies, where slaves are rejected as witnesses
against their masters, except in cases of treason, and even freedmen,
unless in the third generation, are not admitted to testify against
freemen.[86] And the same intolerance is attributed to the Canon Law:
“_Item placuit, ut omnes servi vel proprii liberti ad accusationem
non admittantur_.”[87] But it appears that at this time, among some
races, it was the prerogative of royal serfs, and of others not of
base condition, to have their testimony received against freemen,
especially in cases of childbirth, violence, or death by accident.[88]
And the influence of the clergy seems to have overruled this exclusion
in certain specified districts. Thus, in 1109, on the petition of the
ecclesiastics of Paris, Louis the Sixth conceded to the serfs of the
latter a perfect liberty of testifying and combating (_testificandi
et bellandi_) against freemen as well as slaves; and this important
concession was confirmed by the Pope, who declared, however, that there
ought to be a difference in the conditions governing a family of the
Church and the slaves of secular persons.[89] Although this concession
was made for the sake of the Church rather than its humble dependants,
it was an example by which the world became accustomed to receive the
testimony of slaves.
In England, under the Common Law, the rule of exclusion on account of
Slavery was never fully recognized. The villein seems to have been
admitted as a witness in all cases except against his lord. “I do not
know,” says Mr. Hallam, “that their testimony, except against their
lord, was ever refused in England.”[90] It was only in respect of
his lord that he was without rights. But he was sometimes received,
although the lord himself was a party;[91] and in criminal cases
generally it was no exception to a witness that he was a bondman.[92]
Such, even at the beginning, was the voice of the Common Law. But
with the disappearance of villenage all pretence of exclusion on this
account vanished in England, never to return.
The offensive rule seems to have found less acceptance in the
possessions of other countries than with us. It has been inferred,
after careful inquiry, that slaves in the Spanish and Portuguese
settlements are not always incompetent as witnesses, while the _Code
Noir_ of Louis the Fourteenth, amidst ungenerous prohibitions, allowed
their evidence to be heard, “as a suggestion, or unauthenticated
information, which might throw light on the evidence of other
witnesses,” and afterwards, by later edict, sanctioned the testimony
of slaves, “when white witnesses were wanting, except against their
masters.”[93] But the rule is the natural complement of Slavery; and it
cannot be disguised that it has prevailed, with corresponding degrees
of force, wherever Slavery has been recognized. Its prevalence with us
is only another illustration of the power of Slavery.
If you would find the country where slaves have been most completely
despoiled of the right of testimony, you will not go to Greece or
Rome, for in these classic lands the slaves were admitted to testify
in certain cases; nor will you linger even in the Dark Ages, for there
were then excepted cases; nor will you search English precedents, for
the villein was incompetent only against his lord, and not always
against him; nor will you look to the colonies of Spain, Portugal, or
France, for in all of these the cruel rule was mitigated; but you will
turn to those States of our Republic where the slave is not permitted
to testify against his master or any other white person, and where
even free colored persons, having no master, are smitten with the same
incapacity to testify against any white person.
GROUNDS FOR THIS INJUSTICE.
From examples of history the way is easy to an inquiry into the grounds
on which this proscription is founded.
The true reason may be traced to the unhappy prejudices engendered
by Slavery, and to the policy of sustaining this wrong. Indeed, it is
hardly less essential to Slavery than the lash itself. An early statute
of Virginia places the rule on the ground that none but Christians
should be witnesses, and even among these “Popish recusants convict”
were inadmissible.[94] But it is generally vindicated by dwelling on
_the degraded condition of the slave, and the interest he may have to
conceal or deny the truth_.[95] A careful examination will show that
this apology is baseless as Slavery itself.
Of course, if a witness is too degraded to feel the sanction of an
oath, his testimony should not be received. Such is the unquestionable
suggestion of reason; nor can it make any difference that the witness
is white or black. But the slave is not necessarily and universally so
degraded as to merit exclusion, nor is his interest to conceal or deny
the truth different materially from that of other persons,--although
it is undoubtedly true, that, under the instinct of self-defence, and
against the exactions of Slavery, he learns to deceive. But in every
State except South Carolina _the oath of the slave is received against
colored persons_, which could not be done, if he could not be trusted
under oath. A judge of South Carolina has vindicated the capacity of
the slave in this respect, and thus unintentionally repelled the rule
of exclusion. “Negroes, slaves or free,” says Judge O’Neall, “will
feel the sanction of an oath with as much force as any of the ignorant
classes of white people in a Christian country. They ought, too, to
be made to know, if they testify falsely, they are to be punished for
it by human laws. The course pursued on the trial of negroes, in the
abduction and obtaining testimony, leads to none of the certainties
of truth. Falsehood is often the result, and innocence is thus often
sacrificed on the shrine of prejudice.”[96] But this learned judge of
South Carolina is not alone in vindicating the propriety of examining
the slave on oath. Judge Clayton, of the High Court of Errors and
Appeals in Mississippi, in delivering the opinion of the Court, thus
expressed himself: “It is also objected, that there ought, in the case
of slaves, to be some evidence of a sense of religious accountability,
upon which the validity of all testimony rests, and that the same
presumption of such religious belief cannot be indulged in reference to
them as in regard to white persons. As to the latter, it is said the
presumption is in favor of their proper religious culture and belief in
revelation and a future state of rewards and punishments; as to slaves,
it is contended the presumption does not arise, because of a defect of
religious education. It is true, that, if the declarant had no sense
of future responsibility, his declarations would not be admissible.
But the absence of such belief must be shown. The simple elementary
truths of Christianity, the immortality of the soul and a future
accountability, are generally received and believed by this portion of
our population. From the pulpit many, perhaps all, who attain maturity,
hear these doctrines announced and enforced, and embrace them as
articles of faith.”[97]
But if slaves generally have a sufficient amount of religious belief
to supply the sanction of an oath, it is clear that they are not
so degraded as to justify their exclusion as sworn witnesses. And
the Slave States, while excluding them, have practically recognized
their fitness. Not only is the oath of a slave received in all the
Slave States except South Carolina, but he is liable to punishment
for perjury,[98] and sometimes the punishment inflicted is diabolic.
In Virginia,[99] and also in Maryland,[100] the punishment formerly
was “cropping.” In Florida, the statute appoints that the offender
“shall have his or her ears nailed to posts, and there to stand for
one hour, and, moreover, receive thirty-nine lashes on his or _her
bare back_.”[101] In Mississippi, if a colored person is found to have
given false testimony, he is “to have one ear nailed to the pillory,
and there to stand for the space of one hour, and then the said ear to
be cut off, and thereafter the other ear nailed in like manner, and
cut off at the expiration of one other hour; and, moreover, to receive
thirty-nine lashes on his or _her bare back_, well laid on, at the
public whipping-post, or such other punishment as the court shall think
proper, not extending to life or limb.”[102] But every recognition of
the oath of a slave on any occasion, and especially every punishment
of a slave for perjury, testifies to his capacity as a witness. The
barbarism of the punishment testifies also against Slavery. It is vain
to say that a slave is incompetent, when, in certain cases, he is
already accepted as witness, and visited with fiendish punishment, if
he violates his oath.
The absurdity of this pretension is illustrated by a provision in the
statutes of Kentucky, by which a slave in the penitentiary may be a
competent witness against a white convict.[103] Such was early the law
of Virginia, and even now he is competent for the white convict. Thus,
so long as a slave commits no crime, his oath is not received in court
to affect a white person even with the smallest pecuniary liability;
but let him be sent to the penitentiary as a convict for crime, and
forthwith his capacity as a witness is enlarged, and on his testimony a
white convict may be deprived of life! But, obviously, the commission
of a crime carrying with it the doom of the penitentiary must impair
rather than increase confidence in the veracity of the criminal. Such
is the absurd inconsistency in the application of this rule.
Although the rule may be properly traced to Slavery, of which it is
an important ally, yet, from considerations already presented, it
seems to follow that it is founded on a reason broader than Slavery,
suggested, however, by Slavery. According to the logic of these
considerations, the disqualification of the slave as a witness against
white persons is not founded on the fact that he is a slave, because
the disqualification, except in Delaware and Louisiana, attaches also
to free colored persons; nor is it founded on want of that religious
belief required in a sworn witness, nor on any actual disregard of his
testimony under oath, because the slave in certain cases is sworn,
and his testimony under oath is accepted in the administration of
justice, and he is punished for perjury; but it is simply, in the
last analysis, _an incapacity attached by law to persons of color_.
Indeed, the obvious inference from the remarks of Judge O’Neall[104]
is, that, in his opinion, it is not slavery, but color, which is
the ground of exclusion. But the Committee have already shown the
pernicious consequences of such proscription, and especially that the
disfranchisement of the African race operates as a liberty to all white
persons, not excepting, in most of the States, even white convicts, to
do as they please, and commit any crime in the Decalogue, “unwhipped
of justice,” if nobody but a colored person is present. It needs no
argument to establish the unreasonableness of a disqualification which,
according to the confession of its advocates, attaches to the shading
of the human skin, especially in view of the fearful cruelty that is
its natural consequence.
In Delaware and Louisiana the disqualification rests on the fact of
Slavery. In many other States the free colored persons are so few in
number that the fact of Slavery seems still to overshadow the whole
race. Assuming, then, that the disqualification is traced not merely
to the shading of the skin, but to the fact of Slavery, it is none the
less to be rejected, not only as part of Slavery, but as essentially
irrational and inhuman.
The slave feels the sanction of an oath hardly less than many white
persons of inferior condition. On grounds of reason, therefore, and
independently of prejudice, the two classes at the outset would be
entitled to an equal degree of confidence,--modified, of course, and
decreasing, as there was a manifest interest or temptation to testify
falsely. But the slave is exposed to such corrupting power less than
a white person. He can have no pecuniary interest, since he has no
right of property. And, except where his master is a party or otherwise
interested, he must be alike without hope of gain or fear of punishment
to make him swerve from the truth. Accordingly, in all cases where his
master stands indifferent, the reason for excluding the slave is not
so strong as for excluding white persons of inferior condition, since
the slave may feel the sanction of an oath as much as they, while he
is less exposed to any disturbing influence. Such, certainly, is the
conclusion justified by the facts.
The dependence of the slave upon his master must naturally subject him
peculiarly to his influence, whether from hope of reward or fear of
punishment; so that his testimony in favor of his master would always
be viewed with suspicion. If, contrary to this active interest, the
slave testifies _against_ his master, his testimony would seem to be
worthy of peculiar consideration. But even where he testifies _for_
his master, there can be no more reason for excluding his testimony
than for excluding that of a child for a father or a mother, or of
excluding that of a father or a mother for a child. Unquestionably, in
each of these cases the bias is stronger than any that can exist on the
part of a slave, as love is stronger than fear. Therefore there is no
valid reason why a slave should not be permitted to testify _for_ or
_against_ his master. The same considerations which determine the value
of other testimony will suffice with regard to him; and thus, in every
respect, the rule of exclusion becomes irrational and arbitrary.
But this rule, whether applicable to slaves or free colored persons,
is still more irrational and unwarranted when it is considered that
the testimony is submitted to the scrutiny of a jury of white persons,
under the watchful observation of a court of white persons likewise,
and that it can have no effect whatever except through assent of their
judgment. The motive which actuates the slave, whatever it may be,
whether revenge or interest or fear, must be open to discovery. It is
therefore preposterous to argue that any white person, at any time or
anywhere, especially in a Slave State, can be prejudiced by colored
testimony, or that he can be convicted by a white jury under the eye of
a white court, unless that testimony is strictly worthy of belief. The
rule of exclusion is not only an expression of tyranny and prejudice,
but an insult to the understanding, and even to common sense.
If this rule were only irrational and eccentric, it might be pardoned
to immeasurable madness, and handed over to the derision of mankind.
But even its absurdity disappears in its appalling injustice. Two
things are obvious to the most superficial observation: first, that
under its influence the slave is left absolutely without legal
protection of any kind, the victim of lawless outrage; and, secondly,
that even crimes against white persons may escape unpunished: so that
in these two important cases justice must fail. But this failure of
justice becomes intolerable, when it is considered that it is not from
accident or temporary weakness, but that it is absolutely organized by
law. Nor is it confined to slaves. It embraces in its ban free colored
persons also, without regard to intelligence, property, or relations in
life.
CONCLUSION.
Such is this proscription, as it appears (1.) in the various statutes
of the Slave States, (2.) in the eccentricities of judicial decisions,
(3.) in its consequences, (4.) in examples of history, and (5.) in
the grounds on which it is founded. Regarding it in either of these
aspects, it must be rejected. The statutes in which it is declared
and the judicial eccentricities by which it is illustrated belong to
the curiosities of an expiring barbarism. Its consequences shock the
conscience of the world. The examples of history testify against it.
The reason on which it is founded shows that it stands on nothing that
is reasonable.
It is for Congress to determine whether this proscription shall
continue in the courts of the United States,--or, in other words, if a
local rule, barbarous, irrational, and unjust, born of Slavery, shall
be allowed to exist yet longer under the national sanction.
THE MISSION TO BELGIUM.
SPEECH IN THE SENATE, ON AN AMENDMENT TO THE CONSULAR AND DIPLOMATIC
APPROPRIATION BILL, MARCH 15, 1864.
March 14th, the Senate having under consideration the bill
making appropriations for the consular and diplomatic service,
Mr. Sumner, in behalf of the Committee on Foreign Relations,
moved the following amendment:--
“That the President may, in his discretion, by and with
the advice and consent of the Senate, appoint an envoy
extraordinary and minister plenipotentiary to the kingdom
of Belgium, who shall receive no higher compensation than
is now allowed to a minister resident.”
The amendment was opposed by Mr. Fessenden, of Maine, to whom
Mr. Sumner replied.[105]
March 15th, the debate was continued, and Mr. Sumner spoke
several times. In reply to Mr. Davis, of Kentucky, he said:--
MR. PRESIDENT,--There seems a perpetual disposition in this debate
to change the issue. I stated that the issue was how we shall best
give efficiency to our representation in Europe. Now the Senator from
Kentucky says that the issue is how we shall give our minister at
Belgium an opportunity to get into a little better company. That is
his imagination. Surely it is not the way the Committee directed me to
state the case. It is not the way in which I have presented it at any
time in this discussion. I hope that Senators will not be diverted from
the real issue, which is simply, Will the public interests be promoted
by this change? The Committee answer in the affirmative, and in my
humble opinion the Committee is right.
MR. DAVIS. Will the Chairman specify in what respect the public
interest will be promoted, in what respect the efficiency of
our representative at the court of Brussels will be increased,
and in what respect the increase of his grade will render this
Government and its interests more acceptable to Leopold?
MR. SUMNER. In the same way, Sir, that the public interests are
promoted at London, and also at Paris, by a plenipotentiary instead of
a minister resident.
MR. DAVIS. According to that rule, we ought to have a
first-class minister at every court in Europe and at every
government in South America, and everywhere else where we send
diplomatic representatives.
MR. SUMNER. No,--the Senator will pardon me,--not at every court in
Europe, but only at those where we have considerable interests. It all
pivots upon that. What are our relations with different courts? With
considerable interests, we should be represented accordingly. With
inconsiderable interests only, there is no reason to raise the mission.
We have first-class missions, according to our scale of rank, at
London, Paris, Madrid, Turin, Vienna, Berlin, and St. Petersburg. And
why?
MR. DAVIS. Will the honorable Chairman tell me the relative
proportion between the commercial interests of the United
States and England, the United States and France, and the
United States and Belgium?
MR. SUMNER. There are interests of all kinds, commercial and
political, differing in different countries. I need not remind the
Senator that our interests with England and France are largely superior
to those with any other European power,--much above those with Belgium;
but if you ask me what other European power I should place next after
those two, I should hesitate, in the condition of our affairs at this
precise moment, to place any before Belgium.
MR. DAVIS. Would you not place Russia before Belgium?
MR. SUMNER. I would not exaggerate, but I am obliged to acknowledge,
in reply to the Senator, that I should hesitate at this moment to say
that even Russia was so situated as to make our minister there so
important to our present interests as our minister at Belgium. In one
word, our minister at Brussels has more to do than our minister at St.
Petersburg. Look I pray you, at the geographical position of Belgium,
its thronging, active population, its commerce, its manufactures. But
countries derive character and even power from their rulers, and this
is the happy advantage of Belgium, especially in her relations with
us. You all know that her sovereign is able to exercise a persuasive
influence over international affairs, entirely out of proportion to the
extent of territory he so wisely governs, and this influence has been
exerted at a critical moment in our favor.
I would not say a word in disparagement of any other power. But it
would be difficult, after England and France, to name any power which,
all things considered, furnishes at this moment such opportunities
of usefulness in the public service to any American plenipotentiary
as are afforded by Belgium. Would the Senator compare our interests
there with those in Prussia, one of the most respectable and highly
educated courts of the globe, or with Austria, great in military
power and physical resources? At Berlin and Vienna there is less for
our ministers to do, and less of opportunity, than at Brussels. The
geographical position of these capitals explains this difference, at
least in part.
Or, if you please, take the government of Spain, representing that
great Castilian monarchy on which it was said that the sun never set. A
Senator whispers that this was said some time ago. True; but you have
in Spain the old Castilian pride and faith born of that immense empire;
and yet our interests with Spain at this moment, or, in other words,
our opportunities in that kingdom, are not more important than in the
smaller kingdom of Belgium, which the sun covers in much less than a
single hour.
Then there is the new-born kingdom of Italy, where we have also a
plenipotentiary. Does any one suppose, that, if you put aside that
sympathy which every American feels for this interesting power, newly
dedicated to Liberty, our interests there at this moment are equal to
those with Belgium? Here again geography explains the difference.
There only remains in this review, to which the Senator invites me,
the empire of Russia, bound by many years of history to amity with
the United States, and absolutely fixed as our friend beyond any jar
of diplomacy or any jealousy of growing power. But our commercial
relations with this extensive country are inferior to those with
Belgium; and St. Petersburg is further removed from the great centre
of observation than Brussels. The Emperor of Russia is illustrious
from a transcendent act, for which his name will be blessed; but his
assured regard for us takes away all solicitude as to his policy, while
the complications of present questions in which he is involved render
his relations to other European governments less intimate than those
of King Leopold, even if the latter had not, from family and long
experience, a position of peculiar weight in the scale of European
affairs, so that Belgium under his rule has a value beyond her natural
power or territorial extent. Belgium may be small in domain, but so was
Greece; nor will any one presume to measure the influence her sovereign
may exercise by the number of square miles he governs.
But the Senator asked if there was any other government so small in
numbers where we were represented by a plenipotentiary. I have before
me, from the last almanac, the population of Chile, where we have
a plenipotentiary. It is one million five hundred and fifty-eight
thousand. Here, also, is the population of Peru, where we have a
plenipotentiary,--two million five hundred thousand.
MR. DAVIS. I believe that those missions ought to be reduced,
and I would vote to-day for the reduction of the missions to
Chile and to Peru.
MR. SUMNER. Very well; but let us take each question by itself. That
is the more practical way. When the proposition to reduce the missions
to Chile and Peru comes before the Senate, I shall be ready to meet
it, and I do not say that I shall differ from the Senator; but that
proposition is not now before us, nor is it involved even indirectly in
the pending amendment.
It is said, that, if we raise this mission, next year there will be
attempt to raise the salary. Very well; when that comes, we can meet
it. Again it is said that next year there will be attempt to raise both
mission and salary at the Hague and other places. Very well; when the
time comes,--and it must have the sanction of a committee of this body
to come before the Senate,--we will meet it. Meanwhile I ask you to
consider the actual question under debate, which is, whether you will
authorize the Government, in view of the peculiar circumstances of the
case and for the support of our interests abroad, to raise the Belgian
mission without any increase of salary. I have said this too often,
I know; but I have been driven to it by the pertinacity with which
Senators have insisted upon presenting the case in a false light.
The amendment was adopted,--Yeas 21, Nays 18,--and the bill
passed the Senate; but the House of Representatives would
not consent to raise the Belgian mission. Two different
conference committees were appointed. The first united in the
following substitute, drawn by Mr. Sumner, which would enable
the President to raise the mission in his discretion without
increase of salary: “That an envoy extraordinary and minister
plenipotentiary, appointed at any place where the United States
are now represented by a minister resident, shall receive the
compensation fixed by law and appropriated for a minister
resident, and no more.” But this was disagreed to by the House,
and at the second conference the Senate receded from the
amendment, so that it was lost.
In the next Congress it was renewed by Mr. Sumner, and
prevailed. It will be found in the Consular and Diplomatic Act
of July 25, 1866.[106]
CONSULAR PUPILS.
SPEECH IN THE SENATE, ON AN AMENDMENT TO THE CONSULAR AND DIPLOMATIC
APPROPRIATION BILL, MARCH 15, 1864.
The Senate having under consideration the Consular and
Diplomatic Appropriation Bill, an amendment was reported by Mr.
Fessenden from the Committee on Finance reviving the provision
in the Act of August 18, 1856,[107] authorizing twenty-five
consular pupils, and making an appropriation for them. The
amendment was opposed by Mr. Collamer, of Vermont, and Mr.
Reverdy Johnson, of Maryland. Mr. Sumner said in reply:--
MR. PRESIDENT,--The chief objection of the Senator from Maryland
seemed to be that we might educate these young men at the national
expense and very soon thereafter lose them,--in other words, not get
our money back. In the first place, it is very easy, by regulations
at the State Department before these appointments, to provide against
any such contingency; and I understand that Mr. Marcy, indefatigable
and ingenious as the Senator remembers he was, did, by a series of
regulations, carefully provide for this very case. Should we return
to the original law, the Secretary of State would have only to
revive those original regulations by one of his most distinguished
predecessors. I believe this a sufficient answer to the Senator.
But the Senator from Michigan [Mr. CHANDLER] has already answered him
in another way, when he asked, very pertinently, What assurance have we
that we shall enjoy the services of the cadets at West Point, or the
naval cadets now at Newport? There are certain requirements of service,
but the Senator knows well that nothing is more common than for cadets,
especially military, to pass immediately from that education they have
received at the expense of their country into occupations serving only
their private advantage.
MR. JOHNSON. That is with the consent of the Government. The
Government accepts their resignations.
MR. SUMNER. Very well; what is to hinder regulations at the Department
of State requiring the consent of the Government before these pupils
shall be released,--in short, holding them by some words of contract
for a certain term? Here let me say, that, unlike cadets, these pupils
will give the Government valuable service even while pupils.
But, Sir, passing from these considerations, allow me for a moment
to ask the attention of the Senate to this proposition in two
aspects,--the first as a carrying out of the consular and diplomatic
statute of the United States, and the second as in the nature of an
educational provision calculated to benefit our consular service abroad.
In the first aspect, the Senate will bear in mind that down to 1855 we
had no general diplomatic and consular statute. Our representation in
foreign countries went under thorough review, and the result was the
statute in our books, determining grades, adjusting salaries, and, in
one word, systematizing the whole business. Let the character of the
statute be borne in mind. But this statute, which aimed to present a
complete system, contained the provision for consular pupils.
Now, Sir, at that time and by that statute our consular salaries were
adjusted to this very provision of consular pupils. The one was in the
nature of a complement to the other. The salaries were made lower than
they otherwise would have been in certain cases, because the consuls
were to be aided by pupils with a compensation fixed by statute. But
the provision for pupils was repealed shortly afterwards, indeed before
the experiment had been tried, without, however, raising the consular
salaries in corresponding degree. It seems clear that something must
be done now. You must do one of two things,--either raise the consular
salaries or appoint consular pupils. Otherwise the original idea of the
statute fails, and our system is defective.
But this seems to be the least important aspect of the subject. A
mere question of salary, or, if you please, of system in the statute,
is trivial, to my mind, by the side of that other consideration to
which Senators have already alluded. I said that this was part of an
educational system for the advancement of our service abroad. I do not
think you can exaggerate its importance in this respect. Let any one
who has been abroad, or had personal acquaintance with those who have
been abroad, bear testimony to the abounding ignorance in our foreign
service, from the circumstance that there is nobody there, unless a
hired foreigner, acquainted with the language, the laws, or the usages
of the people about him. Sir, it is a shame that our offices abroad,
whether consular or diplomatic, are served in this inferior way. Here,
now, is a practical proposition beginning a remedy. It is simple and
direct. It seems to me that it cannot fail to be of considerable
advantage. The business of these offices will be better done, and
there will be a staff of educated experts, familiar with foreign life,
whose knowledge and experience, even if not always in the service of
Government, will pass into the capital stock and resources of the
country. Nothing is clearer than that the education of the people is a
source of national wealth, even of national power.
But the Senator from Vermont says that education is needed more in the
diplomatic service than in the consular. Granted; it is needed very
much in the diplomatic service; but because needed there, is that any
reason why we should not supply it here? The argument, it seems to me,
was hardly worthy of that Senator. Let a proposition be brought forward
for an educational system applicable to our diplomatic representatives,
and we will entertain it. Meanwhile let us act on that before us,
which, I submit, is eminently practical in character. Who are our
consuls? They are not diplomatic or political agents in the common
sense of the term; they are commercial agents. To discharge their
duties fitly, they should be familiar with the interests of commerce,
how it is conducted, and the language it employs, where they happen to
be. And permit me to say, that a great country like ours, one of whose
chief sources of wealth and of grandeur is commerce, must not hesitate
to supply the education needed to secure commercial representatives not
unworthy of the Republic they represent.
As the consul is a commercial representative, he is on this account
especially the agent of a commercial country. If our commerce were
less, our interest in having good consuls would be less. But with the
surpassing growth of our commerce this interest enlarges. To send
abroad consuls without proper education must necessarily bring the
national character into disrepute, and jeopard the concerns intrusted
to them. For the sake of our good name abroad, which is part of our
national possessions, and also for the sake of those vast commercial
concerns which encircle the globe, I hope that this proposition, which
is a small beginning in the right direction, will not be rejected.
March 16th, the debate was continued, and Mr. Sumner spoke
again. The amendment was adopted,--Yeas 20, Nays 16,--and the
bill passed the Senate. The House disagreed to the amendment,
but afterwards accepted the report of a conference committee,
authorizing the appointment of “consular clerks, not exceeding
thirteen in number at any one time, who shall be citizens of
the United States, and over eighteen years of age at the time
of their appointment, and shall be entitled to compensation
for their services respectively at a rate not exceeding
one thousand dollars per annum, to be determined by the
President.”[108]
THE LATE HON. OWEN LOVEJOY, OF THE HOUSE OF REPRESENTATIVES.
SPEECH IN THE SENATE, ON THE RESOLUTIONS UPON HIS DEATH, MARCH 29, 1864.
MR. PRESIDENT,--It is proposed to adjourn in honor of OWEN LOVEJOY,
whose recent death we mourn. Could his wishes prevail, Senators would
continue in their seats and help enact into law some one of the several
measures pending to secure the obliteration of Slavery. Such an act
would be more acceptable to him than any personal tribute.
He spoke well always, but he believed in deeds rather than words,
although speech with him was a deed. It was his contribution to that
sublime cause for which he toiled always. Words may be often “the
daughters of earth,” but there was little of earth in his. Proceeding
from a pure and generous heart, they have so far prevailed, even
during his life, that they must be named gratefully among those good
influences by which the triumph has been won. How his enfranchised soul
would be elevated, even in those abodes to which he is removed, at
knowing that his voice is still heard on earth, encouraging, exhorting,
insisting that there shall be no hesitation anywhere in striking at
Slavery,--that this unpardonable wrong, from which alone the Rebellion
draws its wicked life, must be blasted by Presidential proclamation,
blasted by Act of Congress, blasted by constitutional prohibition,
blasted in every possible way, by every available agency, and at every
occurring opportunity, so that no trace of the outrage may continue
in the institutions of the land, and especially that its accursed
footprints may no longer defile the national statute-book! In vain you
pass resolutions in tribute to him, if you neglect that cause for which
he lived, and hearken not to his voice.
Shortly before he went away from Washington to die, I sat by his
bedside. There, too, within call, was the beloved partner of his life.
He was cheerful; but his thoughts were mainly turned to his country,
whose fortunes in the bloody conflict with Slavery he watched with
intensest care. He did not doubt the great result; but he longed to be
at his post again, to teach his fellow-citizens, and to teach Congress,
how vain to expect an end of the Rebellion without making an end of
Slavery. It is only just to his fame that now, on this occasion of
commemoration, all this should be faithfully told. To suppress it would
be dishonest. I could not speak at his funeral, if I were expected to
unite in robbing his grave of any of these honors derived from his
transcendent courage and discernment in the trials of the present hour.
The Journals of the House show how faithfully he began his labors
at the present session. On the 14th of December he introduced a
bill, whose title discloses its character: “A bill to give effect
to the Declaration of Independence, and also to certain provisions
of the Constitution of the United States.” It proceeds to recite
that all men are created equal, and endowed by the Creator with the
inalienable right to life, liberty, and the fruits of honest toil;
that the Government of the United States was instituted to secure
those rights; that the Constitution declares that no person shall be
deprived of liberty without due process of law, and also provides
(Article six, clause two) that “this Constitution, and the laws of
the United States which shall be made in pursuance thereof, shall be
the supreme law of the land, and the judges in every State shall be
bound thereby, anything in the Constitution or laws of any State to
the contrary notwithstanding”; that it is now demonstrated by the
Rebellion that Slavery is absolutely incompatible with the union,
peace, and general welfare for which Congress is to provide; and it
therefore enacts that all persons heretofore held in slavery in any of
the States or Territories of the United States are declared freedmen,
and are forever released from slavery or involuntary servitude,
except as punishment for crime on due conviction. On the same day he
introduced another bill, to protect freedmen and to punish any one
for enslaving them. These were among his last public acts. And now
they testify how honestly he dealt with that _question of questions_
in which all other questions are swallowed up. It is easy to see that
he scorned the wicked fantasy that man can hold property in man.
This pernicious delusion, which is the source of such intolerable
pretensions on the part of slave-masters, and, worse still, of such
intolerable irresolution on the part of many professing opposition to
Slavery, could get no hold of him. He knew that it was a preposterous
falsehood, as wicked as false, born of prejudice and supreme credulity,
and therefore he brushed aside as cobweb all the fine-spun snares of
law or Constitution so ingeniously woven in its support. Recognizing
Freedom as the God-given birthright of all who wear the human form, he
knew no duty higher than to protect it always; and to this end law and
Constitution must minister.
He had never been a judge, and was not even a lawyer, so that the
technicalities and subtilties of the profession had no chance of
enslaving him. Besides, to a nature like his, independent and
self-poised, what were the sophisms of learning and skill, when
employed in the support of Wrong? It was enough, that, wherever Slavery
appeared, it was in defiance of that commanding law of Right, before
which all unjust pretensions, whatever form they take, must disappear
like the morning dew under the flashing arrows of the ascending sun.
From the beginning and at all times he was fixed against all compromise
with Slavery, and stood like a fortress. Sir, let it be spoken here in
his honor. He lies cold in death, but he could have no better epitaph
than this: “_Here rests one who would not compromise with Wrong_.”
When Senators and Presidents bent to the ignoble behest, he stood
firm. He was gifted to see that Slavery, unlike Tariff or Bank, did
not come within the range of compromise any more than the Decalogue
or Multiplication Table. He saw well how shamefully unconstitutional
and inhuman was the Fugitive Slave Act, in spite of every apology of
compromise, and refused it all support. He lies cold in death, but
his principles will live to sweep this unutterable atrocity from the
statute-book, which it still fills from cover to cover with blackness.
He was not only a faithful counsellor of perfect loyalty, in whom
truth was a religion and an instinct, but he was a counsellor whose
experience of mankind and of public life united with aptitude for
affairs in giving to what he said added value. He sat for several years
in the other House face to face with Slave-Masters, who then ruled the
country, so that he knew them well in every respect, but especially in
their open brutality and surpassing effrontery. During this period,
while shut out from participation in the public business, his duty was
that of champion, and nobly did he perform it. But those who watched
him under the responsibility recently cast upon a Representative of his
character observed that he developed a practical talent which rendered
him useful, not only as champion, but also as workman in the machine
of government. He was a supporter of the present Administration, and
of that declared policy which, according to the motto of Algernon
Sidney, adopted on the arms of Massachusetts, seeks “placid quiet under
Liberty,”--_placidam sub Libertate quietem_. There are few among his
associates who may not be instructed and inspired by his magnanimous
example.
He had been a lifelong soldier of Liberty, baptized into a service of
blood. While yet young, his brother, an editor in Illinois, devoted
to the slave, fell a victim to the cause he served so well. His fate
awakened a wide sympathy throughout the country, drawing Channing from
his retirement to speak at Faneuil Hall, and touching with a living
coal the lips of Wendell Phillips, whose voice then and there, for
the first time, flamed forth against Slavery. It was natural that
Owen Lovejoy should assume those vows of perpetual warfare with the
tyrant murderer which he so truly kept,--tyrant murderer of a cherished
brother,--tyrant murderer of Liberty, not only on the plantation, but
everywhere throughout the land,--tyrant murderer of the Constitution,
which guards alike the rights of States and citizens,--and tyrant
murderer of national peace, without which there can be no true
prosperity or happiness. Thus, as a soldier of Liberty, he began, and
he kept his harness on to the last.
He was one of the most amiable of men, whose heart was abundant with
goodness and gentleness, and whose countenance streamed with sunshine.
But on this account he was only the more inexorable toward a wrong so
cruel in all its influences. A child of the New Testament, he was no
stranger to the early Hebrew spirit, and had little patience with those
who, born among Northern schools and churches, strove to arrest or
mitigate the doom of Slavery. The famous curse of Meroz, so solemnly
denounced against neutrality, which had been echoed from ancient Judea
by English Puritans in their great contest, found an echo in his heart:
“Curse ye Meroz, said the angel of the Lord, curse ye bitterly the
inhabitants thereof, because they came not to the help of the Lord,
to the help of the Lord against the mighty.”[109] Of course, in this
spirit he used plain words, and did not hesitate. But if he did not
hesitate, it was because he saw clearly the path of duty. Amiability
did not make him doubt. He was a positive man, of positive principles,
who knew well how much was always lost by timid counsels, especially on
great occasions. Because there were some about him who were skeptical
and irresolute, he was not disheartened, but preserved to the last
an example of fidelity which history will piously enshrine. His own
illustrations were from the sacred writings, but a heathen poet has
given a warning which is part of the lesson of his life:--
“Old Priam’s age, or Nestor’s, may be out,
And thou, O Taurus, still go on in doubt.
Come, then, how long such wavering shall we see?
Thou mayst doubt on; but then thou’lt nothing be.”[110]
Of all doubts, there are none more painful or indefensible than those
by which human rights are put in jeopardy.
He was a Representative of Illinois, born in Maine when Maine was
part of Massachusetts, which made him a connecting link between the
East and the West. The welcome he found in the West, and his complete
fellowship with that region, while his sympathies overflowed to his
early home, attest better than arguments the ligatures binding together
these different parts of our common Union; so that, hereafter, should
any malignant spirit seek to sow strife between us, his name alone will
be a standing protest against the alienation. Born in the East, he was
honored in the West. Honored in the West, he never lost his love for
the East. But the whole country, not excepting the South, had a home in
his patriotic, hospitable, and capacious heart. He hated Slavery; but
he loved his country in every part, with heart, soul, and mind.
He was of the Old Guard of Antislavery, and we bury him with the
honors that belong to such a soldier. Flags are at half-mast, and
funeral guns are sounding in our hearts. But from his new-made grave
he speaks now to the whole vast Republic, animating all good citizens
to labor as he labored and to live as he lived, that this land may be
redeemed. Especially does he speak to the State that honored him in
life, and to those associate States constituting the mighty Northwest,
where he found the home of his mature years,--Indiana, Michigan,
Wisconsin, Iowa, Minnesota,--exhorting them to take up bravely and
without faltering the cause he made his own, that it may not lose by
his death. But, alas! the vigilance of many will be needed to supply
the place he filled.
Such a character must be mourned in Congress; but he will be mourned
throughout the country, at all those virtuous firesides where fathers,
mothers, brothers, and sisters speak of those who have helped human
happiness on earth. And there is another company, who cannot yet
pronounce his name, but, as they hear how truly he was their friend,
will rise to call him blessed. Already, unseen of men, in vast
uncounted procession, the slaves of the Union help to swell his funeral.
COLORED SUFFRAGE IN THE TERRITORY OF MONTANA.
SPEECHES IN THE SENATE, ON AN AMENDMENT TO THE BILL FOR A TEMPORARY
GOVERNMENT OF THAT TERRITORY, MARCH 31 AND MAY 19, 1864.
March 30th, the Senate having under consideration a bill, that
had already passed the House of Representatives, to provide
a temporary government for the Territory of Montana, Mr.
Wilkinson, of Minnesota, moved to amend the clause relating
to persons entitled to vote and eligible to office, so that,
instead of “every _white male inhabitant_,” it should read
“every _free male citizen_ of the United States, and those who
have declared their intention to become such.” Mr. Reverdy
Johnson at once declared that “the effect of the amendment was
to admit to the elective franchise in the proposed Territory
black men as well as white,” and, after mentioning the number
of Africans now in the United States, he proceeded to say
that “it can hardly be seriously contended, that, of that
four millions, such portion of them as have been in a state
of slavery from infancy to the present time are intelligent
enough, or likely to become intelligent enough, at once to
exercise the right of suffrage”; and he anticipated another
question, “just as likely to excite the public as the question
of the existence of Slavery in itself.”
March 31st, the amendment was adopted,--Yeas 22, Nays 17. The
debate continuing, Mr. Johnson said that the term “citizen”
was not applicable to “black men,” “because the Supreme
Court of the United States has decided, and that question
was directly before the Court in the Dred Scott case, that
a person of African descent is not a citizen of the United
States.” Mr. Wilkinson was willing it should stand according
to his amendment, and let the decision of the Supreme Court be
whatever it might. He wanted neither “white” nor “black” put
into the bill. Mr. Sumner then remarked:--
“I take it that each branch of the Government can interpret
the Constitution for itself. I think that Congress is as
good an authority in its interpretation as the Supreme
Court, and I hope that in legislation it will proceed
absolutely without respect to a decision which has
disgraced the country, and ought to be expelled from its
jurisprudence.”
Mr. Johnson vindicated the Dred Scott decision at length, and
made an elaborate eulogy of Chief Justice Taney. In the course
of his remarks, he said: “There are many men, the equals of
the honorable Senator, to say the least, intellectually, who
think that that decision was anything but an outrage.… We
have an interest, jurisprudence has an interest, justice has
an interest, the nation has an interest, in maintaining the
character of that tribunal against all unjust reproach. It is
no light thing to pronounce a decision given by such a tribunal
as that as a disgrace.… I cannot, therefore, stand still and
hear a tribunal like that assailed, as I think unnecessarily,
by anybody, and particularly by the honorable member from
Massachusetts.”
Mr. Sumner replied:--
MR. PRESIDENT,--The multiplication table tells us that two and two
make four. Now, if a tribunal honored like the Supreme Court should
undertake to declare that two and two make five, and a Senator
as distinguished as the Senator from Maryland should uphold the
high tribunal in its decision, I am not satisfied that it would be
presumptuous in me to call that decision in question. But the Dred
Scott decision was as absurd and irrational as such a reversal of the
multiplication table, besides shocking the moral sense of mankind. The
Senator will pardon the little scruple with which I denounce it. I
claim nothing for myself; I may be weak; but, according to the measure
of my abilities as God has given them to me, I enter a standing protest
against that atrocious judgment, which was false in law, and also false
in the history with which it sought to maintain its false law.
The Senator seems to imply that I am not familiar with the case. Sir,
I know it too well. I have read carefully the opinion of the Chief
Justice, which the Senator now vaunts, and I have read, also, the
opposing opinions, by the side of which that much vaunted opinion is
dwarfed into the pettiness proper to a production in such a cause,
ignoble in character, and impotent except in that little brief
authority incident to judicial rank. The Senator pleads for this
judgment in the name of jurisprudence, of justice, and of the nation.
Sir, by the same title I denounce it,--in the name of jurisprudence,
which it disgraces, of justice, which it denies, and of the nation it
has offended.
Among the influences and agencies that helped forward the present
Rebellion, and set fellow-citizens in bloody conflict with each other,
the Dred Scott decision must always be held in dismal memory. It gave
conspirators new confidence. It filled patriots for a while with
despair. It became the platform of Slavery, whose tyrannical behests
would have triumphed, had this decision been allowed to prevail. Hating
the Rebellion in its origin and all the circumstances that nursed it
into wicked being, we must hate this decision.
But the Senator wandered into eulogy of that old Supreme Court, now
departed, when Marshall was Chief Justice, and from the past claimed
consideration for the present. Sir, I have been no careless student of
that court in its great and palmy days. I know the learning, wisdom,
and ability of its judgments, and am proud that there are such pages in
the jurisprudence of my country. My sentiments toward the court of that
day are warmed, also, by personal experience. It is among the cherished
reminiscences of early life, that I was privileged to know, as a youth
might know, the illustrious magistrate whom the Senator praises so
well. He received me at his table, and allowed me to accompany him in
his morning walks to the court-room. He was a venerable character. But
I pray the Senator not to claim for the Dred Scott decision any of
the reverence justly belonging to his name. There is no question of
tribute to Chief Justice Marshall, or respect for the tribunal while he
presided over it. The Dred Scott decision is more noticed from contrast
with all that is good and great in the decisions of other days. It is
sad that the tribunal that had established such an authority among us
should do an act by which its authority has been endangered.
This whole debate is in the nature of a diversion or a deviation, and
therefore I bring it back to the precise point from which it started.
The Senator from Maryland invoked the Dred Scott decision as a reason
why Congress should not recognize colored persons as citizens. In reply
I simply asserted the right of Congress to interpret the Constitution
without constraint from the Supreme Court, and this I now repeat.
Each branch of the Government must interpret the Constitution for
itself, according to its own sense of obligation under the oath we have
all taken. And God forbid that Congress should consent to wear the
strait-jacket of the Dred Scott decision!
Mr. Johnson closed his reply by saying: “And without meaning
to offend the honorable member from Massachusetts, and with
all the personal regard which I feel for him, and recollecting
the courtesy that he has extended to me, and which I have
reciprocated from the bottom of my heart, I say to him, without
any purpose of offence, that, if I am obliged to act upon
the weight of authority upon all questions of Constitutional
Law, I shall prefer holding to the opinion of Taney than
holding to the opinion of the honorable member.” Mr. Hale,
of New Hampshire, after remarking that he differed from Mr.
Sumner, said: “I do not believe that I think any better of
that decision than he does. I think it was an outrage upon the
civilization of the age and a libel upon the law; but I do not
think it was a disgrace to the Supreme Court of the United
States.” [_Laughter._]
The bill passed,--Yeas 29, Nays 8.
* * * * *
The House of Representatives disagreed to the Senate amendment,
and a Committee of Conference was ordered, which reported
in its favor. But the House again disagreed, and, April
15th, another Committee of Conference was appointed, under
instructions, moved by Mr. Webster, of Maryland, “to agree
to no report that authorizes any other than _free white
male citizens_, and those who have declared their intention
to become such, to vote.” The vote of the House on these
instructions stood, Yeas 75, Nays 67. The Senate refused
a further conference upon the terms proposed, which were
abandoned by the House, and a conference without limitation was
agreed to. May 19th, the Conference Committee reported, in lieu
of the Senate amendment, the following clause: “All citizens of
the United States, and those who have declared their intention
to become such, and who are otherwise described and qualified
under the fifth section of the Act of Congress providing for a
temporary government for the Territory of Idaho, approved March
3, 1863.” The reference to the Idaho Act required explanation,
when the following dialogue took place.
MR. SUMNER. I should like to know the nature of the
substitute, if the Senator from Maine [Mr. MORRILL] will be
good enough to state it.
MR. MORRILL. I will state in a word that the effect of the
amendment of the Committee of Conference is to authorize
the temporary organization of the Government of Montana by
that class of persons that were authorized to organize the
Territory of Idaho.
MR. SUMNER. What class of persons was that?
MR. MORRILL. They were, as I recollect the qualification,
white citizens of the United States, and such others as
had declared their intention to become citizens. As it
now stands, the qualification in Montana will be that the
voters at the first election will be citizens of the United
States, and such as have declared their intention to be
citizens of the United States, and such as are qualified by
the fifth section of the Act organizing the Territory of
Idaho.
MR. SUMNER. That is, free white persons, I understand.
MR. MORRILL. That is what it comes to.…
MR. SUMNER. Is not the new proposition almost identical
with the original House proposition on the question of
color?
MR. MORRILL. On the question of the exclusion of colored
men it is identical. It does exclude colored men.
MR. SUMNER. I understand that the point of difference
between the two Houses was simply as to the word “white” or
“black.”
MR. MORRILL. That was the principal question, and on that
point I desire to say precisely how the Committee found the
question.…
MR. SUMNER. Then the proposition, as I understand it, is,
that the Senate shall abandon its position. Why so? Because
the House of Representatives will not abandon its position.
MR. MORRILL. No, Sir, the Senator will allow me: because
there did not seem to be any practical sense in adhering to
it; because to adhere to it defeated the bill; because to
adhere to it accomplished no earthly purpose, gave nobody
any right.
MR. SUMNER. For the other House to adhere on the other side
defeated the bill also.
MR. MORRILL. Yes.
MR. SUMNER. And the question is, Which shall adhere, the
side that is right or the side that is wrong?
MR. MORRILL. And that is the question the Committee submit
to the Senate.
MR. SUMNER. I hope the Senate will adhere to its original
position, and I believe that the assertion of that
principle at this moment is more important than the bill.
In the debate that ensued, Mr. Harlan said that he should
“vote against the report of the Committee, chiefly, however,
because he did not think there was a pressing necessity for
the organization of another Territory in that part of our
domain.” Mr. Sumner called attention to the Ordinance for the
organization of the Northwest Territory, and then said:--
It will be observed that in this Ordinance, to which we so often refer
as a commanding authority, there is no discrimination of color. Now
I ask if this is not a good precedent. Like the present bill, it was
applicable to a vast unsettled Territory. Senators may say that our
fathers, in the Ordinance, were not practical. I am not of that number.
Senators may say that our fathers, in the Declaration of Independence,
were not practical. I am not of that number. Senators may say that our
fathers, in the Constitution of the United States, which contains no
discrimination of color, were not practical. I am not of that number.
Sir, I believe that the authors of this Ordinance, and the authors of
the Declaration of Independence, and the authors of the Constitution
were eminently practical, when they excluded from those instruments
any discrimination of color. But it is said that there are no persons
in the new Territory to whom the principle is now applicable. This
can make no difference. It is something to declare a principle, and I
cannot hesitate to say that at this moment the principle is much more
important than the bill. The bill may be postponed, but the principle
must not be postponed.
MR. MORRILL. I will suggest to the Senator, if he will permit
me,--
MR. SUMNER. Certainly.
--that the statement I made about its applicability was this:
it is not by possibility applicable to any man of African
descent. There are some five or six thousand Indians, to whom
a bill in general phrase, without limitation of “white,” might
possibly apply; I do not say that it would apply to them in
this case.
MR. SUMNER. Practically, the subject-matter of this clause is not
Indians, but the well-known African race of this continent; and it
is proposed, by specious words wrapped up in a clause borrowed from
another bill, to exclude them from the right of suffrage in this
Territory; and the argument for this injustice, as my friend from New
Hampshire [Mr. HALE] has so ably stated, is only a reproduction of that
well-known ancient argument for Slavery in the Territories. How often
were we in those days compelled to encounter the charge that we were
not practical,--that we were urging a prohibition, when there was no
occasion for it! For myself, I believe you cannot too often assert a
prohibition of Slavery, nor too often assert human rights, wherever
they may be called in question; and especially do I believe in the
importance of such assertion when you are laying the foundations of a
new community. “Just as the twig is bent the tree’s inclined.” These
are familiar words of childhood. Would my friend from Maine have the
tree that he plants grow up with a generous and protecting shelter for
all mankind, or shall it be the bent and crabbed product of unhappy
prejudices which are only a growth of Slavery? I know my friend means
no such thing; but I insist that the policy he recommends tends to such
fatal end. For myself, Sir, I am satisfied with the Declaration of
Independence; I am satisfied with the Constitution on this important
subject; and, adopting the language of our Lieutenant-General in
the field, I desire to say, “I will fight on this line to the end,
even if it takes all summer.” There is no line better than that of
human rights. While fighting on that line, I cannot err; there is no
pertinacity too great; there is no ardor that is not respectable. I
thank General Grant for these words. They express his own steadfast
purpose, and we all thank him. But each, in his sphere, may make them
his own. I make them mine, wherever human rights are in question.
The report of the Conference Committee was adopted,--Yeas 26,
Nays 13. And so this first battle for colored suffrage was lost.
CLAIMS ON FRANCE FOR SPOLIATIONS OF AMERICAN COMMERCE PRIOR TO JULY 31,
1801.
REPORT IN THE SENATE, OF THE COMMITTEE ON FOREIGN RELATIONS, APRIL 4,
1864.
April 14th, the Senate, after debate, ordered three thousand
extra copies of this report,--Yeas 23, Nays 19. Mr. Reverdy
Johnson, while urging the extra copies, remarked: “The report
is quite an elaborate one, drawn up with all the fulness
which characterizes papers of this description prepared by
the Chairman of the Committee on Foreign Relations. He has
collected together, very accurately, I have no doubt, all the
facts connected with the claims. He has given the history
of the proceedings in Congress and the proceedings of the
Executive, and has examined very fully all the principles of
law applicable to the questions which the claims present.”
The same report was subsequently adopted by the Committee on
Foreign Relations, and printed by the Senate, March 12, 1867,
and also January 17, 1870.
The Committee on Foreign Relations, to whom were referred
numerous petitions and resolutions of State Legislatures,
taken from the files of the Senate, and also the petition of
sundry citizens of New York, presented at the present session,
asking just compensation for “individual” claims on France,
appropriated by the United States to obtain release from
important “national” obligations, have had the same under
consideration, and beg leave to report.
The welfare of the Republic requires that there should he an end of
“suits,” lest, while men are mortal, these should be immortal. Such
is a venerable maxim of the law, illustrated by the case before the
Committee. The present claims have outlived all the original sufferers,
and at least two generations of those who have so ably enforced them in
the Halls of Congress. Against their unwonted vitality death has not
been able to prevail.
CHARACTER OF THESE CLAIMS.
Of all claims in our history, these are most associated with great
events and great sacrifices. First in time, they are also first in
character, for they spring from the very cradle of the Republic and
the trials of its infancy. To comprehend them, you must know, first,
how independence was won, and, secondly, how, at a later day, peace
was assured. Other claims have been personal or litigious; these
are historic. Here were “individual” losses, felt at the time most
keenly, and constituting an unanswerable claim upon France, which,
at a critical moment, were employed by our Government, like a credit
or cash in hand, to purchase release from outstanding “national”
obligations, so that the whole country became at once trustee of
these sufferers, bound, of course, to gratitude for the means thus
contributed, but bound also to indemnify them against these losses.
And yet these sufferers, thus unique in situation, have been compelled
to see all other claims for foreign spoliations satisfied, while they
alone have been turned away. At the beginning of our history, our
plundered fellow-citizens obtained compensation to the amount of many
million dollars on account of British spoliations. Similar indemnities
have been obtained since from Spain, Naples, Denmark, Mexico, and the
South American states, while, by the famous Convention of 1831, France
contributed five million dollars to the satisfaction of spoliations
under the Continental system of Napoleon. Spain stipulated to pay for
every ship or cargo taken within Spanish waters, even by the French; so
that French spoliations on our commerce within Spanish waters have been
paid for, but French spoliations on our commerce elsewhere before 1800
are still unredeemed. Such has been the fortune of claimants the most
meritorious of all.
In all other cases there has been simply a claim for foreign
spoliations, but without superadded obligation on the part of our
Government. Here is a claim for foreign spoliations, the precise
counterpart of all other claims, but with superadded obligation, on
the part of our Government, in the nature of a debt, constituting an
_assumpsit_, or implied promise to pay; so that these sufferers are not
merely _claimants_ on account of French spoliations, but they are also
_creditors_ on account of a plain assumption by the National Government
of the undoubted liability of France. The appeal of these _creditor
claimants_ is enhanced beyond the pecuniary interests involved, when we
consider the nature of this assumption, and especially that in this way
our country obtained final release from embarrassing stipulations with
France contracted in the war for national independence. Regarding it,
therefore, as _debt_, it constitutes part of that sacred debt incurred
for national independence, and is the only part now outstanding and
unpaid.
PRELIMINARY OBJECTIONS.
Before proceeding to consider the nature of existing obligations on
the part of the United States, the Committee ask attention to three
objections which they encounter on the threshold: the first, founded
on the alleged antiquity of the original claims; the second, on the
alleged character of the actual possessors; and the third, on the
present condition of the country.
I.--CLAIMS ANCIENT, BUT NOT STALE.
It is said that the claims are ancient and stale, and therefore not
to be entertained. It is true that the claims are the most ancient
of any now pending, and that they date from the very origin of our
existence as a nation. But in this respect they do not differ from
a Revolutionary pension or a Revolutionary claim. Down to this day
there is a standing committee of the Senate, entitled “Committee on
Revolutionary Claims”; but if a claim traced to the Revolution must be
rejected for staleness, there can be little use for this committee. If
these claims, after uninterrupted sleep throughout the long intervening
period, were now for the first time revived, they might be obnoxious to
this imputation. But, as from the beginning of the century they have
occupied the attention of Congress, and been sustained by speeches,
reports, and votes, it is impossible to say that they have been allowed
to sleep.
The whole case was stated with admirable succinctness, as long ago as
1807, by Mr. Marion, of South Carolina, in the report of a committee of
the House of Representatives.
“From a mature consideration of the subject, and from the
best judgment your Committee have been able to form on the
case, _they are of opinion that this Government_, by expunging
the second article of our Convention with France of the 30th
September, 1800, _became bound to indemnify the memorialists
for those just claims_ which they otherwise would rightfully
have had on the Government of France, for the spoliations
committed on their commerce by the illegal captures made
by the cruisers and other armed vessels of that power, in
violation of the Law of Nations, and in breach of treaties
then existing between the two nations; which claims they
were, by the rejection of the said article of the Convention,
forever barred from preferring to the Government of France for
compensation.”[111]
Claims thus authoritatively stated at that early day cannot be overcome
by any sleep.
It is true that these claims were pressed with less constancy and
determination at the beginning of the century than at a later day. But
there are two sufficient reasons for the change. First, the evidence
on which they are founded was less generally known at the beginning
than afterward. It was only in 1826, under the administration of John
Quincy Adams, by the communication to Congress of the ample materials
accumulated in the Archives of State, that the true strength of the
case was fully revealed. Here, in one full volume, was the documentary
history of the whole double transaction,[112] showing at once the
original obligation of France, and the substituted obligation of the
United States, reinforced by the associations of our own Revolutionary
history. A more sufficient reason for this change is found in the
fact, that for some time in the early part of the century our country
was still laboring under pressure of the Revolutionary debt. As this
pressure was gradually removed, and the national resources became more
apparent, these claims were naturally urged with more confidence,
until, on the final extinction of that debt, they occupied the
attention of the best minds in both Houses of Congress.
No single question in our history has been the subject of such a
succession of able reports. Whether counted or weighed, these reports
are equally exceptional. They are no less than forty-one in number,
twenty-two in the Senate and nineteen in the House. Among the eminent
characters whose names they bear are Edward Livingston, John Holmes,
Edward Everett, Daniel Webster, Caleb Gushing, Charles J. Ingersoll,
John M. Clayton, and Rufus Choate. Out of the whole number only three
have been adverse,--one in the Senate and two in the House. But the
three adverse reports were evasive only, besides being prior to the
communication of the decisive evidence on the subject. The thirty-six
reports since that communication were all in favor of the claims.[113]
Resolutions in favor of these claims by thirteen States, being the
original number which declared independence, have been presented to
Congress between the years 1832 and 1858. Some States, not content with
one series, have repeated their resolutions, and accompanied them with
elaborate arguments. They all tend to the conclusion that it is the
duty of Congress, without further delay, to provide for these claims;
and Senators and Representatives are earnestly requested to use their
best exertions for an Act of Congress to carry this obligation into
effect.
Memorials and petitions from the beginning testify to the sleeplessness
of these claims. On the 5th of February, 1802, only forty-six days
after the promulgation of the Convention of 1800, they began, and
they have continued from that early day down to this very session of
Congress, making in all four thousand six hundred and two. Of these,
nineteen hundred and thirty-one were in the Senate, two thousand six
hundred and seventy-one in the House. They are chiefly from original
sufferers, their executors, administrators, assigns, widows, and
heirs, residing in the large seaports from which the despoiled vessels
originally sailed; but there are some from all parts of the country,
where, in the vicissitudes of life, the representatives of original
sufferers have been carried,--all of which may be seen in the list of
these petitioners.[114]
Two several times--once under President Polk, and again under President
Pierce--both Houses of Congress concurred in an act for the relief of
these claimants; but this tardy justice was arrested by Presidential
veto.
In the face of this constant succession of reports, resolutions of
State Legislatures, and petitions, constituting not only “continual
claim,” but continual recognition of the claim,--the whole crowned by
two several Acts of Congress,--it is impossible to infer negligence in
the claimants, or, indeed, any assumption of inordinate confidence.
They have had good reason to believe that they should be successful.
Under such circumstances, the lapse of time, sometimes urged against
them, becomes an argument in their favor; for it adds constantly
recurring testimony to their merits, besides a new title from the
disappointment to which they have been doomed. Claims beginning thus
early, and thus sustained, may be ancient, but they cannot be stale.
II.--POSSESSORS OF THE CLAIMS ARE NOT SPECULATORS.
A trivial remark, which is rather slur than objection, may justify
a moment’s attention. It is sometimes said that these claims are no
longer the property of the original sufferers or their representatives,
but that they have passed, like a fancy stock, into the hands of
speculators. This remark, if it had foundation in fact, has little
in equity. It would be hardly creditable for a government to take
advantage of its own procrastination, and refuse just compensation,
because the original sufferer had been compelled by unwelcome necessity
to discount his claims.
From the nature of the case, such claims, being unliquidated, do not
readily pass from hand to hand, but remain in the original custody, as
has become apparent in ample experience. Precisely the same reflection
was cast upon the claims against Spain, Denmark, and Naples,--and,
indeed, it is cast upon long outstanding claims generally, until
it has become a commonplace of sarcasm. The records of successive
Commissions which have liquidated foreign claims afford its best
refutation. In every case these Commissions required proof of property;
but the evidence disclosed that the original sufferers, or their legal
representatives, including heirs, executors, assignees of bankrupts,
persons having a lien for advances, or underwriters, possessing in
law and equity the same right as the original sufferers, were actual
possessors of the larger part. There is no reason to suppose that it
would be otherwise with the claims for French spoliations. On the
contrary, it is believed that they remain substantially unchanged,
except by legal inheritance.
The great speculator has been Death; for there are few of these claims
that have not passed through his hands. Such a transfer cannot draw
the title into doubt, especially when we consider the character of the
petitioners whose names are spread on the journals of Congress. It is
well known that in many families these claims still exist as heirlooms,
transmitted by ancestral care in full confidence that sooner or later
they will be recognized by the Government.
III.--PRESENT CONDITION OF THE COUNTRY NO REASON AGAINST PAYMENT OF
JUST DEBTS.
It is sometimes suggested, that, even assuming the meritorious
character of these claims, yet, in the present condition of the
country, they ought to be postponed. Looking at the practical
consequences of this suggestion, it will be found, that, though
plausible in _form_, it is fatal in _substance_. Any postponement must
inevitably throw these claims into direct competition with those now
accumulating on account of losses during the Rebellion, having in their
favor the swelling sympathies of our time. It is not unjust to human
nature, if the Committee say that the distant in time, like the distant
in space, is too often out of mind. If the earlier claims are just,
they should not be exposed to the hazards of any such competition, when
feeling will be stronger than reason. From the probability of future
claims, whose shadows already commence, the argument is strengthened
for the immediate satisfaction of those now existing, especially when
we consider their character and origin.
The resources of the people are tasked to put down the Rebellion which
Slavery has aroused. Let nothing be stinted. But there is another duty
not to be forgotten. _The just debts of the Republic must be paid_, to
the last dollar. Here, also, nothing must be stinted; and the glory of
the one will be kindred to the glory of the other. The Republic will
have new title to love at home and to honor abroad, when with one hand
it overcomes the Rebellion now menacing its existence, and with the
other does justice to ancient petitioners, long neglected, constituting
the only remaining creditors left to us from the War of Independence.
STATEMENT OF THE QUESTION.
Therefore, putting aside all preliminary objections from alleged
antiquity, from the character of the actual possessors, or from the
present condition of the country, the Committee insist that the present
obligations of the United States must be determined according to
principles of justice and the facts of the case. The hearing now is as
if there had been no lapse of time since the obligations accrued, and
as if no war now existed to task the country.
Is the money justly due? To answer this question, the subject must be
considered in detail, under several heads.
_First._ Claims of citizens of the United States against France,
founded on spoliations of our commerce, as seen in their origin and
history.
_Secondly._ Counter claims of France, founded on treaty stipulations
and services rendered in the War of Independence, also as seen in their
origin and history.
_Thirdly._ The Convention of 1800 and the reciprocal release of the two
Governments, by which the “individual” claims of the petitioners were
treated as a set-off to the “national” claims of France.
_Fourthly._ The assumption by our Government of the obligations of
France, so that the United States were substituted for France, and
became liable to these petitioners as France had been liable.
After considering these heads in their order, it will be proper to
review the objections alleged against the liability of the United
States: (1.) from the semi-hostile relations between France and the
United States anterior to the Convention; (2.) from payments under
the Louisiana Treaty; (3.) from payments under the Convention with
France in 1831; (4.) from the Act of Congress annulling the early
treaties with France; (5.) from the early efforts of our Government to
obtain from France the satisfaction of these claims; and (6.) from the
desperate character attributed to these claims at the time of their
abandonment.
The question of “just compensation” will present itself last: (1.) in
the advantages secured to the United States by the sacrifice of these
claims; (2.) in the value of the losses which the claimants suffered;
and (3.) in the recommendation of the Committee.
The subject is of such importance, from the magnitude of interests
involved, and from its historic character, that the minuteness of this
inquiry will not be regarded as superfluous.
I.
CLAIMS OF AMERICAN CITIZENS IN THEIR ORIGIN AND HISTORY.
The history of French spoliations on our commerce is a gloomy chapter,
where a friendly power, assuming the name of Republic, shows itself
fitful, passionate, and unjust. This conduct is more remarkable, when
it is considered, that, only a short time before, France, while yet
a kingdom, contributed treasure and blood to sustain our national
independence. And yet an explanation may be found in the extraordinary
temper of the times. By a generous uprising of the people the
kingdom was overthrown, and then, as the alarmed royalties of Europe
intervened, the head of the monarch was flung to them as a gage of
battle. The gage had been accepted in advance, and all those royalties,
by successive treaties, entered into coalition against France. The
fleets of England came tardily into the great contest, but their
presence gave to it a new character, and enveloped ocean as well as
land in its flames. The growing commerce of the United States suffered
from both sides, but especially from France, driven to frenzy by the
British attempt, in the exercise of belligerent rights, to starve a
whole nation.
French feelings were still further aroused against the United States,
when, instead of friendship and alliance, France was encountered by the
Proclamation of Neutrality launched by Washington on the 22d April,
1793, where he undertook, in behalf of the United States, to “adopt
and pursue a conduct friendly and impartial toward the belligerent
powers.”[115] Here, according to France, was a failure not only of
that proper sympathy due from us, but even of solemn duties pledged by
those early treaties which helped to secure the national independence.
This failure, which became afterward the occasion of counter claims,
contributed to the exasperations of the time.
An early apology, addressed to the American minister at Paris by
the French Government, attests the spoliations which had begun, and
discloses also their indefensible character, unless the common language
spoken by the English and ourselves was a sufficient excuse. Here are
the exact words:--
“We hope that the Government of the United States will
attribute to their true cause the abuses of which you complain,
as well as other violations of which our cruisers may render
themselves guilty in the course of the present war. _It must
perceive how difficult it is to contain within just limits the
indignation of our marines, and, in general, of all the French
patriots, against a people who speak the same language and
having the same habits as the free Americans._ The difficulty
of distinguishing our allies from our enemies has often been
the cause of offences committed on board your vessels; all that
the Administration could do is to order indemnification to
those who have suffered, and to punish the guilty.”[116]
Thus recklessly did these spoliations begin. The National Convention
associated itself with this injustice, when, on the 9th May, 1793,
only seventeen days after the Proclamation of Neutrality, but before
it had arrived in France, a retaliatory decree was issued in response
to the British attempt at starvation,--arresting all neutral vessels
laden with provisions and destined to an enemy port. The decree itself
did not disguise that it was a violation of neutral rights; but
the necessity of the hour was pleaded, _and indemnity was promised
to neutrals suffering by its operation_.[117] Unwilling to await
the dilatory performance of this promise, our minister at Paris
remonstrated against the application of the decree to vessels of the
United States. Amidst vacillations of the National Convention, which,
under the urgency of our minister, at one time seemed to relent, the
decree continued to be enforced against property of American citizens.
Here were spoliations, confessed at the time to be in violation of
neutral rights, which still rise in judgment.
As this intelligence reached the United States, our whole commerce
was fluttered. Merchants hesitated to expose ships and cargoes to
such cruel hazards. It was necessary that something should be done to
enlist again their activity. The National Government _came forward
voluntarily_, with assurance of protection and redress, in a circular
letter, dated 27th August, 1793, when Mr. Jefferson, the Secretary of
State, in the name of the President, used the following language: “I
have it in charge from the President to assure the merchants of the
United States concerned in foreign commerce or navigation, that due
attention will be paid to any injuries they may suffer on the high seas
or in foreign countries, contrary to the Law of Nations or to existing
treaties, and that, on their forwarding hither well-authenticated
evidence of the same, _proper proceedings will be adopted for their
relief_.”[118] This circular was confirmed by President Washington,
in his message of December 5, 1793, where he speaks as follows: “The
_vexations and spoliation_ understood to have been committed on our
vessels and commerce by the cruisers and officers of some of the
belligerent powers appeared to require attention. The proofs of these,
however, not having been brought forward, the description of citizens
supposed to have suffered were notified, that, on furnishing them to
the Executive, _due measures would be taken to obtain redress of the
past_ and more effectual provisions against the future.”[119] Here,
then, was a double promise from the National Government, and under
its encouragement our merchants resumed their commerce, venturing
once more upon the ocean. Their Government had tempted them, and, on
the occurrence of “injuries on the high seas,” these good citizens,
according to instructions, made haste to lodge with the Department of
State the “well-authenticated evidence of the same.” Their children and
grandchildren are waiting, even now, the promised redress.
Thus, at the very beginning, these spoliations were recognized by
both Governments in their true character. The National Convention,
even in its arbitrary edict, confessed them. The Administration of
Washington, in its solemn assurance of protection, also confessed them.
Offspring of wrongful violence in the heat of war, they were regarded
on both sides as indefensible. Ministers, in this respect, reflected
the sentiments of the two Governments. Fauchet, the French minister at
Philadelphia, in a communication to the Secretary of State, under date
of March 27, 1794, expressed himself in this manner: “If any of your
merchants have suffered any injury by the conduct of our privateers,
(a thing which would be contrary to the intention and express orders
of the Republic,) they may with confidence address themselves to the
French Government, which will never refuse justice to those whose
claims shall be legal.”[120] Mr. Morris, our minister at Paris, under
date of March 6, 1794, gave vent to his feelings: “These captures
create great confusion, _must produce much damage to mercantile men_,
and are a source of endless and well-founded complaint. Every post
brings me piles of letters about it from all quarters, and I see no
remedy.… In the mean time, if I would give way to the clamors of the
injured parties, I ought to make demands very like a declaration of
war.”[121] But M. Buchot, the French Commissioner of Foreign Relations,
addressed Mr. Morris the following soothing words, under date of July
5, 1794: “The sentiments of the Convention and of the Government
towards your fellow-citizens are too well known to you to leave a doubt
of _their dispositions to make good the losses which the circumstances
inseparable from a great revolution may have caused some American
navigators to experience_.”[122] Such was the testimony, at that day,
of ministers on both sides.
Meanwhile, Genet, the French minister, was recalled, at the instance
of President Washington, on account of presumptuous interference in
our affairs, especially hostile to the Proclamation of Neutrality; and
John Jay reached London to negotiate the treaty of 1794 which goes
under his name. The latter event added to the exasperation of France.
But Mr. Monroe, who took the place of Mr. Morris at Paris, was full
of sympathy for the new republic, even when he frankly discharged
his unpleasant duties. In a communication to the Committee of Public
Safety, under date of October 18, 1794, he exposed “a frightful picture
of difficulties and losses, equally injurious to both countries, and
which, if suffered to continue, will unavoidably interrupt for the
time the commercial intercourse between them.”[123] Notwithstanding
this strong language, his influence was thought to have prevailed so
far that President Washington ventured to announce, in a confidential
message of February 28, 1795, good news for our plundered merchants.
“It affords me,” he said, “the highest pleasure to inform Congress
that perfect harmony reigns between the two republics, _and that those
claims are in a train of being discussed with candor, and of being
amicably adjusted_.”[124] This perfect harmony was short-lived, and the
hopes flowering from it were nipped.
The rumor of Mr. Jay’s negotiations with England had already produced
uneasiness in France; but when the treaty, on its ratification, in
October, 1795, was finally divulged, there was an outburst against us.
The treaty was pronounced to be in violation of existing engagements
with France, and our whole policy was openly branded by the President
of the Directory, in reply to Mr. Monroe, as a “condescension of the
American Government to the wishes of its ancient tyrants.”[125] The
Directory refused to receive Charles Cotesworth Pinckney, sent by our
Government in place of James Monroe. Meanwhile, by a succession of
cruel edicts, it unleashed all its cruisers to despoil our commerce,
and cry havoc wherever they sailed. On the 2d July, 1796, it was
declared that “the French Republic will treat neutral vessels, either
as to confiscation, as to searches, or capture, _in the same manner
as they shall suffer the English to treat them_.”[126] The indefinite
terms of this edict were justly denounced by our Government, as “giving
scope for arbitrary constructions, and consequently for unlimited
oppression and vexation.”[127] These results were soon manifest. With
contagious injustice, the French commissioners at San Domingo reported
to the Government at home, “that, having found no resource in finance,
and knowing the unfriendly disposition of the Americans, and to avoid
perishing in distress, they had armed for cruising, and that already
eighty-seven cruisers were at sea, and that for three months preceding
the Administration had subsisted and individuals been enriched with
the products of those prizes.”[128] So extensively did this brutality
prevail, that it was announced that American vessels “no longer entered
the French ports, _unless carried in by force_.”[129]
This spirit of hostility broke forth in another edict of the
Directory, which became at once a universal scourge to American
commerce. This fulmination, bearing date March 2, 1797, after
enlarging the list of contraband, and ordaining other measures of
rigor, proceeds to declare all American vessels lawful prize, if
found without a _rôle d’équipage_, or _circumstantial list_ of the
crew:[130] all of which was in violation of existing treaties, and also
of American usage, which notoriously did not require, among a ship’s
papers, any such list. No edict was so comprehensive in its sweep;
for, as all our vessels were without this safeguard, they were all
defenceless. Numberless spoliations ensued, so absolutely lawless and
unjust that John Marshall did not hesitate to record of them in his
journal, under date of December 17, 1797, “The claims of the American
citizens for property captured and condemned for want of a _rôle
d’équipage_” constituted “_as complete a right as any individuals ever
possessed_.”[131] This right, thus complete, according to the judgment
of our great authority, enters into a large part of the claims still
pending before Congress.
As if to perfect this strange, eventful history, a third edict, at
once inhospitable and unjust, was launched by the Directory, January
18, 1798, prohibiting “every foreign vessel which in the course of her
voyage shall have entered into an English port from being admitted
into a port of the French Republic, except in case of necessity,” and,
still further, handing over to condemnation “every vessel found at sea
loaded in whole or in part with merchandise the production of England
or of her possessions.”[132] This edict was promptly denounced by the
American plenipotentiaries newly arrived at Paris. In earnest, vigorous
tones, they said that it invaded at the same time the interests and
the independence of neutral powers,--_that it took from them the
profits of an honest and lawful industry_, as well as the inestimable
privilege of conducting their own affairs as their own judgment might
direct,--and that acquiescence in it would establish a precedent for
national degradation, authorizing any measures power might be disposed
to practise.[133] Our plenipotentiaries depicted the spirit in which
French spoliations had their origin, and the humiliating consequences
of submission to the outrage; but the personal sufferers are, down to
this day, without redress.
Perplexed and indignant, the United States constituted a special
mission of three eminent citizens, Mr. Pinckney, Mr. Marshall, and Mr.
Gerry, who were charged to secure indemnity for these spoliations.
In his elaborate instructions, dated July 15, 1797, the Secretary of
State, Mr. Pickering, lays down the following rule of conduct: “In
respect to the depredations on our commerce, the principal objects
will be to agree on an equitable mode of examining and deciding
the claims of our citizens, and the manner and periods of making
them compensation.… The proposed mode of adjusting those claims, by
commissioners appointed on each side, is so perfectly fair, we cannot
imagine that it will be refused.” Although this reparation was not
made “an indispensable condition of the proposed treaty,” yet the
plenipotentiaries were enjoined “not to renounce these claims of our
citizens, _nor to stipulate that they be assumed by the United States
as a loan to the French Government_.”[134] Thus fully were these claims
recognized at the time by our Government, and most carefully placed
under the protection of our plenipotentiary triumvirate.
The triumvirate found the French Republic in no mood of justice.
Bonaparte was then triumphant at the head of the army of Italy, and
Talleyrand was exhibiting his remarkable powers at the head of the
foreign relations of France. Victory had given confidence, and the
exulting Republic was standing tiptoe, more disposed to strike than
negotiate, unless it could dictate, and implacable always towards
England and all supposed to sympathize with that power. After exactions
and humiliations hard to bear, the plenipotentiaries were compelled
to return home without any official reception by the intoxicated
Government to which they were accredited, but not before they had
encountered the masterly ability of Talleyrand, who, in reply to their
statement of the claims of the United States, presented the counter
claims of France. Though in Paris merely on sufferance, they had
unofficial interviews with various agents of the Republic, and even
with Talleyrand himself; but without dwelling on details not pertinent
to the occasion, it is enough to say, that, while refusing to offer
a loan or bribe, they were able to declare frankly “that France had
taken violently from America more than fifteen millions of dollars,
and treated us in every respect as enemies”;[135] and also to receive
from Talleyrand a concession, recorded in one of their despatches, that
“some of those claims were probably just,” with the inquiry, “whether,
if they were acknowledged by France, we could not give a credit as to
the payment,--say, for two years?”[136] Here again was an admission not
to be forgotten.
The return of our disappointed plenipotentiaries was aggravated by
circumstances which an eminent Continental writer has not hesitated
to brand as “unique in the annals of diplomacy.”[137] They had been
invited to contribute a _gratification_ of twelve hundred thousand
francs, and the whole desperate intrigue, conducted by persons known
in the correspondence as W, X, Y, Z, was unveiled to the world. The
country was indignant, and war seemed imminent. By various acts of
legislation Congress entered upon preparations, summoning Washington
from retirement to gird on his sword once more as Lieutenant-General.
The claims for French spoliations were never absent from mind. By
Act of the 28th May, 1798, public vessels of the United States were
authorized to capture all “armed vessels sailing under authority or
pretence of authority from the Republic of France,” “_which shall
have committed_, or which shall be found hovering on the coasts of
the United States for the purpose of committing, _depredations on
the vessels belonging to citizens thereof_”; and this statute was
introduced by a preamble asserting “_depredations on the commerce
of the United States_, … in violation of the Law of Nations and
treaties between the United States and the French nation.” By Act of
June 13, 1798, all commercial intercourse was suspended between the
United States and France, until “the Government of France … shall
clearly disavow, and shall be found to refrain from, _the aggressions,
depredations, and hostilities which have been and are by them
encouraged and maintained against the vessels and other property of
the citizens of the United States_.” By Act of June 25, 1798, merchant
vessels of the United States were authorized to resist search or
seizure by any French armed vessel, to repel assaults, and to capture
the aggressors, until “the Government of France … shall disavow, and
shall cause the commanders and crews of all armed French vessels _to
refrain from, the lawless depredations and outrages hitherto encouraged
and authorized by that Government against the merchant vessels of the
United States_.” By Act of July 7, 1798, the treaties with France were
declared to be no longer obligatory on the United States; and this
statute was introduced by a preamble asserting that “_the just claims
of the United States for reparation of injuries_ have been refused, and
their attempts to negotiate an amicable adjustment of all complaints
between the two nations have been repelled with indignity.” Thus, by
express words, in repeated acts, did Congress recognize these claims.
By such vigorous measures were the rights of these claimants asserted,
while the country assumed an attitude of defence. The French Directory
became less intolerable, and negotiations were invited again, with
assurance that the former rudeness should not be renewed. John Adams
was President, and for the sake of peace he seized the opportunity of
this overture, by appointing Chief Justice Ellsworth, Patrick Henry,
and William Vans Murray as a second plenipotentiary triumvirate to
France. As Mr. Henry declined, Mr. Davie, of North Carolina, was
substituted in his place. In adjusting the instructions President Adams
himself took a personal part, as appears by a letter to the Secretary
of State, where he says: “The principal points, _indeed all the
points_, of the negotiation were so minutely considered and _approved
by me and all the heads of department_ that nothing remains but to
put them into form and dress: this service I pray you to perform as
promptly as possible.”[138] But “all the points” were three only: 1st,
Indemnity for spoliations of American commerce; 2d, The unquestionable
wrong of seizing American vessels for want of the paper known to
French law as _rôle d’équipage_; 3d, The refusal to renew the treaty
guaranty of the French West Indies. Such were the _ultimata_ originally
settled by the President and his cabinet on the 11th of March, 1799,
and afterwards fully developed in the elaborate instructions of Mr.
Pickering, dated 22d October, 1799, which, after announcing that “the
conduct of the French Republic would well have justified an immediate
declaration of war on the part of the United States,” proceeded to
declare, as the first point, that the plenipotentiaries, “_at the
opening of the negotiation_, will inform the French ministers that the
United States expect from France, _as an indispensable condition of the
treaty_, a stipulation to make to the citizens of the United States
_full compensation for all losses and damages_ which they shall have
sustained by reason of irregular or illegal captures or condemnations
of their vessels and other property.” And the instructions end, as
they began, by declaring, first among the terms, “that an article be
inserted for establishing a board with suitable powers to hear and
determine the claims of our citizens, _and binding France to pay or
secure payment of the sums which shall be awarded_.”[139] Observe the
positiveness of the assertion.
These instructions attest the interest of our Government. Placed first
among the _ultimata_ adopted in the councils of President Adams, these
indemnities were placed first in the diplomatic instructions. There is
yet other evidence of the character and amount of the spoliations. The
Secretary of State, in a report to Congress, dated January 18, 1799,
after attributing them to French feeling on account of the British
treaty, proceeds to characterize them in remarkable words: “Yet that
treaty had been made by the French Government its chief pretence for
those unjust and cruel depredations on American commerce which have
brought distress on multitudes and ruin on many of our citizens, and
occasioned _a total loss of property to the United States of probably
more than twenty millions of dollars_.”[140] Such were the outrages for
which our plenipotentiaries were to seek redress.
The Directory had ceased; but on reaching Paris the plenipotentiaries
were cordially received by Talleyrand, the citizen minister of Foreign
Affairs, who without delay presented them to the First Consul as he
was about to mount for that wonderful campaign which, opening with the
passage of the Alps, closed at Marengo. Negotiations commenced at once,
Joseph Bonaparte, elder brother of the First Consul, and afterward King
of Spain, being at the head of the commission on the part of France.
“Appreciating,” as they announced, “the value of time,” the American
plenipotentiaries, in a brief note, on the 7th of April,--the very day
when the exchange of powers was completed,--proposed “an arrangement
_to ascertain and discharge the equitable claims of the citizens_ of
either nation upon the other, whether founded on contract, treaty,
or the Law of Nations”; all of which was to be done in order “to
satisfy the demands of justice, and render a reconciliation cordial
and permanent.”[141] Thus instantly were these claims presented. The
French plenipotentiaries in their prompt reply admitted that “_the
first object_ of the negotiation ought to be the determination of the
regulations, and the steps to be followed, for _the estimation and
indemnification of injuries for which either nation may make claim for
itself_ or for any of its citizens.”[142] Here was the suggestion of
claims, not only “individual,” but also “national,” under which loomed
the counter claims of France.
The American plenipotentiaries, while professing to be free from
“apprehension of an unfavorable _balance_,” protested against the
consideration of any “national” claims until some “convenient
stage of the negotiation, after it shall be seen what arrangement
would be acceptable for _the claims of citizens_.”[143] The French
plenipotentiaries rejoined by enforcing “national” as well as
“individual” claims.[144] The issue seemed to be made. On the one side
were the “individual” claims of American citizens, on the other side
the “national” claims of France. The American plenipotentiaries were
not authorized to recognize the “national” claims alone. The French
plenipotentiaries were not authorized to recognize the “individual”
claims, without a previous recognition on our part of the “national”
claims. At last, after various efforts at harmony, it was officially
announced that “the negotiation was at a stand on the part of France,”
as her plenipotentiaries were constrained by instructions of the First
Consul to make “the acknowledgment of former treaties the basis of
negotiation _and the condition of compensation_.”[145] The First Consul
was then on the Italian slope of the Alps, about to pounce upon the
astonished Austrians. Claims and counter claims were of little concern
to him.
Thus far the Committee have exhibited our claims in their origin and
history. The time has come to change the scene, and to exhibit those
counter claims which played such part in the successive negotiations,
and finally produced that memorable _dead-lock_, when the two powers
stood face to face with antagonist pretensions, unable to go forward,
and unwilling to go backward.
II.
COUNTER CLAIMS OF FRANCE, THEIR ORIGIN AND HISTORY.
The counter claims of France differ widely from the claims of American
citizens. They were not “individual,” but “national,” being founded
on alleged violations of treaty stipulations assumed by the United
States in return for the aid of France in the establishment of national
independence. During the protracted controversy between the two
republics they were detailed in numerous official notes; but they were
brandished by Talleyrand, with offensive skill and effect, in the very
faces of our insulted plenipotentiaries, under date of March 18, 1798,
when, while driving them from Paris, he insisted “_that the priority of
grievances and complaints belonged to the French Republic_,” and “that
these complaints and these grievances were as real as numerous, long
before the United States had the least grounded claim to make.”[146]
Careful inquiry enables us to see that this allegation, thus
confidently uttered, was not without a certain foundation; and here we
revert to the history of our country.
The triumph with which the War of Independence happily ended came
tardily, after seven years of battle, suffering, and exhaustion; but
it was hastened, if not assured, by the generous alliance of France.
From Bunker Hill to Saratoga the war was checkered with gloom, which
even the surrender of Burgoyne did not suffice to dispel. Then came
the dreary winter of Valley Forge, when soldiers of Washington, after
treading the snows barefoot, were obliged, for want of blankets,
to huddle all night by the fires, and even the stout heart of the
commander-in-chief bent so far as to announce, in formal letter to
Congress, that, “unless some great and capital change suddenly takes
place, the army must inevitably be reduced to one or other of these
three things,--starve, dissolve, or disperse.”[147] But the scene
changed with the glad tidings that France, by solemn treaty, signed
by Franklin, February 6, 1778, had bound herself to “guaranty to the
United States their liberty, sovereignty, and independence, absolute
and unlimited.” The camp broke forth with the mingled joy of soldier
and patriot, as it turned gratefully to Lafayette, already by the side
of Washington, glorious forerunner of armies and navies promised to our
cause. Congress took up the strain, and, by unanimous vote, ratified
the treaty which opened to our country the gates of the Future.
It is difficult to estimate the value of this treaty in money,
especially when we consider its consequences. According to the report
of Calonne, the French Minister of Finance, the war which ensued in
the support of this guaranty cost France fourteen hundred and forty
millions of francs, or about two hundred and eighty millions of
dollars. But French blood, more costly than money, was shed on land and
sea in the same cause, until at last the army of Cornwallis surrendered
at Yorktown to the allied forces of Rochambeau and Washington, and the
war closed by the recognition of our national independence. If liberty
be priceless, if life be priceless, then was the aid lavished by France
infinite beyond calculation.
The engagements were not all on the side of France. Beyond gratitude
due for this powerful alliance, were express obligations solemnly
assumed by the United States, not only in the Treaty of Alliance,
but also in the Treaty of Amity and Commerce negotiated on the same
day. These obligations, constituting the consideration of the weighty
contract, were of two classes: first, a guaranty by the United States
of the possessions of France in America; and, secondly, important
privileges for the armed ships of France, with a promise of American
convoy to French commerce.
1. The terms of the guaranty are as follows:--
“The two parties guaranty, _mutually_, from the present time
_and forever_, against all other powers, to wit: The United
States to His Most Christian Majesty, _the present possessions
of the crown of France in America_, as well as those which
it may acquire by the future treaty of peace; and His Most
Christian Majesty guaranties, on his part, to the United
States, _their liberty_, _sovereignty_, _and independence,
absolute and unlimited_, as well in matters of government as
commerce, and also their possessions, and the additions or
conquests that their Confederation may obtain during the war
from any of the dominions now or heretofore possessed by Great
Britain in North America.”[148]
To fix more precisely the sense of this article, it was further
stipulated, that,--
“_In case of a rupture_ between France and England, the
reciprocal guaranty shall have its full force and effect the
moment such war shall break out; and if such rupture shall
not take place, the mutual obligations of the said guaranty
shall not commence until the moment of the cessation of the
present war between the United States and England shall have
ascertained their possessions.”[149]
The possessions of France in America at this date were the islands
of San Domingo, Martinique, Guadeloupe, St. Lucia, St. Bartholomew,
Deseada, Mariegalante, St. Pierre, Miquelon, and, on the main-land,
Cayenne,--each and all of which the United States guarantied to France
_forever_, being a _continuing guaranty_, so far as this term of law
is applicable to an international transaction, which, beginning “in
case of a rupture between France and England,” was operative after “the
cessation of the present war between the United States and England,”
and was to continue “forever.”
The terms of the “guaranty” are general, and it was “forever.” Even if
limited to _defensive_ war, it would be difficult to say that France
was not engaged in such a war, with the added incident that it was
a war by a combination of kings to overcome a republic. France was
alone, with the royalties of Europe embattled against her. Only after
the execution of the King England joined this array, lending to it
invincible navies. But, according to official avowals, it was what King
George called “the atrocious act recently perpetrated at Paris”[150]
that finally prompted the part she undertook, and her real object, in
the language of Mr. Fox, was no other than “the destruction of the
internal Government of France.”[151] The case was unprecedented; but
it is difficult to say that it did not come under the “guaranty.” The
_casus fœderis_ had occurred. If France did not exact performance,
that is no reason why our obligations should be disowned, when, at the
present moment, we are trying to arrive at some appreciation of their
extent. A careful examination of the treaty shows that the “guaranty”
became primarily obligatory on the occurrence of _a rupture between
France and England_. Nothing is said or suggested as to the character
of the war, whether offensive or defensive. It is enough that there
was “a rupture.” In such a case, the “guaranty,” according to the
illustration of Cicero, was, _tanquam gladius in vagina_, at the
disposal of France. Our Secretary of State, even while seeking to limit
its application, seems to have seen it prospectively in this light,
when, in his instructions of July 15, 1797, to our plenipotentiaries,
Messrs. Pinckney, Marshall, and Gerry, he said, “Our guaranty of the
possessions of France in America will perpetually expose us to the
risk and expense of war, or to disputes and questions concerning our
national faith.”[152]
2. The Treaty of Amity and Commerce contained a succession of
mutual stipulations, by which the United States undertook,--_first_,
to protect and defend by their ships of war, or convoy, any or all
vessels belonging to French subjects, so long as they hold the same
course, “against all attacks, force, and violence, in the same manner
as they ought to protect and defend” the vessels of citizens of the
United States;[153] _secondly_, to open their ports to French ships
of war and privateers with their prizes, and to close them against
those of any power at war with France, except when driven by stress of
weather, and then “all proper means shall be vigorously used that they
go out and retire from thence as soon as possible”;[154] _thirdly_,
according to French construction, to allow French privateers “to fit
their ships, to sell what they have taken, or in any other manner
whatsoever to exchange their ships, merchandise, or any other lading,”
while privateers in enmity with France are forbidden even to victual
in ports of the United States.[155] As if to round and complete these
engagements, it was further stipulated on the part of the United
States, in a Consular Convention, which, after many perplexities of
diplomacy baffling the tried skill of Franklin, was finally signed by
Mr. Jefferson, in 1788, as a postscript to the earlier treaties, that
French consuls and vice-consuls in the United States should have power
and jurisdiction on board French vessels in civil matters, with the
entire inspection over such vessels, their crews, and the changes and
substitutions there to be made.[156]
Such, briefly recited, were the solemn engagements of the United
States, sanctioned by treaties, as the price of independence. So
long as France remained at peace with all the world, especially with
Great Britain, these engagements slept unnoticed, but ready, at the
first blast of war, to spring into life. At length the blast was
heard, perhaps as never before in human history, echoing from capital
to capital, and sounding a crusade of monarchical Europe against
republican France. Of all the foreign ministers at Paris, the minister
of the United States alone remained: the rest had fled.
The minister of the United States saw the danger lowering upon his own
country. In a letter to the Secretary of State, dated December 21,
1792, after presenting a rapid sketch of the rising of Europe against
France, he adds: “The circumstance of a war with Britain becomes
important to us in more cases than one”; and he then alludes to “the
question respecting the _guaranty_ of American possessions, especially
if France should attempt to defend her islands.”[157] Notoriously,
Gouverneur Morris sympathized little with the French Republic, but,
against all arguments for non-compliance with our original engagements,
because the Government with which they were made had ceased to exist,
his sensitive nature broke forth in the “wish that all our treaties,
however onerous, may be strictly fulfilled according to their true
intent and meaning,” which he followed in language foreign to the
phrases of diplomacy, by picturing “the honest nation as that which,
like the honest man,
‘Hath to its plighted faith and vow forever firmly stood;
And though it promised to its loss, yet makes that promise good.’”[158]
In harmony with this exclamation of the plenipotentiary are the words
of Vattel, an authority much quoted at the time: “To refuse an ally the
succors we owe him, without any good ground of dispensation, is doing
him an injury, … and there being a natural obligation to repair the
damage caused by our fault, and especially by our injustice, we are
bound to indemnify an ally for all the losses he may have sustained
from our unjust refusal.”[159]
Since the signature of the treaties times had changed, and men had
changed with them. There was no bad faith on either side, in the
ordinary sense of the term, but intervening events and exigencies
of self-defence had driven each into unexpected inconsistencies of
conduct. If on one side there was neglect of original engagements,
there was on the other equal neglect of international duties. The
tornado in mad career uprooted old landmarks, and each was striving
to find new lines of reciprocal relations. Franklin, signing the
“guaranty,” did not expect so soon to call down upon his country the
lightnings of an embattled world; nor did France, while formally
conceding neutral rights on the ocean and assuring our national
independence, expect so soon to become the plunderer of our commerce.
But the great tragedy would have been less complete, if its domineering
Nemesis had suffered the two republics to dwell in harmony together.
They were whirled, on each side, into those questionable acts out of
which have sprung the claims and counter-claims now under consideration.
A new French minister was at hand, accredited to President Washington,
with fresh instructions. Differences on the obligations of the guaranty
appeared in the Cabinet,--some holding that no necessity for decision
existed, as France had made no demand,--and others, that, the Treaty of
Alliance being plainly defensive, the guaranty did not apply to a war
begun by France. After ample discussion, the Proclamation of Neutrality
was adopted, April 22, 1793, destined to become a turning-point in our
history. Chief Justice Marshall, whose opportunities of information
were unquestionable, lets us know that the Proclamation “was intended
to prevent the French minister from demanding _the performance of the
guaranty contained in the Treaty of Alliance_.”[160] But before the
Proclamation reached France, orders were issued there for the capture
and confiscation of enemy goods on board neutral vessels; whereas it
was stipulated with the United States that free ships should make free
goods; so that, even if the denial of the guaranty was wrong, and the
Proclamation, according to French accusation, “insidious,” the United
States were not the first to offend.
On the day of the Proclamation came news by the journals that Genet,
the new French minister, had landed in South Carolina, where, amid
the darkest days of the Revolution, Lafayette had also first landed.
Full of conviction that France had only to make herself heard in
order to be sustained, Genet exalted himself conspicuously above the
Government. By instructions from the Executive Council of the French
Republic, dated 17th of January, 1793, he was enjoined “to penetrate
profoundly the sense of the treaties of 1778, and to watch over the
articles favorable to the commerce and navigation of the United States,
and to make the Americans consider engagements which might appear
onerous _as the just price of the independence which the French nation
had secured to them_.” Not content with existing safeguards, the new
minister was to negotiate a supplementary treaty, to fix more surely
“the _reciprocal guaranty_ of the possessions of the two powers.”[161]
In this spirit he commenced a turbulent career, charging offensively
that the President, before knowing what the minister had to communicate
from the French Republic, was in a hurry “to proclaim sentiments on
which decency and friendship should at least have drawn a veil,”--that
he “took on himself to give to our treaties arbitrary interpretations
absolutely contrary to their true sense,” and that “he left no other
indemnification to France for the blood she spilt, for the treasure she
dissipated, in fighting for the independence of the United States, but
the illusory advantage of bringing into their ports the prizes made on
their enemies without being able to sell them,”--and that the Secretary
of War, on his communication of the wish of the Windward Islands “to
receive promptly some fire-arms and some cannon, which might put into
a state of defence _possessions guarantied by the United States_, had
the front to answer, with an ironical carelessness, that the principles
established by the President did not permit him to lend so much as a
pistol.”[162] In another letter, the French minister, under date of
June 8, 1793, requires that “the Federal Government should observe the
public engagements contracted, and give to the world the example of a
true neutrality, which does not consist in the cowardly abandonment
of friends at the moment when danger menaces.”[163] And in still
another letter, dated June 22, 1793, he declares that “it is in the
conventional compacts, collectively, that we ought to seek contracts
of alliance and of commerce simultaneously made, if we wish to take
their sense and interpret faithfully the intentions of the people who
cemented them, and of the men of genius who dictated them.”[164] All
of which was followed by another letter, dated November 14, 1793, in
which the minister says categorically: “I beg you to lay before the
President of the United States, as soon as possible, the decree and the
inclosed note, and to obtain from him the earliest decision, _either as
to the guaranty I have claimed the fulfilment of for our colonies_, or
upon the mode of negotiation of the new treaty I was charged to propose
to the United States, and which would make of the two nations but one
family.”[165] At last Genet was recalled, but the question of our
engagements with France could not be dismissed. It was more menacing
than any minister. Without it all the turbulence of Genet would have
been as the idle wind.
And yet, for a while, each party seems to have practised a certain
reserve. Genet stormed, but the Government at home was tranquil. The
“guaranty” was suspended, even in discussion. France forbore to press
it, and the United States were happy to avoid the over-shadowing
question. The Secretary of State, in instructions to Mr. Monroe, dated
June 10, 1794, while “insisting upon compensation for the captures
and spoliations of our property and injuries to the persons of our
citizens by French cruisers,” was careful to add: “If the execution
of the _guaranty_ of the French islands by force of arms should be
propounded, you will refer the Republic of France to this side of
the water.”[166] Mr. Monroe, in his correspondence, under date of
September 15, 1794, says: “This Republic had declined calling on us
to execute the guaranty, from a spirit of magnanimity, and strong
attachment to our welfare”; but he reveals his anxiety lest an attempt
to press our case “might give birth to sentiments of a different
kind, and _create a disposition to call on us to execute that of the
Treaty of Alliance_.”[167] In another letter, dated November 7, 1794,
describing an interview with the very able Diplomatic Committee, our
plenipotentiary confesses the embarrassment he encountered, when M.
Merlin three times asked, “Do you insist upon _our_ executing the
treaty?” and he gives his reply, that he “was not instructed by the
President to insist on it, nor did he insist on it”; and he avows that
in his opinion such insistence would have been impolitic, as “exciting
a disposition to press us on other points, _upon which it were better
to avoid any discussion_.”[168] There is other testimony of this
nature, unnecessary to produce. Suffice it to say, that for some time
there was a lull, soon to be followed by a storm.
French forbearance is more remarkable, when it is considered that
the occasion for the “guaranty” had begun to be urgent. Even before
Howe’s great victory of June, over the French fleet, the British navy
swept the sea, rendering all French possessions insecure. Martinique,
San Domingo, St. Lucia, and Guadeloupe were lost to the Republic in
the spring of 1794, so that the British historian has written: “Thus,
in little more than a month, the French were entirely dispossessed of
their West India possessions, with hardly any loss to the victorious
nation.”[169] But the “guaranty” was invoked by the impatient
colonists, who, without waiting the slower movement of the French
Republic, appealed directly to our Congress for “divers necessary
succors, of provision, ammunition, and even men,” and in impassioned
language pictured “England come to take possession of the French
colonies in the name of a king without dominions, and North America,
witness to that political perfidy, not able to lend a helping hand
against an unworthy treachery.”[170] The French Government at home
did not share the fury of the colonists. According to Mr. Monroe, in
his letter of December 2, 1794, whatever may have been their desires
at a previous stage, they did not now wish us to “embark with them
in the war,” but “would rather we would not, from an idea it might
diminish their supplies from America,” and “if the point depended on
them, they would leave us to act in that respect according to our own
wishes”; at the same time they looked to us for “aid in the article
of money.”[171] This moderation, although a temporary waiver, was in
no respect a renunciation of rights. According to Mr. Jefferson, in a
letter written some months after his retirement from the Cabinet, and
addressed to Mr. Madison, under date of April 3, 1794, the “guaranty”
was still obligatory. “As to the guaranty of the French islands,” he
wrote, “whatever doubts may be entertained of the moment at which we
ought to interpose, yet _I have no doubt but that we ought to interpose
at a proper time_, and declare both to England and France that these
islands are to rest with France, and that we will make _a common cause_
with the latter for that object.”[172] Such was American testimony.
The West India islands were lost without causing an apparent smart
at home; but it was different, when the news came of Mr. Jay’s
negotiation in England. The Republic was stung to the quick, and,
when the treaty became known, did not conceal its indignant anger.
In a formal note, dated March 9, 1796, it set forth its complaints,
dwelling especially upon the “inexecution of the treaties,” and upon
the formation of the recent treaty with Great Britain, in which the
United States “knowingly and evidently sacrificed their connections
with the Republic.”[173] In conversation with Mr. Monroe, the French
minister said “that France had much cause of complaint against us,
independently of our treaty with England, but that by this treaty
ours with them was annihilated.”[174] The year closed with the recall
of Mr. Monroe, and with a notice from the French Government “that
it will no longer recognize nor receive a Minister Plenipotentiary
from the United States, _until after a reparation of the grievances
demanded of the American Government_, and which the French Republic
has a right to expect”; and then, adding ingratitude to the list of
our offences, it declared an equal expectation “that the successors of
Columbus, Raleigh, and Penn, always proud of their liberty, will never
forget that _they owe it to France_.”[175] Meanwhile, M. Adet, the
French plenipotentiary in Philadelphia, was addressing our Government
in similar strain, calling for the discharge of our engagements, and
heaping reproaches: “The undersigned, Minister Plenipotentiary of the
French Republic, now fulfils to the Secretary of State of the United
States a painful, but sacred duty. _He claims, in the name of American
honor, in the name of the faith of treaties, the execution of that
contract which assured to the United States their existence_, and which
France regarded as the pledge of the most sacred union between two
people the freest upon earth.” And he charges the Government of the
United States with “sacrificing France to her enemies,” “forgetting the
services that she had rendered it,” and “throwing aside the duty of
gratitude, as if ingratitude was a Governmental duty.”[176] From this
time forward the claims of the United States never failed to encounter
the counter-claims of France.
The mutual coquetry which characterized the two Governments during the
mission of Mr. Monroe gave way to mutual recrimination and repulsion,
where France took the lead. M. Adet was recalled from Philadelphia.
Mr. Pinckney was sent away from Paris. Besides the earlier decree,
announcing that the Republic would treat all neutrals in the same
manner as they suffered the English to treat them, other fatal
blows were now dealt at our commerce, letting loose a new brood of
spoliations destined to swell the catalogue of our claims, by a decree
pronouncing the stipulations of the treaty of 1778 which concerned the
neutrality of the flags altered and suspended in their most essential
points by the treaty with England, greatly enlarging the list of
contraband, declaring Americans in the service of England pirates,
and authorizing the seizure of all American vessels without a _rôle
d’équipage_, which, notoriously, no American vessel ever carried, so
that practically our flag was delivered over to the depredations of
every French cruiser.[177]
Then came that plenipotentiary triumvirate, Messrs. Pinckney,
Marshall, and Gerry, who were particularly instructed by our
Government, while urging the multiplied claims of our citizens,
already valued at “more than twenty millions of dollars,” to propose
“a substitute for the reciprocal guaranty,” or, “if France insists on
the mutual guaranty, to aim at some modification of it,”--“instead of
troops or ships of war, to stipulate for a moderate sum of money or
quantity of provisions, at the option of France: the provisions to be
delivered at our own ports, in any future _defensive_ wars; the sum of
money, or its value in provisions, not to exceed two hundred thousand
dollars a year, during any such wars.”[178] Here was recognition of
the “guaranty,” and a sum offered for release from its requirements.
But the French Republic, drunk with triumph and maddened with anger,
was in no mood for negotiation. It met our plenipotentiaries with an
intrigue already mentioned as unparalleled in diplomacy, and, after
tolerating their presence for a while at Paris, without conceding an
official reception, sent them away, disappointed and dishonored. Even
in the informal relations which were permitted, Talleyrand, in the
name of the Republic, advanced and vindicated the counter-claims of
France. Without dwelling at length on his argument, it is enough to
quote certain words in a letter to Mr. Gerry, of June 10, 1798: “_The
French Republic desires to be restored to the rights which its treaties
with your Republic confer upon it, and through those means it desires
to assure yours. You claim indemnities; it equally demands them_; and
this disposition, being as sincere on the part of the Government of
the United States as it is on its part, will speedily remove all the
difficulties.”[179] Thus plainly was the case stated. It was not denied
that indemnities were due to the United States, but it was insisted
that they were also due to France.
The two countries, once allies, were now in the most painful
relations. Washington was no longer President; but his Farewell
Address, in some of its most important parts, was evidently inspired
by the counter-claims of France, especially when he warned his
fellow-countrymen “to steer clear of _permanent alliances_ with any
portion of the foreign world, _so far as we are now at liberty to do
it_,”--“to have with foreign nations as little _political_ connection
as possible,”--“to be constantly awake against the insidious wiles of
foreign influence,”--and then asked in well-known words, “Why quit our
own, to stand upon foreign ground? Why, by _interweaving our destiny
with that of any part of Europe_, entangle our peace and prosperity
in the toils of European ambition, rivalship, interest, humor, or
caprice?”[180] In these remarkable words, where the same tone, if not
the same lesson, recurs, we discern the undissembled anxieties of
the hour. By the guaranty and other stipulations of 1778, our peace
and prosperity had been entangled, even if our destiny had not been
interwoven, in distant toils. France was urgent and brutal. War seemed
impending. At last another triumvirate of plenipotentiaries, Messrs.
Ellsworth, Davie, and Murray, was commissioned to attempt again the
adjustment of complications that had thus far baffled the wisdom of
Washington; but compensation for the “individual” claims of American
citizens was required as an indispensable condition.
Such are the counter-claims of France in origin and history. And now
again we are brought to the very point where the Committee had arrived
in exhibiting the claims of our citizens. The plenipotentiaries on each
side have met to negotiate, while the First Consul has gone to Marengo.
On each side they are equally tenacious. There is a dead-lock. How this
was overcome belongs to the next chapter.
III.
ADJUSTMENT BETWEEN THE UNITED STATES AND FRANCE BY THE SET-OFF AND
MUTUAL RELEASE OF CLAIMS AND COUNTER-CLAIMS.
The rules of duty and of conduct between individuals are applicable
also to nations, and the proceedings on this occasion illustrate
this principle. The two parties could not agree. Clearly, then, for
the sake of harmony, it was essential to postpone both claims and
counter-claims, for some future negotiation, or, if this were not
done, to treat them as a set-off to each other. Such, unquestionably,
would have been the action between individuals. But the history of
this negotiation shows the adoption of these two modes successively.
Postponement was first tried, but it gave way at last to _set-off_,
by virtue of which the _international_ controversy was closed. This
conclusion was reached slowly and by stages, as is seen in a simple
narrative of the negotiation.
The plenipotentiaries on each side evinced a disposition to provide
for reciprocal claims; but the claims specified by the American
plenipotentiaries were those of “_citizens_ of either nation,” while
those specified by the French plenipotentiaries were those which
“either nation may make for _itself_ or for any of its citizens.”[181]
In this difference of specification was the germ of the antagonism soon
developed, especially when the American plenipotentiaries proposed to
recognize the treaties and Consular Convention as existing only to
July 7, 1798,[182] the date of the statute by which Congress undertook
to annul them. This distinction seems to have been unnecessary, for
the French spoliations were clearly as much in contravention of
the Law of Nations as of the treaties. But it furnished the French
plenipotentiaries opportunity of declaring, under date of May 6,
1800, that “the mission of the Ministers Plenipotentiary of the
French Republic has pointed out to them the Treaties of Alliance,
Friendship, and Commerce, and the Consular Convention, _as the only
foundations of their negotiations_”; that “upon these acts has arisen
the misunderstanding, and it seems proper that upon these acts union
and friendship should be established.”[183] Thus were the treaties put
forward by France; and our plenipotentiaries, writing to their own
Government, May 17, 1800, represent her as persistent: “Our success
is yet doubtful. The French think it hard to indemnify for violating
engagements, _unless they can thereby be restored to the benefits of
them_.”[184] But on this point our Government was inexorable.
The return of the First Consul from Italy was signalized by fresh
instructions to the French plenipotentiaries, who proceeded to declare,
under date of August 11, 1800, that “the treaties which united France
and the United States are not broken,” and that their first proposition
is “to stipulate a full and entire recognition of the treaties, and
the reciprocal engagement of compensation for damages resulting on
both sides from their infraction.” Here, again, the “individual”
claims of citizens of the United States were doomed to encounter the
“national” claims of France. And this communication concluded with
a formal proposition in these words: “Either the ancient treaties,
with the privileges resulting from priority and the stipulation of
reciprocal indemnities, or a new treaty, assuring equality without
indemnity.”[185] Thus it stood: Claims and Counter-Claims.
The American plenipotentiaries were driven to choose between
abandonment of the negotiations and abandonment of their instructions.
It was clear, from French persistency, that the treaties, with all the
counter-claims, must be recognized, or the indemnities, with all the
claims, must be sacrificed. The American plenipotentiaries then took
the extraordinary responsibility of a proposition which discloses not
only their earnest desire for a settlement, but also their sense of
pressure from France. It was nothing less than a price, in money, for
release from certain stipulations; but this was to be accomplished by
“a reciprocal stipulation for _indemnities limited to the claims of
individuals_.”[186] The French plenipotentiaries, in reply, insisted
upon recognition of the treaties in general terms, and also the rights
of their privateers in our ports; yet they offered to commute the
guaranty for a sum of money.[187] The American plenipotentiaries,
hampered by the recent treaty with Great Britain, were obliged to
reject this proposition; but, after requiring the satisfaction of
“individual” claims, they offered, in general terms, that “the former
treaties be renewed and confirmed, and have the same effect as if
no misunderstanding between the two powers had intervened”; and
further, that, _in consideration of eight millions of francs_, the
United States should be released from the guaranty, and also from
those other articles relating to prizes which had caused so much
embarrassment.[188] Then the French plenipotentiaries assumed a new
position in the following reply, September 4, 1800.
“_To the Ministers Plenipotentiary of the United States at
Paris_:--
“We shall have the right to take our prizes into the ports of
America.
“A commission shall regulate the indemnities which either of
the two nations may owe to the citizens of the other.
“_The indemnities which shall be due by France to the citizens
of the United States shall be paid for by the United States.
And in return for which, France yields the exclusive privilege
resulting from the 17th and 22d articles of the Treaty of
Commerce, and from the rights of guaranty of the 11th article
of the Treaty of Alliance._
“BONAPARTE.
“C. P. CLARET-FLEURIEU.
“ROEDERER.”[189]
Here was the first proposition of _set-off_. On the one side were
“indemnities due by France to citizens of the United States,” and on
the other side were “privileges and rights” under the treaties; but it
will not fail to be remarked that _the indemnities due by France were
to be paid by the United States_. This proposition proceeded on the
idea that the counter-claims of France were at least equal in value to
the claims of the United States, and that the release of the former
was a sufficient consideration for the assumption of the latter. But
this was entirely beyond the powers of the American plenipotentiaries,
who, in their reply, pronounced it “inadmissible.”[190] It revealed
the desire of France to escape any payment of money, as only a few
days later was openly avowed by the French plenipotentiaries, “giving
as one reason the utter inability of France to pay, in the situation
in which she would be left by the present war.”[191] This declared
inability served to explain the difficulties encountered by the
American plenipotentiaries. Evidently there was a “foregone conclusion”
against any payment by France. The counter-claims furnished the needed
_substitute_. But, as these were “national,” while the claims of the
United States were “individual,” there could be no just _set-off_
between them, unless the American Government assured to its citizens
the payment of what was due from France, according to the proposition
of the French plenipotentiaries.
The American plenipotentiaries were disheartened. Nothing in their
instructions enabled them to meet the new and unexpected turn of
affairs. The treaty they had striven for seemed to elude their
grasp. In their journal, under date of September 13, 1800, is the
record, that, “being now convinced that the door was perfectly closed
against all hope of obtaining indemnities with any modifications of
the treaties, it only remained to be determined whether, under all
circumstances, it would not be expedient to attempt _a temporary
arrangement_.”[192] The French plenipotentiaries did not consider
this proposition, without insisting, “first, that a stipulation of
indemnities carries with it the full and entire admission of the
treaties, and, secondly, that the relinquishment of the advantages
and privileges stipulated by the treaties, by means of the reciprocal
relinquishment of indemnities, would prove to be the most advantageous
arrangement, and also the most honorable to the two nations.”[193]
Here, again, was a proposition of _set-off_, which was repeated in
other different forms.
The dead-lock which clogged the negotiation, even at the beginning,
was now complete. The American plenipotentiaries announced at home
that they were driven to quit France, or to find some other terms of
adjustment.[194] The latter alternative prevailed, and the negotiation
was renewed, with the understanding that the parties put off to
another time the discussion of indemnities and the treaties.[195] The
other questions furnished no ground of serious controversy; and the
conferences proceeded tranquilly, from day to day, till September 30,
1800, resulting in what was entitled a “_Provisional_ Treaty.” The
title revealing its temporary character was subsequently changed, at
the request of the French plenipotentiaries, to that of “Convention,”
which it now bears in the statute-book.
The Convention, after declaring in its first article that “there shall
be a firm, inviolable, and universal peace, and a true and sincere
friendship, between the French Republic and the United States of
America,” proceeds to stipulate as follows.
“ART. II. The Ministers Plenipotentiary of the two parties
not being able to agree at present respecting the Treaty
of Alliance of 6th February, 1778, the Treaty of Amity and
Commerce of the same date, and the Convention of 14th of
November, 1788, nor upon the indemnities mutually due or
claimed, the parties will negotiate further on these subjects
at a convenient time; and until they may have agreed upon
these points, the said treaties and convention shall have no
operation, and the relations of the two countries shall be
regulated as follows.”[196]
Here the disagreement with regard to the early treaties and the
indemnities mutually due or claimed is specifically declared, and it
is then provided that “_the parties_ will negotiate further on these
subjects at a convenient time,”--meaning, of course, that hereafter,
at a more auspicious moment, and with other plenipotentiaries, “the
parties” will attempt to reconcile this disagreement. The whole
subject, with its seven years of controversy and heart-burning, was
postponed. Claims and counter-claims were left to sleep, while the
spirit of peace descended upon the two countries.
The Convention was signed at Morfontaine, the elegant country
home of Joseph Bonaparte, and the occasion was turned into a
festival,--illustrated afterwards by the engraving of Piranesi,--where
nothing was wanting that hospitality could supply. The First Consul
was there, with his associates in power; also Lafayette, rescued from
his Austrian dungeon and restored to France; and there also were the
plenipotentiaries of both sides, with American citizens then in France,
all gathered in brilliant company to celebrate the establishment of
concord between the two republics.[197] The First Consul proposed as
a toast, “_To the manes of the French and the Americans who died on
the field of battle for the independence of the New World_”; so that
even at this generous festival, to grace a reconciliation founded on
the postponement of claims and counter-claims, the youthful chief,
whose star was beginning to fill the heavens, proclaimed the undying
obligations of the United States to France. This strain has been
adopted by M. Thiers, who, after referring to this convention as the
first concluded by the Consular Government, says: “It was natural that
the reconciliation of France with the different powers of the globe
should begin with _that republic to which she had in a measure given
birth_.” The great historian, while thus recording our obligations to
France, shows how claims and counter-
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